Amberton Knitting Mills, Inc.

National Labor Relations Board - Board Decisions

Aug 6, 1963

143 N.L.R.B. 1195 (N.L.R.B. 1963)

AMBERTON KNITTING MILLS, INC. 1195
The above facts, we believe, establish that the employees at the
new center could properly be included in either of the existing units.
Thus, the new center will debark and buck logs for both the sawmill
and the plywood plant ; the new center will displace employees from
both the sawmill and plywood units; although, by virtue of the log
conveyor, the new center will be physically attached to the plywood
plant, the powerhouse, pumphouse, and certain other maintenance
functions upon which the bucking center will be dependent will con-
tinue to be manned by employees in the sawmill unit; and with the
exception of two job classifications (i.e., log stacker operator and ring
barker operator), the work to be performed by employees in the new
center is virtually identical to the work previously performed in the
Employer's present sawmill and plywood operations and employees
in both the Plywood Workers' and the Woodworkers' units are cap-
able of performing this work without further training.12
In these circumstances, and since the new debarking and bucking
center could properly be included in either of the existing units, we
find that this center is not an accretion to either the Plywood Workers
or the Woodworkers units. We therefore find that the motion for
clarification raises a question concerning representation which may
not be resolved through a clarification of the existing units. Accord-
ingly, we shall deny the Petitioner's motion for clarification.13
[The Board denied the motion to clarify the certification in Case
No. 36-RC-751.]
12 With only 2 weeks training , present employees in either unit could be readied to
operate the log stacker and ring barker.
13 See The Gas Service Company, 140 NLRB 445.
In view of the determination , we find it unnecessary to reach woodworkers ' contention
that the Plywood workers' motion be dismissed on the ground that it was untimely filed.
Amberton Knitting Mills, Inc. and Joseph Benigno
Knitgood Workers Union , Local 155, International Ladies' Gar-
ment Workers Union, AFL-CIO (Amberton Knitting Mills,
Inc.) and Joseph Benigno
Knitgood Workers Union , Local 155, International Ladies' Gar-
ment Workers Union , AFL-CIO (Amberton Knitting Mills,
Inc.) and Philip Shulman . Cases Nos. 2-CA-8301, 2-CB-329P2,
and 2-CB-3281. August 6, 1963
DECISION AND ORDER
On February 1, 1963, Trial Examiner Thomas N. Kessel issued his
Intermediate Report in the above-entitled proceeding, finding that
143 NLRB No. 111.
1196 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Intermediate Report. He also found that the Respondent Union
had not engaged in certain other alleged unfair labor practices and
recommended dismissal of these allegations of the complaint. There-
after, the Respondents and the General Counsel filed exceptions to
the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection
with these cases to a three-member panel [Chairman McCulloch and
Members Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in these cases, including the
exceptions and briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.'
ORDER
,The Board adopts as its Order the Trial Examiner's Recommended
Order.2
1 The Respondent Employer 's exceptions to the Intermediate Report and supporting brief
are in large part directed to the credibility resolutions of the Trial Examiner . We will
not overrule the Trial Examiner 's resolutions as to credibility , unless a clear preponder-
ance of all relevant evidence convinces us that they are incorrect . Upon the entire record,
such conclusion is not warranted here. Standard Dry Wall Products , Inc, 91 NLRB 544,
enfd 188 F . 2d 362 (CA. 3).
2 The following shall be added to Appendix A attached to the Intermediate Report,
immediately below the signature line at the bottom of the notice:
NOTE.-We will notify the above -named employee if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Separate charges against Amberton Knitting Mills, Inc., herein called the Com-
pany, and against Knitgood Workers Union, Local 155, International Ladies' Gar-
ment Workers Union, AFL-CIO, herein called the Union, were filed by Joseph
Benigno, on November 27, 1961. A charge against the Union was filed by Philip
Shulman on November 13, 1961. Pursuant to Benigno's charges , an order con-
solidating cases, complaint , and notice of hearing was issued on March 28, 1962,
in Cases Nos. 2-CA-8301 and 2-CB-3292 against the Company and the Union by
the General Counsel of the National Labor Relations Board, herein called the Board,
by the Acting Regional Director for the Second Region. On May 4, 1962, the Re-
gional Director issued an order amending the foregoing complaint . Pursuant to Shul-
man's charge , a complaint and notice of hearing was issued on March 28, 1962, in
Case No. 2-CB-3281 against the Union by the Acting Regional Director . The con-
solidated complaint in Cases Nos. 2-CA-8301 and 2-CB-3292 alleged that the Com-
pany had violated Section 8 (a) (3) and ( 1) and Section 2(6) and (7) of the National
Labor Relations Act, 61 Stat. 136, herein called the Act, and that the Union had
violated Section 8(b)(2) and (1)(A) and Section 2(6) and (7) of the Act. The
AMBERTON KNITTING MILLS, INC. 1197
complaint in Case No. 2-CB-3281 alleged that the Union had violated Section
8(b)(2) and (1) (A) and Section 2(6) and (7) of the Act. The Company and the
Union filed answers denying all the averments of statutory violation ascribed to
them in said complaints . On May 4, 1962, the Regional Director issued an order
consolidating the foregoing cases and a notice of hearing which was served on the
parties. Pursuant thereto a hearing was held at New York City on May 14 and 15
and from September 17 through 20, 1962 before Trial Examiner Thomas N. Kessel.
All parties were represented at the hearing by counsel . During the course of the
hearing the request for participation therein by Charging Party Joseph Benigno was
granted. Full opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence was afforded all parties . After the close of the hearing briefs
were filed by the General Counsel, the Company, and the Union which have been duly
.considered . Motions by the Company and the Union for the dismissal of the com-
plaints made at the close of the hearing are disposed of by the findings and con-
^clusions herein.
Upon the entire record in the case , and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. PERTINENT COMMERCE FACTS
The Company is a New York corporation engaged at Jamaica, New York, as a
contractor making for a jobber certain ladies' garments and related products. In
the year preceding issuance of the complaints the Company contracted for and
made for that jobber products valued in excess of $50,000 which were shipped by
the Company directly across State lines, and in the same period the Company had
goods valued in excess of $50,000 shipped directly to its plant from other States.
From these facts I find that the Company is engaged in interstate commerce within
the meaning of the Act and that the purposes of the Act will be effectuated by asser-
tion of the Board's jurisdiction over it in these proceedings.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership the Company's
employees.
III. THE UNFAIR LABOR PRACTICES
A. Contentions and issues
1. In Cases Nos. 2-CA-8301 and 2-CB-3292
Charging Party Joseph Benigno had been hired by the Company as a presser in
September 1960. The General Counsel contends he was unlawfully discharged by
the Company in violation of Section 8(a) (3) of the Act on June 1, 1961 , because he
had invoked the Union's aid in the settlement of a dispute between him and the
Company over a piece-rate price on work performed by the Company's pressers.
The Company denies that it discharged Benigno or that it was in any way re-
sponsible for his termination of employment on June 1, 1961. The Company
asserts that Benigno was "taken off the job" by the Union because in the course of
his employment he had received excessive earnings and had worked an excessive
number of hours contrary to the Union's rules and its collective-bargaining contract
with the Company.
As to the Union , the General Counsel contends that on May 31, 1961, it un-
lawfully informed Benigno, in violation of Section 8 (b) (1) (A) of the Act, he would
not be permitted by it to continue his employment with the Company and that on
June 1, 1961, in violation of Section 8(b) (2) of the Act, the Union caused or at-
tempted to cause the Company to discharge Benigno because he had violated the
Union's rule by working an excessive number of overtime hours and also because
he had not received overtime rates for these hours. The Union makes issue of the
fact concerning what it told Benigno on May 31. It denies it told him flatly he could
not continue to work for the Company and insists he was told merely that the Union
would not permit him to continue working under conditions which violated its
contract with the Company. In any event , argues the Union , Benigno was not
coerced in the exercise of Section 7 rights in violation of Section 8(b) (1) (A) what-
ever may have been said to him on May 31. The Union further denies any contact
or communication with the Company from which it may be found that it engaged
in conduct causing or attempting to cause Benigno's discharge on June 1, 1961, in
violation of Section 8(b) (2) of the Act.
Subsequent to Benigno 's June 1, 1961, termination of employment , he resumed
working for the Company on September 7, 1961. The General Counsel contends
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Company thereafter again unlawfully discharged Benigno on September 15,
1961, for the same reasons which motivated his first discharge on June 1, 1961, and
that the Company thereby violated Section 8 (a) (3) of the Act. The Company here
also maintains it did not discharge Benigno but that he voluntarily terminated his
employment by refusing to comply with the Company's requirements for the per-
formance of his work. The Company further asserts that should it be found that
Benigno was discharged this action was justified by his insubordination to and abuse
of the Company's officials and by his incompetence.
Following Benigno's termination on September 15, 1961, the Union invoked the
grievance machinery of the contract to have him restored to his job. The General
Counsel contends that the Union failed to give him sincere and bona fide representa-
tion and that following a sham grievance procedure the Union withdrew its com-
plaint against the Company for Benigno's discharge with the result that he failed
to secure restoration to his job. This conduct by the Union is claimed by the Gen-
eral Counsel to constitute causing or attempting to cause Benigno's discharge by the
Company in violation of Section 8(b) (2) of the Act and also restraint and coercion
in violation of Section 8(b) (1) (A) of the Act in the exercise of Benigno's Section 7
rights. The Union contends that in fact it did give Benigno bona fide representation
in the grievance proceeding, and that in law whatever may have been its role in
that proceeding such cannot be regarded as having been a cause or attempt to cause
his discharge for that was already an accomplished fact before the initiation of the
grievance procedures. The Union perceives no Section 7 rights which could possibly
have been violated by its conduct in the course of the grievance proceeding
2. In Case No. 2-CB-3281
Charging Party Philip Shulman was employed as a presser by the Company in
June 1961 following Benigno's termination. Shulman's employment, which ended
on September 6, 1961, did not terminate because of any action by the Company.
He left his job, according to the General Counsel, because he was ordered to do so
by the Union to make way for the return to work by Benigno. The General Counsel
contends that the Union's order to Shulman constituted causing or attempting to
cause the Company to discharge him in violation of Section 8(b) (2) of the Act, and
that the order was accompanied by a threat violative of Section 8(b) (1) (A) of the
Act. The Union's view is that absent communication of a request by it to the Com-
pany there could be no causing or attempt to cause Shulman's discharge within
the meaning of Section 8(b)(2) of the Act. Nor can the Union perceive any re-
straint or coercion of Shulman's Section 7 rights in violation of Section 8 (b) (1) (A)
in its order to him to terminate his employment. The Union denies threatening
Shulman.
B. The pertinent evidence
1. Benigno 's June 1, 1961, discharge
Benigno was hired by the Company in September 1960 at a time when it had only
one other presser in its knit goods wear department, his father-in-law, Joseph Kropf.
Compensation for both Kropf and Benigno was on a piece-rate basis. Pursuant to
their personal arrangement, they shared equally in the earnings derived from their
combined efforts. They devised a cooperative plan whereby each performed certain
operations for pressing a single garment and by the utilization of this method and
the abundance of work available to them jointly earned sums which for a certain period
in the early months of 1961 ranged from $1,000 to almost $1.400 weekly This en-
tailed working numerous overtime hours which averaged 25 hours weekly.
About May 1961 the Company installed additional pressing machines and trans-
ferred Wilson Gallop, a chenille presser, to the knit goods department. In that month
the Company began pressing operations on a new garment. In accordance with
practice the piece rate for this garment had to be negotiated by the Comnany with
its knit goods pressers. Bernard Helfer, company official, offered a price which
the pressers deemed grossly inadequate . Benigno , having been appointed as spokes-
man by Kropf and Gallop, unsuccessfully negotiated with Helfer for a higher price.
Benigno testified that Helfer offered a low price which the pressers would not
accept. Benigno counteroffered and indicated that he was spokesman for all the
pressers. Helfer made a caustic reference about the employees running his shop
and stated his unwillingness to continue discussion of the subject. The pressers there-
upon decided to obtain the assistance of employee Sam Dragotta, the Union's chair-
man in the shop. Dragotta explained to Benigno that it was customary, in settling
disputes over piece rates, for the employees to contact the Union which would then
seek a price settlement with the Company in their behalf. Benigno informed Dragotta
of his desire to invoke the Union's aid and Dragotta shortly thereafter notified him
AMBERTON KNITTING MILLS, INC. 1199
that arrangements had been made for a meeting that night at the Union 's office with
Business Agent Jerry Breslaw. That same afternoon Helfer came to the pressers and
expressed his annoyance concerning the talk about the piece rate. He emphasized
that he was the boss of the shop and declared that "the union or no one else is going
to tell him what to do and that if anybody didn t like it, they could get out." Benigno
acknowledged his respect for him as the boss but reminded him that the union rights
of employees in turn merited his respect and that in the circumstances there was no
alternative for the pressers except to go to their union. Helfer replied in a loud
voice, "Never mind that union stuff. Nobody is going to tell me what to do in here.
You are going to get yourself in a lot of trouble. I'm going to get you out of here."
Benigno related that the foregoing incident occurred on Friday, May 26, 1961. He
went to the meeting that night at the Union 's office accompanied by Kropf and Gallop.
Breslaw advised him to resume negotiations the following Monday with the Company
and to try to reach agreement on a piece rate. If agreement could not be reached
Benigno was to notify him and then a price committee or other representative from
the Union would intercede . At the same meeting Benigno inquired concerning his
entitlement to time and one-half pay for past overtime work for the Company.,
Breslaw instructed him to secure a statement from the Company showing all the
overtime he had worked. When Benigno reported for work on the following Monday,
May 29, 1961, he requested the Company's bookkeeper to provide him with a state-
ment of his overtime. Shortly afterward Helfer summoned him and stated he had
heard about his visit to the Union and the fact that he had revealed his failure to
receive overtime payments . Benigno acknowledged that this had occurred where-
upon Helfer assertedly said, "I can see there is no use talking to you. I guess you
don't like working here anymore ." Later that same day the bookkeeper told Benigno
she had been forbidden to give him the overtime data he sought.
As Benigno was leaving the shop on Monday, May 29, after finishing his day's
work, he was engaged in conversation by Harry Rabinowitz , the Respondent 's presi-
dent, about his dispute with the Company . Benigno attributed these comments to
Rabinowitz : "You are a pretty smart fellow . I can 't understand why you are going
out of your way to create trouble." He mentioned the Company 's sizable financial
contributions to the Union and contrasted them with the mere $4 monthly dues paid
by Benigno to the Union and asked, "Do you think the Union is going to jeopardize
their relationship with the firm for $4 a month ?" Benigno replied that the Union
was the only place he could turn for help and intended to do so. Rabinowitz was
unable to shake his determination . He ended his discussion with the following
admonition , "Okay, Joe, let me tell you one thing. You see this telephone. All I
have to do is pick up this phone and in 5 minutes , you are out of the shop ." Benigno's
retort was a sarcasm about Rabinowitz ' powers and a reiteration of his intention to
go to the Union.
Benigno related that when he returned home following his conversation with Rabino-
witz he learned that Breslaw had already called and had left word for him to return
the call immediately . Benigno made the call to Breslaw and explained that he had
been unable to meet him at the Union because he had been delayed at the plant by
Rabinowitz . Breslaw then instructed him to come to the Union 's office the follow-
ing Wednesday night without fail and cautioned that his "job may depend on it."
Benigno asked what this meant and why he was in jeopardy of losing his job. Breslaw
told him only that he must be at the Union's office at the appointed time without fail.
On Wednesday , May 31 , Benigno was summoned by Rabinowitz to his office.
Benigno testified that Rabinowitz expressed his understanding that he had gone to
the Union and had spoken to Breslaw . Benigno affirmed this, whereupon Rabinowitz
made an obscene reference to Breslaw and said, "We can go a little higher than
Jerry Breslaw." Benigno said nothing and left the office.
That Wednesday night Benigno went to the Union's office to keep his appointment
with Breslaw. The latter immediately took him to Louis Nelson, the Union's man-
ager. Also present were Emile J. DeLeo, Nelson's assistant , and Shop Chairman
Dragotta. This is Benigno's account of what occurred:
Directly after Breslaw's introduction of Benigno , Nelson commented about all the
money Benigno had made in the shop and his "nerve " in asking the Union to collect
his backpay for overtime . Benigno explained that he had come to the Union for
another reason and that the overtime matter had arisen incidentally , and, further-
more, that Breslaw had advised him to complain about the overtime so the Union
1 Benigno and Kropf testified that as they drove to the meeting Gallop suggested that
the subject of their past overtime work without time and one-half pay not be raised as
it would complicate matters Benigno testified he had been unaware of his entitlement to
overtime pay.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could recover his pay for him. Nelson asked whether he had not known that he
had been entitled to overtime pay when he had worked overtime. Benigno told
him he had been informed by the Company when hired as a pieceworker that he
would not get overtime pay and had assumed it was not the Company's practice to
pay for overtime. Nelson inquired whether he had not known that the Union's
permission was required before he could work overtime in excess of 8 hours weekly?
Benigno disclaimed such knowledge. Nelson called him a "racketeer" and reminded
him of the unemployed men with families who each morning filled the Union's hall
looking for work. Benigno sought to defend the accusation, but Nelson peremptorily
turned to Breslaw and directed, "Tomorrow morning, you take him and Joe Kropf
off the job. They don't work in this shop no more." Benigno's attempt to justify
his and Kropf's overtime on the ground that the whole shop including the Company's
other pressers had worked overtime with the Union's permission was unavailing.3
Nelson asserted his authority as the Union's manager and told Benigno that he
would also prefer charges against him and Kropf to have them expelled from the
Union. He refused to state the charges and ordered Benigno from the room.
Notwithstanding Nelson's declaration, Benigno and Kropf reported for work the
next morning, June 1, 1961. Benigno testified that Helfer called him to his office
and asked what had happened the preceding evening at the union hall. Benigno
stated that Nelson had become "aggravated with some of the things he heard and
he ordered us off the job, we can't work here any more." Helfer asked, "How come
[you] are here?" Benigno replied, "As far as I know, I'm still working. You haven't
fired me." Helfer responded, "If Mr. Nelson said you are off the job, Buddy you
are fired." Benigno inquired what this meant, whether he was temporarily terminated
or whether he was first to be accorded some kind of hearing The reply was, "No,
you are fired, that's the end of you." Benigno and Kropf thereupon left the shop.
The next morning Benigno went to the Union's office to request Breslaw's assistance.
The latter stated he was sorry but that the matter was out of his hands and he could
do nothing. Benigno suggested that it might be appropriate for him to speak to Nel-
son. Breslaw told him that Nelson refused to speak to him. Subsequently Benigno
received a formal communication from the Union's grievance board dated June 5,
1961. The notice, signed by Assistant Manager DeLeo, was in the nature of a
notification to Benigno that a hearing would be held on June 13, 1961, at the Union's
headquarters for the purpose of receiving and considering evidence with respect
to the following charges against Benigno: (1) Depriving unemployed pressers of work
and a job; (2) working excessive and unlimited hours without the knowledge and
permission of the Union; and (3) working overtime without receiving time and one-
half. A hearing was held on the date scheduled and subsequently Benigno received
a letter dated July 6, 1961, signed by the chairman of the Union's grievance board,
informing him of the board's decision that he was guilty "not only of violating the col-
lective agreement between the employers and the Union but also of depriving four
pressers of earning a living." The letter indicated that the evidence received by the
grievance board established that an agreement had been made by Benigno and Kropf
with the Company to work as many hours as necessary in order to avoid the employ-
ment by the Company of additional pressers. The grievance board apparently affirmed
the propriety of the action by Manager Nelson who "was forced to stop off these
two pressers."
Union Shop Chairman Dragotta appeared as a witness for the General Counsel and
testified that Benigno had come to him about the piece-rate dispute with Helfer.
In the course of his discussion with Helfer the latter remarked that he was running
the shop and that if Benigno did not like it he could leave. Dragotta also recalled
Helfer's telling Benigno during an angry argument "that he wanted to fire him."
2 The Union's collective-bargaining contract with the United Knitwear Manufacturers
League, Inc., of which the Company was a member, contained the following provisions:
t
4. Overtime not exceeding eight (8) hours per week, nor more than two (2) hours
per day, shall be permitted. Overtime shall be paid at the rate of time and one-half
the regular pay of all work performed in excess of seven (7) hours per day, or out-
side the regularly scheduled hours established in the respective Employer's shops or
outside the first five (5) working days of the week.
• • r ♦ ♦ e s
27(b). No Employer, worker or group of workers shall have the right to modify or
waive any of the provisions of this agreement.
3 The record discloses that the Company's employees generally had worked more than
8 hours weekly without the Union's consent having been obtained These overtime hours
were not nearly as numerous as Benigno's and Kropf's.
AMBERTON KNITTING MILLS, INC . 1201
With respect to the May 31 meeting at the Union's office Dragotta testified that Nelson
ended his discussion with Benigno by telling him to "turn in his book, he was
fired, he was not allowed to work in this union office any longer." Nelson, he said,
instructed him not to allow Benigno in the shop. He understood that if Benigno
were to come to work the next day he was supposed to notify the Union and that
he was to tell Helfer that Benigno "wasn't allowed in the shop anymore."
Helfer recalled the piece-rate dispute with the pressers but was not called upon to
refute the comments ascribed to him by Benigno and Dragotta in the course of his
discussions with them. He testified that on the morning of June 1, 1961, before the
8:30 starting time, Benigno and Kropf excitedly entered his office and one of them
announced they had been at the Union's office the preceding night and had been told
by Nelson he was "stopping" them off from work. Helfer was asked what this meant.
He replied, "Boys, this is the first time I'm hearing about it, when you are telling me.
I don't know what it means. If Mr. Nelson is stopping you off from work, he is
stopping you off from work." Thereupon both Benigno and Kropf left the plant and,
in the Company's view, by this action quit their jobs.
Rabinowitz was not questioned about the substance of his conversations with
Benigno except as to whether he had called Breslaw the obscene name stated by
Benigno in his testimony and whether he had told Benigno he "could pick up the
telephone and make one call and put him out of a job." Rabinowitz denied saying
both these things.
Breslaw testified that at the meeting with the pressers on May 26, 1961, at the
Union's office to discuss the disputed piece rate, Benigno at the end raised a hypotheti-
cal question about what the Union would do if an employee worked many overtime
hours without receiving overtime pay. He informed him that if the necessary data
were available the Union would process a grievance to collect the pay. Benigno
promised to secure the data and a meeting was arranged for the following Monday,
May 29, at the union office. Breslaw reported to Nelson that Benigno failed to keep
this appointment, whereupon Nelson instructed him to notify Benigno and Kropf
to appear at the union office Wednesday night, May 31.
Breslaw further testified that in the latter part of April 1961, Nelson had shown him
the annual earnings data of employees sent by the Company to the Union. This is an
annual report which all employers covered by the Union's contract submit to the
Union in connection with health and welfare contributions by the employers based on
employee earnings. Nelson had indicated to Breslaw the abnormally high earnings of
Benigno and Kropf for their period of employment in 1960 and had instructed him to
investigate the circumstances especially as there were unemployed pressers around.
Breslaw related that he had contacted Helfer at the plant about the beginning of
May 1961 and had persuaded him that the Company should hire more pressers.
Helfer agreed to obtain additional machinery and to transfer two presses from
another department to the knit goods department where Benigno and Kropf worked.
Breslaw conveyed this report to Nelson. All this occurred before the May 31, 1961,
meeting at the union office attended by Benigno.
The following account of what transpired at the May 31 meeting is a consensus
of the testimony of Nelson, Breslaw, and DeLeo. Nelson pointed out to Benigno that
in violation of the contract, "plus the rules and regulations and the constitution of
our International and our own local Union," he and Kropf had worked an excessive
number of overtime hours and had not received overtime pay; that by working so
many hours they had deprived other pressers who needed employment of a livelihood;
and that the Union would not countenance a continuation of this practice. Benigno
assertedly insisted that he would work as long as he desired and Nelson firmly
informed him he would not permit him to do so. Nelson did not tell him that he and
Kropf would be prevented by the Union from continuing their employment with the
Company, but only that the Union would not tolerate continuation of their em-
ployment under the conditions which had hitherto obtained. Benigno denied
knowing that he had been entitled to overtime pay and asked whether the Union
would collect his backpay for him. This prompted Nelson to state he would complain
to the Employer Association to which the Company belonged of a conspiracy
between the Company and Benigno to violate the contract, but as to collection
of the overtime pay he was not a "racketeer." Nelson told Benigno that his ruling was
subject to the decision of the Union's grievance board and Benigno was thereupon
dismissed from the meeting.
2. Benigno 's reinstatement by the Company on September 7, 1961
Following receipt of the July 6, 1961, letter from the Union's grievance board
indicating affirmance of Nelson 's action , Benigno and Kropf called up to him to as-
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certain their standing in the Union . According to Benigno , Nelson told them presently
nothing would happen . They were out of their jobs , he said , and perhaps later they
would receive work elsewhere . Subsequently they revisited Nelson and pleaded
with him at least to get Kropf 's job back because of his desperate financial situation.
Nelson called Rabinowitz by telephone and stated he was sending Kropf back to
work . At the conclusion of the conversation he told Kropf to call him in a few days
and promised to do what he could for him.
Benigno thereafter appealed the decree of the Union 's grievance board to the
general executive board of the International Ladies' Garment Workers Union
(ILGWU ). A hearing was held in August 1961 , with a resultant ruling contained
in a letter to Benigno dated September 1, 1961 . The letter, signed by Louis Stulberg,
general secretary -treasurer , stated:
DEAR BROTHER BENIGNO: Please be advised that at the meeting of the
Appeals Committee of the General Executive Board on August 16, 1961, the
following decision was made:
The three hours of testimony presented to this Committee upon the appeal
taken by Joseph Benigno (Local 155, Ledger #43359 ) have left no doubt in our
minds that Benigno was fully guilty of the charges filed against him. His con-
duct violated vitally important Union rules , adopted to safeguard the work
standards of union members , to protect their health , and to prevent exploitation
by unscrupulous employees . He, therefore , deserves sharp condemnation.
However, in our judgment , the penalty imposed by the Local 155 Grievance
Committee failed to take into account the subsequent loss of earnings by the
appellant Benigno , and, taking into consideration all the facts of this case, it
is the opinion of this Committee that the loss of earnings by Benigno shall serve
as the penalty, and that he be returned to his job.
On September 5 Benigno took the above letter to Nelson who stated that he needed
time to take somebody off the job to make room for him and directed him to report
for work on Thursday , September 7. He testified that Kropf, who was present, asked
about himself but Nelson replied that he knew nothing concerning him. Kropf then
revealed that Rabinowitz had called him the previous Thursday , August 31, and had
instructed him to report for work on Tuesday, September 5, provided he, Benigno, had
no objection .4 Kropf was to notify Rabinowitz on Friday, September 1, of Benigno's
reaction to the proposal. When Kf'opf spoke to Benigno about the matter on August 31
the latter had not yet received the above letter from the general executive board. He
told Kropf he would not oppose his return to work and as for himself he would abide
by the determination of the executive board. When all this had been stated to
Nelson he told Kropf that because he had not appealed the decision of the Union's
grievance board there was nothing he could do for him . Kropf complained that he
had just quit another job on DeLeo 's assurance he could return to work, but failed
to alter Nelson's position.
Benigno and Kropf left Nelson and went to the Company 's plant so Kropf could
report his conversation with Nelson . After a private conversation by Kropf with
Rabinowitz the latter spoke to Benigno and said, "I don't know what the Union told
you, and I don ' t care but we don't want you back. Your father -in-law can go to
work but as far as you are concerned , we don't want you back." Benigno replied
that he would follow the Union 's instructions to report for work the next Thursday,
September 7, and if at that time the Company would not permit him to work he
would accept that decision . When Benigno returned home he called DeLeo and
stated what Rabinowitz had told him . DeLeo promised to look into the matter.
On Wednesday , September 6, Benigno received a telegram from DeLeo instructing
him to report for work to the Company on September 7. He did so and went to
work that day.
Kropf corroborated Benigno's account of their conversation with Nelson on
September 5 and their subsequent conversation that day at the Company's plant
with Rabinowitz . The latter denied that there was such a conversation.
DeLeo testified that after notification by Nelson of the action by the general
executive board he received a call from Benigno informing him that Rabinowitz had
declared he would not take him back. DeLeo instructed him to follow Nelson's
advice to report for work on September 7 and sent identical telegrams to the Com-
pany and Benigno directing the latter to report for work on that day.
4 Kropf testified that Helfer, not Rabinowitz , had communicated with him Helfner
denied this.
AMBERTON KNITTING MILLS, INC. 1203
3. Benigno's September 15, 1961, termination
Benigno returned to work for the Company on September 7, 1961. Helfer di-
rected him to Floor Manager Harry Marks who had assumed his position as foreman
of the entire plant in August 1961. This was Benigno's first contact with him.
Benigno gave the following account of his experience on the job:
Helfer told him he would have to work by himself and would not be permitted
to pool his work with the other pressers as a member of their "corporation." The
corporation here referred to is a name by which the Company's pressers in its knit
goods wear department referred to their arrangement whereby they shared equally
in the earnings derived from all the pressing work performed by them. At the outset
Marks gave him a basket of garments to press which were different from the style on
which the other pressers were working and which he had pressed in great quantity
before his termination in June. The garments he was given were unfamiliar to him.
Marks instructed him to turn over for inspection each 10 or 15 jackets he pressed
When he turned in his first batch of 12 jackets Marks deemed three acceptable but
found fault with the remainder. Helfer thereupon claimed dissatisfaction even with
the three jackets which Marks had approved and ordered them all repressed. Cath-
erine Geritano, a floorlady who I ruled at the hearing was a supervisor within the
meaning of the Act, then came to Benigno while he was repressing and expressed
surprise that he was working with the garments he had been given which she de-
scribed as seconds that had been lying around in a bin for a month. During this
first day Benigno earned $11 or $12. Of 60 jackets he was given to press he com-
pleted 38 or 40. He estimated that under ordinary circumstances he would have
pressed all 60 garments in less than 3 hours.
On the second day, September 8, he was assigned work on the style jackets on
which he had formerly worked. After completing his first bundle he summoned
Marks to make his inspection. Marks proceeded to pin small pieces of paper at each
place on various jackets where he found fault with the pressing. Benigno felt that
no repressing was required but offered no comment. As he repressed the parts
where Marks had pinned papers he hung the jackets separately. Helfer then in-
spected the jackets and noted other parts which he claimed needed repressing.
Benigno pointed out that Marks had carefully inspected and had designated what
had to be repressed, but Helfer commented that while it may have been good enough
for Marks it did not satisfy him. He pointed out other deficiencies and gave the
garments to Benigno to repress. After about 2 hours Benigno became upset and
ill. He telephoned DeLeo to complain about his harassment and requested per-
mission to speak to him at the Union's office. DeLeo advised him to report his
illness before leaving the plant. Benigno notified Rabinowitz and called on DeLeo.
The latter expressed sympathy but pointed out there was nothing he could do for
Benigno. He advised him to do his best Benigno went home.
When Benigno left the plant on Friday, September 8, it was with the understand-
ing that the plant would be closed the following Monday and Tuesday because of
the Jewish Rosh Hashana holidays. On Tuesday he drove by the plant with his
wife and children and observed that the plant was open. He stopped and entered
and ascertained that only the pressers were working. He learned that on the preced-
ing Friday afternoon Helfer had instructed the pressers to report the following
Tuesday. Benigno was puzzled that he had not received a telephone call as in the
past to come to work. At this point Marks asked whether he was ready to work
but Benigno explained that he could not because his wife and children were with
him.
The next morning, September 13, Benigno called at the Union's office on his way
to work and informed DeLeo of the Company's failure to notify him to report to
work the preceding day. He further reported Helfer's refusal to permit his par-
ticipation with the other pressers in the corporation. He arrived at the plant after
10 a.m. After pressing a bundle of jackets he offered them to Marks for inspection.
Again Marks pinned papers on areas which he claimed required repressing. Benigno
began to repress. As he was engaged in these duties Marks brought him a rack of 20
jackets with instructions from Helfer that they were to be repressed. Benigno
denied that these were all jackets on which he had worked and maintained all could
not have been his as he had not left that many on the preceding Friday on his de-
parture from the plant. Helfer who was standing nearby asked whether he was
refusing to press the jackets. Benigno denied this but insisted that all were not his.
At this, Gallop, one of the aforementioned pressers, left his machine to inform
Marks that he had placed some jackets on the rack. Helfer then asked Benigno how
many were his. Benigno stated eight, whereupon Helfer selected eight jackets at
717-672-64-vol. 143-77
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
random, threw them on the table, and ordered them repressed. Marks asked what
should be done with the remaining jackets and Helfer directed him to ship them.
Benigno claimed that as he continued with his work he was constantly subjected
to the foregoing conditions. On Thursday, September 14, he complained to Marks
that because he had brought him a single bundle of 8 to 10 jackets at a time his
productiveness was limited. He was losing time, he pointed out, by the 10 or 15
minutes he had to remain idle while he waited for a girl to arrive to pull certain
strings from the jackets. In his past experience with these jackets he had received
50 to 60 at one time. His request to Marks that he, like the other pressers, be given
three or four bundles at one time evoked the reply that Marks had orders to give him
only a single bundle and that if he had to lose time waiting for a girl he could not
help that. As Benigno pressed his jackets he hung them on a rack which he noticed
was moved to the front of the shop. A few minutes later Marks returned with a
rack of 20 or 25 jackets with orders from Helfer to repress them. Benigno informed
him they were not his work. Marks explained that he was following Helfer's orders.
Gallop intervened and confirmed that the work was not Benigno's and pointed to
the location where his work had been taken. Marks departed and conferred with
Helfer. At 2:30 p.m. Benigno reported to Marks that he was ill and obtained his
permission to go home.
During the next morning, September 15, Benigno was unable after 2 hours' work
satisfactorily to press a single jacket. Time after time whatever he pressed was re-
turned for repressing. Finally, he declared to Marks that he could not continue this
way, that he could not support his family in these circumstances. Helfer, who was
nearby, asked whether Benigno was refusing to repress . Benigno denied this, and
explained how he had not been able to complete any work that day. He reminded
Helfer that he had formerly satisfactorily pressed thousands of the very style jackets
which now were repeatedly returned to him for repressing . He urged that the
harassment be stopped and that he be permitted to work productively. Helfer in-
sisted that his work was not satisfactory to him and until it was he would have to
repress. Benigno maintained he was doing his best and defended his work as ex-
cellent . Helfer replied it was not good enough for him. Benigno asked what that
meant, whereupon Helfer replied, "It means that you can't work here anymore.
You're fired."
Relevant to Benigno's September 15 termination , aforementioned Shop Chairman
Sam Dragotta testified that following Benigno's September 7 reinstatement Helfer
had expressed dissatisfaction to him concerning his return to work . According to
Dragotta , Helfer stated he did not want Benigno in the shop and so far as he was
concerned he would not stay there "too long." Dragotta observed that Benigno's
work was watched very closely by Marks and that both he and Helfer ordered
Benigno to repress jackets. He had not observed work being returned to Benigno
for repressing during his earlier employment and had this been done he believed that
he would have seen that.
Employee Robert Pollock testified that on the day of Benigno 's return to work in
September he overheard a conversation between Helfer and Marks in which the
former directed Marks to keep Benigno 's work aside and to make sure he did every-
thing perfect.
Presser John Dragotta , testifying as a witness for the General Counsel , related
that the six pressers who were employed in the knit goods department following
Benigno 's termination in June 1961 had formed the corporation to pool their work
at DeLeo's suggestion. He had signed a pretrial affidavit for the General Counsel
which he acknowledged at the hearing was a truthful account albeit he claimed he
was fearful of the status of the Board 's attorney as a Federal agent when he was
interviewed . He conceded he had read the affidavit before he signed it, and there is no
question about the fact, as developed at the hearing, that he understood its contents
when he signed . In the affidavit he stated the following:
I do not recall the exact date that Benigno was reemployed during September
1961 . However , before Benigno was reemployed , Bernard Helfer came over to
all the pressers and told us that Benigno was coming back to work and not to be
permitted to work in the Corporation , but that Benigno was to work alone.
We did not ask Helfer why Benigno was to work alone, nor did he tell us why
be wanted Benigno to work alone. I do not recall the exact date this conversa-
tion with Helfer took place , but I do know it took place before Benigno began
working.
However, Dragotta testified that before Helfer had told him the foregoing, the
pressers had by themselves decided not to include Benigno in the corporation. This
was decided by them when they knew Benigno was returning and before he actually
came back to work.
AMBERTON KNITTING MILLS, INC. 1205
Marks testified that when Benigno started to work in September he instructed him
to keep his work separate so that he could inspect it. This he claimed was his general
procedure for all new pressers so that he could pass on the quality of their work.
Benigno's work did not satisfy him from the beginning and he was compelled to
return work to him for repressing . Even some garments which Benigno repressed
did not satisfy him. In his opinion Benigno was not a competent presser and qualified
only as a helper. He nevertheless did not complain to Helfer to get rid of him be-
cause he felt in time Benigno might improve. There finally came a time when Marks
ordered Benigno to repress a group of 20 to 30 jackets which he considered un-
acceptable. Benigno refused. Helfer came along and Benigno started to argue with
him. Marks heard Benigno say something like "what are you going to do about it,
fire me?" Helfer did not reply. Benigno walked out.
Helfer testified he had nothing to do with the formation of the corporation by
the pressers and while he had heard talk that Benigno had not been included in the
corporation he was in no way responsible for such exclusion . He maintained that
Benigno walked off the job on September 15. He related that on that day there had
been a commotion in the plant which attracted his attention . Benigno and Marks
were engaged in a dispute . Marks told him , "Joe refused to repress this work that
I feel was not good ." Helfer looked at the work and said, "Joe , this work is not
passable, you have to repress this before we give you any additional work ." Benigno's
response was that his work was as good as any presser 's and that he would refuse to
do it over . Helfer insisted that he do it over . Benigno asserted he would not and
asked, "What are you going to do, fire me?" Helfer replied, "Take it or leave it."
Benigno walked down to the first floor of the plant and Helfer followed because he
did not know what he was going to do . He saw Benigno approach President
Rabinowitz and heard him say, "I have only a job to lose here, but you have a business
to lose, and I will make every effort and go to any agency to see that you lose your
business," As he spoke these words he waggled his finger at Rabinowitz . The latter
asked, "Are you threatening me?" Benigno replied, "Take it as you like it "
Rabinowitz declared, "If you are threatening me I order you off these premises and
do not return again." Bemgno thereupon returned to the Company's bookkeeper
to get his pay and after receiving his checks left the plant.
Rabinowitz' account of the foregoing encounter with Benigno coincided sub-
stantially with Helfer's testimony. Employee Catherine Casoria testified that she
had observed Benigno speaking angrily in loud tones to Rabinowitz and had waggled
his finger at him in the manner described by both Rabinowitz and Helfer . She was
unable however to hear what Benigno was saying at the time . While Benigno was
not questioned directly concerning this incident he testified that during the course
of a grievance proceeding, to which I shall hereinafter advert, he denied making a
threat to Rabinowitz that he would close his shop.
4. The grievance proceeding relative to Benigno 's September 15 termination
When Benigno left the Company 's plant on September 15, 1961 , he went directly
to ILGWU Secretary-Treasurer Louis Stulberg to whom he related his recent
experience at the plant and his discharge that day for incompetence . Stulberg di-
rected him to Nelson . That afternoon Benigno conferred with Nelson who advised
him to be at the plant the next day at 1 p .m. and that Business Agent Breslaw would
be there to take up the matter . The next day Benigno and Breslaw met at the plant
and conferred with President Rabinowitz , his son Martin , and Helfer . According
to Benigno , Rabinowitz informed Breslaw that apart from Benigno 's incompetence
the Company no longer wanted to employ him because of the threat to him the
preceding day about causing him to lose his business . Benigno denied having
made such statement . Rabinowitz insisted that this matter be considered rather than
the issue of Benigno 's competence . However, because Rabinowitz ' witnesses to the
incident were not at the plant the matter was held over to the following Wednesday,
September 20.
Benigno related that on that Wednesday he attended a meeting in Rabinowitz 's office
at which Breslaw , Rabinowitz , his son, Helfer, Shop Chairman Dragotta , and a Miss
Singer, the representative of the employer association, were present . Rabinowitz
called witnesses to prove the threat made by Benigno . His nephew , Irving, stated
he heard the threat as related by his uncle. A woman employee , whose name was
not known to Benigno , claimed she heard him say that he would "make a lot of
trouble" for Rabinowitz. Another employee, identified as a Mrs. Costa but who
apparently is the Catherine Casoria who testified at the hearing, stated he had been
unable to hear what Benigno had said. Thereupon Breslaw declared that his
purpose in coming to the meeting was to consider Benigno 's alleged incompetence
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and not the threat . At this point Benigno suggested to Breslaw that he be permitted
to press 3, 5, or 10 jackets, or any number considered appropriate, and he would
be satisfied to have Breslaw, Rabinowitz, or anyone else examine them, compare them
with the work of other pressers , or do whatever they felt necessary and on this basis
decide whether he was a competent presser . Breslaw stated to Rabinowitz this was
a good idea, but Helfer pointed out that there were no jackets, style 202, available.
This was a particular style on which Benigno had been working at the time of his
termination Benigno said it did not matter what style he pressed . He would press
whatever jackets were then in the plant. Breslaw turned down the suggestion. He
left the meeting room and went with Benigno and Dragotta to the pressing depart-
ment There Benigno pointed out that the pressers were working on style 202
jackets. Breslaw told him not to mind this for the present. He sought an opinion
about Benigno's ability from pressers Destardio and Lombardo. Both disclaimed
familiarity with his work and and were unable to express an opinion. Breslaw asked
Destardio what had happened to the garments Benigno had pressed when he left the
plant on the preceding Friday. Destardio knew only they had been on a rack
which someone had removed . Breslaw and Benigno returned to Rabinowitz' office
where Breslaw asked where were the garments Benigno had left on Friday . Helfer
thereupon produced a rack containing about 30 style 202 jackets . Breslaw asked
Benigno whether they were his and the latter replied this was not determinable
as there were no identifying marks on the jackets. Breslaw told him to examine the
jackets and to indicate which needed repressing . Benigno selected half from the
group. Then Breslaw asked whether he regarded himself as a competent presser in
view of his admission that so many of the jackets needed repressing . To this Benigno
replied that having examined the jackets he was sure they were not his work.
Thereupon Breslaw asked whether he would regard himself competent if in fact
he had pressed the jackets . Again Benigno denied having done the work and in-
quired whether in the face of his denial Breslaw insisted upon an answer to his
question . Breslaw indicated that he wanted such an answer and Benigno conceded
that in the circumstances he would not regard himself competent . Breslaw then
made a notation on a card and said aloud, as if this were what he had written, "the
union upholds the firm's contention that Benigno is incompetent." Breslaw handed
the card to the representative of the employer association who signed it and returned it
to him. This concluded the meeting at the Company's premises.
Benigno subsequently visited Nelson at the Union's office and described to him
what had occurred at the September 20 meeting at the Company's plant. Nelson told
him that he had sent Breslaw with him to take up the matter of his discharge and that
if Breslaw concluded that he was not a competent presser there was nothing that he
could do for him.
Shop Chairman Dragotta testified that at the September 20 grievance meeting
Helfer had stated his dissatisfaction with Benigno 's work and that he had a rack of his
garments which could not be shipped out because they were improperly pressed.
Benigno then offered to press a few garments as proof of his ability with a stipula-
tion that if Breslaw did not think that his work was good enough he would drop
the whole matter, leave the shop, and forget about the job. This offer was turned
down. Dragotta then went with Breslaw and Benigno to the other pressers where
Breslaw sought their opinion of Benigno 's work . Pressers Destardio and Lombardo
told Breslaw that they did not know enough about Benigno's work to express a valid
opinion . Thereafter a rack containing garments was brought into the office and
Benigno was asked to pick out the ones which he thought were properly pressed and to
indicate which had not been pressed properly. Benigno stated they were not all his
garments and Presser Wilson Gallop stated there were quite a few on the rack which
were his. Benigno nevertheless picked out the ones which he felt were not properly
pressed. Thereupon the representative of the Employer Association signed a
document which stated that Benigno was not a satisfactory employee.
Helfer testified that the foregoing grievance meeting occurred on Thursday,
September 21, and not September 20, as stated by Benigno. He maintained that the
garments which Benigno had refused to repress on Friday, September 15, had been
set aside on a rack and kept in the Company's sample room These garments with
papers pinned on them to mark the areas of improper pressing were produced at
the meeting and were identified by both him and Marks as Benigno's work. Benigno,
said Helfer, was standing practically next to him at the time and did not deny the
assertion that he had pressed these garments. Marks similarly testified that he had
put Benigno's garments away after he had left the plant on September 15 and that
he brought them into the meeting room when the grievance was being considered.
He claimed that he had stated in the presence of Benigno that these were the garments
that he had refused to repress and that Benigno had made no comment at the time.
AMBERTON KNITTING MILLS, INC. 1207
President Rabinowitz likewise testified the garments had been brought into the room
and that someone had identified them as Benigno's work in the latter's presence
without denial from him.
Breslaw gave the following version of the September 21 grievance meeting. The
matter of Benigno's work was raised and Breslaw was informed he had been working
on style 202 jackets. Breslaw asked to be shown the garment and was told pressers
were then working with that style. He went to them with Benigno and Dragotta.
Presser Destardio was asked by him to state the style garment on which Benigno
had worked on Friday, September 15. Destardio identified it as style 202 black.
He further informed Breslaw that when Benigno had left that day Marks had
covered Benigno's pressed garments hanging from a rack with brown wrapping paper
and had also covered his uncompleted work with similar paper. From presser
John Dragotta, the recordkeeper for the pressers' corporation, he learned that a certain
number of style 202 jackets had been assigned the corporation to press. Breslaw
denied asking any presser for an opinion of Benigno's work, and indignantly denied
he would have asked for such opinion. Returning to the office accompanied by
Benigno and Shop Chairman Dragotta, Breslaw learned the precise number of 202
jackets which had been put into production. The number of jackets pressed by the
corporation and for which it had received credit from the Company together with
the garments pressed and unpressed which allegedly had been left by Benigno, plus
two damaged garments, comprised the total number of 202 jackets which the Com-
pany had put into production. On the basis of these statistics, his experience as
a business agent, and "what was taking place in this mill," Breslaw was "morally
certain" that the garments identified as Benigno's work were in fact his. He conceded
that this determination was not so conclusive as to permit no other. He denied that
Benigno had specifically asserted the garments were not his, but that he had only
claimed that he was being "framed." On the other hand he conceded Benigno had
said nothing which could have been construed as an admission that these were his
garments. He next asked Benigno to examine the garments and to state whether
in his opinion they were properly pressed. Benigno did so and of 15 garments selected
only 8 were passable. Then Breslaw said to him, "Joe, I am going to ask you an
iffy question. You don't have to answer the question if you don't want to. If these
were the garments that you had pressed, are you a competent presser?" Benigno
replied, "No." At this point Breslaw concluded that Benigno had not pressed the
garments properly and that the complaint in his behalf should not be continued. He
reported to Nelson the outcome of the meeting and was instructed officially to
withdraw the complaint. This he did.
Breslaw acknowledged that during the course of the grievance meeting Benigno
had asked for permission to give a demonstration of his ability as a presser and
that he had rejected his request. He testified that he told him that the Union does
not "conduct tests on the spot in discharge cases." The reason for this, he testified,
is that a discharge is based upon what an employee had in fact done or was alleged
to have done.
Nelson testified that several days after Benigno's return to work for the Company
he received two letters concerning him from the Company. The first letter, dated
September 14, advised Nelson of Benigno's sporadic and infrequent attendance at
work. Benigno was in Nelson's office when this letter was received and Nelson
instructed him to do his work with the rest of the Company's employees and to
submit his complaints to the Union after working hours. The second letter from
the Company, dated September 15, informed Nelson that Benigno had been dis-
charged for insubordination and incompetence. On the following Monday afternoon,
September 18, Bemgno came to see Nelson about his discharge. Nelson called in
Breslaw and instructed him to go to the plant to have Benigno put back to work.
He also advised Breslaw not to take up the insubordination question as he regarded
an employee threat to his employer as insurmountable. Breslaw subsequently
reported to him that he had visited the plant and the Company had taken the position
that Benigno had threatend it after his refusal to do certain work the Company had
rejected as improper. Thereupon Nelson directed that an official complaint be sent
by the Union to the Employer Association to which the Company belonged asserting
"The firm had discharged Joseph Benigno, a presser, the Union requests reinstatement
of the above-named presser." This complaint was filed pursuant to the grievance
procedure of the contract.
On the following Friday, September 22, Nelson received a report from Breslaw
of the outcome of the grievance meeting at the plant on the preceding day. He
thereupon instructed his assistant, DeLeo, to check the case thoroughly. DeLeo
reported that he was satisfied that a case of incompetence had been made. There-
upon Nelson instructed Breslaw to withdraw the complaint filed with the Association
so that the Association records would not indicate a finding that Benigno was in-
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
competent . The purpose of his was not to handicap Benigno in his attempts to secure
other employment as a presser . Nelson claimed that he was convinced that there
had been just cause for Benigno 's discharge.
5. Evidence relative to Benigno 's competence as a presser
In February 1960 the Company inaugurated a new department for the production
of what may best be described as high-fashioned ladies' knitted garments sold in
better class stores. Because of the high styling and selling price of these garments
it may be stated without controversy that the Company was seriously concerned
with production of finely finished and carefully pressed merchandise.
When Benigno was hired in September 1960 the Company had only one presser
who worked on knitted garments. This was Joseph Kropf, Benigno's father-in-law,
who had approximately 30 years' experience in the pressing of this type garment.
Benigno was hired by Helfer on Kropf's recommendation. This was done with
the realization that Benigno had never before pressed knitted garments and that
his only pressing experience consisted of 1 year's work with ladies' cloth raincoats
about 10 years earlier . Benigno was hired with the understanding that he would
work under Kropf's tutelage and that Kropf would be responsible for all the pressing
work.
Benign acknowledged his lack of particular experience for the job before his
hire. He testified that he spent several weekends at the Company 's plant getting the
feel of the pressing machines before he went on the payroll . He related that after a
2-week trial period he was notified by Shop Chairman Dragotta that the Company
was satisfied with his competence and was directed to go to the Union and pay the
required initiation fee and to receive his book as a full-fledged member of the
Union. This was in accordance with paragraph 18 of the bargaining contract pro-
viding that the first week 's employment of new workers should be a trial period
which by arrangement between the Employer and the Union could be extended to
2 weeks. In sum Benigno and Kropf testified that ultimately the former became
sufficiently skilled in the performance of all the Company 's pressing operations so
that both performed the same functions . As noted , they devised a cooperative plan
for the most efficient utilization of a single set of pressing machines which the Com-
pany had in its shop until about May 1961 . To relieve the monotony of their re-
petitive operations they alternated from time to time in the performance of their
specific functions so that in the course of their joint activities each did the more
complicated and difficult as well as the simpler pressing. Moreover, there were oc-
casions when Kropf was absent from the plant and Benigno performed all the
pressing operations by himself. During the months of their cooperative association
from September 1960 to June 1961 Kropf and Benigno worked substantial overtime
hours , as described above, so that in effect their total work experience was equivalent
to more than the foregoing 9-month period . In these months they processed thou-
sands of garments . It is conceded that they did so to the Company 's satisfaction
with an insignificant amount of work returned to them for repressing.
Benigno testified , without objection , that Shop Chairman Dragotta had on one
occasion told him that the entire shop was amazed at his and Kropf's productivity
and efficiency and referred to them as "crackerjacks " Dragotta denied ever re-
ferring to them by this term . He did , however, testify that in his opinion , based on
his own experience as a presser , Benigno was "pretty good." Subsequently he quali-
fied this testimony by stating that his opinion of Benigno 's ability was based on mere
impression or guesswork . He further testified that Floorlady Catherine Geritano had
told him Benigno was competent . Geritano is the person previously stated to have
been a supervisor within the meaning of the Act. Benigno and Kropf testified that
she brought them work with instructions concerning what they were to press and
that she occasionally returned garments to them for repressing . Kropf testified with-
out reservation that Benigno had become a competent knit goods presser before his
termination in May 1961.
As set forth above, Helfer and Marks did not regard Benigno as an accomplished
presser. Each felt he could perform only the menial functions of a helper. Helfer
testified that from his observation of Benigno and Kropf it was the latter who did
all the difficult top pressing, particularly on jackets, and that Benigno did only the
simple under pressing , particularly on skirts. He believes that a raw beginner in the
Company's plant requires 3 to 4 years' experience to become a good top Presser.
Relative to the probative value of Kropf's testimony concerning Benieno's com-
petence, DeLeo testified that in a discussion with him at the Union's office on the
night of September 14, 1961 , Kropf had said to him, "I must confess to you, he
(Benigno ) is not a presser . I carried him all the time he was there. I did the
difficult work and picked out the easy work for him. Mr. Nelson, he is not a presser,
AMBERTON KNITTING MILLS, INC. 1209
he was never a presser before. He will not last three days on the job." These re-
marks had been prompted , so DeLeo said , when he conveyed to Kropf the news that
since Benigno 's return to work on September 7 he had not reported to work on time
and had not remained at his job as stated in the Company's letter to the Union.
Nelson testified that the date of the conversation with Kropf was September 15,
the day on which he had received the Company 's aforesaid letter dated September 14.
He had observed Kropf that evening in the vicinity of his office and had called him
He then explained that having received the Company 's letter he was concerned lest
Benigno invite a discharge for failing to come to work on time and to stay at his
job. Kropf then declared Benigno was not a competent presser and would not
work 3 days without his presence . Nelson advised him to speak to Benigno and to
instruct him to come to the union office with his complaints after work.
Kropf conceded that he had been in Nelson 's office and that the Company 's letter
detailing Benigno 's absences from work had been read to him. He was vague about
whether Nelson had asked for an explanation of Benigno 's absences or concerning
his competence as a presser . He firmly denied , however, stating that Benigno was
not a competent presser and could not last 3 days on the job without him. He be-
lieved that he stated Benigno had not been a competent or experienced presser when
the Company first hired him and that he had so informed the Company , but that
after his 9 months ' experience with the Company he had become a competent
presser.
6. Shulman's hire by the Company
Charging Party Philip Shulman is a member of Local 60, Dress and Waist Pressers
Union, International Ladies' Garment Workers Union. One day in the first week
of July 1961, he met Nelson on the street and informed the latter, whom he had
known for many years, that he was unemployed and looking for work. Nelson
offered to help him find a job and within a day or two gave Shulman a card issued
by the Union captioned "Registration Card." Shulman took the card to the Com-
pany and started working there performing pressing duties in the knit goods wear
department on or about June 8, 1961. Shulman testified that when Nelson spoke to
him about the possibility of a job with the Company he pointed out he had taken
two men off their jobs. Nelson acknowledged that he had explained to Shulman
that two employees had been "stopped off" by the Company and that Shulman had a
chance for temporary employment pending disposal of their grievances. He claimed
he instructed DeLeo to place Shulman with the Company on a temporary basis
and that the registration card which was issued to Shulman had inserted on it the
letter "T," indicative of the fact that his employment was only temporary. There is
no evidence that the Union's determination that Shulman's employment was to be
merely temporary was ever communicated to the Company or that any representa-
tive of the Company had told Shulman that his job was to be temporary and not
permanent when he was hired.
When Shulman started to work for the Company there were four pressers em-
ployed in the knit goods wear department. These were the aforementioned Wilson
Gallop, Eugene Conyers who had transferred from the chenille department before
the termination of Benigno and Kropf, John Dragotta, and Anthony Lombardo. The
last two named pressers had been recruited upon the direction of Nelson on the
evening of May 31 after Benigno had left the meeting at the union office. Accord-
ing to Nelson and DeLeo, the former had expressed concern upon Benigno's de-
parture that if he and Kropf did not report for work the next day other employees
whose operations depended on the pressing of garments would be idled. Accord-
ingly, Nelson had asked Shop Chairman Dragotta and DeLeo to find unemployed
pressers who would be immediately available for work if Benigno and Kropf did
not report. Dragotta secured his brother, John, and DeLeo obtained Lombardo.
DeLeo had contacted another presser, Daniel Destardio, whose employment with the
Company started on June 12 after Shulman was already on the job.
7. Shulman's September 6, 1961, termination
According to Shulman, he endeavored at the end of August 1961 for a second time
following his employment by the Company to transfer membership in his local to
the Union. On this occasion he called the Union's office and made his request to
DeLeo, but was advised by the latter not to transfer. DeLeo preferred not to discuss
the matter over the telephone and arranged for a personal meeting with Shulman.
When they met at the Union's office on Labor Day, September 4, 1961, DeLeo in-
formed him of the decision by the general executive board to reinstate Benigno.
This, said DeLeo, meant that Shulman would have to leave his job. Shulman ob-
jected on the ground that Destardio had been hired as a presser after him. DeLeo
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admonished him to be thankful that the Union had given him 3 months' work and
emphasized that Destardio was the Union's concern. Shulman asked what would
happen if he were not to leave his job and was told a telegram would be sent to the
Company notifying it that the Union would "stop" the entire pressing department
if Shulman were to continue at his job. Later that day Shulman spoke to Nelson
who affirmed that he had to leave his job, but encouraged him to do so with the
promise that he would somehow have the Company rehire him in a day or two or
else he would get him another job.
Shulman further testified that on September 5 he had another meeting with DeLeo
and that the latter instructed him to inform Rabinowitz the next day that he was leav-
ing his job to make room for a returning employee. Once more Shulman remon-
strated that Destardio had less seniority and again was reminded that this was not
his concern. His plea that a presser should be chosen for termination by lot was
unavailing. Another meeting that day with Nelson produced a reiteration of his
earlier promise that Shulman would go back to the Company or would be given
another job. The next day Shulman spoke to Martin Rabinowitz, an official of the
Company and the son of President Rabinowitz. He informed him this was his last
day of employment because "another presser is going to be here to be reinstated."
Rabinowitz said, "Don't worry we are not ready yet to take that worker back."
Later in the day Shulman spoke to President Rabinowitz in the presence of his son
Martin, and Helfer and stated that he was leaving his job in accordance with DeLeo's
direction "because another employee is suppose to be here employed." President
Rabinowitz replied, "I am not sending you down. You are not supposed to leave.
If any one is to leave, it is the one who came after you." Shulman said in turn,
"I cannot fight the Union because I had the assurance of Mr. Nelson I will go back
to work or he will give me another job." Rabinowitz told Shulman that as soon as
more machines were installed he would be called back to work. Shulman recalled
that Rabinowitz had also remarked that he had found out that day that Shulman was
the one who was supposed to leave the job. There was no elaboration from Shulman
to indicate how or from whom Rabinowitz had learned this.
Shulman's employment with the Company ended on September 6. On September 7
he went to the Union's office to consult with Nelson. He was able to speak only
with DeLeo who, according to Shulman, once again reminded him that he should
be thankful for the 3 months' work provided him by the Union. Shulman renewed
his inquiry about what would have been done had he not left the job and DeLeo
assertedly repeated that the Union would have taken "down the entire pressing
department."
Nelson's testimony regarding the Shulman incident was to the effect that he had
made clear to Shulman when he had secured employment for him with the Company
that his job was to be temporary pending disposition of the grievances of Benigno
and Kropf who had been "stopped off" their jobs. As evidence of this Nelson noted
that the registration card which the Union had given Shulman had on it the letter "T,"
indicative of the fact that his employment was only temporary. He related that
Shulman on more than one occasion had sought to transfer his membership to the
Union but that he, Nelson, had told him not to do so because if Benigno or Kropf
were to return he would not have his job. Nelson denied that he ever communicated
with the Company to request Shulman's removal from his job and that he had no
knowledge that anyone in behalf of the Union had made such request to the
Company.
DeLeo testified that he first met Shulman on June 2, 1961, when they were
introduced by Nelson who at the same time directed DeLeo to find a job for him,
possibly with the Company. DeLeo had then pointed out that he had notified
Destardio to report for work with the Company and that the next opening there would
go to him. He had, however, learned from the Company that two to four addi-
tional pressers might be hired. On the following Monday, June 5, he got word that
the Company needed two pressers and thereupon arranged for Shulman to start
working later in the week. DeLeo recalled that when Nelson introduced Shulman
he made clear that if he wanted to be employed by the Company his job would only
be temporary because of the pending grievances involving Benigno and Kropf.
As to the Labor Day meeting with Shulman, DeLeo related that he had explained
to him he had to leave his job because of the decision by the general executive board
and because it had been his understanding with Nelson he would be the one to go if
Benigno were to be reinstated pursuant to such decision. He admitted that Shulman
asked what would happen if he refused to leave and that he replied, "A very simple
thing, there will be no place for you to work. The man who was to return to the job,
Mr. Benigno, will occupy the hand iron you have been working on. And furthermore,
I will have you excluded from the corporation. The other pressers will stop working
for you." He denied telling Shulman that he would "stop or strike the pressing de-
AMBERTON KNITTING MILLS, INC. 1211
partment." He recalled another discussion with Shulman on another occasion when
Shulman suggested a "raffle" to select by lot the presser who would make room for
Benigno. He had then reminded Shulman that he had taken the job with the under-
standing that it was to be temporary and refused to go along with his request for
elimination of a presser by a raffle.
DeLeo's reference to the "corporation" from which Shulman would be excluded if
he insisted on continuing his employment with the Company pertained to the ar-
rangement among the Company's pressers, previously discussed, whereby they
pooled their work and shared equally in the earnings derived therefrom. After
Shulman was employed by the Company he was admitted to the corporation which
was formed by the pressers at DeLeo's suggestion. He was included in the corpora-
tion notwithstanding his apparent shortcomings as a machine presser and his limited
skills with a hand iron. Obviously, DeLeo regarded Shulman's inclusion in the
corporation as a substantial financial advantage to him.
C. Findings and conclusions
1. Benigno's June 1, 1961, termination
Basic to a finding whether Benigno was discharged as alleged by the General
Counsel or voluntarily quit his job as the Company maintains is a resolution of the
conflicting versions by Benigno and Kropf on the one hand and by Helfer on the
other of what occurred at the plant in the morning of June 1, 1961. As recited,
Benigno and Kropf testified Helfer discharged them when he inquired about what
had happened the preceding night at the Union's office and was informed that Nelson
had ordered them off the job. Helfer testified that he merely expressed ignorance
concerning the meaning of Nelson's words, as reported by Benigno and Kropf, that he
was "stopping" them off from work, and that they thereupon voluntarily left their
jobs. I was profoundly impressed by Benigno's forthright and sincere demeanor while
testifying. Moreover, his recall was excellent. I credit his account. I was not
equally impressed by Helfer's testimony in the foregoing respects. Moreover, there are
elements of implausibility in his testimony which detract from its reliability. I am
not convinced that Helfer was so unsophisticated as to have been uncertain about
the meaning of Nelson's words, assuming they were reported to him as he claims.
I have no doubt he was sufficiently familiar with their evident meaning so that
if it had been related to him that Nelson had "stopped" Benigno and Kropf off their
jobs he understood they had been ordered by Nelson to discontinue working for
the Company. I am sure he would not have and did not assert any uncertainty as
to the meaning of these words, leaving it to Benigno and Kropf to decided for
themselves whether they were to remain at work or not. The fact is that when they
left their jobs he did not try to stop them, nor did he ever tell them later that the
Company had not compelled them to leave and that they were privileged to continue
working if they so desired. President Rabinowitz and his son, Martin, had no
hesitation telling this to Shulman when he informed them in September that the
Union was requiring him to leave his job. I am satisfied that Helfer knew exactly
what Nelson's order to Benigno and Kropf meant and that he grasped the opportunity
to discharge them as a means of getting rid of Benigno. I infer that Helfer reasoned
that he could in the circumstances absolve the Company from responsibility for the
discharge by maintaining the appearance that it was not his but the Union's action
which forced them from his job.
In making the foregoing findings I rely on the fact, abundantly revealed by the
record, that Benigno had incurred the Company's animosity by spurning its admoni-
tion to refrain from invoking the Union's aid in settling the price dispute with the
pressers. Benigno became the target of the Company's animus in this dispute because
he was the pressers' spokesman. This is reflected by the clear evidence of threats
of reprisal by President Rabinowitz and Helfer if he persisted in his liaison with the
Union. The Company's resentment toward Benigno was undoubtedly fanned by
the disclosure that he had not only sought the Union's aid in settling the price dispute
but had revealed the Company's breach of its contract and its statutory wage require-
ments to pay overtime rates for the numerous overtime hours worked by himself and
Kropf. The possible financial consequences to the Company of these disclosures
were of sufficient magnitude to warrant belief that Benigno's continued employment
was no longer tolerable. By his discharge on June 1, 1961, ostensibly to carry out
the Union's desire but actually in reprisal against Benigno because he had engaged
in activities protected by the Act, the Company discriminated against Benigno in
violation of Section 8(a) (3) of the Act.
I would find that the Company's action constituted conduct violative of Section
8(a)(3) of the Act even if I had credited Helfer's version of what occurred The
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
implication of what he claims was said by him in response to Benigno and Kropf
("If Mr. Nelson is stopping you off from work , he is stopping you off from work") is
that the Union was empowered to stop them from working. The impression reason-
ably conveyed by Helfer was of an arrangement by the Company with the Union
whereby the Union could effectively order employees to cease working . If Helfer
had led Benigno and Kropf to believe that the Union's exercise of such surrendered
authority was determinative of their employment status, the Company as effectively
discharged them on June 1 as if it had actually used words of outright discharge,5
for then the finding would be compelled that Benigno and Kropf left their jobs in
the reasonable belief that they had been discharged . That this would have been
the result intended by Helfer is clear from his failure to say or do anything to indicate
that the Company was their employer and it, not the Union, would decide whether
they could continue working.
I emphasize that the Company's reasons for discharging Benigno on June 1. differ
vitally from those which motivated the action by Nelson on the night of May 31
ordering Benigno and Kropf off their jobs with instructions to his subordinates that
his order be effectuated the next day. As I shall explicate below, this is what I find
Nelson actually did at the time. The Company's motivation , as stated, was resent-
ment over Benigno's exercise of his statutorily protected right to seek his Union's
assistance for the mutual benefit of employees . Nelson's action was prompted by
an entirely different reason , specifically, the breach of the contract provisions regard-
ing working overtime and without overtime pay.
Regarding the General Counsel' s contention that the Union violated Section
8(b)(2) and (I) (A) of the Act by causing or attempting to cause Benigno's June 1
discharge , and the Union's denial of proof that it had engaged in such conduct, there
is another credibility question raised, this time concerning what Nelson said to
Benigno on May 31. Here also I resolve the issue in favor of Benigno who impressed
me as more credible than the Union' s witnesses arrayed against him. Apart from
demeanor considerations , which in my opinion weighed heavily on Benigno's side,
there are certain aspects of the testimony of the Union's witnesses which I cannot
accept as true. What is more, there is unimpeachable documentary evidence (the
letters from the Union's grievance board and the ILGWU general executive board)
which shows conclusively that on May 31 , Nelson "stopped off" Benigno and Kropf
from their jobs in the sense that he ordered them to cease working altogether, and
not, as he says , in the sense that he would prevent them from continuing to work
under conditions which breached the collective -bargaining contract.
I do not believe either Nelson 's or Breslaw's feeble accounts that before Benigno
came to the Union on May 26 with his request for assistance in the price dispute
that an investigation had been conducted by Breslaw at Nelson 's direction concerning
the abnormal earnings of Benigno and Kropf revealed by the Company's 1960 report
to the Union. Nor do I believe their claim that an investigation revealed determined
opposition by Benigno and Kropf to cease monopolizing the Company's pressing
work at the expense of employment opportunities for other needy pressers. In the
first place the extraordinary earnings which supposedly attracted Nelson 's attention
were not earned until sometime after January 1, 1961, and were not reflected by the
1960 reports. Furthermore , Nelson 's shifting testimony as to when he was alerted
to these earnings , Breslaw's unconvincing testimony concerning the time it took to
investigate this simple matter, the fact that the Company did not have enough pressing
machines to permit work by other employees before May 1961, and the addition of
two pressers by the Company in May without protest by Benigno and Kropf persuade
me that the story about the Union' s investigation and the resistance by Benigno and
Kropf to the placement of unemployed pressers is wholly without substance. If, as
Breslaw stated , he had investigated the subject of the abnormal earnings before the
May 26 meeting with Benigno and Kropf , his failure to mention this subject that night,
especially after the collection of back overtime pay was raised , is incomprehensible.
I attribute Breslaw's failure to bring up the matter to his ignorance before then of
the facts concerning the subject. I am satisfied that Breslaw and Nelson were drawn
to these facts by the disclosures made by Benigno to Breslaw on May 26. They
could easily have acquired the necessary information by later communicating with
the Company and I assume that this is when the investigation directed by Nelson
was conducted. President Rabinowitz 's warning to Benigno on the afternoon of
May 31 that he would use his influence with union officials at higher levels than
Breslaw , prefaced by his declaration of knowledge that Benigno had already con-
tacted the Union, strongly supports this conclusion . This explains the unanticipated
5 Cf Pacific Intermovntasn Express Company, 107 NLRB 837, enfd 228 F 2d 170
(C A 18) ; Local 553, International Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America ( Miranda Fnel Company, Inc.), 140 NLRB 181
AMBERTON KNITTING MILLS, INC. 1213
warning received by Benigno from Breslaw on May 29 that his job was imperiled
and Breslaw's insistence that Benigno attend the May 31 meeting at the Union's
office to protect his job. Nelson having by then acquired the data pertaining to
Benigno's and Kropf's substantial breach of the contract provisions precipitately
ordered them off their jobs in the manner described by them and Shop Chairman
Dragotta.
To this point I am in agreement with the General Counsel' s appraisal of the facts.
I do not, however, agree with the General Counsel's contention that Nelson's conduct
was violative of Section 8(b) (2) and (1) (A) of the Act. There is no evidence at all
that the Union communicated with the Company to request the discharge of Benigno
and Kropf. A finding that such a request was made is a prerequisite to a conclusion
that the Union violated the proscriptions of Section 8(b) (2) against "causing or
attempting to cause" Benigno's discharge. The fact that Nelson had ordered his
shop chairman to take action to prevent Benigno from working if he disregarded
Nelson's order not to work, or that the Union was prepared to take other action
to accomplish this result, or that Benigno communicated Nelson's order to the
Company does not satisfy the requirements of Section 8(b) (2) that the Union must
have requested Benigno's discharge by the Company before it may be found to have
violated the foregoing section of the Act. See Abe Meltzer, Inc., 108 NLRB 1506,
1508. Moreover, as the Board deemed significant in the Meltzer case, I have found
that the Company did not discharge Benigno because of the Union's action, but did
so for its own reasons using Nelson's order to Benigno as a pretext.
Because I do not find proof in the record that the Union caused or attempted to
cause Benigno's discharge by the Company, I find it unnecessary to pass on the
question whether Benigno's breach of the contract was the exercise of a right pro-
tected by Section 7 of the Act as the General Counsel contends, or was unpro-
tected as the Respondent argues. The General Counsel maintains that by working
excessive overtime hours without overtime pay by Benigno was merely engaging in his
Section 7 right to refrain from supporting the Union's spread-the-work policy. For
this he has support in the Board's Meltzer decision. The Union relies on the court's
opinion, 224 F. 2d 78 (C.A. 2), denying enforcement of the Board's Meltzer
decision, in which the court disagreed with the Board's construction and stated:
The majority of the Board has determined that the contract provision restrict-
ing overtime work reflected a Union policy to spread employment in the industry,
and since the employees, by refusing to comply with that restriction, were exercis-
ing a right conferred by Section 7 to refrain from concerted activities 'or "mutual
aid or protection," an unfair labor practice was established. This we think
ignores an important fact, pointed out by the Trial Examiner, that many pro-
visions commonly found in collective bargaining agreements are the realization
of a Union policy. When the Union policy in spreading employment in the
industry by imposing restrictions and overtime work obtained valid contractual
status, employees lawfully bound by the contract were not free to violate the
agreement under the guise of engaging in concerted activities for mutual aid
or protection or of refraining from doing so within the meaning of Section 7.
For the reasons stated at the beginning of this paragraph I find it unnecessary to com-
ment on these differing decisional views.
Nor do I find that the Union independently violated Section 8 (b) (1) (A) of the
Act by Nelson's order to Benigno to stop work. Nelson's directive to Benigno was
not accompanied by any threats or other words which could be found to constitute
restraint and coercion within the meaning of Section 8 (b) (1) (A).
2. Benigno's September 15, 1961, termination
Again the record poses a credibility question which I resolve in favor of Benigno.
I find in accord with his testimony that following his reinstatement by the Company
on September 7 and continuing to September 15, 1961, he was deliberately subjected
to severe harassment by Helfer and Marks either to compel his resignation or to pro-
vide an incident which would serve as a pretext for another discharge I have already
stated that Benigno impressed me as a more credible witness than Helfer. He also
impressed me as more credible than Marks. I reject Helfer's and Marks' testimony
that Benigno voluntarily quit his job on September 15, but find, in accord with
Benigno's testimony, that he was discharged.
The motivation for the Company's second discharge in September was the same
as for the first discharge in June. Its continued animus toward Benigno was evidenced
by the Company's efforts to prevent his reinstatement, by the expressions of its offi-
cials indicating their opposition to his returun as an employee, and the prediction
that he would not last long on the job if he did return. Kropf may have been
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
confused at the hearing concerning whether President Rabinowitz or Helfer contacted
him on August 31 and proposed his return to work provided Benigno had no objec-
tion. It is immaterial which made the proposition that I am satisfied was received by
Kropf, curiously, just 1 day before the ILGWU letter from its general executive
board was mailed to Benigno informing him of its decision that he should be rein-
stated. The General Counsel 's suspicion that the Company was tipped off in advance
of the mailing of the letter may have substance . However, I need make no determina-
tion concerning it. What is significant is that the Company by this action was
endeavoring to head off Benigno 's return by placing him in the position of having
to make the delicate choice of standing aside or competing with his father-in -law for a
job. The Company's plan was more clearly revealed when on September 7
President Rabinowitz told Benigno , as the latter credibly testified , that Kropf
could return to work but not he. Shulman 's credited testimony that on September 6
Martin Rabinowitz told him not to worry about leaving his job because the Com-
pany was not ready to take Benigno back again demonstrates the Company's op-
position to his employment . Shop Chairman Dragotta 's credited testimony of Helfer's
admission , following Benigno's September 7 reinstatement , that he did not want him
in the shop and that he would not remain there long is a clear indication of his deter-
mination not to reemploy him and to get rid of him if required to do so.
I am satisfied that Benigno's pressing was persistently rejected , not because of
its imperfections , but because this was Helfer's plan of harassment . This finding is
supported by the credited testimony of employee Pollack that he overheard Helfer
tell Marks to separate Benigno's work and to make sure it was perfect. This belies
Marks ' testimony that it was his decision to keep Benigno 's work separate in ac-
cordance with his routine procedure . This instruction is consistent with Helfer's
direction to presser John Dragotta not to admit Benigno to the pressers ' corporation.
Whether the pressers had previously decided to exclude Benigno from their group, as
Dragotta testified , is immaterial to a finding, also in accord with Dragotta 's affidavit
and testimony, that Helfer independently told him not to admit Benigno to the
corporation.
There is no rational explanation for Helfer 's actions except his intention to single
out Benigno for special treatment. Helfer's testimony that he could perform only the
simple pressing operations of a helper might have provided a partial explanation, but
I reject it as untrue . First, I credit the testimony of Benigno and Kropf that the
former had performed to the satisfaction of Helfer all pressing operations including
the more difficult top pressing before his termination on June 1, 1961 . Then there
are the incontrovertible facts that Benigno had been accepted by the Company
as a competent presser after his contract trial period , that he had been paid the
same rates as those received by the other pressers, that when Benigno bargained
for rates for himself and the other pressers nothing was said by Helfer to indicate
that as a helper he was not entitled to the rate for a qualified presser , that the
Company reinstated him as a qualified presser and not as a helper and did not
object to his return on the ground that he was not qualified for the job, and that
despite his alleged shortcomings after his return he was not discharged for his inability
to perform the duties of a presser. If Helfer knew that Benigno had the limited
qualifications of a helper, and if Marks, as he stated , was convinced from observa-
tion that he was merely a helper, it is inexplicable that they kept him on duties which
they knew he could not perform , and this in the face of the evidence that Shulman
was given less skilled hand -iron pressing because he was not a qualified presser. I do
not believe Marks' strained explanation that he had permitted Benigno to continue
working at duties which he was sure were beyond his abilities just because he hoped
that sometime in the future he would improve. This is nonsense if Helfer's opinion
is given credence , that a raw beginner in his plant requires 3 to 4 years' experience to
become qualified as a presser . From the evidence in this case , including Helfer's
description of a presser's duties, I also reject this as gross exaggeration.
I credit Kropf's better informed and more reliable opinion that Benigno had become
a competent presser before his June 1, 1961, discharge. In doing so I am mindful
of the testimony by DeLeo and Nelson that on September 15 at the Union's office
Kropf had told them the opposite . I have carefully considered this circumstance
and have evaluated it in the light of what had occurred before the occasion when
this was supposedly said, particularly the embarrassment and travail to which Kropf
had been subjected shortly before then when he had quit a job on the strength of
the Company 's unfulfilled promise to hire him and the competition into which he
had been maneuvered with Benigno for a job with the Company. If Kropf had said
Benigno could not last 3 days on the job without him and that he was incompetent it
is likely this was said in bitterness and frustration . I believe his testimony on the
witness stand that Benigno was a competent presser.
AMBERTON KNITTING MILLS) INC. 1215
As I view the record, Helfer planned to make Benigno's job so uncomfortable
that he would voluntarily give it up. This was to be accomplished by arbitrarily
refusing to accept his completed work, no matter how well done, thereby preventing
him from earning enough to make the job worthwhile. Failing in this, he would
be discharged on the pretext of refusing to follow orders to repress his work.
On September 13 a near incident was provoked when Marks returned a group
of jackets with orders from Helfer to repress them. Benigno's insistence that they
could not have been his work evoked the challenging inquiry from Helfer who
was at the scene whether he was refusing to repress. The crisis which was being
manufactured was aborted by the intervention of another presser, Gallop, who
supported Benigno's position by admitting that part of the work was his. Helfer's
visible disappointment at this turn of events was revealed by his arbitrary selection
of eight garments for repressing by Benigno and his acceptance for shipment of the
remainder. I am convinced that this incident was repeated on September 15 when
Helfer converted Bengino's entreaties to him and Marks to cease molesting him as
a refusal to work and on this pretext discharged him. By this action, motivated
by the Company's continued resentment against Benigno for his May 1961 pro-
tected activities, the Company violated Section 8 (a) (3) of the Act.
The Company's alternate defenses pose a contradiction. Consistently throughout
the hearing and in its brief the Company maintained it never discharged Benign for
any reason. Yet the Company urges that if it be found that Benigno was discharged
on September 15, 1961, that such discharge was justified because of his incompetence
and insubordination. The plain fact which I have found is that Benigno was dis-
charged because he had engaged in certain statutorily protected activities. He was
not discharged in his encounter with Helfer on September 15 for any other reason.
Furthermore, as I have found, Benigno was not an incompetent employee. If his
asserted incompetence had been assigned as the reason for his discharge at the time
I would find that it had not been the real reason but pretextual. As to his claimed
insubordination, the conduct submitted as its basis occurred after Benigno had al-
ready been unlawfully discharged by Helfer. This was the occurrence when Benigno
met President Rabinowitz as he rushed down the steps from the pressing department
after his discharge and said to Rabinowitz, as related by the latter, that Helfer refused
to give him work, adding, "It's all right. All I can lose is my job, but I will see to it
that you lose your business." These words were loudly and excitedly spoken as
Benigno waggled his finger at Rabinowitz. Benigno having failed directly to deny
this conduct, I credit Rabinowitz' testimony and find that the incident occurred as
he described it. As I have found that it took place after Benigno's discharge, the
conduct is not significant as an explanation or justification for this action, but could
be relevant in the case only to support a contention that by the foregoing conduct
Benigno is disqualified for future employment by the Company and should not be
ordered reinstated notwithstanding his unlawful discharge. In the circumstances
his conduct was not so egregious that his reinstatement should be denied. He did
not insult or physically menace Rabinowitz or demean any company official or
supervisor under whom he may have to work so as to make his employment rela-
tionship difficult or embarrassing. His future usefulness as an employee was not
impaired. Moreover, in view of the finding of unlawful discrimination against him
and the pressures to which he had been subjected as a prelude to his discharge, his
angry outburst may be regarded as a rather mild reaction to the Company's provoca-
tion which may not now be utilized by the Company to prevent an appropriate
remedy for its unlawful conducts
As to the allegation that the Union violated Section 8(b)(2) of the Act in con-
nection with the Company's September 15 discharge of Benigno, the General Counsel
recognizes the absence of proof on the record that the Union engaged in any conduct
before then to support a finding that it caused or attempted to cause the discharge
on that day. The General Counsel would nevertheless have me find that the Union
violated Section 8(b)(2). He theorizes that, although Helfer told Benigno on
September 15 he was discharged, the discharge was not effective or "finalized" until
Benigno had run the course of the grievance machinery in the contract to secure
rescission of the discharge. Benigno's unsuccessful grievance was not concluded until
September 21 so that, in the General Counsel's view, the discharge really occurred
then. Further, the General Counsel maintains that the Union deliberately gave sham
representation to Benigno in the grievance proceeding intending thereby to insure
that he would not continue as the Company's employee. Thereby, concludes the
General Counsel, the Union violated Section 8(b) (2) by causing or attempting to
cause Benigno's unlawful discharge by the Company. I reject this theory as a matter
6 Reeves Brothers, Incorporated, et aZ, 116 NLRB 422, 424 and 435.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of plain logic. The simple fact is that Benigno was discharged on September 15
and so far as the record shows the Union had nothing to do with that. Although
the purpose of the grievance proceeding was to persuade the Company to rescind
the discharge, this does not alter the fact that the discharge had already occurred
without the Union's instigation or even knowledge. The subsequent revocability of
that action by the Company does not mean it was not final when committed on Sep-
tember 15. Assuming, for the moment, that the Union had failed to give Benigno
the representation he was statutorily entitled to receive from it and that the Union
might thereby have violated some other section of the Act, it cannot be said that by
withholding such representation the Union caused or attempted to cause a discharge
which had occurred before then.
The General Counsel also contends that the Union's sham representation in the
grievance proceeding was violative of Section 8(b)(1) (A) of the Act. It is now
established Board law that a union is obligated by the Act to accord all employees
whom it represents fair and impartial representation and that the Union in violation
of the Act infringes the rights of an employee guaranteed by Section 7 of the Act
when it denies him such fair and impartial representation by "unfair or irrelevant
or invidious treatment" in its capacity as his collective-bargaining representative
in matters affecting his employment.? Without doubt Benigno was entitled to the
Union's sincere and bona fide representation in the grievance procedure to secure
restoration of his job with the Company, and the deliberate refusal by the Union to
give him such representation while engaging in a masquerade was, if proved , a viola-
tion of Section 8(b)(1)(A). I must, therefore, consider the merits of the question
and decide whether its representation of Benigno was sham or bona fide.
The General Counsel's brief asserts that Benigno was a competent presser and
that Breslaw knew he had earned large sums as a presser. Presumably the General
Counsel reasons that Breslaw was therefore required unalterably to defend any attack
at the grievance proceeding on Benigno's competence. As related above, Breslaw
concluded the proceeding by concurring with a representative of the employer
association that Benigno was incompetent. The General Counsel is further critical
of Breslaw's conclusion at the proceeding that the garments presented by the Com-
pany as defective work done by Benigno were actually garments which he, rather
than someone else, had pressed. The method by which Breslaw said he became
morally certain that this was Benigno's work is challenged as unsound. The General
Counsel next refers to Breslaw's familiarity with the Union's animus toward Benigno
engendered by the May and June circumstances, and concludes that the only reason-
able inference for Breslaw's announcement that Benigno was incompetent was that the
Union desired to punish him by improperly handling his grievance.
I have painstakingly reviewed the evidence pertaining to the events at the grievance
proceeding and, while I find fault with Breslaw's methods and judgment, I am not
satisfied that the record preponderates in favor of a finding that he was not doing
his best to secure a favorable result for Benigno. I agree that Breslaw had ample
reason for assuming Benigno's competence as a presser. The question before him.
however, was not simply whether Benigno was competent but whether certain gar-
ments had been improperly pressed by him. H,.s method of determining whether the
garments presented by the Company were really Benigno's work may not, as Breslaw
conceded in his testimony, have been so objective as to satisfy him conclusively they
were Benigno's. But that method was not so unreasonable as to convince me it was
a contrivance merely to give the appearance of sincerity. Benigno did say at first
that without proper identification no positive determination could be made that they
were his or another's garments, although he did later say they were definitely not his.
In the circumstances Breslaw might honestly have felt that Benigno was feigning. I
would go further than the General Counsel and question Breslaw's unwillingness
to agree with Benigno's proposition to give a demonstration of his ability to press.
There is, however, some reasonableness to his explanation that union policy in the
circumstances limited him to a judgment on work done and not as to Benigno's
general ability. I have some misgivings about Breslaw's indignant denial that he had
sought from other pressers opinions about Benigno's work, for his superior, DeLeo,
had no qualms about making such inquiry before the grievance procedure as he
admitted he did. I believe Breslaw did make the inquiry as Benigno and Shop Chair-
man Dragotta testified. But, as they further testified, Breslaw learned nothing from
the pressers whom he interviewed. In sum, Breslaw was left with what I believe
was at least a reasonable doubt that the imperfectly pressed garments claimed to
have been pressed by Benigno had really been his work, and a concession from
Benigno that a substantial part of this work was unacceptable . In this circumstance,
7Local 553 , International Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America (Miranda Fuel Company, Inc .), 140 NLRB 181.
AMBERTON KNITTING MILLS, INC. 1217
and considering the fact that Breslaw had been instructed by Nelson to soft-pedal
the insubordination charge for Benigno's benefit, I find that his withdrawal of Benig-
no's grievance on the ground of incompetence does not reflect sham representation
though by my standards or perhaps of the General Counsel his representation was
not the best which could have been given. I find that the allegation that the Union
by insincere or fake representation of Benigno in the grievance procedure violated
Section 8(b)(1)(A) has not been proved.
3. Shulman's termination
As I have found with respect to Benigno 's June and September 1961 discharges, I
find that the record does not sustain the allegation that the Union in violation of
Section 8(b) (2) of the Act attempted to cause Shulman's discharge by the Company
on September 6, 1961. Again, as in Benigno's cases, there is no evidence to show
any contact by the Union from which a request may be found to have been trans-
mitted for Shulman's discharge . I reject the General Counsel's argument that the
Union had designated Shulman as its agent to deliver its request to the Company
for his discharge. I find that the Union merely informed Shulman of its decision
that he was to discontinue working for the Company with expectation that he was
sufficiently disciplined to follow that directive and also sensible enough not to invite
the consequences of his refusal as pointed out to him by DeLeo. Shulman was not
delegated to ask the Company in the Union's behalf to terminate his employment.
He was supposed to tell the Company that the Union had directed him to leave
and that he had decided to follow its directive. In fact this is exactly what he did.
When the Company pointed out, in effect , that the Union was not his employer
and that the Company would determine who was to work for it, his response was
that he had to yield to the Union's directive for his future benefit. I perceive no
basis in these circumstances for finding that Shulman was the Union 's messenger
to communicate any request of the Company for action relative to his job.
The General Counsel' s contention that the Union by restraint and coercion com-
pelled Shulman to leave his job is convincingly supported by the record. It does not
matter whether DeLeo threatened to call out the Company's pressers in a strike against
Shulman's refusal to leave his job, as Shulman recalled his threat, or whether, as
DeLeo testified, he threatened Shulman would lose his job whether he left volun-
tarily or not for he would see to it that the Company's other pressers would exclude
him from the earnings sharing corporation thereby causing him serious financial
harm.
Shulman's employment with the Company did not have the strings attached to it
which the Union itself imposed. I am convinced that the Union did have the under-
standing with Shulman, as reflected by the designation T on his union registration
card, that his job was temporary and that his continued employment with the
Company was dependent upon disposition of Benigno 's, and perhaps Kropf's, intra-
union proceedings. But this was an arrangement to which the Company was not
privy. It was exclusively the Union's private affair with Shulman. As explicated
by Nelson it was an arrangement in furtherance of the Union's internal practice for
determining the priority rights of its members to particular jobs. As such it con-
stituted an act within the framework of a policy established and maintained by the
Union. Shulman had a right guaranteed by the Act to abide by this policy or to
refuse to do so. DeLeo's threat of economic reprisal, for which the Union is re-
sponsible, to compel Shulman's adherence to that policy restrained and coerced him
in the exercise of his Section 7 right. The Union thereby violated Section 8(b) (1) (A)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company and the Union set forth in section III, above,
occurring in connection with the operations of the Company described in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and obstructing
the free flow thereof.
V. THE REMEDY
Having found that the Company has engaged in unfair labor practices violative
of Section 8(a)(3) and ( 1) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act. I shall further recommend that the Company offer immediate and full
reinstatement to Joseph Benigno to his former or substantially equivalent position,
without prejudice to his seniority or other rights and privileges . I shall also recom-
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mend that the Company make whole Benigno for any loss he may have suffered
because of the discrimination against him on June 1 and on September 15, 1961, by
payment to him of such sum of money as he normally would have earned as wages
absent the discrimination against him. With respect to the discrimination against him
on June 1, 1961, backpay shall be computed from that date until his reinstatement
by the Company on September 7, 1961. With respect to the discrimination against
him on September 15, 1961, backpay shall be computed from that date until the
date of offer of reinstatement. In making these computations there shall be a de-
duction for net earnings during said periods with backpay to be computed on a
quarterly basis in the manner established by the Board in F. W. Woolworth Company,
90 NLRB 289. There shall also be included in the backpay computation 6 percent
interest per annum as provided for by the Board in Isis Plumbing & Heating Co.,
138 NLRB 716.
Having found that the Union has engaged in unfair labor practices violative of
Section 8(b) (1) (A) of the Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
Because the Company by its conduct violated fundamental employee rights guar-
anteed by Section 7 of the Act, the commission of other unfair labor practices may
reasonably be anticipated. It will therefore be recommended that the Company
cease and desist from in any manner infringing upon the rights guaranteed its em-
ployees by Section 7 of the Act.
I shall not recommend any backpay payments by the Union to Shulman for loss
of earnings resulting from the Union's violation of Section 8(b) (1) (A) of the Act
relative to his employment by the Company for the reasons stated by the Board
in Local 983, United Brotherhood of Carpenters and Joiners of America, AFL-CIO,
et als. (0. W. Burke Company), 115 NLRB 1123.
On the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Amberton Knitting Mills, Inc., is an employer within the meaning of Section
2(2) of the Act and is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Knitgood Workers Union, Local 155, International Ladies' Garment Workers
Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discriminating with respect to the hire and tenure of employment of em-
ployee Joseph Benigno, the Company has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of the Act.
4. By restraining and coercing Philip Shulman in the exercise of rights guaranteed
by Section 7 of the Act the Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b) (1) (A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. All allegations of the complaint as to which specific findings of violation have
not been made have not been sustained.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in these consolidated cases, I recommend that:
A. Amberton Knitting Mills, Inc., Jamaica, New York, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Knitgood Workers Union, Local 155, Interna-
tional Ladies' Garment Workers Union, AFL-CIO, or any other labor organization
of its employees, by discriminating in regard to hire or tenure of employment of its
employees.
(b) Interfering with, restraining, or coercing its employees in the exercise of
their right to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection by discharging its employees.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form, join, or assist Knitgood
Workers Union, Local 155, International Ladies' Garment Workers Union, AFL-
CIO, or any other labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the purpose of col-
AMBERTON KNITTING MILLS, INC. 1219
lective bargaining or other mutual aid or protection, or to refrain from engaging in
such activities, except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as authorized in Section 8(a)(3)
of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer to Joseph Benigno full reinstatement to his former or substantially
equivalent position and make him whole for any loss of earnings suffered as a result
of the discrimination against him in the manner described in the section above
entitled "The Remedy."
(b) Post at its plant in Jamaica, New York, copies of the attached notice marked
"Appendix A." 8 Copies of said notice to be furnished by the Regional Director for
the Second Region, shall, after being duly signed by an authorized representative
of the Company, be posted by it immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Company to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination or copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to determine
the amount of backpay due.
(d) Notify the Regional Director for the Second Region, in writing, within 20
days from the receipt of this Intermediate Report and Recommended Order, what
steps it has taken to comply therewith.9
B. Knitgood Workers Union, Local 155, International Ladies' Garment Workers
Union, AFL-CIO, New York, New York, its officers, agents, representatives, suc-
cessors, and assigns, shall:
1. Cease and desist from restraining or coercing Philip Shulman, or any other
employee of Amberton Knitting Mills, Inc., in the exercise of their right guaranteed
by Section 7 of the Act, to support or to refrain from supporting the Union's policies.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Post at its business offices and meeting halls in New York, New York, copies
of the attached notice marked "Appendix B." 10 Copies of said notice, to be fur-
nished by the Regional Director for the Second Region, shall, after being duly signed
by representatives of the Union be posted immediately upon receipt thereof, and be
maintained for a period of 60 consecutive days thereafter in conspicuous places,
including all places where notices to its members are customarily posted. Reasonable
steps shall be taken by the Union to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Mail to the Regional Director for the Second Region signed copies of the
above notice, for posting, with permission of Amberton Knitting Mills, Inc., at its
place of business in Jamaica, New York, in all places where notices or communica-
tions to its employees are customarily posted. Copies of said notice, to be furnished
by the Regional Director for the Second Region, shall, after being signed as provided
in paragraph 2(a), above, be forthwith returned to the Regional Director for posting.
(c) Notify the Regional Director for the Second Region, in writing, within 20
days from the receipt of this Intermediate Report and Recommended Order, what
steps it has taken to comply therewith.ii
C. It is recommended that all allegations of the complaint as to which specific
findings of violations have not been made be dismissed.
'In the event that this Recommended Order be 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 notices. In the further event that the Board's Order be enforced
by 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 be adopted by the Board, this provision
shall be modified to read: "Notify the Regional Director for the Second Region, in writing,
within 10 days from the date of receipt of this Order, what steps it has taken to comply
herewith "
See footnote 8, supra.
n See footnote 9, supra.
717-672-64-vol. 143-78
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
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 Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in Knitgood Workers Union, Local 155,
International Ladies' Garment Workers Union, AFL-CIO, or any other labor
organization of our employees, by discriminating in any manner with regard
to hire, tenure, or any term or condition of employment.
WE WILL offer immediate and full reinstatement to Joseph Benigno to his
former or substantially equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole for any loss of earnings
resulting from our discrimination as provided in the Intermediate Report
and Recommended Order issued by the Trial Examiner of the National Labor
Relations Board.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of the right to self-organization, to form labor organizations, to
join or assist the above-named or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in
other concerted activities for the purposes of collective bargaining or mutual
aid or protection, or to refrain from engaging in any or all such activities,
except to the extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment in conformity
with Section 8(a)(3) of the Act.
All our employees are free to become, or remain, or to refrain from becoming
or remaining members of any labor organization, except to the extent above stated.
AMBERTON KNITTING MILLS, 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.
Employees may communicate directly with the Board's Regional Office, Fifth
Floor, Squibb Building, 745 Fifth Avenue, New York, New York, 10022, Telephone
No. Plaza 1-5500, if they have any question concerning this notice or compliance
with its provisions.
APPENDIX B
NOTICE TO ALL MEMBERS OF KNITGOOD WORKERS UNION, LOCAL 155, INTER-
NATIONAL LADIES' GARMENT WORKERS UNION, AFL-CIO AND TO ALL EMPLOYEES
OF AMBERTON KNITTING MILLS, INC.
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 Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT restrain or coerce Philip Shulman or any other employee of
Amberton Knitting Mills, Inc., in the exercise of their rights guaranteed by Sec-
tion 7 of the National Labor Relations Act, by threatening employees with
economic harm or loss of employment to compel them to support our union
policies.
KNITGOOD WORKERS UNION, LOCAL 155, INTERNATIONAL
LADIES' GARMENT WORKERS UNION, AFL-CIO,
Labor Organization.
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.
Employees may communicate directly with the Board's Regional Office, Fifth
Floor, Squibb Building, 745 Fifth Avenue, New York, New York, 10022, Telephone
No. Plaza 1-5500, if they have any question concerning this notice or compliance
with its provisions.