Franks Bros. Co.

National Labor Relations Board - Board Decisions

Oct 8, 1942

44 N.L.R.B. 898 (N.L.R.B. 1942)

In the Matter of FRANKS BROS. COMPANY and AMALGAMATED CLOTHING
WoRKERS'OF AMERICA (C. I. 0.) ,
Case No. C-f1 79.Decided October 8, 19
Jurisdiction : garment manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: interrogation of employees as to union.
membership and activity ; statements of union hostility; urging employees to
vote against union in scheduled consent election; threats of plant shut-down
in the event union won election; respondent's campaign to-discredit union and
attack its majority status warranted withdrawal from scheduled consent
election.
Discrimination: allegations of ; for union membership and activity dismissed as
to two employees.
Collective Bargaining: union's majority established by application-for-member-
ship cards designating union or affiliated organization-refusal to bargain col-
lectively by: refusal to accord recognition without question or inquiry as to
union's majority ; insistence upon unreasonable delay and postponement 6f nego-
tiation ; insinuation of a strike in place of bargaining negotiations.
Remedial Orders : respondent ordered to cease and desist unfair labor practices;
to post notice containing the provision that plant will not be shut down if union
or any labor organization wins election; upon request to bargain collectively
with union ; affirmative order to bargain based on union's majority as of date
of refusal to bargain. ,
Unit Appropriate for Collective Bargaining : all production and maintenance
employees at respondent's plant in Lawrence, Massachusetts, excluding execu-
tives, supervisors, and clerical employees, agreed as to except for specified
employees.
Mr. Albert J. Hoban, for the Board.
Gordon & Gordon, by Mr. Benjamin E. Gordon, of Boston, Mass.,
for the respondent.
Roewer c Reel, of Boston, Mass., and Mr. David M. Schlossberg,
of New York City, for the Union.
Mr. Max E. Halpern, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Amalgamated
Clothing Workers of America, affiliated with the Congress of Indus-
44 N. L. R. B., No. 177.
898
11
--FRAN'KS''BROS. : 'COMPANY .f' 899,
trial Organizations, herein called the Union, the National'Labor Rela-
tions Board,, herein called the Board, by the Regional Director for the
First Region (Boston, Massachusetts), issued its complaint, dated:
March 2, 1942, against Franks Bros. Company, Lawrence, Massachu-
setts, herein called the respondent, alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting com-
merce, within the meaning of Section 8 (1), (3), and (5) and Section:
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act.. Copies of the complaint, accompanied by notices of
hearing, were duly served upon the respondent and the Union.
With respect to, the unfair labor practices, the complaint alleged,
in substance, that the respondent : (1) on or about July 21, 1941, and
thereafter questioned employees concerning their union membership
and activities, expressed hostility toward the Union, urged employees
to vote.against the Union in a consent election scheduled to be held'
on July, 25, 1941, threatened that the respondent's plant would close
and that the employees would lose their employment if the Union won'
the election, and urged Guisseppe Bagliere, the father of'Joseph Bag-
liere, one of its employees, to persuade his son to resign from the
Union; (2) discharged Joseph Bagliere and Rose Pinto on August'
16 and September 9, 1941, respectively, because of their union•member-
ship and activities; (3) on or about June 12, 1941, and at all times
thereafter, refused-to bargain collectively with the Union as the exclu-
sive representative of the employees within an appropriate unit; and
(4) by the foregoing acts interfered with, restrained, and coerced its
employees. in the exercise, of the rights guaranteed in Section 7, of
the Act.
The respondent filed an answer, dated March 13, 1942, denying that
it was engaged in commerce and that it had engaged in any unfair
labor practices.
Pursuant to notice, a hearing was held at Lawrence, ,Massachusetts,
from March 16 to 24, 1942, before William,F. Guffey, Jr., the Trial,
Examiner duly designated by the Chief Trial Examiner. The Board'
and the respondent were represented by counsel and participated in;
the hearing. A representative of the Union was present throughout,
the hearing but did not call or examine any witnesses. Full oppor-
tunity, to be heard, to examine and cross-examine witnesses, and to,
introduce evidence bearing.upon• the issues was afforded all parties.
During the course of the hearing, the Trial Examiner made rulings
on various-motions and on objections to the admission of evidence.
The Board has reviewed the rulings 'of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby_
affirmed. -
On April 30, 1942, the Trial Examiner issued his Intermediate Re-
port, copies of which were duly served upon the parties, in which he,^
900 DECISIONS OF NATIONAL , LABOR RELATIONS BOARD
found that the respondent had engaged in and was engaging in unfair
labor practices , within the meaning of Section 8 ( 1) and ( 5) and Sec-
tion 2 ( 6) and (7) of the Act and recommended that the respondent
cease and desist therefrom and take certain affirmative action deemed
necessary to effectuate the policies of the Act. The Trial Examiner
further recommended that the complaint be dismissed insofar as it
alleged that the respondent had engaged in unfair labor practices with-
in the meaning of Section 8 (3) of the Act. On June, 8, 1942, the
Union filed exceptions to that portion of the Intermediate Report
finding no violations of Section 8 (3) of the Act; the exceptions were
accompanied by a supporting "Memorandum ." On June 8, 1942, the
respondent filed exceptions to the Intermediate Report and a brief.
Pursuant to notice duly served upon all the parties, a hearing for
the purpose of oral argument was field before the Board at Washing-
ton, D. C., on June 30 , 1942. The respondent and the Union were
represented by counsel and presented oral argument . The Board has'
considered the exceptions to the Intermediate Report and the memo-
randum and brief and, insofar as the exceptions are inconsistent with
the findings , conclusions ,'and order set forth below, finds them to be
without merit.
,Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Franks Bros. Company is a Massachusetts corporation having its
principal office and place of business at Lawrence , Massachusetts,
where it is engaged in the manufacture , sale, and distribution of men's
suits, overcoats , and topcoats ., The principal raw materials used by
the respondent in the manufacture of its finished products consist of
woolens, worsteds , rayon, and "miscellaneous = findings." During the
year 1941 the respondent used $125,000 worth of woolens and worsteds,
$18,,000 worth of rayon , and $7,000 worth of "miscellaneous findings."
Of these amounts, approximately 22 percent of the woolens and
worsteds , 50 percent of the rayon , and 45' percent of the "miscellaneous
findings," were shipped to the respondent from points outside the
Commonwealth of Massachusetts . The finished products manu-
factured by the respondent during this period were valued at approxi-
mately $200,000.1
' In addition to the above -described operations , the respondent manu-
factures men's clothing from woolens and worsteds owned and sup-
' These finished products are apparently sold and distributed by the respondent through
the retail store it owns and operates in connection with its plant at Lawrence It does
not appear whether any of these finished products were shipped to points outside Massa-
chusetts
FRANKS BROS. COMPANY 901
plied by Samson-Crane Co. and Richards Clothes CO .2 These ma-
terials are,purchased, received, and stored by the respective owners
thereof and maintain "their separate identity during the process of
manufacture. When the clothing is manufactured from such, ma-
terials, it is turned over by the respondent at the Lawrence plant to
these companies which ship it without further processing to their
respective retail stores located in Maine, New Hampshire, and Massa-
chusetts. During the year 1941 Samson-Crane Co. sold at retail ap-
proximately $480,000 worth of garments. Of this amount, the re-
spondent manufactured 11,000 or 12,000 garments, approximately 20
percent of which Samson-Crane Co. shipped to and sold at its retail
stores located outside Massachusetts. During the same year Richards
Clothes Co. sold at retail approximately 2,000 garments valued at
approximately $40,000. Of this amount the respondent manufactured
approximately 700 garments, almost all of which were sold by Richards
Clothes Co. at its retail store at Lewiston, Maine.
II. THE ORGANIZATION INVOLVED
Amalgamated Clothing Workers of America is a labor organization
affiliated with the Congress of Industrial Organizations, admitting to
membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
The Union began organizing the respondent's employees in Janu-
ary 1941, and by the early part of June, a majority of the employees
had applied for membership. On June 12, 1941, Frank Lerman, as-
sistant manager of the Union's Boston Joint Board, met with Samuel
Franks and Abraham Franks, the respondent's president and secre-
tary, respectively, at their office in Lawrence, Massachusetts. It ap-
pears that Lerman was acquainted with the Franks, having, manu-
factured clothing for them some years previously. After some dis-
cussion of "old times," Lerman stated that the employees were signing
membership cards and requested the respondent to negotiate an
agreement with the Union, pointing out during the discussion various
advantages that-the respondent would derive by virtue of such a con-
tract. The parties discussed such matters as the union label, wages,
2 The respondent, Samson-Crane Co, and Richards Clothes Co are closely held com-
panies , the ownership and operation of which are interrelated Samuel Franks is presi-
dent, treasurer, and the principal stockholder of the respondent. His son, Abraham A.
Franks, Is secretary of the respondent , treasurer, and sole stockholder of Samson-Crane
Co, and secretary of Richards Clothes Co Another son, Harry Franks, is sole stockholder
of Richards Clothes Co All these companies now have their principal offices and places
of business at the same address in Lawrence , Massachusetts. -
.902 DECISIONS OF,NATIONAL LABOR. RELATIONS BOARD
.the Union's rating of 'employers- in the .trade on the basis of labor
costs, and the efficiency of dealing-with the Union rather than with
'individual -employees. In the course of the discussion, Abraham
Franks inquired whether the. Union had a majority. There is con-
.flict in the testimony concerning Lerman's reply to,this inquiry. In
'answer to a direct question by the Trial Examiner, Lerman testified
that he.told.the respondent at the first conference that the Union rep-
-resented a majority.3 Samuel and Abraham Franks each gave a dif-
-ferent version of Lerman's response to their inquiry. Samuel -Franks
`first testified that Lerman stated "I don't think so; I don't know."
Thereafter on several occasions Samuel Franks testified that Lerman
had said that, "he (Lerman) hasn't got a majority," thereby not only
contradicting his own previous testimony but also that of Abraham
-Franks, who repeatedly asserted that Lerman's reply was that "he.
did not know" whether the Union had a majority.4 It is clear, how-
ever, that there was .no further discussion of the matter of majority
and that the respondent neither requested an examination of the cards
nor inquired as to the number of employees who had signed cards.
Moreover, it appears that further discussion was. foreclosed, when
Abraham Franks indicated'that the respondent was not prepared to
deal with the Union at that time, stating, according to Lerman, that
"the best thing would be to leave them alone and give them time up
to Christmas as he don't know what he will do with his business at
the present time, and after Christmas he would talk to" the Union.
When Abraham Franks informed, Lerman thit lie expected to be in
Boston, where the Union's office was located, within the following
week, Lerman suggested, and the respondent agreed, that they meet
'at such time and confer further on the matter.
Within the next week Lerman met with Abraham Franks in Boston
and again requested that an agreement be entered into between the
Union-and the respondent. Abraham Franks admitted at the hearing
that he refused at that time to enter into any agreement, and told Ler-
man that' he "would discuss [the matter] again with [his] father and
if there was any change in the situation, [he] would get in touch with
[Lerman]." According to Lei-man's testimony, Franks repeated his
suggestion that the Union "leave him alone until Christmas because he
'don't know what he is going to do with his business," and Lerman
3 Lerman testified that at the time of the first conference , lie knew the Union had a
majority , that Louis Hascall, general organizer of the Union, had so advised him, that he
bad been informed by Hascall that approximately 50 cards had been signed , and that at
the first conference Abraham Franks had stated that the respondent had 75 employees.
4 An apparent contradiction in Abraham Franks' testimony similar to thit of his father,
was corrected by stipulation entered into by the parties subsequent to the heating, and
hereby made a part of the record in the case However , Abraham Franks did contradict
himself when , in answer to . a question as to when he learned that the Union represented
it majority , he testified that the matter of the"Union's, majority was never discussed prior
to the conference at the Regional Office on July 3.'
I
p 2
FRAINTKS BROS. 'COMPANY' -'903
replied that them- atter could not be delayed until 'Christmas,' and that'
if thecparties could not "come together" the Union would request the
Board to certify the Union' as majority representative.5 -Again, 'in
=response 'to a 'question asked him by the Trial Examiner, Lerman -
'testifiedthat he told the respondent at the second conference that the
`Union had a majority and on cross-examination he' further testified
`that Abraham Franks asked him, "Are you sure you are going to win
the 'election?" and' that Lerman replied, "I have a majority of the
,cards." Lerman further testified, and Abraham Franks did not deny,
that Franks stated, "Well, if you are so sure about it, why don't you
call another strike?" 6 The second conference was concluded with
Franks' remark that the respondent's position was still the same, that
unless he informed Lerman to the contrary after discussing the matter
with his father, the respondent would not then bargain with the
Union, and with Lerman's reply that unless he heard from ' the re-
spondent, the Union would resort to the Board's election procedure.
On June 19, 1941, the Union filed a petition for an investigation and
certification of representatives: Subsequent thereto and after con-
-ferences at the Regional Office in which counsel for the respondent and
representatives of the Union and the Board participated, an agree-
ment was entered into for a consent election, which was signed by the
Union on July 3, and by the respondent on July 14, 1941. Although
'the Union had demanded that the election be held prior to the begin-
ning of the "usual vacation period, during which time the plant is
customarily shut down, the Union waived its demand, and it was
-finally agreed that the election be held on July 25; provided that
notices of the election would be posted immediately.?
Sam Radie, an operator in the coat department, testified that after
.the election notices had been posted in the plant, Friedman, foreman
of the coat-department, stated to Radie that he believed that "the shop
would close if the Union got into the factory," and that "if the union
won the election the place would be shut down, the work would be made
up in another shop." . Souren Perperian, employer in the same de-
partment, testified that prior to a union meeting on July 23, Friedman
Abraham Franks testified that at the second confeence these was no discussion about
Christmas He did not deny , nor did hs father , that he insisted at the first conference,
that the matter be delayed by the Union until after Chiistmas Ilascall corroborated
Lerman's testimony on this point , by testifying that shortly after Lerman 's second con-
ference with the respondent , Lerman reported that the respondent had requested that
negotiations , be held in abeyance until after Christmas.
G It is undenied that a strike had been called against the respondent sometime prior to
1941 . Samuel Franks admitted that fact , although lie was unable to recall when it bad
occurred We agree with the finding of the Thal Examiner that Abraham Franks made
the statement referred to in the text as testified to by Lerman.
7 According to the respondent , notices were posted immediately upon receipt thereof, on
July 16, 1941 The Union claims, however, that they were not posted until on or about
July 20 , after complaint had been made that they had not been posted. .
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
made similar anti-union remarks to him .8 Friedman claimed that he
,had, received instructions from the respondent to refrain from dis-
cussing the Union with any of the employees, although he was not
clear as to whether he received such instructions "a week or a week
and a half" prior to the scheduled election or "a week or two" .prior to
the posting of the election notices. He specifically denied that he
had ever spoken to any of the employees about the union meeting, the
scheduled election, or any other union matters, or that he had heard any
rumors about the Union after receiving these instructions. However,
lie admitted that employees asked him questions about the Union and
that they had told.him of the rumor that "in case it was a union shop
the factory would be closed." The Trial Examiner, who observed
the demeanor of the witnesses and heard their testimony, credited the
testimony of Radie and Perperian. In view of the Trial Examiner's
finding and of the inconsistencies in Friedman's testimony, as to
whether he had spoken to any of the employees, or had heard rumors
on any matters concerning the Union, we find that Friedman made the
statements attributed to him by Radie and Perperian.
On July 23, between 25 and 40 of the respondent's employees at-
tended a meeting conducted by the Union at its hall in Lawrence. At
this meeting several of the employees, stated that a number of- the
respondent's supervisors had declared that if the Union were successful
in the scheduled election, the respondent would immediately close the
plant. During the meeting a majority of those present voted to have
the scheduled election postponed. On July 24, the Union withdrew its
petition for certification and the Regional Director thereupon notified
the respondent that the election was canceled.9
According to the testimony of Peter Naffah and Joseph Bagliere,
on July 24, 1941, the day after the union meeting, Harry Yosper,-their
foreman, stated that "if the Union got in that the, shop would-closed,"
and that "Mr. Abraham Franks there would take the contract away,
thereby there wouldn't be any work and they would close up the
shop," 10 Rose Pinto testified that on the morning of July 25, Yosper
approached a group of his employees, including herself, Victoria Riz-
kallah, and several others, and addressing Pinto with the remark that
there was "a union leader" in the shop, stated that "if the union got in
the doors would be closed Friday night." Rizkallah corroborated this
testimony and further testified that, on several occasions prior to July
'At the conclusion of the Union ' s meeting on July 23. Radie and Perpei ran signed
statements , which were introduced into evidence , that Friedman had made substantially
these remarks.
e As stated hereinafter , upon withdrawing its petition the Union filed charges alleging
that the respondent had engaged in unfair labor practices
11 On cross -examination , hen asked what contract he referred to, Naffah testified that
"they (respondent ) were doing business there under contract , that Franks Brothers were
producing and Samson -Crane Co. was distributing the work "
FRANKS BROS. COMPANY 9051
25, Yosper had expressed to her his opposition to unions, stating that,
"he didn't believe in it," that Minnie Yosper, his wife, "didn't think'
much of the union," that she "had joined a'union when she was quite
young and she didn't see any benefit in it," and that on several occa-
sions he had attempted to change Rizkallah's mind about the Union
and to influence the employees against unions. Foreman Yosper ad-
mitted that he had had a conversation with Naffah and Bagliere on
July 24 and had stated that "if the union comes in here they might
close up the shop." His attempted, explanation of this statement was
that he meant "his shop," that is, the pants department which he op-
erated for the respondent on a contract basis, and that he. "too would
be out of a job." He admitted also that on July 25, in addressing
a group of employees he had remarked jestingly, "I didn't know we`
had union leaders here." He denied only that he had made the spe-
cific statements that if the Union won the-election Abraham Franks
would take the Samson-Crane business away and that he stated to
Pinto that the shop would close that Friday night if the Union won
the election. 'In the light of his admissions and his unpersuasive'
explanation, his partial denials lack credence and we concur with the
finding of the Trial Examiner that Yosper made the statements at-
tributed to him by the foregoing witnesses.
Naffah,' Bagliere, Pinto, and Rizkallah each testified that Minnie
Yosper, the wife of Harry Yosper, and likewise a supervisory em-
ployee, questioned various employees on July 24 as to whether they had
joined the Union or had attended the union meeting. On the morning
of this day she greeted Peter Naffah as a union member; told him "she
had her own way" of knowing who the union members were, and
also named Joseph Bagliere, Rose Pinto, Rose Yazbek, and Victoria.
Rizkallah as union members. Although Minnie Yosper specifically
denied that she had questioned these employees concerning their union.
membership and activity, she admitted that she had conversed with
them individually on the day in question about matters concerning
the Union. She testified that the subject was first mentioned by
Victoria Rizkallah, that she did not then know about the meeting,
expressed surprise when she was informed concerning it, and only
inquired whether "they [had] a nice time." The Trial Examiner who
observed these witnesses found that Minnie Yosper's partial denials
were lacking in credibility. We concur in the finding of the Trial
Examiner that Minnie Yosper made the statements attributed to-her
by these witnesses. Peter Naffah also testified as to an incident which
occurred sometime after the date of the scheduled election when he
had dinner with Mrs. Yosper. Another employee, Anna Fichera,
was also present and joined in the conversation 'between Mrs. Yosper
and Naffah concerning union matters. Naffah testified that Mrs.
Yosper became angry when Guy Salerno, a union organizer, came,
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into the restaurant, and spoke to him, and that she exclaimed, "I don't
care what anyone says, if the Union does get in I will state. right.
out here now that the shop will be closed." Mrs. Yosper recalled the
incident but claimed that it occurred "a week or ten days before the.
election," which would make `it prior to the conversation she had had
with Naffah and the other employees on July 24, as mentioned above,
thereby contradicting her assertion that except for this latter conver-
sation, she had never discussed the Union with any of the employees.
She, also, denied that she made the statement as recounted by Naffah,,
but the Trial Examiner, who observed the witnesses, did not credit
her denial. Upon the basis of the Trial Examiner's findings and the
patent inconsistencies in Mrs. Yosper's testimony, we find,, as did the
Trial Examiner, that Mrs. Yosper made the above-mentioned state-
ment and engaged in the above-described conduct.
Upon withdrawing from the election , on July 24, the Union filed
charges with the Board alleging interference by the respondent in the
scheduled election. During the months of July, August, and Septem-
ber, various conferences were held and correspondence exchanged
between the respondent and the Board, in an effort to adjust the,dis-
pute.11 The respondent refused to post notices containing a statement,
that "the Company hereby advises its employees that there will be no
shut-down of the plant caused by employees selecting a Union." The
respondent would consent to the posting,of notices containing a some-
what similar statement that "the operations of the factory will in no
event be affected by the results of the election," only if a further state=
inert were included to the effect that "if the Union wins the-election
and makes excessive demands on the Company, the Company may cease
operations and close the plant." Significantly, the respondent admit-
ted at the hearing that it had no reason to believe that the Union would'
make excessive demands, that its business was in a sound state, and that
no discontinuance of its operations was otherwise contemplated.
B.-The, refusal to bargain collectively; interference, restraint and
coercion
1.. The appropriate -unit
The complaint alleges and the answer admits that all production and
maintenance' employees of the respondent employed at its plant-'in.
•n The evidence concerning these conferences was introduced by the Board without objec-
tion by the respondent and the correspondence, constituting Respondent's Exhibits Nos.
14, 14A, 15, 16, 17A, 18A and B, and 19, was introduced by the'respondent itself together'
with testimony concerning the same. Ordinarily evidence of .offer ' s: of settlement or'
compromise are inadmissible in a litigated proceeding to establish the guilt or liability of
a' party litigant ( See Wigmore on Evidence ( 2nd ed ) Sees 1061% and, 1062 , and cases
therein cited ; West v . Smith, 101 ' U S 263 , page 273 ) In the instant case , this i•ule is
inapplicable because of the introduction of the pertinent evidence by the respondent
itself or without its objection . ' - .
"
- ,_
FRANKS BROS.- COMPANY - 907:
Lawrence, Massachusetts, excluding executives, supervisors, and clerical
employees, constitute an appropriate bargaining unit 12 Some dispute
exists, however, as to whether certain employees are engaged in pro-,
duction and maintenance work.
The respondent admits, and we find, as did the Trial Examiner, that.
Jacob Friedman and Harry Yosper are high ranking supervisory
officials. Friedman has complete charge of the respondent's coat-
department, with power to hire and discharge employees, and Harry,
Yosper has-complete charge of the pants department with. power to
hire and discharge employees.' The respondent contends, however,
that Minnie Yosper, the wife of Foreman Yosper, is an ordinary
employee without supervisory status. This contention is without,
merit. While Mrs. Yosper works on a machine part of the time, she
also helps Foreman Yosper "on the floor" and is listed on the respond-_
ent's pay roll as a "floor girl." She sometimes .interviews applicants
for employment and occasionally puts them to work before they have
been interviewed by Foreman Yosper; she instructs employees of the
pants department concerning the manner in which their work should,
be done; she sometimes notifies employees'of wage increases, and on
one occasion told an employee that she was the person to see for wage
increases because she "controlled the money"; she keeps the time-card
records of the pants department employees and assists Foreman Yosper
in computing the earnings of these employees. While Minnie Yosper
claimed that she had no authority to discharge employees, it appears
from the record that her work and duties were primarily to aid and
assist her husband in the control and supervision of, the pants depart-
ment and that she was one of those who received instructions from
the respondent not to discuss union matters with any of the employees.
It is clear, therefore, that Minnie Yosper is a supervisory employee and
as such should be excluded from the unit.
The respondent contends that Sam Perperian 13 is a supervisory,
employee. ' Perperian is in charge of the respondent's cutting depart-
ment. He is a working foreman and does some cutting. for which he
is paid a piece-work rate. In addition, he is'paid'a flat sum for the
time he spends supervising the four or five other cutters. He has
power to recommend the hire and discharge of employees. We find,
as did the Trial Examiner, that Sam Perperian is a supervisory em-
ployee and that he should be excluded from the appropriate unit.
The respondent contends that George Bialek 14 should be excluded'
since he is a janitor and a part-time "employee. Bialek divides his:
time between the respondent's factory and retail store. He sweeps,
12 The petition for investigation and certification filed by the Union also requested, and'
the consent election agreement provided for a similar unit. - , . ' .
"Also referred to in the record as Shemovan Perperian:
14 Also referred to in the record as Wojiciech Bialek. ' ' '
908 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
the floors of the factory and store, washes windows, and does other
cleaning. In the store he also- makes up bundles of,clothing to be
delivered to customers. In the factory he sponges all cloth shipped
to the respondent in order to shrink it for manufacture into garments,
and inspects and cleans the boilers which supply the heat for' the
factory and the high pressure boilers which are used in connection
with the operation of the pressing machines. Although Bialek is
carried on the pay roll of the retail store, by stipulation his name
was added to the factory pay roll introduced into evidence. More-
over, approximately half, of his time is spent in connection with the
production and maintenance of the factory. Accordingly, we find,
as did the Trial Examiner, that George Bialek is a production and
maintenance employee and that he should be included within the
appropriate unit.
The respondent contends that Anna Dar«-esh and Michael
Weshonko are not supervisory employees. Darwesh is employed in
the respondent's coat department and is classified on the pay roll as
a "floor girl." According to her own testimony, she operates a ma-
chine "only once 'in a great while" and then only "for a short time."
When a garment is completed, Darwesh inspects it and if there are
any defects, she either returns the garment to the employee who did
,the work, or she corrects the defects herself and tells the employee to
improve the quality of her work. If an employee of the coat depart-
ment repeatedly makes flagrant errors and causes Darwesh "too much
trouble," she reports the matter either to Foreman Friedman or to
Abraham Franks, the respondent's secretary and plant manager.
Darwesh consults with Foreman Friedman with respect to whether
new employees will become proficient, and whether those who are un-
satisfactory should be retained or dismissed. In addition, she per-
forms Friedman's duties when he is absent from the, plant. We find,
as, did the Trial Examiner, that Anna Darwesh is a supervisory em-
ployee and that she should be excluded from the unit. Weshonko
is listed on the respondent's pay roll as a "presser." No evidence was
introduced as to his duties or the nature of his employment and there
is no testimony in the record from which it would appear that he is
a supervisory employee. Upon this state of the record, we agree with
the Trial Examiner that Weshonko should be included.
The respondent contends that Ruth Kiesling Lanouette, a time-
keeper and bookkeeper in the respondent's office, should be included
in the unit. Lanouette works in an office by herself. She takes care
of the time-clock cards and the piece-work records. She computes the
earnings of the piece-work employees and makes up the weekly pay-roll
vouchers. We find, as did the Trial Examiner , that Lanouette is a
clerical employee and that she should be excluded from the appropriate
unit.
FRANKS BROS. COMPANY 909
The, respondent contends that John Boehm should also be included.
Boehm was a shipping and receiving clerk for the respondent on
the dates material herein .15 His work consisted chiefly of assembling
men's suits, which he then turned over to the Samson-Crane Co.'s
shipper, noting in a record book the pertinent information concern-
ing the transaction. Although at times Boehm received materials
delivered to the respondent, he rarely signed receipts for them. Boehm
also folded cloth after it had been shrunk. We find, as did the Trial
Examiner , that Boelnn - was neither a supervisory nor a clerical em-
ployee, that his work was, closely.related to the regular production
activities of the plant, that his interests were the same as those of the
other production and maintenance employees, and that he should be
included within the appropriate unit.
We find that all production and maintenance employees of the re-
spondent employed at its plant in Lawrence, Massachusetts, excluding
executives, supervisors, and clerical employees, at all times material
herein constituted, and that they now constitute, a unit appropriate
for the purposes of collective bargaining, and that said unit insures
to employees of respondent the full benefit of their right to self-organi-
zation and to collective bargaining and otherwise effectuates the policies
of the Act.
2. Representation by the Union of a majority in the appropriate unit
There were introduced into evidence 4618 application-for-member-
ship cards designating the Union as bargaining representative, of
which 41 are dated prior to June 12, 1941, and 5 are undated. The
undisputed testimony of Guy Salerno, a union organizer, establishes
that all but 1 of these cards were signed by the employees in his pres-
ence prior to June 9, 1941. Salerno also testified, without contradiction,
that the, remaining card was delivered to him by another -union or-
ganizer , who was not available to testify at the hearing, and that it
then bore>the apparently genuine-signature of Rose Blake, whose name
appears on the respondent's pay roll of June 12, 1941. The respondent
did not question the authenticity of the signatures on any of the ap-
plications. Pay-roll records of the respondent, introduced by counsel
is Boehm has been in the employ of Samson -Crane Co since January 2, 1942.
10 A dispute arose at the hearing as to whether 3 employees who have been inducted into
military service should be included in computing the Union's majority ' All 3 were produc-
tion employees ; 2 were inducted subsequent to June 12 , 1941 ; of these 2 employees, one
was a member of the Union , the other was not The third, John Arzoomanian, also
refereed to as John Azoonian, was a member of the Union and was inducted prior to
June 12 , 1942 . It is clear that the 2 employees who weie actively employed on June 12,
1942, should be included in determining the number of employees in the unit as of that
date It is unnecessary to resolve the dispute as to Arzoomanian since in any event dis-
position of his case will not affect the Union's majority. Accordingly , Aizoomanian's
union card is not included in the above figure of 46 , nor is he included in the pay roll
figure of 80 , found below.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the Board, indicate That there were '80 employees within the ap-
propriate unit as of June 12, 1941.1-?
'The respondent contends, however, that the employees did not intend
to, nor did they in fact, designate the Union as their bargaining
representative, since many of the application cards designate the
"Boston Joint Board" as bargaining representative. The majority of
the cards recite that the "Amalgamated Clothing Workers of America"
,is designated as sole bargaining agent. The remainder of the cards
'-designate the "'Boston Joint Board of *the Amalgamated Clothing
Workers of America"- as representative. The record establishes the
'interrelationship of the various locals, the Boston Joint Board, and
the Nation Executive Office of the Union is-and it is clear that employees_
in signing either type of membership' card were aware that they were
applying for membership in the Union."
- The respondent urges further that the reasonable inference to be
drawn from the testimony of several Board witnesses'to the effect that
it was explained to them that an election by secret'ballot would be held
before a bargaining representative would be designated, is that the
employees in signing-cards were led to understand that they would be
-afforded an opportunity to vote for their representative by secret ballot.
There is no evidence in the record establishing the number of employees
to whom this statement was made, and there is no proof that any
employee was induced to sign a card upon any such representation.
Significantly, the application for membership cards, which clearly
designate the-Union as bargaining representative, were all signed prior
to the date of the respondent's initial refusal to bargain, when its atti-
tude with respect to bargaining negotiations was not known. We are
convinced that the respondent's contention is without merit and we find,
that the employees intended to and did designate the Union as their
"bargaining representative.
We find that.on June 12, 1941, and-at all times thereafter the Union
"was the duly designated representative of a majority of the employees
17 The foregoing pay'roll records, which include weekly pay-roll data for the months of
June and July , 1941, list 94 employees , and the above total is computed by deducting
-from= this number, 7 employees found to be supervisory or clerical employees , ' i. e , Harry
Yosper , Minnie Yosper , Sam Perperian , Luke Brikorian , Jacob Fiiedman , Anna Daiwesh,
and Ruth Kiesling Lanouette ; 5 employees who were employed subsequent to the week
ending June , 12, 1941 , i e., wave Ciam , Olive Clark , Rose Hatem , Mary Zazzo . and Theo
Proulx ; and 2 employees who were not employed subsequent to the week ending June 5,
1 194f, i . e , Joseph Tarallo and Elio 11lclucci.
sThe Boston Joint Board consists of representatives of some 13 locals of the , Union in
Boston and vicinity ; the National Executive Office consists of representatives of the
various Joint Boaids thioughout the United States
'9 N. L R. B v Chicago Apparatus Company, 116,10 (2d) 753 (C C A 7), enf g
Matter of Chicago,APparatiis Company and Federation of Architects, Engineers, Chemists
and Technicians, Local 107, 12 N. L. R . B 1002; Matter of A. Sartorial it Co , Inc. and
United Mine , Workers of America, District #j0, Local 19000, 40 N L R B. 107 ; Matter of
Northwesteriz Cabinet Company and Furniture Workers Local Union No., 1860 of the'Up-
holsterers' lnterhational Union of North America, etc, 38 N L R B 357.
FRANKS BROS . COMPANY 911
in an appropriate bargaining unit, and that pursuant to Section 9 (a)
of the Act, it was the exclusive representative of all such employees for
'the purposes of collective bargaining in respect to rates of pay, wages,
hours of employment, and other conditions of employment.
3. Conclusions as to the refusal to bargain and the interference, .
restraint and coercion
1 '
On the basis of the facts,,stated and found above, we are satisfied
and find, as did the Trial Examiner, that the Union on June 12, 1941,
and on or shortly, prior to June 19, 1941, informed the respondent that
the Union represented a majority of the employees, and requested the
respondent-to enter upon bargaining negotiations with it. We are also
convinced, and concur in the finding of the Trial Examiner, that the
-respondent on those occasions endeavored to delay all negotiations for
a period of 6 months, and that on the occasion of the second conference,
.it -refused to enter into an agreement with the Union and suggested
,instead that the Union demonstrate its strength by resort to a-strike
The respondent's attitude foreclosed any possibility of a continuance
of negotiations and constituted a complete repudiation of the collective
bargaining process. The proposal of strike, insinuated by the respond-
ent, as an unprovoked invitation that the Uiiion pursue the very action
which it sought to avoid and which the Act is designed to prevent.
The respondent at no time during,the conferences demanded that
the Union present proof in support of its majority claim. Despite its
inquiry as to whether or not the Union had a majority, it permitted the
matter to rest there and refused to negotiate, without any explanation
that its refusal to proceed arose out, of a reasonable doubt as to the
Union's majority status. We concur in the conclusion ,of the Trial
Examiner that the respondent attempted to delay negotiation for an
'unreasonably long period, suggested a strike as a substitute for bar-
gaining negotiations; , and flatly refused at the outset to enter into any
agreement with the Union, without discussion of proposed terms and
without so much as knowing or even inquiring into the nature-and ex-
tent of the Union's demands. Under these circumstances it is evident
that the respondeit's contention that,it failed to- demand proof of
majorityssolely because it was not, as it contends, expressly apprised of
the Union's claim, is pure afterthought.
The respondent's conduct thereafter, ]ends support to this conclu-
sion. When, having been unsuccessful in attempts to delay negotia-
tions and the Union having filed a petition for certification, the re-
spondent entered into an agreement for a consent election, it began
'an immediate campaign to undermine the Union's strength. Thus
Friedman,, Harry Yosper, and Minnie Yosper, all supervisory em-
ployees, informed employees on numerous occasions that if'the Union
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,were selected as representative at the election, the plant would be
closed.20 That this campaign was authorized by the respondent is
evidenced by the respondent's subsequent refusal to post notices in
the plant for the purpose of dissipating the effects of these threats.
It is reasonable to infer that the respondent would not have engaged
in such activities unless it was convinced that the Union would be
selected as representative at the election. In any event, these activi-
ties further indicate that the respondent was determined to prevent
organization and that it was acting in bad faith in refusing to bar-
gain with the Union. Since the conduct of the respondent's super-
visory 'employees was directed deliberately towards discrediting the
Union and attacking its majority status upon the eve of the scheduled
election, the Union was, fully warranted in withdrawing from the
consent election agreement and proving its majority by the alterna-
tive method which the Act provides, i. 'e., by instituting charges that
the respondent had refused to bargain collectively.21 '
We find, as did the Trial Examiner, that the respondent, on June
12, 1,941, ' and thereafter, refused to bargain collectively with the
Union as the exclusive representative of its employees in an appro-
priate unit, in respect to rates of pay, wages, hours of employment,
and other conditions of employment.
We further find that by its entire course of conduct, including its
refusal to bargain and the anti-union statements and activities of
Harry and Minnie Yosper and Jacob Friedman, the questioning of
employees as to their union membership and activity, and the threat
of a plant shut-down if the Union won the election, the respondent
interfered with, restrained, and coerced its employees in the- exercise
of the rights guaranteed in Section 7 of the Act.
We concur in the finding of the Trial Examiner, that the evidence
does not support the allegation of the complaint that on or about
August 1, 1941, the respondent urged Guisseppe Bagliere, the father
of'Joseph Bagliere, to persuade Joseph Bagliere to resign from the
Union and cease his participation in union activity.
20 The respondent contends that prior to the date of the scheduled election it orally
instructed its supervisory employees not to discuss union matters with the other employees
of to inteifeie in any way with the employees ' self-organization while Hairy and Minnie
Yosper and Friedman all testified that they had received such instructions , there was
consideiabie difference between the dates upon which the instructions were given to each
of them , their testimony indicating that the instructions were received from 1 week to 2'
months prior to the date of the scheduled election whether or not such instructions
were given is wholly immaterial. The respondent took no effective means to inform the
employees that the s upervisors , in making anti -union statements , were not speaking on
behalf of the respondent . Moreover , the facts set forth above demonstrate that even
it the claimed instructions were issued , they were not complied with We find, as did
the Tiial Examiner, that the respondent is responsible for the conduct of its supervisory
employees under the circumstances heie disclosed H J Heinz Co. v N. L R B`y311 U S
514; Suitt d Company V. Al. L R B , 106 F ( 2d) 87 ( C. C. A 10 ) ; Titan Metal- Manufac-
turing Company, at at v N L R B , 106 F ( 2d) 25 4 (C C. A 3 ), cert den 308