Sweatermasters Co., Inc.

National Labor Relations Board - Board Decisions

Jun 2, 1969

176 N.L.R.B. 301 (N.L.R.B. 1969)

SWEATERMASTERS CO., INC. 301
Sweatermasters Co., Inc. and Local 815,
International Production , Service and Sales
Employees Union and United Knitwear
Manufacturers League , Ing., and Knitgoods
Workers ' Union , Local 155, International Ladies'
Garment Workers ' Union , AFL-CIO, Parties to
the contract . Case 29-CA- 1350
June 2, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULI OCH AND MEMBERS
BROWN AND ZAGORIA
On February 25, 1969, Trial Examiner Richard
D. Taplitz issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found
that Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and
recommended dismissal as to them. Thereafter, the
General Counsel and Knitgoods Workers' Union,
Local 155, International Ladies' Garment Workers'
Union, AFL-CIO, filed exceptions to the Trial
Examiners' Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, and exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner with the following additions and
modifications:
1. We find, in agreement with the Trial Examiner,
that Respondent did not refuse to bargain with the
Production Union in violation of Section 8(a)(5). As
more fully set forth in the Trial Examiner's
Decision, on June 4, 1968, when the Production
Union first made its demand for recognition, it did
not have cards from a majority of Respondent's
employees, and its demand was made on the very
day that its representative had announced that he
would begin to organize the shop. That evening two
employees told Respondent's President, Gursky, that
they preferred the Knitgoods Union. The next
morning the two employees began soliciting for the
Knitgoods Union among their fellow employees,
some of whom asked Gursky what the union
situation was. It was not until after the Knitgoods
Union had been brought in on the initiative of the
employees, that Gursky and Kobisher, Respondent's
treasurer, said, in response to such employee
inquiries, that if the employees were going to join
one of the two unions presently in the picture, they
thought that the Knitgoods Union was the better of
the two and that the employees should sign cards for
it. Cards for the Knitgoods Union were then passed
out in the presence of Gursky and Kobisher.
Meanwhile, on the afternoon of June 4 the
Production Union had obtained cards from a
majority of employees. On the evening of June 5,
the Production Union officials renewed their
demand for recognition by inquiring about the
meeting with Respondent which had been scheduled
for the next day. Gursky replied that there would be
no meeting since he had signed a contract with the
Knitgoods Union,' thereby refusing recognition of
the Production Union.
In concluding that the refusal of recognition of
the Production Union on June 5 was not violative of
Section 8(a)(5), we note that when the demand for
recognition was first made by the Production Union,
it did not represent a majority of employees.
Further, Respondent could easily suspect that this
was the case, since the demand was made on the
very morning that the Union had indicated that it
would attempt organization. Before the Production
Union obtained cards from a majority of employees
and renewed its demand, some of the employees had
already begun an organizing drive for the Knitgoods
Union. Respondent, well aware of this additional
campaign, was therefore justified in not accepting
the Production Union's demand for representative
status. z
2. We find merit in General Counsel's contention
that the Trial Examiner erred in failing to
recommend that Respondent be required to
reimburse employees for dues, initiation fees,
assessments . and other moneys paid by them to the
Knitgoods Union from the date of the execution of
the unlawful union-security provision. Such
reimbursement is necessary because the selection of
that Union was the result of Respondent's
encouragement to employees to join it in the face of
a claim of majority status by another union.' Under
these circumstances and in order to establish an
atmosphere in which the employees may exercise the
'in fact, no such contract existed , and recognition had not yet been
granted to that Union.
'Knitgoods Union, although violative of Section 8(ax2), was not of the
type which would destroy the essential two-union nature of the situation.
Thus , that unuin's organizational efforts were initiated by the employees,
not by the Respondent Furthermore , Respondent's statements of
preference for Knitgoods Union were in response to employees ' questions
about the relative merits of the two unions, and it is clear that they were in
the nature of advice , free from threats of reprisal or promises of benefits.
Cf. Lake City Foundry Company, Inc. 173 NLRB No. 159 . In these
circumstances, we cannot presume that the Production Union would have
remained the ultimate choice of the majority of the employees if the
Respondent had not intervened in behalf of the Knngoods Workers.
In reaching this conclusion , we do not adopt the personal observations of
the Trial Examiner set forth in footnote 14 of his Decision.
176 NLRB No. 38
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right to select or reject a bargaining representative,
we shall order reimbursement , computed in the
manner set forth in Seafarers International Union,
etc., 138 NLRB 1142. However, it would be
inappropriate to order reimbursement as to
employees Leonard Corwin, Anthony Calabrese.
and John Smith , who voluntarily signed cards for
the Knitgoods Union before Respondent indicated
to any employees a preference for that Union."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that Respondent , Sweatermasters Co.,
Inc., Brooklyn . New York, its officers, agents,
successors. and assigns , shall take the action set
forth in the Trial Examiner ' s Recommended Order,
as herein modified:'
1. Add the following as paragraph 2(c) and
reletter the following paragraphs accordingly:
-(c) Reimburse all present and former employees
except Leonard Corwin, Anthony Calabrese, and
John Smith for dues and other moneys unlawfully
exacted under its illegal contract with the Knitgoods
Union , together with interest at the rate of 6 percent
per annum computed in the manner set forth in this
Decision."
2. Insert the following as the next to last
paragraph in the notice:
WE WILL reimburse all present and former
employees except Leonard Corwin, Anthony
Calabrese , and John Smith for any dues and other
moneys unlawfully exacted by us because of our
illegal contract with the Knitgoods Union.
together with interest at 6 percent per annum.
IT IS I•URTHLR ORDERED that the complaint be
dismissed insofar as it alleges violations not found
herein.
'Intdeo Aluminum Corporation . 169 NLRB No. 136 ; Liareo Container
Corporation . 173 NLRB No. 219; we also Virginia Electric ord Power
Conrparv v. N.L.R . B.: 319 U .S. 533.
See Cowles Communications . Inc.. 170 NLRB No. 177 , fn. 3; Lianco
Container Corporation. supra
'We note that the reference in In. 18 of the Trial Examiner 's Decision to
Region 19 is a typographical error and accordingly , we shall change this to
Region 29.
United Knitwear Manufacturers League , Inc., herein
called the League , and Knitgoods Workers ' Union, Local
155, International Ladies ' Garment Workers ' Union,
AFL-CIO, herein called the Knitgoods Union, were
parties to an invalid contract covering the employees of
Respondent . e charge upon which the complaint is
based was filT on June 6 by Local 815 , International
-Production , Service and Sales Employees Union , herein
called the Production Union . Respondent , the Production
Union , the Knitgoods Union and the General Counsel
were represented by counsel throughout the hearing and
all parties were given full opportunity to participate,
adduce evidence, examine and cross-examine witnesses
and argue orally . Thereafter briefs , which have been
carefully considered , were filed on behalf of the
Respondent, the Knitgoods Union, and the General
Counsel.
THE ISSUES
1. Did the Production Union represent an uncoerced
majority of Respondent ' s employees in an appropriate
unit and make a demand for recognition in that unit.
2. Did Respondent unlawfully assist the Knitgoods
Union in securing authorization cards and unlawfully
recognize and execute a contract containing a
union-security clause with that union.
3. Did Respondent unlawfully refuse to bargain with
the Production Union.
Upon the entire record in the case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation, maintains an
office and factory at 852 Monroe Street, Brooklyn, New
York , herein called the plant, where it is engaged in the
business of providing knitting , sewing , and finishing
services, and related contract services for knitgood
manufacturers . During a representative annual period
from May 1, 1967, to April 30, 1968, Respondent
performed services valued in excess of $50,000 for other
enterprises located in the States of New York and
Pennsylvania, each of which other 'enterprises annually
produces goods valued in excess of $50,000 which are
shipped directly out of the State in which such enterprise
is located.
The complaint alleges, the answer admits, and I find
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
RICHARD D . TAPLrrz, Trial Examiner : This case was
tried in Brooklyn , New York, on November 13, 14, 15,
18, and 19 , 1968. The issues litigated were framed by a
complaint dated July 24, 1968,' which alleges that
$weatermasters Co., Inc., herein called Respondent,
violated Section 8 (a)(1), (2), (3), and (5) of the National
Labor Relations Act, as amended , and the answer of
Respondent which denies that Respondent violated the
Act. The complaint also alleges in substance that the
[I. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the answer admits , and I find
that the Knitgoods Union is a labor organization within
the meaning of Section 2(5) of the Act. The complaint
also alleges that the Production Union is a labor
organization within the meaning of Section 2(5) of the
Act. Respondent by its answer denies knowledge or
information sufficient to form a belief concerning that
allegation . The uncontradicted testimony of Saul
Postman, the president of the Production Union, is that
'All dates are in 1968 unless otherwise specified.
SWEATERMASTERS CO., INC.
his organization on behalf of employees bargains contracts
with employers relating to the employees ' working
conditions , i.e., increases in pay, health and welfare, and
pensions . Employees of various employers are members of
the Union . The Board has recently found that the
Production Union is a labor organization within the
meaning of Section 2 (5) of the Act , Pargament Fidler,
Inc., 173 NLRB No. 102 , and I so find.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. The organizational activities of the Production
Union
On the morning of June 4 , Serge Diaz , an organizer for
the Production Union , was walking the streets of
Brooklyn looking for nonunion shops to organize. When
he came to the building in which the Respondent 's plant is
located he asked the elevator operator whether he knew of
any unorganized shops in the building . Upon being told
that the Sweater Company on the third and fifth floors
was nonunion , Diaz took the elevator to the fifth floor
where he was met by Richard Kobisher , the treasurer of
Respondent corporation .' Diaz showed Kobisher his
business card and Kobisher took him to the company
office to see Milton Gursky, Respondent ' s president and
chief operating officer . According to the testimony of
Diaz , Gursky looked at the business card and Diaz asked
him if the shop was nonunion ; Gursky answered that it
had been nonunion for 20 years and that it was not about
to go union at that time ; Diaz thanked him and left.
Gursky ' s version of the conversation was different. He
testified that Diaz told him that he had eight or nine cards
signed by employees and asked if he (Gursky) would be
interested in talking to the president of the Union about a
contract . Kobisher testified that Diaz simply told them
that he wanted to organize the place because he had eight
or nine signed cards . Credibility resolutions based on my
observation of the demeanor of the witnesses in this case
are going to be particularly difficult in that all three of the
officials of the Production Union who testified and both
of the officials of Respondent who testified were singularly
unsuccessful in inspiring a feeling of confidence in the
veracity of their testimony . However, in this particular
conversation I credit Diaz ' version of the conversation as
Kobisher ' s testimony does not fully corroborate Gursky's
with regard to Diaz ' alleged proposal that they meet with
the president of his Union.
After his conversation with Gursky and Kobisher, Diaz
left the building in which the plant was located and saw a
worker , William Gardner , unloading a truck of yarn. Diaz
engaged him in conversation and ascertained that he was
employed by Respondent . Diaz explained that he was
organizing for the Production Union and asked Gardner
to sign an authorization card , which he did . Gardner told
him that the pressers working for Respondent would be
out of the building at 11:45 a . m., so Diaz waited for them.
At 11:45 the two pressers , John Smith and Anthony
Foster , left the building and Diaz solicited authorization
cards from them . About noon groups of three or four
employees at a time came down the stairs out of the
'Kobisher has a 50-percent ownership interest in Respondent , a closed
corporation , and in addition runs the sewing department . I find that he as
well as Milton Gursky, Respondent 's president , are supervisors within the
meaning of the Act.
303
building and Diaz spoke to them , some in English and
some in Spanish . Smith identified which of the persons
leaving the building were employees of Respondent and
Diaz solicited authorization cards from them , telling them
that the Production Union would try to get them paid
holidays, vacations, and a hospital plan. Some of the
employees signed the cards and returned them to Diaz,
some others told Diaz that they would return the cards
after they returned from lunch. Diaz testified that by 1:30
p.m. he had in his possession 16 authorization cards and
he had been informed by some of the employees that the
total employee complement was 20 or 24 . He then called
Saul Postman , the president of the Production Union, and
was instructed to return to the Production Union 's office,
which he did.
2. The Production Union' s demand for recognition
Diaz returned to the plant later that day and brought
Production Union President Postman and
Secretary-Treasurer Candido Rodriguez with him. They
went to the fifth floor where they saw Gursky. Postman
identified himself and Gursky asked them into his office.
What happened in the office is a matter of sharp dispute.
Diaz testified as follows: Postman told Gursky that the
Production Union represented a majority of Respondent's
employees and that he wanted to negotiate a union
contract. Gursky answered "How do I know you represent
a majority of my employees?" Postman then told Diaz to
show Gursky the authorization cards whereupon Diaz
fanned out 16 authorization cards on Gursky 's desk.
Gursky then said that he didn 't want to see the cards at
that time and to take them away . Diaz then put them
back in his pocket. Gursky asked what the union contract
would cost . Postman answered that there would have to
be paid vacation , holidays, pension , hospitalization, and a
minimum of a $10-a-week increase . Gursky said it would
be impossible for him. About that time Kobisher entered
the room and Gursky told him what the Production
Union was there for. Kobisher asked how much it would
cost . Gursky repeated the demands to Kobisher and
Kobisher said that they did not have a union for 20 years
and if they had to go for those prices they would go out of
business . Gursky then asked if terms could be negotiated
and Postman said that they were ready to talk. Gursky
then asked for time to talk to his attorney and Postman
told him that he would give him until Thursday which was
2 days.' Gursky then said that he would call Postman and
give him a time on Thursday . Diaz placed this
conversation as occurring about 2 : 30 p.m. on June 4.
Postman and Rodriguez testified substantially the same
as Diaz. However, neither of them testified that Gursky
agreed to sit down on Thursday to negotiate a contract.
Both Postman and Rodriguez placed this meeting about
2:30 or 3 p.m. on June 4.
Gursky and Kobisher testified to a different version of
this meeting . Gursky averred as follows : The meeting took
place about 11 :45 a.m. on June 4. After taking the three
representatives of the Production Union into his office
'Diaz testified We settled on Thursday . We would sit down Thursday
to negotiate a contract ." His testimony was not dear as to ' who said that
they would sit down and negotiate a contract or to whether it was a
generall understanding of the parties. On cross-examination he was
specifically asked whether Gursky at that point had agreed tb take in the
Production Union as its union . Diaz did not answer that question, but
merely replied that Gursky said he had to speak to his attorney and that
they had a meeting tentatively set for Thursday.
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gursky immediately went into the plant and brought back
Kobisher, who was present during the entire conversation.
Postman told Gursky that he had 9 or 10 employees
signed up and that he would probably get more during the
course of the day and "You might just as well sign the
contract with us now, otherwise we will throw a picket
line around here so fast it will make your head swim and
stop all shipments out of your factory and paralyze you."
Gursky then asked to see the cards and Postman answered
that it was none of his business and that if Gursky was
ready to talk about a contract then they would talk about
cards. Postman then said, "What do you say about
signing a contract?" and Gursky answered that he would
need time even to consider the matter. Gursky asked until
the end of the week to think about it and Postman
answered that he would not give him that much time but
that he would give him until Thursday morning. Nothing
was said about the Production Union's demands.
Kobisher's testimony corroborates Gursky's in that the
meeting was before noontime. He also averred that he was
present during the entire meeting and that no union
authorization cards were produced.
I credit the representatives of the Production Union
insofar as they testified that the meeting occurred about
2:30 or 3 o'clock on June 4, that the Production Union
claimed to represent a majority of Respondent's
employees, and that a demand for recognition was made
at that time. Diaz knew from his 10 o'clock meeting with
Gursky that recognition was not going to be summarily
gained . As he was busily engaged in obtaining
authorization cards, it appears unlikely that he would have
returned with the two other union representatives before
rather than after he had made a serious effort to obtain
cards. Even though there is an implication in Diaz'
testimony that Gursky agreed to bargain with the
Production Union, it is clear not only from his evasion on
that point on cross-examination but from the testimony of
the other witnesses that no such agreement was made. I
credit the testimony of Gursky and Kobisher that
Kobisher was present during the entire meeting. I believe
that all the participants at the meeting were anxious to
have witnesses present. Gursky wanted his partner to be
present at what promised to be an important meeting. He
would not meet alone with three representatives of the
Production Union if he could help it, and he could help it
simply by calling in Kobisher. I also credit Gursky's
testimony that he was never shown the Production
Union's authorization cards. The testimony of the officials
of the Production Union that the cards were shown to
Gursky before Kobisher came into the meeting is
unconvincing. In addition, in the circumstances of the
June 4 meeting, I find it difficult to believe that Postman
would willingly divulge the names of the employees who
had authorized his union to represent them by showing
Gursky the authorization cards. In summary I credit the
testimony of the Production Union officials that the
meeting took place about 3 o'clock on June 4, that
Postman claimed to represent a majority of Respondent's
employees, and that a demand for recognition was made,
but as to the rest of the meeting I credit the testimony of
Gursky.
After the meeting the representatives of the Production
Union left the plant. About 4:30 p.m. they returned in
order to make arrangements for a meeting with employees
the following night. At 5 o'clock they spoke to employees
who were leaving work and solicited more authorization
cards. When knitter mechanic Leonard Corwin and his
assistant Anthony Calabrese left the plant at 6 p.m. the
representatives of the Production Union unsuccessfully
solicited their signatures on authorization cards. The
following day , June 5 , Diaz and Rodriguez came back to
the plant and handed out booklets on the Production
Union ' s welfare program and reminded employees of the
meeting that had been scheduled for 5 o'clock that
evening . At 5 o'clock that day Diaz together with two
other representatives of Respondent Union, Moody
Gallant and Postman , were once again at the plant. Diaz
testified that he was told by employees that Gursky had
signed a contract with another union and that they did not
want to go to the meeting . Diaz reported this to Postman
on the telephone and Postman came to the plant. Both
Diaz and Postman testified that they confronted Gursky
in front of the plant about 5:10 p.m ., that Postman asked
Gursky what time their meeting was scheduled for the
following day , and that Gursky answered that the meeting
was off because he had signed a contract with the
Knitgoods Union . Gursky specifically denied this
conversation and testified that he never saw any
representative of the Production Union from the June 4
meeting until the hearing in this matter . I credit Diaz and
Postman . I cannot believe that Postman , who is by no
means a shy individual , would sit back in the face of
employee reports that Respondent had signed a contract
with another union the day before a meeting was
scheduled for his organization , and refrain from a
face-to-face confrontation with Gursky . Gursky's denial of
any conversation is unconvincing.
3. The appropriate bargaining unit
Respondent is engaged in the production of knitgoods
as a contractor. It employs knitters, knitter mechanics,
cutters, pressers, machine operators, labelers, packers, and
other categories of employees needed in the production of
sweaters. All of Respondent's employees spend at least
some of their time in the production of knitwear and none
work solely on the repair of machines or solely on
maintenance work. The complaint alleges the following:
All production and maintenance employees, including
mechanics, of Respondent, employed at its Brooklyn
plant, exclusive of all office clericals, guards,
watchmen, salesmen and all supervisors as defined in
Section 2(11) of the Act, constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
Respondent in its answer admits that the above unit is
appropriate for collective bargaining except that it denies
that maintenance employees and mechanics not engaged
in the maintenance of productive machinery are properly
included within such a unit. However, Gursky in his
testimony admits that Respondent had no employee that
would fall in the exception set forth in Respondent's
answer.
A production and maintenance unit as set forth in the
complaint is presumptive appropriate and I find that the
unit as so set forth is appropriate in the instant case.
Mark J. Gerry, Inc. d/ b/a Dove Manufacturing Co., 128
NLRB 778.
4. The Production Union's authorization cards
It was stipulated that as of June 4, the date of the
Production Union's demand for recognition, there were 24
employees in the above-described unit.,
SWEATERMASTERS CO., INC. 305
Authorizations cards on behalf of the Production Union
purportedly signed by 17 employees in the unit were
received in evidence .' Twelve of the cards were signed on
June 4 before the Production Union made its demand for
recognition.'
A 13th card , purporting to bear the signature of
employee Margaret Staten , was a subject of conflicting
testimony . Staten testified that she was given the card by
Diaz in the morning while she was rushing to work and
that she signed it in front of Diaz. However , she did not
remember the date that she signed the card as someone
else had filled in the date space and she did not recall
what she did with the card after she signed it . She did
remember that she signed it before June 5, which was the
date that she also signed an authorization card for the
Knitgoods Union . Diaz credibly testified that the only day
he distributed authorization cards for the Production
Union was on June 4 and that his first contact with the
employees was after the workday started. Though Staten
testified that she signed the card when she was "rushing to
work ," she was later shown her timecard and testified that
she was absent from work on June 4 . Ordway Hilton, a
witness called on behalf of the Knitgoods Union , was duly
qualified as a handwriting expert . He testified that in his
opinion the signature on the Production Union's
authorization card , which purported to be that of
Margaret Staten , was not signed by the same person who
signed other documents which contained the stipulated
signature of Margaret Staten . Combining the testimony of
the handwriting expert with the admission of Staten that
she did not remember when she signed the card or what
she did with the card and the further admission that she
was not working on the date that the card was
purportedly signed , even though she testified that she
signed it as she was rushing to work, I am unable to give
any credence to the card.
On June 4 , after the demand for recognition, four
additional employees executed authorization cards on
behalf of the Production Union.'
In summary I find that at the time of the demand on
June 4 , 12 employees out of a total of 24 in the
bargaining unit had authorized the Production Union to
represent them and that by the end of June 4 the number
had been increased to 16 authorizations.
5. The organizational activities of the Knitgoods
Union
As stated above , about 6 p . m. on June 4 representatives
of the Production Union approached knitter mechanic
Leonard Corwin and his assistant Anthony Calabrese in
an unsuccessful attempt to secure their allegiance to the
Production Union . Though Corwin was not active on
behalf of the Knitgoods Union for the 6 years that he was
working for Respondent , he had at one time belonged to
that Union . Calabrese had on many occasions during his
20-year employment with Respondent sought to organize
Respondent 's employees on behalf of the Knitgoods Union
and he kept authorization cards for that Union in the
plant at all times . Corwin and Calabrese discussed the
matter and agreed that Calabrese would get more
authorization cards from the Knitgoods Union. When
Calabrese got home that evening he called an organizer
for the Knitgoods Union and told him that he needed
more authorization cards . About 9 : 30 a.m . on June 5 the
cards were brought to him. At 7 or 8 p.m. on June 4
Corwin called Gursky on the telephone and told him that
he had been approached by the Production Union to sign
an authorization card . Gursky replied that he knew the
Production Union was trying to organize because he had
received several visits from that Union . Corwin then said
that if the shop was going to be organized he wanted it to
be by a Knitgoods union and that he was going to get
cards from the Knitgoods Union . Gursky replied in
substance that Corwin could do whatever he wanted to do.
When Calabrese received the Knitgoods Union
authorization cards on the morning of June 5 he gave
them to Corwin . Calabrese and Corwin work on the third
floor of the building in which Respondent is located. The
bulk of the employees work on the fifth floor. That
morning J. Smith , a presser who worked on the fifth
floor, came to the third floor and signed an authorization
card for the Knitgoods Union . About noon on June 5
Corwin brought the Knitgoods Union authorization cards
to the fifth floor where many of Respondent 's employees
were assembled before going to lunch and distributed the
cards. During the course of that day, June 5, 19
employees in the bargaining unit signed cards authorizing
the Knitgoods Union to represent them for collective
bargaining.'
G.C. Exh. 15 is Respondent's payroll journal showing 2 employees for
the pay period ending June 8, 1968 . However , it was stipulated that three
persons named on the list were not employees on June 4 . They are E.
Balmers, D. Jefferson . and M . Bolanos.
'The cards read in part " I hereby authorize Local 815. to represent me
and, in my behalf, to negotiate and conclude all agreements as to hours of
labor, wages , and other employment conditions."
'Employees Cato, Echaverria , Vasquez, S. Calabrese, Franklin , Smith,
and Mercado each authenticated his or her own card and placed the timing
of the execution of the card before the demand . Mercado witnessed the
signing of cards by Montenez and Anaya, also before the demand.
Production Union Organizer Diaz witnessed the signing by employee
Gardner before the demand . Diaz also gave a card to employee Foster and
Foster returned it to Diaz before the demand . The card signed by
employee Donald is also counted in this group . Donald , who authenticated
her own card , signed the card before the demand but did not deliver it to
the Production Union until the evening of June 4, which was after the
demand . As she did not vacate her authorization between signing and
delivering the card , it may be counted as an authorization as of the time of
the execution of the card . Retail Clerks International Association. 153
NLRB 204, enfg . 366 F.2d 642 (C.A.D.C.).
'Diaz witnessed the signing of cards by employees Cassin, Cruz,
Lawrence , and Muldrow . As to the latter two employees Diaz was unable
to say whether the cards were signed in the day or the evening of June 4.
6. Respondent 's alleged assistance to the Knitgoods
Union at the noon meeting
In the early morning of June 5 Corwin and Calabrese
approached Gursky and told him that the Production
Union was trying to organize the shop and that they
wanted the Knitgoods Union . Gursky answered that they
could do as they pleased . Between 8:30 a .m. and noon
other employees came to Gursky and asked him what the
union situation was. He answered that he would not
discuss it with each employee individually but that at
lunchtime if the employees had anything to ask he would
answer their questions . At noon , before the employees left
for lunch, Corwin told them not to go to lunch quite yet
because Gursky had something to tell them. Gursky and
Kobisher both addressed the employees . There were
serious conflicts in the testimony of witnesses as to what
'The cards read in part "I, of my own free will, hereby authorize the
KNITGOODS WORKERS' UNION, LOCAL 155. I.L.G.W.U. -
AFL-CIO, and its representatives, to act exclusively as my agent and
representative for the purpose of collective bargaining."
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was said and done at this meeting.
Gursky testified as follows: Employees asked Gursky
what each union had to offer and which union they should
choose . Gursky replied that he did not know anything
about the Production Union but that he had heard of the
Knitgoods Union because it was a union for the knitgoods
industry. He added that he did not know what either of
them had to offer and told them that he would prefer to
have neither of the unions in the factory but that if the
employees wanted a union it was up to them to decide
which one it was going to be . Some of the employees
spoke only Spanish so Gursky asked Kobisher to speak to
them . Gursky did not see any authorization cards for the
Knitgoods Union being passed out or signed. After
speaking to the employees both Gursky and Kobisher
went into the office for lunch.
Kobisher also testified that he did not see any
Knitgoods Union cards . He stated that at the meeting
some of the employees asked him to find out what Gursky
had been telling the other employees and which union he
recommended , and he answered that he didn ' t recommend
any union because he didn 't want a union.
Knitter mechanic Corwin testified to a slightly different
version of the meeting as follows : Gursky spoke to the
employees while Corwin was standing about 10 feet away
holding the Knitgoods Union cards. Gursky told the
employees that he knew the shop was going to be
organized and that the knitters felt that they would prefer
to be organized by a Knitgoods union but that it was up
to the employees to decide which union they wanted to
join . A few minutes after Gursky spoke to the employees,
Corwin passed out the authorization cards for the
Kn itgoods Union to the employees. Gursky was present
when the cards were handed out. Kobisher spoke to the
employees about 5 minutes later.
Calabrese ' s recollection of what Gursky said was
substantially the same as Corwin 's, but Calabrese made
no mention of whether Gursky was present when the cards
were passed out.
A number of employees testified to various versions of
this meeting . Employee Cato' stated that Corwin passed
out the cards in Kobisher 's presence, that Kobisher asked
the employees to sign for the Knitgoods Union because
the Production Union was no good and that Kobisher told
the employees that he would get them into a better union.
Employee Donald stated that the Knitgoods Union cards
were lying on the table and that Gursky or Kobisher told
the employees to sign because the Knitgoods Union was a
good union , he didn ' t know about the other Union and he
wanted them to join a union that he knew something
about and would be best for them . Employee Echevarria
stated that she saw Kobisher place the Knitgoods Union
cards on the table and that Kobisher told them to sign
because the other Union had no funds . She also testified
that she saw Gursky talk to the employees before they
signed the cards . Employee Vasquez stated that she
received the Knitgoods Union card from Kobisher who
told the employees that the Production Union was no
good and that with the other Union "we will have more
benefits ." Employee Franklin testified that the cards were
given out by employee Corwin but that Gursky told
Corwin to give out the cards and told the employees that
the Production Union was crooked and that they should
sign with the Knitgoods Union. Employee Mercado
testified that Richard Kobisher simply said that no one
knew the other union . Employee Ferrigno testified that
Gursky told the employees that there was another union
but that it was up to the employees to decide. I believe
that all of these witnesses were honestly trying to recall
what happened at the meeting but it was clear that some
of the witnesses were having difficulty expressing
themselves and that others had a somewhat blurred
recollection of what occurred at this meeting.
After observing all of the above witnesses as they
testified, I credit the following version of the meeting:
About noon on June 5 employee Corwin told the
employees gathered on the fifth floor not to go out for
lunch because Gursky wanted to speak to them. Gursky
then addressed the employees and in substance told them
that the Production Union was not a good union but that
the Knitgoods Union was a good union and that they
should sign cards for the Knitgoods Union. While Gursky
was speaking Corwin was standing about 10 feet away
from him holding the Knitgoods Union cards. A few
minutes after Gursky stopped and while Gursky was still
present, Corwin passed out the Knitgoods Union cards to
the employees. About this time Kobisher spoke to the
Spanish speaking employees and in substance repeated to
them what Gursky had said and urged them to sign the
Knitgoods Union card. Kobisher was also present when
the cards were handed out by Corwin. A number of
employees signed the cards and returned them to Corwin.
Anthony Calabrese credibly estimated that about 15 or 18
cards were signed during the lunch hour on June 5. In all
19 Knitgoods Union authorization cards were
authenticated and received in evidence. Of these 13 were
executed by employees who had previously signed
authorization cards for the Production Union.
7. Respondent's contract with the Knitgoods Union
On the morning of June 6 Gursky received a call from
a Mr. Jacobson, an organizer for the Knitgoods Union.
Jacobson told him that the majority of his employees had
authorized the Knitgoods Union to represent them and he
asked for a meeting to discuss a union contract . Gursky
replied that he would be in the plant if Jacobson wanted
to come down to see him. About a half hour later
Jacobson, together with another organizer, Mr.
Cincromani, came to the plant and had a meeting with
Gursky and Kobisher. Jacobson repeated that his union
represented a majority of the employees and that he
wanted to talk about a union contract.10 Gursky
questioned the majority status of the Knitgoods Union
and Jacobson answered that the cards were on file at the
union office and that Gursky could arrange to have them
verified. Jacobson showed Gursky a copy of the contract
that the Knitgoods Union had with the United Knitwear
Manufacturers League and its employer-members and said
that his union wanted the same contract that the other
knitgood and sweater shops in the industry had. Gursky
replied that he had to give the matter thought and
Jacobson answered that they should get in touch with each
other in the next few days. After the union representatives
left Gursky discussed the matter with Kobisher and they
decided to get advice on what action to take. Shortly
thereafter Gursky called the League and spoke to an
'Cato also testified that on June 4 after signing the card for the
Production Union, Gursky asked her if employees had filled out cards, she
answered that they had, and he told her that they should not fill out any
more cards because the first union was no good . Later in her testimony she
in effect retracted her former testunony and denied that Gursky had said
anything to her about signing cards at that time. I believe that the witness
was confused in her first statement and that her subsequent correction was
credible.
SWEATERMASTERS CO., INC.
official named Foreman. Foreman agreed to come to the
plant and discuss the matter with him. Later that morning
Foreman came to the plant and Gursky told him that the
Production Union had approached him on one day and
that the Knitgoods Union had claimed to represent a
majority on the following day. Foreman replied that the
only way he could give advice would be for Gursky to
become a member of the League and that the fee was
$125 for 6 months. Gursky gave him a check for $125 but
did not sign any membership application. Foreman told
Gursky that he would speak to the counsel for the League
and see what information he could get. He then left. Later
he called back and said that the membership wasn't
accepted yet but that he would keep in touch. A few days
after June 6 Foreman called Gursky back and told him
that he had discussed the matter with the legal counsel to
the League and that he had verified that the Knitgoods
Union did represent a majority of Gursky's employees and
that the only thing that they could advise him to do was
to enter into a contract with the Knitgoods Union.
Though in his testimony Gursky stated that he recognized
the Knitgoods Union at that time, there is no evidence in
the record to indicate that he took action to recognize the
Knitgoods Union until July 10. Gursky also testified that
he joined the League on June 6, but the record discloses
no action that he took in this regard, until July 10, other
than the tender of his check for $125. On that date
Respondent , by Gursky, signed two documents . The first
was an application for membership in the League which
contained a provision by which Gursky ratified and
accepted the League' s agreement with the Knitgoods
Union, effective as of July 17. This application was
accepted by the League on July 10. The second document
was a "certification of authorization and ratification" by
which Respondent undertook to be bound by the
collective-labor agreement mentioned above.
Since the effective date of the agreement it has been
maintained and enforced. Said agreement contains the
following provision:
2.(a) It shall be a condition of employment that all
workers employed by members of the League on any
work performed in the crafts enumerated in Schedule A
attached to this agreement shall be deemed covered by
this agreement and all such workers, who are members
in good standing of the Union on the date of execution
of this agreement , shall remain members in good
standing , and those who are not members in good
standing on the date of execution of this agreement
shall, on the thirtieth (30th) day following the date of
execution of this agreement , become and remain
members in good standing of the Union. It shall also be
a condition of employment that all workers covered by
this agreement hired on or after the date of execution
hereof shall, on the thirtieth (30th) day following the
beginning of such employment , become and remain
members in good standing of the Union.
8. The discharge of Maude Franklin
August 5 was Maude Franklin's last day of
employment with Respondent. Franklin testified as
follows: On August 511 Kobisher approached her and
asked what her intentions were with respect to the Union.
She answered that she did not want to get involved with
"The same day the Knitgoods Union mailed to Respondent a written
demand for recognition which was received by Respondent on June 7,
1969.
307
any unions and he replied that unless she joined the Union
she couldn't work for Respondent. Kobisher then left her
and returned a short time after with employee Anthony
Calabrese, who had been appointed shop steward for the
Knitgoods Union. Calabrese took her alone into the office
and told her that she would have to leave, which she did.
Kobisher's version of these conversations was different.
He testified that he never told Franklin that she had to
join the Union but rather that Calabrese told her that she
had to join the Union if she wanted a job there.
According to Kobisher, after Calabrese spoke to Franklin
she yelled that she quit her job because she didn't want to
join any union and left the plant. Kobisher admitted that
he never tried to get her back or tell her that she did not
have to become a member of the Union and he never
reprimanded Calabrese for having told Franklin that she
had to become a member of the Union in order to work
in the shop. Sometime thereafter Franklin came back to
the plant to pick up her check but Kobisher did not tell
her that she could work even though she was not a
member of the Knitgoods Union. At that time Kobisher
knew what Calabrese had done.
I credit Kobisher's version of the conversation. After
observing Kobisher testify on the stand it is difficult for
me to believe that he would voluntarily interpose himself
in a matter of this nature. His testimony that he stood
passively by while the shop steward took the action is
credible. However, by his mere passivity in the
circumstances of this discharge I find that he and through
him Respondent ratified the conduct of the shop steward
in discharging Franklin and therefore were responsible for
the discharge.
However the discharge of Franklin is not alleged in the
complaint as a violation of the Act. Though the discharge
was alleged as a violation of the Act in Case 29-CA-1433,
that matter was settled by a settlement agreement
approved on October 11 by the Regional Director of
Region 29 of the Board. That settlement agreement
provides in part that "nothing herein shall preclude
General Counsel from adducing evidence concerning the
allegations of unfair labor practices herein settled in any
other preceding against Respondent .... Further, nothing
herein shall be construed to affect the issues involved in
Case 29-CA-1350." The General Counsel does not allege
that the settlement agreement has been breached but
instead urges that the facts set forth above be considered
as additional evidence to support the General Counsel's
contention that Respondent unlawfully refused to bargain
with the Production Union.
As any violation of the Act relating to the discharge of
Franklin has been remedied by the settlement agreement
and as the instant complaint does not allege any violation
in that regard, I cannot now question the legality of the
discharge. Moreover, the testimony concerning the
discharge of Franklin does not shed light on the alleged
violation of Section 8(a)(5) of the Act. Other testimony
establishes that Respondent executed an agreement which
bound it to a contract with the Knitgood Workers and
that the contract contained a union-security clause. Even
if the union-security clause was enforced or even
overzealously enforced without a 30-day grace period, it
adds very little to the General Counsel's case with regard
to the refusal-to-bargain allegation . On the other hand,
the execution of the agreement is a matter which will
require substantial discussion below.
"Franklin testified that the date was October 3, but it was stipulated
that her last day of work was August 5.
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Analysis and Conclusions
1. Introductory remarks
Through the morass of conflicting testimony in the
record the basic facts in this case emerge as follows: On
June 4, in a 1-day organizing effort, the Production Union
secured authorization cards from a majority of
Respondent ' s employees in an appropriate production and
maintenance unit. On the same day , but prior to securing
a majority of the authorizations , the Production Union
demanded recognition as the bargaining agent of
Respondent ' s employees . Respondent questioned the
Union ' s majority status but agreed to talk to that Union
again in a few days. The following day, June 5, employee
Corwin distributed Knitgoods Union cards among
Respondent 's employees and a majority of the employees
authorized the Knitgoods Union to represent them. Most
of the cards were signed during the lunch hour when two
high ranking officials of Respondent , Gursky and
Kobisher , actively assisted employee Corwin in obtaining
employee signatures on the authorization cards. This
assistance consisted of speeches by both Gursky and
Kobisher in which they expressed their preference for the
Knitgoods Union and urged the employees to sign the
cards , together with their physical presence when the cards
were being distributed . The following day, June 6,
Respondent made overtures towards the League which
had a contract on behalf of its employer -members with
the Knitgoods Union , by tendering $ 125 as partial dues.
On July 10 Respondent formally applied for membership
in the League , was accepted as a member , and adopted
the contract which contained a union-security clause
between the Knitgoods Workers Union and the League,
effective as of July 17. Since July 17, the contract has
been in full force and effect.' 2
2. The alleged violations of Section 8(a)(1), (2), and
(3)
The speeches of Gursky and Kobisher at the noon
meeting on June 5 contained no threat of reprisal or
promise of benefit and in so far as they merely set forth
the opinions of those officials relating to what they
considered to be the relative worths of two unions, the
speeches might have come within the definition of free
speech set forth in Section 8(c) of the Act. However,
Gursky and Kobisher went further and actively solicited
the employees to sign authorization cards . The context in
which the speeches were made must also be considered. At
the time of Gursky's speech Corwin was standing near
Gursky holding the Knitgoods Union authorization cards.
Corwin distributed the cards almost immediately after
Gursky spoke when Gursky was still present and Kobisher
spoke about the same time. In addition the speeches were
"Paragraph 13 of the complaint alleges in part that Respondent warned
its employees to refrain from joining the Production Union and to join the
Knitgoods Union . I find no credible evidence in the record of any warning
and I therefore recommend that that part of the complaint be dismissed.
Paragraph 14 alleges that Respondent promised and granted wage
increases and other benefits to induce employees to refrain from becoming
members of the Production Union and to induce them to join the
Knitgoods Union . I find no credible evidence in the record of promises of
benefit . Though it can be argued that the contract in itself granted benefits,
the real question being litigated is the legality of the contract. The
"benefit" issue mentioned in paragraph 14 is so subsidiary to the central
question that it adds nothing to this case and I therefore recommend that
those allegations of the complaint be dismissed.
made only 1 day after the Production Union had
demanded recognition. Viewing the incident as a whole, I
find that Gursky and Kobisher unlawfully assisted the
Knitgoods Union in securing a majority of its
authorization cards and in so doing violated Section
8(a)(1) and (2) of the Act. It follows that at the time that
Respondent recognized the Knitgoods Union and adopted
the contract between that Union and the League, the
Knitgoods Union did not represent an uncoerced majority
of the employees and Respondent therefore further
violated Section 8(a)(1) and (2) of the Act. As the
contract contained a union-security clause , Respondent
also violated Section 8(a)(3) of the Act. Raymond Buick,
Inc., 173 NLRB No. 199; Carlton Paper Corporation, 173
NLRB No. 26; Hampton Merchants Association, 151
NLRB 1307; cf. Coamo Knitting Mills, Inc., 150 NLRB
579.
Even if Respondent had not unlawfully assisted the
Knitgoods Union in obtaining authorization cards the
recognition of the Knitgoods Union and the adoption of
its contract would still have violated Section 8(a)(1), (2),
and (3) of the Act. The demand of the Production Union
for recognition on June 4 was backed by authorizations of
close to a majority of the employees and raised a real
question concerning representation under the Midwest
Piping & Supply Co., rule, 63 NLRB 1060. In the face of
such a question concerning representation "an employer
cannot arrogate to himself authority to determine which
of two or more contending unions is entitled to
recognition as exclusive bargaining agent ." Teramana
Brothers Coal Mining Company, 173 NLRB No. 93. See
also Iowa Beef Packers, Inc., 144 NLRB 615, enfd. in
part 331 F.2d 176 (C.A. 8, 1964). In the Raymond Buick
case, supra, the Board adopted the Trial Examiner's
finding that similar conduct constituted additional
unlawful support of the recognized union in violation of
Section 8(a)(2) and (1) of the Act. In that case as in the
one at bar , an employer unlawfully assisted the union in
securing authorization cards. Thereafter a second union
lawfully secured a majority of authorization cards. After
the second union demanded recognition the employer
executed a contract with the first union. The rationale of
the Midwest Piping rule was used to find the execution of
the contract unlawful.
3. The alleged violation of 8(a)(5)
In Hammond & Irving, Inc., 154 NLRB 1071, the
Board set forth the criteria to be applied in the so-called
Joy Silk Mills type of case:
The Board has long held that an employer may insist
upon a Board election as proof of a union's majority if
it has a reasonable basis for a bona fide doubt as to the
union 's representative status in an appropriate unit. If,
however, the employer has no such good-faith doubt,
but refuses to bargain with the majority representative
of its employees because it rejects the
collective-bargaining principle or desires to gain time
within which to undermine the union and dissipate its
majority, such conduct constitutes a violation of
Section 8(a)(5) of the Act. ( Joy Silk Mills, Inc., 85
NLRB 1263, enfd. as modified on other grounds 185
F.2d 732 (C.A.D.C.), cert. denied 341 U.S. 914.) In
determining whether the employer 's action was taken to
achieve either of the said invalid purposes, the Board
considers all the surrounding circumstances as well as
direct evidence of motivation. Absent such direct
evidence, where extensive violations of the Act
SWEATERMASTERS CO., INC.
accompany the refusal to grant recognition, they
evidence the employer 's unlawful motive and an
inference of bad faith is justified.
In Aaron Brothers Company of California, 158 NLRB
1077, it was made clear that the General Counsel has a
burden of affirmatively establishing the existence of bad
faith and that the determination as to whether the
employer acted in good or bad faith must be made in the
light of all the relevant facts of the case including the
unlawful conduct of the employer, the sequence of events,
and the time lapse between the refusal and the unlawful
conduct . In the instant case the unlawful conduct
consisted of the assistance Respondent rendered to
Knitgoods Union in securing authorization cards on June
5 and the recognition of and adoption of a contract with
that Union on July 10 effective July 17. Respondent
engaged in this conduct in the face of the Production
Union' s demand for recognition on June 4 . That demand
was in an appropriate unit and was still outstanding in the
afternoon of June 4 when the Production Union had been
authorized by a majority of the employees in the unit to
represent them."
However , all the surrounding circumstances must be
considered . In this case two unions were competing for the
loyalty of the employees . While the Knitgoods Union was
unlawfully assisted there is no evidence in the record to
establish either that the Knitgoods Union was a creature
of Respondent or that Respondent introduced it into the
shop . Prior to any assistance by the Respondent, two
employees , Corwin and A. Calabrese, had not only opted
for the Knitgoods Union but had notified Respondent in a
telephone conversation with Gursky that the Knitgoods
Union was very much in the picture . On the morning of
June 5 employee Smith went along with Corwin and
Calabrese by signing a card for the Knitgoods Union.
Thus by the time Gursky and Kobisher began their
unlawful conduct at noon on June 5 it was clear that both
the Production Union and the Knitgoods Union were
actively organizing in Respondent ' s plant . Respondent's
subsequent conduct did not indicate a rejection of the
collective- bargaining principle . Rather it demonstrated an
attempt through unlawful means to engage in collective
bargaining with one union rather than another. In a
two-union situation the discouragement of one union is
always inherent in the encouragement of another and in
that sense Respondent did undermine the Production
Union. However , I do not believe that in the entire
context of this case it has been established that
Respondent did not have a good - faith doubt that the
Production Union represented a majority of the
employees . At the time the Production Union demanded
recognition on June 4 , Respondent questioned its majority
status. In fact that Production Union did not represent a
majority of the employees at that time. Subsequently
Respondent in a two - Union situation assisted one of the
unions. That assistance certainly indicated a strong
preference for one of the unions rather than the other but
it does not in itself establish that Respondent failed to
have a good-faith doubt that the Production Union
represented a majority of the employees.
"Though the Respondent refused to recognize the Production Union on
June 4 in the sense that Respondent did not take any action at that time,
Respondent did not affirmatively reject the demand until the following day
when it told the Production Union that the meeting was off . At least until
that time it is clear that both parties understood the demand was still
outstanding . By that time the Production Union had authorizations from a
majority of the employees.
309
In Irving Air Chute Co, Inc., Marathon Division, 149
NLRB 627, the Board held that certain conduct in
violation of Section 8(a)(2) did indicate a lack of
good-faith doubt on an employer's part and found a
violation of Section 8(a)(5) of the Act. That case is
distinguishable in that the 8(a)(2) violation related to
Respondent's actions in the formation of an employee
committee. Thus a two-union situation was not present. In
Grafton Boat Co., Inc., 173 NLRB No. 150, the Trial
Examiner found that the employer engaged in various
unfair labor practices including the use of a dominated
labor organization to defeat collective bargaining. The
Board held "because of the nature of the unfair labor
practices found, their timing and limited number, we are
not persuaded that they are sufficiently substantial to
demonstrate Respondent's bad faith and vitiate its claim
that its refusal to bargain was lawfully motivated."
I find that the Respondent's unlawful conduct at the
June 5 meeting was not of such nature as to establish that
it lacked a good-faith doubt as to the Production Union's
majority status. In addition the subsequent recognition
and adoption of a contract with the Knitgoods Union did
not reflect backward to establish a lack of good-faith
doubt as of June 4 but was rather an additional violation
of Section 8(a)(2)." ° I therefore recommend that the
Section 8(a)(5) allegations of the complaint be dismissed.
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
Respondent described in section I, above, 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 such commerce
and the free flow thereof.
v. the remedy
Having found that the Respondent engaged in unfair
labor practices in violation of Section 8(a)(1), (2), and (3)
of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action which will
effectuate the policies of the Act.
As I have found that Respondent recognized the
Knitgoods Union at a time when that Union did not
represent an uncoerced majority, I shall recommend that
Respondent be ordered to withdraw recognition from the
Knitgoods Union and to cease giving effect (except as
hereinafter stated) to the collective-bargain ing agreement
between the League and the Knitgoods Union. As
Respondent has given authority to the League to bargain
with the Knitgoods Union on Respondent's behalf, I
further recommend that Respondent be ordered to
withdraw such authority."
"Both the Production Union and the Knitgoods Union engaged in
lightening organizational drives each of which lasted less than I day. The
employees never had an opportunity to evaluate the relative merits of the
two unions. Under the circumstances of this case I believe that justice to
the employees would require that the effects of the Respondent's unfair
labor practices be dissipated through the Respondent 's compliance with the
Recommended Order and that the employees then be permitted to express
their preference in an election.
"In his brief the General Counsel urges that Respondent be ordered to
reimburse employees for dues and other moneys paid by them to 'the
Knitgoods Union In the circumstances of this case I do not believe that
any remedial purpose would be served by such an order
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact and
upon the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Knitgoods Union and the Production Union are
labor organizations within the meaning of Section 2(5) of
the Act.
3. By participating in the organizational activities of the
Knitgoods Union, by soliciting authorization cards on
behalf of the Knitgoods Union, and by recognizing and
adopting a contract with the Knitgood s Union at a time
when that Union did not represent an uncoerced 'majority
of its employees , Respondent has engaged in unfair labor
practices in violation of Section 8(aX2) and (1) of the Act.
4. By adopting the aforesaid contract which contained a
union-security clause , Respondent also violated Section
8(aX3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent has not engaged in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
Upon the foregoing findings and conclusions and the
entire record in the case, I recommend that the Board
issue the following:
Garment Workers' Union, AFL-CIO, as the exclusive
representative of its employees for the purposes of
collective bargaining , unless and until said labor
organization has been certified by the National Labor
Relations Board as the exclusive representative of such
employees.
(b) Withdraw authorization from the United Knitwear
Manufacturers League to represent Sweatermasters Co.,
Inc., in collective bargaining with Knitgoods Workers'
Union, Local 155, International Ladies' Garment
Workers' Union, AFL-CIO, unless said labor
organization is certified as set forth above.
(c) Post at its Brooklyn, New York, plant, in both
English and Spanish," copies of the attached notice
marked "Appendix."" Copies of said notice, on forms
provided by the Regional Director for Region 29, after
being duly signed by an authorized representative, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
therafter , in conspicuous places , including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered , defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.18
RECOMMENDED ORDER
Sweatermasters Co., Inc., its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Participating in the organizational activities of
Knitgoods Workers' Union, Local 155, International
Ladies' Garment Workers' Union, AFL-CIO, or soliciting
employees to sign authorization cards for that labor
organization.
(b) Recognizing, contracting , or adopting a contract
with Knitgoods Workers' Union, Local 155 , International
Ladies' Garment Workers' Union, AFL-CIO, as the
representative of its employees for the purposes of
collective bargaining , unless and until said labor
organization has been certified by the National Labor
Relations Board as the exclusive bargaining representative
of such employees.
(c) Giving effect to, performing , or in any way
enforcing the collective-bargaining agreement between
Knitgoods Workers' Union, Local 155 , International
Ladies' Garment Workers' Union, AFL-CIO, and the
United Knitwear Manufacturers League, Inc., which
Sweatermasters Co., Inc., adopted on July 10, 1968,
effective July 17, 1968, or to any modification, extension,
renewal , or supplement thereto; provided however that
nothing herein shall require Sweatermasters Co., Inc., to
vary or abandon any wage , hours, seniority, or other
substantive features of its relations with its employees
which have been established in the performance of this
agreement, or prejudice the assertion by employees of any
rights they may have thereunder.
(d) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed and
necessary to effectuate the policies of the Act:
(a) Withdraw and withhold recognition from Knitgoods
Workers' Union, Local 155, International Ladies'
"The record indicates that a substantial number of Respondent's
employees are familiar only with the Spanish language.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read - "Notify the Regional Director for
Region 19 , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
aid or protection and
To refrain from any or all of these things
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT participate in the organizational
activities of Knitgoods Workers' Union, Local 155,
International Ladies' Garment Workers' Union,
AFL-CIO, or solicit employees to sign authorization
cards for that labor organization.
WE WILL NOT recognize, contract, or adopt a
contract with Knitgoods Workers' Union, Local 155,
SWEATERMASTERS CO., INC. 311
International Ladies ' Garment Workers ' Union,
AFL-CIO, as the representative of our employees for
the purposes of collective bargaining , unless and until
said labor organization has been ' certified by the
National Labor Relations Board as the exclusive
bargaining representative of such employees.
WE WILL NOT give effect to, perform, or in any way
enforce the collective - bargaining agreement between
Knitgoods Workers' Union, Local 155, International
Ladies' Garment Workers' Union, AFL-CIO, and the
United Knitwear Manufacturers League, Inc., which we
adopted on July 10, 1968, effective July 17, 1968, or to
any modification , extension , renewal , or supplement
thereto; provided however that nothing herein shall
require us to vary or abandon any wage , hours,
seniority , or other substantive features of our relations
with our employees which has been established in the
performance of this agreement , or prejudice the
assertion by employees of any rights they may have
thereunder.
WE WILL withdraw and withhold recognition from
Knitgoods Workers' Union, Local 155, International
Ladies' Garment Workers' Union , AFL-CIO, as the
exclusive representative of our employees for the
purposes of collective bargaining , unless and until said
labor organization has been certified by the National
Labor Relations Board as the exclusive representative
of such employees.
SWEATERMASTERS CO.,
INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board's Regional Office, Fourth Floor,
16th Court Street, Brooklyn, New York 11201, Telephone
212-596-5386.