Stern Made Dress Co., Inc.

National Labor Relations Board - Board Decisions

Jun 10, 1975

218 N.L.R.B. 372 (N.L.R.B. 1975)

372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stern Made Dress Co., Inc. andJoint Board of Cloak,
Shirt and Dressmakers Union, International La-
dies Garment Workers Union, AFL-CIO. Case 1-
CA-9776
June 10, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On January 8, 1975, Administrative Law Judge
Robert E. Mullin issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed a
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions only to the extent consistent
herewith.
The Board has long held that it will not effectuate
the purposes of the Act to require an employer to
bargain in a unit consisting of only one employee.
Virginia-Carolina Chemical Corporation, 104 NLRB
69 (1953). Here, even having affirmed all the
Administrative Law Judge's findings of fact, we note
that on all critical dates the appropriate unit
consisted of only one employee.
A short summary of the findings of the, Administra-
tive Law Judge will indicate why we must reverse in
this case. According to the Administrative Law
Judge, in 1968, Respondent closed down its opera-
tion and became inactive, though its corporate shell
remained in existence. Prior to its closing in 1968,
Respondent was a member of the Boston Apparel
Guild, an employer association that maintained
collective-bargaining relations with the Union. In
early 1969, Respondent resumed operations as a
dress manufacturer and hired one employee, Ada
Quintiliana, a samplemaker and a union member.
Respondent informed the Union that it was hiring
Quintiliana for alteration and seamstress work (i.e.,
nonbargaining unit work). In fact, Quintiliana was
used as a samplemaker, which was a bargaining unit
job. In February 1973, upon learning of Respon-
dent's operating as a dress manufacturer, Milton
Kaplan, manager of the Joint Board, met with
Harold Starkman, Respondent's president. Kaplan
informed Starkman that because of his resumption of
dressmaking operations he would have to become
part of the union contract. Kaplan told Starkman
that a new, contract was then being negotiated and
that he would have to sign it when negotiations had
been completed. Starkman informed Kaplan that he
would sign the new agreement when it was ready.
In March 1973, Respondent hired Sam Lauria.
Lauria was a union member and performed cutting
work, also bargaining unit work. However, Lauria
voluntarily quit Respondent's employ on July 27,
1973.
According to testimony credited by the Adminis-
trative Law Judge, in August 1973, Kaplan again met
with Starkman and explained the various provisions
of the new contract. Starkman assured Kaplan that
he would sign the agreement as soon as written
copies were available.
Early in January 1974, Kaplan telephoned Stark-
man and told him that the new contract was ready
for Starkman's signature. Starkman told Kaplan that
he would not sign the contract.
The Administrative Law Judge based his 8(a)(5)
fording on Starkman's refusal to sign the written
agreement in January 1974. However, in August
1973, when Starkman agreed to sign the newly
negotiated contract, Respondent had only one
bargaining unit employee. Again, in January 1974,
when Starkman refused to sign the written agree-
ment, Respondent had only one bargaining unit
employee. There is no contention that Lauria's
departure was other than a voluntary resignation.
Also, based on the record before us, we cannot
conclude that Respondent's reduction in force is only
temporary. We note that between Respondent's
resuming operations in 1969 and the hearing dates in
October 1974, Respondent has had a one-man unit at
all times except for Lauria's employ for 4 months in
1973. Therefore, inasmuch as the Board will not
require an employer to bargain in a unit consisting of
only one employee, we shall dismiss the complaint in
its entirety. Westinghouse Electric Corporation, 179
NLRB 289 (1969).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
218 NLRB No. 66
DECISION
STATEMENT OF THE CASE
STERN MADE DRESS CO., INC.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
ROBERT E. MULLIN, Administrative Law Judge: This
case was heard on October 29-30, 1974, in Boston,
Massachusetts , pursuant to a charge duly filed and served,'
and a complaint issued on May 30, 1974. The complaint
presents questions whether the Respondent violated
Section 8(a)(1) and (5) of the National Labor Relations
Act, as amended. In its answer, and amended answer, the
Respondent conceded certain facts with respect to its
business operations, but denied all allegations that it had
committed unfair labor practices.
At the trial, all parties were represented by counsel. All
were given full opportunity to examine and cross- examine
witnesses and to file briefs. At the conclusion of the trial,
oral argument was had by all parties. Briefs were submitted
by the General Counsel on December 12, and by the
Respondent on December 16, 1974.
Upon the entire record in the case, including the briefs of
counsel , and from observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Massachusetts corporation. At the
time of hearing it had its principal place of business at
Waltham, Massachusetts, where it is engaged in the
manufacture, sale, and distribution of maternity and
sportswear wearing apparel. In the course and conduct of
its business the Respondent purchases and transports in
interstate commerce large quantities of cloth and ships
from its plant in interstate commerce substantial quantities
of wearing apparel. It receives goods valued in excess of
$50,000 annually from points outside the Commonwealth
of Massachusetts and ships goods valued in excess of
$50,000 annually to points outside that State. Upon the
foregoing facts, the Respondent acknowledges, and I find,
that Stern Made Dress Co., Inc., is engaged in commerce
within the meaning of the Act.
IL THE LABOR ORGANIZATION INVOLVED
Joint Board of Cloak, Shirt and Dressmakers Union,
International Ladies Garment Workers Union , AFL-CIO,
herein Union or Joint Board , is a labor organization within
the meaning of the Act.
i The charge was filed on April 19, 1974.
2 Stork-Time, however, bought from other suppliers as well and did not
rely solely on Stern Made for its merchandise. The Union did not claim to
represent any of the Stork-Time employees.
3 As the result of an acquisition made some years earlier Stern Made also
had a collective-bargaining agreement with the New England District
Council of the Garment Workers. This came about in 1962 when Stern
Made bought Jess Sharaf Company, a partnership operated by Starkman's
mother-in-law and brother-in-law Thereafter, Stern Made continued this
373
Harold Starkman testified that since 1956 he has been
the president and sole owner of the Respondent. Prior to
that time the corporation had been held and managed over
an extended period by his father-in-law. For many years
the company, as a member of the Boston Apparel Guild,
herein Guild, an employer association, maintained collec-
tive-bargaining relations with the Union.
On taking over control and management of the Respon-
dent in 1956, Starkman moved the plant from its location
in Boston to a building in South Boston which he and his
wife owned. The Respondent remained in business at that
location with approximately 35 employees until about June
1968.
In 1968, and following a series of business reverses,
Starkman found that his corporation was on the verge of
insolvency. He thereupon laid off all employees, sold the
machinery and equipment, and closed the plant in South
Boston. For some months thereafter, Stem Made was
completely inactive. However, the corporation was not
dissolved. Starkman testified that he. kept the corporate
shell in existence because it had a large tax loss to realize.
In the meantime, Starkman's wife was a substantial
stockholder in, and the operator of, Stork-Time, a chain of
retail shops which specialized in maternity clothing. Mrs.
Starkman owned 25 percent of the stock in Stork-Time, a
brother held another 25 percent, and an uncle owned the
remaining 50 percent. Prior to that time in 1968 when
Starkman closed the South Boston plant, Stork-Time was a
primary retail outlet for maternity wear manufactured by
Stem Made.2
In the pre-1969 period Stem Made had a union-shop
contract with the Joint Board.3 This required the manufac-
turer to make quarterly payments to the Union's health
and welfare funds based on a certain percentage of gross
payroll.4 At the time when Starkman' closed his plant the
Company owed these funds a total of over $2,100.
Starkman testified that he notified 'Philip Kramer, then
manager of the Joint Board, that Stern Made "was going
out of the dress business" 5 and that he thereafter
negotiated an adjustment which reduced the Union's claim
by $1,000.
Several terms common to the garment industry which
appear' in the record need definition. In this connection,
Milton Kaplan, the incumbent manager of the Joint Board,
testified credibly and without contradiction, as follows: A
manufacturer generally has his own factory in which the
materials are cut and thereafter stitched together, pressed,
and finished. Sometimes he contracts out various phases,
or all, of the work to contractors. A contractor runs his own
factory where he manufactures garments for sale to jobbers
business as Stem Made Dress Co., d/b/a Jess Sharaf. The latter had a
contract with the New England District Council of the Garment Workers
which it maintained until mid-1968 when the South Boston plant was
closed.
4 These payments were actually made to the Union's Unemployment
Severance Benefits Fund, the Health and Welfare Fund, and the Retirement
Fund. In 1968 , the required payments were about 12 percent of the
employer's gross payroll for each quarter.
5 The quotation is from Starkman's testimony.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and jobber manufacturers. A jobber manufacturer is, in
effect, a middle man who purchases garments finished by
other manufacturers and resells them to retail outlets .6
Early in 1969 Starkman resumed operations as a dress
manufacturer and by use of Stem Made as the corporate
shell . Although the collective-bargaining agreement with
the Union still had another year to run, the Union was not
notified that the Respondent had resumed operations. This
time, Stem Made did not open a complete factory. Instead,
Starkman hired only one employee as a samplemaker, did
the design work himself, and secured the services of Linda
Sportswear, a contractor, to perform the actual manufac-
ture of the dresses . For a time he had a small amount of
floor space at a location in New Bedford, Massachusetts.
Although he and the samplemaker worked there, Starkman
used the Stork-Time office in Boston as the Company's
business address. Starkman estimated that he remained in
New Bedford for about a year and a half, after which time
he secured factory space in Waltham, Massachusetts, and
relocated there. Stem Made was still using the latter
premises at the time of the hearing. After moving to
Waltham, Stem Made continued as a dress manufacturer
with the same arrangement as it had in New Bedford, with
only one or two employees, other than Starkman himself.
There it relied on various contractors, including Logan
Sportswear, to manufacture the dresses which it sold. Since
about 1970, Stem Made also has had showroom space in
New York City for the promotion of its products.
Starkman testified that when the Respondent resumed
operations in 1969 it was as a nonunion dress manufactur-
er. He was no longer in contact with the association and
was not represented in ' its collective bargaining with the
Joint Board. The first and, for a time, the only employee
whom Stem Made had was Ada Quintiliana. She had been
an employee of the Respondent for many years before the
closure in 1968. She was also a longtime member of the
Union. Early in 1969, Starkman requested permission from
the Joint Board to hire Quintiliana. Kaplan, manager of
the Joint Board, credibly, and without contradiction,
testified that Starkman told him that he wanted Quintiliana
for alteration, or seamstress, work in the Stork-Time stores
and that it was on that basis and as an accommodation to
the employee-member that permission was granted by the
Union for her employment.? It was undenied that from the
time of her hire she performed no alteration work for
Stork-Time, but worked -instead for Stem Made as a
samplemaker . This, of course, was a bargaining unit job in
the manufacturing process. The Respondent regularly
made the requisite payments on her behalf to the Union's
benefit funds. In so doing it used stationery which it had
used prior to the closure of the South Boston plant.
However, the Stork-Time address, was stamped on the
letterhead, and, on the bottom of some sheets, where there
6 Occasionally, however, a jobber manufacturer may also manufacture
some of the garments himself.
7 To protect her rights to a union pension and the Joint Board 's health
and welfare benefits , it was necessary for a nonunion employer to secure the
Union's approval before hiring such an employee. Of course, throughout her
employment, the employer was required to make the regular quarterly
payments to the Union 's funds to provide coverage for the employee under
the Union's benefit plans.
8 Jesse Drucker, administrator of funds for the Joint Board , testified that
appeared a reference to a "Boston factory" those words
were crossed out.
A conventional provision in the Joint Board's collective-
bargaining agreement with manufacturers allows the
Union to audit the books of the manufacturer with a view
to ascertaining, inter alia, the amounts paid to contractors.
In the event both the manufacturer and the contractor
have a contract with the Union, the Joint Board's contract
requires that the manufacturer make all the fringe benefit
payments due the Union for employees of the contracting
shop. In the event the union contractor is working for a
nonunion jobber manufacturer, then the contractor must
make such payments himself.
During the latter part of 1972, or early in 1973, the
Union audited the books of Logan Sportswear and found
that the latter had been doing a substantial amount of
work for Stem Made.8 Kaplan testified that this was the
first knowledge that the Union had of the Respondent's
return, to the dress manufacturing business. As a result,
Kaplan telephoned Starkman and asked that he meet with
him at the Joint Board office.
The meeting occurred about the second week in
February 1973.9 It was undenied that a substantial portion
of this meeting involved a discussion of the Respondent's
liability to the Union for fringe benefit payments arising
out of its relationship with Logan Sportswear. Starkman,
with many years' experience in the garment industry,
conceded that he was fully aware of this longstanding rule.
Kaplan testified as follows: At the outset of the
conference he told Starkman, "I see you are back in
business, Harold, and you are back in manufacturing." To
this Starkman responded, "I am just making a few little
things for my store." Whereupon Kaplan told him
"according to our figures it is more than a few little things
for your store. You are back in business , you have got to be
part of the agreement again." Starkman's reply was that
that would be "no problem." According to Kaplan, he told
Starkman that, since the current agreement with the
Boston Apparel Guild was expiring on February 15 and
negotiations on a new contract had begun, it would be
meaningless to have him sign before the new agreement
had been worked out. Kaplan testified that Starkman
pointed out that, although he was no longer a member of
the Guild, Stem Made could be considered as an
independent union shop. According to Kaplan, he assured
Starkman that as soon as the new agreement was ready he
could sign it, and that the latter thereupon stated `,`no
problem. When the agreement is ready I will sign it."
Starkman acknowledged that at this meeting he admitted
that the Company owed the Union money on the fringe
benefit payments which should have been made on the
work done for Stem Made by Logan Sportswear. He
testified that the Respondent had started subcontracting
when a nonunion manufacturer deals with a union contractor shop the Joint
Board, of course, is able to audit only the union shop.
9 Neither Kaplan nor Starkman could fix the exact date of their meeting.
Kaplan testified that it was "around the second week" in February.
Starkman thought that it was in mid-February, or later. Subsequent to the
meeting Kaplan wrote Starkman a letter dated February 15, 1973, in which
he referred to "our recent meeting ." The letter provides substantial
corroboration of Kaplan's testimony that the meeting occurred early in the
month of February.
STERN MADE DRESS CO., INC.
with Logan in 1971; that under the terms of their
arrangement Stern Made supplied the samples, the
patterns, and the piece goods; and that from these Logan
cut and made the garments. According to Starkman, for
several months, Logan, a union contractor, paid the Joint
Board the cost of the fringe benefits performed on Stern
Made work. Starkman testified, however, that sometime-in
1972 Logan informed him that because of its own financial
problems it would be better if Stem Made paid directly to
the Union all fringe benefits that were due.
According to Starkman, he suggested to Kaplan at this
meeting that the Union agree to a compromise settlement
of the amount owed, but that Kaplan was adamant and
insisted that the Company would have to pay the bill in
full.11° Starkman conceded that Kaplan told him at this
time that the Union was investigating every contractor
with whom Stem Made had done business and that the
Union would bill him for the entire amount of the fringe
benefit payments due. Starkman testified that he finally
agreed to pay the Union $400 a month and that he further
agreed to stay current with his fringe benefit obligations.
Starkman denied that he agreed to sign the union contract
or that there was any discussion of the upcoming
negotiations. On cross-examination, however, he conceded
that Kaplan raised the subject and asked that he sign the
Joint Board agreement. According to Starkman, after
Kaplan told him that he would have to sign the agreement,
he closed the subject for the time being with the comment
"Let's put that off' and the matter was left at that stage.
At the trial, Starkman denied that he agreed to sign the
Joint Board contract. According to his testimony, at that
time he was veryanxious to get Kaplan's permission to hire
a cutter, one Simone Lauria, that Lauria would not come
with Stern Made unless the Union granted permission, and
that Stern Made promised- to pay the Union $400 a month
"in exchange ... [for] the right to hire Sam Lauria." 11
From Kaplan's testimony and a review of correspond-
ence between the parties immediately after the February
meeting it is evident that the Respondent agreed to make
the $400-per-month payment solely for the liquidation of
the Union's claim for unpaid fringe benefits due on work
sent to Logan Sportswear and other contracting shops. In a
letter dated February 15, 1973, Kaplan wrote:
Dear Mr. Starkman:
As per our recent meeting at the Union Office, 33
Harrison Avenue, Boston, you agreed to 'pay $400 per
month, effective 2/1/73 in order to liquidate the fringe
benefits due for work sent to your contracting shops.
Fringes are due for the following:
Arlene May Co., 7/20-8/27/71 - $334.98
Piccento Sportswear Co., 4/7-9/13/72 - $585:18
Logan, Sportswear Co., 4/1/71-6/30/72 - $5,253.52
Total - $6,168.68
In addition, you agreed to pay your current
obligations. The above amounts are subject to audit.
10 The amount due the Union on work done by Logan Sportswear was in
excess of $5,000.
375
Very truly yours,
Milton Kaplan, Manager
In a letter dated February 23, the Respondent questioned
certain figures in the Union's earlier letter and asked that
the records be corrected accordingly.
The entire letter read as follows:
Boston Joint Board
33 Harrison Avenue
Boston, Mass. 02111
Att. Mr. Milton Kaplan
Dear Sir:
With reference to your letter of February 15, we are
enclosing herewith check for $400.00 on account of
fringe benefits due for work done by our contractors.
[Emphasis supplied.]
In checking our records, we find that on Arlene May
Co., fringe benefits of 12-1/2% were added to their
charges and were paid by us. We are enclosing copy of
one of their bills showing this item as added and paid.
Also, on Logan Sportswear Co. we paid them
$50790.35 for work done from 4/1/71-6/30/72, at 10%,
amount due is $5079.03.
We shall appreciate it if you will change your records.
Yours very truly,
STERN MADE DRESS CO. INC.
(sgd) Edith Goldman for
H. M. Starkman
Enc.
Kaplan testified that the subject of Lauria was not raised
until March, when Starkman telephoned to request
permission to hire that individual, a cutter working for
Logan Sportswear. According to Kaplan, he assured
Starkman that the Union had no objection. Lauria, in fact,
was hired by Stem Made on March 19, 1973, to work as a
cutter in the Respondent's shop in Waltham. At the time
Lauria was earning $5 an hour working for Logan and
Starkman paid him the same wage when he came to work
for Stem Made. Starkman conceded that Lauria was a
competent worker, but not outstanding. It is inconceivable
that Starkman would have agreed to pay the Union $400 a
month simply to secure Lauria's services. From Kaplan's
testimony and a review of the correspondence between the
parties immediately after the February meeting it is
evident, and I find, that the subject of Lauria was never
raised at that time and that the Lauria matter was not
discussed until Starkman and Kaplan had a telephone
conversation in March. Not only was Starkman's testimo-
ny incredible in his assertion that at the February meeting
he promised the Union $400 a month solely for the right to
11 The quotation is from Starkman's testimony.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hire a cutter, it was similarly incredible in his declaration
that at the same time he did not promise Kaplan that he
would resume collective-bargaining relations with the
Union. On the basis of the foregoing findings and the
demeanor of the witnesses at the hearing, it is my
conclusion that at the meeting in February, in addition to
committing the Respondent to pay $400 a month to
liquidate its financial obligation to the Union for work
done in contract shops before February 1973, Starkman
also promised that the Respondent would make further
payments to the Union for fringe benefits owing on current
contracts with contractors and that, when the new
collective-bargaining agreement was negotiated between
the Joint Board and the Guild, Stem Made would sign it as
an independent union shop.
As found earlier, Lauria began work for the Respondent
on March 19, 1973. Since Ada Quintiliana continued on as
the samplemaker, the Respondent then had two members
of the Union in its employ. Both Kaplan and Starkman
testified that throughout the spring and summer of 1973
the Respondent made all the requisite fringe benefit
payments to the Union for the coverage of both Quintilia-
na and Lauria. Starkman testified that after Quintiliana
started her employment she frequently had an assistant
who spent most of her time working on patterns.12 Kaplan
testified, and his testimony was corroborated- by the
language of a collective-bargaining agreement between the
Joint Board and the Boston Apparel Guild, that the unit
description in their conventional contract covered both
cutters and samplemakers.
Although the Respondent agreed in February 1973 to
pay the Joint Board $400 monthly, it does not appear that
these payments were forthcoming promptly. In a letter
dated April 2, 1973, Jesse Drucker, administrator of funds
for the Joint Board, wrote Starkman to complain that no
payments had been made on that obligation. From the
record it appears that although the Respondent regularly
made the fringe benefit payments for both Lauria and
Quintiliana, the payments of $400 a month pursuant to the
agreement made in February were slow in coming.
Drucker testified that the last check for $400 was received
on August 27, 1973. On-the latter date the Respondent also
made the last fringe benefit payment on behalf of Simone
Lauria. Lauria had quit working for Stem Made on July
27, 1973.
According to Kaplan, when Starkman agreed in Febru-
ary to accept the Joint Board contract with the Guild he
pointed out to him that this meant Stem Made was then a
union shop and obligated to make fringe benefit payments
on work that was then being done for the Company in
contracting shops. In the record these were referred to as
"current payments." Kaplan testified that in August he
asked Starkman to meet with him at the Union's office and
that Starkman did so. According to Kaplan, he sought this
meeting to protest the Respondent's delinquency as to its
"current payments" and also to inform Starkman that the
Guild and the Joint Board had agreed in substance on the
terms of a new collective-bargaining agreement although
the contract had not yet been reduced to writing. Kaplan
12 From Starkman's testimony it would appear that none of Quintiliana's
assistants remained an employee for very long. He characterized them as a
testified that, after he explained the various provisions of
the new agreement with the Guild, Starkman assured him
that he would sign it when the written version became
available and that in the meantime he would resume
making the "current payments." Kaplan's testimony as to
this meeting was corroborated by Drucker who testified
that he was present throughout most of the conference.
Starkman, on the other hand, denied having any meeting
with Kaplan and Drucker in August 1973, and he denied
having discussed anything about a contract with Kaplan at
that time. He further denied that he agreed to sign a union
contract on any occasion in August 1973. Upon considera-
tion of the foregoing testimony and the demeanor of the
witnesses it is my conclusion that Kaplan and Starkman
did meet at the Union's office in August, as Kaplan
testified, and that both Kaplan and Drucker testified
credibly as to the discussion which ensued.
Starkman acknowledged that during August he did have
a telephone conversation with Kaplan. According to
Starkman, Kaplan telephoned him after Lauria left his job
at Stem Made_ and the -Company quit paying fringe
benefits for him. Starkman testified that at this time he told
Kaplan that he had paid the union assessments because he
wanted Lauria as a cutter and when the Union gave Lauria
permission to secure other employment he saw no reason
for continuing the payments. According to Starkman,
Kaplan tried to raise the subject of a contract in their
telephone conversation, but that he refused to discuss the
matter. Kaplan testified that' this telephone call was
initiated by Starkman after Lauria left Stem Made for
another job and that it was solely concerned with
Starkman's dismay about Lauria's departure. According to
Kaplan, in-this conversation Starkmanberated both him
and the Union and alleged that they,,had caused him to
lose Lauria's services.
Early in. January 1974, Kaplan telephoned- the Respon-
dent. He testified that-when he reached Starkman on the
telephone he told him that the ,collective-bargaining
contract was then ready for his signature. According to
Kaplan, Starkman answered "look, I am not signing no
agreement, get off my back, don't bother, me," and
abruptly broke off the conversation. Starkman testified
that when Kaplan asked whether he would sign a, contract
"I said, no, and . . . hung up without listening to-whatever
he said after that."
According to Kaplan, the following week he telephoned
Starkman again, calling the same number as previously.
This time, however, the operator told him that the number
had been changed and was no longer , listed. Kaplan
credibly testified that he made several other attempts to
contact Starkman by telephone, including a call to his New
York showroom, but in each instance he was unsuccessful
and although he asked that Starkman call hide, back, his
calls were never returned.
At the hearing the Respondent endeavored to establish
that the change to an unlisted telephone number for Stem
Made was effected to prevent Lauria, then an exemployee,
from continuing 'his' practice of telephoning his former
colleagues while they were at work. However, on cross-
succession of "girls out of designing school" whom he hired "for a few
months" at a time.
STERN MADE DRESS CO., INC. 377
examination, Starkman conceded that the number was
changed after Kaplan's telephone call, that although he
had been in business since 1956 he had never had an
unlisted number prior to January 1974, and finally, he
acknowledged that although he had earlier testified that he
did it because of Lauria, "I didn't particularly care to talk
to Milton [Kaplan] either." In view of the foregoing, it is
my conclusion that the Respondent resorted to an unlisted
telephone number to avoid the necessity of talking with
Kaplan.
In a letter dated March 1, 1974, Edward Milano, the
supervisor for the New England Department of the Union,
wrote as follows to Starkman:
Dear Mr. Starkman:
When you were under contract with this Union you
went out of business and, ostensibly, you were not to
re-enter. Within a very short time you again went into
business and proceeded to operate as a non-Union
firm. It has occurred' to me that this whole maneuver
might very well have been a subterfuge.
There are laws in this country that forbid moving to
escape a Union and my lawyers advise that we do have
recourse through the National Labor Relations Board
of the United States Government. They were inclined
to proceed, but I asked them to hold off until such time
as I could discuss the whole matter with you.
Consequently, I ask that you call me for the purpose of
discussion this whole matter.
There is also the question of Health and Welfare
monies that you owe to the Boston Joint Board. I am
told that you made an agreement to pay Health and
Welfare and subsequently reneged on the Agreement.
Mr. Starkman, to avoid any difficulties, I suggest
that you call hie at your earliest convenience.
Very truly yours,
Edward Milano
New England ' Supervisor
There was no evidence in the record that the Respondent
ever responded to the foregoing letter from Milano. On
April 19, 1974, the Union filed the charge on which the
complaint in the instant case is grounded.
B. The Alleged Violations of Section 8(a)(5);
Findings and Conclusions With Respect Thereto
The General Counsel alleges that in January 1974 the
Union requested that the Respondent bargain collectively,
that it asked that the Respondent sign and be bound by the
contract entered into between the Joint Board and the
Guild, that the Respondent had earlier agreed to sign this
agreement as an independent manufacturer, but that in
January 1974 the Respondent refused to do so, and that by
this conduct it violated Section 8(aX5) and (1) of the Act.
These allegations are denied by the Respondent in their
entirety.
1. The appropriate unit and the majority issue
The General Counsel alleged that all employees at the
Respondent's plant in Waltham, including cutters, pres-
sers, operators, finishers, examiners, cleaners, floor sample-
makers, drapers, packers, push boys, piece goods workers,
general workers, pickers, chargers, checkers, and receivers,
but excluding all guards and supervisors as defined in
Section 2(11) of the Act, constitute a unit appropriate for
the purpose of collective bargaining within the meaning of
Section 9(b) of the Act. The foregoing is a conventional
unit for a plant in the garment industry, and it is now
found appropriate in the present case.
The Union first sought recognition and bargaining in
February 1973 when Kaplan met with Starkman. At that
time Quintiliana, the samplemaker, was the only employee
whom the Respondent had,, but soon thereafter she was
joined by Lauria, the cutter. Since the Union negotiated
the employment of both Quintiliana and Lauria in the
original instance and the Respondent agreed to make
fringe benefit payments on their behalf directly to the Joint
Board funds, it is obvious that the Union was authorized to
represent' them. In January 1974, Quintiliana was the only
employee the Respondent had when Kaplan renewed the
Union's request for recognition and asked that Stern Made
sign a contract. Accordingly, it is now found that the
Union had a majority in anappropriate unit when the
Union requested recognition.
2. The refusal to bargain
At their initial meeting in February 1973, the Respon-
dent agreed to make up all back payments owed the Union
on contract work which had been done by Logan
Sportswear and others. It further agreed to make current
payments on work that would be done for it in other
contract shops. On cross-examination at the hearing,
Starkman conceded that he agreed to pay the Joint Board
$400 a month to liquidate his outstanding obligation for
work done at Logan Sportswear and also to stay current
with his fringe benefit payments on work done in the
future. When on the stand he was asked the following
questions and gave the answers which appear below:
Q. Why didn't you stay current [in payments on
further work at contract shops ]?
A. Well, I didn't - I agreed because I wanted the
cutter. The cutter left and I didn't -
Q. Why didn't you stay current with your obliga-
tions to the Union?
A. Because I didn't need to.
Q. Didn't you agree to that.
A. I know. I did.
Q. You agreed, but you didn't do it?
A. Right.
s s s
Q. But, you did reneg on the agreement with
regard to the current payments?
A. Yes, I did.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although Starkman denied that he agreed to a union
shop at this time , as was found above, he assured Kaplan
at their February meeting that when the new Joint Board-
Guild agreement was ready the Respondent would sign it
as an independent. Moreover, that he was accepting a
union shop arrangement was implicit in his admitted
agreement to keep up current payments to the Union on
work done for Stem Made in contract shop.
In August 1973, when Kaplan contacted Starkman to tell
him that the industrywide agreement had been negotiated
and that all that remained was the necessity of having it
printed, Starkman reiterated his willingness to accept that
contract and sign it.
In January 1974, however, when Kaplan advised the
Respondent that the agreement was then ready for
signature, Starkman refused to accept it. Since that time
the Respondent has refused to have anything further to do
with the Union and by resorting to an unlisted telephone
number Starkman made it clear that he intended to remain
inaccessible to the bargaining agent.
By such conduct, after having recognized the Union and
having agreed to sign the new -agreement when it was
finalized, the Respondent violated Section 8(a)(5) and (1).
H. J. Heinz Company v. N.L.RB., 311 U.S. 514, 523-526
(1941); N.L.R.B. v. Ogle Protection Service, Inc., 375 F.2d
497, 500 (C.A. 6, 1967), cert. denied 389 U.S. 843; N.L.R.B.
v. Huttig Sash & Door Company, 362F.2d 217, 218 (C.A. 4,
1966); Lozano Enterprises v. N.L.RB., 327 F.2d 814, 819
(C.A. 9, 1964); The Standard Oil Co. v. N.L.R.B:, 322 F.2d
40,4445 (C.A. 6, 1963); N.L.R.B. v. WATE, Inc., 310 F.2d
700 (C.A. 6, 1962); Lytron, Incorporated 207 NLRB 554
(1973); Amalgamated Meat Cutters, etc., Local 530, AFL-
CIO (DuQuoin Packing Co.), 202 NLRB 478 (1973); Local
Union Nos. 938, et al., of the I.B.E. W., (Appalachian Power
Co.), 200 NLRB 850 (1972).
CONCLUSIONS OF LAW
- 1. The Respondent is engaged in commerce and the
Union is a labor organization, all within the meaning of the
Act.
2. All employees at the Respondent's plant in' Walt-
ham, Massachusetts, including cutters, pressers , operators,
finishers, examiners, cleaners, floor samplemakers, drapers,
packers, push boys, piece goods workers, general workers,
pickers, chargers, checkers, and -receivers, but excluding
guards and supervisors, constitute a unit appropriate for
collective bargaining within the meaning of Section 9(b) of
the Act.
3. Since February 1973, including all times material
herein, the Union has been the exclusive representative, for
the purpose of collective bargaining within the meaning of
Section 9(a) of the Act, of all the employees in the
aforesaid appropriate unit.
4. By refusing, to bargain in good faith with the Union
and by refusing to execute the agreement reached by the
Joint Board and the Guild in the summer of 1973, the
Respondent has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(5) of the
Act.
5. By- said acts the Respondent has interfered with,
restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act, thereby engaging
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices it will be recommended that
it be ordered to cease and desist therefrom and to take
certain affirmative action designed to effectuate the
policies of the. Act. It will be recommended that, upon
request of the Union, the Respondent sign the contract
between the Joint Board and the Boston Apparel Guild
which the Respondent agreed to sign in February and
August 1973. If no such request is made by the Union, it
will be recommended that the Respondent be ordered to
bargain collectively, upon request, with the Union as the
exclusive representative of the employees in the appropri-
ate unit, and, if an understanding is reached, embody such
understanding in a signed agreement.
[Recommended Order omitted from publication.]