Applebaum Industries, Inc., Michael'S Closet, Inc., Gloria Manufacturing Corp.

National Labor Relations Board - Board Decisions

Jun 13, 1989

294 N.L.R.B. 981 (N.L.R.B. 1989)

APPELBAUM INDUSTRIES
Appelbaum Industries , Inc., Michael 's Closet, Inc.,
Gloria Manufacturing Corporation , Edward G.
Grant , Trustee, and Ronald Bensten, Trustee
and Upper South Department International
Ladies' Garment Workers ' Union . Cases 5-CA-
15205, 5-CA-15247, 5-CA-15267, 5-CA-
15448, 5-CA-15535
June 13, 1989
DECISION AND ORDER
BY MEMBERS CRACRAFT, HIGGINS, AND
DEVANEY
On March 5, 1984, Administrative Law Judge
Thomas A. Ricci issued the attached decision. The
General Counsel, the Charging Party, and Appel-
baum Industries, Inc., filed exceptions and support-
ing briefs.' The General Counsel also filed an an-
swering brief to Appelbaum's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and,
except as found below, has decided to affirm the
judge's rulings, findings,2 and conclusions and to
adopt the recommended Order, as modified.
' On January 2, 1985, Michael's Closet filed exceptions and a support-
ing brief, dated October 2, 1984, with the Board The General Counsel
thereafter filed a motion to strike Michael's Closet's exceptions and brief
as untimely filed Michael's Closet, in turn, filed a motion opposing the
General Counsel's motion to strike, and the General Counsel responded
by filing a supplemental motion to strike Having duly considered the
matter, we grant the General Counsel's motion to strike Michael's Clos-
et's exceptions and brief The record shows that following issuance of the
judge's decision on March 5, 1984, the parties were given an extension of
time to April 23, 1984, in which to file exceptions and briefs, and subse-
quently received a final extension of time to May 3, 1984, in which to do
so Michael's Closet contends that it never received notice of the final
filing date for submission of exceptions We find, however, that Michael's
Closet was placed on notice of this date by virtue of its single employer
status with Appelbaum Industries See generally G W Truck, 240 NLRB
333, 335 (1979) In light of this, we find that Michael's Closet, which sub-
mitted its exceptions and brief more than 7 months after the date they
were due, proffered no good reason for their untimely submission Ac-
cordingly, Respondent Michael's Closet's exceptions and brief are reject-
ed as untimely filed
We further grant the General Counsel's unopposed request to take ju-
dicial notice of a posthearing decision by the United States Court of Ap-
peals for the Fourth Circuit concerning a petition by Gloria to set aside
its contract with the Union Following the filing of its bankruptcy peti-
tion, Gloria sought approval from the bankruptcy court to reject its con-
tract with the Union The court denied Gloria's request as moot because
the contract had expired 2 weeks earlier The bankruptcy court's decision
was subsequently affirmed by a Federal district court Shortly after the
judge issued his decision in this case, the U S Court of Appeals for the
Fourth Circuit issued its decision upholding the bankruptcy and district
courts' findings In doing so, the court found that the Supreme Court's
decision in NLRB v Bildisco & Bildisco, 465 U S 513 (1984), which held
that a debtor-in-possession may lawfully reject or modify a collective-bar-
gaining agreement after a petition for bankruptcy has been filed, was not
applicable to the present case because the collective-bargaining agree-
ment had expired and, therefore, was no longer an executory contract
that could be either rejected or assumed
2 The General Counsel and the Charging Party have excepted to some
of the judge's credibility findings The Board's established policy is not to
981
We agree with the judge's findings that clearly
establish that Michael's Closet and Appelbaum (Re-
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings
The General Counsel excepts to the judge's failure to find that the Re-
spondent violated Sec 8(a)(1) by restricting the distribution of union lit-
erature We note that the judge did not make any particular findings re-
garding this allegation nor did he resolve the conflict in testimony per-
taining to this incident We find, however, that a finding on this alleged
violation would be essentially cumulative to the judge's finding that the
Respondent violated Sec 8(a)(1) by telling employees they would not be
permitted to conduct union activities on the Company's premises and,
therefore, find it unnecessary to pass on this allegation
The General Counsel also excepts to the judge's failure to find that the
Respondent violated Sec 8(a)(3) by issuing a warning to employee Whit-
ing on June 16, 1983 In dismissing the portion of the complaint alleging
that Whiting was unlawfully discharged, the judge relied, in part, on the
fact that prior to her discharge, Whiting received three warnings, includ-
ing the June warning, for work-related problems (The judge inadvertent-
ly dated the warning as of June 14, rather than June 16, as shown by the
record) Implicit in this dismissal is the finding that all three warnings
were issued for legitimate reasons and were not discriminatorily motivat-
ed We affirm the judge's dismissal and shall dismiss the instant complaint
allegation
The judge found no merit to the complaint allegation that the Re-
spondent, through Supervisor Shelby Jones, unlawfully questioned em-
ployees Shirley Jones and Debra Whiting about their union membership
His finding in this regard was for the most part based on a general credit-
ing of Shelby Jones' testimony over that of the two employees The Gen-
eral Counsel contends that in discussing his findings, the judge confused
Whiting and Shirley Jones' testimony and that the Board should, conse-
quently, reject the judge's credibility resolution in this respect and find
that the employees were unlawfully interrogated, as alleged We agree
with the General Counsel that the judge inadvertently confused the testi-
mony of these two employees when he found that Whiting, rather than
Jones, had been asked about her union membership while being issued a
disciplinary warning by Supervisor Jones However, the judge's credibil-
ity resolution was obviously based on a full assessment of the testimony
of these two employees versus the testimony of Supervisor Jones and the
mere fact that he inadvertently transposed the names of the employees
while discussing the issue is insufficient to warrant overturning his credi-
bility findings in this regard That the transposition of the names was in-
advertent is evident from the fact that later in his decision, while discuss-
ing the discharges of these two individuals, the judge correctly attributes
the above testimony to Shirley Jones, noting that the latter had been
asked about her union membership while receiving the disciplinary warn-
ing Further, the fact that Shirley Jones may have been asked about her
union membership does not establish that an unlawful interrogation oc-
curred Thus, the record shows that the Respondent's past practice with
the Union was to provide union stewards with copies of disciplinary
warnings issued to employees who were members of the Union Later
that day, Supervisor Jones, in fact, gave a copy of Shirley Jones' warning
to the union steward Under these circumstances, in which there was a
practice of giving copies of warnings to the Union, and in which the su-
pervisor made reference to that practice when he asked about her union
membership, we find that Supervisor Jones' inquiry concerning Shirley
Jones' union membership did not violate Sec 8(a)(1) of the Act Further,
we disavow the judge's statement that Shirley Jones' supervisor had no
reason to "single her out for improper interrogation" merely because
Shirley Jones may have testified that she had nothing whatever to do
with union activity while she worked for the Respondent
Further, while we agree with the judge that the trustee in bankruptcy
was liable for complying with the remedial provisions of a prior Board
Order against Gloria in Cases 5-CA-14257 and 5-CA-14394, we find it
unnecessary to pass on his finding that the trustee in bankruptcy was
Gloria's successor for, regardless of the term used to describe his status, a
trustee in bankruptcy may nevertheless be directed by the Board to take
such remedial action Institute of Technical Careers, 279 NLRB 811
(1986)
294 NLRB No. 62
982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent) are a single employer3 and a successor
to Gloria Manufacturing Corporation (Gloria).4
Further, we agree with his finding that as succes-
sor to Gloria, the Respondent was obligated to rec-
ognize and bargain with the Union as the repre-
sentative of its employees and that its refusal to do
so violated Section 8(a)(5) and (1) of the Act.
The General Counsel and the Union agree with
the above findings, but except to the judge's failure
to find that the Respondent is jointly and severally
liable with Gloria for complying with an Order
issued by the Board against Gloria in a prior pro-
ceeding;5 to his failure to find that the Respondent
had a continuing obligation when it became succes-
sor to Gloria to pay into the various fringe benefit
funds established by contract between the Union
and Gloria; and to his finding that the Respondent
did not violate the Act by denying union represent-
atives access to its production areas. We find merit
in these exceptions.
The Board, with court approval, has held that a
successor employer may be held jointly and sever-
ally liable for remedying the unfair labor practices
of its predecessor when the successor acquires and
operates the predecessor's business with knowledge
of the latter's involvement in unfair labor practice
proceedings.6 The record clearly shows and,
indeed, the judge found that the Respondent was
well aware of the Board's outstanding Order
against its predecessor, Gloria, when it acquired
and began operating the predecessor's business. As
the judge correctly notes, the Respondent initially
offered to purchase Gloria on condition that it not
be bound to the Order issued by the Board against
Gloria in Cases 5-CA-14257 and 5-CA-14394.
3 Thus, the record supports the judge's finding that while Michael's
Closet and Appelbaum are physically separate , their operations are close-
ly interrelated and constitute a single integrated operation , with Leo Ap-
pelbaum possessing financial control over both entities , as well as control
over the companies ' management and labor relations Sakrete of Northern
California, 137 NLRB 1220, 1223 (1962), enfd 332 F 2d 902 (9th Cir
1962) In view of our finding that Michael's Closet and Appelbaum In-
dustries are a single employer , we deem it unnecessary to pass on the
judge's additional finding of an alter ego relationship between the two as
it would not affect the remedy in this case
a Thus, the judge found, and we agree, that the Respondent became
the successor to Gloria about February 22, 1983, when it entered into a
lease agreement with Gloria's trustee in bankruptcy, Edward G Grant,
and thereafter continued Gloria's operations utilizing the same employees,
managerial staff, equipment , machinery, and supplies , as well as essential-
ly the same customers See NLRB v Burns Security Services, 406 U S 272
(1972), Fall River Dyeing Corp v NLRB, 107 S Ct 2225 (1987)
s On January 12, 1983 , the Board , as noted (see fn 2 supra), issued an
unpublished Decision and Order in Cases 5-CA-14257 and 5-CA-14394
(see Appendix B), pursuant to a settlement stipulation entered into be-
tween the Union, Gloria, and the Trustee, Grant, directing Gloria to
cease and desist from engaging in certain unlawful conduct and to take
certain affirmative action designed to remedy such conduct The Board's
Order was enforced by a judgment of the United States Court of Appeals
for the Fourth Circuit in an unpublished decision dated March 29, 1983
8 Perma Vinyl Corp, 164 NLRB 968 (1967), Golden State Bottling Co v
NLRB, 414 U S 1681 (1973)
After its conditional purchase offer was rejected by
the bankruptcy court, the Respondent, on February
22, 1983, entered into a lease agreement with Glo-
ria's Trustee in Bankruptcy whereby, for a stated
weekly sum, it assumed full control and manage-
ment over Gloria's manufacturing operations in-
cluding all machinery , fixtures , apparatuses , materi-
als, as well as its complement of employees and
managerial staff.7 Under these circumstances, we
agree with the judge that when the Respondent
became Gloria's successor on February 22, it did so
with full knowledge of the Board's outstanding
Order against Gloria. For this reason, we agree
with the General Counsel and the Union that the
Respondent should be held jointly and severally
liable with Gloria for complying with the Board's
Order in Cases 5-CA-14257 and 5-CA-14394. The
judge's recommended Order shall be modified to
reflect this finding.
We also agree with the General Counsel and the
Union that as successor to Gloria, the Respondent
was required to pay into the various fringe benefit
funds established by contract between Gloria and
the Union,8 and to continue the practice of allow-
ing union representatives to meet with employees
in production areas to discuss grievances and other
work-related matters.9 Although a successor-em-
ployer is generally free to unilaterally set the initial
terms on which it will hire employees of its prede-
cessor, it is not free to do so when it has expressed
an intent to retain a majority , or as in this case, all
of the predecessor's employees, and has not condi-
tioned their hire on the acceptance of new terms
and conditions of employment . Instead , a successor
employer will, under these circumstances, be re-
quired to continue to adhere to the employees' pre-
existing terms and conditions of employment and
may not discontinue or alter any preexisting right
or obligation without first consulting with its em-
On June 1 , 1983, while still continuing to operate Gloria ' s business,
the Respondent, with approval of the bankruptcy court, purchased Glo-
ria's operations outright from the latter's then trustee in bankruptcy,
Ronald Bensten
8 Although the judge, as noted, found that the Respondent violated
Sec 8(a)(5) and (I) by refusing to bargain with the Union after it became
successor to Gloria in February 1983, and by dealing directly with em-
ployees , rather than with the Union , concerning a proposed change in
their insurance benefits , he did not address the complaint allegation that
the Respondent also violated Sec 8 (a)(5) and ( 1) by failing to make pay-
ments to the fringe benefit funds after it became successor to Gloria
e Although the contract that gave rise to the Union's right 'of access to
production areas and that obligated Gloria to pay into the various fringe
benefit funds expired before the Respondent became a successor, we
agree with the General Counsel that such rights and obligations consti-
tute terms and conditions of employment that survive expiration of the
contract We note in this regard that the Union 's right of access consti-
tuted a mandatory subject of bargaining , and not a permissive one as
found by the judge See, e g, Houston Coca Cola Bottling Co, 265 NLRB
766, 777-778 (1982), enfd 740 F 2d 398 (5th Cir 1984), Fashion Furniture
Mfg, 279 NLRB 705, 715 (1986)
APPELBAUM INDUSTRIES
ployees' bargaining representative over the pro-
posed change .1 ° As noted , when the Respondent
here acquired and continued operating Gloria's
business on February 22, 1983 , it did so with the
same complement of employees that had previously
been employed by Gloria . The record is devoid of
any evidence to indicate that the Respondent's de-
cision to retain all of Gloria 's former employees
was conditioned on the employees ' acceptance of
new terms and conditions of employment , or that
the Respondent , in fact , contemplated any change
in their preexisting terms of employment . In these
circumstances , the Respondent was required to
continue adhering to the preestablished terms and
conditions of employment that included, among
other things , contributing to the various fringe ben-
efit funds and permitting union representatives to
meet with employees in the production areas to
discuss grievances and other work-related matters.
Thus, the Respondent 's failure to make the fringe
benefit payments after it became successor on Feb-
ruary 22 , and its refusal , about June 16, 1983, to
allow Union Representative Anna Jones to enter its
premises to discuss grievances and other related
matters with employees constituted further viola-
tions of Section 8(a)(5) and (1) of the Act. i 1
The General Counsel also excepts to the judge's
finding that employees Jones, Whiting , Davis, Kan-
tanis , Applegate, and Shay were discharged by the
Respondent for poor work performance rather than
for union activities . We find no merit to this excep-
tion.
Initially, we find , contrary to the judge , that the
General Counsel has made a prima facie showing
under Wright Line, 251 NLRB 1083 ( 1980), enfd.
662 F . 2d 899 ( 1st Cir . 1981), cert . denied 455 U.S.
989 (1982), that the union activities of these six in-
dividuals was a motivating factor in the Respond-
ent's decision to discharge them . We nevertheless
conclude that the Respondent has shown it would
have discharged these employees even in the ab-
sence of their union activities.
10 See Fremont Ford, 289 NLRB 1290 (1988), and cases cited therein
11 We find it unnecessary to modify the judge's recommended Order in
this case to provide a specific remedy for the Respondent's refusal to
make contributions because the Respondent , as noted, is jointly and sev-
erally liable with Gloria for complying with the Board 's prior Order
against Gloria which , as evident from Appendix B, requires the Respond-
ent to make unit employees whole by paying all contributions into the
various fringe benefit funds that have not been paid and that would have
been paid absent "the Respondent 's unilateral discontinuance of such pay-
ments until such time as Respondent negotiates in good faith to a new
agreement or to an impasse " As the Respondent 's unlawful conduct in
this regard will be fully remedied by compliance with the above-remedial
provision , we shall not duplicate that provision here We shall , however,
include a provision in the Order directing the Respondent to cease and
desist from refusing to allow union representatives to have access to its
production areas for purposes of discussing grievances and other work-
related matters with employees
983
With respect to the General Counsel 's case, we
note that the General Counsel alleged , and the
judge found , that the Respondent committed nu-
merous violations of the Act , including instructing
employees not to sign union cards, warning them
that those that did would be fired , and instructing
employees to inform other employees of these
threats . For the purpose of determining whether a
prima facie case of unlawful discrimination has
been established , these violations serve to illustrate
the Respondent 's animus towards the Union and its
supporters.
In regard to Whiting and Jones , the record re-
veals that they were members of the Union when
discharged on June 21, 1983 . 12 That the Respond-
ent was aware of their union membership before
discharging them is evident from the fact that
copies of prior warnings issued to Whiting and
Jones had been given to their union steward in ac-
cordance with the Respondent 's established prac-
tice of providing the Union with notice of warn-
ings issued to its members . The record further
shows that with one exception, Whiting and Jones
and the other four alleged discriminatees were the
only employees discharged during the period of the
Union 's renewed organizational activity.13 On
these facts we find that the General Counsel has
made a prima facie showing sufficient to support
the inference that Whiting and Jones ' union sympa-
thies was a motivating factor in their discharge.
A similar finding is warranted with respect to
the other four alleged discriminatees . The record
shows that all four employees had been members
of the Union 's inplant organizing committee, had
worn union buttons to work , had solicited authori-
zation cards from other employees, and had openly
distributed union literature at the plant . Further, as
found by the judge, the Respondent was aware of
the protected activities engaged in by these em-
ployees . This , in connection with the Respondent's
demonstrated animus toward the Union and the
fact that , as discussed above, no other discharges
occurred during the period of renewed union orga-
nizational efforts, is sufficient to warrant an infer-
ence that the employees ' union activities were a
motivating factor in their discharge.
Notwithstanding our finding that a prima facie
case has been established by the General Counsel,
we nevertheless agree with the judge that the dis-
charge of these six employees was not unlawful.
12 Jones joined the Union in March 1983 Whiting testified without
contradiction that while she had at some point in 1982 resigned her mem-
bership in the Union, she subsequently rejoined the Union at an unspeci-
fied date prior to her discharge
13 The only other employee discharged during this period had worked
only 3 weeks
984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Thus, there is ample evidence in the record, includ-
ing the Respondent's weekly employee production
reports, to show that Jones and Whiting, who the
Respondent claims were discharged for their low
production, were among the lowest producers in
the Respondent's sewing department and were the
only two who demonstrated no improvement in
their production after repeated warnings . In fact,
both women admitted to having had low produc-
tion records. The credited testimony of the Re-
spondent 's witnesses reveals that Whiting and
Jones were discharged after receiving a third and
final warning concerning their low productivity,
pursuant to the Respondent's progressive three-
warning disciplinary system.
Regarding the other four employees, the docu-
mentary evidence and the credited testimony of the
Respondent's witnesses similarly show that they
also had been progressively warned about their job
performance, and that they received their final
warning, and were terminated, on March 8, 1983,
for causing several weeks delay in production by
failing to properly spread a large order of cloth for
cutting. On these facts we conclude that the Re-
spondent would have discharged these six employ-
ees for their poor performance even if they had not
engaged in any protected or union activity and, for
this reason, agree with the judge that their dis-
charges did not violate Section 8(a)(3) and (1) of
the Act, as alleged . Wright Line, supra.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge, as modified and set forth in full below, and
orders that the Respondent, Appelbaum Industries,
Inc. and Michael's Closet, Inc., Newport News,
Virginia, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with Upper
South Department, International Ladies' Garment
Workers' Union, as the exclusive representative of
its employees in the following appropriate unit:
All non-supervisory production, maintenance,
packing and shipping workers employed at the
Newport News, Virginia location of the Re-
spondent, but excluding all other employees,
guards, and supervisors as defined in the Act.
(b) Unilaterally changing established terms and
conditions of employment of employees in the bar-
gaining unit , by failing to contribute to the various
fringe benefit funds established by the predecessor
employer's collective-bargaining agreement with
the Union and refusing to allow union representa-
tives access to its production areas to discuss griev-
ances and other work-related matters with unit em-
ployees, without first consulting and bargaining
with the Union.
(c) Dealing directly with employees regarding
conditions of employment while bypassing their ex-
clusive bargaining representative.
(d) Refusing an employee's request to have a
union representative present during an investiga-
tory and disciplinary interview.
(e) Telling employees not to sign union cards.
(f) Threatening to discharge employees who sign
union cards.
(g) Ordering employees not to engage in any
kind of union activity on company premises. ,
(h) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of rights guaranteed them under Section 7 of
the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain collectively and in good
faith with the Union as the exclusive bargaining
representative of employees in the above-described
appropriate unit.
(b) Continue the practice of allowing union rep-
resentatives to meet with unit employees in the
production areas for the purpose of discussing
grievances and other work-related matters.
(c) Comply with the Order issued by the Board
against Gloria Manufacturing Corporation on Janu-
ary 12, 1983, in Cases 5-CA-14257 and 5-CA-
14394 as set forth in Appendix B of this Decision
and Order.
(d) Post at its Newport News, Virginia facility
copies of the attached notice marked "Appendix
A."14 Copies of the notice, on forms provided by
the Regional Director for Region 5, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPELBAUM INDUSTRIES 985
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
discussing their grievances and other work-related
matters.
WE WILL comply with the Order issued by the
Board against Gloria Manufacturing Corporation
on January 12, 1983, in Cases 5-CA-14257 and 5-
CA-14394.
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Upper
South Department International Ladies' Garment
Workers' Union as the exclusive representative of
all employees in the following appropriate bargain-
ing unit:
All non-supervisory production, maintenance,
packing, and shipping employees employed at
the Newport News, Virginia location, but ex-
cluding all other employees, guards and super-
visors as defined in the Act.
WE WILL NOT, without prior consultation and
bargaining with the Union, effect any changes in
existing terms and conditions of employment of the
employees in the above-described appropriate unit
by unilaterally discontinuing payments to the vari-
ous fringe benefit funds that had been established
by contract between our predecessor and the
Union and by discontinuing the practice of allow-
ing representatives of the Union to meet with unit
employees in the production areas to discuss their
grievances and other work-related matters.
WE WILL NOT deal directly with our employees
regarding conditions of employment while bypass-
ing their exclusive bargaining representative.
WE WILL NOT refuse any unit employee's request
to have a union representative present during any
investigatory interview.
WE WILL NOT tell our employees to refrain from
signing union cards.
WE WILL NOT threaten to discharge any employ-
ees who signed union cards.
WE WILL NOT order our employees to refrain
from engaging in any kind of union activity on
company premises.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain collectively and in
good faith with Upper South Department Interna-
tional Ladies' Garment Workers' Union as the ex-
clusive collective-bargaining representative of all
our employees in the above-described unit.
WE WILL continue the practice of allowing rep-
resentatives of the Union to meet with unit em-
ployees in the production areas for the purpose of
APPLEBAUM INDUSTRIES, INC. AND
MICHAEL'S CLOSET, INC.
APPENDIX B
Gloria Manufacturing Corporation and Upper South
Department, International Ladies' Garment
Workers' Union and Edward G . Grant, Trustee
for Gloria Manufacturing Corporation . Cases 5-
CA-14257 and 5-CA-14394
DECISION AND ORDER
BY MEMBERS HOWARD JENKINS , JR, DON A.
ZIMMERMAN , AND ROBERT P HUNTER
STATEMENT OF THE CASES
On November 8, 1982, Upper South Department,
International Ladies' Garment Workers' Union, herein
called the Union; Edward G. Grant, Trustee for Gloria
Manufacturing Corporation, herein called Trustee; and
the General Counsel of the National Labor Relations
Board entered into a Settlement Stipulation, subject to
approval of the Board, providing for the entry of a con-
sent order by the Board and a consent judgment by any
appropriate United States Court of Appeals. The parties
waived all further and other procedure before the Board
to which they may be entitled under the National Labor
Relations Act, as amended, and the Rules and Regula-
tions of the Board, and Respondent waived its right to
contest the entry of a consent judgment or to receive
further notice of the application therefor.
Pursuant to the provisions of Section 3(b) of the Na-
tional Labor Relations Act, as amended, the National
Labor Relations Board has delegated its authority in this
proceeding to a three-member panel.
The aforesaid Settlement Stipulation is hereby ap-
proved and made a part of the record herein, and the
proceeding is hereby transferred to and continued before
the Board in Washington, D.C., for the entry of a Deci-
sion and Order pursuant to the provisions of the said Set-
tlement Stipulation.
Upon the basis of the aforesaid Settlement Stipulation
and the entire record in the proceeding, the Board makes
the following
FINDINGS OF FACT
I. THE BUSINESS OF GLORIA MANUFACTURING
CORPORATION
At all times material herein, Gloria Manufacturing
Corporation, herein called Respondent, a Virginia corpo-
ration with an office and place of business in Newport
News, Virginia, herein called Respondent's facility, has
986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
been engaged in the manufacture of garments and appar-
el for customers engaged in the wholesale distribution of
clothing and related products.
During the past 12 months, a representative period,
Respondent , in the course and conduct of its business op-
erations described above, performed services valued in
excess of $50,000 for customers located outside the State
of Virginia.
Since on or about May 20, 1982, Edward G. Grant has
been duly designated by a United States Trustee as the
Trustee in Bankruptcy for Gloria Manufacturing Corpo-
ration with full authority to continue operations and ex-
ercise all powers necessary to the administration of the
business of Gloria Manufacturing Corporation.
By virtue of the events described above , Edward G.
Grant is, and has been since May 20, 1982 , a successor in
bankruptcy to, and/or an alter ego of Gloria Manufactur-
ing Corporation.
The Union and Trustee admit, and we find, that Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Upper South Department, International Ladies' Gar-
ment Workers' Union, is a labor organization within the
meaning of Section 2(5) of the Act. The Union has been
at all times material herein , the recognized statutory rep-
resentative of all employees in the appropriate unit for
the purposes of collective bargaining within the meaning
of Section 9(a) of the Act.
III. THE APPROPRIATE UNIT
All non-supervisory production, maintenance, packing
and shipping workers employed by Respondent at its
Newport News, Virginia location, but excluding all other
employees , guards and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act.
ORDER
Upon the basis of the above findings of fact , the Settle-
ment Stipulation , and the entire record in the proceed-
ing, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Relations
Board hereby orders that:
The Respondent, Gloria Manufacturing Corporation,
and Edward G . Grant, Trustee for Gloria Manufacturing
Corporation, their officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Unilaterally ceasing payments into the Upper South
Department , ILGWU Health and Welfare Fund, the
Upper South Department , ILGWU Vacation Pay Fund,
ILGWU Health Services Plan and the ILGWU National
Retirement Fund.
(b) Unilaterally ceasing the deduction of union dues
from employee wages and ceasing to remit such dues to
the Union, which obligation arose pursuant to Article V
of the collective-bargaining agreement and pursuant to
authorizations signed by employees in the unit described
above.
(c) Unilaterally ceasing paying to employees in the
unit described above, wages in the manner and amount
called for in Article VII of the collective-bargaining
agreement.
(d) Unilaterally ceasing deducting health insurance
premiums from the wages of certain employees and ceas-
ing forwarding those premiums to Blue Cross and Blue
Shield of Virginia pursuant to Article XV, Section 3 of
the collective-bargaining agreement.
(e) Interrogating employees regarding their member-
ship in and sympathies 'toward the Union.
(f) Encouraging and assisting employees to resign from
membership in the Union and to rescind authorizations
to permit deductions from their wages of union dues.
(g) Discouraging membership in the Upper South De-
partment, International Ladies' Garment Workers'
Union, or any other labor organization , by refusing to re-
instate or otherwise discriminating against employees for
engaging in a protected strike or other lawful union or
concerted activities for the purposes of mutual aid and
protection.
(h) In any other manner interfering with, restraining or
coercing employees in the exercise of rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which the Na-
tional Labor Relations Board fords will effectuate the
policies of the National Labor Relations Act, as amend-
ed:
(a) Make the employees in the unit set forth above,
whole by paying all contributions into the Upper South
Department, ILGWU Health and Welfare Fund, the
Upper South Department, ILGWU Vacation Pay Fund,
the ILGWU Health Services Plan, and the ILGWU Na-
tional Retirement Fund which have not been paid as pro-
vided in the expired collective-bargaining agreement, and
which would have been paid absent Respondent 's unilat-
eral discontinuance of such payments, and continue such
payments until such time as Respondent negotiates in
good faith to a new agreement or to an impasse.
(b) Remit dues to the Union that would have been re-
mitted absent the Respondent's unilateral discontinuance
of such remittances for the period beginning April 1,
1982, until the contract expiration date of April 30, 1982.
(c) Make whole the employees for loss of pay suffered
by reason of Respondent 's unilateral cessation of contrac-
tual wage rates on March 19 , 1982, by payment to them
of the amounts they would have received but for Re-
spondent 's unilateral action.
(d) Make whole employees who were covered by Blue
Cross and Blue Shield of Virginia for any medical ex-
penses they have incurred because of Respondent's uni-
lateral cessation of premium payments to Blue Cross and
Blue Shield of Virginia to the extent that said carrier
would have paid such medical expenses and continue to
reimburse said employees for medical expenses in the
same manner until such time as the Respondent reaches
an agreement with the Union over the selection of a new
insurance carrier or until an impasse is reached.
APPELBAUM INDUSTRIES
(e) Offer the employees whom the Union uncondition-
ally offered to return to work on April 3, 1982, immedi-
ate and full reinstatement to their former positions or, if
such positions no longer exist, to substantially equivalent
positions, without prejudice 'to their seniority and other
rights and privileges previously enjoyed, discharging, if
necessary, any replacements hired, and make said em-
ployees whole for any loss of earnings or other benefits
they have suffered from April 9, 1982, to the date of Re-
spondent's offer of reinstatement In the event that, after
discharging replacements, vacancies do not exist for all
employees whom the Union offered to return to work,
establish a preferential hiring list. If such a preferential
hiring list is established, offer employees immediate em-
ployment, or' if such positions no longer exist, to substan-
tially equivalent positions, as vacancies become available.
(f) Upon request, make available to the Board or its
agents, for examination and copying , all payroll and
other records necessary to determine the amount of pay-
able due. under paragraphs 2(a), 2(b) and 2(c) of this
Order.
(g) Post immediately, at Respondent's Newport News
facility, copies of the attached Notice to Employees
Copies of said Notice on forms provided by the Regional
Director for Region 5, shall, after being signed by the
Respondent's representative and the Trustee, be posted
immediately upon receipt thereof and be maintained for
60 consecutive days thereafter, inconspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted.
(h) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent and the Trustee have taken to comply
herewith.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Pursuant to a stipulation providing for a consent judge-
ment of any appropriate United States Court of Appeals.
WE WILL NOT unilaterally cease remitting premiums to
Blue Cross and Blue Cross of Virginia pursuant to Arti-
cle XV, Section 3 of the collective-bargaining agreement
that expired on April 30, 1982.
WE WILL NOT unilaterally cease making payments into
the Upper South Department, ILGWU Health and Wel-
fare Fund, the Upper South Department, ILGWU Vaca-
tion Pay Fund, the ILGWU Health Services Plan and
the ILGWU National Retirement Fund.
WE WILL NOT unilaterally cease deducting dues from
employee wages and cease remitting them to the Union.
WE WILL NOT unilaterally cease paying wages to em-
ployees in the manner and amount set forth in Article
VII of the collective-bargaining agreement which ex-
pired on April 30, 1982.
WE WILL NOT discourage membership in the Upper
South Department, International Ladies' Garment Work-
ers' Union, herein called the Union, or any other labor
organization, by refusing to reinstate or otherwise dis-
criminating against employees for engaging in a protect-
987
ed strike or other lawful union or concerted activities for
mutual aid and protection.
WE WILL NOT interrogate employees regarding their
union activities
WE WILL NOT encourage and assist employees to
resign from membership in the Union and to rescind au-
thorizations to permit deductions from their wages of
union dues.
WE WILL NOT in any other manner interfere with, re-
strain or coerce employees in the exercise of rights guar-
anteed in Section 7 of the Act.
WE WILL make employees whole by paying all contri-
butions into the trust funds set forth above, as set forth
in the expired collective-bargaining agreement, which
have not been paid, and which would have been absent
Respondent 's unilateral discontinuance of such payments;
and continue such payments until such time as we nego-
tiate in good faith to a new agreement or to an impasse.
WE WILL remit dues owed to the Union for the period
from April 1, 1982, to April 30, 1982.
WE WILL make whole the employees for all loss of
earnings resulting from our unilateral discontinuance of
contractual wage rates.
WE WILL make whole employees who were covered
by Blue Cross and Blue Shield of Virginia for any medi-
cal expenses they may have incurred because of our uni-
lateral cessation of premium payments to Blue Cross and
Blue Shield of Virginia and continue to reimburse said
employees for medical expenses until such time as we
reach an agreement with the Union over the selection of
a new insurance carrier or until an impasse is reached.
WE WILL offer employees who engaged in a strike
from March 19, 1982 to April 2, 1982, immediate and full
reinstatement to their former jobs or, those jobs no
longer exist, to substantially equivalent positions without
prejudice to their seniority or other rights or privileges
previously enjoyed.
WE WILL make employees whole for any loss of earn-
ings or other benefits they suffered as a result of our al-
leged discrimination against them from April 9, 1982,
until the date they were reinstated
In the event that, after discharging replacements, va-
cancies do not exist for all employees whom the Union
offered to return to work, WE WILL establish a preferen-
tial hiring list. If such a preferential hiring list is estab-
lished, WE WILL offer employees immediate employment,
or if such position no longer exists, to substantially
equivalent positions, as vacancies become available.
GLORIA MANUFACTURING CORPORATION
EDWARD G. GRANT, TRUSTEE FOR
GLORIA MANUFACTURING CORPORATION
Mark Carissimi, Esq. and Edward R. Noona, Esq., for the
General Counsel.
Jack W. Burtch, Jr., Esq. (McSweeney, Stutts & Burtch), of
Richmond, Virginia, for the Respondent Appelbaum
Industries, Inc.
A. W. Vandermeer, Jr.,, Esq. and David A. Kadela, Esq.
(Hunton and Williams), of Richmond, Virginia, for Re-
spondent Michael's Closet, Inc.
988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Jay J. Levit, Esq. (Levit and Mann), of Richmond, Virgin-
ia, for the Union.
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge . A hear-
ing in this proceeding was held on September 12, 13, 14,
15, 22 , and 23, 1983, at Newport News, Virginia, on
complaints by the General Counsel against Appelbaum
Industries, Inc., Michael's Closet, Inc., Gloria Manufac-
turing Corporation, Edward G . Grant, Trustee, and
Ronald Bensten , Trustee (the Respondent). The finally
consolidated complaint issued on August 17 ,, 1983, based
on separate charges filed on March 17 and 28 , April 1,
May 27, 1983 and June 23, 1983 , by Upper South De-
partment, International Ladies' Garment Workers' Union
(the Union). The essential questions to be decided are
three : (1) Whether at the time of the events which gave
rise to this case Appelbaum Industries , Inc. and Mi-
chael 's Closet, Inc., were a single employer collectively
responsible for the unfair labor practices said to have
been committed; (2) whether this single Respondent ille-
gally refused to bargain with the Union on request and
thereby violated Section 8 (a)(5) of the Act; and (3)
whether, in the name of Michael's Closet, the Respond-
ent illegally discriminated against certain named employ-
ees in violation of Section 8(a)(3). Briefs were filed by all
parties after the close of the hearing.
On the entire record , and from my observation of the
witnesses, I make the following
FINDINGS OF FACT
JURISDICTION
There are two commercial enterprises involved here.
One is located in New York City, what is called a gar-
ment manufacturer , or jobber. It designs dresses, has
them produced-i.e. cloth cut , pieces sewed together,
finishing done-and then sells them to national distribu-
tors all over the country . In its New York office the
jobber uses various employees-salesmen, models, de-
signers, recordkeepers, etc. The New York Company has
for some years been called Appelbaum Industries, Inc.
Its sole owner and operator always has been and is Mr.
Leo Appelbaum , a well-to-do expert in the field.
Until early 1983 there was in Newport News, Virginia,
a company called Gloria Manufacturing Corporation,
with 250 to 300 employees , called a garment contractor,
which produced the garments for customers like Appel-
baum. It received the cloth from the jobbers in rolls, cut
it according to varying style patterns, had it sewed into
dresses, or robes, or whatever, and shipped them back to
the jobbers or to those who bought the garments from
the manufacturers , the manufacturers always being the
owners of the garments . Gloria Manufacturing was
owned by Walter Goodman and his wife , Gloria. For
some time before 1983 Gloria's major customer was Ap-
pelbaum Industries . Those two companies were then sep-
arate employers within the meaning of Board law.
In December 1981 Gloria Manufacturing filed a peti-
tion in bankruptcy, and it continued in the same business
under successive bankruptcy trustees. The same kind of
business was still being carried on at the same location
and with the same employee complement at the time of
the hearing in September 1983.
There is no issue as to jurisdiction. It is admitted in the
answers filed to the various complaints . It will be enough
to repeat here Appelbaum's admission , on the record,
that in February 1983 Gloria Manufacturing was work-
ing on garments in its Newport News facility belonging
to Appelbaum Industries valued at $700,000. I find that
Appelbaum Industries , Gloria Manufacturing Corpora-
tion, and Michael's Closet, its successor, are, and were
always in commerce within the-meaning of the Act.
Jr. THE LABOR ORGANIZATION INVOLVED
I find that Upper South Department, International
Ladies' Garment Workers' Union , is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES ALLEGED
A. Successorship,• Alter Ego
The first question to be decided is: just who is the Re-
spondent in this case? And the word "who" is particular-
ly apt here because , as will appear clearly , the Respond-
ent is a person, an individual, a "who" personally named.
The cases speak in terms of alter ego, but ordinarily they
deal with corporations, commercial enterprises , big busi-
ness operations . Ego means a man , a person , unquestion-
ably identifiable . This is the kind of case this is.
Leo Appelbaum has for some years been the sole
owner of Appelbaum Industries, Inc., the Company
which manufactures ladies' garments and sells them
wholesale . From 1978 he has had his garments made by
the contracting company in Newport News , called
Gloria Manufacturing Inc. Most, if not all of his dresses
were made down there. Gloria Manufacturing, since
1978, was owned and operated by Mr . and Mrs. Good-
man, and Appelbaum Industries was its major customer.
It was a very substantial business the two companies did
together, if, as was shown , at a single moment there was
$700,000 worth of garments being processed down in
Virginia.
When Gloria Manufacturing filed a petition in bank-
ruptcy in the Federal court a man named Edward Grant
was named trustee and put in control of the bankrupt
company . He continued on the same business as before,
still with Appelbaum as the major supplier of work and
still with the 200 to 300 employees doing the same kind
of work . Goodman and his wife also continued on as the
managers in charge of the day -to-day operations. How-
ever the name may have changed then, in terms of
Board law the trustee was , for the time being, a succes-
sor to the old company, still doing the same business and
still called Gloria Manufacturing Incorporated.
During 1982 Labor Board charges were filed saying
the then operators of the bankrupt company had commit-
ted certain unfair labor practices . After an investigation,
the parties, with their lawyers, agreed to a stipulation of
facts, findings were made by the Board as to the conduct
said to have been illegal, a remedial order issued, and the
APPELBAUM INDUSTRIES
Board's Order was then enforced by the circuit court.
The Company was ordered to bargain collectively with
the Union and to pay a certain amount of money as a
make-whole remedy. That obligation-both to recognize
and bargain with the Union and to pay the money due,
became an obligation binding upon the trustee ; after all,
he was just running the business as an agent of the
Court. Imperial Hospital, 257 NLRB 300 (1981).
Apparently, the financial condition of the Company
continued to deteriorate, so much so, that on February
18, 1983, a Friday, the Federal judge in the bankruptcy
court ordered immediate liquidation of the entire oper-
ation. This meant all work would cease, all employees
would not be paid on the next payday, and all jobs
would be ended It also meant that whatever work was
in progress, with garments only partly made, would
cease, and the owners of the garments, primarily Appel-
baum Industries , might stand to lose a great deal of
money. The following Monday-Washington's Birthday,
a holiday-when the plant was closed, Mr. Appelbaum
came running down from New York City and, with his
lawyer, signed a lease taking over the entire property
and business of the bankrupt company, with approval of
the trustee and the bankruptcy court.
On February 22, the first working day following the
holiday and the court liquidation order, the employees
were at work- as usual , and the entire operation went
right on as though nothing had changed, at least insofar
as the employees and the work performed was con-
cerned. Appelbaum hired Goodman and his wife as man-
agers and supervisors, and the two of them simply
changed from nominal owners in charge under the bank-
ruptcy court, to straight supervisory personnel employed
by Appelbaum.
When Appelbaum signed the lease that day, instead of
writing his own name as lessee, he wrote the phrase "Mi-
chael's Closet." The phrase had never been used by
anyone in the talking that preceded the signing of the
lease. Perhaps he intended one day to use another name
for his new business which he started to operate that
day. But , despite the General Counsel 's repeated insist-
ence that the original lease had "Appelbaum" written on
it and later erased, that matter is of no moment now at
all. Appelbaum admitted it was his lease. Whatever he
chose to call himself, he was still "Appelbaum." The ego
does not change with a different title. Perhaps a better
phrase here would be "ipso ego," instead of alter ego.
It was the same man owning and doing two business-
es-jobbing and contracting And that his two business-
es-physically separate-were completely integrated
could not be clearer. In reality, it was a single operation,
one making the dresses and selling them, including the
designing , and the other cutting, sewing , and shipping
them out to the customers. And that is exactly as matters
remained right through the day of the hearing 6 months
later. Appelbaum came to Newport News and simply
took over Gloria Manufacturing . Cf. Michigan Dry Wall
Corp., 232 NLRB 120 (1977).
Appelbaum continued on with the contracting business
in Newport News as it had been in the past. In April he
incorporated what he called Michael's Closet; it became
Michael Closet Inc., with the incorporating papers show-
989
ing himself as sole officer and owner of the entire corpo-
ration. And on April 28 the new corporation purchased
the business outright, lock, stock, and barrel. At the time
of the hearing, in September 1983, the same business was
being carried on as always, all the garments manufac-
tured by Appelbaum Industries of New York City were
being made there, work was being done for some other
jobbers also as in the past; the kind of work did not
change at all; and the employee complement was con-
stantly the same-give or take a certain amount of turn-
over which is normal in this kind of business.
That the Company now called Michael's Closet Inc. is
the successor to Gloria Manufacturing, Inc., could not be
clearer. It purchased the business of the first company; it
does the same kind of work; it uses the same group of
employees; it does work for the same kind of customers
as its predecessor; the supervisors are the same people; in
short, nothing changed insofar as the employees are con-
cerned, except that the real boss is now Mr. Appelbaum,
while before it use to be Mr. and Mrs. Goodman and
successive trustees appointed by the Federal Court.
None of the facts on which the Respondent relies to
avoid this reality have any meaning at all. Some of the
garments now being produced are different from the
past, but that is the normal character of this business.
Styles have always changed from season to season. Some
of the jobber customers are also new, but that fact also
was standard procedures for any contractor in the gar-
ment industry. This is equally true of the fact some of
the employees have left and some new ones have been
hired. This happens all the time in this kind of commer-
cial enterprise, with so large a complement of people.
The heart of the case centers on the work done for Ap-
pelbaum Industries, from New York. That work is still
being done, albeit it changes in volume from time to
time.
A successor-purchaser not only gains the financial ad-
vantages deriving from the new business, it also assumes
its obligations That is why during the first 5 months
after February 22 Appelbaum poured a lot of money
from his New York bank into the Michael's Closet oper-
ation to pay its outstanding bills. Under clear Board law
the successor is also bound to deal with the Union which
was established before it took over the business. Here the
ILGWU, the Charging Party, in this proceeding, had
been the bargaining agent of the employees for many
years. Throughout the year 1982 the trustee, under the
name Gloria Manufacturing , engaged in fruitless collec-
tive bargaining with the Union, as it was obligated to do.
Indeed, Gloria Manufacturing was under Board order to
recognize and bargain with the Union the day Appel-
baum stepped into the picture. On February 28, 1983, the
Union wrote a letter to Appelbaum requesting continued
negotiations in bargaining rights. Appelbaum ignored the
demand. That Appelbaum, whatever he chose to call
himself at the moment, here a named Respondent, violat-
ed Section 8(a)(5) of the Act then, a clear refusal to bar-
gain, as alleged in the complaint, cannot be questioned.
Among the debts of the predecessor of necessity as-
sumed by the successor in this case is whatever obliga-
tion arose from the Board Order, enforced by the higher
990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
court, based upon the unfair labor practices involved in
the earlier proceeding of 1982 , as stated above. The Gen-
eral Counsel placed great emphasis on that early pro-
ceeding during the hearing in this case . But that matter,
in terms of any backpay liability, is completely unrelated
to the case at bar . This complaint is limited to unfair
labor practices said to have been committed by Michael's
Closet after those events of 1982. What burdens may rest
upon this successor because of its own conduct , are one
thing. That is what this case is about . What it owes be-
cause of having assumed the obligations of its predeces-
sor for other reasons, are matters to be decided in other
tribunals . See, for example , Tucker Freight, 115 LRRM
2202 (1983).
The Board's fmdings and order in the earlier proceed-
ing are dated January 12, 1983 . The circuit court order
enforcing the Board 's decision is dated March 29, 1983.
Included in that decision is a direct remedial order to
bargain with the union . Every argument now made by
the Respondent to avoid the effect of that decision is un-
convincing . In the name of Gloria Manufacturing, the
predecessor , it says its lawyer acted without authority of
the client . It is too late a day to respond to such an argu-
ment . Inconsistently , it also asserts that in 1982 Gloria
Manufacturing did bargain in good faith , in fact reached
a legal impasse , and never mind the facts its lawyers stip-
ulated with the General Counsel when the facts were put
before the Board! And finally, in the name of Appel-
baum, the Respondent also claims he, as a successor, did
not know about the earlier decision binding upon Gloria
Manufacturing when he bought the business , and there-
fore cannot be bound by it. The evidence gives the lie to
this last assertion . Appelbaum's first attempt to buy the
business-after he had it under lease-was conditioned
upon his not being bound by that earlier Board decision.
The bankruptcy court rejected the offer for that very
reason . Appelbaum then tried again, successfully, and
bought the business without that qualification. How can
he now claim he never knew about the earlier case? See
NLRB v. Metalic Lathers Local 46, 727 F.2d 234 (2d Cir.
1984).
What is equally clear, as also alleged in the complaint,
is that Michael 's Closet-whether just another named
used by Appelbaum when he took over by lease or a
corporation when he personally purchased Gloria Manu-
facturing, and Appelbaum Industries Inc., are one and
the same, or alter egos, in Board language. He was, and
is, Appelbaum Industries ' sole owner, officer, and opera-
tor. When he signed the lease, he called himself by an-
other name . What difference does it make what a man
calls himself? He is always the same person. There came
a time when he decided to incorporate that part of his
business which was in Newport News. Again, what dif-
ference does it make whether a businessman operates in
his personal name, or via a corporation? It is still his
business; he is still the employer within the meaning of
the Act.
I find that by refusing to bargain with the Union from
February 1983 and thereafter, the Respondent-Appel-
baum Industries, Inc., and Michael's Closet, Inc.-violat-
ed Section 8(a)(5) of the Act.
I also find that when Gloria Goodman , on June 10,
1983 , announced to all the employees that the Respond-
ent was offering them a new insurance benefit if they
chose to accept it, the Respondent committed a further
violation of Section 8(a)(5). An employer may not deal
directly, unilaterally , with its employees while it is under
statutory obligation to bargain with the union of their
choice.
B. Section 8(a)(1)
On May 13, 1983 , with Appelbaum running the busi-
ness as Michael 's Closet, Inc., and with Walter Goodman
the general manager in charge , two employees were
called to the office by Goodman for a talk . When Good-
man told them he was going to "tape" the talk, Brad-
shaw, one of the employees, said he wanted to call Elea-
nor Hill, the local union 's vice president, to be present.
Goodman refused to permit that. During the conversa-
tion, with both employees listening , Goodman told them
they had not been producing enough work, and showed
them the production sheets to prove his assertion. The
men defended on the grounds that the work made it im-
possible to produce more . To prove his point Goodman
called in a supervisor , Francis Sheek, who agreed with
him in the presence of the two men. Before releasing the
men Goodman told them if they did not improve their
production by 11:30 that day they would be terminated.
Later that morning Goodman had another supervisor
time the two men at work , to check their performance.
Later in the day both men were given written warning
slips reading : "Average performance on a daily basis 120
percent slowed down to 85 percent."
Goodman denied any knowledge of the written warn-
ings given the men that day, but he agreed their testimo-
ny was correct-that he called them in to warn them
that they would be discharged if their work did not im-
prove. Goodman was not a very credible witness in this
case; among other things he had difficulty admitting his
wife, Gloria, exercised supervisory authority over the
employees . He excused his admitted refusal to have the
union agent present on the ground he had told the
Union's lawyer he could be present. I find this was a
straight investigatory and disciplinary interview, and that
Goodman's refusal to permit a union agent to be present
at the employees' request was a violation of Section
8(a)(1) of the Act. NLRB v. Weingarten , 420 U.S. 251.
2. On February 18, 1983 , two employees were in
Gloria Goodman's office-Wesley Sauer, a Haitian who
speaks English well and acted as interpreter in the plant
for a number of Haitians who do not speak English, and
Gideon Charlemagne , also a Haitian who speaks English
poorly. The conversation came about because Charle-
magne had gone to Mrs. Goodman to tell her a union so-
licitor had been at his home one evening , and, worried
about losing his job, he did not know what to do. When
Goodman answered him, according to his testimony, that
he did not have to sign a union card and that if he did
the Company would not want him, he called Sauer to
act as interpreter . Sauer came in then.
Sauer testified that Goodman told him: "Wesley, I
want you to go to tell all the Haitian guys do not sign
APPELBAUM INDUSTRIES
the union card , and tell Gideon , too." When Sauer asked
why, Goodman continued : "Because the new company
who's going to take over will not accept no union
member . . . . So if they want to keep their jobs they
must not sign no union card . . . if they is a union
member in the company the union member will be
fired ." Sauer repeated this to Charlemagne , who under-
stood it anyway, and then passed the message on to the
other Haitians at work . Charlemagne 's testimony is con-
sistent with that of Sauer , and he added that Gloria
Goodman also said to him that evening that if anyone
came to his home to ask him to sign up with the Union,
he should call the police "for those people."
Walter Goodman , who was present in the office that
day, testified he did not hear his wife threaten anyone
with discharge . He quoted Charlemagne as saying "he
was being harassed at his home by organizing people
from the union attempting to force him to sign a union
membership card . . that he wanted this stopped." His
wife, who also denied having made any threats, testified
Charlemagne came to her office to tell her that "organiz-
ers were continually coming to his house and pounding
on the door for admittance to the house, and wanted him
to sign union membership cards, and did he have to do
it." She added that Grant , the bankruptcy trustee who
was also there, advised her to telephone - the FBI, which
she did , only to be told it was a matter for the local
police. But neither Sauer nor Charlemagne said anything
at the hearing about being harassed by anyone , or saying
they were being harassed . And Grant , who testified for
the Respondent , was asked nothing about that conversa-
tion at all.I credit the two employees against the Good-
mans The Respondent 's opposition against the Union is
evident on this record , indeed Walter Goodman candidly
admitted the decline in Respondent's business was due to
the Union 's insistence upon enforcement of its contract.
Moreover , the employees were ordinary persons who
would certainly hesitate to lie in the presence of their su-
pervisors . The Goodmans , on the other hand , were often
evasive and argumentative in their general testimony.
I therefore find that by telling these employees they
should not sign union cards, and that they would be fired
in retaliation if they did, and by telling them to pass that
message on to other employees, the Respondent violated
Section 8(a)(1) of the Act.
3. One day, January 21, 1983, employee Florence
Land was talking to another employee about joining the
Union , and was overheard by Mrs. Goodman. Land tes-
tified that shortly thereafter Mrs. Goodman told her "not
to force anybody to join the Union." Land protested she
was not forcing anyone to join, and Goodman repeated
the warning "not to force" people to join , and that
"there was to be no more union business conducted on
the premises ." A week later Land received a certified
letter containing "a disciplinary warning prohibiting me
from carrying on any union business on the premises."
Gloria Goodman ' s explanation of this disciplinary
action and statement to Land is that Land was "pound-
ing" on the other employee's machine and demanding
she sign a union card . Faced with the written warning
received in evidence-which reads only "Employee told
by Gloria Goodman to cease conducting union business
991
on company property," Goodman explained that her
concern was that people should work during working
hours and not talk union.
Had there been any improper conduct by the employ-
ee at that time it certainly would have been written into
the reprimand notice. I find that by telling the employees
they would not be permitted to conduct union activities
on the company premises , the Respondent violated Sec-
tion 8(a)(1) of the Act
4 There is direct testimony by two employees-Debra
Whiting and Shirley Jones-both later discharged [see
below] , that their supervisor , Shelby Jones, simply asked
each one whether she was a union member. Their super-
visor denied having made such inquiries to either of
them . I make no unfair labor practice finding based on
this testimony of the two employees.
Shirley Jones testified she had nothing whatever to do
with union activity while she worked in this place.
There therefore was no reason for her supervisor to
single her out for improper interrogation . Moreover,
Shelby Jones testified at length about the later discharge
of both these two women , and in total , she was a far
more credible witness than the two women . I credit her
denial with respect to employee Jones.
As to the alleged improper inquiry of Whiting, it is a
fact that for some time a system ' existed here of giving a
copy of any warning disciplinary notice to the union
steward . This supervisor was a recent arrival , and there-
fore did not know who were union members . She even
told Whiting the reason why she was asking was so she
could know whether a copy of a certain warning-
which she told Land she was giving her that day-
should also go to the Union. And she did give it to the
union steward , that very day. If in her testimony later
she said she did not ask the question of Whiting , it means
only she forgot . What she did remember , and as Whiting
also admitted , was that when she gave the warning slip
to the girl and asked her to sign it, Whiting refused to do
so.
5. When , on February 18, the District Judge ordered
the immediate liquidation of the Company in bankruptcy,
there was an understandable furor in the plant. All par-
ties-managers , trustee, lawyers, and union agents-re-
turned from the courtroom in the afternoon in a general
state of uncertainty as to how to proceed . Word got
around fast among the employees . After all, unless some-
thing unforeseen happened which could salvage the situ-
ation , it meant 300 jobs lost that very moment, and possi-
bly no pay for anyone for the work already performed
that week . Bedlam must have broken loose.
The union agents-some outsiders and some employ-
ees-came into the working areas to inform the union
members and to advise them what to do, i.e., what to do
as the Union saw the situation . The owners-i.e., trustee
and the Goodmans-wanted to calm the people down
with the hope things could be somehow straightened out.
Undoubtedly the Goodmans, at least , already had an in-
kling of Mr . Appelbaum 's intention , like what he did
later when he poured money into the business to keep it
going in a matter of days.
992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In the resultant turmoil the managers ordered all the
union agents out of the work areas , where all the ma-
chines were operating , and told them they could talk to
the employees if they wished in the lunchroom. The
lunchroom is a very large one, where as many as 150
people at a time sit for lunch.
This went on for some time . Even the next week,
when the employees returned to work on Tuesday, after
the Monday holiday, the managers kept telling the union
agents to stay out of the work areas. Always they were
permitted into the plant to talk to the employees, but not
in the work places . The General Counsel calls this exclu-
sion of the union agents from inside the plant-not inside
the plant but inside the work areas!-as an unlawful in-
terference with the right of employees to engage in con-
certed activity , and therefore a further unfair labor prac-
tice by the Respondent . He likens this situation to that
where an employer refuses to permit a union agent to
come to the premises to discuss a pending grievance
with a union member. He is wrong. First , it was not a
matter of discussing pending grievances. Second, the
Union was not refused admittance . It was only told not
to interfere with the work in progress , to stay away from
the machines . I find nothing wrong with that , consider-
ing expecially the turmoil and excitement of those days.
And finally, a number of the General Counsel's witnesses
admitted they were told to use the lunchroom.
A final weakness in the theory of illegality in this
aspect of the case appears in the General Counsel's reli-
ance upon the old collective -bargaining agreement which
had expired in early 1982, long before these events. That
contract provided the union agents could walk around
where the people worked to talk to them to be sure they
were satisfied with things . There is evidence that in
August of 1982 and later that year , after the contract had
expired, management restricted the union agents so that
they had to remain in the shipping room when talking to
the employees, and not to wander about the work areas.
The General Counsel calls this limitation , too, back in
1982, a continuing unfair labor practice , arguing that by
such a change in procedures the Respondent unilaterally
changed conditions of employment . But the relationship
between employees and their bargaining agent stands
apart from their relationship with their employer. The
arrangements between boss and workmen are what are
called conditions of employment, and, proper subjects of
collective bargaining . How the members deal with their
union has nothing to do with the employer . True, the
parties may provide rules for such things in their collec-
tive-bargaining agreement , but those are possible permis-
sible, not mandatory subjects of collective bargaining.
They do not survive the contract. See Bethlehem Steel
Ca, 133 NLRB 1347, 1360-1364.
Anna Jones, the Union's business agent, was the prin-
cipal witness for the General Counsel on this business of
access. She started by saying that when she came to the
plant during the second half of 1982 , she used to go to
the shipping room . The managers announced her arrival
over the plant intercom , and employees came to talk to
her. "the people would line up in the shipping area to
speak to me." She was back again in December . "I told
her [Gloria Goodman] why I was there . And she said
that she could only let me go in the lunchroom area and
talk to the people . So she took me upstairs and she
showed me the locker room . She showed me the plant.
And I told her . I said, well, you could at least-I am
supposed to have access to the plant . You could at least
let me tour the plant to see what you have . So she did
that. Q. Did you speak to any employees that day? A.
Yes, I did . I spoke to all the officers . Q. Where at? A.
Inside the plant on the production floor."
Jones went on to say that in June 1983 she was denied
access to the plant entirely , but then, somewhat incon-
sistently, she also said she came on July 7 and talked
with Mr. Goodman in the cafeteria, where she handed
him a written grievance ! She must have been inside the
plant.
I make no finding that the Respondent violated the
statute by unduly limiting the union agents' access to its
members inside the place of work.
C. The 8(a)(3) Allegations
The complaint lists a number of employees as having
suffered discrimination in employment at the hands of
the Respondent in violation of Section 8(a)(3). Four
cloth spreaders were discharged on March 8 , 1983, and
two sewers on-June 21 , 1983 , for illegal reasons, accord-
ing to the complaint. Seventeen other employees-pre-
cisely named in the complaints-were laid off, on various
dates during April and March of 1983 , for short peri-
ods-some for only 2 or 3 days, some for a week or so,
and some of them for somewhat longer periods. All of
them were always recalled, as the complaints admits.
In affirmative defense the Respondent contends that all
these employees who lost a few days now and then were
laid off because there was no work for them to do at the
moment, and that in some of those instances the particu-
lar employees were selected because of their relative in-
competence at work . As to the two women sewers-
Shirley Jones and Debra Whiting-who left and never
returned, a like defense is advanced . The four spread-
ers-Therese Applegate, Christopher Davis, George
Kontanis and Nancy Shay-were discharged because
they made too many mistakes in their work, because
they neglected their machines , and because of their poor
attitude on the job , according to the Respondent.
D. The Temporary Layoffs
I shall recommend dismissal of the complaint with re-
spect to all 17 of the employees laid off for only short
periods of time. The reason here is twofold. I do not
think the General Counsel has proved a prima facie case
in support of this blunderbuss allegation. Moreover, I
think the Respondent would have laid off these people
for those short periods for the reasons now advanced,
even if it were true , which I do not believe , it knew of
the union inclinations of everyone of them.
1. Layoffs of this nature were a common occurrence in
this plant at the time of the events, the spring of 1983, as
a number of the employees who testified and were sent
home themselves admitted . The first evidence of this re-
ality is the very fact 6 employees among the 17 listed in
the complaint never appeared at the hearing. One was
APPELBAUM INDUSTRIES
off 3 days at the end of March, another from March 29
to mid-May, the other four were also laid off at the end
of March, but, as the complaint says, the "undersigned-
meaning , of course, the General Counsel-did not know
when they returned. For all I know they too may have
lost only 2 or 3 days, or maybe a week. Since there cer-
tainly can be no presumption of illegality in the layoff of
those six persons, the very facts as to them set out in the
complaint is proof that the work condition at that time
simply required temporary layoffs as happened to the 11
persons who came to the hearing to testify.'
Of the 11 employees who testified 9 said clearly they
were told at the time that the reason for being sent home
was because there was no work for them then. Several
added their supervisors told them to keep calling in so
they could return to work when work was available; and
they did that, and came back An invitation to call in so
quickly points to a lack of animus, not to an illegal pur-
pose. There is also direct testimony by 6 of the 11 em-
ployees that others besides themselves were laid off at
about the same time. It will be recalled that all these
layoff incidents came within a month of the Company
being taken over by Appelbaum because the business was
failing very badly. This is the burden of defense by the
Respondent now. But aside from the defense testimony,
even the General Counsel' s witnesses agreed that another
large customer, not Appelbaum, pulled all its work out
of this plant when the liquidation decision was made by
the bankruptcy court in the middle of February. It fol-
lows there must have been less chances of keeping ev-
erybody on the job constantly.
From the testimony of the so-called discriminatees:
"Hicks. Q. Are you aware of any nonunion members
who were laid off at the end of March or early April? A.
Yes, one." "Davis: Q. Do you remember who else-do
you know if anyone else was laid off with you? ... A. I
found out later that week afterwards that some more
people were laid off ... I don't know all of them, but I
know some of them: Evelyn Blair, Penny Behicks, Flor-
ence Lane, Florence Mitchelson, Eddie Franklin. I can't
think of all the names." (Only one of these five is listed
in the complaint) "Brown: Q. In the spring of this past
year, there were sewing machine operators laid off,
weren't there? A. In different parts, yes, but not where I
was. There were some of them still working " "Land: Q.
Was Dorothy Bennitt one of the employees you had in
mind when you mentioned that there were other em-
' In his very extended posthearing brief the General Counsel moved to
excise from the complaint four of the six named employees who did not
testify As to two of them-Jennifer Lane and Lieda Farrell-the reason
he gives is because they were not on checkoff in January 1983 The
checkoff list was received in evidence and shows that in January the
Company checked off union dues for about 100 employees' Had Lane's
and Farrell's names been among those 100 other names, would that fact
suffice to swing the balance in support of the General Counsel for the
girls who did not even come to the hearing? Is knowledge by the em-
ployer of union membership enough to prove illegal motive in the layoff
of a particular person when countless others are being laid off for eco-
nomic reasons at the same time? A fifth lady whom the General Counsel
now would like to do without, was Burnath Askew, who did testify As
to her the reason for the move is because she admitted having been laid
off a number of times because of lack of work It will not do for the
General Counsel to remove from the picture in this fashion the testimony
of his own witness which does grave damage to his whole complaint
993
ployees who wore union buttons? A. Right. Q. Was she
laid off when you were? A. Yes . . . Q. Were there em-
ployees who were laid off to your knowledge who didn't
wear union buttons? A. Yes." "Lucado: Q. It has been
your experience that layoffs are not uncommon? A. Yes.
Q. There were other employees laid off in March of this
year, weren't there, the same time you were? A. Some."
"Petteway: Q. Now,' you had worked there a long time
at the plant. Had there been other times in the past when
the work was' slow at the plant? A. Yes. Q. Slow for
your particular job? What would the Company normally
do? A. They laid-well, they laid me off when the work
got slow." "Williams: Q. . . . do you know Myra
Mobley? A. Yes. Q. Is she a member of the Union to
your knowledge? A. No Q. Was she laid off in March?
A. Yes . . She was laid off sometime later, but during
the same time that I was out." "Richardson. Q Prettylee
went out of business? A. Right. . . . I did blouses about
a week before I started working on the IFI jackets. We
were finishing up... Q. And weren't you finishing up
all the IFI work in progress at the time? A. Yes."
"Askew. Q. Ms. Askew, were you also laid off in late
1982? A. Yes."
In the light of all these admissions by the laid off em-
ployees-about they themselves having been laid off on
other occasions for lack of work, about others being laid
off similarly-both before and at the very time we are
talking about, and about being told-almost everyone of
them-that the reason was not enough work, how can I
not credit the testimony of the Respondent's witnesses
that in every instance they laid these people off because
in that particular department, or in that particular spe-
cialized skill, there simply was not enough work to go
around? Every employee involved was told to keep call-
ing in , and with very little delay in most instances were
quickly put back to work.
2. In some instances the selection disregarded seniority
in the factory. Some witnesses stressed that fact in their
one situation, and even added it was a departure from
past practice. The supervisors testified that seniority as a
basis for selection had been abandoned long ago. They
were right. Again, by the employee witnesses: Davis
said: "Q. What was the Company's practice in conduct-
ing a layoff? A. Well, mostly-I thought it was going by
mostly seniority." Davis was 8 years an employee. Her
prehearing affidavit reads as follows: "I don't know how
,the previous layoffs were determined except seniority
wasn't a consideration." Petteway was with this Compa-
ny for 30 years. "once they did it in seniority, but lately,
they just go ahead and lay the one off they just want to
lay off."
It is to be expected that when, in a group of 20 or 30
in one department, one or two employees are sent home
for a few days for a lack of work, they would resent
being chosen, will think of their seniority, will recall oc-
casions when they were transferred to other work that
was available. Especially will they feel wronged because
of their greater experience, and, as they always say after
the event, greater skills. But the fact is many of these
employees did the same kind of work in groups, so that
when there was not enough left somebody had to go
994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
home for a while. It is in the nature of this kind of busi-
ness, and always was. The seniority argument urged by
the General Counsel therefore is not persuasive on this
record.
3. An essential element of any illegal motivation dis-
charge case is knowledge in the employer of the particu-
lar employee's prounion activity. There is a paucity of
such evidence here. A number of the employees who tes-
tified said they went to union meetings during February
and March, when the Union put on a reorganizational
campaign. But there is nothing to show the supervisors
knew who had attended those meetings. One witness
after another started her testimony by saying she had
participated in a strike that had occurred in the spring of
1982. Others said that about 200 employees had joined in
that strike. If so large a number had done the same thing,
it cannot be said the employer picked on these few be-
cause of that particular participation. There was a system
in the plant that whenever a warning slip was given a
union member for poor performance or anything, a copy
of the slip must be handed to the union steward. Em-
ployee Shirley Jones testified that her superior one day
asked her was she a union member. On its face such tes-
timony shows an intent by management to find out who
the union backers were. But Jones also said that when
she asked why the supervisor wanted to know, the
answer was because she had to give a copy of the warn-
ing-which the supervisor then handed Jones that day-
to the union steward. And the fact is the supervisor did
that day give that warning slip to the steward. If any-
thing, this shows the supervisors did not have knowledge
of just who was in the Union. There is also testimony to
the effect that when employees did sign union cards
during the spring of 1983 the Union kept that informa-
tion secret from the Company. Nor does the fact that
some of these employees were then having dues checked
off from their payroll add much to the complaint. The
record show that the Company was then paying dues for
upwards of 100 employees!
4. While it is true the Respondent was opposed to
having the Union represent its employees at the time of
these events-and even committed several minor in-
stances of violations of Section 8(a)(1) of the Act-the
reality that its economic condition at the time compelled
occasional layoffs cannot be ignored. Business was defi-
nitely down, customers were taking their work out of
the plant, layoffs, long and short term, were a common
occurrence. In such circumstances a random selection of
just some of the employees involved, not particularly
shown to have been outstanding union activists within
the Respondent's knowledge, cannot prove a case in sup-
port of the complaint. I am satisfied that the Company
laid these 11 employees off for short periods because
they simply were not needed at the time, and that, union
or no union in the picture, it would have done the same
thing.
E. Shirley Jones and Debra Whiting
These two ladies were discharged on June 21, 1983.
Both worked in the sewing department, in the winter of
1982 to 1983 under Calhoun and from April 16 to their
dismissal under Shelby Jones. When fired they were told
the reason was their low production, as they testified.
Although there were very many employees on the Union
checkoff list which the Company maintained, these
women were not on that list Jones added she never was
a union member or otherwise engaged in union solicita-
tion Whiting said she joined the strike of 1982 but later
withdrew from the Union. She then added she rejoined
later but did not ask the Company to deduct her dues
from her pay. She also testified that one day her supervi-
sor asked was she in the Union and she said no, and then
added she later distributed union literature in her depart-
ment . Both women were laid off in March and not re-
called until April because of lack of work. There is no
contention that they were selected for that earlier layoff
for other than regular business reasons.
I shall recommend dismissal of the complaint as to
both these women. Were I to consider only their own
testimony, I would find the General Counsel has not
proved a prima facie case.
Shirley Jones recalled having been given a warning
slip for poor production in September of 1982. She ad-
mitted receiving another written warning for the same
reason on June 7, 1983. She started her testimony by ex-
plaining why she did not meet her production quota.
"For one thing, like I said, it was hot in there, and it was
hard, you know. It was just hard because for one thing
we weren't getting a good price, and it was hot." During
the 9:30 a.m. break on June 21 another employee, Hicks,
told her she had heard the supervisor Shelby Jones, say
"if we [Jones and Whiting] didn't pick up on our produc-
tion that she would have to get rid of us." During that
afternoon both women were discharged. When told by
the supervisor that the reason was because of her low
production, Jones again explained it as having been
caused by the excessive heat in the work place.
The employee was then shown two other warning
slips faulting her for low production-one dated May 10
and the other May 23, 1983. They did not have her sig-
nature at the appropriate place She said she did not
"recall" having received them. But the fact is she also
refused to sign the one she admitted was issued to her on
June 7!
Whatever the reasons-temperature too high or pay
too low-this was admission by the employee that her
production in fact was too low. Absent evidence of any
union activity by her, how can I reject the defense of
discharge for cause? This is a woman who was asked
was she in the Union the moment her supervisor ap-
proached her with that June 7 warning, for the reason,
as the witness herself admitted, that the supervisor had
to know whether or not to give that warning slip to the
union steward.
Whiting testified she had attended a meeting of her de-
partment where Supervisor Jones told all they "had to
do better and pick up our speed." She continued that
later she had a personal talk with Supervisor Jones who
told her she [Whiting] was "getting too many repairs
. . . to take my time and try to do the best I could. She
said she knew that I could do better." Whiting defended
herself then by saying it was a hard operation, "the ma-
terial was too thick." On June 14 she was given a writ-
APPELBAUM INDUSTRIES
ten warning slip reading "Excessive Make Up Pay," and
"Bad Work." She admitted receiving it and refusing to
sign it.
As in the case of Shirley Jones, the Respondent pro-
duced two warning slips from its files relating to Whit-
ing. One is dated May 10, 1983, for "Excessive Make Up
Pay," and reading "Earnings must improved immediate-
ly," the other dated May 23, for "Excessive Repairs on
the Robes . . . The repair situation must be corrected
immediately." These slips also do not bear the employ-
ees' signature. Whiting said she had never seen those two
warnings. But, asked had her supervisor spoken to her
during May about her performance, she testified as fol-
lows:
Q Well, were you warned in anyway on May 10,
1983 by Shelby Jones concerning excessive
makeup?
A. She always tells me to pick up, you know,
pick up my speed. I say, "I can't go any faster than
what I'm going now."
Q. Was that a repeatedly occurrence? She repeat-
edly asked you to pick up your speed?
A. Well, once in a while, you know, like she did
the other girls.
In the light of all this and considering the witness' re-
fusal to sign the warning notice she admitted being given
by the supervisor, I can only believe she refused to sign
the two May criticisms as well.
Shelby Jones, the supervisor who made the final deci-
sion to discharge these two women; explained candidly
that others as well made mistakes, that much work had
to be repaired, which meant others too earned less than
their take-home pay on a production ticket basis. But her
position was that despite her efforts to prod the two
women into improving, she got no results from them. I
must believe her, else how explain the repeated warnings
she issued to both of them? The very fact she did not
discharge them sooner supports the assertion that she
tried to help them. The Company was in. trouble finan-
cially, the two women were very lukewarm in their
prounion activity, there is no evidence of personal
animus against them particularly-in short-there is no
prima facie case in their favor now.
F. Four Employees Discharged on March 8, 1983
On March 8, 1983, the Respondent sent home four em-
ployees-called cloth spreaders-and never took them
back. Did the supervisors tell them that day they were
fired, or were they only told they were laid off tempo-
rarily, and later informed they were permanently dis-
charged? Although that question involves credibility, it is
not of any great moment insofar as the real question is
concerned. It is a fact the four were discharged, whether
on March 8 or later, and the complaint simply alleges
the discharges were illegally motivated and therefore
violations of Section 8(a)(3).
To strengthen the suggested inference of antiunion
animus pinpointed against these particular four persons,
the complaint was amended 10 days before the start of
995
the hearing to add the allegation that each of these four
was unlawfuly laid off twice during the month before
their discharge, just 2 or 3 days at a time. Layoffs of that
kind-a few days or a week or so-were a very common
occurrence in this plant at that time, as has already been
explained. Business was bad, customers were pulling
their business out, and the financial condition was wors-
ening. One of these four-Therese Applegate-did not
even appear at the hearing. As to the other three, aside
from their own testimony that when laid off a few days
now and a few days then in February they were told the
reason was because of lack of work, there is no evidence,
but absolutely none, that the reason was other than the
fact there was no work for them to do. These four em-
ployees wore union buttons at the time, as did a number
of others. Is it the theory of this case that whenever an
employer knows an employee favors the union, he may
not do what any employer does, that is, lay a man off
when he is not needed, or even fire him if he is incompe-
tent and makes too many mistakes? Does wearing a
union button immunize a man from what would other-
wise be normal treatment at the hands of his employer?
As to the three discharged employees who did testi-
fy-Christopher Davis, George Kantanis, and Nancy
Shay-their testimony compares with that of their super-
visors as it always does in situations of this kind. We
have seen it again and again. Walter Goodman, the gen-
eral manager, Nelson Powell, a supervisor, and Harry
Calhoun, also a supervisor, spoke in very precise, repeti-
tive detail about the incompetence, errors, and disregard
for work duties of all the four employees. They exagger-
ated, especially Goodman, but then, it is to be expected
that in support of a defense of discharge for just cause,
the supervisors will do that after the events. To hear the
three employee witnesses tell the story, they were never
at fault, they were always wrongfully accused of errors,
if anything did happen on the job that should not have
happened, it was because the supervisors insisted on in-
correct instructions. But their versions of their experi-
ence on the job is unquestionably colored to favor their
side of the story. Neither group of witnesses can be
taken at face value in a case of this kind.
It is an inference case. The Company preferred not to
have a union represent its employees; it did commit a
number of violations of Section 8(a)(1) of the Act, as
found above. It also knew these four favored the Union,
because they were known to wear union buttons at the
time. But when fired, or when laid off, there was no talk
of union involvement, no direct evidence tying the dis-
charges to union activity. More significant, not one of
the three said a word about any member of management
ever mentioning the Union to them, at any time, during
their employment. And when the supervisors did send
them away their stated reason was still, as the employees
themselves testified, lack of work.
And things did happen, just at about the time of the
discharges, that under ordinary circumstances would dis-
turb any employer. In a balanced case of this kind, the
affirmative burden to prove that the real, hidden motive
was illegal-i.e., anti unionism-rests upon the General
Counsel. The case must always start with convincing
996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
evidence, including all the related testimony, that a
prima facie case in favor of the complaint has been
shown. On this total record, considering especially the
admissions of the three employee witnesses themselves, I
do not think the General Counsel has satisfied that af-
firmative burden of proof.
Holding in abeyance for the moment what happened
on about Friday 22, the incident that really provoked the
discharge decision , a look at the past is revealing. All
three men first came to this Company in September or
October 1982, hired as fabric spreaders. The most defini-
tive proof, if acceptable proof it be, offered by the Re-
spondent to support its assertion that these three employ-
ees were not competent , made mistakes , and did not
follow orders and produce adequately, is a number of
warning slips it said it gave these employees before the
discharges. They bear the supervisors' name but are not
signed at the place calling for the employee's signature.
Goodman, and the other supervisors over these men,
swore they gave the written warnings to the employees,
but all three of the employees denied ever seeing them.
It is a fact the Respondent keeps such reprimand notices
in its regular files, for others , given to other employees,
were received in evidence. There is also evidence that
others received similar notices , but themselves never
signed them . More important , there is evidence of em-
ployees in this place admitting to seeing, and receiving
such notices , but refusing to sign them when told to do
so. Do I, believe the Respondent's witnesses that the rep-
rimand notices offered in evidence now, in fact were
made at the time shown on them , or do I agree with the
General Counsel that all of them were trumped up after
the charge was filed in this case to be used as purported
evidence?
One of the warnings issued to Kontanis is dated Feb-
ruary 16, 1983, marked for "insubordination" and "de-
struction of company property." After saying he did not
"recall a conversation with Henry Calhoun," in which
he was told he was not using the sewing machine prop-
erly, Kontanis said his reply to his supervisor was "You
can't be following Walter Goodman around this big fac-
tory every time you don't think the machine is work-
ing." Asked, at that point, had he received the reprimand
notice dated February 16, Kontanis said he had not.
Then came the following: "Q. But the incident which it
describes did take place? A. Yes. Q. And it did take
place on or about February 16, 1983? A. I don't know
the exact date, I know it took place'in February." With
this from the employee, there is no reason for not ac-
cepting as reliable that particular warning notice said to
come from the Company's records.
Kontanis was then shown another reprimand notice,
dated February 15, for "excessive makeup pay," also
reading: "Should have spread 45 ply per hour. Spread 18
ply for five [5] hours." The witness said he had not seen
that notice either. Asked, then, had Gloria Goodman
told him that "you should have spread 45 per hour but
you 'spread only 18 for 5 hours," Kontanis answered
"yes," and then proceeded with an extended explanation
of why the work had taken so long, listing one reason
after another why it was not his fault. The last thing I
intend to do now is decide who was right and who was
wrong that day-Kontanis or Mrs. Goodman. But one
thing I know with certainty, and it is that he was criti-
cized by the boss exactly as the written reprimand reads
on that very day. I see no reason for rejecting that
notice as evidence in this case.
The story goes on. On February 22 came the incident
which, according to Goodman, the big boss then, broke
the camel's back and caused him to decide to do without
all four of the spreaders still on the ' job. A very large
order of cloth was spread in a way it could not be cut; it
had to be reworked completely and as a result caused a
loss of work for weeks when it hurt the Company most.
Another warning notice was produced dated that day,
detailing exactly what had been done wrong by the
spreaders . It did not have Kontanis ' signature on it.
Asked did he recall receiving that one, the witness an-
swered: "No, I don't. Quite a propensity of forged docu-
ments here " If ever a costly mistake occurred at a work
place it was what happened that day in this shop. Kon-
tanis said it set the Company back 5 days; Goodman said
it cost 5 to 6 weeks of work. As usual, they were both
exaggerating . But whatever the damage-one week? two
weeks?-coming just 6 days before the bankruptcy court
ordered straight liquidation of the Company, it certainly
must have provoked the Respondent into at least formal-
ly criticizing the employees involved. Kontanis was not a
credible witness in this case, no matter how Goodman,
too, may have twisted his testimony also.
Davis, another of the spreaders discharged, admitted
receiving a warning notice from his supervisor, Calhoun,
"for careless production of collars." Like the other em-
ployee witnesses Davis went on at length about exactly
why the criticism was not justified, how he had been
given a wrong instruction, that the mistake was not his
fault. Davis was then shown another warning slip dated
February 2, faulting him for "excessive makeup pay." He
said he never received that one. Then came the follow-
ing from Davis on cross-examination:
Q. Do you recall Walter Goodman criticizing
your work?
A. Not on that date.
Q. Do you recall him criticizing your work on
any other date?
A. Yes.
Q. Do you recall him constantly telling you that
there were too many machine repairs?
A. Yes.
Q. And did he hold you responsible for those ma-
chine breakdowns?
A. Yes.
Q. And he told you about that frequently did he
not?
A. Yes.
Q. Almost on a daily basis?
A. Almost on a daily basis.
As stated, it took some time to respread the cloth that
had been incorrectly worked on on about February 22-
2 or 3 weeks , at least , judging from the conflicting testi-
mony of the three employees against that of the manag-
ers. When work finally resumed correctly, Goodman de-
APPELBAUM INDUSTRIES
cided he could do without these four persons and sent
them home. It. was a time of extreme economic stress for
the Company, whoever the individual owner was at the
moment.
The credibility of the two groups of witnesses as to
that incident-the final indication of undesirability of the
spreaders-is further resolved by the testimony of the
employees as to what happened later. All three of the
discharged employees who testified said they kept calling
the Company on the telephone to inquire whether there
was any work for them They kept repeating that they
called in time and time again , practically every day for
weeks. In contrast, the manager said that all four were
told on March 8 they were dismissed with finality; they
denied having told the employees to call in later.
In the Company's office there has long been main-
tained a log-book record of all incoming calls. It was
placed in evidence for the period of March 1 through
May 31, 1983. With an average of about 20 calls record-
ed in the log book for each day throughout that period,
there is recorded only one call by Nancy Shay on March
15 and one by Christopher Davis on March 22. I deem
this proof positive that the three employees who testified
were fabricating stories at the hearing. The General
Counsel's contention to the contrary, such regularly kept
company records cannot be ignored.
In the light of all the foregoing, it is not enough that
Walter Goodman gave unconvincing testimony on many
of the points of his story. He said he knew these men
wore union buttons, but insisted he had no knowledge of
union activity by them otherwise. Another witness said
at least 15 employees were on the union organizing com-
mittee and wore buttons. Kontanis said he solicited two
signatures to union cards, this in a factory with upwards
of 300 employees. Davis got five signatures. The focal
point of alleged knowledge of union activity centers on
the lunchroom, where the employees said they did the
talking up for the Union. It is a large room where 150
employees eat at a single sitting The supervisors do not
sit with the employees; they have a separate place for
themselves. It was not a setup where one can infer
knowledge by the supervisors of what was being said to
anyone in that large room.
All things considered, I shall recommend dismissal of
the complaint as to these four employees.,
III. THE REMEDY
The Respondent must be ordered to bargain with the
Union now, to remedy the illegal refusal to bargain in
997
the past. There is no issue as to the appropriate bargain-
ing unit , which is. "All non supervisory production,
maintenance , packing and shipping workers employed at
the Newport News, Virginia, location of the Respond-
ent, but excluding all other employees, guards and super-
visors as defined in the Act."
The Respondent must also be ordered to cease and
desist from committing the 8(a)(1) violations found
above. In the light of the refusal to bargain, the Re-
spondent must also be ordered to cease and desist from
in any other manner violating the statute.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set out in section III,
above, occurring in connection with its operations de-
scribed in section I, have a close, intimate, and substan-
tial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
CONCLUSIONS OF LAW
1. By refusing to bargain with Upper South Depart-
ment, International Ladies' Garment Workers' Union as
the representative of all employees in the appropriate
bargaining unit the Respondent-Appelbaum Industries,
Inc., and its alter ego Michael's Closet, Inc.-has violat-
ed Section 8(a)(5) of the Act.
2. By dealing directly with its employees and offering
them increased insurance benefits, while bypassing their
established bargaining agent, the Respondent has also en-
gaged and is engaging in unfair labor practices in viola-
tion of Section 8(a)(5).
3. By the foregoing conduct, by refusing an employ-
ee's request to have a union representative present during
an investigatory and disciplinary interview, by telling
employees not to sign union cards, by threatening to dis-
charge any employees who signed union cards, and by
ordering its employees not to engage in any kind of
union activities on the company premises, the Respond-
ent has violated and is violating Section 8(a)(1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]