Lady Ester Lingerie Corp.

National Labor Relations Board - Board Decisions

Dec 13, 1938

10 N.L.R.B. 518 (N.L.R.B. 1938)

In the Matter of LADY ESTER LINGERIE CORP. and INTERNATIONAL
LADIES GARMENT WORKERS UNION-AFFILIATE WITH THE COMMITTEE
FOR INDUSTRIAL ORG.
Case No. C-3.33.-Decided December 13, 1938
Ladies' Undergarment Manufacturing Industry-Company-Dominated Union:
organization meeting held with consent of employer during working hours, power
turned off by foreladies and employees instructed to attend ; immediate recogni-
tion as bargaining representative without proof of majority and in face of
claim by organization not company-dominated of right to represent employees ;
acquiesence by employer in exodus of employees from plant during working
hours to attend meeting ; solicitation of memberships by forelady ; disestablished,
as agency for collective bargaining-Contract: with organization found to be
company-dominated ; employer ordered to cease giving effect to-Unit Appropriate
for Collective Bargaining: all but supervisory and office employees ; no contro-
versary as to-Representatives : proof of choice: union membership cards received
and relied on in regular course of union's business sufficient without proof as to
authenticity of signatures and employment status where no discrediting evidence
offered by employer ; subsequent transfer of memberships to company-dominated
union given no effect-Collective Bargaining: refusal to bargain by misleading
and dilatory negotiations while using company-dominated union to defeat genu-
ine bargaining; employer ordered to bargain-Interference, Restraint, and Coer-
cion: sponsoring and recognition of company-dominated union ; refusal to bargain.
Mr. Samuel G. Zack, for the Board.
Mr. Nathan Dinkes and Mr. Alfred S. Asciutto, of New York City,
and Mr. R. O. Brockway, of Berwick, Pa., for the respondent.
Miss Anne Landy, of Williamsport, Pa., and Mr. Michael Johnson,
of Pottsville, Pa., for the International.
Miss Margaret B. Bennett, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Ladies Garment Workers Union, herein called as the International, the
National Labor Relations Board, herein called the Board, by Bennet F.
Schauffler, Acting Regional Director for the Fourth Region (Phila-
delphia, Pennsylvania), issued its complaint, dated October 1, 1937,
10 N. L. R. B., No. 39.
518
DECISIONS AND ORDERS 519
against Lady Ester Lingerie Corporation, Berwick, Pennsylvania,
herein called the respondent. The complaint and notice of hearing
thereon were duly served upon the respondent and the International
and upon Berwick Independent Undergarment Workers Association,'
herein called the Association.
The complaint alleged that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1), (2), and (5) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. Thereafter, the 'respondent filed its answer to the complaint,
denying that it had engaged in or was engaging in the alleged unfair
labor practices and praying that the complaint be dismissed.
Pursuant to notice, a hearing was held in Berwick, Pennsylvania,
on October 14, 15, 18, 19, 20, 21, 22, 25, and 26, 1937, before Herbert
Wenzel, the Trial Examiner duly designated by the Board. The
Board and the respondent were represented by counsel and partici-
pated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing upon they
issues was afforded the parties.
At the end of the Board's case, the Trial Examiner granted a motion
by counsel for the Board to amend the complaint by substituting
"Berwick Independent Undergarment Workers Association" for "Ber-
wick Loyal Undergarment Association" and "June" for "May"
througliout'the complaint. Because of the granting of this motion,
couiisel for the respondent moved that the hearings be set aside, which
motion was denied. At the close of the hearing, the Trial Examiner
also granted a motion by counsel for the Board to conform the plead-
ings with the proof with respect to names, dates, and other minor
variations. At various times during the hearing, counsel for the re-
spondent moved that certain allegations of the complaint and the
complaint as a whole be dismissed, which motions were denied by the
Trial Examiner, either at the hearing or in his Intermediate Report.
All these rulings by the Trial Examiner are hereby affirmed.
Several other rulings on motions and objections to the admission of
evidence were made by the Trial Examiner at the hearing and in his
Intermediate Report. The Board has reviewed these rulings and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
During the hearing, a written petition was filed by the respondent
asking that the Board issue subpenas for certain records of the Inter-
national. This petition was considered by the Board and denied.
The parties were granted permission to argue orally at the end of
the hearing and an opportunity to file briefs. The respondent availed
' Incorrectly designated as "Berwick Loyal Undergarment Association."
520 NATIONAL LABOR RELATIONS BOARD
itself of its opportunity to argue and submitted a written copy of its
oral argument as a brief.
On December 10, 1937, the Trial Examiner duly filed his Interme
diate Report, in which he found that the respondent had engaged
in and was engaging in the unfair labor practices alleged in the
complaint. He recommended that the respondent cease and desist
from interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act, from dis-
criminating or interfering with the formation or administration of
and from contributing support to the Association, or any other labor
organization, and from refusing to bargain collectively with the Inter-
national, and that the respondent withdraw all recognition from the
Association as the representative of its employees for the purposes
of collective bargaining, bargain collectively with the International
upon request, and post notices indicating its compliance with the
recommendations.
On December 30, 1937, the respondent filed its exceptions to the
Trial Examiner's Intermediate Report and to certain of his rulings.
On January 13, 1938, pursuant, to notice, a hearing was held in
Washington, D. C., before the Board, for the purpose of oral argu-
ment. The respondent was represented by counsel and the Interna-
tional by its agents. At the hearing counsel for the respondent filed
with the Board a written statement of his oral argument.
The Board has reviewed the exceptions to the Intermediate Report,
and in so far as they are inconsistent with the findings, conclusions,
and order, set forth below, finds them without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT,
The respondent is a New York corporation engaged in the business
of manufacturing and selling women's undergarments. Its principal
offices are in New York City and its plant is in Berwick, Pennsylvania.
The respondent produces about 2,000 dozen garments a week, at an
average aggregate value of $7,000 to $8,000. About 95 per cent of the
materials used in the manufacture of the garments are obtained out-
side of the State of Pennsylvania, and about 85 per cent of the finished
product is sold and shipped outside of Pennsylvania. The respond-
ent employs an average of about 130 persons. It was stipulated at the
hearing that the respondent is engaged in interstate commerce.
IT. THE ORGANIZATIONS INVOLVED
Textile Workers Organizing Committee, herein called the T. W.
O. C., is a labor organization affiliated with the Congress of Indus-
DECISIONS AND ORDERS 521
trial Organizations, formerly known as the Committee for Industrial
Organization, herein called the C. I. 0., admitting employees of the
respondent to membership.
International Ladies Garment Workers Union is a labor organiza-
tion formerly affiliated with the T. W. O. C. and the C. I. 0., admit-
ting employees of the respondent to membership.
Berwick Independent Undergarment Workers Association is an
unaffiliated labor organization, admitting to membership only em-
ployees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The Association
One afternoon early in May 1937 the respondent's Berwick attorney,
R. O. Brockway, who appeared on behalf of the respondent at the
hearing, and a local automobile merchant, Arthur F. Bower, came
to the respondent's plant and asked Evelyn Bower, a secretary-book-
keeper in the office, if they might address the respondent's employees.
Evelyn Bower said that they would have to see the manager of the
plant and treasurer of the respondent, Aaron Sadock. She then an-
nounced Arthur Bower's and Brockway's arrival to Sadock, saying,
according to Sadock's testimony, "There are two gentlemen out here
and they wish to speak to the girls." Sadock testified that she did
not mention what the men wanted to speak to the employees about,
but that he gave his permission, saying, "All right, they can go
ahead." Sadock said. it was his custom to let anyone speak to the
girls; but upon further examination he could recall no occasion upon
which anyone had addressed the employees as a group, remembering
only that magazine and other salesmen had been permitted to solicit
business in the plant. Arthur Bower testified that he also had a
conversation with Sadock at this time, in which Sadock asked him,
"What is the nature of what you want to talk ori," and upon Bower's
replying, "We want to discuss some things with them," said, "I think
you can." Sadock denied at the hearing that he "spoke either to
Arthur Bower or to Brockway, but said he saw them walking through
the plant.
The testimony of neither Arthur Bower nor Sadock concerning the
arrangements made to enable Bower and Brockway to address the
employees is convincing. The circumstances point clearly in the di-
rection of some prearrangement between Sadock and Bower concern-
ing the meeting. However, regardless of what conversations Sadock
and Arthur Bower and Brockway may have had, the foreladies
turned off the power and told the employees to attend a meeting in
a back room, of the plant. This was during working hours. The
testimony is conflicting as to whether Sadock himself or the fore-
522 NATIONAL LABOR RELATIONS BOARD
ladies also went to the meeting, but it is unnecessary to decide
whether they did or not, since the respondent's approval of and coop-
eration in the meeting is established by Sadock's action in permitting
it to be held during working hours and by the foreladies' coopera-
tion in turning off the power and telling the employees to attend.
At the meeting, Arthur Bower asked Brockway to "explain" the
National Labor Relations Act. The Act was not read aloud, and
the record does not show exactly what Brockway said; but Brock-
way's statement was amplified by Arthur Bower. Bower said he
understood that the Act required employees to join a union, that he
would advise them to get into some organization, and that if they
needed any help, he and Brockway were there to help them. He said
he believed the dues of a local organization would be less than those
of an international union, that he understood a local organization
was being formed, that he thought it would be a good thing to keep
the money in town, that the employees could join any union they
wanted, but that they should "be represented."
While he spoke, Bower had in his hands cards purporting to be
membership cards of "Berwick Loyal Undergarment Association."
The cards stated that- "Berwick Loyal Undergarment Association"
had been formed "by a group of men and women so that they may
bargain intelligently as well as have all-around protection," and that
membership was limited to employees of the respondent. At the end
of his speech Bower said, "I told you what we think. We are leav-
ing the cards with you. We are leaving. Do whatever you wish."
He then handed the cards to one of the employees. At this point,
another employee requested that "the other side" be explained by 'a
representative of the International. Thereupon the meeting broke
up without any of the cards having been signed. There is no evi-
dence that the International or the T. W. 0. C. was given an
opportunity to explain "the other side."
Bower's testimony concerning how he procured the cards is con-
flitting and incredible. At one time he testified that as be came in
the door of the plant he saw Evelyn Bower holding the cards and
asked her "if she had those cards," and that she said, "Yes." He
asked her if she would give him some of them. The only reason he
knew she had them, he said, was because he saw them in her hands.
By looking at the cards while she held them in her hands, he felt
that they would apply to the subject of his talk. Elsewhere in the
record, he testified that he saw them for the first time on a table in
the office when lie went to the respondent's plant.
The printer of the cards, Fred Burlingame, testified that they
had been ordered by another secretary-bookkeeper in the respondent's
office, Eleda Switcher, and charged to the respondent's account. He
gave two conflicting reasons for charging the printing of the cards
DECISIONS AND ORDERS 523
to the respondent : one, that he assumed the respondent would pay the
bill; the other, that the entry was merely for the purpose of noting
Switcher's address. He testified that Switcher said when she gave the
order; "We haven't any money, you will have to trust us for it,"
and that no bill for the cards had been sent to the respondent. The
cards were finally paid for by a check of "Lady Ester Employees
Association," dated August 11, 1937, and signed by Evelyn Bower.
While Burlingame's testimony is not convincing, the evidence does
not affirmatively connect the respondent with the printing of the
cards. We find that the respondent did not have the cards printed
and did not pay for them.
Bower said in his speech that he understood -a local organization
was being formed. Except for the cards which he received from
Evelyn Bower at the meeting, there is no indication in the record
that any such organization had in fact been initiated. As far as the
record shows, the idea of forming an independent union did not
originate among the employees -themselves but was suggested to
them by Bower in his speech.
Nothing further was done toward organizing an independent union
at the respondent's plant until about the middle of July 1937. About
July 10, 1937, a campaign was begun to secure signatures to the cards
Arthur Bower had left with the employees at the May meeting. This
was after the International, as indicated hereafter in subsection B
of this section, had been designated by the majority of the respond-
ent's employees as their representative for the purpose of collective
bargaining, and had attempted to bargain collectively with the re-
spondent. At the time inside union activities were revived at the
respondent's plant, the International was waiting for an answer from
the respondent concerning an agreement which the International had
proposed and which the respondent had referred to, its attorney.
On July 14, 1937, an employee of the respondent, Jeanette Collins.
arranged for a meeting after working hours at the Y. M. C. A. Col-
lins testified that this meeting was called because many of the cards
left by Arthur Bower had been signed by employees of the respondent
and for the purpose of forming an independent union. Thirty-six out
of about 100 employees then working attended. At Collins' invitation,
one of the organizers of an independent union at the American Car
and Foundry Company, named Shadle, addressed the meeting. Shadle
brought with him prepared bylaws and ballots and aided in the elec-
tion of officers. Collins was elected president. The name Berwick
Independent Undergarment Workers Association was adopted, and
after the meeting this name was substituted in ink for Berwick Loyal
Undergarment Association, previously printed on the cards. Shadle
also drafted a letter to the respondent requesting recognition of the
Association as the sole bargaining agent for the respondent's em-
524 NATIONAL LABOR RELATIONS BOARD
ployees, which letter was sent to the respondent on July 15, 1937. The
Association letter, signed by Collins as president, did not make any
representations concerning whether or not a majority of the employees
had designated the Association as their agent for the purpose of col-
lective bargaining. Nevertheless, the next day Aaron Sadock sent a
letter to Collins granting the Association the requested recognition.
Sadock's letter did not make any inquiries concerning the Associa-
tion's right to represent the respondent's employees; but Sadock testi-
fied that as Collins happened to be passing by his office that day he
asked her whether the Association represented a majority and that she
said it did. He testified further that he thought an employer was
required to bargain with the representatives of the majority, because
he had read of such a requirement in the papers.
Some time between July 14 and July 19, 1937, the following notice,
which was typed by one of the stenographers in the respondent's office,
on company time, was posted in the plant :
Notice
All Those Employees Wishing to Sign a -Local Union Card,
You May Do So Until Monday Noon, July, 19th.
JEANE7TE COLLINS,
President of the Berwick Independent Undergar-
ment Association of the Lady Ester Lingerie Corp.
Collins testified that she felt free to ask the stenographers in the
office to do typing for the Association because they were members of
the Association. Sometimes they typed on their own time; sometimes
on company time.
At noon on July 19,1937, Collins engaged a room at the Y. M. C. A.
and notified the girls that the Association was going to have a meeting
during working hours at 2 p. m. She asked the forelady if there
would be any objection to the girls' going to the meeting, and the
forelady replied that she did not know. Just before 2 p. m. Collins,
who was not a supervisory employee, herself turned off the power
and led the girls out of the plant. The meeting consumed the balance
of the working day.
As the girls were leaving the plant, Collins met Sadock. She testi-
fied concerning this meeting as follows :
A. He was in the pressing department.
Q. What did he say to you?
A. He asked me what was going on.
Q. What did you say to him?
A. I said, "I have a meeting this afternoon."
Q. What did he say?
DECISIONS AND ORDERS 525
A. He said, "You are taking all of my girls."
Q. What did you reply?
A. I said, "Well, we are having a meeting," and left him stand-
ing there.
Q. And you left him standing there?
A. Of course. We had a meeting.
This testimony was corroborated by Sadock. Since he knew Collins
was the president of the Association and had been dealing with her
as such, he must, of course, have understood that the meeting was
being held by the Association. Although Sadock did not try to pre-
vent the girls from going to the meeting, the next day, according to
Collins, he scolded her for holding the meeting during working hours.
Collins testified that she held the meeting during working hours to
be sure that the girls would attend. About 75 employees were pres-
ent, although only 36 had gone to the meeting on July 14. All but a
few of the girls employed by the respondent were on a piece-work
basis and did not, therefore, receive compensation for the time lost. At
the meeting a committee was chosen to bargain with the respondent.
The respondent disclaims any connection with this meeting, and
Collins and Aaron Sadock testified that it was not discussed with
Sadock beforehand. We do not believe that Collins would have even
attempted to turn off the power and to hold an Association meeting
during working hours without previous permission from Sadock.
Whatever the conversation between Collins and Sadock may have
been before or after the meeting, the failure of Sadock and the
supervisory employees to take steps to prevent the turning off of
the power and the cessation of work constituted open sponsorship
of the meeting by the respondent.
According to uncontradicted testimony, one of the foreladies further
aided the Association by asking employees to join the Association,
on one occasion during working hours.
On July 25, 1937, the International mailed notices to its members
to attend a special meeting on July 27, and on the day of the meeting
the following notice, typed in the respondent's office on company
time, was posted in the plant by Collins :
Notice
All girls receiving cards regarding a meeting to be held tonite
for the employees has been misinformed as there will be no
meeting.
JEANETTE COLLINS,
President, Berwick Independent Undergarment
Workers Association.
526 NATIONAL LABOR RELATIONS BOARD
On July 28, 1937, the respondent signed a contract with the Asso-
ciation, after Aaron Sadock had been shown a number of cards
purporting to be Association membership cards signed by a majority
of the respondent's employees. Sadock did not examine the cards or
make any effort to check their authenticity or number.
By Sadock's cooperation in holding the Brockway and Bower meet-
ing, by the foreladies' action in turning off the power and telling
the employees to attend, by Sadock's immediate recognition of the
Association as the exclusive bargaining representative of the em-
ployees, without any proof of the right of the Association to act as
the employees' representative and in the face of the International's
claim that it was the representative duly chosen by a majority of the
employees, by Sadock's acquiescence in the holding of the Association
meeting of July 19 during working hours, and by the solicitation of
Association memberships by at least one of the foreladies, the re-
spondent initiated, encouraged, and fostered the Association.
We find that the respondent, by the above-described course of con-
duct, has dominated and interfered with the formation and admin-
istration of the Association and has contributed support to it and has
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
B. The refusal to bargain with the International
1. The appropriate unit
There was no controversy at the hearing concerning the unit ap-
propriate for purposes of collective bargaining. The complaint al-
leged that the employees of the respondent engaged in production
constitute an appropriate unit. A single unit consisting of all the
respondent's employees, except foreladies and office workers, was used
in stipulating the number of employees on the respondent's pay roll,
for the purpose of determining whether the number of membership
cards put in evidence by the International and by the Association
was sufficient to constitute a majority of the number of employees
stipulated. Nothing in the testimony or in the nature of the re-
spondent's business suggests reasons why any groups of employees,
other than supervisory employees and office workers, should be ex-
cluded from the bargaining unit. No distinctions based upon the
work performed were made in the organizing campaigns conducted
by the T. W. O. C., the International, and the Association. No his-
tory of collective bargaining other than the attempts to bargain made
by the International in and after June 1937 and by the Association
in July 1937 is shown.
We find that all employees at the respondent's plant, except super-
visory employees and office workers, constitute a single unit appro-
DECISIONS AND ORDERS 527
priate for the purposes of collective bargaining with respect to rates
of pay, wages, hours of work, and other conditions of -employment,
and that said unit will insure to the employees of the respondent the
full benefit of their right to self-organization and to collective bar-
gaining and otherwise effectuate the policies of the Act.
2. The majority
The complaint, as amended, alleged that on or about June 1937,
and thereafter the International was the duly designated representa-
tive of the respondent's employees for the purposes of collective
bargaining. At the hearing 108 2 signed membership cards of the
T. W. O. C. or of the International were received in evidence. Each
card stated on its face that the member signing it was an employee
of the respondent. Two of these cards have been eliminated from
consideration because the girl whose signature purportedly appears
on one was unable to identify her signature at the hearing, and
because the other is a duplicate of one of the cards in evidence. Of
the remaining 106, 87 bear a date in May, 9 a date in the first 2
weeks in June, 5 a date in the last 2 weeks in June, and 5 are undated.
The number of persons, other than foreladies and office workers,
employed in the respondent's plant was stipulated at the hearing to
be as follows :
During the 2 -week period ending: No ofemployees
May 22---------------------------------------------------- 191
June 5----------------------------------------------------- 168
June 19---------------------------------------------------- 153
July 3----------------------------------------------------- 131
July 17---------------------------------------------------- 92
July 31---------------------------------------------------- 103
The respondent objected to the admission of many of the cards, on
the grounds that the signatures on them had not been identified and
that the persons purporting to have signed the cards had not been
shown to be employees of the respondent, and to the admission of
most of the cards because they designated the T. W. O. C., rather
than the International, representative for the purposes of collective
bargaining.
Forty-eight of the cards bearing a May date, 3 of those bearing
a date in the first 2 weeks in June, 3 bearing a date during the second
2 weeks in June, and 3 of the undated cards were identified, by stipu-
lation or otherwise, as to signature and as having been signed by
employees of the respondent, making a total of 57, or, without the
undated cards, a total of 54. Membership in the International, but
2 In his written statement left with the Board during oral argument , counsel for the re-
spondent says approximately 109 International cards were offered in evidence.
528 NATIONAL LABOR RELATIONS BOARD
not employment by the respondent, was also established with respect
to 8 other persons whose names appear on a May card, and 1 person
whose name appears on an undated card, making a total of 66 mem-
berships in the International identified, or, without the undated cards,
a total of 62.3
Anne Landy, an organizer for the International, testified that all
the cards were part of the regular union records of the International,
that they had been relied upon in making up other records of the
International, that notices had been sent out in conformity with the
names and addresses appearing on the cards, and that at no time had
there been any indication that the persons whose names appeared on
the cards had not signed the cards or were not employees of the
respondent.
The respondent did not adduce any evidence tending to show that
the cards are not what they purport to be. It did not introduce its
pay roll to show that the names of the persons appearing on the cards
did not also appear on the pay roll, or make a comparison of sig-
natures, or in any other manner indicate that the signatures are not
authentic.
Under the circumstances we have concluded that the cards were
in fact signed by the persons whose names appear on them, and that
such persons were employees of the respondent.4
The fact that T. W. O. C. rather than International cards were
introduced is immaterial. The language on the T. W. O. C. cards
authorized the T. W. O. C. "its agents or representatives" to act for
the undersigned, and it was established at the hearing that the In-
ternational was acting as the representative of the T. W. O. C.
We find, therefore, that at the time it first attempted to negotiate
with the respondent in June 1937, and at all times thereafter, the In-
ternational was the duly designated representative of a majority of
the respondent's employees in an appropriate unit and pursuant to
Section 9 (a) of the Act was the exclusive representative of all the
employees in such unit for purposes of collective bargaining in re-
spect to rates of pay, wages, hours of work, and other conditions of
employment.
3. Refusal to bargain
About the second week in June 1937, David Gingold, State super-
visor of the International, which had been designated by the T. W.
O. C. as its agent for collective bargaining with the respondent, in-
8 The respondent says in the written statement left with the Board at oral argument :
"Approximately 63 were identified by their signatures and as to those identified, we had
no objection to their introduction." The statement does not indicate exactly how the fig-
ure of 63 was reached.
4 See Matter of The Jacobs Bros. Co., Inc. and United Electrical and Radio, Workers of
America, Local 1226, 5 N. L. R. B. 620; Matter of Blackstone Manufacturing Company and
International Association of Machinists, Lodge 1240, affiliated unth the American Federation
of Labor, 7 N. L. R. B. 1169.
DECISIONS AND ORDERS 529
formed Aaron Sadock that the International represented a majority
of the respondent's employees and wished to bargain collectively for
them. Aaron Sadock replied that the matter would have to be dis-
cussed with his brother, Morris Sadock, president of the respondent,
who was then out of town.
About a week later, Gingold and Landy met with Aaron and Mor-
ris Sadock and proposed that the respondent sign an agreement with
the International. Gingold testified that at this meeting, as proof
of the right of the International to represent the respondent's em-
ployees, Landy offered to show the Sadocks T. W. 0. C. cards signed
by a majority of the respondent's employees, but that the cards were
not examined because Morris Sadock said he conceded the Inter-
national represented a majority of the employees and was interested
only in the terms of the proposed agreement. Morris Sadock denied
at the hearing that any mention of a majority had been made in
that conference. Aaron Sadock, on the other hand, testified that
Gingold had said that the International represented a majority.
It is unnecessary to decide whether or not the majority issue was
raised in that conference, since if it was, we believe that the Interna-
tional was prepared to prove its claim and if it was not, the respond-
ent tacitly waived, any question concerning majority representation
by treating with the International as though such question did not
exist.
At this conference, Morris Sadock asked to see a copy of an agree-
ment recently entered into between the International and one of the
respondent's chief competitors. There is some confusion in the record
concerning whether it was at this meeting or some days later that
Gingold gave Morris Sadock a copy of the International's agreement
with the respondent's competitor. In any case, Morris Sadock was
given a copy and was asked to sign a similar agreement with the
International. At that time, it was understood that Morris Sadock
would consult the respondent's attorney concerning the proposed
agreement and would notify Gingold when the attorney had finished
considering it .5
Some weeks elapsed and Gingold received no word from Sadock.
Finally about the first week in July, after several unsuccessful ef-
forts, Gingold succeeded in reaching Sadock in New York City by
telephone. Gingold testified that Sadock said he was not backing out,
that there was no hurry, and* that they would "get together." Gin-
gold further testified that in one telephone communication he accused
Sadock of "stalling" and acting in bad faith and that Sadock replied
that there was no work and plenty of time. Sadock testified that he
told Gingold the contract was still in the hands of the respondent's
8 This was Gingold's understanding, and, although Morris Sadock testified on direct ex-
amination that Gingold was to get in touch with him, not he with Gingold, on cioss-
examination he said that he was to notify Gingold.
530 NATIONAL LABOR RELATIONS BOARD
attorney, but he was not questioned specifically concerning Gingold's
version of what was said over the telephone.
The International called a strike at the respondent's plant on August
3, 1937. From August 3 until August 23 the plant did not operate.
Association officials were active in trying to break the strike. On
August 9 Collins and other members of the Association called on
employees who, according to rumor, had said that they had been co-
erced into signing Association cards, and secured 80 signatures to a
paper addressed "To Whom It May Concern" stating that the under-
signed had formed the Association without coercion and had selected
it as their representative for the purposes of collective bargaining, and
that the Association was not dominated or subsidized by the respond-
ent. This statement was first taken to the justice of the peace and
sworn to by the persons securing the signatures, and then to the bur-
gess of Berwick to bolster a request by the Association for protection.
A few days later, on August 12, Collins, on behalf of the Associa-
tion, wrote a letter to the Regional Office of the Board`in Philadelphia
requesting an, election. Subsequently a telegram containing a similar
request was sent to the United States Department of Labor. After
the strike had ended, Collins received election petition forms from
the Board; but the forms were never filled out because, according to
Collins' own testimony, the only purpose in requesting the forms was
to end the strike. Since the respondent had already signed an agree-
ment with the Association, Collins thought an election after the strike
would be unnecessary.
The strike was terminated on September 6, 1937, pursuant to an
agreement entered into between the respondent and the International
on September 3, 1937, providing that the International discontinue
picketing and that all employees then on strike be reinstated to their
former positions without loss of any rights and privileges previously
enjoyed by them. It was also agreed that should the Board uphold
the charges of the International in this case, the respondent would
enter into a written agreement with the bargaining agency designated
by the Board, within thirty (30) days of such designation, unless
within that period either party took an appeal from the Board's order
to the Circuit Court.
In May and July, as found above, the respondent had been sponsor-
ing the Association, and on July 15, 1937, had recognized the Associa-
tion as the exclusive representative of its employees for the purpose
of collective bargaining, without requiring proof of the right of the
Association to represent the employees, and, on July 28, 1937, signed
a contract with the Association, without submitting it to the respond-
ent's attorney beforehand. The respondent did not notify the Inter-
national of its dealings with the Association during this period, but,
DECISIONS AND ORDERS 531
as indicated above, stated that negotiations were being delayed because
the respondent's attorney had not finished studying the agreement pro-
posed by the International. In fact, as far as the record shows, it
was not until the latter part of August that Sadock told the Interna-
tional, which was still trying to negotiate an agreement, that the
respondent had signed a contract with the Association.
The only reasonable conclusion to be drawn from the respondent's
evasive and dilatory tactics in its negotiations with the International,
while the respondent was at the same time sponsoring the formation
of the Association, is that the respondent was not bargaining in good
faith with the International but was merely making a show of bar-
gaining until such time as the company-dominated Association might
be used by the respondent to defeat its employees' right to bargain
through representatives of their own choosing.
We find that in June 1937, and thereafter, the respondent refused
to bargain collectively with the International as the representative of
its employees in the appropriate unit with respect to rates of pay,
wages, hours of employment, and other conditions of employment and
has thereby interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
IV. TIIE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section III
above, occurring in connection with the operations of the respondent
described in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
We have found that the respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act. We shall order the respondent to cease and de-
sist from such interference, restraint, and coercion.
We have found that the respondent has dominated and interfered
with the formation and administration of and has contributed sup-
port to the Association. By such domination, interference, and sup-
port the respondent has prevented the free exercise by its employees
of their right to self-organization and collective bargaining. In
order 'to restore to the employees the full measure of their rights
guaranteed under the Act, we shall order the respondent to, withdraw
all recognition from the Association and to disestablish it as repre-
sentative of its employees for the purpose of dealing with the re-
532 NATIONAL LABOR RELATIONS BOARD
spondent concerning grievances, labor disputes, rates of pay, wages,
hours of work, or other conditions of employment," and to give no
effect to the contract between the respondent and the Association, or
any renewal thereof.
We have found that a majority of the respondent's employees
within the appropriate unit have designated the International as their
representative for the purposes of collective bargaining. The re-
spondent contends, however, that regardless of whether or not the
International represented a majority of the employees in June 1937,
the respondent should not now be required to bargain with the Inter-
national because a majority of the employees have since joined the
Association. It was stipulated at the hearing that employees who had
at one time signed International cards and had subsequently signed
Association cards would testify that no foreh^dy or supervisor had
suggested that they join the Association, that they had not in any
way been coerced to join the Association or threatened with loss of
employment, that by signing the Association cards they had desig-
nated the Association as their agent for the purposes of collective
bargaining, that in so doing they had intended to renounce their
membership in the International, and that such renunciation had not
been caused by threats of loss of employment or coercion made to them
personally. A number of witnesses testified to the same effect. Al-
together about 50 changes in membership are included in this evi-
dence. We give full credit to the stipulation, but we do not attach
significance to this evidence. The respondent's refusal to bargain
with the International and its sponsoring of the company-dominated
Association, even in the absence of individual threats of loss of e1n-
ployment or other personal coercion, necessarily had the effect of coer-
cing the employees to renounce the International and to substitute
the labor organization controlled by the respondent. Under such cir-
cumstances it was to be expected that many employees would renounce
the International and join the Association. The respondent's unfair
labor practices cannot, however, operate to change the bargaining
representatives previously selected by the untrammeled will of the
majority. Were we to hold otherwise, we would be ` rewarding the
respondent's illegal acts with partial success and permitting the effect
of the unfair labor practices to continue, thereby frustrating the exer-
cise of the right of the employees to choose their own representatives
free from employer interference. Such an order would defeat, not
effectuate, the policies of the Act. In order to effectuate the policies of
the Act, we must restore, as nearly as possible, the status quo before
Matter of Pacific Greyhound Lines, Inc. and ,Brotherhood of Locomotive Firemen and
Enginemen, 2 N L R. B. 431, Board's order enforced in National Labor Relations Board
v Pacific Greyhound Lines, (CCA-9; 1937) 91 F (2d) 458. rev'g and aff'g in part (1936)
2 N L R B 431 ; (1938) 901 U S 272, rev'g (CCA-9; 1937) 91 F (2d) 458
DECISIONS AND ORDERS 533
the unfair labor practices were committed and secure to the em-
ployees their right to bargain through the representatives they have
selected with full freedom of choice: We will, therefore, base our
order upon the majority obtaining upon the date of the refusal to bar-
gain and require the respondent to bargain with the International
upon request.7
Upon the basis of the foregoing findings of fact, and upon the en-
tire record in the proceeding, the Board makes the following :
CONCLUSIONS Or LAW
1. Textile Workers Organizing Committee, International Ladies
Garment Workers Union, and Berwick Independent Undergarment
Workers Association are labor organizations within the meaning, of
Section 2 (5) of the Act.
2. The respondent, by dominating and interfering with the forma-
tion and administration of and contributing support to Berwick In-
dependent Undergarment Workers Association, has engaged in and
is engaging in unfair labor practices within the meaning of Section 8
(2) of the Act.
3. All employees at the respondent's plant, except supervisory em-
ployees and office workers, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b)
of the Act.
4. In June 1937 International Ladies Garment Workers Union
was, and at all times thereafter has been, the exclusive representative
of all employees in such unit for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
5. By refusing to bargain collectively with International Ladies
Garment Workers Union as the exclusive representative of the em-
ployees in such unit, the respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (5) of the
Act.
6. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
7. The unfair labor practices enumerated above are unfair labor
practices affecting commerce within the meaning of Section 2 (6)
and (7) of the Act.
'Matter of Bradford Dyeing Association ( U. S A ) (a Corporation ) and Textile Work-
ers' Organizing Committee of the 0. 1. 0 , 4 N L R. B 604 ; Matter of Taylor Trunk Com-
pany and Luggage Workers Union, Local No 50 of the International Ladies' Hand Baa,
Pocketbook and Novelty Workers Union, 6 N. L R. B. 32 ; Matter of Inland Steel Cornpaii'l
and Steel Workers' Organizing Committee and Amalgamated Association of Iron , Steel, and
Tin Workers of Nor th America, Lodge Nos G^, 1010, and 1101, 9 N. L R B 783
147841-39-vol 10-35
534 NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, Lady Ester Lingerie Corporation, and its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Ladies
Garment Workers Union as the exclusive representative of all of the
employees at the respondent's plant, except supervisory employees
and office workers, with respect to rates of pay, wages, hours of work,
and other conditions of employment;
(b) Dominating or interfering with the administration of and con-
tributing support to Berwick Independent Undergarment Workers
Association, or any other labor organization ;
(c) Giving effect to its contract with the Association, or any
renewal thereof ;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, and assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining and other mutual
aid and protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Ladies
Garment Workers Union as the exclusive representative of all the
employees at the respond is plant, excluding supervisory employees
and office workers, with respect to rates of pay, wages, hours of
work, and other conditions of employment;
(b) Withdraw all recognition from Berwick Independent Under-
garment Workers Association as representative of any of its em-
ployees for the purposes of dealing with it with respect to griev-
ances, labor disputes, wages, rates of pay, hours of work, and other
conditions of employment, and completely disestablish Berwick In-
dependent Undergarment Workers Association as such representa-
tive
(c) Immediately post, and keep posted for a period of at least
sixty (60) consecutive days from the date of posting, in conspic-
uous places throughout its plant, notices to its employees stating:
(1) that the respondent will cease and desist as aforesaid; (2) that
the respondent will, upon request, bargain with International Ladies
Garment Workers Union as the representative of all the employees
DECISIONS AND ORDERS 535
at its plant, except supervisory employees and office workers, with
respect to rates of pay, wages, hours of work, and other conditions
of employment; (3) that the respondent's employees are free to
join and assist any labor organization for the purposes of collec-
tive bargaining with respondent; (4) that the respondent has with-
drawn all recognition of Berwick Independent Undergarment
Workers Association as the representative of any of its employees
for the purposes of dealing with it, with respect to grievances, labor
disputes, wages, rates of pay, hours of work, or other conditions of
employment, and that Berwick Independent Undergarment Workers
Association is disestablished as such representative, and that re-
spondent's contract with the Association, or any renewal thereof is of
no effect;
Notify the Regional Director for the Fourth Region in writing
within ten (10) days from the date of this Order what steps the
-respondent has taken to comply herewith.
0