Bonnie Lass Knitting Mills, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1960

126 N.L.R.B. 1396 (N.L.R.B. 1960)

1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Companies and Associations are engaged in commerce within the
meaning of the Act.
2. International and Local Unions are labor organizations within the meaning of
the Act.
3. Respondents have not engaged in unfair labor practices as alleged in the
complaint.
[Recommendations omitted from publication ]
Bonnie Lass Knitting Mills, Inc. and International Ladies'
Garment Workers ' Union , AFL-CIO
Bonnie Lass Knitting Mills, Inc. and International Ladies'
Garment Workers ' Union, AFL-CIO. Cases Nos. 22-CA-2145
and 22-CA-311. March 31, 1960
DECISION AND ORDER
On June 18, 1959, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
and the General Counsel filed exceptions to the Intermediate Report
and supporting briefs and memoranda and the Charging Party filed
a memorandum in support of the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, briefs, and memoranda, and the en-
tire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the following
additions and modifications.
1. The Trial Examiner found, and we agree, that by threats of
closing the plant, and by promises of economic benefits if the Union
did not come into the plant, the Respondent violated Section 8(a) (1)
of the Act.
2. We agree with the Trial Examiner's finding that the Union
represented a majority of the Respondent's employees in an ap-
propriate unit on June 3, 1958, when the Respondent refused to bar-
gain, and that the Respondent, by refusing to bargain with the
Union on that date, violated Section 8 (a) (5) of the Act. As did the
Trial Examiner, we fund that the Respondent did not have a good-
126 NLRB No. 164.
BONNIE LASS KNITTING MILLS , INC. 1397
faith doubt that the Union represented a majority of its employees.
Since the Respondent's unfair labor practice made a free election
impossible , we find, contrary to Respondent's contention, that the fact
that it petitioned the Board for an election does not establish its good
faith.
3. The Trial Examiner recommended dismissal of the Section
8(a) (4) allegations of the complaint on the ground that only one of
three employees who testified regarding the meeting at which the
conduct complained of is alleged to have occurred recalled a company
officer's having conditioned the reemployment of striking employees
upon withdrawal of unfair labor practice charges then pending
before the Board. The General Counsel excepted to this finding and
our examination of the record persuades us that there is merit in the
General Counsel's exception. Contrary to the Trial Examiner's find-
ing, two employees testified to the company officer's remarks at the
meeting referred to by the Trial Examiner and a third employee
testified that the same company officer subsequently told another
group of strikers that their return to work depended upon their
persuading the Union to drop its charges with the Board. Further-
more, the company officer in question, who denied the remarks at-
tributed to him, was not credited by the Trial Examiner as to other
matters in issue and his testimony on this point was evasive. In view
of the foregoing, we find that Respondent discriminated against em-
ployees because they had filed charges or given testimony under the
Act in violation of Section 8 (a) (4) thereof.
4. The Trial Examiner found, and we agree, that Respondent vio-
lated Section 8(a) (3) by discriminatorily laying off Lewis A. Werner
because of its belief that he was a leader of the movement to organize
the employees.
5. The Respondent, until sometime in January or February 1959,
was engaged in the manufacture of full-fashioned sweaters . In this
operation it had over 100 employees. At the time of the hearing in
late March and early April 1959, the Respondent was still in business
but had changed its operations from manufacturing to jobbing and
had only 3 full-time and 5 to 10 part-time employees. The Trial
Examiner found that the Respondent discriminatorily discharged
and denied reinstatement to approximately 50 of its manufacturing
employees on December 15, 1958, in order to avoid bargaining with
the Union. We adopt the Trial Examiner's finding, for the reasons
fully stated by him in his Intermediate Report, that the discrimina-
tory discontinuance of Respondent's manufacturing operations was
violative of Section 8(a) (3) of the Act. As indicated below, how-
ever, we do not adopt in its entirety the remedy recommended by the
Trial Examiner.
554461-60-vol. 126-90
1 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
On the basis of the Board's decision in the Mahon case,' the Trial
-Examiner recommended, inter alia, that the Respondent be required
to reopen its cufstomary departments in order to effect full reinstate-
ment for the 49 discriminatees. We believe the instant case presents
a situation which is distinguishable from that presented in Mahon,
where the Board ordered the employer to resume an operation with
its own discriminatorily discharged employees since the operation was
still required and being performed, having only been let out on con-
tract. Thus, in the latter case, resumption of the discontinued opera-
tion involved no more than administrative alterations in the Com-
pany's organizational structure and compliance did not burden it
with an unwanted operation not essential to the conduct of its business.
In the case at bar compliance with a similar requirement cannot be
affected at this juncture by mere administrative action because the
Respondent has disposed of its machinery and equipment and with-
drawn from the manufacture oft sweaters.
We have found, however, that the Respondent has engaged in seri-
ous violations of the Act and is continuing, albeit on a substantially
reduced scale, its business operations. In view of the fact that the
Respondent has a presently functioning business and may resume full-
scale operation, we deem it appropriate, therefore, to provide for the
following alternative methods by which the Respondent may remedy
its unfair labor practices.'
We shall order the Respondent, in the event it resumes its manufac-
turing operations, in addition to its present jobbing operation, to
offer to all employees who were discriminatorily denied reinstatement
on and after December 15, 1958, immediate and full reinstatement to
their former or substantially equivalent positions and make them
whole for any loss of pay suffered by reason of the discrimination
against them.
We shall order the Respondent to create a preferential hiring list,
notify its employees of said list, and, in the event it resumes its manu-
facturing operations, to offer the discriminatees immediate reinstate-
ment to their former or substantially equivalent positions without
prejudice to their seniority and other rights and privileges previously
enjoyed.
We shall also order Respondent, in the event it does not reopen its
manufacturing facilities, to make whole the employees discrimina-
torily denied reinstatement on December 15, 1958, for any loss of pay
suffered by reason of the discrimination against them by paying to
1 The R. C Mahon Company, 118 NLRB 1537.
s Cf. Rudy Barber, et al, it/b/a Barbers Iron Foundry, 126 NLRB 30 Chairman Leedom
joins in this remedy although it differs from the one he held applicable in the Barbers case
because there , unlike here, there was no presently functioning business even on a substan-
tially reduced basis
BONNIE LASS KNITTING MILLS, INC. 1399
each of them a sum of money equal to the amount he or she would
normally have earned as wages from December 15, 1958, until such
time as each secures, or did secure, substantially equivalent employ-
ment with other employers.
We also expressly reserve the right to modify the backpay and rein-
statement provisions of this Decision and Order if made necessary by
a change of conditions in the future, and to make such supplements
thereto as may hereafter become necessary in order to define or clarify
their application to a specific set of circumstances not now apparent 3
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Bonnie Lass Knit-
ting Mills, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Ladies' Garment
Workers' Union, AFL-CIO, or in any other labor organization of its
employees, by discharging, laying off, refusing to reinstate, or in any
other manner discriminating in regard to their hire or tenure of em-
ployment or any term or condition of employment.
(b) Threatening employees with economic reprisals or making them
promises of benefit to discourage membership in or activity on behalf
of any labor organization.
(c) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) If and when the Respondent resumes its manufacturing opera-
tions, bargain, upon request, with International Ladies' Garment
Workers' Union, AFL-CIO, as the exclusive representative of all em-
ployees in the appropriate unit described in the Intermediate Report,
and embody any understanding reached in a signed agreement.
(b) Make whole those individuals whose names appear listed on
"Appendix A" of this Order and make whole Lewis A. Werner for
3 Bermuda Knitwear Corporation , 120 NLRB 332.
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any loss of pay they may have suffered by reason of the discrimina-
tion against them in the manner set forth in the section of the Deci-
sion herein entitled "The Remedy" and in the section of the Inter-
mediate Report entitled "The Remedy."
(c) Create a preferential hiring list containing the names of all
those individuals listed in "Appendix A" of this Order as being en-
titled to reinstatement if and when the Respondent resumes its manu-
facturing operations, such reinstatement rights arising from the layoff
of the listed individuals on December 15, 1958, and further, the Re-
spondent shall include the name of Lewis A. Werner in such preferen-
tial list. The Respondent shall notify the Union and all said listed
employees of the establishment of said list and its content and shall
offer all said individuals full reinstatement to their former or sub-
stantially equivalent positions without prejudice to their seniority or
other rights and privileges previously enjoyed if and when the Re-
spondent resumes its manufacturing operations, all as set forth in the
section of the Decision herein entitled "The Remedy."
(d) Inasmuch as the posting of a notice as customarily required
would result in a notice posted in a plant with drastically reduced
operations and would, therefore, be inadequate to inform affected
parties, the Respondent shall mail an exact copy of the notice attached
hereto marked "Appendix A" " to the Union and to each of the listed
employees. Copies of said notice, to be furnished by the Regional
Director of the Twenty-second Region, shall, after being duly signed
by an authorized representative of the Respondent, be mailed imme-
diately after receipt thereof.
(e) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary for determination of the amount of hack-
pay due under the terms of this Order.
(f) Notify the Regional Director for the Twenty-second Region,
in writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the Board reserves to itself the right
to modify the backpay and reinstatement provisions of this Order, if
made necessary by circumstances not now apparent.
MEMBER RODGERS, dissenting in part :
I do not agree with my colleagues that the Respondent violated the
Act when it ceased its operations as a manufacturer. As I stated in
my dissenting opinion in Barbers Iron Foundry, 126 NLRB 30,
4 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
BONNIE LASS KNITTING MILLS, INC. 1401
there is nothing in the Act which limits an employer's right to go out
of business at any time and for any reason he chooses. The Respond-
ent here disposed of its machinery and equipment and permanently
withdrew from the industrial scene as a manufacturer. This, the
Respondenthad an absolute right to do. The fact that the Respondent
decided to engage in a different business venture-that of a jobber-
in no way qualified that right.
As I would not find that the Respondent violated the Act in ending
its manufacturing operations, it follows that I would not issue a
remedial order in this regard.
MEMBER BEAN took no part in the consideration of the above Deci-
sion and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL, if and when we resume manufacturing operations,
upon request, bargain with International Ladies' Garment Work-
ers' Union, AFL-CIO, as the exclusive representative of all our
employees in the unit described below, with respect to rates of
pay, wages, hours of employment, and other conditions of em-
ployment, and, if an understanding is reached, embody it in a
signed agreement. The bargaining unit is:
All production, maintenance, and shipping and receiving
employees employed at our Clifton, New Jersey, plant, but
excluding office clerical employees, salesmen, guards, watch-
men, professional employees, foremen, and supervisors as
defined in the Act.
WE WILL NOT threaten our employees with loss of employment
if they do not renounce the Union as their bargaining representa-
tive, or promise them economic benefits if they do renounce the
Union.
WE WILL NOT discourage membership in the International
Ladies' Garment Workers' Union, AFL-CIO, or any other labor
organization of our employees, by discriminating in any manner
in regard to their hire, tenure of employment, or any term or
condition of employment.
WE WILL NOT discourage membership in the above-named labor
organization, or any other labor organization of our employees,
by discharging employees for their union activities.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make whole the following named employees for the
discrimination practiced against them by the layoff of December
15,1958.
Helen Bacha Susan Nyitrai
Marion Barton Mary Ann O'Leary
Chester Biskup John Owen
Lucille Branham Caroline Palaszewski
Katy Brenschin Jean Palmer
Lois Collins Josephine Pattantyus
Phyllis Conte Mary Prem
Gerta Emmerich Italia Ruggerio
Peter Emmerich Elizabeth Sasso
Mary Fisher Erich Schwind
May Geider Mary Skaret
Erma Hamber Catherine Softy
Elizabeth Hekasi Lillian Sturm
Katalin Hercig Elmer Sutters
Max Herold Owen Tierney
Tyrus R. Hippert Orville C. Trate
Luella Holston Inge Trommer
Australia Horton Herbert Vogel
Richard Kontir Alfred Vogler
Lena Koppel Lewis A. Werner
Mary Lasenich Edward T. Wharton
Ursel Malakas Helen White
Helena Marshall Dorothy Wieland
Anastasia Maruszczak Elizabeth Yurok
Jim McCoy
WE WILL make whole Lewis A. Werner for the discrimination
practiced against him by his layoff on June 23, 1958. Lewis A.
Werner is also to be included among those to be made whole for
the discrimination of December 15, 1958, in the manner provided
therefor.
WE WILL offer the above-named employees immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges
if and when we resume manufacturing operations.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form, join, or assist any labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, and to
refrain from any or all such activities, except to the extent that
BONNIE LASS KNITTING MILLS, INC. 1403
such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment as author-
ized in Section 8(a) (3) of the National Labor Relations Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
All our employees are free to become, remain, or refrain from be-
coming members of the above-named Union, or any other labor organ-
ization, except to the extent that this right may be affected by an
agreement in conformity with Section 8 (a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
BONNIE LASS KNITTING MILLS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been filed in each of the above-entitled cases; a complaint in
each of said cases, an order consolidating the cases , and a notice of hearing thereon
having been issued and served by the General Counsel of the National Labor Re-
lations Board ; and answers to said complaints having been filed by the Respondent
Employer, a hearing involving allegations of unfair labor practices in violation of
Section 8 (a)(1), (3), (4), and (5) of the National Labor Relations Act, as
amended , 61 Stat. 136, was held in Paterson , New Jersey, on March 30 and 31
and April 1, 2, and 3 , 1959, before the duly designated Trial Examiner.
At the hearing all parties were represented and were afforded full opportunity to
be heard, to examine and cross-examine witnesses , to introduce evidence pertinent
to the issues , to argue orally upon the record, and to file briefs and proposed find-
ings of fact. Briefs have been received from all parties.
Upon the entire record in the case , and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Bonnie Lass Knitting Mills, Inc., is a New Jersey corporation , having its principal
office and place of business at Clifton, New Jersey, where it is engaged in the manu-
facture of full-fashioned sweaters.
During 1957 the Respondent manufactured at this plant, and shipped therefrom
directly to points outside the State of New Jersey, finished products valued at more
than $350,000.
The Respondent concedes , and it is found, that it is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Ladies' Garment Workers' Union, AFL-CIO, is a labor organiza-
tion admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
The events and conduct placed in issue by the complaint occurred during a period
of several months following an effort begun by the Charging Union early in June
1958 , to obtain recognition from and a collective-bargaining agreement with the
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent as the exclusive bargaining representative of the Respondent's em-
ployees. That the Respondent has refused to bargain with the Charging Union is
admitted in the answer, and there is no dispute that a demand was made. The sole
question for resolution on this issue is whether or not the Charging Union actually
represented a majority of the employees at the time of the demand.
Of relevance to the issue of the refusal to bargain-whether or not the Respond-
ent's position was taken and maintained in good faith-are many instances of
claimed threats and promises by management made in an effort to discourage union
adherence and membership.
In the latter part of June an employee, Lewis Werner, was laid off for 2 or 3
days. The complaint claims and the answer denies that the layoff was discriminatory
and for the purpose of discouraging union membership.
In August a strike began, and it continued until mid-December, when an un-
conditional offer to return was made. The complaint lists about 50 employees who
were refused reinstatement in violation of the Act. The chief question raised by the
failure to reemploy the strikers is whether or not the strike was an unfair labor
practice strike. During the hearing counsel for the Respondent conceded that if
established that it had a legal obligation to bargain with the Union, then the strike
was an unfair labor practice strike.
The complaint further alleges and the answer denies that after the strikers offered
to return the Respondent conditioned reinstatement upon their rejection and dis-
avowal of the Union and the withdrawal of unfair labor practice charges thereto-
fore filed by the Union, and refused reinstatement because the employees declined
to abandon such legal rights.
B. The events
Because of the nature of issues and the interrelationship of both events and
evidence 'bearing upon such issues, the Trial Examiner believes that clear exposi-
tion demands narrative treatment: a recital of relevant events in the order of their
taking place. Conclusions in terms of the complaints' allegations will be reserved
and summarized in a later section. And in general the resolution of conflicting
testimony-of which the record is replete-will be made in appropriate footnotes,
in order not to interrupt the narrative trend.
The Union began organizational efforts among the Respondent's some 100 em-
ployees in May 1958, a fact which came immediately to the attention of Respond-
ent's management, according to the testimony of Leon Atkind, secretary of the cor-
poration and active head of the Respondent's operations.
On June 2 Peter Detlefsen, State director of organization, and Simeon Larson,
an organizer, visited the Respondent's plant for the first time and met with Stephen
Schmidt, president of the Respondent. The union officials told Schmidt that they
were in the process of organizing the employees and had come "to get acquainted,"
as Larson expressed it. Schmidt took the position that the firm "was broke" and
discussed only the financial situation at the plant. No demand for recognition was
made by the Union on this occasion.'
On June 3 employees coming to work were met by a union "demonstration," as
it was referred to during the hearing. Union officials, organizers, and union mem-
bers from other plants assembled near the entrance and urged the Respondent's em-
ployees to attend an organizational meeting at the union hall. There is no evidence
nor claim of evidence as to forcible prevention of ingress to the plant. Employees
' Schmidt was not questioned by the Respondent's counsel regarding this meeting, and
Larson's testimony about it is undisputed. The Trial Examiner can place no reliance
upon subsequent testimony by Atkind, as a witness for the Respondent, to the effect that
"a week, ten days, something in that area" before June 3 she and Schmidt had been
visited by Detlefsen and "someone" else who wanted "to negotiate a contract" and
claimed to have "cards in their possession signed by a majority of our workers " As noted
in later footnotes herein, Atkind's testimony in many instances was self-contradictory.
And on this particular point his testimony on the last day of the hearing was incon-
sistent with that given on the first day, when he was called as an adverse witness by
General Counsel. When asked by General Counsel "when you learned for the first time
that there was a demand made," Atkind replied • "A demand was made by the two repre-
sentatives of the Garment Workers' Union on or about June 3rd for the first time to
Mr. Schmidt and myself at the offices of Bonnie Lass " Furthermore, in his affidavit to
a Board representative, subscribed to on November 3, 1958, Atkind said : "On June 2, 1958,
Mr. Schmidt called me into his office and introduced me to Peter Detlefsen and a union
organizer by the name of Larson."
BONNIE LASS KNITTING MILLS, INC. 1405
went voluntarily to the hall, where coffee was served. Credible evidence establishes
that a substantial majority of the Respondent's employees attended this meeting?
At this meeting Detlefsen and other union representatives spoke to the assem-
blage at length concerning the benefits of union membership in both English and
German and authorization cards were distributed which the Respondent's employees
were asked to sign if they wanted the Union to represent them as their bargain-
ing agents. Detlefsen read to them the text on the card, and a number of the
knitters at the plant went around among some of the employees who did not under-
stand English and talked with them in German.
Either earlier or at this meeting 56 employees duly authorized the Union to
serve as their bargaining representative, each signing a card bearing the following
text:
I, of my own free will, hereby authorize the International Ladies' Garment
Workers' Union, its agents or representatives to act for me as a collective
bargaining agent in all matters pertaining to rates of pay, wages, hours of em-
ployment, and other conditions of employment from this date forward.
As of the same date, June 3, the Respondent had on its payroll, in a unit conceded
by the answer to be appropriate, 101 employees .3
Before the union meeting, and while the "demonstration" was in progress in front
of the plant, Schmidt approached organizer Larson and employees Lewis Werner
and Owen Tierney. Schmidt asked what was going on. Larson replied that they
were going to hold a union meeting. Schmidt then declared that he was "personally"
opposed to the ILGWU, and would go out of business before he would deal with it .4
After signatures were obtained on the cards at the union meeting, Larson tele-
phoned Schmidt, claimed majority representation, and requested a negotiating meet-
ing. Schmidt replied, according to Larson's credible and uncontradicted testimony:
I know you have a majority of the employees. I recognize you have a majority
but this firm is completely indifferent to it. We cannot afford it. Our financial
situation is such that we simply can't afford to sit down and talk to the Union.
Larson, however, insisted that a meeting be held, and finally a luncheon meeting
was arranged for that day. Detlefsen met with Schmidt and Atkind. The union
director again claimed majority representation and asked to negotiate an agreement.
Counsel for the Respondent conceded that at this meeting and at several subsequent
meetings "The employer admits that it declined to recognize this union." It appears
unnecessary, in view of this concession, to describe in detail the occasions when
representatives of the Union and of the Respondent met and conferred.
At one such meeting, however, on June 26, Schmidt asked to see the union cards.
Detlefsen declined to produce them or to consent to an election on the ground that
the Respondent had been engaging in unfair labor practices. He made a counter-
offer to have the cards then in his possession checked against the company payroll
by'an impartial third person. This offer Schmidt rejected.
At another meeting at about the same time, according to Atkind's testimony, the
Union was asked to withhold a strike or picketing for a period of a few weeks to
permit the Company to raise a bank loan. To this "grace period" the Union agreed.
Not only did the Respondent decline, from June 3 on, to recognize or negotiate
with the Union concerning a contract, but it promptly embarked upon an intensive
campaign of interference, restraint, and coercion.
On June 4, Atkind assembled all employees and, according to the credible testi-
mony of Samuel Hum, conceded by the Respondent to have been a supervisor within
the meaning of the Act, told them: (1) Under no circumstances would the Company
sign a contract with the Union; (2) the Union was a "bunch of goons, thugs, and all
they were interested in was dues"; and (3) he would close down before signing a
contract.
2 As a witness called by General Counsel, Atkind at first estimated that "about 30" of
his 100 employees came in to work that morning instead of attending the union meeting.
When confronted with the above-described affidavit he admitted that his estimate of 30 was
"apparently not" accurate, and that only 10 or 15 actually came into the plant.
s During the hearing counsel for the Respondent claimed that one of this number,
Helena Marshall, was a supervisor. No evidence was adduced, however, which supports
this claim. Marshall, a witness for General Counsel, testified that occasionally she in-
structed new employees, but possessed no authority which would place her in a position
as a supervisor within the meaning of the Act.
4 The finding is based upon the credible testimony of Larson and Werner. Schmidt's
testimony on this subject is confused and unreliable.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, on numerous occasions between June 4 and August 12, Atkind called
groups of employees into his office: "All of them," he said, "totalling all of the
employees." "We discussed the situation," he testified, and "in essence" told them
all the same thing. According to the credible testimony of employees Sutters and
Werner, Atkind promised benefits, including hospitalization, paid holidays, and
vacations if the Union did not come in, and threatened to close the plant before
dealing with the Union.
Although management stoutly refused to deal with the Union, during the latter
part of June and at Atkind's suggestion-as he admitted-a committee of employees
was formed to deal with it concerning working conditions. At least some of these
committee members were selected by Plant Manager Walter Goethal. According
to Atkind's own testimony, at a time when he and Schmidt were refusing to deal with
the Union, he "discussed with the committee that it would be more practical for
them, as a representative group, meeting with us to try to solve the problems. . ."
Matters such as paid holidays and hospitalization were discussed at several meetings
of the committee and management.
On June 23, Lewis Werner, an employee who according to Schmidt's testimony
was known to him as an active union leader, was summarily laid off for 3 days. He
was recalled on June 26. It is undisputed that after being recalled he was told by
Plant Manager Goethal that he had not been laid off for lack of work, but because
the Company had expected a picket line, and he was "the ring leader." 5
On August 10 or 11 a union committee of employees voted to strike because of
the Respondent's unfair labor practices. On August 12 the strike began. It con-
tinued until December 15. On the morning of December 15, according to Atkind's
own testimony, a union representative and a committee came to the office and told
him "they were ready to come back unconditionally." The offer was made on behalf
of all strikers named in Appendix A. Atkind told them they were too late, that a
contract had already been made to sell some of the plant machinery.
The same day, according to Supervisor Hurn's undisputed testimony, Goethal
told him of the offer to return and indicated doubt as to whether or not it had been
made in good faith. He asked Hurn to suggest some striking employee whom the
Company could contact directly. Hurn suggested Elmer Sutters. It is likewise
uncontradicted that Goethal then telephoned Sutters and asked him to get a com-
mittee of employees together to "meet with the firm," and told him that he was
"pretty sure something" could be arranged. After a number of similar calls from
Goethal, Sutters finally agreed to go to the company officials with two other
employees, Vogler and Tierney. Two meetings were held, on December 29 and 30,
with Schmidt and Atkind.
In substance, according to the credible testimony of the three employees, the
following occurred at these meetings
1. The employees said they were willing to come back under conditions existing
at the time of the strike, and that the union officials were aware of their visit to
management.
2. Atkind declared that he would not deal with the Union then, or 5 years from
then. He declared that a Board case was coming up, and he did not want them
to come back, work 2 or 3 weeks, and go out again at the union call. He demanded
that they write a letter stating that they would have nothing more to do with the
Union, and that the Union would no longer represent them. This, he said, would be
his protection, and if this were done, it might be possible to get out from under the
contract to sell machinery.
The committee submitted management's proposition to the employees, and they
rejected the provision that they sign a letter renouncing the Union.
On January 5 this committee, accompanied by several other employees, went to
the office and Atkind again made consideration of returning them to work provi-
sional upon their signing a letter renouncing the Unions As a witness, Atkind
admitted that at this meeting he told the employees:
B As a witness Atkind at first claimed that Werner was laid off in n force reduction be-
cause he had the least seniority. On cross-examination, however, he admitted that this
employee did not have the least seniority The plant manager was not a witness and
there is no showing that he was unavailable. And no actual reduction In force was made,
it is apparent, since it is undisputed that the plant manager asked Werner to work the
Saturday after recall in order to make up lost time.
Only one of three employees testifying about this meeting recalled that Atkind also
made return provisional upon their prevailing upon the Union to withdraw charges with
the Board The Trial Examiner makes no finding on this point, and will recommend that
the complaint be dismissed as to the 8(a) (4) allegation, the evidence being insufficient to
sustain it. In any event, the remedy remains the same
BONNIE LASS KNITTING MILLS, INC. 1407
I would consider the possibility , if they were going to put it in writing and
verify it, I would consider the possibility of reopening the plant and working.
The employees refused to sign a letter renouncing the Union and none of the
employees listed in Appendix A has been reinstated . Later in January and in
February certain machinery was moved from the plant. At the time of the hearing,
the Respondent was operating a "jobbing" business , with reduced force.
C. Conclusions
1. The refusal to bargain
As found above, on June 3, 1958 , of 101 employees in a unit conceded by the
answer to be appropriate , 56 had signed cards authorized the Union to be their
bargaining agent . Absent some unusual factor , the conclusion would normally
follow without further discussion that on that date the Union represented a majority
of the Respondent 's employees and was the exclusive bargaining agent within the
meaning of the Act.
The Respondent claims, however, the existence of an unusual factor, and adduced
a deal of confused , contradictory , and, in some instances , unintelligible testimony to
support its contention that: ( 1) On June 3 the Union in fact did not represent a
majority because some of them did not intend to designate the Union as their repre-
sentative ; and (2 ) the Respondent was justified in doubting the Union 's majority
status and in good faith declined to recognize it unless and until certified by the
Board.
To support its claim the Respondent called six employees , all of whom either
had not participated in the strike or who were permitted to work after the strike.
Each of the six witnesses displayed marked reluctance and discomfiture while testi-
fying-a fact which may in part be attributed to their language difficulties. One
of them, Margaret Morsics, insisted on cross-examination that she had told no one
about signing her card until that day, when she was interviewed by both Schmidt
and counsel for the Respondent . Not only because of the demeanor of these
witnesses , but for the following specific reasons, the Trial Examiner is unable to
find, as the Respondent would have found, that on June 3, 1958, they did not volun-
tarily designate the Union as their bargaining agent.
(1) Anna Fisher . Although on direct examination this witness said, as to her
card, "I did not want to sign it ," stating "I don't know why we signed it, I really
don't. I can't answer that ," on cross-examination she admitted that on June 3 she
understood that the meeting was for the purpose of authorizing the Union to repre-
sent the employees, and that she signed the card of her "own free will."
(2) Margaret Morsics. Her testimony was, in large part, inarticulate, as the
record reveals . When asked by counsel for the Respondent what "the man who
gave you the card" said "about signing the card," she answered : "Say that we signing
the card in the union hall was, I don 't know , I can 't explain in this, all right, what I
think." When the same counsel asked what she did with the card, she replied, "I
hold this in the hand and look and everybody sign so I sign , too." When asked
why she signed, she answered, ". . . they tell me because I sign the card, this is
nothing, that 's nothing, it 's not a sign-that I be here by the meeting , nothing more,
that I be by the meeting."
(3) Ana Chaban ( Wagner ). This witness ' testimony was so obviously and
belligerently contrary to that given by her fellow employees as to be unreliable. She
declared, and repeated, that "everybody" in the hall said "that has nothing to do
with the union, nothing."
(4) Elizabeth Grickak. The discomfiture of this witness, when asked by the
Respondent 's counsel if she signed a card , is apparent in the following quotation:
"Yes, I did. Otherwise we would have never-couldn't leave to go to work, so we
signed it , but I was told that it's not, ever what you say, a vote , it's not a membership
card . It don 't mean anything, nobody going to know, not even Mr. Schmidt.
I don't know why I am over here. It was supposed to be secret."
(5) Assunja Caudela. This witness, testifying through an interpreter, answered
when asked if anybody told her "what she was doing when she signed the card,
what the card meant," as follows: ". . . the woman explained that this card meant
that the union will give them a benefit in the future."
(6) Marion Westermayer. This witness also testified through an interpreter.
She also declared that no one talked to the employees in German-although the fact
that a union representative did address them in this language is admitted by another
witness-Morsics--called under similar circumstances She also testified that no
one else spoke to her in German and that she did not understand English-yet she
insisted that someone told her to sign the card.
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor can the Trial Examiner find credible merit in the colored and exaggerated
testimony of Schmidt and Atkind to the effect that great numbers of employees,
after signing the cards, came to them and declared, in substance, that they had not
been aware of what they were doing. As to Schmidt, he was first asked if he had
talked to any of the employees on June 3, and he replied: "I don't recall. I don't
recall. Some of the employees may have come to me and mention it. I don't
know." Counsel then pressed with the following question: "Did any employee tell
you that he hadn't meant to sign the card when he did?" He then replied that a
11 good many had told me that they did not know what they were signing." When
asked who, he answered: "Well, the two that were here today." These two included
Monies who, as noted above, flatly denied that she had talked to Schmidt or any-
one else about the card until interviewed the day of the hearing. At various points
thereafter in his testimony Schmidt increased his estimate of the number of em-
ployees who had "complained" about the cards from these "two" to all who did not
strike, a total said by him to have been "40 or 50." Atkind's testimony on the point
was equally confused and unconvincing. His responses to questions were patterned
with inconsistencies. Having at one point declared that he told the union repre-
sentatives at a meeting with them before June 3 that a "majority of the workers had
assured us they wanted no union," on cross-examination he "amended" this state-
ment and said, "To actually say they did not want a union, I don't think I meant
to say that. I certainly don't intend to now. But they did not want any action by
the union that would interfere with the regular course of their jobs.. .
In summary, the Trial Examiner finds merit in General Counsel's succinct com-
ment in his brief: ". . . there is no substantive evidence in the record that the
Union misled . . . coerced . . . or in any manner used improper methods in ob-
taining the cards" from all 56 employees. For whatever reason they took the
position, many months later, that on June 3, 1958, they had not known they were
designating the Union as their bargaining agent, credible evidence fails to support a
finding that this was the subjective state of their mind on the critical date or within
any reasonable period thereafter. It is clear that none of them openly disavowed
their action, or requested the return of their signed card. As the Board has said,
signature cards cannot be lightly disavowed.?
And under the circumstances described in the preceding section, it is clear that
promptly on June 4 the Respondent itself began a campaign plainly designed to
discourage union adherence. Such illegal action further detracts from any possible
merit of the Respondent's claim of "good-faith" doubt of a union majority.
The unit and the refusal to bargain, as facts, being conceded, the Trial Examiner
concludes and finds that on June 3, 1958, and at all times thereafter, the Respondent
refused and has continued to refuse to bargain with the Union at a time when,
through majority representation, it has been and continues to be the exclusive
bargaining representative of all employees in the following appropriate unit:
All production, maintenance, and shipping and receiving employees employed
by the Respondent at its Clifton plant, excluding office clerical employees,
salesmen, guards, watchmen, professional employees, foremen, and supervisors
as defined in the Act
By thus refusing to bargain the Respondent has interfered with, restrained, and co-
erced employees in the exercise of rights guaranteed by the Act.8
2. The discriminatory layoff of Werner
Werner's undisputed testimony, quoted above, as to the reason given him by the
plant superintendent for his layoff between June 23 and 26, 1958, amply supports
the finding of illegal discrimination, and the Trial Examiner concludes and finds that
his layoff between those dates was discriminatory, for the purpose of discouraging
union membership and activity, and interfered with, restrained, and coerced em-
ployees in the exercise of rights guaranteed by the Act.
7 Pinkerton Folding Box Company, 121 NLRB 1308; Dan River Mills, Inc , Alabama
Division, 121 NLRB 645.
e While the refusal to recognize the Union is conceded, and this concession alone is
sufficient, under the circumstances, to support the ultimate conclusion, the Trial Examiner
believes and finds that the allegation of illegality is further sustained by: (1) The Re-
spondent's dealing with the two employee committees, above described, in an overt effort
to undermine the chosen representative of the employees ; (2) its promises of benefit and
threats of reprisal designed to undermine the Union; and ( 3) Its refusal to reinstate
employees unless they renounced the Union.
BONNIE LASS KNITTING MILLS, INC. 1409
3. The strike and refusal to reinstate
During the hearing , counsel for the Respondent stated:
We will concede this, that if there was a refusal to grant recognition when the'
Union was legally entitled to it, that this does make the strike an unfair labor
practice.
It has been concluded above that the Union was entitled to recognition on June 3,
1958 , and thereafter . It follows from the quoted concession as well as from facts
found in the preceding section that the strike beginning on August 12, 1958, was an
unfair labor practice strike, and that it was the Employer's obligation to reinstate
such strikers upon their unconditional offer to return to work. It has been found
above, on the basis of Atkind's own testimony , that such an unconditional offer
was made on December 15, 1958.
Also as found above, on December 15 and at all times since that date , the em-
ployees named in Appendix A were refused reinstatement unless they renounced the
Union-an illegal requirement . It appears that in January and February, after the
employees had declined to write the letter of renunciation required by Atkind, cer-
tain plant machinery was sold and removed from the plant , thereby reducing the
number of jobs available . Nevertheless the testimony of both Atkind and Schmidt
makes it clear that neither of these officials , even as late as January 5, 1959, con-
sidered their contract to sell the machinery to be irrevocable. Since it is equally
clear that a reason they failed to halt the sale was because the employees declined
to meet the Employer's illegal requirement , the Trial Examiner does not believe that
the claimed unavailability of jobs after December 15 may be considered to possess
merit.
The Trial Examiner concludes and finds that the Respondent , on and after
December 15, 1958, discriminatorily failed and refused to reinstate the employees
listed in Appendix A, in order to discourage union membership and activity, and
thereby interfered with, restrained , and coerced employees in the exercise of rights
guaranteed by the Act.
4. Interference , restraint , and coercion
The Trial Examiner concludes and finds that by the threats of closing the plant,
and by the promises of economic benefits if the Union did not come into the plant,
made by Schmidt and Atkind and quoted above, the Respondent interfered with,
restrained , and coerced employees in the exercise of rights guaranteed by the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate , and substantial relation to trade, traffic, and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices the
Trial Examiner will recommend that it cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
It will be recommended that the Respondent , upon request, bargain collectively
with International Ladies' Garment Workers' Union, AFL-CIO, as the exclusive
bargaining representative of employees in the appropriate unit described herein
and, in the event an understanding is reached , embody such understanding in a
signed agreement.
In accordance with Board policy set forth in The R. C. Mahon Company, 118 NLRB
1537, 1544, and cases cited therein , it will be recommended that the Respondent
reopen its customary departments , and offer to all employees listed in Appendix A,
who were discriminatorily denied reinstatement on and after December 15, 1958,
immediate and full reinstatement to their former or substantially equivalent posi-
tions without prejudice to seniority or other rights and privileges . It will be further
recommended that the Respondent make them whole for any loss of pay suffered by
reason of the discrimination against them , by payment to each of them of a sum of
money equal to that which he or she would normally have earned as wages, absent
the discrimination from December 15, 1958, to the date of the Respondent's offer
of full reinstatement, less their net earnings during said period, and in a manner
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consistent with Board policy set out in F. W. Woolworth Company, 90 NLRB 289,
and Crossett Lumber Company, 8 NLRB 440. It will also be recommended that
the Respondent, upon request, make available to the Board and its agents all
payroll and other records pertinent to the analysis of the amounts of backpay due
and the right of reinstatement.
Since the violations of the Act which the Respondent committed are related
to other unfair labor practices proscribed by the Act, and the danger of their
commission in the future is reasonably to be anticipated from its past conduct,
the preventive purposes of the Act may be thwarted unless the recommendations
are coextensive with the threat. To effectuate the policies of the Act, therefore, it
will be recommended that the Respondent *cease and desist from infringing in any
manner upon the rights guaranteed employees by the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Ladies' Garment Workers' Union, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Lewis
Werner in June 1958, and the employees named herein in Appendix A on and after
December 15, 1958, thereby discouraging membership in the above-named labor
organization, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
3. All production, maintenance, and shipping and receiving employees employed
by the Respondent at its Clifton plant, excluding office clerical employees, salesmen,
guards, watchmen, professional employees, foremen, and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of collective bargaining
within .the meaning of Section 8 (b) of the Act.
4. On June 3, 1958, and at all times since that date; the above-named labor
organization has been and now is the exclusive bargaining representative of all
employees in the above-described unit for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employment, and other terms and
conditions of employment, by virtue of Section 9(a) of the Act.
5. By refusing, on June 3, 1958, and at all times thereafter, to bargain collectively
with the aforesaid labor organization, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)'(5) of the Act.
6. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Washington Aluminum Company, Inc. and Robert A. Heinlein,
Frank J. Adams, Frank Olshinsky, Warren A. Hovis, Augus-
tine Affayroux, Sr., William George, Jr., J. Alfred R. Caron
Washington Aluminum Company, Inc. and Industrial Union of
Marine & Shipbuilding Workers of America, AFL-CIO, Peti-
tioner. Cases Nos. 5-CA-1498 and 5-RC-2682. March 31, 1960
DECISION, DIRECTION, AND ORDER
On September 11, 1959, Trial Examiner Louis Plost issued his
Intermediate Report in the above-entitled consolidated proceedings,
finding that the Respondent had engaged in and was engaging in cer-
126 NLRB No. 1.62.