MBC Headwear, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1994

315 N.L.R.B. 424 (N.L.R.B. 1994)

424
315 NLRB No. 56
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 In adopting the judge’s conclusion that the Respondent violated
Sec. 8(a)(5) and (1) of the Act by refusing to provide the Union with
the names, addresses, and social security numbers of all newly hired
unit employees, we note that, although social security numbers are
not presumptively relevant, Sea-Jet Trucking Corp., 304 NLRB 67
(1991), the Respondent here is required to furnish social security
numbers under the parties’ agreement.
In adopting the judge’s conclusion that the discharge of Ibraham
Haidara violated Sec. 8(a)(3) and (1) of the Act, we note that al-
though the judge did not explicitly analyze the discharge under
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), her findings are consistent
with that decision.
3 Contrary to the Respondent’s arguments, we agree with the Gen-
eral Counsel that terms and conditions of employment that are part
of an expired collective-bargaining agreement, including benefit fund
plans and related reporting requirements, survive contract expiration
and cannot be altered without bargaining. Parkview Furniture Mfg.
Co., 284 NLRB 947, 971–972 (1987), citing Cauthorne Trucking,
256 NLRB 721 (1981).
1 General Counsel has withdrawn the allegation that employee
Tidiana Thiam was unlawfully discharged, that Respondent threat-
ened to cease granting loans to employees, and that Respondent so-
licited employee signatures on a document repudiating the Union.
2 Respondent called no witnesses in the instant hearing.
3 Respondent argues that certain allegations are barred by Sec.
10(b) of the Act. The charge served on February 3, 1993, alleged
threats against union members and to get rid of the Union and the
discharge of an employee for union activity. The amended charge
served on March 12, 1993, alleged threats to withhold loans, direc-
tions to abandon the Union, and directions to sign an antiunion peti-
tion. The charge served on March 17, 1993, alleged discharges of
employees for union activity. A charge served on May 3, 1993, al-
leged directions to abandon the Union and promises of health cov-
erage, threats to cease recognizing the Union and to close the shop,
interrogations of employees and promises of benefits, failure to com-
ply with the agreement to submit employee information, dues, and
fees and contribution, and denial of access to the Union. A charge
served on May 3, 1993, alleged failure to provide information for
MBC Headwear, Inc. and Cap Makers’ Union
Local 2-H, New York-New Jersey Joint Board,
Amalgamated Clothing and Textile Workers
Union, AFL–CIO. Cases 29–CA–17137, 29–CA–
17222, 29–CA–17308–1, and 29–CA–17308–2
October 31, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On May 20, 1994, Administrative Law Judge Elea-
nor MacDonald issued the attached decision. The Re-
spondent filed exceptions, a supporting brief, and an
answering brief. The General Counsel filed an excep-
tion and a brief in support of the judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, MBC Headwear, Inc.,
Brooklyn, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Thomas M. Maher, Esq., for the General Counsel.
Stuart Bochner, Esq. (Horowitz & Pollack), of South Orange,
New Jersey, for the Respondent.
Larry Magarik, Esq. (Sipser, Weinstock, Harper & Dorn), of
New York, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in Brooklyn and New York, New York, on
January 3 and 4, 1994. The consolidated complaint alleges
that Respondent, in violation of Section 8(a)(1), (3), and (5)
of the Act, refused to provide information to the Union, in-
terrogated employees, made promises to employees, threat-
ened employees, discharged employees, denied access to the
Union, refused to contribute to union funds, and refused to
deduct and remit dues and fees to the Union. The Respond-
ent denies that it has engaged in any violations of the Act
and asserts that the allegations of the complaint are barred
by Section 10(b) of the Act.1
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Respondent in February
1994, I make the following2
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a New York corporation with its place of
business on Franklin Avenue, in Brooklyn, New York, is en-
gaged in the manufacture and distribution of cloth hats, caps,
novelties, and related products. Respondent annually pur-
chases goods valued in excess of $50,000 directly from firms
outside New York State and ships products valued in excess
of $50,000 to firms in New York State directly engaged in
interstate commerce. Respondent admits and I find that it is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and that the Union is
a labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background3
The Union is the exclusive collective-bargaining represent-
ative of Respondent’s employees in the following unit:
425MBC HEADWEAR, INC.
contract administration, refusing to comply with a subpoena in an ar-
bitration, denial of access to the Union and failing to provide em-
ployee information, dues, and fund payments.
4 The Union’s charge alleging failure to comply with the collec-
tive-bargaining contract including failure to submit names, addresses,
social security numbers, dues, initiation fees, and pension and wel-
fare fund contributions for employees, vacation pay for employees,
or to submit reported hours and earnings of new employees was
served on May 3, 1993. Thus the 10(b) period for that charge com-
menced on November 3, 1992.
All production employees employed by Respondent
at its Franklin Avenue facility, excluding all office cler-
ical employees, watchmen, guards and supervisors with-
in the meaning of the Act.
Respondent and the Union have been parties to a series of
collective-bargaining agreements the latest of which had a
term from July 1, 1990, to June 30, 1993.
At section 3, union security, the contract provides that em-
ployees shall become members of the Union after 30 days
employment and that the Employer shall deduct and remit to
the Union dues and initiation fees from employees on written
authorization.
Section 5(c) of the collective-bargaining agreement re-
quires that:
The Employer shall provide the Union with a written
list containing the names and addresses of all new em-
ployees who have completed thirty (30) days of em-
ployment. Such list shall be provided to the Union
within seven (7) days after the completion of the em-
ployee’s thirtieth (30th) day of employment.
Section 20 of the contract provides for employer contribu-
tions to the Cap Makers’ Health Benefit Fund and to the Re-
tirement Fund.
Section 22 of the collective-bargaining agreement provides
that employees shall receive vacation pay based on their
years of service and calculated as a percentage of their earn-
ings during the previous calendar year.
Section 27 provides that:
A duly authorized officer . . . of the Union shall
have access to the factory . . . at all times, for the pur-
pose of investigating the conditions of the shops with
reference to sanitation, fire prevention and general safe-
ty, and for the purpose of ascertaining whether the pro-
visions of this Agreement are fully complied with
. . . .
On July 13, 1992, representatives of the Union and Re-
spondent concluded an agreement resolving disputes concern-
ing payment of dues and initiation fees, vacation pay and
health and pension contributions. On September 17, 1992,
the Union wrote to Respondent concerning delinquencies in
paying vacation benefits, remitting dues and initiation fees to
the Union and in submitting reports and contributions to the
Health Benefit and Retirement Funds.4 The letter recited the
agreement that Respondent would begin to comply with the
collective-bargaining agreement and would remit $500 week-
ly for arrears to the funds, but the letter stated that dues and
reports had not been forwarded and that the $500 payments
were not being made regularly. On November 1, 1992, the
Union wrote again to Respondent concerning its failure to
make reports and contributions to the funds and to otherwise
abide by the contract. On December 2, 1992, the Union sent
another letter to Respondent mentioning the previously dis-
cussed violations of the collective-bargaining agreement and
requesting information about sums recently paid to employ-
ees as vacation pay. On December 3, 1992, the Union began
the process leading to the appointment of an arbitrator to
hear the dispute relating to the failure to deduct and remit
initiation fees and dues, the failure to provide required re-
ports to the benefits funds, to pay vacation and certain other
matters. A subpoena duces tecum was served on Respondent
in the arbitration proceeding on March 9, 1993, requesting,
inter alia, the names and dates of employment for all new
employees from July 1, 1990, the initiation fees and dues de-
ducted from such employees, and records of vacation pay for
1992.
B. Denial of Information and Failure to Remit
Dues and Fees
Edgar deJesus, the manager of Local 2-H, testified that he
visited the Respondent’s shop in March 1993 and saw new
employees working there. DeJesus spoke to Pinchus
Kupferstein, the president and owner of Respondent, and told
him that he wanted information about the new employees
who had been working in the shop for over 30 days.
Kupferstein said he did not have the information, so deJesus
went on the shop floor and tried to get the information di-
rectly from the employees. DeJesus testified that he wanted
copies of the employees’ W-2 forms to be sure that proper
health and pension contributions had been made on behalf of
the employees, to monitor who was working in the factory,
and to ensure that vacation pay was paid to the employees
on a proper basis. DeJesus stated that the Union had infor-
mation about less than half of the employees on the shop
floor. When deJesus served the above-described March 9
subpoena on Kupferstein and told him that he needed infor-
mation for the arbitration, Kupferstein laughed at him. Al-
though Respondent was present at the arbitration hearing, it
has never provided the information to the Union.
On March 10, 1993, the Union informed Respondent in
writing that it had information that new employees had been
hired but that Respondent had not provided the Union with
their names, addresses, and social security numbers. The let-
ter requested that Respondent furnish the information to the
Union. Finally, on April 6, 1993, the Union sent a letter to
Respondent stating that it had received copies of the W-2
forms for only 18 of the 40 to 45 employees working in the
shop and requesting complete information by April 14. At-
tached to the letter was a list of employees for whom the
Union had no information beyond the day they began work.
The letter stated that if the information was not provided, the
Union would proceed with the grievance procedure. DeJesus
testified that this information was never provided.
DeJesus testified that based on the information he was able
to obtain, he believed that Respondent remitted dues to the
Union for the veteran employees for the entire contract pe-
riod ending in June 1993, albeit these dues were sent belat-
edly and only after repeated union complaints. However, Re-
spondent remitted dues for newly hired employees only from
January 1 to June 30, 1993. Even for the period in 1993, Re-
spondent did not report as required to the Union when it
426 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The funds conducted an audit which will be discussed below.
6 The checks came on a less-than-weekly basis, about three checks
per month.
7 Respondent did not file any petition to revoke the subpoena.
8 Bannon Mills, 146 NLRB 611 (1964).
9 Auto Workers v. NLRB, 459 F.2d 1329, 1336–1339 (D.C. Cir.
1972).
hired a new employee. Only after the Union discovered the
existence of a new employee on the shop floor, obtained an
authorization and dues-deduction card, and confronted the
Respondent with the information, did the Respondent deduct
and remit dues for that employee. DeJesus was certain that
he had never received any information about some new em-
ployees because they would not speak to him when he went
up to them on the shop floor. In this way, Respondent
evaded the requirements of the union-security clause of the
contract. DeJesus explained that he needed the employees’
W-2 forms because many employees had complained to him
that they were not receiving proper vacation pay. The only
way he could verify whether an employee’s vacation pay had
been properly computed was to examine the W-2 form which
would show the earnings for the calendar year.
DeJesus testified that he has not been permitted to exam-
ine the Employer’s payroll records nor has the Union audited
the Respondent’s books.5 The lack of information affects the
employees’ health benefits; the Union could not enroll the
employees in the health fund and no payments were made
on their behalf. As a result, the employees were not able to
receive health coverage.
C. Denial of Access
DeJesus testified that on February 3, 1993, he went to the
shop to speak to the workers. After telling Kupferstein that
he was visiting the factory and wanted information from the
workers, deJesus asked Kupferstein for the names of the new
workers whom he saw on the shop floor. Kupferstein refused
to give deJesus any information whereupon deJesus said that
he would get the information on the shop floor. Kupferstein
told him not to disrupt the factory; deJesus replied that he
would not even talk to anybody if Respondent would give
him the information he sought. DeJesus then proceeded to
speak to some employees on the shop floor individually. This
was a lengthy process because the employees did not speak
English and deJesus needed a translator. While deJesus was
with the second employee he was attempting to interview,
Kupferstein came up to him and said he was taking too much
time and disrupting the factory. DeJesus replied that if Re-
spondent had provided the information to the Union, he
would not be taking the time on the shop floor. Kupferstein
announced that he would call the police. According to
deJesus, between 30 and 40 employees were there when
Kupferstein made this statement. Nevertheless, deJesus
stayed and got the information he wanted. DeJesus heard that
the police came to the shop after he left.
D. Failure to Contribute to the Funds
Stewart Goldberg administers collections for the Cap Mak-
ers’ Union Health Benefit Fund and the Retirement Fund of
the Cloth Hat and Cap Industry of New York. Each em-
ployer covered by the collective-bargaining agreement is ob-
ligated to submit monthly reports and payments to the funds.
The reports are on forms provided by the funds and indicate
the names, social security numbers, earnings, and hours
worked of each employee for the month. Based on these re-
ports, the employees are eligible for health and pension bene-
fits. Goldberg testified that the last report and payment the
funds received from Respondent was for April 1992. In Au-
gust 1992, the funds began receiving $500 checks from Re-
spondent on a sporadic basis.6 However, no report accom-
panied these checks and Goldberg called Kupferstein and
asked for an explanation. Kupferstein replied that the checks
were for outstanding obligations. Goldberg stated that the
funds had no indication which employees were still em-
ployed by Respondent and had no information about newly
hired employees. Goldberg testified that the funds send re-
quests for payment and information to the Respondent
monthly.
Goldberg testified that the funds instituted an arbitration
proceeding against Respondent and were awarded the right to
conduct an audit of Respondent’s payroll documents. The
audit, conducted in July 1993, resulted in a finding that Re-
spondent had underreported or failed to report its payroll for
dates from 1990 to 1993. Goldberg stated that the checks for
$500 mailed sporadically by Respondent were never enough
to cover Respondent’s obligations to the funds. Thus, on No-
vember 3, 1992, the beginning of the 10(b) period applicable
to the instant case, Respondent was in arrears to the funds,
and at no time did the $500 checks bring Respondent up to
date. Although the documents placed into evidence do not
permit a finding of Respondent’s actual indebtedness for
each quarter beginning November 3, 1992, Goldberg’s testi-
mony was convincing that at all times from November 3,
1992, to the present, Respondent has failed to pay its entire
obligation to the funds. It must also be noted in this connec-
tion that Respondent has not at any time since November 3,
1992, submitted the required monthly reports to the funds
showing the names, hours, and earnings of the unit employ-
ees. Further, Respondent declined to comply with a subpoena
duces tecum served by the General Counsel which required,
inter alia, the production of the Company’s payroll books
and records and personnel files.7 At the instant hearing, I or-
dered that Respondent would be precluded from introducing
any evidence relating the matter requested in General Coun-
sel’s subpoena and I permitted General Counsel to introduce
secondary evidence relating to material that should have been
produced by Respondent pursuant to the subpoena.8 It fol-
lows that any failure on the part of General Counsel to prove
exactly the sums by which Respondent was in arrears at any
particular time after November 3, 1992, may be ascribed to
Respondent’s failure to produce those records which would
have shown how many employees were on the payroll and
what they earned. In fact, Respondent’s refusal to produce
the subpoenaed records which would have permitted General
Counsel to prove the amounts of arrears after November 3,
1992, leads me to infer that those records would have been
unfavorable to Respondent.9 Respondent can hardly complain
that I credit Goldberg’s testimony that at no time were the
sporadic $500 payments sufficient to meet Respondent’s ob-
ligations to the funds. The exact amounts due may be com-
puted during a later compliance proceeding.
427MBC HEADWEAR, INC.
10 Diane is also known as Bangamy Kouyate, his given name.
Diane is his friend’s name which he adopted so that he could work
without inviting questions about his immigration status. Diane admit-
ted that he was not working legally and he stated that Kupferstein
was aware of his status and had urged him to use a friend’s papers
to avoid trouble with the authorities. Contrary to the suggestion of
Respondent, I do not find that his irregular work status shows that
Diane’s testimony is untruthful. Indeed, Diane’s ready admission of
the facts convinces me that he is a truthful witness. I specifically
reject Respondent’s suggestion that any person working illegally in
this country is for that reason alone an incredible witness. Compli-
ance with the immigration laws should be enforced by the appro-
priate authorities. Working without the proper permit should by no
means be condoned, but a failure to adhere to the rules concerning
proper working papers does not require branding the transgressor a
liar. In this instance, moreover, Respondent encouraged Diane to use
someone else’s working papers.
11 Haidara’s given name is Mamadou Sarr. He used his friend’s
name and papers to come work in this country.
E. Alleged Violations of Section 8(a)(1) and (3)
Employee Sindou Cisse testified that he joined the Union
in November 1992. Cisse testified that in December 1992
and January 1993, his boss, Pinchus Kupferstein, often urged
him to abandon the Union. Kupferstein asked Cisse if he was
going to the Union and Cisse replied that he was going to
the Union for health benefits. Kupferstein told Cisse that the
company could give Cisse better health benefits than the
Union. In December 1992, Kupferstein told Cisse to think
about getting out of the Union; the Union only wanted his
money and it would not protect him. Kupferstein said that
he was the boss and that the Union had nothing to do with
the factory. By July, there would not be any more Union, ac-
cording to Kupferstein, because he would not sign any more
contracts with the Union. Kupferstein said that the Union
cost the factory a lot of money and caused a lot of problems
and that the factory would be closed. The 10(b) period for
these allegations commenced on November 3, 1992.
Employee Adboulaya Diane testified that he joined the
Union in September 1992.10 In November 1992, Kupferstein
called him into the office and asked why he wanted to go
to the Union. Kupferstein said the Union was no good and
had cost him $15,000. Kupferstein went on to state that the
Union took the employees’ money but could do nothing for
them. When Diane replied that the Union paid holiday and
vacation checks, Kupferstein promised that if Diane gave up
the Union, he would give the holiday and vacation checks
and give employees a big raise. In December, Kupferstein
called Diane to his office once more and told him that when
the collective-bargaining agreement expired there would be
no more contracts. The 10(b) period for these allegations
commenced on November 3, 1992.
Ibraham Haidara worked for Respondent from July 1990
until September 1992. He joined the Union in November
1991.11 Haidara testified that Kupferstein had told him not
to become a member of the Union; the Union would take his
money but could do nothing for him. In May and June 1992,
on various occasions in Kupferstein’s office, Kupferstein told
Haidara that he should have nothing to do with the Union
because the Union had cost him $15,000. In June 1992,
Kupferstein again told Haidara to leave the Union. When
Haidara told Kupferstein that a lot of other people were in
the Union, Kupferstein responded that he had heard that
Haidara was urging his fellow employees to join the Union.
Haidara denied that he had engaged in this activity.
Kupferstein then told Haidara that he would give him 2
months to leave the Union and that he would give Haidara
some money if he resigned. Kupferstein said that others
would follow Haidara’s example. Two months later,
Kupferstein asked Haidara if he was abandoning the Union.
When Haidara replied that he could not resign as his mem-
bership card had not expired, Kupferstein told him to tell the
Union he could no longer afford the dues. On September 19,
1992, Haidara arrived at work at 8:30 a.m. as usual.
Kupferstein came in between 9 and 9:30 a.m. and checked
Haidara’s work and said it was good. At this time, Haidara
was sewing flowers on hats. The method used was that an-
other worker marked the hat to indicate the place for attach-
ing the flowers and Haidara used the mark to guide him.
Haidara worked on more than 200 hats that day. At 4 p.m.,
Kupferstein returned to Haidara’s workstation and picked up
one hat, telling Haidara that it was no good. Haidara ex-
plained that this particular hat had come to him without any
mark for sewing the flowers, but Kupferstein was mad and
told Haidara to leave the job. Haidara explained again to
Kupferstein about the lack of a mark and he continued to
work until 6 p.m. The next day, Kupferstein came to
Haidara’s workstation at 9:30 a.m. and told him to leave; if
Haidara continued to work, he would not be paid. At this
point, Haidara left the factory. Haidara testified that there
had never been problems with his work before this time. Be-
cause of the requirements of Section 10(b), only the dis-
charge of Haidara is alleged as a violation. The rest of his
testimony was introduced to show Respondent’s knowledge
of Haidara’s support of the Union and Respondent’s hostility
to Haidara’s union membership.
E. Discussion and Conclusions
The uncontradicted testimony establishes that despite the
contractual provisions requiring Respondent to furnish the
Union with the names, addresses, and social security num-
bers of all newly hired unit employees, and despite the
Union’s requests for this information and for the employees’
W-2 forms both in writing by letters of December 2, 1992,
and March 10 and April 6, 1993, and by subpoena duces
tecum on March 9, 1993, Respondent never furnished the
Union with the employees’ names, addresses, and social se-
curity numbers nor with their W-2 forms. Although the
Union through its own efforts was able to obtain some of
this information belatedly, the Union never obtained com-
plete information concerning the unit employees. Nor did Re-
spondent respond to the Union’s repeated requests for infor-
mation about sums purportedly paid to employees as vaca-
tion pay. Manifestly, the Union was entitled to this informa-
tion which was necessary for it to carry out its duties. NLRB
v. Acme Industrial Co., 385 U.S. 432 (1967). Information
about unit employees, including their wages and hours, is
presumptively relevant. Further, information necessary to
process grievances must be turned over to the Union. By re-
fusing to provide information to the Union, Respondent vio-
lated Section 8(a)(5) and (1) of the Act.
The uncontradicted evidence shows that the Union had
been making constant efforts to bring Respondent into com-
pliance with its obligation to deduct and remit dues and initi-
ation fees. On December 2, 1992, the Union wrote to Re-
428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent concerning this matter and it instituted an arbitra-
tion proceeding to enforce the contract. The uncontradicted
evidence shows that Respondent was late in remitting dues
for the veteran workers although it had deducted those dues
from the employees’ paychecks. For newly hired workers,
Respondent deducted and remitted no dues or fees until
sometime in 1993, and it never deducted nor remitted dues
and fees for some employees whom the Union was not able
to interview. This unilateral change violated Section 8(a)(5)
and (1) of the Act. The charge relating to this violation was
served on Respondent on May 3, 1993, and the remedy is
therefore limited to a period commencing November 3, 1992.
However, the complaint is not barred in its entirety by Sec-
tion 10(b) as contended by Respondent. Although the Union
was aware long before May 3, 1993, that Respondent was
delinquent in its obligations under the collective-bargaining
agreement, Respondent was complying in some respects by
remitting dues for veteran employees in 1992. Further, the
Union was engaged in vigorous and repeated efforts to bring
Respondent into compliance with the contract. Thus, Re-
spondent purported to enter into a settlement of all outstand-
ing obligations in July 1992, and the Union spent several
months trying to obtain Respondent’s effectuation of that
agreement. Finally, it is well settled that each monthly failure
to deduct and remit dues to the Union was a separate viola-
tion of the Act. See Farmingdale Iron Works, 249 NLRB 98
(1980).
The uncontradicted testimony shows that on February 3,
1993, deJesus was obtaining information from an employee
on the shop floor when Pinchus Kupferstein confronted him
and announced that he would call the police because deJesus
was taking too much time. Kupferstein did not testify here
and there is no evidence that deJesus was taking too much
time nor disrupting the shop in any way. In fact, the only
record evidence shows that deJesus was obtaining informa-
tion to which the Union had a right but which Respondent
was failing to provide. Further, the collective-bargaining
agreement specifically authorized deJesus’ presence in the
factory. The record is undisputed that Respondent stated it
would call the police to put a stop to the union agent’s con-
versation with the employee on the shop floor. Respondent
thereby violated Section 8(a)(5) and (1) of the Act. Heck’s,
Inc., 293 NLRB 1111, 1116–1117 (1989).
The uncontradicted evidence shows that Respondent uni-
laterally failed to remit monthly reports of employee earnings
and failed to make proper contributions to the Health Benefit
Fund and the Retirement Fund. The funds sent requests for
employee reports and for payment to Respondent on a
monthly basis. I find that Respondent violated Section
8(a)(5) and (1) of the Act by failing to file monthly reports
and by failing to make monthly contributions from Novem-
ber 3, 1992.
The uncontradicted testimony shows that Kupferstein
asked employee Cisse if he was going to the Union and
promised Cisse that he would give Cisse better health bene-
fits than the Union did. On another occasion, Kupferstein
told Cisse to think about getting out of the Union;
Kupferstein said that there would not be any Union because
he would not sign any more contracts, that he was the boss
and the Union had nothing to do with the factory, and that
the Union cost a lot of money and the factory would be
closed. Respondent violated Section 8(a)(1) of the Act by
urging its employee to abandon the Union and promising
better health benefits if he did. In the context of the unlawful
promise, Kupferstein’s question whether Cisse thought of
going to the Union was coercive and constituted an unlawful
interrogation. Respondent also violated Section 8(a)(1) when
it threatened not to recognize the Union and not to sign a
contract. Finally, Respondent’s threat to close the factory and
its concomitant direction to the employee to think about get-
ting out of the Union constituted a violation of Section
8(a)(1).
The uncontradicted testimony shows that Kupferstein
promised Diane that he would give a raise if the employee
gave up the Union and that he asked Diane why he wanted
to go to the Union; Respondent coercively interrogated the
employee and promised him a benefit in violation of Section
8(a)(1) of the Act. Respondent also violated Section 8(a)(1)
when Kupferstein told Diane that once the collective-bargain-
ing agreement expired there would be no more contracts.
The uncontradicted evidence shows that Respondent was
well aware of Haidara’s support for and membership in the
Union. Kupferstein urged Haidara to abandon the Union and
to take other employees out of the Union with him. The evi-
dence shows that Respondent was aware that Haidara had
not abandoned the Union as Respondent had directed.
Haidara’s testimony, which was not controverted by any Re-
spondent witness, proves that Kupferstein had never com-
plained about the quality of his work until September 19,
1992, when Haidara sewed a flower on a hat that did not
contain the proper marking to guide Haidara. Although
Haidara explained to Kupferstein that the hat had not been
marked, Kupferstein discharged him. Given Respondent’s
knowledge of and open hostility to Haidara’s support for and
activities in behalf of the Union, and given Respondent’s ex-
pressed wish that Haidara lead other employees out of the
Union, I find that Respondent violated Section 8(a)(3) and
(1) when it discharged Haidara for a single event that was
caused by another employee’s mistake. I find that Respond-
ent used the improperly placed flower as a pretext to rid
itself of a union supporter whose example kept other employ-
ees in the Union.
CONCLUSIONS OF LAW
1. Cap Makers’ Union Local 2-H, New York-New Jersey
Joint Board, Amalgamated Clothing and Textile Workers
Union, AFL–CIO is the exclusive collective-bargaining rep-
resentative of Respondent’s employees in the following unit:
All production employees employed by Respondent
at its Franklin Avenue facility, excluding all office cler-
ical employees, watchmen, guards and supervisors with-
in the meaning of the Act.
2. By refusing to provide to the Union the names, address-
es, and social security numbers of all newly hired unit em-
ployees, by refusing to provide to the Union the W-2 forms
for all employees, and by refusing to provide the Union with
information about vacation payments made to employees,
Respondent violated Section 8(a)(5) and (1) of the Act.
3. By failing to deduct dues and initiation fees and remit
them to the Union, Respondent violated Section 8(a)(5) and
(1) of the Act.
429MBC HEADWEAR, INC.
12 If no exceptions are filed as provided by Sec. 102.46 of the
Boards Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
4. By threatening to deny access to the Union on February
3, 1993, Respondent violated Section 8(a)(5) and (1) of the
Act.
5. By failing to file monthly reports and make monthly
contributions to the Cap Makers’ Union Health Benefit Fund
and the Retirement Fund of the Cloth Hat and Cap Industry
of New York, Respondent violated Section 8(a)(5) and (1) of
the Act.
6. By urging its employees to abandon the Union, by
promising its employees a raise and improved health benefits
if they abandoned the Union, by interrogating its employees
about their support for the Union, by threatening to close the
factory if the employees continued to support the Union, and
by threatening not to recognize and bargain with the Union,
Respondent violated Section 8(a)(1) of the Act.
7. By discharging Ibraham Haidara because he belonged to
and supported the Union, Respondent violated Section
8(a)(3) and (1) of the Act.
8. The General Counsel has not shown that Respondent
engaged in any other violations of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged an em-
ployee, it must offer him reinstatement and make him whole
for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer
of reinstatement, less any net interim earnings, as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987). Any questions concerning Haidara’s reinstate-
ment and backpay which may be subject to his immigration
status are reserved for the compliance proceeding. Ideal Dye-
ing Co., 300 NLRB 303, 322 (1990). See Sure-Tan, Inc. v.
NLRB, 467 U.S. 883, 902–903 (1984).
Respondent must make whole its employees by transmit-
ting to the Cap Makers’ Union Health Benefit Fund and the
Retirement Fund of the Cloth Hat and Cap Industry of New
York the required contributions which Respondent unlaw-
fully withheld, and Respondent must make the employees
whole by reimbursing them for any losses ensuing from Re-
spondent’s unlawful failure to make the contributions, with
interest computed in the manner prescribed by New Horizons
for the Retarded, supra. See Merryweather Optical Co., 240
NLRB 1213 (1979); Kraft Plumbing & Heating, 252 NLRB
891 (1980).
Respondent must make whole the Union for any loss of
dues and initiation fees suffered, with interest, as a result of
Respondent’s failure to comply with the collective-bargaining
agreement between Respondent and the Union. El Centro
Community Mental Health Center, 266 NLRB 1 (1983).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondent, MBC Headwear, Inc., Brooklyn, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any
employee for supporting Cap Makers’ Union Local 2-H,
New York-New Jersey Joint Board Amalgamated Clothing
and Textile Workers Union, AFL–CIO, or any other union.
(b) Refusing to provide to the Union the names, addresses,
and social security numbers of all newly hired unit employ-
ees, refusing to provide to the Union the W-2 forms for all
employees, and refusing to provide the Union with informa-
tion about vacation payments made to employees.
(c) Failing to deduct and remit dues and initiation fees to
the Union.
(d) Threatening to deny access to the Union.
(e) Failing to file monthly reports and make monthly con-
tributions to the Cap Makers’ Union Health Benefit Fund
and the Retirement Fund of the Cloth Hat and Cap Industry
of New York.
(f) Urging its employees to abandon the Union, promising
its employees a raise and improved health benefits if they
abandon the Union, interrogating its employees about their
support for the Union, threatening to close the factory if the
employees continue to support the Union, and threatening not
to recognize and bargain with the Union.
(g) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Ibraham Haidara immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his se-
niority or any other rights or privileges previously enjoyed,
and make him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against him in
the manner set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharge and notify the employee in writing that this has
been done and that the discharge will not be used against
him in any way.
(c) Provide to the Union the names, addresses, and social
security numbers of all newly hired unit employees, W-2
forms for all employees and information about vacation pay-
ments made to employees.
(d) Make whole the Union for any loss of dues and initi-
ation fees suffered as a result of Respondent’s unlawful fail-
ure to comply with the collective-bargaining agreement.
(e) Grant access to the Union to the factory according to
the terms of the collective-bargaining agreement.
(f) Make whole the employees for its unlawful failure to
make contributions and file the monthly reports and transmit
the contributions to the Cap Makers’ Union Health Benefit
Fund and the Retirement Fund of the Cloth Hat and Cap In-
dustry of New York in the manner set forth in the remedy
section above.
(g) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
amount of backpay and other sums due to the employees and
the Union under the terms of this Order.
(h) Post at its facility in Brooklyn, New York, copies of
the attached notice marked ‘‘Appendix.’’13 Copies of the no-
tice, on forms provided by the Regional Director for Region
29, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(i) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting Cap Makers’ Union Local 2-H,
New York-New Jersey Joint Board Amalgamated Clothing
and Textile Workers Union, AFL–CIO, or any other union.
WE WILL NOT coercively question you about your union
support or activities.
WE WILL NOT refuse to provide to the Union the names,
addresses, and social security numbers of all newly hired unit
employees, the W-2 forms for all employees and information
about vacation payments made to employees.
WE WILL NOT fail to deduct and remit dues and initiation
fees to the Union.
WE WILL NOT threaten to deny union agents access to the
shop.
WE WILL NOT fail to file monthly reports and make
monthly contributions to the Cap Makers’ Union Health Ben-
efit Fund and to the Retirement Fund of the Cloth Hat and
Cap Industry of New York.
WE WILL NOT urge you to abandon the Union, promise
you a raise and improved health benefits if you abandon the
Union, threaten to close the factory if you support the Union,
nor threaten not to recognize and bargain with the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Ibraham Haidara immediate and full rein-
statement to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously enjoyed
and WE WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any net in-
terim earnings, plus interest.
WE WILL notify him that we have removed from our files
any reference to his discharge and that the discharge will not
be used against him in any way.
WE WILL provide to the Union the names, addresses, and
social security numbers of all newly hired unit employees,
W-2 forms for all employees, and information about vacation
payments made to employees.
WE WILL make whole the Union for dues and initiation
fees which we unlawfully failed to transmit.
WE WILL grant access to union agents to visit the factory.
WE WILL make you whole, with interest, for any losses
you may have suffered as a result of our unlawful failure to
make contributions to the union health and pension funds,
and WE WILL file monthly reports and make contributions to
those funds.
MBC HEADWEAR, INC.