Leisure Lads, Inc.

National Labor Relations Board - Board Decisions

Aug 12, 1959

124 N.L.R.B. 431 (N.L.R.B. 1959)

LEISURE LADS, INC. 431
contends that Allison was permanently terminated on April 11, and
UMW asserts that he was not an employee on the election date. UMW
offered no evidence to support its contention. In view of the Regional
Director's finding that Allison was an employee within the unit on
the eligibility date and on the election date, we find, in accord with our
established eligibility rules, that he was an eligible voter 4 The
challenge to his ballot is therefore overruled.
As no exceptions were made to the Regional Director's recommenda-
tions as to the challenges to the ballots of Miller and Connachan, the
recommendations are hereby adopted.
Accordingly, we shall direct that the ballots of Peterson, Quarles,
and Allison be opened and counted. In the event that all three have
voted for UMW and the challenged ballot of Connachan becomes
determinative of the election results, the Regional Director is au-
thorized to order a hearing for the purpose of resolving the issue
raised with respect to Connachan's eligibility.
[The Board directed that the Regional Director for the Thirty-
third Region shall, within 10 days from the date of this Direction,
open and count the ballots of Arnold Peterson, Waldo Quarles, and
Lyle Allison and serve upon the parties a supplemental tally of
ballots, including therein the count of the aforementioned challenged
ballots. If the Intervenor, OCAW, receives a majority of the valid
votes cast and the unresolved challenge is unsufficient to affect the
results, the Regional Director will issue a certification of representa-
tives to such labor organization.]
[The Board further directed that, in the event a hearing as to the
eligibility of John Connachan is held, the hearing officer serve upon
the parties a report containing resolutions of the credibility of wit-
nesses, finding of fact, and recommendations to the Board as to the
eligibility of John Connachan. Within 10 days from the date of is-
suance of the report, any party may file with the Board in Washing-
ton, D.C., an original and six copies of exceptions thereto. Immedi-
ately upon the filing of such exceptions, the party filing shall serve a
copy upon each of the other parties, and shall file a copy with the
Regional Director. If no exceptions are filed thereto, the Board will
adopt the recommendations of the hearing officer.]
' See Reade Manufacturing Company, Inc., 100 NLRB 87, 89.
Leisure Lads, Inc. and United Textile Workers of America.,
Case No. 11-CA-1333. August 12, 1959
DECISION AND ORDER
,On March 27, 1959, Trial Examiner William F. Scharnikow issued
his Intermediate Report in the above-entitled proceeding, finding that
124 NLRB No. 62.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions, and the entire record
in this case, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations with the following addition.
The Trial Examiner found, and we agree, that the Respondent
violated Section 8 (a) (5) and (1) of the Act in May 1958 by unilat-
erally eliminating the paid lunch period of its second-shift employees
and changing their wage differential during the period when it was
negotiating a contract with the Union. The Union had been certified
in March 1957 as the representative of the Respondent's employees.
We agree also with the finding that the Respondent further violated
Section 8 (a) (5) and (1) of the Act in August 1958, more than a year
after the Union's certification, by terminating negotiations on the
basis of an alleged belief that the Union had lost its majority. We
are satisfied, on the basis of the Trial Examiner's credibility resolu-
tions and from the entire record, including the tenuous basis for the
asserted belief of loss of majority, that the Respondent did not assert
such belief in good faith.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Leisure Lads,
Inc., Salisbury, North Carolina, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from
(a) Refusing to bargain collectively in good faith concerning
wages, hours, and other terms and conditions of employment, with
United Textile Workers of America as the exclusive representative
of its employees in the following appropriate unit : All production
and maintenance employees at the Respondent's Salisbury, North
Carolina, plant, including inspectors, shipping clerks, janitors, and
the machinist, but excluding office employees and supervisors as de-
fined in the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
LEISURE LADS, INC. 433
(a) Upon request, bargain collectively with the above-named Union
as the exclusive representative of all the employees in the appropriate
unit, and embody in a signed agreement any understanding reached.
(b) Post at its plant at Salisbury, North Carolina, copies of the
notice attached to the Intermediate Report marked "Appendix A." 1
Copies of said notice, to be furnished by the Regional Director for the
Eleventh Region, shall, after being duly signed by the Respondent's
representative, be posted by the Respondent immediately upon receipt
thereof and be maintained by it for 60 consecutive days thereafter in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(c) Notify the Regional Director for the Eleventh Region in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
'This notice shall be amended by substituting for the words "The Recommendations
of a Trial Examiner" the words "A Decision and Order." In the event that this Order
is enforced by a decree of a United States Court of Appeals, the notice shall be further
amended by substituting for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint alleges that , in and since February 1958, the Respondent has com-
mitted, and is committing, unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the National
Labor Relations Act, as amended, 61 Stat. 136, by refusing to bargain in good faith
with the Union as the exclusive bargaining representative of an appropriate unit of
the Respondent's employees, in that (a) since February 1958, the Respondent has
made unilateral changes in the working conditions and pay of said employees, in-
cluding a change in second-shift pay differential, elimination of paid lunch periods
for second shift, and the cutting of established pay rates; (b) since February 1958,
the Respondent has failed to supply the Union with pay-rate schedules or the styles
being produced by the Respondent, although requested to do so by the Union in
connection with their contract negotiations; and (c) on August 4, 1958, the Respond-
ent broke off contract negotiations and has since refused to meet with the Union
as the exclusive representative of all the employees in the aforesaid bargaining unit.
In its answer, the Respondent generally denies that it committed the unfair labor
practices alleged in the complaint.
Pursuant to notice, a hearing was held in Salisbury, North Carolina, on Janu-
ary 29 and 30, 1959, before the Trial Examiner duly designated by the Chief Trial
Examiner. The General Counsel and the Respondent appeared by counsel, and the
Union by its representatives, and were afforded full opportunity to be heard, to
examine and cross-examine witnesses , and to introduce evidence bearing upon the
issues. All parties waived oral argument at the hearing. The General Counsel has
submitted a brief.
Upon the entire record in the case and from my observation of witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a New York corporation, operates a plant in Salisbury, North
Carolina, where it is engaged in the manufacture and sale of children 's apparel.
During the year preceding the issuance of the complaint, the Respondent sold and
525543-60-vol. 124-29
434 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD
shipped finished products of a value in excess of $100,000 to customers outside the
State of North Carolina.
I find that the Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Textile Workers of America is a labor organization within the meaning
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Union's certification and the general course of negotiations
On March 14, 1957, the Union was certified by the Board as the exclusive repre-
sentative of an appropriate bargaining unit consisting of the Respondent's production
and maintenance employees at its Salisbury, North Carolina, plant, including in-
spectors, shipping clerks, janitors, and the machinist, but excluding office employees
and supervisors as defined in the Act.' Thereafter, the Union submitted a contract
proposal to the Respondent and, in June 1957, the Respondent presented a type-
written draft of its counterproposal. In August 1957, the Respondent supplemented
this counterproposal with a proposed form of "Exhibit `B,' " setting forth the gen-
eral manner in which the parties should negotiate and settle the Respondent's piece-
work rates, which varied from operation to operation on each of the Respondent's
garment styles and constituted the wage base of most of the employees. All of the
subsequent negotiations between the parties were based upon the Respondent's
counterproposal.
The Respondent's counterproposal offered a contract for a year, subject to auto-
matic renewal from year to year in the absence of a written notice of termination
given by either party to the other at least 60 days prior to any given anniversary
date. With respect to wages, the Respondent's proposal granted the Union's re-
quest for a 5-cent-per-hour differential for employees on the second shift. It did
not, however, set forth any hourly wage rates or piecework rates, but stated merely
that a wage scale and job rates would be attached to the contract as "Exhibits `A'
and 'B ."' And the proposed form of "Exhibit 'B"' submitted by the Respondent
in August 1957 also omitted any suggestion of specific rates but dealt simply with
the manner in which piecework rates were to be negotiated and then attached to
the contract.
In the negotiations which took place in 1957, International Representative Redford
Cope and a bargaining committee consisting of the Respondent's employees repre-
sented the Union. On January 6, 1958, William H. Silcox, an International vice
president of the Union, succeeded Cope as the Union's negotiator. Since that time,
Silcox and the Union's committee consisting of employees Frances Julian (president
of the Union's Local), Sybil Johnson, Virginia Torrance, and Virginia Sails met
with the Respondent's representatives on January 6, February 6, March 11, April 15,
and June 10, 1958. At these meetings John Eichler, the Respondent's chief engi-
neer, was the spokesman for the Respondent. Also present for the Respondent at
some or all of these meetings were Maurice Rosenstock (vice president of the
Respondent), Joseph Pettigrew (the Respondent's office manager), and the Re-
spondent's attorney, Lewis Hanlin.
In the course of the meetings in 1958, the negotiators discussed the Respondent's
counterproposal, clause by clause, and considered the Respondent's oral proposals
as to hourly rates. On March 11, the Union accepted the Respondent's proposals
of a guaranteed hourly minimum rate of $1 and a base rate of $1.20. So far as
piecework rates were concerned, however, there was no agreement. There was a
discussion of the manner in which Respondent computed workloads. Silcox also
made requests for information as to wage rates generally. The substance of the
conversations on these subjects, to the extent that the record discloses them, is
considered below, in connection with the General Counsel's and the Union's claim
that the Respondent failed or refused to furnish this information. In any event, the
meetings between the Respondent's and the Union's representatives did not settle
the question of what the piecework rates should be. There was no meeting between
the parties after June 10, 1958.
In July 1958, Silcox telephoned Attorney Hanlin and requested another meeting.
On August 4, Hanlin wrote Silcox a letter stating that "The Management of the
Company tells me that all the circumstances coming to their attention definitely
indicate that the great majority of the Company's employees no longer desire to be
I Case No. 11-RC-904 ( unpublished).
LEISURE LADS, INC. 435
represented by your Union. I am therefore instructed to inform you that the
Company declines to resume bargaining negotiations with your Union."
The General Counsel and the Union contend that during the period of the negotia-
tions from February 1958 to August 4, 1958, the Respondent failed and refused to
bargain in good faith with the Union as the exclusive bargaining representative of
its employees, by unilaterally eliminating a paid half-hour lunch period on the sec-
ond shift and then increasing the shift differential from 5 cents to 8 cents per hour,
by unilaterally cutting wage rates, by refusing to furnish information as to piece-
work rates requested by the Union, and finally, by terminating negotiations with
the Union on August 4, 1958. The Respondent generally denies these accusations.
It asserts that it eliminated the paid lunch period after notifying and discussing the
matter with Silcox and the Union's bargaining committee at the April 1958 meet-
ing. It further asserts that it subsequently increased the shift differential from
5 to 8 cents with the approval of employees Virginia Sails and Sybil Johnson who,
as members of the Union's bargaining committee, had complained to the Respond-
ent's vice president, Maurice Rosenstock, its chief engineer, John Eichler, and its
office manager, Joseph Pettigrew, that the 5-cent differential was too low in view
of the elimination of the paid lunch period. It denies that it cut wage rates or that
it refused to furnish information requested by the Union as to piecework rates. And
it contends that it was justified in its refusal to bargain after August 4, 1958, and
thus beyond the year following the Union's certification, because of its honest and
reasonable doubt that the Union still represented a majority of the employees. We
turn now to a consideration of the evidence bearing upon the issues thus raised by
the parties.
B. The Respondent's failure and refusal to bargain in good faith
1. Unilateral elimination of the paid lunch period and increase of the wage
differential for the second shift
The Respondent has been operating a second shift since October or Novem-
ber 1957. Although a 5 cents differential for this shift had been requested by the
Union and conceded by the Respondent in its July 1957, counterproposal, the
second-shift employees were not paid any such differential for 7 or 8 months.2 On
the other hand, the second-shift employees were given a paid half-hour lunch
period, which was not mentioned in the Respondent's counterproposal and which, so
far as the record shows, was not requested by the Union.
On or about May 3, 1958, the Respondent began paying the employees on the
second shift the differential of 5 cents per hour originally requested by the Union
and agreed to by the Respondent, but at the same time, the Respondent eliminated
the paid half-hour lunch period. Then, on May 19, 1958, the Respondent notified
the employees that the second-shift differential was immediately to be increased to
8 cents per hour, by posting a notice to that effect and handing a copy of the notice
to employee Frances Julian, the president of the Union's Local.
Silcox testified that the Union was not given any advance notice of, nor therefore
any opportunity to discuss, either the elimination of the paid lunch period or the
increase of the differential to 8 cents per hour, and that he accordingly protested
these "unilateral acts" at the next bargaining meeting on June 10, 1958. Employee
Virginia Sails denied that she and employee Sybil Johnson had complained to Vice
President Rosenstock, Chief Engineer Eichler, or Office Manager Pettigrew about
the inadequacy of the 5 cents per hour differential or had urged that the differential
be raised.
On the other hand, in explanation of the Respondent's acts, Vice President Rosen-
stock testified that at the bargaining session with the Union's representatives on
April 15, 1958, he and Chief Engineer Eichler said that they would begin paying the
5 cents differential but would have to eliminate the paid lunch period. Rosenstock
further testified that: Within a few days after both of these changes were put into
effect, a number of the employees complained to him and to Eichler that the
second-shift employees were losing more pay through the elimination of the paid
lunch period than they were gaining through the 5-cent differential; among the
complaining employees were Virginia Sails and Sybil Johnson. who were members
of the Union's bargaining committee; Sails and Johnson suggested to Rosenstock
.2 This finding is made upon the testimony of the Respondent's Chief Engineer Eichler,
Vice President Rosenstock, and Office Manager Pettigrew. Silcox testified that he believed
the Respondent had begun paying the 5 cents differential sometime in 1957.
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the differential be increased; and they stated that they had no objection to
Rosenstock's proposal that the differential be raised to 8 cents.
But Rosenstock's testimony on these points is inconsistent with the testimony of
Chief Engineer Eichler and Attorney Hanlin. Eichler could not recall that any
members of the Union's committee had complained to him about the wage differ-
ential. More important, both Eichler's and Hanlin's testimony clearly indicates
that the Respondent's representatives did not refer to the paid lunch period in the
April 1958 meeting, much less discuss its elimination. Eichler testified in substance
that he had no recollection of talking with Silcox about dropping the half-hour lunch
period and substituting the 5-cent differential, but that all he could recall of any
discussion with Silcox about the night shift was whether the Respondent had the
right to shift employees from the day to the night shift. And Attorney Hanlin testi-
fied, not that the Respondent notified the Union of its intention to eliminate the paid
lunch period in return for the 5-cent differential, but merely that "the Union never
at any time contended" for both the paid lunch period and the 5 cents differential.
Furthermore, according to Hanlin, the discussion at the April 1958 meeting con-
cerned only the right of the Respondent to shift day employees to the night shift,
to which the reply of the Respondent's representatives, including Hanlin, was that
the right of the Respondent to operate its second shift had already been negotiated
and settled and "that if the Company brought its practice in line with this proposal
we had negotiated, . the Company had negotiated for, and, in fact, paid for
the right to shift people to [the second] shift if it wished to do so."
Upon consideration of the foregoing evidence, I credit Silcox's and Sails' testi-
mony, and find that, without prior notice to the Union and therefore without afford-
ing the Union any opportunity to discuss and bargain about these matters, the
Respondent eliminated the paid lunch period of the second-shift employees on May
3, 1958, and on May 19, 1958, increased the wage differential of the second-shift
employees from 5 cents to 8 cents per hour. That these unilateral acts on the part
of the Respondent seriously affected the course of bargaining between the parties
by undercutting the Union's performance of its function as the exclusive bargaining
representative of the employees is unquestionable. For by these acts the Respondent,
after granting the Union's request for a 5-cent differential, first unilaterally withdrew
the paid lunch period as the apparent price of the differential and then substituted
an additional 3-cent differential to mollify the employees for their loss of the paid
lunch period. Bargaining in good faith certainly required the Respondent at least
to discuss these matters and seek to come to an agreement with the Union before
putting these changes into effect. I therefore find and conclude that the Respondent's
unilateral acts were incompatible with good-faith bargaining in its then current nego-
tiations with the Union and that, in violation of Section 8(a),(5) and .(1) of the Act,
the Respondent has failed and refused to bargain in good faith with the Union as
the exclusive bargaining representative of the Respondent's employees.
2. The Respondent's alleged refusal to supply information requested
by the Union as to piecework rates
The Respondent makes approximately 60 styles of garments for the spring
season and a similar number for the fall season. It produces its spring styles
roughly from November to March, and its fall styles from March to the middle of
November. In the case of each style, there are from 20 to 25 production opera-
tions, the piecework rate for each of which is set by timing the operation and then
determining its value through the use of a formula involving the base hourly rate
and an allowance for a fatigue factor. Until the piecework rates of all operations
on a particular style have thus been finally determined, the Respondent has regarded
those rates which have been fixed in the meantime, as being "temporary rates" or
"office rates," although it has used such temporary rates as the basis for computing
wages until all the rates for the style have been fixed. When all the rates for a
particular style have been settled, the Respondent regards the rates for that style
as being "finalized," and they are then recorded on a style card used for that pur-
pose and sent by the North Carolina plant to the Respondent's home offices in Ellen-
ville, New York, for cost accounting purposes. Temporary rates are not forwarded
to the home office and are subject to modification until all the rates for the style
are settled. In some cases, it has taken a considerable time for the rates for a par-
ticular style to be "finalized," and in some cases the rates for a style may never be
"finalized:"
The negotiations between the Respondent and the Union, however, took place
not only against this background of the Respondent's actual practice, but also against
the background of the form of "Schedule 'B"' proposed by the Respondent to the
LEISURE LADS, INC. 437
Union in August 1957. The schedule which the Respondent thus suggested be
attached to, and made a part of, its contract with the Union was the following:
Piece rates for operations on the following numbered styles of garments:
____________________ are attached hereto and made a part of this garment.
When the Company commences production of any style numbers other than
those above named, it shall furnish immediately to the Union a copy of its
proposed piece rates for such style. The Company shall continue its produc-
tion and compute its payrolls on the basis of such piece rates until or unless
revised rates are agreed upon between the Company and the Union and placed
in effect. Newly initiated rates shall not be subject to renegotiation during an
initial thirty day trial period; and after rates for a particular style have been
in effect for -------------------- without request for negotiation they shall
be deemed approved and shall not be renegotiated during the term of this
contract. Piece rates are a matter for collective bargaining and shall not be
subject to the arbitration procedure.
The wage negotiations between Silcox and the Respondent's representatives in
1958 were concerned for the most part with the problem of reaching an agreement
as to piecework rates on the production of the Respondent's 1958 fall styles, which
began roughly in March 1958. It is undisputed that Silcox requested the Respondent's
representatives to supply information as to these rates as they were developed. It is
also undisputed that the Respondent agreed to supply finalized rates and did in fact
supply some, if not all, of such rates, at first to Silcox and then, at his request, to
President Julian of the Union's Local. Finally, it is undisputed that the Respondent
did not furnish the Union with any temporary rates. The points in dispute are (1)
whether the Respondent supplied the Union with all its finalized rates, and (2)
whether the Union requested or the Respondent promised information as to all
temporary rates as well as finalized rates.
On the first of these two issues, Silcox testified that, on the basis of information
given him by employees, he charged Chief Engineer Eichler at the meeting on June
19, 1958, with having given the Union the finalized, complete piecework rates on
only six styles although the rates for six other specifically named styles had also been
completed and finalized. Silcox further testified that Eichler's reply was that he
had given Mrs. Julian the rates for eight styles and had her initials on the cards,
but that Eichler refused to show these cards to Silcox. In this connection, Mrs..
Julian testified that she had received rate cards from Office Manager Pettigrew
and that, after having received some of these cards, she was requested by Pettigrew
to initial the originals and did so in the case of every card thereafter given to her.
On the other hand, Eichler testified that when Silcox complained at the June 10
meeting about not getting all the finalized rates, he told Silcox that if the rates on
particular styles had been completed, the Union would have copies and that he so-
instructed Office Manager Pettigrew. Pettigrew testified that: He gave all the7
completed rates to Mrs. Julian; Mrs. Julian at first insisted on initialing them
later, on her own volition, she discontinued this practice; but at the meeting on June
10, he showed her more than eight cards that she had initialed.
In my opinion, the foregoing evidence does not warrant a finding that the
Respondent, before June 10, 1958, had in fact finalized and withheld the rates on
any of the styles referred to by Silcox in his testimony and in his conversation with
the Respondent's representatives on June 10. Silcox's charges to this effect were
based upon hearsay and I credit the denials of these accusations by the Respondent's
witnesses.
With respect to information as to the Respondent's "temporary" piecework rates,
the general substance of Silcox's testimony was that at every meeting with Respond-
ent's representatives "we asked that we be given the wage rates on the styles run,"
and that the Respondent furnish the Union with its "complete wage structure," but
that at the meetings on April 15 and June 10, 1958, the Respondent told the Union
that temporary rates would be paid until its study produced a "permanent rate on
the complete style" and that when all the rates were determined by the Respondent
for a particular style, the Union would be given a copy of these permanent rates.
According to Silcox's testimony, Attorney Hanlin told the Respondent's representa-
tives in Silcox's presence at several meetings that the Union was "entitled to all
wage data."
On the other hand, Chief Engineer Eichler testified that the Union's and the
Respondent's negotiators 'came "to an agreement to give [the Union] a copy of
all rates after every operation was complete." Attorney Hanlin testified that: He
had drafted the Respondent's proposed form of "Schedule 'B,"' using some of the
language of the Union's original contract proposal submitted by Redford Cope,
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Silcox's predecessor; although "Schedule 'B'" thus included the provision which
would have required the Respondent to submit "its proposed piece rates" immediately
upon the beginning of the production of any style, both Cope and Silcox agreed
.during their negotiations that the Respondent should routinely submit only finalized
rates and that information as to rates on any style before finalization, as well as any
other information bearing on wages, should be made available if requested by the
Union; and this was the procedure accepted by, and followed with, both Cope and
Silcox.
When read in connection with the substance of Eichler' s and Hanlin's testimony,
Silcox's testimony seems to me to be vague and unsatisfactory as to whether the
Union actually made a firm, specific demand for information as to the Respondent's
temporary piece rates or whether, by failure to object, it acquiesced to the Respond-
ent's proposal during the negotiations that only finalized rates be furnished routinely.
It is true that when examined on rebuttal, Silcox testified that at the April 15 meeting
he complained "in very strong language" about "being kicked around and not
[being] given the proper data"; that he "outlined what the data should be, the rates,
the temporary rates, the rates that were going up and down and across the board,
and all types of wage information the Company had available that would help us
to intelligently get to the solution"; and that Attorney Hanlin said, "The Union
is entitled to that data. I want you to give them all the available data that can
help them." But at no point in his testimony on the General Counsel's case-in-
chief had he stated that he ever made a specific request or demand of the Respond-
ent's representatives that they give the Union all its temporary piecework rates as
well as its finalized rates. On the contrary, throughout his initial appearance on the
witness stand ' during the General Counsel's case-in-chief, his testimony was in
substance simply that it was his belief that the Union was "entitled" or was "sup-
posed" to get the Respondent's temporary rates in accordance with the Respondent's
proposed form of "Schedule `B' " and Silcox's general demands for the "wage rates
on the styles run" and for a "complete wage structure." Thus, when asked whether
he ever told the Respondent, "We want those temporary rates you are not sending
us," Silcox replied, "I told you, sir, we asked for not specifically this rate or that rate,
but asked them for complete wage data, and they told us -we would get it, and
we did not get it." Nor did Silcox testify during the General Counsel's case-in-
chief. that he voiced any objection to, or made any protest against, the Respondent's
admitted proposal that only finalized rates should be submitted to the Union after
they were developed, and that information as to temporary rates should be made
accessible to the Union only on request. Indeed, there are passages in his testimony
during the General Counsel's case-in-chief which suggested that he had, in fact, been
content with this arrangement and became annoyed only -because it was taking the
Respondent so long to finalize the rates and submit them to him.3
All in all, I do not feel that Silcox's testimony, in the face of Eichler's and
Hanlin 's testimony to the contrary, justifies a finding that the Union made any
firm, specific request that the Respondent routinely furnish the Union with infor-
mation as to all temporary rates. I therefore recommend a dismissal of the allega-
tion of the complaint that by failing or refusing to supply such information, the
Respondent committed an unfair labor practice within the meaning of Section
8(a)(5) and (1) of the Act.
3. The Respondent 's alleged cutting of wage rates
Silcox testified that before the June 10 meeting, a number of the employees told
him of specific piecework rates which had been cut by the Respondent; that at the
meeting on June 10 Silcox "showed [the Respondent's representatives] many
instances where we believed the rate had been cut, and some we knew had been
cut' ; and that Eichler "admitted they had cut some rates. He said the condition
of the trade called for it, and they had to stay competitive, and therefore, they had
to cut some rates." Silcox further testified that he specifically referred Eichler to
one lot number in a style carried over from the preceding year in which the previous
year's rate had been cut from 57 cents to 45 cents and then to 40 cents. According
to Silcox, although Eichler admitted cutting rates, Silcox could not remember that
Eichler admitted cutting this particular rate. It was Silcox's understanding, how-
ever, that "if that garment had been run last season ... and had a rate, then that
a For example , at one point in his testimony Silcox said , ". . . this temporary [rate]
was only something would be for only a matter of a couple or 3 or 4 days because when
it went in and they were running the styles, the rate would be set and we would get a
copy of it . . . . The Company , if we requested , they would give us those temporary rates
so we would know what we were doing ." [Emphasis supplied.]
LEISURE LADS, INC. 439
rate would stay. The only change in style rates would be when a new style came
about which would necessitate changing the rates."
Vice President Rosenstock testified from his examination of the Respondent's
records that the lot specifically referred to by Silcox in his testimony was not at
all connected with the style number mentioned by Silcox and that, in fact, the lot
number had not been run until August 1958. Rosenstock further testified that the
rates for this lot number had not been cut.
Eichler testified that "We never cut rates on a particular style, to my knowledge."
He explained that the Respondent never repeated a style from year to year, that
there were always variations from season to season, that the cuts and patterns were
different although to the average purchaser the differences might not be apparent,
and that rates for the operations were always established by timing them each
season. He further testified that the girl employees would complain about getting
less money for what to them seemed the same operations, without considering such
changes as that "the shoulder [on the previous season's style] may be half inch
shorter, high rise or maybe lower." Finally Eichler denied that he told Silcox at
one of their meetings that he was cutting some rates, although he did admit that
he told Silcox "the condition may arise where we would cut rates."
Upon consideration of Silcox's, Rosenstock's, and Eichler's testimony, I do not
believe the evidence warrants a finding either that the Respondent cut wage rates
or that Eichler admitted it was doing so. Here again, Silcox's testimony as to the
alleged wage cutting was based on hearsay and was denied by the Respondent's
witnesses, whose testimony I credit. In sum, I find and conclude that the evidence
does not support the allegation of the complaint that the Respondent cut wage
rates during the course of the contract negotiations.
4. The Respondent's termination of negotiations on August 4, 1958
As has already been found, Attorney Hanlin advised Silcox in the letter of
August 4, 1958, that the Respondent was terminating negotiations with the Union
because it believed "that the great majority of the Company's employees no longer
desire to be represented by your Union." According to Chief Engineer Eichler,
the Respondent's decision to end negotiations was reached as the result of discus-
sions between him and President Manual Rosenstock and Vice President Maurice
Rosenstock as to whether the Respondent should still negotiate with the Union since
a year had passed since the Union's certification, and there was still no contract.
Maurice Rosenstock testified that he concluded that the Union no longer represented
a majority of the employees because bargaining meetings had become less frequent,
girl employees had expressed dissatisfaction with the Union as he walked through
the plant, and the "union" hats and buttons, which had been worn by the employees
during the months preceding and following the election, had disappeared.
In addition, Office Manager Pettigrew testified that, although he had not told
Eichler or Rosenstock, Virginia Sails, a member of the Union's committee, told him
in June or July 1958 that the Union had about 65 members among the Respondent's
300 employees. And Attorney Hanlin testified that Silcox told him a day or so
after either the June 1958 meeting or an earlier meeting, that the Union had 80
members among the employees. Sails and Silcox denied making any such state-
ments and testified that they did not know how many of the Respondent's employees
were members of the Union.
In considering the exact significance of this evidence, it should be noted that
neither in the present proceeding nor during the negotiations with the Union
through June 10, 1958, did the Respondent raise any question as to the Union's
majority before August 4, 1958. Upon the basis of the normal presumption as to
the continuance of a bargaining representative's established majority, I find it clear
that the Union did represent a majority of the Respondent's employees in the appro-
priate bargaining unit from the time of its certification on March 14, 1957, until at
least June 10, 1958, the date of the last bargaining conference between the Re-
spondent's and the Union's representatives. Therefore, whether or not the Union
lost its majority after June 10, 1958 (as the Respondent apparently contends it did),
would not affect the findings I have already made that the Respondent had previ-
ously refused to bargain in good faith with the Union as exclusive bargaining repre-
sentative, and had thereby committed unfair labor practices within the meaning of
Section 8(a)(5) of the Act, by its unilateral elimination of the paid lunch period
for the second shift on May 3, 1958, and by its unilateral increase of the second-
shift differential on May 19, 1958. Nor would a loss by the Union of its majority
after June 10, 1958, eliminate the necessity or the propriety of issuing the usual
order requiring the Respondent to bargain collectively in good faith with the Union
as exclusive bargaining representative for the purpose of remedying the Respondent's
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May 1958 refusals to bargain .4 The precise question which remains for decision,
however, is whether the Respondent's August 4, 1958, refusal to bargain was in
itself an independent, additional act of unfair labor practice and therefore an
additional basis for a bargaining order 'against the Respondent.
Turning to a consideration of the evidence for the purpose of deciding this ques-
tion, I credit Sails' and Silcox's denials that they in effect admitted to Pettigrew and
Hanlin that the Union no longer represented a majority of the employees by the
time the Respondent, on August 4, 1958, refused to continue contract negotiations.
Under the circumstances of the case, even though more than a year had elapsed
since the Union had established its majority and was certified by the Board, it must
be presumed, in the absence of persuasive evidence to the contrary, that the Union's
majority continued up to the time the Respondent's attorney wrote the letter of
August 4, 1958. In my opinion, this presumption has not been rebutted by the
testimony of Rosenstock and Pettigrew that an undisclosed number of employees
expressed dissatisfaction with the Union in June or July 1958 and that the employees
no longer wore union buttons and hats as they had at the time of the representation
election more than a year before. Furthermore, even if the Respondent's representa-
tives actually believed from these inconclusive indications that the Union had lost
its majority, such a belief was obviously unreasonable in view of its tenuous basis,
and the Respondent was certainly not justified in relying upon it as the sole basis
for terminating negotiations which had lasted for more than a year, without first seek-
ing a clear determination of the actual facts through a new Board election under
Section 9(c) of the Act.
Upon the evidence, therefore, I find and conclude that:
1. The Union was at all times from its certification by the Board on March 14,
1957, to and including August 4, 1958, the representative designated by a majority of
the Respondent's employees in an appropriate unit of production and maintenance
employees, and was therefore the exclusive bargaining representative of all the
employees in this unit within the meaning of Sections 8(a) (5) and 9(a) of the Act.
2. The Respondent was not justified by any reasonable doubt of the Union's
continuing majority, in refusing to bargain with the Union on and after August
4, 1958.
3. By refusing to bargain with the Union on and after August 4, 1958, the Re-
spondent committed an unfair labor practice within the meaning of Section 8(a)(5)
and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in
connection with the operations of the Respondent set forth in section I, have a close,
intimate, and substantial relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent has engaged in unfair labor practices
within the meaning of Section 8 (a) (1) and (5) of the Act, I will recommend that
it cease and desist therefrom and take certain affirmative action in order to effectu-
ate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. United Textile Workers of America is a labor organization within the meaning
of Section 2(5) of the Act.
2. All production and maintenance employees at the Respondent's Salisbury,
North Carolina, plant, including the inspectors, shipping clerks, janitors, and the
machinist, but excluding office employees and supervisors as defined in the Act, have
constituted, and now constitute, a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
3. The above-named Union was on or about March 14, 1957, and at all material
times since that date has been, the exclusive representative of all employees in the
aforesaid appropriate unit for purposes of collective bargaining within the meaning
of Section 9(a) of the Act.
4. By refusing on and since May 13, 1958, to bargain collectively in good faith
with the above-named Union as the exclusive representative of its employees in the
4 Franks Bros . Company V . N.L.R.B., 321 U.S. 702.
NORTHEAST COASTAL, INC. 441
aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) and (5) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with United Textile Workers of
America as the exclusive representative of the employees in the bargaining unit
described below.
WE WILL, upon request, bargain with United Textile Workers of America
as the exclusive representative of all the employees in the bargaining unit
described below, with respect to rates of pay, wages, hours, and other conditions
of employment, and if an understanding is reached, embody such understand-
ing in a signed agreement.
The bargaining unit is:
All production and maintenance employees employed at our plant in
Salisbury, North Carolina, including inspectors, shipping clerks, janitors,
and the machinist, but excluding office employees and supervisors as de-
fined in the Act.
LEISURE LADS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Northeast Coastal , Inc. and Thomas Donkis. Case No. 2-CA-5971.
August 12, 1959
DECISION AND ORDER
On April 22, 1959, Trial Examiner George L. Powell issued his
Intermediate Report 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 copy of the
Intermediate Report attached hereto. Thereafter, only the General
Counsel filed exceptions which are directed to remedial portions of
the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean 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 Inter-
mediate Report, the exceptions, and the entire record in this case and
124 NLRB No. 60.