Ace Drop Cloth Co., Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1969

178 N.L.R.B. 664 (N.L.R.B. 1969)

664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ace Drop Cloth Co., Inc. and District 65, Wholesale,
Retail , Office and Processing Union, Independent.
Case 2-CA-11630
September 26, 1969
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On June 18, 1969, Trial Examiner Sidney J.
Barban issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter. the Respondent and the General Counsel
filed exceptions to the Trial Examiner's Decision
and the General Counsel filed an answering 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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Decision, the exceptions, brief, and the entire record
in this case, and hereby adopts the findings,'
conclusions, and the Recommended Order of the
Trial Examiner. 2
'Contrary to Respondent', contention, we agree with the Trial Examiner
that the General Counsel could properly amend the complaint at the
hearing to allege that employee Mungin was discriminatorily denied
reinstatement after evidence was adduced at the hearing to that effect
despite an earlier dismissal by the Regional Director of a charge
embracing such allegation We note particularly that Respondent did not
request additional time because of the amendment of the complaint and
that such issue was fully litigated at the hearing
With respect to this same issue, the Trial Examiner further stated that
he would consider conduct occurring 6 months prior to the amendment of
the complaint on April 29, 1969, which he considered equivalent to a
reinstatement of the charge Apart from Respondent's opposition to the
amendment of the complaint which we have previously rejected, there is no
exception to the Trial Examiner's further finding as to when the 6 months
limitation period of Sec 10(b) began, and we adopt such finding, pro
forma
'The Trial Examiner found and we agree, that Respondent
discriminatorily denied reinstatement to employees Kercado and Mungin
He thereafter recommended that they botn be offered full and immediate
reinstatement with backpay for each from July 30, 1968, and January 29,
1969. respectively Respondent contends, however, that only one position is
available and that Mungin, therefore is not entitled to reinstatement nor
ipso facto, to any backpay. It is not entirely clear from the present record
whether one vacancy or more existed subsequent to the striking employees
unconditional offer to return to work on July 17, 1968. It is clear,
however, that Kcrcado, an earlier discriminatee, is entitled to fill the
vacancy left by the departure of Botsaris We shall, therefore, leave for
determination in compliance proceedings, whether Mungin is in fact
entitled to immediate reinstatement and backpay from January 29, 1969,
or whether she is merely entitled to preferential hiring, for any vacancy
which arose subsequent to January 29, 1969 The Trial Examiner's
Recommended Order and notice are modified accordingly
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent. Ace Drop Cloth Co., Inc..
New York, New York, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as modified herein:
Delete paragraph 2 and 2(a) and substitute the
following:
"2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
"(a) Offer to Nicolasa Kercado and Sarah
Mungin immediate and full reinstatement to their
former or substantially equivalent positions without
prejudice to any seniority or other rights and
privileges previously enjoyed and make them whole
for any loss of pay suffered as a result of
Respondent's discrimination against them in the
manner set forth in "The Remedy." In the event
however, it is determined in subsequent compliance
proceedings or any supplemental proceedings that
may be necessary that Sarah Mungin cannot he
offered immediate reinstatement because there is no
job vacancy to which she is entitled, she shall be
placed on a preferential hiring list and hired
whenever a vacancy occurs for which she is
qualified."
2. Delete from the Appendix the third indented
paragraph and substitute the following:
WE WILL offer Nicolasa Kercado and Sarah
Mungin immediate and full reinstatement to their
former or substantially equivalent positions
without prejudice to any seniority or other rights
and privileges previously enjoyed by them and
make them whole for any loss of pay suffered as
a result of Respondent's discrimination against
them. In the event, however, that it is determined
in subsequent compliance proceedings that Sarah
Mungin cannot be offered immediate
reinstatement because there is no job vacancy to
which she is entitled, she shall be placed on a
preferential hiring list and hired whenever a
vacancy occurs for which she is qualified.
TRIAL EXAMINER'S DECISION
STATEME\ r OF THE CASK
SIDNEY J. BARBAN, Trial Examiner: This matter' was
heard before me at New York, New York, and Mt.
Vernon, New York, on April 28, 29. and 30, 1969. on
allegations in the complaint issued February 18, 1969, as
amended at the hearing (based upon charges filed on
August 21, 1968).2
'Respondent's name as amended at the hearing.
'The charges in this matter were originally filed under the name of
District 65, Retail, Wholesale and Department Store Union , AFL-CIO
District 65 disaffiliated from Retail . Wholesale and Department Store
178 NLRBNo. 107
ACE DROP CLOTH CO., INC. 665
The original charges in this matter asserted that the
Respondent, inter alia. had refused to bargain with the
Union, and had refused to reinstate Nicolasa Kercado,
Cruz Maria Rivera, and Sarah Mungin because of their
"protected activity," in violation of the Act. On March 5,
1969, the Regional Director for Region 2 of the Board
advised the parties that his investigation of the charges
showed that Mungin and Rivera were striking employees
of Respondent for whom no position was available when
reinstatement was requested, and that, therefore. "the
evidence is insufficient to warrant the issuance of a
complaint" as to those two employees. So far as appears,
there was no appeal taken from this action of the
Regional Director The parties were advised that the
remaining portions of the charges were "being processed
further." The complaint originally alleged that the
Respondent had violated the Act by refusing to bargain
with the Union in good faith, and by refusing to reinstate
Nicolasa Kercado, a striking employee, on or about
August 1, 1968, upon her offer to return to work. At the
hearing, after the testimony of Sarah Mungin on direct.
General Counsel was permitted to amend the complaint to
allege that Respondent had discriminatorily refused
reinstatement to Mungin
Respondent contends that the amendment of the
complaint alleging that Respondent violated the Act in
respect to Mungin is barred under Section 10(b) of the
Act, inasmuch as the Regional Director had previously
refused to proceed on the charges naming her. However, it
is well settled that where a valid charge exists (as
continued to be true in this matter even after the Regional
Director's action of March 5, 1969), such charge will
support allegations in the complaint concerning matters
occurring within 6 months of the original charge. where
such matters are "related to and arose out of the same
situation as that conduct alleged to be unlawful in the
timely filed charges." See Stainless Steel Products,
Incorporated, 157 NLRB 232, 234. Even if it were to be
held that the Regional Director's action extinguished the
basis for a complaint as to Mungin, for lack of a viable
charge as to her, it is considered that the General
Counsel's action here was the equivalent of a request for
the reinstatement of the original charge as to Mungin. See
Textile Machine Works. Inc., 96 NLRB 1333, 1335, fn. 1.
In such case, the General Counsel would be limited in his
allegations as to Mungin to a period of 6 months
preceding the date of his request, made on April 29, 1969.
See Olin Industries, Inc, 97 NLRB 130, cf. Koppers
Compani', Inc , 163 NLRB No. 64. As hereinafter
discussed, General Counsel's relevant evidence falls within
that period
The answer to the complaint admits allegations
sufficient to support the assertion of jurisdiction under
current standards of the Board, and to support a finding
that the Union is a labor organization within the meaning
of the Act. The answer denies the commission of any
unfair labor practices.
Upon the entire record in this case,' from observation
of the witnesses, and after due consideration of the brief
filed by the General Counsel, the Trial Examiner makes
the following
Union, AFL-CIO, by a resolution adopted on or about April 15, 1969
General Counsel's motion is granted to conform the Charging Party's
name to its present name as set forth above The Charging Party will be
referred to herein as the "Union" in respect to its activities both before
and after April 15, 1969
'General Counsel's motion to correct the transcript, which is received as
TX Exh 2, is hereby granted and the transcript ordered corrected in
FINDINGS AND CONCLUSIONS
THE FACTS
A. The Alleged Refusal To Reinstate Kercado and
Mungin
On January 5. 1968, five of Respondent's employees,
Nicolasa Kercado, Sarah Mungin, Maria Rivera Cruz
(also referred to as Cruz Maria Cruz), Lee Ernst Brumby,
and Francisco Perez (also referred to as Frank Perez
Gonzalez). who apparently comprised the entire
production and maintenance unit at Respondent's
operations, went to the Union's office and signed cards
authorizing the Union to represent them for the purpose
of collective bargaining with the Respondent. Shortly
thereafter, Union representative Mario Abreau met with
Respondent seeking recognition and a
collective-bargaining agreement covering these employees,
as set forth in more detail hereinafter. The Respondent at
the outset made clear to the employees its opposition to
the Union, interrogating them as to their reasons for
wanting the Union, attempting to get them to withdraw
from the Union, promising them benefits if they would do
so, and threatening that their action would cause
Respondent to close the plant, because it was asserted that
Respondent could not afford the Union. During these
activities and the work stoppage which followed, it
appears that Nicolasa Kercado was a leader and the
spokesman for the employees and was so recognized by
Respondent.
About the first of February, 1968, Respondent
discharged Brumby. The remaining four employees in the
production and maintenance unit went out on strike in
protest of the discharge. It is not contended here,
however, that the discharge of Brumby violated the Act,
or that the work stoppage was an unfair labor practice
strike.'
Perez shortly thereafter abandoned the strike and
returned to work About this time, Respondent hired 4,
perhaps 6, women operators who were generally
inexperienced in Respondent's operations to replace
Kercado, who had 7 years experience, Mungin, who had
been with Respondent for 5 years, and Rivera, whose
employment history is not shown.
During various collective-bargaining sessions during the
strike, the Union requested that Respondent reinstate
Brumby and the strikers, and on or about June 13, 1968,
requested reinstatement of the strikers without Brumby.
Respondent stated that it was willing to discuss
reinstatement of the strikers at the conclusion of the
contract negotiations, but asserted that it had no
obligation to take them back on the ground that they had
accordance therewith
'The Union filed charges against Respondent on February 5, 1968, in
Case 2-CA-11500, asserting that the Respondent had violated the Act,
inter aim, by discharging Brumby, intimidating, threatening, and coercing
employees, and refusing to bargain with the Union. Without admitting that
it had violated the Act, the Respondent signed a settlement agreement on
April 4, 1968, in which it agreed not to interrogate, threaten, offer,
promise or grant benefits to its employees in connection with their exercise
of rights under the Act, and to bargain with the Union It is clear that the
Regional Director had determined not to proceed on the charge relating to
Brumby Although evidence of conduct prior to the settlement was adduced
at the hearing in this matter, it was not alleged, nor has it herein been
considered, as conduct independently violative of the Act It has been
considered as background evidence insofar as it sheds light on
Respondent's conduct alleged to have been violative of the Act
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been replaced.
According to Union representative Abreau, on July 17,
1968, he went to Respondent's plant and advised Morris
Mathios (also spelled Mathias in the complaint and in the
record), president of the Respondent. that the picket line
was being withdrawn, that the strike was over, and that
the strikers were unconditionally offering to return.
Mathios agrees that Ahreau said that Kercado was ready
to come back to work, but denies that Abreau made an
offer as to the other two strikers, or that Abreau said that
strike was over or that the picket line would be
withdrawn. I am inclined to credit Abreau in the
circumstances. The Union had, indeed, decided to call the
strike oft and withdraw the picket line, and Abreau had
been instructed by his superior in the Union to so advise
the Respondent and make an unconditional offer on the
part of the strikers to return to work. No reason appears
why he should not have done so. Possibly Morris Mathios
did not clearly understand Abreau, particularly since only
Kereado accompanied Ahreau inside the plant, and was
the only striker whom Morris Mathios saw at the time. In
any event, Jerry Mathios, vice president of Respondent,
admitted that Respondent understood at that time and
thereafter that it had an obligation to reinstate the strikers
if job opportunities occurred.
Thereafter, on July 19, 1968, one of the replacement
employees, Areti Botsaris, who had been doing work
previously done by the three strikers, left work because of
pregnancy. According to Respondent, it was understood
that she would be absent for about 9 months, but could
return to work thereafter, when she arranged for the care
of her child. As of the time of the hearing, Botsaris had
not returned to work, or otherwise advised Respondent
that she still intended to come back Prior to the time that
Botsaris left work, according to Jerry Mathios,
arrangements had been made to hire a friend- of Botsaris,
it Mrs. Helen Tsmaras, to take Botsaris' place. Tsmaras
began work for Respondent on Tuesday, July 30, 1968,
and, with a short interruption for medical treatment, has
continued in Respondent's employ until the time of the
hearing.
Late in 1968, Respondent received a large order, which,
it is stated, required the employment of additional
experienced help Jerry Mathios, vice president of
Respondent, testified that he therefore sent Kercado it
letter, dated December 9, 1968, stating, "Your job is
available now. Please return to work immediately. Thank
you." Respondent has a certificate of mailing from the
Post Office, but apparently did not ask for a receipt of
delivery. Kercado, testified that although she has been
available for work, she has not heard from Respondent
since July 17, 1968. concerning work at Respondent's
operations. When Respondent did not hear from Kercado,
on December 23, 1968, it sent an identical letter to Rivera
(addressed to Cruz Maria Cruz). and likewise obtained a
certificate of mailing from the post office. Rivera, who
had moved from the address to which the letter was sent
but had filed a forwarding address with the post office.
testified that she did not receive the Respondent's letter. It
was testified that neither the letter to Kereado. nor the
letter to Rivera was returned to Respondent.
After the letter to Rivera, to which it received no
response. Respondent learned that it would not receive the
large order which it expected, and consequently had no
immediate pressing need for additional help. However, in
January 1969, after a visit from an agent of the Board's
Regional Office, apparently investigating the charges in
this matter, during which, it is stated, the agent reminded
Respondent of its continuing obligation to the strikers,
Jerry Mathios consulted with Respondent's attorney who
advised that Respondent "might was well" send out a
letter to Sarah Mungin also. By letter dated January 27,
1969, Respondent sent Mungin the same message
previously mailed to Kercado and Rivera. Though it was
admitted that at this time Respondent had no immediate
need for another operator, Jerry Mathios testified that the
offer to Mungin was for a permanent position. lie stated
that since Mrs Botsaris had given no indication that she
was going to return, Respondent would have released
Tsmaris, who had been hired to replace Botsaris, to make
room for Mungin
After Mungin received Respondent's letter, she called
the Respondent, late in January. What was said during
this conversation is critical and is in dispute. Mungin's
account, in relevant part, on direct testimony is as follows:
Oh, the letter said that my job is now available and to
report to work and I called up because at that time I
can't remember if I had an appointment to go
someplace or not . . But I called up to the company
and talked to Morris Mathios and -
1 said, "Hello, Morris." He said, "Yes." I said, "This
is Sarah." I said, "I got your letter" He told me, he
said, "I'm telling you there is no Puerto Ricans, there is
no negroes. nobody speaks English here. I am telling
you that."5 That was his words. He said none of the old
girls are here. The boy that was left on the job
[Francisco Perez] is not here no more . . . He said. "He
is not here anymore." He said, "I don't want none of
them here no more, none of the old girls here no
more."
* * * * *
He told me to think about it and call back or
something I didn't call back
Mungin denied that she had asked Morris Mathios if
the other girls had come hack, or whether Perez was still
there According to Mungin. "I didn't get a chance to say
nothing but `Hello,' and I said `Morris?,' and he did all
the talking. He told me that -he said none of the old girls
were here. He said no negroes and no Spanish. Even
[Perez] gone. Those were his words."
Morris Mathios gave the following account of the
conversation, in pertinent part:
I picked up the phone. I says, "Hello." Mrs. Mungin
says, "This is Morris?" [Mathios answers.] "Yes."
[Mungtn replies.] "This is Sarah. 1 received your
letter." 1 says- she wanted to know if any of the old
workers are back to work. I says to her, "No Just the
Greek workers are working here only.'"' Then she took
a moment of time. She says. "Well, 1 will let you know
in a day or two. I have something pending."
On cross-examination, Morris Mathlos stated that
Mungin had said to him during this conversation, that she
had received Respondent's letter, and that she was "ready
to come to work," and that he told her that her job was
'Mathios testified that the Respondent's operators (the job held by
Mungtn) were all of Greek ancestry, as was Mathios himself
`Notwithstanding Mathios' notion that all of his workers were of Greek
ancestry, Respondent's counsel directed Mathios' attention to the payroll
sheets for the last 2 weeks in January 1969, from which Mathios testified
that one "colored girl" and one Puerto Rican were working for
Respondent at the time
ACE DROP CLOTH CO., INC.
available
Patently, the two accounts have a number of points of
similarity. However, they differ materially in point of
emphasis Thus, Mungin asserts that when she called
about the job offer in Respondent's letter. Mathios replied
in harshly discouraging terms that he didn't want her
Mathios' version, in essence, is that Mungin asked the
facts, he told her, and that the facts apparently
discouraged her. He did not, however, specifically deny
her testimony that he had said he didn't "want none of
them here no more. none of the old girls here no more "
After a full and careful consideration of the entire
record, and giving weight to the impression made by the
witnesses, I have cone to the conclusion that Mungin's
testimony gives the more substantially credible account of
what occurred In particular, it is noted that at the time
Respondent sent Mungin the letter offering her job back,
it did not, in tact, have a vacant position for her, and
quite obviously made the oiler only in a tactical attempt
to put an end to any latent obligation it had to her as a
striker I have no doubt that Respondent was induced to
do so because it had no response Irom its previous letters
to Kercado and Rivera, and assumed that Mungin would
also not answer. In order to take Mungin back at this
time, Respondent would have been compelled to discharge
Tsmaris. who had been put to work in the first instance
notvsithstanding the availability of strikers having
considerably more experience In the circumstances, I am
convinced Mathios did not want to reemploy Mungin, and
sought to discourage her from coming back to work, in
substantially the manner to which she testified.
B. The Alleged Refusal To Bargain
As previously noted, in early April 1968, Respondent.
without admitting that it had violated the Act, assented to
the settlement of previous charges against it, in part, by
agreeing to bargain with the Union as the representative
of its employees in an appropriate unit of "all production
and maintenance employees, including shipping clerks and
drivers, excluding salesmen, office clerical employees,
guards, and supervisors as defined in the Act," and to
execute any agreement agreed upon.
The complaint in the present matter alleges that since
on or about J une 18, 1968, Respondent has negotiated
with the Union in bad faith, with no intention of entering
into a final, binding collective-bargaining agreement, as
particularly evidenced by Respondent's alleged actions on
June 18, in reducing its wage offer, and on June 19,
withdrawing its previous agreement to "union shop, new
workers, no moving, subcontracting, welfare provisions,
struck goods and ysuccessors" clauses given in prior
negotiations.
The facts show that in a context of some resistance, on
the basis of expressed inability to afford a union contract.
particularly in the absence of Union organization of its
competitors, Respondent recognized the Union as the
bargaining representative of its employees in the unit
noted above, in January 1968, and commenced some
preliminary bargaining The Union submitted a lengthy,
mimeographed bargaining contract, somewhat altered by
inked-in markings. as a proposal
The Respondent and the Union thereafter met and
negotiated on the Union's contract proposals on February
19, April 15, May 1. and June 13, 1968. During the
February 19 meeting, the parties were able to agree on a
number of items, principally of a non-economic nature.
Among the matters which remained in issue, the parties
667
were in dispute over the duration of the contract,
Respondent insisting upon a 3-year agreement, while the
Union sought a 2-year contract. At the April 15 meeting,
Union Secretary-Treasurer Cleveland Robinson , who there
appeaied for the only time at these meetings, made an
offer for a 3-year contract which modified some prior
Union proposals, increased the proposal for holidays and
vacations, items which had previously been agreed to, and
proposed increased minimum rates and an additional wage
increase for the third year During the meetings on May I
and June 13, however, the Union eliminated the changes
proposed by Robinson to which Respondent objected, and.
according to the credited testimony of Union
Assistant-Secretary Manheim, the Respondent and the
Union disposed of each of the Union's contract proposals
(by agreement upon the item as proposed or modified, or
by elimination of the proposal), except those relating to
minimum wage rates, wage increases, and the duration of
the agreement '
With respect to economic terms. the Respondent had
previously offered a $3 wage increase effective at the
inception of the agreement and another $3 increase in 18
months, for a 3-year agreement at the June 13 meeting,
the Union proposed a S4 increase immediately, and
another $4 after 12 months for a 2-year contract;
Respondent offered a pay scale for general help starting at
S70 increasing to $80 with increments at 6 month
intervals, and for operators. a starting rate of $74
increasing to $76 after 6 months and to S79 alter 1 year,
with a maximum of S88 at the end of the contract, "based
upon productivity." (Respondent's proposal also originally
provided that inexperienced operators would start at S64,
with periodic increases) the Union proposed that the
minimum wage scale be $2 higher than that proposed by
the Respondent: for general help $72 to $82 00, with the
same progressions proposed by Respondent , and for
operators S76 to $90 with a $3 progression every 3
months
When Respondent's counsel indicated interest in the
Union's proposals. but stated that Respondent would still
want a 3-year agreement, the Union stated that it would
agree to a third year, if the Respondent would agree to
"an arbitration at the beginning of the third year," or if
Respondent would agree to a cost of living increase for
the third year. Respondent's counsel stated that he would
take these proposals up with his client and would advise
the Union. Thereafter. by letter dated June 19, 1968,
Respondent's counsel advised the Union as follows
I discussed your most recent proposals with my client
and although they are not acceptable they constitute a
step in the right direction At the same time, my client
on the basis of' his experience in the last few months
feels that the following rates would be more realistic.
For general help he proposes a starting pay of $64. with
progressions over the contract period to $76; for
operators the rate would be $64. to start with
progressions to $80. Increments would be at the rate of
S2 every six months, except for operators where the
increments would be $3. every six months for the first
year and a hall Inasmuch as his former employees
received higher pay, their rates, if rehired, would be the
same as previously paid.
'in respect to the Union' s proposed "Struck Goods" clause when
Respondent 's counsel expressed agreement in principle but objected to the
Union's language, it was agreed that Respondent would draft the language,
and the Union stated that it would accept the language drafted by
Respondent's counsel
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manheim called Respondent's counsel, Duker, and
expressed his surprise and shock at the reply, stating that
this approach made it impossible to reach agreement.
Duker answered. "Look, this is what my client has told
me to tell you. What can I say." Manheim requested that
another meeting be set up, with Duker's client present.
Such a meeting was eventually set up for July 3, 1968.
According to Manheim's uncontroverted testimony, in
pertinent part, the following occurred:
Well, we discussed the question of minimums and wages
and I asked them why they were not prepared to accept
the proposal that I had made which was only . a
dollar more a year [than] their proposal of three dollars
in each year of the contract.. .
* * *
I said that obviously we could not go, at this point,
below the proposals they had made before. They
couldn't be serious about that. And I said if . there
was some way to bridge the gap between the proposals
they had originally made and those I made and I was
prepared to react to them. They just kept repeating that
they could not they would not pay more than the
proposals. . . in that letter I think it was Mr. Mathios
who said that, "Look, if I can get people at that rate,
why should you object? If I have to pay more I'll pay
more but if I can get them at this wage why should you
object')" I told him that... from what he had said
on previous occasions, that... the people he employed,
not alone the people that we organized, but the people
he hired since then were hired at more. . . He
obviously was not serious.
He said, "well, I may have had to pay them that.
Maybe I can get people for less. I don't want to be
required to pay more than that. I am complying with
the law It's not illegal to pay $64."
Manheim accused Respondent of attempting to renege
on its commitments in an effort to avoid reaching an
agreement . and insisted upon a complete contract
proposal from Respondent. Duker agreed to submit a
complete proposal within a few days.
Respondent's contract proposal was submitted with a
covering letter dated July 19, 1968. In form, it consisted
of a copy of the Union's mimeographed proposal,
extensively revised. Among the revisions , the following
may be particularly noted:
The "Union Shop" clauses (sec. 2), providing for
compulsory Union membership on the 30th day following
the effective date of the agreement , or later hire, and for a
checkoff of union dues upon written authorization, which
had previously been agreed upon as proposed by the
Union, was revised by Respondent to provide only for
maintenance of membership of employees who were or
became members of the Union, and eliminated reference
to checkoff of Union dues.
Section 3 of the proposed contract, "New Workers,"
which had been previously agreed, was revised to
eliminate reference to the use of the Union as a preferred
source for hiring new workers.
Section 5 of the proposed contract , "Basic Crew,"
which had been previously agreed with certain
modifications, was eliminated.
Section 7 of the proposed contract, "No Moving."
which had previously been agreed as modified , was revised
to eliminate reference to severance pay for workers who
did not desire to transfer to a new location requiring extra
travel time.
Section 8 of the proposed contract. "Sub-Contracting."
which had been previously agreed, was eliminated.
With respect to Section 19 of the proposed contract,
"Security Plan," Respondent had previously agreed to a
certain contribution to the Security Plan, to which the
Union had assented. In Respondent's revised proposal all
reference to the Security Plan was stricken.
Section 26 of the proposed contract, "Struck Goods,"
with respect to which Respondent had agreed to submit
revised language, was eliminated without alternative
proposal.
Section 31 of the proposed contract, "Successors &
Assigns," which had previously been agreed, was
eliminated.
C. The Identity of the Union
Because of a policy disagreement with Retail,
Wholesale and Department Store Union, AFL-CIO,
herein called RWDSU, as previously noted, on or about
April 15, 1969, District 65 passed a resolution
disaffiliating from that organization. Both before and after
April 15, District 65 was a separate entity, with its own
officers, constitution and members, existing for the
purpose of dealing with employers in collective bargaining
concerning wage, hours, and other terms and conditions of
employment of its members. There is no claim that
RWDSU has asserted any interest in the organization of
Respondent's employees, or was in any way involved in
the collective bargaining between the Union and the
Respondent. Nor is there any evidence that the employees
of Respondent who designated the Union as their
bargaining agent were influenced to do so because of the
Union's affiliation with RWDSU. In fact, the constitution
of RWDSU provides that the right and authority to
represent the members of an affiliate in collective
bargaining matters rests solely with the affiliate, subject to
broad policy considerations established by RWDSU
(General Counsel Exhibit 1, Article VII. Sections 9(b),(c),
Article XVII). So far as this record shows, no limitation
upon the authority of District 65 to represent its members
had been established. The constitution of RWDSU also
provides that the right of affiliates to disaffiliate "at any
time shall be inviolate," subject to the procedures
provided. There is no showing that RWSDU has
contested the disaffiliation, or that the disaffiliation has
caused any schism in District 65, or otherwise affected
District 65's capacity to represent its members in
collective bargaining
There being no evidence sufficient "to prove a change
in the organic structure, composition, or leadership" of
the Union, it is therefore held that the identity of the
Union continued intact at all times material herein, and
that the Union was at all times the duly designated
representative of the appropriate unit set forth above for
the purposes of collective bargaining. The mere change of
name and affiliation was not sufficient to destroy this
status. See N.L.R B. v. Weyerhaeuser Company, etc., 276
F.2d 865, 873 (C.A. 7).
Analysis and Conclusions
1. The job rights of Kercado and Mungin Respondent
was aware that unconditional offers to return to work had
been made on behalf of economic strikers Kercado and
Mungin as early as June 13. 1968, and admittedly
understood that Kercado was present seeking
reinstatement on July 17, 1968. Respondent's ostensible
ACE DROP CLOTH CO., INC.
reason for refusing to reinstate the strikers was that they
had been permanently replaced by newly hired workers.
The General Counsel contends, however, that when one of
the replacement employees, Botsaris, left on July 19, 1968,
for an extended period to have a baby, from which leave
Respondent was not sure she would return, Respondent
should have offered the vacant position to Kcrcado,
Respondent's most experienced operator, rather than
hiring Tsmaris, an inexperienced worker, to start work on
July 30, in that position. Respondent's refusal to do so,
General Counsel asserts, was motivated, in violation of
the law, by the fact that Kercado had been a leader in the
Union movement among the employees, and in the strike
Respondent's basic obligation to reinstate strikers who
have been validly replaced was recently set forth by the
Board in The Laidlaw Corporation, 171 No. 175, wherein
it was stated ". . economic strikers who unconditionally
apply for reinstatement at a time when their positions are
filled by permanent replacements: (1) remain employees:
(2) are entitled to full reinstatement upon the departure of
replacements unless they have in the meantime acquired
regular and substantially equivalent employment, or the
employer can sustain his burden of proof that the failure
to offer full reinstatement was for legitimate and
substantial business reasons."
Respondent, while it has not specifically explicated its
reasons for preferring Tsmaris over Kercado in filling the
vacancy left by Botsaris, has indicated that its defense is
based, first, upon the assertion that at some indefinite
time (apparently within a month) prior to July 17, when
Kercado last offerred to return to work, Respondent had
already made arrangements to employ Tsmaris, and
secondly, upon the claim that the vacancy was merely
temporary pending the return of Botsaris. These assertions
clearly do not establish "legitimate and substantial
business reasons" for the failure to offer reinstatement to
Kercado upon the departure of Botsaris. within the
requirement of Laidlaw
Thus, there is no showing of a commitment to Tsmaris
such that Respondent could claim that either it or Tsmaris
were bound thereby, or that it would have been
inequitable to prefer Kcrcado over Tsmaris. Cf Pioneer
Flour Mills, 174 NLRB No. 174 (TXD) (there the
replacement employees, two of whom had left other
employment, had been extensively processed by the
employer before being put to work almost simultaneously
with the strikers' offer to return). Moreover, the record is
convincing that Respondent was aware that Kercado was
willing to return unconditionally on June 13, prior to the
time of Respondent's asserted final arrangements with
Tsmaris.8 Moreover, there was ample time between July
17, when Kercado's offer to return was confirmed, and
July 30, 1968, when the vacancy was filled, for
Respondent to rescind its asserted arrangements with
Tsmaris, and to fulfill its acknowledged obligation to
Kercado. Inasmuch as Respondent now claims that it was
willing to discharge Tsmaris after she was employed 6
months in order to make room for another striker,
Mungin, no reason (other than Respondent's desire not to
reinstate Kercado because of her Union and concerted
activities) appears for its failure to prefer Kercado over
Tsmaris in July 1968. The choice of Tsmaris over the
much more experienced Kercado is all the more
inexplicable since Respondent admittedly was experiencing
great increases in cost of production at the time,
stemming from the strike, and certainly, in part, from the
employment of new and inexperienced help.
669
The further claim that Respondent was excused from
offering the Botsaris' vacancy to Kercado because it was
allegedly temporary in nature requires little comment.
Whatever might be the case where a truly temporary or
casual opening is involved, upon which I do not pass, the
opening here was for a substantial period of time, with a
substantial possibility that Botsaris would never return,
which actually has occurred. In the circumstances of this
case, Respondent clearly, under the principles of Laidlaw,
had an obligation to offer the vacancy to Kercado, and
failed and refused to do so. In fact, as previously
indicated, I am convinced on the record as a whole that
Respondent was motivated in its actions in this respect
because of Kercado's exercise of her rights under the Act,
as detailed herein. Respondent's refusal and failure to
offer reinstatement to Kercado in July, 1968, therefore
constituted a violation of Section 8(a)(1) and (3) of the
Act.
The record is further convincing that Respondent's
actions in respect to Mungin were in bad faith.
Respondent offered Mungin her job back at a time when
it had no opening for her, now asserting that if she came
back, Respondent would have discharged a replacement
employee whom Respondent had previously preferred over
the strikers. In fact, as is clearly evident, Respondent
offerred Mungin employment in order to gain a legal
advantage for itself, in the expectation that she would not
reply to the offer, as Kercado and Rivera had previously
failed to respond to similar letters Then, when Mungin
did reply. Respondent advised her that working conditions
would not be comfortable for her, she would be among
strangers speaking a strange tongue, and that Respondent
did not actually want her or the other strikers in the plant.
It is found that Respondent thereby made clear to Mungin
that she was not wanted, and, in effect, withdrew its
previous, apparently genuine, offer, and refused Mungin
reinstatement because she had been engaged in union and
strike activities.
It has been settled since the decision of the Supreme
Court in N.L.R.B. v. Mackay Radio & Telegraph Co.,
304 U.S. 333 that, although an employer may in good
faith replace striking employees, the employer may not
refuse to reinstate strikers just because they exercised their
rights under the Act, even though their jobs may have
been filled during the strike. Thus, the Court stated (304
U.S. at 346, 347):
The assurance of respondent to those who accepted
employment during the strike that if they so desired
their places might be permanent was not an unfair labor
practice nor was it such to reinstate only so many of the
strikers as there were vacant places to be filled. But the
claim put forward is that the unfair labor practice
indulged by the respondent was discrimination in
reinstating striking employees by keeping out certain of
them for the sole reason that they had been active in
the union As we have said, the strikers retained, under
the Act, the status of employees. Any such
discrimination in putting them back to work is,
therefore, prohibited by Section 8.
'Jerry Mathios' testimony tended to vary as to whether he (or
Respondent) knew of Kercado's availability prior to the employment of
Tsmaris. To the extent that his testimony conflicts with the findings herein
(if it does), the testimony is not credited
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board found, and we cannot say that its finding is
unsupported, that, in taking back six of the eleven men
and excluding five who were active union men, the
respondent's officials discriminated against the latter on
account of their union activities and that the excuse
given that they did not apply until after the quota was
full was an afterthought and not the true reason for the
discrimination against them.
Under the circumstances of the present case, it is
abundantly clear, and I find, that Respondent's actions in
respect to Mungin in the last of January 1969, constituted
a refusal to reinstate Mungin to the job which she had
previously held because of her strike and Union activities,
and not because she had been replaced, and Respondent
thereby violated Section 8(a)(l) and (3) of the Act '
2. The asserted refusal to bargain. In essence, the
General Counsel's contention is that Respondent's conduct
beginning with its letter of June 19, revising Respondent's
wage offer downward, and by subsequently withdrawing a
number of agreements to contract proposals evidences bad
faith bargaining designed to prevent the parties from
arriving at a complete agreement. It is noted, in
particular, that immediately prior to June 19, when
Respondent initiated these shifts in position, before the
Union had called off its strike, the parties had come to
agreement on all non-economic and some economic terms
for a collective-bargaining contract, and the Union had
evidenced, by concessions and modified proposals, a
substantial interest in coming to terms with Respondent
on an agreement.
Respondent admits that it thereafter reduced prior
offers and withdrew previous agreements made in
collective bargaining, but apparently contends that it was
warranted in its actions, in that, (1) its actions were a
tactical manuever similar to that of Union representative
Robinson at the April 15 meeting, in changing proposals
previously agreed by the Union, (2) Respondent's
deteriorating economic position required reduction and
withdrawal of economic items previously acceptable, and
(3) opposition to the Union by replacement employees
justified revision of the union shop and new workers
proposals.
However, the record does not support these positions
Thus, if in fact, the Respondent had radically changed its
position in direct response to Robinson's asserted
objectionable conduct, a different situation might be
presented.'° However, Respondent did not do so, but
continued its prior offers and bargained with the Union in
two succeeding meetings for further concessions from the
Union, including elimination of the various changes
requested by Robinson. Respondent cannot now assert
that its later withdrawals of offers and agreements were
occasioned by Robinson's conduct.
Neither does a claim that opposition of replacement
employees to the Union, or that Respondent's financial
'In coming to this conclusion , full consideration has been given to
evidence adduced by Respondent of certain intemperate and abusive
language used by Mungin on the picket line to nonstriking employees
However, inasmuch as Respondent asserts that it was thereafter willing to
accept Mungin for permanent employment in her previous position, it is
manifest that Respondent did not consider Mungin's conduct as
disqualifying her for further employment
"I do not pass upon whether Robinson ' s actions were proper, or whether
they would have justified counter measures by Respondent The
negotiations were not litigated in sufficient detail for that It is noted, as
General Counsel argues, that Robinson 's actions could be justified , on this
record , as a good faith attempt to adjust to Respondent 's insistence on a
3-year contract.
position was deteriorating support Respondent's actions in
this matter. Respondent's asserted financial difficulties
were known from early during the strike, and certainly by
June 13, the last meeting between the Union and the
Respondent, but Respondent gave no indication of those
problems during the negotiations, or that it might have to
recede from previous offers and agreements. The assertion
that Respondent was justified in reducing previously
offered wage scales because Respondent was convinced it
could hire employees for less was clearly specious. Even
the replacement employees were hired at rates higher than
those in Respondent's revised proposal.
The claim that Respondent was motivated in changing
its position with respect to the contract proposals because
of asserted employee opposition to the Union is contained
in an affidavit of Jerry Mathios only. Although this would
ordinarily constitute inadmissible evidence of the fact, see
N L R. B. v. Quest-Shon Mark Brassiere Co., Inc, 185
F.2d 285 (C.A 2), since it was offered and received
without objection, it has been given full consideration. See
Syracuse Engineering Co., Inc v. Haight, 97 F.2d 573
(C.A. 2). Nevertheless, since Jerry Mathios did not give
any direct evidence on the point when he was a witness,
and since I find it highly improbable in the circumstances
of this case that Respondent would have remained
unaware of the opposition of the replacement employees
to the Union, if that occurred, until mid-July, as is
claimed, I have concluded that this evidence is entitled to,
and have given it no weight
The changes proposed by the Respondent on June 19
and thereafter unilaterally repudiated offers made and
agreements reached on numerous contract proposals after
a considerable period of collective bargaining, and
necessarily tended to bring the progress made to that
point in achieving a bargaining agreement to a screeching
halt. In the circumstances of this case, it is found that the
Respondent's unilateral action in proposing a contract
with substantially changed provisions at the late stage of
negotiations shown by the record was a negation of its
duty to bargain in good faith, and that Respondent
thereby refused to bargain within the meaning of Section
8(a)(5) of the Act. See The Marley Company, 150 NLRB
919.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The following unit of Respondent's employees is
appropriate for collective bargaining within the meaning
of Section 9(b) of the Act
All production and maintenance employees, including
shipping clerks, and drivers, employed by Ace Drop
Cloth Co., Inc., at its place of business in New York
City, excluding salesmen, office clerical employees,
guards and supervisors as defined in the Act.
4. Since January 5, 1968, the Union has been and
continues to be the exclusive representative of the
employees in the aforesaid appropriate unit for the
purpose of collective bargaining within the meaning of
Section 9(a) of the Act.
5. The Respondent has engaged in and is engaging in
unfair labor practices in violation of Sections 8(a)(1), (3)
and (5) of the Act, which unfair labor practices affect
commerce within the meaning of Sections 2(6) and (7) of
ACE DROP CLOTH CO., INC. 671
the Act.
Tiia REMEDY
It having been found that the Respondent has engaged
in unfair labor practices in violation of Section 8(a)(I),
(3). and (5) of the Act, it will be recommended that
Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
It will be recommended that Respondent offer Nicolasa
Kercado and Sarah Mungin immediate and full
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges and made them whole for any loss of
earnings they may have suffered by reason of the
discrimination against them" to the date of reinstatement,
less interim earnings, and in a manner consistent with
Board policy set out in F W Woolworth Company. 90
NLRB 289, to which shall be added interest at the rate of
6 percent per annum as prescribed by the Board in Isis
Plumbing & Heating Co.. 138 NLRB 716
The General Counsel requests that the Respondent be
specifically ordered to reinstate its offers to the Union as
they existed on June 13, 1968. However, I find that this
would be inappropriate and unnecessary. It has been
found that the withdrawal of Respondent's offers and
agreements as of that date were in bad faith It will be
recommended that the Respondent be ordered to bargain
with the Union, upon request, in good faith, in accordance
with the Board's normal form and practice.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law, and upon the entire record in this case,
it is recommended that the Respondent, Ace Drop Cloth
Co , Inc.. New York, New York, its officers, agents.
successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against, or
refusing to reinstate or to employ employees in order to
discourage membership in or support of District 65,
Wholesale, Retail. Office and Processing Union,
Independent, or any other labor organization, or because
such employees engage in concerted activities under the
Act
(b) Refusing to bargain collectively in good faith with
District 65, Wholesale. Retail, Office and Processing
Union, Independent, as the exclusive bargaining
representative of employees in the appropriate unit found
herein.
2 Take the following affirmative action which it is
found will effectuate the purposes of the act-
(a) Offer Nicolasa Kercado and Sarah Viungin
immediate and full reinstatement to their former or
substantially equivalent positions and make them whole
for any loss of earnings they may have suffered by reason
of the discrimination against them, in accordance with the
provisions of the section entitled "The Remedy" above
"It has been found that the date of discrimination against Kercado was
July 30, 1968, when Tsmaris began work Although the exact date of
Mungin's conversation with Morris Mathios in January 1969, was not
fixed, it is reasonable to infer that this occurred no later than January 29,
1969, and that the discrimination against Margin occurred on that date,
and it is so found
(b) Preserve and make available to the Board, or its
agent, upon request, payroll and other records to facilitate
the computation of backpay
(c) Upon request, bargain collectively, in good faith,
with District 65, Wholesale, Retail, Office and Processing
Union, Independent, as the exclusive representative of the
employees in the appropriate unit found herein with
respect to rates of pay, wages, hours of employment or
other terms and conditions of employment, and, if an
agreement is reached, embody such understanding in a
signed agreement.
(d) Post at its plant in New York, New York, copies of
the notice attached marked "Appendix."2 Copies of said
notice, on forms provided by the Regional Director for
Region 2, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced. or
covered by any other material.
(e) Notify said Regional Director, in writing , within 20
days from the receipt of this Decision, what steps
Respondent has taken to comply herewith."
"In the event 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 the 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 said Regional Director, in
writing, within 10 days from the date of this Order what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPI OYEES
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:
WE WILL, upon request bargain in good faith with
District 65, Wholesale, Retail. Office and Processing
Union. Independent, for your working conditions in the
appropriate unit set forth below
All production and maintenance employees, including
shipping clerks and drivers, employed by the
company, excluding salesmen, office clerical
employees, guards and supervisors as defined in the
National Labor Relations Act, as amended.
Wi wiLi, if an agreement is reached, sign a written
contract with the Union setting forth our agreement.
WE WILL offer Nicolasa Kercado and Sarah Mungin
immediate and full reinstatement to their former or
substantially equivalent positions without loss of
seniority or other rights and privileges, and WE Wit L
make them whole for any loss of pay because they were
denied employment.
WE WILE Noi discharge, or refuse to employ, or
refuse to reinstate any employee because of membership
in a Union, or activities in support of a Union, or
because employees go on strike or engage in other
concerted action for mutual aid or protection of
672
working conditions.
Dated By
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
AcF DROP CLOTH Co., If employees have any question concerning this notice
INC. or compliance with its provisions they may communicate
(Employer) directly with the Board's Regional Office, 36th Floor,
Federal Building , 26 Federal Plaza, New York. New York
(Representative) (Title) 10007. Telephone 212-264-0300.