Gay-Gibson, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1964

147 N.L.R.B. 1452 (N.L.R.B. 1964)

1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain , or to refrain from becoming or
remaining, members of any labor organization.
SCHERER & SONS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date hereof,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Ross Build-
ing, 112 East Cass Street, Tampa, Florida, Telephone No. 223-4623, if they have
any question concerning this notice or compliance with its provisions.
Gay-Gibson, Inc. and District Lodge No . 71, International Asso-
ciation of Machinists, AFL-CIO and Kansas City Joint Board
of the International Ladies' Garment Workers' Union, AFL-
CIO, Party to the Contract , Intervenor. Case No. 17-CA-2232.
June 30, 1964
DECISION AND ORDER
On April 6, 1964, Trial Examiner Leo F. Lightner issued his De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision. Thereafter, the Intervenor filed exceptions and a brief, and the
General Counsel filed an answering brief, cross-exceptions, and a
supporting brief. Respondent did not file any exceptions to the Trial
Examiner's Decision, nor any brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in con-
nection with this case to a three-member panel [Chairman McCulloch
and Members Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner,2 as modified below :
'We find it unnecessary to pass upon , and do not adopt, the Trial Examiner's finding
of unlawful interrogation.
2 At one point in his Decision , the Trial Examiner inadvertently referred to June 12,
rather than June 10, as one of the dates when Respondent engaged in 8(a) (1) activity.
Also, we find the Trial Examiner 's reference to The Zia Company, 108 NLRB 1134, in-
apposite to our disposition of this case
Unlike the Trial Examiner , for the reasons stated by Member Leedom in Duralite Co.,
Inc., 132 NLRB 425, 429, footnote 10, he would order the Respondent to reimburse each
of its sewing machine mechanics and maintenance employees for all fees , dues, and other
moneys unlawfully extracted from them pursuant to the Respondent ' s union-shop contract
with the Intervenor
147 NLRB No. 161.
GAY-GIBSON, INC. 1453
ORDER
Pursuant to Section 10 (c) of the Act, the National Labor Relations
Board hereby orders .that. the Respondent, Gay-Gibson, Inc., its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with District Lodge No. 71,
International Association of Machinists, AFL-CIO, as the exclusive
representative of all its employees in the following appropriate unit :
All sewing machine mechanics and maintenance employees, excluding
production employees, shipping and receiving employees, porters, de-
signers, assistant designers, instructors, patternmakers, order fillers,
office and plant clerical workers, professional employees, guards, and
supervisors,,as defined in the Act.
(b) Giving effect to the 1963 contract with the Kansas City Joint
Board of the International Ladies' Garment Workers' Union, AFL-
CIO, or any supplements thereto or modifications thereof, or any
superseding contracts, insofar as such contracts may cover the em-
ployees in the appropriate unit heretofore defined ; provided, however,
that nothing herein shall require the Respondent to vary or abandon
any wage, hour, seniority, or other substantive -feature of its relations
with its employees which the Respondent has established in the per-
formance of said contracts, or to prejudice the assertion of any rights
acquired by the employees thereunder..
(c) In any manner interfering with, restraining, or coercing its
employees in the exercise of their rights to,self-organization, to form
labor organizations, to join or assist the above-named or any other
labor organization,. to bargain collectively through representatives of
their own choosing, and to engage in any other concerted 'activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities, except to the
extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized by Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with District Lodge No. 71,
International Association of Machinists, AFL-CIO, as the exclusive
representative of all employees in the,appropriate unit, heretofore
defined, and, if an understanding is reached, embody such understand-
ing in a signed agreement.
(b) Withdraw and withhold all recognition from Kansas City Joint
Board of the International Ladies' Garment Workers' Union, AFL-
CIO, as the representative of employees in the appropriate unit, here-
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tofore defined, for the purposes of collective bargaining with respect
to rates,of pay,, ^yages, hours of employment, or other,terms. or con-
ditions of employment.
(c) Post ut its plant in Kansas City, Missouri, copies of the at-
tached notice marked "Appendix."" Copies of said notice, to be
furnished by the Regional Director for the Seventeenth Region, shall,
after being duly signed by an authorized representative of the Re-
spondent, be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to' insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply
herewith.
3 In the event that the Board 's Order is enforced by a decree of a United States Court
of Appeals , the words "a Decree of the United States iCourt of Appeals, Enforcing an
Order" shall be substituted for the words "a Decision and Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with District Lodge
No. 71, International Association of Machinists, AFL-CIO, as
the exclusive representative of all our employees in the following
unit : All sewing machine mechanics and maintenance employees,
excluding production employees, shipping and receiving em-
ployees, porters, designers, assistant designers, instructors, pat-
ternmakers, order fillers, office and plant clerical workers, profes-
sional employees, guards, and supervisors, as defined in the Act.
WEWILL NOT give effect to the collective-bargaining agreement
signed with Kansas City Joint Board of the International Ladies'
Garment Workers' Union, AFL-CIO, dated July 1, 1963, insofar
as such agreement may cover the employees in the appropriate
unit defined above.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their rights to self-organization,
to form labor organizations, to join or assist the above-named or
any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in any other
GAY-GIBSON, INC. 1455
concerted activities for the purpose of collective bargaining or
other,mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization
as a condition of employment, as authorized by Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL, upon request, bargain collectively with District Lodge
No. 71, International Association of Machinists, AFL-CIO, as
the exclusive representative of all employees in the appropriate
unit defined above, and, if an understanding is reached, embody
such understanding in a signed agreement.
WE WILL withdraw and withhold all recognition from Kansas
City Joint Board of the International Ladies' Garment Workers'
Union, AFL-CIO, as the representative of employees in the ap-
propriate unit, defined above, for the purposes of collective bar-
gaining with respect to rates of pay, wages, hours of employment,
and Other conditions of employment.
All our employees are free to become or remain, or refrain from
becoming or remaining, members of any labor organization. We will
not discriminate in regard to hire or tenure of employment, or any
terms or conditions of employment, against any employee because of
membership in or activity on behalf of any labor organization.
GAY-GIBBON, INC.,
Employer.
Dated---- ------------ By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Mis-
souri, Telephone No. Baltimore 1-7000, Extension 731, if they have
any question concerning this notice or if they have any information
that its provisions are being violated.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trail Examiner Leo F . Lightner in Kansas City,
Missouri , on December 3, 1963 , on the complaint of the General Counsel and the
answer of Gay-Gibson , Inc., herein referred to as Respondent . The issues litigated
were whether the Respondent violated Section 8(a)(5) and ( 1) and Section 2(6) and
(7) of the Labor Management Relations Act, 1947, as amended , 61 Stat. 136 , herein
called the Act.' The parties waived oral argument. Briefs filed by the General
Counsel and Intervenor have been carefully considered.
1 A charge was filed on July 12, 1963 The complaint herein was issued on October 25;
1963. Party of Interest, upon appropriate motion, was permitted to intervene.
1456 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
Upon the entire record, and from my observation of The witnesses, I make the
-following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Delaware corporation, maintaining an office and place of business
at Kansas City, Missouri , where it is engaged in the manufacture and sale of ladies'
clothing .2 Respondent annually ships goods and materials valued in excess of
$ 50,000 to points outside the States in which its plants and facilities are located.
The complaint alleges, the answer admits, and I find that Respondent is engaged in
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
District Lodge No. 71, International Association of Machinists , AFL-CIO, herein
.called the Machinists , and Kansas City Joint Board of the International Ladies' Gar-
ment Workers ' Union , AFL-CIO, herein called the Garment Workers, are each
a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Issues
The principal issues raised by the pleadings and litigated at the hearing are whether
the Respondent: (a) interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(a)( I),
in June 1963, by (1) advising employees that if the Respondent had known that they
were dissatisfied, he would have talked to the Garment Workers and made a place
for them there, (2) interrogating employees as to why they had joined the Machinists,
(3) promising economic benefits to employees if they would join the Garment Work-
ers, (4) arranging for, attending, participating in, and paying employees for attend-
ing, a meeting of Respondent's employees and certain representatives of the Garment
Workers on company time, (5) recognizing the Garment Workers as the exclusive
collective-bargaining representative of said employees, (6) bargaining collectively
-with the Garment Workers concerning said employees, or (7) entering into a
collective-bargaining agreement covering said employees; or (b) violated Section
8(a)(5) and (1) of the Act by failing and refusing to meet with, discuss, and nego-
tiate in good faith with the Machinists with respect to pay, wages, hours of employ-
ment , and other terms and conditions of employment concerning employees in a
described appropriate unit.
Respondent denies that the unit sought is an appropriate unit, denies, for want
of knowledge, that the Machinists was designated as collective-bargaining representa-
tive of the employees in the unit, asserting that the Garment Workers were in fact
collective-bargaining representative for said employees, among others. Respond-
ent admits that the Machinists made a demand for collective-bargaining but denies
that the Machinists was the collective-bargaining representative of the employees
involved. Respondent admits that it refused to bargain with the Machinists as-
serting that the Garment Workers was in fact the representative of the employees
involved and had been so recognized by Respondent. Respondent generally denies
the commission of any unfair labor practices. Intervenor supports Respondent's
contentions.
Background and Sequence of Events
The facts herein are substantially undisputed. General Counsel urges the ap-
propriateness of a residual unit comprised of Respondent's three sewing machine
mechanics and one maintenance employee. The sewing machine mechanics are
identified as Ralph P. Sullivan, Robert Andrew Dean, and Dewey Villines. The
maintenance employee is Arlie Logsdon.
Commencing approximately in 1936, without Board certification, and ever since,
the Intervenor has had collective-bargaining agreements with Gernes Garment Com-
pany, a Delaware corporation, currently known as Gay-Gibson, Inc., there having
been a change in corporate name only. The unit included all production workers,
shipping and receiving employees, and porters. Sometime during the 1950's the
2 While it is alleged and admitted that Respondent has other facilities, we are here con-
cerned only with Respondent 's plant at Kansas City, Missouri. Respondent was formerly
known as Gernes Garment Company.
GAY-GIBSON, INC. 1457
bargaining unit description was changed to read as those contained in an agreement
effective from July 4, 1960, to July 1, 1963, and a subsequent agreement effective
from July 1, 1963, to July 1, 1966. Both agreements define the bargaining unit as:
All workers employed by the employer, but officers or executives of the em-
ployer, supervisory personnel, designers, assistant designers, instructors, pattern-
makers, order fillers, and office and plant clerical workers shall be excluded
from the coverage of this contract.
Respondent's janitorial service is subcontracted and Respondent has no guards.
Initially both Respondent and Intervenor asserted that the 1960 collective-bargain-
ing agreement covered all employees, with the exception of certain enumerated
groups, and that the mechanics and maintenance workers were not among the ex-
ceptions. Unlike the 1963 agreement, considered infra, the 1960 agreement makes
no reference to and provides no wage scale for the sewing machine mechanics and
maintenance employees. While the 1960 agreement contains a union-shop agree-
ment it is undisputed that none of the four employees, with whom we are here con-
cerned, ever joined, were asked to join, or paid dues to the Intervenor, prior to the
events of June 20, 1963, set forth infra. Sullivan was employed by Respondent
for 5 years, Dean for 21/4 years, Villines 11/2 years, and Logsdon 8 months prior
to their testimony on December 3, 1963. They had never been requested to join
Intervenor and no dues were ever deducted prior to the events herein. George
Brick, vice president of Respondent and superintendent in charge of manufactur-
ing, who was in charge of production, engineering, plant facilities, labor relations,
and personnel, acknowledged that the last group of plant employees to come under
the contract was the sewing machine mechanics and the plant maintenance man,
who were not included until the June 1963 negotiations. Brick acknowledged that
there were no wage scales for the sewing machine mechanics and maintenance
man in the contract in 1960 and that these rates were "individually negotiated with
each man" by Brick's predecessor and the previous head maintenance man. It is
thus patent that the sewing machine mechanics and maintenance man were not in
the existing unit prior to the events herein. I so find.
About April 16, 1963, Intervenor sent notice to the Respondent of its desire to
reopen its agreement for negotiations. A notice to that effect was placed on the
plant bulletin board, near the timeclock, approximately a week later.
Several days prior to May 27, 1963, Dean called Jim Malott, organizer for the
Charging Party. Dean, who had previously belonged to another local of the
IAM for approximately 15 years, advised Malott that he and all the others working
with him were dissatisfied and wanted to join the Machinists, that they were not
represented by any other labor organization and had never been represented by a
labor organization at Respondent's plant. On May 27, about 4:30 p.m., Malott
and Fay, Machinists representatives, met with the three sewing machine mechanics,
Sullivan, Dean, and Villines. These three signed union authorization cards and paid
initiation fees during that meeting. Logsdon, the only general maintenance em-
ployee of Respondent, signed a Machinists card, after work, at the Machinists hall, on
June 6, 1963.
On June 6, Malott and Fay went to Superintendent Brick's office, advised Brick
that they represented a majority of his sewing machine mechanics and maintenance
men, and that they wanted to sit down and discuss a contract. Brick responded
that he did not know that 'his mechanics were dissatisfied, did not know that they
wanted to join a union, but if that is what they wanted there was nothing wrong
with it as far as he was concerned. Brick explained that he had to leave town the
following day and requested that the Machinists representatives call him the following
week to make arrangements to meet with him. Malott called Brick the following
week and Brick advised Malott that Brick had talked to the Garment Workers.
Brick suggested it would be a good idea for Malott to meet with the Garment Work-
ers and discuss the matter with them. Malott agreed to do so.
On Monday, June 10, 1963, Garold Whisler, maintenance engineer and supervisor
of the sewing machine mechanics and maintenance men,3 advised Sullivan, Dean,
Villines, and Logsdon to accompany him to the fifth floor conference room for a
meeting with Brick. This meeting was during working hours and it is undisputed
that the employees were paid for the time spent in attendance. Sullivan related
that Brick said, "I have heard that you fellows are thinking about belonging to a
3 W'hisler's testimony that he hired Villines and Logsdon, that he fired a previous
maintenance man named Fawcett, and that he directs the work of mechanics and mainte-
nance men is undisputed.
756-236-65-vol. 14 7-9 3
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union and I am kind of upset." Brick then said that he always thought that any time
any one or all of the mechanics had any problems they would come to him, that he
did not understand why they had joined the Machinists Sullivan responded "the
whole thing of all this" was that the sewing machine mechanics wanted to receive
the same pay as cutters, which they understood involved a 35-cent an hour raise .4
Sullivan advised Brick that he just did not "see us coming up to you, George, and ask-
ing for a 35-cent an hour raise." Brick responded that he knew his rights as an em-
ployer, that he knew the mechanics' rights as employees, and he did not think much
of the International Association of Machinists. Sullivan responded that he did not
understand why Brick felt that way because other garment company employees were
represented by the International Association of Machinists, and Sullivan named some
of them. Brick responded, "Well we have a different kind of shop here." Dean cor-
roborated Sullivan's testimony in part. Dean asserted that Brick stated that he could
probably arrange for the employees to get into the Garment Workers if they wanted
to be organized. Villines corroborated the testimony of Sullivan. Villines related
that Brick stated that he was very much disturbed because they had joined a union
without talking to him before they joined, and that Sullivan responded that Brick
would also be upset if they had asked him for a 35-cent an hour raise. While both
Sullivan and Villines asserted that Brick mentioned something about them joining the
Garment Workers at the June 10 meeting, neither was able to be specific.5 Logsdon
related that Brick asserted that he felt hurt that the men did not let him know that
they were dissatisfied and that they had joined the Union without confiding in him
and letting him know that they were dissatisfied.
On June 11, 1963, Frank Rother, director of the Central States Region of the
Garment Workers, covering eight States, and Helen Bengtson, manager of the Kansas
City Joint Board of the Garment Workers, met with Malott and Fay, Machinists
representatives. The Garment Workers representatives inquired whether the Ma-
chinists representatives would be willing to yield the representation of the individuals
involved to the Garment Workers. Malott responded that since the Machinists had
been requested to represent these employees he did not think this was possible.
Rother called attention to the Board's Decision in Snowdon case 6 in which the Board
asserted that the Board had abandoned its prior policy of certifying production units
in the garment industry, even where both parties have stipulated thereto, and found
that a broader unit including maintenance employees was the appropriate unit.
Rother advised Malott that they were about to begin negotiations with Respondent
and would request Respondent to embody terms providing coverage for these em-
ployees. Malott responded that he would check further and advise the Garment
Workers. Thereafter, Malott called Dean and requested that Dean talk to the em-
ployees involved and ascertain if they wished to be represented by the Garment
Workers. Dean , thereafter, advised Malott that the employees desired to be repre-
sented by the Machinists. Mallott so advised the Garment Workers. Malott related
that he again called Brick on Monday, June 24. Brick advised Malott that he was
going to be out of town and would not be available for a meeting until July 8, at
which time he agreed to meet with the Machinists. Malott advised Brick that he
would have a contract proposal to present. On the morning of July 8, Malott called
Brick to confirm the time of the meeting and was advised that Brick did not think a
meeting was necessary since Respondent had signed a contract with the Garment
Workers which included the sewing machine mechanics and maintenance man.
Melott asserted this was the first time he had had advice relative to the negotiations
with the Garment Workers on behalf of the employees involved herein.
On June 19 and the morning of June 20 the Garment Workers and Respondent
negotiated and reached agreement, subject to ratification by the membership, on the
matter of wages and working conditions for,a unit of approximately 300 production,
4 The record reflects that the sewing machine mechanics were receiving $2 50 an hour
and the cutters at Respondent's plant were actually receiving $2 70 an hour under the
contract which expired July 1, 1963 However, the testimony of the sewing machine
mechanics that they had been advised by the headcutter that the cutters were actually
receiving $2.85 an hour, the amount provided for in the agreement which commenced
July 1, 1963, stands undisputed. It may be inferred that the Garment Workers contracts,
establishing the new rate with other employers in the area, were negotiated prior to the
time in question
'While Brick testified as a witness he was not questioned relative to the June 10
meeting.
6 Snowdon, Inc., Case No. 18-RC-4588, April 7, 1961, unreported, of which I have taken
official notice.
GAY-GIBSON, INC. 1459
shipping, and receiving employees and porters. Provision was made in that agree-
ment for the three sewing machine mechanics and one maintenance man, who had
not been covered in the previous agreements.
After the negotiations with the Garment Workers were completed, about 12:30
p.m. on June 20, Brick advised Foreman Whisler to bring the sewing machine
mechanics and maintenance man to the fifth floor conference room. Brick intro-
duced Sullivan, Dean, Villines, Logsdon, and Whisler to Rother, Bengtson, and
Schwartz, representatives of the Garment Workers. Elmquist, a supervisor of the
Respondent, was also present.
Sullivan credibly testified that Brick told the employees that he wanted to see what
they thought of "this deal" and went on to say "that they had arranged for us to come
into the International Ladies-Garment-Workers Union at a rate of pay of $2.85 an
hour, a 35-hour week, and all union benefits? Sullivan related that Brick then
turned the meeting over to .the Garment Workers who advised the employees of the
other benefits. Dean and Villines corroborated Sullivan's testimony in this regard.
Villines added that Brick stated that they had a place in the Garment Workers for
the mechanics and would rather have just one union in the factory instead of two
unions. Dean related that the union representatives then advised the employees that
the Garment Workers had a health center, the facilities of which would be available
to them, that they would receive a $1,000 insurance policy, with the Company pay-
ing half of the cost, and that there was a retirement plan and the employees would
be eligible for a pension after 5 years. It is undisputed that Logsdon arrived late
at the meeting. Upon his arrival Logsdon asked Brick to fill him in on what had
transpired. Logsdon related that Brick asserted "that they could make a place in the
Ladies' Garment Workers' Union for us," that the sewing machine mechanics would
get a 35-cent hourly increase and that Logsdon would receive a 50-cent hourly in-
crease to a new rate of $2.30 an hour, and that they would receive overtime after
35 hours rather than 40 hours and would work approximately the same amount of
time they had been working.8
Rother and Bengtson asserted that Rother explained to these employees, on
June 20, that the sewing machine mechanics and maintenance man would be a part
of the bargaining unit , "inasmuch as the law now says that we must include them in
the bargaining unit, and that as a result of this they be now included." Rother
advised the sewing machine mechanics that they were to receive the same increases
and minimums as those paid to the cutters "who are skilled employees in the
garment industry." Bengtson related that Rother explained holiday pay, vacations,
death benefits, medical benefits, and retirement benefits "and basically what our con-
tracts have provided for our members as they were negotiated throughout the years."
Sullivan related that at the June 20 meeting he called attention to the fact that
these employees had joined the Machinists and that Rother responded that that did
not mean anything, that they could still join the Garment Workers. The employees
were advised that they would not have to pay an initiation fee, they would be required
to pay only $4 a month dues.
It is undisputed that later the same day, June 20, during worktime, Helen Bengtson
appeared in the work area of the employees, on the third floor of the plant, and at
that time Sullivan, Dean, Villines, and Logsdon signed membership cards for the
Garment Workers.
7It is undisputed that while the 1960 agreement provided for overtime after 35 hours
a week, or 7 hours in any 1 day, for those in the bargaining unit, the sewing machine
mechanics and maintenance man were not being paid overtime until after 40 hours each
week, prior to the July 1963 agreement. The guaranteed workweek was 55 hours, accord-
ing to Sullivan
8 In view of the presence of Brick and Blmquist at the June 20 meeting, and in view
of the further fact that the meeting took place during worktime for which the employees
were compensated by Respondent, I consider of little consequence the extent of Brick's
representations. However, I do not credit the assertions of Rother and Bengtson that
Brick's activity was confined to introducing the union representatives to the employees,
and that it was the union representatives, not Brick, who advised the employees of the
amount of increase they were to receive and the new provisions relative to their overtime
pay. While it is evident that Brick had been advised by the sewing machine mechanics
that they desired the same rate as that received by the cutters, I do not credit Rother's
assertion that he learned of the improvements desired by these employees through the
Garment Workers representatives in Kansas City, unless the implication is that they in
turn learned of the desires of the employees from Brick It is obvious from the record
that none of the Garment Workers representatives had met any of these employees prior
to this meeting on June 20, after negotiations had been completed.
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The 1963 collective-bargaining agreement was ratified by the membership at a
meeting held on July 8, 1963. This meeting was attended by all four of the em-
ployees involved herein and was the only Garment Workers meeting which they did
attend.
It appears that the employees continued their membership in the Machinists at
all times. It also appears that they became disenchanted with the Garment Workers
by reason of two misunderstandings, which I find it unnecessary to resolve. The
employees assert that they understood that they were to have a separate unit in the
Garment Workers, so they could not be outvoted by the 300 or 400 other members
of the unit on matters of concern to them. Villines, who is nearing retirement age,
asserted that he understood that the Garment Workers' retirement plan would provide
him with additional income after an additional 5 years' service, and later learned
that he would have to be in the Union 20 years before he could draw the additional
$50 a month. Villines' testimony in this regard was corroborated by Logsdon, Dean,
and Sullivan.
The Appropriate Unit-the Machinists' Majority Status
I find the following employees of the Respondent constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9(b) of the Act.
All sewing machine mechanics and maintenance employees at the Respondent's
plant, excluding production employees, shipping and receiving employees,
porters, designers, assistant designers, instructors, pattermnakers, order fillers,
office and plant clerical workers, and professional employees, guards, and super-
visors as defined in the Act.
There is no prior collective-bargaining history. The sewing machine mechanics and
maintenance man are under the separate supervision of a maintenance engineer,
Garold Whisler. Whisler testified that the three sewing machine mechanics are the
only ones in that classification in the plant, other than himself, and that Logsdon
is the only maintenance man. No one else in the plant does the same kind of work.
There is no interchange with other employees. The maintenance department in this
plant is the same as that in other garment factories. The sewing machine mechanics
do all the servicing and repair work on all sewing machines, or other machines, and
build small parts and attachments. There is a separate shop located on the third
floor and the sewing machine mechanics work out of this shop. When a repair is
needed the production supervisor places a note to that effect on a "call board" on
which the time of a breakdown is noted. The "call board" is on the door of the
third floor mechanics' workshop. The sewing machine mechanics obtain this in-
formation from the call board and, under the direction of Whisler, these repairs are
attended to in the same order in which the breakdowns are reported. An exception
is made, by Whisler, in case of a sample or something that top management deter-
mined should be given a priority. The first 20 minutes of downtime is chargeable
to the production employee, accordingly the mechanic notes the time of the comple-
tion of the repair on the ticket which is turned in to Whisler after completion of the
repairs. It is undisputed that none of these employees do production work. It
appears undisputed that this work is skilled work and the normal rate of pay is the
equivalent of the pay of a "cutter" in the industry. Sullivan, who has 13 years'
experience, related that he had not learned all of the work. Sullivan described his
duties as encompassing carpentry work, plumbing, welding, building of small parts
and attachments, as well as some general maintenance . Dean and Villines do not do
general maintenance. Dean, who has been a sewing machine mechanic for over 40
years, asserted that he served an apprenticeship. Dean spends 90 percent of his
time on the production floor where the machines are located. Logsdon, the mainte-
nance man , has a shop in the basement and also receives calls off the call board;
sometimes he is advised of these calls by Whisler through an intercom system.
Logsdon described his duties as repairing of motors, electrical work, plumbing work,
carpentry work, and other repair work. When he needs assistance either Whisler or
Sullivan aids him or does the essential work. It appears that the bulk of the produc-
tion workers are pieceworkers, consequently their earnings are dependent upon the
continuity of the operation.
I further find the Machinists, at all times material, represented a majority in said
unit.
Concluding Findings
Initially Respondent and Intervenor asserted that the sewing machine mechanics
and maintenance man were not among the employees excepted from coverage under
previous agreements between the Garment Workers and Respondent, and accord-
GAY-GIBSON, INC. 1461
ingly the unit sought was not appropriate. Evidence that these employees were not
in the unit covered is undisputed. While the 1960 contract contained a union-shop
clause, it is patent that the employees sought never joined the Garment Workers,
prior to June 20, 1963, never paid dues, were unacquainted with any official of the
Garment Workers until they were introduced by Brick on June 20, and no wage
scale covering them is among the provisions of the 1960 contract. In fact, to the
contrary of this contention, Brick acknowledged that the wage rates for these individ-
uals were individually negotiated, prior to June 20, 1963. While all other employees
covered by the Garment Workers contract received overtime after 7 hours a day
and 35 hours a week, these employees were not being paid overtime until after 40
hours a week, prior to July 1963. The contention that these employees were in the
unit covered by the Garment Workers agreement must be rejected.
Respondent and Intervenor contend that the unit sought is not an appropriate unit
under prior Board decisions. Intervenor, in its brief, notes cases in which the Board
formerly permitted separate units of production workers, without requiring inclusion
of maintenance employees. However, Intervenor contends that more recently the
Board has established a policy of requiring production and maintenance employees
to be joined in the same bargaining unit. The Intervenor cites the Dove and
Snowdon cases.° I find these cases inapposite. In neither case is any history of
bargaining reflected.
In the American Cyanamid case,10 after its decision in the Snowdon case, upon
reconsideration of the question of appropriate unit, the Board found that it will ef-
fectuate the policies of the Act to find that either a unit of production and main-
tenance employees or of maintenance employees alone may be appropriate. In that
case the Board found that the record failed to establish that the employer's operation
is so integrated that maintenance has lost its identity as a function separate from
production, and that maintenance employees are not separately identifiable. On the
contrary, the maintenance employees requested were established in a separate depart-
mental section and had their own supervision. They performed the varied main-
tenance work for the entire plant exercising the particular skills required for this
function.
The Board has found employees who are clearly indentifiable, functionally distinct,
a homogeneous group, whose work and interests differ from those of other em-
ployees in the plant, constitute an appropriate unit. This is particularly true where
the unit sought is an appropriate residual unit.11
The Board has asserted that it is reluctant to sever a maintenance group where
to do so would disrupt stable collective-bargaining relations on a broader basis.
However, where, as here, there is no collective-bargaining history on a broader basis,
the Board has found that a readily identifiable homogeneous group of maintenance
employees, possesses a sufficient community of interest separate from that of produc-
tion employees to warrant their separate representation. Lee Brothers Foundry,
Inc., 106 NLRB 212, 216; Sealtest, Ohio Division of the National Dairy Products
Corporation, supra, at 1630.
The unwillingness of an incumbent representative to add residual employees to
an existing unit is not a prerequiste to finding a residual unit appropriate. Pennsalt
Chemicals Corporation, 119 NLRB 128, 129.
The fact that certain employees in a maintenance group work in production areas
and on production machinery does not impair their community of interests with
other maintenance workers. Dierks Paper Company, 120 NLRB 290, 292.
The Board has found that where a group of employees has been excluded from a
unit in which they may appropriately be included, they should not be placed in the
established bargaining unit without first being extended the opportunity to vote as to
whether or not they desire to be represented by the current bargaining agent of the
established unit. Adherence to this principle will, in the opinion of the Board, tend
to insure that the wishes of small groups of employees no longer will be thwarted
by the numerical superiority of employee-members of an existing historical unit
from which the former have been excluded-a situation formerly brought about by
9 Dove Manufacturing Company, 128 NLRB 107; Snowdon, Inc., Case No. 18-RC-4588
(unreported)
19 American Cyanamid Company (Marietta Plant), 131 NLRB 909, 910.
"Westinghouse Electric Corporation, 144 NLRB 1306 (a group of engineers) ; Gay-
lord Printing Co, Inc., 135 NLRB 510 (lithographic preparatory department employees) ;
North American Aviation, Inc., 120 NLRB 1155 (production and maintenance em-
ployees) ; Marion Manufacturing Company, et al. , 101 NLRB 256 (sewing machine me-
chanics, maintenance employees, and others) ; Sealtest, Ohio Division of the National
Dairy Products Corporation, 117 NLRB 1628 (maintenance employees)
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the small groups being absorbed into that bargaining unit without first being afforded
the opportunity to express their true desires. The Zia Company, 108 NLRB 1134,
1136.
Accordingly, I find that the unit sought by the Machinists is an appropriate unit.
Next considered are the allegations that Respondent engaged in conduct con-
stituting interference, restraint, and coercion in violation of Section 8(a) (1) of
the Act.
I have found supra that on June 10 Superintendent Brick called the involved em-
ployees, and their supervisor, Whisler, to the fifth floor conference room. This was
4 days after Malott and Fay had advised Brick that they represented a majority of
the employees in the unit sought. It is undisputed that Brick advised the employees
that he was upset because they were thinking of belonging to a union, that he did
not wish them to be represented by the Machinists, and that he could probably ar-
range for the employees to get into the Garment Workers if they wanted to be
organized.
The Board has set forth in detail the permissible limits, and the circumstances
under which interrogation of employees by employers as to their intentions and de-
sires is permitted, in Blue Flash Express, Inc., 109 NLRB 591. The safeguards out-
lined therein were disregarded by the Respondent herein. Importantly, there does
not appear here to have been any reasonable doubt in the mind of the Respondent
as to the desires of the employees.
Respondent's conduct on June 10 constituted unlawful interrogation. Brick's
offer to arrange for the employees to get into the Garment Workers implied a
promise of benefits. Park Edge Sheridan Meats, Inc., et al., 146 NLRB 289.
. The Board has consistently held that an employer must maintain strict neutrality
when his employees are simultaneously being organized by two or more labor or-
ganizations. In such cases conduct showing favoritism for one of the competing
unions defeats the congressional purpose of affording employees complete freedom in
the selection of their bargaining representative. Corning Glass Works, 100 NLRB
444, 446. Herein the Respondent went even further and sought to thrust a labor
organization , different than that selected , upon the employees.
It is alleged that Respondent promised economic benefits to employees if they
would join the Garment Workers on June 20, 1963. Brick specifically denied ever
advising the employees that any of the economic terms were conditioned upon their
becoming or remaining members of the Garment Workers. The offer of Brick
was that the employees would receive the same conditions as those in effect for the
employees represented by the Garment Workers, such as overtime after 35 hours a
week. I find there was an implied condition attached to the proffered improvements,
as the quid pro quo, and that it was that the employees would desist from seeking
other representation. Brick had previously expressed his opposition to the Ma-
chinists and to having two unions in the plant.ia
It appears undisputed that the meeting of Respondent's officials, the Garment
Workers representatives, Foreman Whisler, and the employees herein involved, on
June 20, 1963, was arranged by Brick, who not only attended and participated, but
held the meeting during the employees worktime, as a result of which' the employees
were paid for the time spent in attendance.
General Counsel further contends that Respondent's recognition of the Garment
Workers as the exclusive representative of the employees in the unit described, Re-
spondent's bargaining with the Garment Workers, and Respondent's entering into a
collective -bargaining agreement covering the said employees , constituted in each
instance a violation of Section 8 (a) (1).
Rother admitted that at the time of bargaining, June 19 and 20, the Garment
Workers did not have authorization cards from, or represent, the four employees in-
volved. Intervenor, in its 'brief, contends that each of the employees signed a
Garment Workers card "voluntarily and without coercion." This assertion is valid
only to the extent that the employees admittedly signed such cards after being told
of the benefits which would ensue, as the result of unauthorized bargaining. In
support of its assertion Intervenor quotes the testimony as of Sullivan, who asserted
he signed the Garment Workers card "because of the fact that everything seemed
so good." Intervenor correctly describes the reason these employees signed Garment
Workers cards as, they "were overjoyed with the wage increase." Intervenor con-
12 Brick's plea of ignorance of knowledge that the employees signed cards authorizing
the Garment Workers to represent them is valid to the extent that it appears he was out
of town on the afternoon of June 20 However, this disclaimer leaves unexplained the
basis upon which Respondent accorded recognition to and bargained with the Garment
Workers, relative to these employees.
GAY-GIBSON, INC. 1463
tends that the increases and other benefits were not made conditional upon the Gar-
ment Workers being authorized to represent the employees. Such contentions must
be rejected under the circumstances revealed by this record.13 A fitting description
would be the "carrot on a stick" approach, quite foreign to normal concepts of
"voluntary" action. General Counsel aptly describes the Garment Workers author-
ization cards as "employer sponsored-and not a true indication of an employee
choice of representative."
It is undisputed that a collective-bargaining agreement covering the employees in
the unit described as ratified on July 8, effective July 1, 1963. Intervenor urges
that employees on prior occasions have accepted and approved contract improve-
ments, terms, and conditions secured by their collective-bargaining agent and then
turned to another union in an attempt to add to and improve upon that which they
had earlier been gratified to accept. The situation presented here is not akin to that
in the Dazey case,14 or similar cases, where employees act in derogation of the
authority of an exclusive bargaining agent. The weakness in such a contention,
on the facts here presented, is the absence of a voluntary designation of the Garment
Workers by these employees. Section 7 of the Act provides a "freedom of choice"
exercisable by employees, not employers or undesignated representatives.
I find that the activities of the Respondent, as enumerated and found on June 12
and June 20, and its entering into an agreement with the Garment Workers cover-
ing the employees in the unit described constituted separate acts of interference,
restraint , and coercion and, in each instance , was violative of the provisions of Sec-
tion 8 (a) (1) of the Act.
The Machinists several efforts to meet with the Respondent, between June 6 and
July 8, for the purpose of bargaining were met first by excuse and delay, then out-
right refusal. The record permits no conclusion other than that, as alleged, the
Respondent failed and refused to meet with, discuss, or negotiate in good faith with
the Machinists. Apparently Respondent would rely on the question of the appro-
priateness of the unit sought. It is unimportant whether this assertion is an after-
thought. Obviously it was not advanced by Respondent to the Machinists in Malott's
several efforts to arrange a meeting , no such contention has been advanced . Rather
it appears, as Brick explained to the employees on June 10, that Respondent did not
desire to have two unions in the plant but preferred to have all representation rights
vested in the Garment Workers. The prerogative thus sought to be exercised by
Respondent, is a prerogative vested in the employees under the Act. Albeit, Con-
gress in its wisdom has left the determination of the appropriateness of the unit
sought to the judgment of the Board.
Accordingly, I find, that Respondent's conduct was violative of the provisions of
Section 8 (a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in connec-
tion with Respondent's operations described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and commerce among the several States,
and such of them as have been found to constitute unfair labor practices tend to
lead to labor disputes obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in certain unfair
labor practices , it will be recommended that it cease and desist therefrom and take
affirmative action designed to effectuate the policies of the Act.
It will be recommended that Respondent , upon request , bargain collectively with
District Lodge No. 71, International Association of Machinists , AFL-CIO, as the
exclusive representative of all employees in the unit herein found to be appropriate
for the purpose of collective bargaining and, if an understanding is reached , embody
such in a written and signed agreement . I have found that a free selection of a bar-
gaining representative , by the employees , is impaired by reason of recognition and
the making of a contract with an unauthorized bargaining agent. I shall accord-
ingly recommend that an order issue that Respondent cease and desist from recog-
nizing the Garment Workers as the exclusive representative of the employees in the
unit herein found to be appropriate , and cease giving effect to any agreement made
with the Garment Workers: provided , however, that nothing herein shall require the
13 See Midwest Piping & Supply Co, Inc, 63 NLRB 1060; Corning Glass Works, supra;
Gaylord Printing Co, Inc., supra
14 Dazey Corporation, 106 NLRB 553, 554.
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent to vary or abandon any wage, hour, seniority , or other substantive
feature of its relations with its employees which the Respondent has established in
the performance of said agreement, or to prejudice the assertion of any rights ac-
quired by them thereunder.15
Upon the basis of the above findings of fact, and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act.
2. The Union and Intervenor are each a labor organization within the meaning
of Section 2(5) of the Act.
3. All sewing machine mechanics and maintenance employees at the Respondent's
plant, excluding production employees , shipping and receiving employees, porters,
designers , assistant designers , instructors , patternmakers , order fillers , office and plant
clerical workers, professional employees , guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
4. District Lodge No . 71, International Association of Machinists , AFL-CIO,
was on June 6, 1963 , and, at all times material thereafter , has been and now is the
exclusive representative of all employees in the aforesaid appropriate unit for the
purposes of collective bargaining within the meaning of Section 9(a) of the Act.
5. By its conduct on June 10 and 20, and by failing and refusing on and after
June 6, 1963 , to recognize and bargain with the Machinists as the exclusive repre-
sentative of the employees in the aforesaid appropriate unit, Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section 8
(a) (5) of the Act.
6. Respondent by its conduct on June 10 and 20 , as described and found above,
has interfered with , restrained , and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act and has thereby engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 ( 6) and (7) of the Act.
[Recommended Order omitted from publication.]
15 Beiser Aviation Corporation , 135 NLRB 399, 408.
Building & Construction Trades Council of Ventura County
[Alfred A. Westman] and Jones and Jones , Inc. and Interstate
Employers , Inc. Case No. 31-CP-103. June 30, 1964
DECISION AND ORDER
On April 9, 1964, Trial Examiner Maurice M. Miller issued his
Decision in the above-entitled proceeding, finding that Respondent
had not engaged in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed in its entirety, as
set forth in his attached Decision. Thereafter, Respondent filed ex-
ceptions to the Trial Examiner's Decision and a brief in support of
the exceptions.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Jenkins].
147 NLRB No. 124.