Daisy's Originals, Inc., of Miami

National Labor Relations Board - Board Decisions

Dec 15, 1970

187 N.L.R.B. 251 (N.L.R.B. 1970)

DAISY'S ORIGINALS, INC., OF MIAMI
Daisy's Originals, Inc., of Miami and Local No. 415,
International Ladies' Garment Workers ' Union,
AFL-CIO. Case 12-CA-4217
December 15, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On September 4, 1969, Trial Examiner John F.
Funke issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
The Trial Examiner also found that the Respondent
had not engaged in other unfair labor practices
alleged in the complaint and recommended that the
complaint be dismissed as to these allegations.
Thereafter, exceptions to the Trial Examiner's Deci-
sion and briefs in support thereof were filed by the
Respondent, the General Counsel, and the Charging
Party. Answering briefs also were filed by the
Respondent and the General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Relations Act, as amended,
the National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed.' The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
i With its answering brief , which was timely filed on November 10,
1969, Respondent has moved the Board for leave to include an addendum
to its exceptions to the Trial Examiner 's Decision and brief in support
thereof By this motion Respondent seeks specifically to except to the Trial
Examiner 's ruling, made at the outset of the hearing , denying Respondent's
request for permission to use a tape recorder during the hearing Relying
on Marriott Corporation v N L.R B, 417 F 2d 172 (C A 4), Respondent
contends that the Trial Examiner's ruling constituted prejudicial error The
General Counsel opposes Respondent 's motion on the grounds that it is an
attempt by Respondent to file untimely exceptions, and that in any event
the exception is lacking in merit Although the Respondent's exception to
the Trial Examiner's ruling was not timely filed under a strict application
of the Board's Rules , the Board makes every effort to apply its rules with
such lenience as will effectuate the purposes of the Act Local 18,
Bricklayers, Masons and Plasterers International Union of America,
AFL-CIO (Jesse Bulle), 159 NLRB 303, 304, fn. 3, remanded on other
grounds 378 F 2d 926 (C A 3), and thereafter enfd 407 F 2d 1309 (C A 3)
Accordingly , we grant Respondent 's motion and make its addendum part
of the record In so doing , we also note that the issue of the Trial
Examiner's ruling with respect to the use of a tape recorder was, in fact,
raised to the Board by Respondent's answering brief which, as stated, was
timely filed On the other hand, we agree with the General Counsel's
position and find no merit in Respondent 's exception It is well settled that
a Trial Examiner has wide discretion in the conduct of hearings before
him The record reveals that Respondent's counsel requested permission to
use a tape recorder " to implement our taking of notes and to help us to
251
the entire record in this case , and hereby adopts the
findings ,2 conclusions ,3 and recommendations of the
Trial Examiner with the modifications and additions
set forth below.4
The Facts
Based on the credited and uncontradicted testimo-
ny appearing in the record, the significant facts may
be summarized in chronological order as follows: 5
The Respondent and the Union have had a
collective-bargaining relationship since 1954, with the
last contract effective until May 31, 1968. In January
1968, Respondent mailed to each of its employees a
letter advising of the amount of money which
"Daisy's has placed in trust for you . . . for vacations,
holiday pay, health and welfare, unemployment-
severance, and retirement benefits" in accord with the
provisions of the contract with the Union. Each letter
was personally addressed, was signed by Respon-
dent's president, Renato Levi, and indicated the
amount of money placed in trust for the particular
employee. The letters continued:
This is your money; you earned it and we paid it
out on your behalf.
However, we have heard rumors that some
members have not been able to receive these
benefits unless they first paid dues to a union. If
this is so, we are as shocked as you must be that
this practice is taking place.
We wish to inform you that as an employee of
Daisy's you are entitled to all the benefits enjoyed
by you and your fellow employees whether you are
or are not a member of any union, and whether
you pay or do not pay any union dues. To deny
you these benefits because you have not joined a
union or because you have not paid union dues is
prepare our defense," arguing that the recorder would not in any way
conflict with the official reporting service "except insofar as . there is an
error in the transcript . " The Trial Examiner denied Respondent's
request on the ground that he would be without power to police its use
And, since the Trial Examiner, the General Counsel, and the Charging
Party are equally bound by the transcript as reported by the official
reporting service , the Trial Examiner's denial of Respondent 's request was
not, in these circumstances , an abuse of his discretion.
2 Respondent has excepted to certain credibility determinations made
by the Trial Examiner. It is the practice of the Board not to overrule a
Trial Examiner's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are wrong Such a
conclusion is not warranted here Standard Dry Wall Products, Inc, 91
NLRB 544, enfd. 188 F.2d 362 (C.A 3)
9 The Respondent 's request for oral argument is hereby denied since, in
our opinion the record , the exceptions, and briefs adequately set forth the
issues and positions of the parties.
4 We neither adopt nor condone the Trial Examiner's gratuitous and
injudicious editorial remarks criticizing the Board 's processes These
comments are not only without any foundation (except, perhaps, in the
Trial Examiner's own personal pique at being ordered by the Board to take
additional evidence), but are wholly inappropriate for inclusion in a Trial
Examiner ' s Decision.
5 Unless otherwise stated , the statement of facts is based on the Trial
Examiner's credibility resolutions and conclusions . All letters and speeches
are set out in full in the Trial Examiner 's Decision.
187 NLRB No. 15
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not only unfair to you and to us, but is completely
unlawful and should be reported.
We repeat, this is your money, regardless of
whether you are or are not a member of any union,
or have or have not paid union dues. Accordingly,
we believe you deserve to be told of your money
which we have set aside for you, and we have taken
this opportunity to do so ... .
Ruth Menes , the union shop steward, mailed her
letter to Harry Metz, manager of the Union. As a
result, Metz and William Krost, the Union's business
agent , met at Levi's office with Levi and with
Respondent's office manager, Eli Cohen, and Uberto
Orvieto, Levi's brother-in-law. The Union protested
the letter, stating that the "rumors" were untrue, and
Levi replied, "Okay, so I made a boo-boo, I shouldn't
have sent the letter." In fact, no such rumor existed
and this record shows no basis for asserting that there
was such a rumor circulating among employees.
Thereafter, on February 23 and March 8 and 18,
Respondent held three meetings with its employees in
the employee's lunchroom. These meetings were
announced to "all employees" and both unit and
nonunit employees attended.6
At the first meeting, held during the lunchbreak,
Levi told employees about the "Employees Booklet,"
which he had recently had printed, explaining the
benefits received by employees not covered by the
bargaining contract. Levi reviewed the benefits of the
nonunit employees, said he wanted the unit employ-
ees to see what the others were getting, told them not
to discuss problems with outsiders but to take them
directly to supervisors first, pointed to a large
cardboard box which contained some 200 booklets,7
and told the employees to take one home and read it.
During the first week in March, Menes had a
conversation with Levi and Satterwhite 8 in which
Levi told her that he had noticed that her attitude had
changed within the past couple of weeks and that her
first loyalty should be with the Company. Menes
replied that her first loyalty would be to the Union
and the people who elected her and she did not like
the fact that he had put out the letter and distributed
the booklet and was also allowing decertification
petitions to be circulated in the plant. She told him,
further, that she felt he was definitely out to break the
Union and before he accomplished that "we will
strike." Levi responded "You go ahead and strike"
6 Respondent had 108 unit employees and about 50 nonunit employees
at the times relevant herein The nonumt group consisted of design , office,
stockroom , and maintenance employees Levi testified that all of these,
except three or four office employees and perhaps one maintenance
employee, regularly ate lunch with the unit employees in the lunchroom
and hence all these attended the meetings
7 It is immaterial whether all 200 booklets which Respondent had
punted or only some of them were brought to the meeting, as it is clear
that there were enough for each unit and nonumt employee to take one
and "you will see what will happen." When Menes
asked what would happen, he said, "Well, you won't
be able to work in another shop." 9
A few days after the February 23 meeting, Business
Agent Krost visited Levi in his office and asked
permission to speak to two employees (Antonio De
Los Reyes and Julia Lepre) who, Krost thought, were
circulating an antiunion petition in the plant. The two
were called into the office and, upon inquiry from
Krost, De Los Reyes admitted circulating the antiun-
ion petition. When Krost asked why, Levi interrupted
by saying they had a right to do this if they chose.
On March 8, Levi called the second meeting of his
employees, at which time he distributed the Spanish
translation of the Employees Booklet. He read a
document to the employees, telling them, inter alia,
that he was very "upset and angry" about rumors of a
strike on February 22, that he thought it would be
terribly unfair to the employees and to the Company
"if this union or some small clique of employees try to
strike our premises" and he felt it only fair to warn
"that clique" that "any economic strike of this
company [would] be subject to immediate and
permanent replacement." Continuing his speech, Levi
said that he was also very upset by rumors that "some
small group has started in this plant" that since the
Company gave the benefits it would take them away,
and he wanted to assure the employees that this was
not true and that these benefits would be increased as
much as possible and as soon as possible. He
conjectured that the "rumors" probably started as a
result of his distributing the Employees Booklet, but
said that he was proud of the booklet.
Levi again raised the nonexistent rumors first
mentioned in his January letter by saying that there
was no truth to the "consistent rumor that the
employees under the ILGWU contract cannot get
benefits unless they are members of the union" and
stating that "[t ]his is a lie" and all employees covered
by the contract will get all the benefits of the contract
regardless of membership or lack of membership "or
if they withdraw from the union. And regardless of
whether or not they have signed or have revoked a
union dues checkoff card." Levi concluded by saying
that there had "also been rumors that certain
employees have been threatened or coerced by
various other employees or by any other persons" and
he would:
These booklets were in English , the Spanish trai.slation being distributed at
a later date
8 It was stipulated , and we find , that Satterwhite was a supervisor at all
times material herein
9 Although Respondent asserts that it was cut off from cross-examining
Menes on this point, the record indicates that the Trial Examiner
precluded further examination only on those aspects of that conversation
not related to the case, and Respondent 's counsel did not assert the need to
continue questioning Menes with respect to the alleged threat
DAISY'S ORIGINALS, INC, OF MIAMI
. . . guarantee that this will be stopped in this
shop. If there are any instances of this occuring, I
want you to report them to me and I will take care
of it. Also if any supervisor or management
representative threatens or coerces any of you
about the union let me know about that and I will
take care of it .. .
and, finally, that he wanted to repeat that "the 35 hour
work week will never be taken away no matter
what."fo
Toward the end of this March 8 meeting, Gustavo
Rodriguez, a cutter in the bargaining unit, asked Levi
if he was eligible to receive the insurance described in
the booklet, and Levi replied that Rodrigues would
have to make up his own mind and go one way or the
other, gesturing to the right and left with a booklet in
his hand.ii When Menes asked Levi what specific
decision the employees had to make in order to secure
the benefits, he told her, "Don't vote for the Union."
Beginning shortly after the Respondent's January
letter to its employees and accelerating between the
first and third meetings, the Respondent received a
number of letters and petitions signed by employees
and indicating that they no longer wished to be
represented by the Union. By March 18, a majority of
the unit employees had repudiated the Union as more
fully discussed, infra.
Respondent's third meeting with employees, on
March 18, was held after employees were notified by
Satterwhite about 3 p.m. to go to the lunchroom. In
addition to management representatives, Respon-
dent's attorneys, Mr. Bruckner and Mr. Greene, were
present. Levi again read a prepared statement, as
follows:
First, I must tell you why it was necessary to call
this meeting at this time, and why none of you can
work overtime this afternoon.
As you know, we have been working overtime
fairly consistently lately, but last Friday I received
this telegram:
(Read Telegram)
Since our contract with the Union has not yet
expired , then we cannot give you overtime work
this afternoon . I called this meeting because as you
undoubtedly know , I have received confidential
petitions and letters signed by most of you, saying
that you do not want to be represented by
ILGWU.
10 The record contains no evidence that any of the rumors referred to
existed in fact, and Menes testified that she had not heard , and was
unaware , of any of them Contrary to the Respondent's argument, Menes'
statement to Levi in the first week of March that before Levi broke the
Union the employees would strike is not construable as a threat of a strike
on February 22
11 Levi testified that he explained that the benefits were for nonunit
employees only It is noted, however, that Levi, in his testimony , frequently
used the term "nonunion" employees when he referred to the nonunit
253
In fact, a clear majority of you have sent these
letters and petitions to me and the names are still
coming in.
Since this is such a complicated area, and since I
WANT TO MAKE ABSOLUTELY SURE
THAT ALL OF YOU GET ALL THE BENE-
FITS TO WHICH YOU ARE ENTITLED, I
have called in our labor lawyer to explain what is
going on to you.
The text of the telegram referred to read:
Please be advised that under no circumstances will
the Union authorize overtime work for any of your
employees on Monday March 18, 1968. This is
because of a meeting called by the Union for the
employees in your shop.
Attorney Bruckner also read from a prepared text
but abandoned it when he was interrupted repeatedly
by questions from the floor. The portion read was to
the effect that management had informed the attor-
neys that a clear majority of unit employees had
written letters and signed petitions stating that they
no longer wished to be represented by the Union;
and, that under the circumstances, the Company may
not and as a matter of law cannot continue to
recognize that Union," and therefore was notifying
the Union immediately that the Respondent would
comply with the wishes of the majority and would not
continue to recognize the Union.
Bruckner also said that "Due to the many questions
that have been asked about the dues checkoff,
unfortunately there will be a dues payroll deduction
for the month of May." Menes asked why it was
necessary to pay dues through May if the Union no
longer represented Daisy's employees, and how
Bruckner could decertify the Union without going
through the National Labor Relations Board.12
Bruckner did not give her a direct answer, but asked
who she was. After Menes identified herself, Bruckner
said, according to Menes, "that the Company and the
employees were going to do what they wanted and
[Menes ] could either go along with the rest of them or
- and he made a motion with his hands, or you can
just go about your business." Menes thanked him and
walked out of the meeting, whereupon a large number
of other employees also left the meeting to return to
work. Satterwhite followed them out of the lunch-
room and told them that they must either return to the
meeting or check out. At least 10 employees checked
workers , and he indicated that he considered the distinction between these
terms to be a technicality
12 This recitation concerning this aspect of Bruckner's comments and
the exchange between Bruckner and Menes is based on Menes' testimony,
which was undenied and was corroborated by that of employee Jennie
Giglio Furthermore, Bruckner admittedly told Menes , "Look, you just
have to take your route and go your way and we will have to go ours,"
which substantially accords with her version of his response.
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out and were not paid for the last 15 minutes of
working time on that day.
The next day, March 19, Respondent's attorney sent
a letter to the Union notifying of Respondent's intent
to terminate the current agreement upon its May 31
expiration and advised the Union that a majority of
the bargaining unit employees had expressed the
desire not to be represented by the Union. In
response, the Union, by letter dated March 26, gave
notice of its intent to modify the terms of the existing
agreement, stated it would submit written contract
proposals in the near future, and proposed several
meeting dates and places. The Union expressly denied
Respondent's assertion that a majority of the unit
employees no longer wanted union representation
and affirmatively asserted the contrary. Respondent
replied by letter dated March 29, offering to submit its
evidence to an impartial third party.13
Approximately 10 days to 2 weeks after the last
meeting with employees, Rolando Rodriguez, the
steward of the cutters, complained to the cutter's
foreman, Bottorf, concerning the proposed layoff of
two prounion cutters. Rodriguez was called into
Satterwhite's office where Levi also joined the
meeting . According to Rodriguez,14 Levi said that
Respondent had a right under the contract to lay off
the two cutters and that he (Levi) was sick and tired of
having to do what the Union wanted and "that he
would rather close the shop until [sic ] he signed again
with the union." Levi said that he could call the
Cuban Refugee Center and have "a hundred women
come to work" any time he wanted.
On April 4, the Respondent filed a representation
petition with the National Labor Relations Board.
The Union opposed the petition asserting the contract
as a bar, and the petition was withdrawn. On Friday,
May 3, the unfair labor practice charges herein were
filed, and on the same day the Union struck. Almost
immediately, a campaign was begun of soliciting
nonstrikers to resign from the Union, as discussed,
infra.
1. The Trial Examiner found, and we agree, that
the Respondent interfered with, restrained, and
coerced its employees in the exercise of their rights
guaranteed in Section 7 of the Act, and thereby
13 Additional letters were exchanged , in which the Union and the
Respondent each protested the attitude of the other However, this
correspondence contributes little to a resolution of the issues
14 Levi's testimony does not substantially differ from that of Rodriguez
Levi testified that after Satterwhite explained to Rodriguez that
Respondent had a right to lay off the two cutters, Rodriguez replied that he
was not sure whether the rest of the cutters would go along with
Respondent 's decision . Although Levi denied saying he would rather close
the plant than sign another union contract , he admittedly lost his temper
after Rodriguez' response , and said that he was "sick and tired of all this
aggravation", that he and his family
need like a hole in the head this business and me and my wife is
better off to pack up and put on the padlock and go back to the farm
And as far as threatening me to - like that you will not be no
violated Section 8(a)(1) of the Act, by Levi's threat to
Menes that if she went on strike she would be
blacklisted from employment in the industry; 15 Levi's
statement to Gus Rodriguez at the March 8 meeting
indicating, in effect, that he, and other employees,
could enjoy the superior benefits described in the
Employees Booklet if they were not covered by a
contract with Respondent; and, Levi's direct state-
ment to Menes at the same meeting that, if the
employees wanted to enjoy the benefits set forth in the
booklet, they should vote against the Union.
In addition, however, and contrary to the Trial
Examiner, we find that Respondent also violated
Section 8(a)(1) of the Act by Levi's statement to
Rolando Rodriguez about the end of March that he
was sick and tired of all the aggravation and that he
would rather close the shop than to sign up again with
the Union; and by supervisor Satterwhite's remarks to
employees Mabel Schleyer and Adell Olliff.
As to Schleyer, the Trial Examiner found that in a
conversation between the second and third meetings,
employee Schleyer told Satterwhite there was tension
in the shop, and Satterwhite said she would be glad
when it was over and she (Satterwhite) could get rid of
some of the girls. Unlike the Trial Examiner, we find
that only one meaning can be drawn from Satter-
white's comment - that as soon as the antiunion
campaign was over she was going to discharge the
prounion employees. Such a threat is unquestionably
violative of Section 8(a)(1).
As to Olliff, the Trial Examiner credited her
testimony concerning the relevant events. He found
that about this same time on March 15, she had a
conversation with Satterwhite in the plant during
working time, when Satterwhite came to Olliff's work
station. Satterwhite said, "Adell, I heard that you
were going to walk out on me," and told Olliff "that if
I stayed with her that she would stick with me and I
wouldn't regret it and then she told me I had better get
on the bandwagon . . . . She told me I had better
hurry up and sign up because they had just about
enough names." On March 17, Olliff called Satter-
white to ask what the latter meant by "getting on the
bandwagon," and Satterwhite said:
... that if I would stick with her she would stick
cutters here , I am going to call up the Cuban Refugee Center and I am
going to replace all of you there as fast as you walk out.
The Trial Examiner disregarded the testimony concerning Rodriguez'
argument with Levi because he found it bore no relation to the substance
of the case . We disagree and find, to the contrary, that Levi's attitude
about the Union, as reflected by his words and conduct , are the very
substance of this case.
is We find no merit in Respondent 's contention that, since Menes'
threat to strike was in derogation of the no-strike clause of the contract,
Respondent 's threat to blacklist her in the industry was not unlawful. If
Menes or any other employee had engaged in such an unprotected strike
she would have lost her status as an employee of the Respondent by virtue
of the Act, but this would not have deprived her of employee status for all
purposes or licensed the Respondent to engage in blacklisting her.
DAISY'S ORIGINALS, INC., OF MIAMI 255
with me and I wouldn't regret it and she said that I
had better hurry up and get my name on the paper
because they had dust about enough to do what
they wanted to do. She said that they were going to
kick the union out because they didn't want
anybody telling them what to do and what not to
do. They were going to be one big happy family.16
Late that day, Olliff signed a petition given her by
De Los Reyes, telling De Los Reyes that she did so
only to get "them" off her back. It is apparent, as the
Trial Examiner concluded, that Satterwhite, in urging
Olliff to "get on the band wagon" and to "hurry up
and sign up," was encouraging Olliff to sign the
antiunion petition, and aiding and abetting the
employees who were circulating those petitions. In
our view, it is equally apparent that Satterwhite's
conduct in this respect clearly interfered with employ-
ee rights guaranteed by Section 7 of the Act and
violated Section 8(a)(1) of the Act.
Finally, and contrary to the Trial Examiner, we find
that Respondent violated Section 8(a)(1) of the Act
after the strike began by permitting, and thereby
encouraging, McGowan and Fulton openly and freely
to write and address antiunion letters, to solicit
employee signatures and collect postage from em-
ployees at the plant on working time, as more fully set
out below.
2. We find no merit in the General Counsel's
contention that the Respondent violated Section
8(a)(3) of the Act by requiring that employees either
remain at the March 18 meeting or clock out, and by
refusing to pay employees who clocked out early for
15 minutes of that day. The Trial Examiner recom-
mended dismissal of the allegation on the ground that
the loss of 15 minutes working time, if unlawful at all,
was de minimis. However, we find that even if it were
more than de minimis, since the meeting was held on
Respondent's premises during normal working time,
Respondent was at liberty to determine the use to
which it wished to put the time for which it was paying
the employees, and the employees were not free to
make a choice in favor of working. Accordingly, we
shall dismiss that allegation of the complaint.
3. As is apparent from the facts recited above, the
Respondent informed its employees on March 18 that
it was withdrawing recognition from the Union and
on March 19 sent a letter to the Union to this effect.
The Respondent's action was predicated upon letters
and petitions signed by employees indicating they no
longer wished to be represented by the Union.
However, it is clear that these rejections were the
result of the Respondent's overall conduct through
March 18, including the unfair labor practices
committed, and hence the Respondent may not rely
on them as evidence of employee disaffection. 17 Thus,
the earliest letter, postmarked February 5, 1968, was
written soon after employees received the January
letter, and the last petition was dated March 18.
Respondent received 15 such letters between approxi-
mately February 6 and March 8, the date of the
second meeting, and 20 more between March 8 and
18, of which only 11 were from members who
indicated they desired to withdraw and 9 were from
employees who indicated they did not wish tojoin the
Union. In addition, the Respondent also received 10
petitions during this period, bearing a total of 55
signatures, stating that the signatories did not want
representation by the Union; of the 55 signatures, 23
were those of persons who had not previously signed
individual letters. One signature was that of Adell
Olliff who was solicited by Satterwhite to sign and
testified that she signed the petition against her will
and only to get "them" off her back.
With respect to the letters and speeches, a clear
pattern emerges of increasing references by the
Respondent to nonexistent rumors in the plant of
various forms of alleged misconduct by the\ Union
and to employee withdrawal from the Union to obtain
the greater benefits enjoyed by nonunit workers. It is
apparent, as the Trial Examiner found, that Respon-
dent was engaged in a campaign, subtle and sophisti-
cated, to increase dissension in the shop and weaken
the Union's bargaining power.18 Thus, the Respon-
dent's references to rumors in its January 1968 letter,
and again in Levi's March 8 speech, were unsupport-
ed and were intended to denigrate the Union in the
eyes of the employees. Similarly, Levi's comments to
the employees at the February 23 and March 8 and 18
meetings, including the distribution of the Employees
Booklet, were intended to, and did, increase dissen-
sion in the shop and stir dissatisfaction among the
employees. As found above, the distribution of the
booklet and Levi's remarks in connection therewith
both directly and indirectly implied a promise of
benefit if the employees rejected the Union. While an
employer need not affirmatively act to protect an
16 The Trial Examiner credited Olliff but did not quote or summarize
her full testimony
17 Two prerequisites for sustaining the defense of "good-faith doubt" of
majority status are that the asserted doubt must be based on objective
considerations and that it
must not have been raised in a context of illegal antiunion
activities, or other conduct by the employer aimed at causing
disaffection from the union or indicating that in raising the majority
issue the employer was merely seeking to gain some time in which to
undermine the union
Celanese Corporation ofAmerica, 95 NLRB 664, 673
is We do not pass upon the Trial Examiner's conclusion that the
Respondent's first breach of good faith in its long bargaining history with
the Union occurred during the 1967 contract negotiations. The
Respondent 's alleged conduct with respect to that contract , occurring long
before the 6-month period preceding the filing of the charge herein and
which has been fully rectified, does not constitute a factor to be evaluated
in appraising its overall conduct herein
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incumbent union's status among the employees, it
may not take affirmative action, as involved herein, to
undermine that status.19
And, although we agree with the Trial Examiner
that, except for the Satterwhite-Olliff incident, there is
no evidence that the Respondent actively participated
in the antiunion campaign or directly solicited
employees to sign antiunion letters and petitions
before March 18, we consider such a finding unneces-
sary herein. For the nature of the Respondent's
communications, including the specific 8(a)(1) viola-
tions, directed as they were to instigating just such
repudiation of the Union, albeit subtly and somewhat
by indirection, and including specific indications that
employees should reject the Union, that employees
would enjoy greater benefits without the Union, and
that Respondent no longer wished to deal with it, lead
to the inevitable inference that the letters and
petitions were the direct and intended product of
those activities.20
Under all the circumstances, we are persuaded, and
find, that the circulation and signing of the antiunion
letters and petitions resulted largely, if not entirely,
from the Respondent's conduct and that this solicita-
tion was prompted and furthered by the Respondent
both directly and indirectly. Since the Respondent
therefore cannot rely on these rejections to sustain its
assertion that it had valid grounds for doubting the
Union's continued majority status,21 Respondent was
under a continuing duty to bargain collectively with
the Union as the representative of the employees in
the appropriate unit and its withdrawal of recognition
on March 18 and refusal thereafter to recognize the
Union was violative of Section 8(a)(5).22
4. The Trial Examiner found and we agree that,
inasmuch as the strike of May 3 was in direct response
to the Respondent's refusal to recognize the Union, it
was an unfair labor practice strike from its
inception.23
However, the Trial Examiner refused to admit
testimony offered by the General Counsel for purpos-
es of establishing the cause of the strike, and the
Respondent's alleged responsibility for the solicita-
tion of resignations thereafter. Thus, he apparently
deemed as irrelevant proffered testimony concerning
what transpired at the union meeting on May 2, when
19 Nickey Chevrolet Sales, Inc., 142 NLRB 23, 25-26
20 Member Brown would find, in agreement with thi. General Counsel's
contention , that the January letter and Levi's remarks at the employee
meetings also violated Sec 8 (a)(1) of the Act
21 Respondent asserts that because a clause in the then current contract
contained language, later corrected , which it claims is unlawful on its face,
the Union 's representative status was based on a coerced majority Such a
contention is patently without merit, in view of the history of bargaining
dating back to 1954 and the presumption of regularity which attaches to
the initial and continuing recognition prior to the 6-month period
preceding the filing of the charge herein
22 See Ingress -Plastene, inc, 177 NLRB No 70, and cases cited therein
23 Mastro Plastics Corporation v N L R B, 350 U S 270 It is sufficient
the unit employees voted to strike, and he stated that
such testimony is self-serving in any event. The
testimony concerning the letters of resignation was
rejected on the ground that it was beyond the scope of
the complaint. The General Counsel's request for
special permission to appeal from the Trial Examin-
er's rulings was granted, and the Board, by telegraphic
order, sustained the appeal and directed the Trial
Examiner to receive the evidence offered concerning
the said events. Although the Trial Examiner thereaft-
er received this evidence, he has not summarized it in
his Decision, and he disregarded it on the grounds
that it was irrelevant, incompetent, and beyond the
scope of the complaint. The Tnal Examiner is in error
as to both aspects. For events which occur at union
meetings are relevant and significant in determining
what considerations prompted a decision to strike,24
and the issue as to whether Respondent prepared or
sponsored the solicitation of letters of resignation was
within the literal scope of the complaint as amended
at the hearing upon the General Counsel's motion to
the Trial Examiner.25 Accordingly, it is appropriate to
consider the evidence received by the Trial Examiner
upon direction of the Board, all of which was
uncontradicted.
With respect to the cause of the strike, Violet Reid
testified that she attended a union meeting on May 2,
the day before the strike began. Present at that
meeting were Marty Morand, Southwest Regional
Director of the Union, who presided; Messrs. Metz
and Krost; and some 40 to 50 of Respondent's
bargaining unit employees. Morand reported to the
employees that all efforts by the Union to start
negotiations for a new contract with Respondent had
failed. Reid thereupon moved that the employees
strike; the motion was seconded and carried unani-
mously. As stated, the strike began on Fnday, May 3,
and was still in progress at the time of the hearing
herein. As we find the strike was caused at least
partially by Respondent's unfair labor practices the
employees did not lose their employee status as a
result of their striking, despite the existence of the no-
strike clause, nor did the Union lose its representative
status. Accordingly, the policies of the Act will be
that the strike was caused in part by the Respondent 's unfair labor
practices Billups Western Petroleum Company, 169 NLRB No. 47. In any
event, the Respondent 's unfair labor practices here were flagrant in nature
and clearly designed to destroy the very foundation of the contract and
relationship , involving as they do "vigorous efforts by the [Respondent to
influence and even to coerce their employees to abandon the [Union [ as
their bargaining representatives " Mastro Plastics Corporation v
N L R B, supra, 278
24 See, e g , Alco Plating Corporation, 179 NLRB No. 20; Tyler Pipe &
Foundry Company, 171 NLRB No 38 (TXD); Wittock Supply Company, 171
NLRB No 33
25 For this reason we need not consider whether it was within the
allegations of the complaint as originally issued.
DAISY'S ORIGINALS, INC., OF MIAMI 257
effectuated by the imposition of a bargaining order as
a remedy herein.26
Almost immediately after the strike began, employ-
ees Doris Fulton and Eileen McGowan began writing
letters of resignation to the Union and addressing
envelopes, on behalf of 33 nonstriking unit
employees.27 Fulton testified that starting 2 or 3 days
after the strike began she addressed most of the
envelopes and wrote many of the letters at McGow-
an's request. She admitted that she did this openly at
her worktable in the plant during working hours and
that when she was finished she gave the letters and
envelopes to McGowan. McGowan acknowledged
that she had asked Fulton to address the envelopes
and to write some of the letters. She also testified that
she wrote many of the letters at the plant, but did so at
the request of employees who could neither read nor
write in English, and then asked those employees to
sign, urging them to resign from the Union28 so that
the Union could not fine them $100 for working
behind a picket line.29 According to McGowan, "it
took a two or three day period to get the letters wrote
[sic] up . . . ." After the letters were all written,
McGowan enclosed them in the envelopes and her
husband sent them by registered mail and gave
McGowan the receipts. McGowan thereafter turned
over the receipts and collected the amount of the
postage due from each employee, admittedly going to
their work stations during working hours for this
purpose.
Although McGowan denied that Levi or Satter-
white asked her to write and address these letters to
the Union, there is no evidence that they attempted to
stop her or Fulton from doing so on working time.
Nor is it claimed that Respondent was unaware of the
massive letter writing campaign and the subsequent
solicitation of signatures and collection of postage at
the plant on May 6 and 7. To the contrary, we are
persuaded and find that Respondent was not only
fully aware of McGowan's and Fulton's activities but,
by failing to stop them, Respondent approved,
condoned, supported, and adopted these activities as
its own. Further, the two women apparently knew that
Respondent would support them, as they acted
openly and without any apparent fear of reprimand.
In these circumstances, we conclude that Respondent,
by permitting McGowan's and Fulton's antiunion
activities to go on openly and freely at the plant
26 See N.L.R.B. v. Gissel Packing Company, 395, U.S. 575. Though the
decision in that case did not discuss the issue involved herein, namely, the
circumstances in which an employer is privileged to withdraw recognition
from an incumbent union , we are satisfied that its teachings concerning the
circumstances in which it is appropriate for the Board to find that an
employer' s refusal to recognize and bargain with a union seeking initial
recognition and supporting its claim of majority status by authorization
cards violates Sec. 8(a)(5) supports our decision in this case.
27 All but seven of the letters appear to be in the same handwriting and
during working hours interfered with the employees'
Section 7 rights in violation of Section 8(a)(1).
THE REMEDY
Having found that Respondent's employees were
engaged in and are engaging in an unfair labor
practice strike, Respondent shall be ordered, upon
unconditional request, to reinstate all strikers to their
former positions or, if those jobs no longer exist, to
substantially equivalent positions, dismissing if neces-
sary any replacements hired. In addition, Respondent
shall make each of the striking employees whole for
any loss of earnings which he or she may suffer by
reason of Respondents refusal, if any, to reinstate
such striking employees in the manner prescribed
above, by payment to him or her of a sum of money
equal to that which such employee normally would
have earned as wages during the period beginning 5
days after the date on which such employee applies
for reinstatement and terminating on the date of
Respondent's offer of employment. Backpay, where
due, shall be computed in the manner set forth in
F. W. Woolworth Company, 90 NLRB 289, and shall
include interest in the amount and manner set forth in
Isis Plumbing & Heating Co., 138 NLRB 716. Because
of the nature and extent of Respondent's unfair labor
practices which we find go to the very heart of the Act,
we find that a broad cease-and-desist order is
warranted.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Daisy's Originals, Inc., of Miami, Miami, Florida, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Telling its employees that they would be
blacklisted from employment in the industry if they
go on strike; telling its employees that if they wanted
the greater benefits granted to nonunit workers they
should vote against the Union; indicating to its
employees that nonunit employees enjoyed greater
benefits than unit employees in order to undermine
their bargaining representative; threatening to close
the plant rather than sign another agreement with the
Union; urging any employee to sign an antiunion
petition; threatening to discharge union adherents
all but two are dated May 6, 1968. As to the envelopes , all but six appear
to have been addressed by Fulton and all but two are postmarked May 7,
1968.
28 It is apparent that this testimony is internally inconsistent . Further,
no employee testified to asking McGowan or Fulton to write a letter of
resignation for her to the Union.
29 No evidence was presented that the Union intended to fine its
members for working during the strike or that it had ever done so in the
past.
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when the antiunion drive is over; and soliciting and
encouraging nonstriking unit employees to resign
from the Union.
(b) Refusing, upon request, to bargain collectively
with the Union as the exclusive bargaining represent-
ative of its employees in the unit found appropriate
herein concerning wages, hours, rates of pay, and
other terms and conditions of employment.
(c) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
right to self-organization, to form, join, or assist Local
No. 415, International Ladies' Garment Workers'
Union, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their
own choosing, or 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.
2. Take the following affirmative action which we
find will effectuate the policies of the Act:
(a) Reinstate the unfair labor practice strikers, upon
their unconditional applications, to their former jobs
or, if such jobs are no longer available, to substantial-
ly equivalent positions without prejudice to their
seniority or other rights and privileges of employ-
ment, discharging, if necessary, any replacements
hired during the strike and make them whole for any
loss of earnings resulting from the failure to reinstate
them as set forth in "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary or appropriate to analyze the
amount of backpay due, if any.
(c) Upon request, bargain collectively with the
Union as the exclusive bargaining representative of all
employees in the unit found appropriate herein with
respect to wages, hours, rates of pay, and all other
terms and conditions of employment and, if an
understanding is reached, embody the terms of such
understanding in a written agreement.
The appropriate unit is:
All production workers at Respondent's Miami,
Florida, plant, but excluding all other employees,
all office clerical employees, guards and supervi-
sors as defined in the Act.
(d) Post at its Miami, Florida, plant copies of the
attached notice marked "Appendix." 30 Copies of said
notice, on forms to be provided by the Regional
Director for Region 12, after being duly signed by an
authorized representative of Respondent, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that such notices are not altered, defaced, or
covered by other material.
(e) Notify any of the unfair labor practice strikers if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces.
(f) Mail a copy of the attached notice to each of the
unfair labor practice strikers addressed to his or her
last known address.
(g) Notify the Regional Director for Region 12, in
writing, within 10 days from the date of this Order,
what steps Respondent has taken to comply herewith.
so In the event this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT tell employees that they will be
blacklisted from employment in the industry if
they go on strike; tell employees that if they want
the benefits granted to nonunit workers they
should vote against the Union; indicate to employ-
ees that nonunit employees enjoy greater benefits
than unit employees in order to undermine their
representative; threaten to close the plant rather
than sign another agreement with the Union; urge
any employee to sign an antiunion petition;
threaten to discharge union adherents once the
antiunion campaign is over; and encourage
nonstriking unit employees to resign from the
Union.
WE WILL NOT refuse, upon request, to bargain
collectively with the Union as the exclusive
bargaining representative of our employees in the
unit found appropriate herein concerning wages,
hours, rates of pay, and other terms and conditions
of employment.
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 Local No. 415, International Ladies'
Garment Workers' Union, AFL-CIO, or any
other labor organization, to bargain collectively
through representatives of their own choosing, or
to engage in other concerted activities for the
DAISY'S ORIGINALS, INC., OF MIAMI 259
purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such
activities.
WE WILL reinstate the unfair labor practice
strikers, upon their unconditional application, to
their former jobs or, if such fobs are no longer
available, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges of employment, discharging, if
necessary, any replacements hired during the
strike and make them whole for any loss of
earnings resulting from the failure to reinstate
them within 5 days from their unconditional
request.
WE WILL, upon request, bar3ain collectively
with the Union as the exclusive bargaining agent
of all employees in the appropriate unit with
respect to wages , hours, rates of pay, and all other
terms and conditions of employment and, if an
understanding is reached, embody the terms of
such understanding in a written agreement. The
appropriate bargaining unit is:
All production workers at Respondent's
Miami, Florida, plant, but excluding all other
employees, all office clerical employees,
guards and supervisors as defined in the Act.
WE WILL notify the unfair labor practice strikers
if presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training
and Service Act, as amended, after discharge from
the Armed Forces.
WE WILL mail a copy of this notice to each of the
unfair labor practice strikers addressed to his or
her last known address.
DAISY'S ORIGINALS, INC.,
OF MIAMI
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Room 826, Federal Office Building, 51 SW
First Avenue, Miami, Florida 33130, Telephone
305-350-5391.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner : Upon a charge filed
May 3, 1968, by Local 415, International Ladies ' Garment
Workers' Union, AFL-CIO, herein the Union, against
Daisy's Originals , Inc., of Miami , herein the Respondent,
the General Counsel issued complaint dated February 27,
1969, alleging Respondent had violated Section 8 (a)(1), (3),
and (5) of the Act. The answer of the Respondent denied
the commission of any unfair labor practices.
This proceeding , with all parties represented , was heard
by me at Miami , Florida, on various dates between April 21
and May 20, 1969. At the conclusion of the hearing the
parties were given leave to file briefs . Briefs were received
from the General Counsel and Respondent on July 17.1
Upon the entire record in this case and from my
observation of the witnesses while testifying, I make the
following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Respondent is a Florida corporation with its principal
place of business at Miami , Florida, where it is engaged in
the manufacture and wholesale distribution of ladies'
garments . In the course of its business Respondent ships
finished products valued in excess of $50,000 annually to
places and points outside the State of Florida.
Respondent is engaged in commerce within the meaning
of the Act.
II. LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Past Bargaining History and the Last Contract
1. Evidence
Bargaining history between Respondent and the Union
began with the signing of a collective-bargaining contract in
September 1954. (G.C. Exh. 5-a.) In July 1957, a collective-
bargaining contract was signed between Florida Apparel
Manufacturers Association and the Union. Respondent
was a member of the Association and adhered to the
contract . (G.C. Exh. 5-b.) Supplemental agreements to this
contract were entered into on October 25 , 1960, and
September 7, 1963. (G.C. Exhs. 5-c and d.) In 1965 the
Association was dissolved, although the contract did not
expire until August 31 , 1966. In September 1966 a
memorandum of agreement was executed between Respon-
dent and the Union, renewing the terms of the contract, as
modified, until May 31, 1968. (G.C. Exh. 5-e.)
The last contract and the one concerning which there is
1 Intemperate language used in both briefs has been disregarded.
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dispute was executed in March 1967 between Respondent
and the Union and expired May 31, 1968. (G.C. Exh. 5-f )2
The dispute concerns article XV of the contract which
reads, in part:
1. The Employer shall pay weekly to the Union a
sum equivalent to nine and one-half (9 1/2%) percent of
its total gross weekly payroll (before deduction for
federal or state taxes) of all non-supervisory union
production workers employed in any of its own shops.
Such payments shall be allocated as follows. .. .
[Emphasis supplied.]
Paragraph 2 of the affirmative defenses set forth in
Respondent's answer reads:
Any claim of representation on the part of the Union
was based on unlawful activities, including the receipt
of benefits under the said collective bargaining
agreement by union members only, and accordingly the
Union did not represent an uncoerced majority, within
the purview of the Act
The proposed agreement submitted by the Union (G.C.
Exh. 2-c) contains the following provision under article
XV:
The Employer shall pay weekly to the Union a sum
equivalent to nine and one-half (9 I /29o) percent of its
total gross weekly payroll (before deduction for federal
or state taxes) of all non-supervisory production
workers (whether Union or non-union workers and
whether regular or trial period workers) employed in any
of its shops. Such payments shall be allocated as
follows.... [Emphasis supplied.]
This dispute, then, centers on article XV and as to
whether this article was agreed to in the form contained in
the signed agreement (G.C. Exh. 5-f) which, as to article
XV, varied so substantially from the Union's proposed
agreement (G.C. Exh. 2-c).
It should be noted that the last complete agreement
between the parties, dated July 16, 1957 (G.C. Exh. 5-b),
contained in article XIV, the following provisions respect-
ing the health and welfare fund:
The Employer shall pay monthly to the Flonda
Division Southeastern Regional ILGWU Health and
Welfare Fund, a sum equivalent to six and one-half (6
1/2%) percent of its total gross weekly payroll (before
deduction for Federal or State taxes) of all employees
covered by this agreement (whether regular or trial
period workers) payment to be made through the
Miami office of the Union... .
Thus, the history of health and welfare payments, until
the last contract, included benefits for both union and
nonunion employees.
The clearest evidence with respect to the dispute is
documentary. Herbert Kaplan, a member of the bar of the
State of Florida, testified that he was counsel for the Union
from 1962 until March 1969, and participated in negotia-
tions leading to the final contract of March 1967. (The
actual date of execution of the contract is not clear.)
On February 22, 1967, Kaplan wrote Samuel Sheradsky,
then attorney for Respondent, the following letter (G.C.
Exh. 2-a):
Samuel Sheradsky, Esq.
Wall, Roth & Sheradsky
1895 S. W. Third Avenue
Miami. Florida 33135
Re: ILGWU-Daisy's Originals, Inc.
1966 Negotiations.
Dear Sam
As I understand the status of the above matter, you
wish to check the validity of our relative positions in
regard to Articles XV and XXIII of the draft
Agreement. It has been our position that benefit funds
must be paid on behalf of all employees regardless of
their Union membership and that such a position is not
an arbitrary one on our part, but is dictated by Federal
law.
It has also been our position that the nght to call a work
stoppage for the employer's failure for five days to pay
in full wages or monies due the Union or funds is
absolutely essential to us. This remedy has been
available to us throughout our relationship with the
employer, and the employer has never demanded that
we surrender that which we have always had.
I am now holding the draft Agreement sent to me under
date of February 13, 1967, and will continue to hold it
until I have heard from you with respect to these two
crucial provisions.
Warmest personal regards.
Sincerely,
Kaplan and Shapiro
By
Herbert L. Kaplan
HLK/fig
cc. Mr. Harry Metz
This letter establishes that Kaplan understood any
contract must provide for payment of benefits to union and
nonunion workers alike.
On June 1, 1967, Kaplan forwarded to Sheradsky an
original and two copies of the Union's proposed contract of
March 1967, with a covering letter, a copy of which was
received as General Counsel's Exhibit 2-b. This contract
had already been signed by Harry Metz, manager of the
Union. The letter read:
June 1, 1967
Samuel Sheradsky, Esq.
Wall, Roth & Sheradsky
1895 S . W. Third Avenue
Miami . Flonda 33135
Re: ILGWU - Daisy 's Originals, Inc.
1966 Negotiations
Dear Sam:
Enclosed are the onginal and two copies of the Contract
in the above matter executed by Harry Metz, as
Manager of Local 415 of the International Ladies'
Garment Workers' Union.
2 G C. Exh 5-e and 5-f, above were inadvertently numbered 5-f and indicated The transcript, however, will refer to them as originally
5-g when received in evidence They were subsequently renumbered as numbered, thereby creating confusion
DAISY'S ORIGINALS, INC., OF MIAMI
It is my understanding that in connection with our
controversy regarding Benefit Fund payments for non-
union employees, that that matter has been resolved by
our clients, and Mr. Metz has demonstrated to Messrs.
Levi and Cohen that although they received a
concession on one occasion in this regard, the
contractual obligation is as it has always been.
Please cause your clients to execute all of the
enclosures. I would appreciate your being good enough
to insert the correct date on the first page of each of the
enclosures. The original and one copy should thereafter
be returned to me.
Thank you for your continuing cooperation.
Sincerely,
KAPLAN AND SHAPIRO
By
Herbert L . Kaplan
HLK/fig; Enclosures
cc. Mr. Harry Metz
This contract contained, on page 9, the Benefit Fund
clause set forth above (G.C. Exh. 2-c) providing benefits
for union and nonunion workers. This document was never
executed by Respondent. The document which was signed
and executed by Respondent and the Union was intro-
duced as General Counsel's Exhibit 5-f. In this document a
new page 9 was substituted for the original page 9 of the
document transmitted to Sheradsky by Kaplan. The new
page 9 was typed on the stationary of Wall, Roth, and
Sheradsky, attorneys at law, whereas all other pages were
on the stationary of Kaplan and Shapiro. Page 9, however,
although substituted, was not initialed or signed by any of
the parties or attorneys.
Sheradsky testified that after he received General
Counsel's Exhibit 2-c from Kaplan he called Kaplan, told
him he was going to make certain changes in it, made these
changes, including the substituted page 9, and sent it to
Respondent. Levi signed the contract for Respondent.
Sheradsky was not sure whether the contract was returned
to him or sent by Respondent to Kaplan.3 He did state that
Kaplan called him and told him he was forwarding it to the
main office of the Union in New York. He could recall
discussion about page 9 with Kaplan, presumably after
Respondent signed the modified contract. The purport of
this testimony is that Kaplan, at least, was aware of the
change made in the contract by the substitution of page 9.
Kaplan's testimony is that after June 1 he had no
conversation with Sheradsky regarding the benefit clause
until 1968. (In 1968 the parties submitted a dispute
concerning the contract to arbitration and this may have
been the occasion when Kaplan learned of the substitu-
tion.) I credit Kaplan. All of the documentary testimony
supports Kaplan. What is incredible to me is not only is
there no documentary testimony to indicate that Kaplan or
the Union retreated from their fixed position on so
important a clause, but that substituted page 9 was neither
3 I do not find the itinerary of the contract after its signature by Levi
important in the absence of any showing that the change was agreed upon
by either Metz or Kaplan
261
signed nor initialed by either of the parties or their
representatives. A prudent lawyer does not make changes
in a proposed contract without evidence in writing that the
changes had been agreed upon. I therefore conclude that,
until November 1967, when new counsel for Respondent
discovered the unlawful discrimination with respect to
payments under the fund, the Union at all times believed
that the contract in effect between the parties was that
submitted by Kaplan.
Sometime after Bruckner & Greene were retained by
Respondent the change in the benefit clause was discovered
and on or about November 27, 1967, an adjustment was
made by Respondent (G.C. Exh. 5-i), although the contract
itself does not appear to have been modified to conform to
the adjustment. In any event, and despite the survival as a
matter of form of the unlawful clause, I find payments were
made as required by law.
2. Conclusions
Based on the foregoing I find that the unlawful benefit
clause could not serve to deprive the Union of its
representative status nor could the Respondent assert a
good-faith doubt based on an unlawful clause in a contract
substituted after its execution by the Union and without
notice to or knowledge upon the part of the Union. It is a
fundamental proposition of law that a man may not profit
by his own wrongdoing.
B. The Arbitration Award
Respondent does not, in its brief, advance what I
understood to be its contention at the hearing; i.e., that the
arbitration award was determinative of certain of the issues
in this proceeding. For what it is worth a hearing was held
pursuant to the contract on April 4, 1968, before Herbert A.
Kuvin, arbitrator, at the request of the Union. The issues
posted to the arbitrator were:
(1) Whether Respondent failed to post a notice required
by article III, section 2, of the contract.
(2) Whether Respondent failed to make certain payments
to the Benefit Fund required by article XV of the contract.
(3) Whether Respondent failed to permit access to the
shop by union representatives of the contract.
The arbitrator decided all issues in favor of the
Respondent.4 I find these issues irrelevant to the issues in
this proceeding and the decision of the arbitrator not
dispositive of any of the issues of the instant case .5
C. Violations of Section 8(a)(1), the Majority Status
of the Union, and Violations of Section 8(a)(5)
1. Levi's speeches, the Union's majority, and the
refusal to recognize the Union
Alleged violations of Section 8(a)(1) and (5) and the issue
of the Respondent's good faith doubt of the Union's
majority status are so intertwined as to compel combined
recitation.
By letter dated only "January, 1968," Respondent
4 Resp Exh 7
5 No record was made of the proceedings before the arbitrator so no
issues of contradiction in testimony nor of credibility are raised
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
addressed the following letter to its employees (G. C. Exh.
3-a).6
January, 1968
Ruth Menes:
We are pleased to inform you that during the year
1967, Daisy's has placed in trust for you, $247.70 for
vacations , holiday pay, health and welfare , unemploy-
ment-severance , and retirement benefits.
This is your money; you earned it and we paid it out
on your behalf.
However, we have heard rumors that some members
have not been able to receive these benefits unless they
first paid dues to a union. If this is so, we are as shocked
as you must be that this practice is taking place.
We wish to inform you that as an employee of
Daisy's, you are entitled to all the benefits enjoyed by
you and your fellow employees whether you are or are
not a member of any union, and whether you pay or do
not pay any union dues. To deny you these benefits
because you have not joined a union or because you
have not paid union dues is not only unfair to you and
to us , but is completely unlawful and should be
reported.
We repeat, this is your money, regardless of whether
you are or are not a member of any union, or have or
have not paid union dues. Accordingly, we believe you
deserve to be told of your money which we have set
aside for you, and we have taken this opportunity to do
so.
Thank you for your good work during the past year.
Sincerely,
Renato Levi
President
This letter and particularly its reference to "rumors"
appears to have been the first breach in the previously
harmonious relations between Respondent and the Union.7
Menes mailed her letter to Metz and on January 29 Metz
and the Union's business agent , Crost, met with Levi,
Cohen, and Orvieto to protest the letter, stating the rumors
were not true.8 According to Crost, Levi's reply was,
"Okay, so I made a boo-boo, I shouldn't have sent the
letter." Levi's testimony is that he heard the rumor through
his production supervisor, Roberta Satterwhite, who told
him the girls were complaining that they had to be union
members and to have paid their dues to receive vacation
benefits from the Union .9 Ruth Menes, the Union's shop
8 G. C Exh. 3-a is addressed to Ruth Menes , but Levi testified that
when Respondent issued its W-2 form to employees in January 1968, it
issued a similar and accompanying letter to each employee setting forth the
amount placed in trust for each employee
7 There had, at least , been no strikes and no arbitration proceedings
affecting relations between the parties during the bargaining relationship
8 Cohen was Respondent 's office manager, Orvieto was Levi's brother-
in-law.
9 Eileen McGowan testified that when her daughter was leaving for
Germany in 1967 she and her daughter went to the union hall and were
told they were 2 months in arrears in union dues which would have to be
paid before the checks were issued . McGowan stated she made out her
steward, testified that following the issuance of this letter
she received inquiries from employees asking whether Levi
had put their money in trust and how the money would be
paid them.
Subsequently, Respondent held meetings with its em-
ployees on February 23 and March 8 and 18. Ruth Menes,
whom I find was a credible witness,i° testified that all were
held at the lunchroom, and that the first meeting was
attended by union (or unit) employees.ii
At this meeting, according to Menes, Levi mentioned
improvements to the plant and then mentioned a booklet
which he had had printed explaining the benefits which
were received by employees not covered by the bargaining
contract. (These included office employees, stockroom
employees, and maintenance employees.) The booklet was
printed in English and later in Spanish. (G.C. Exhs. 4-a and
4-b.) The booklet was prepared by Eli Cohen, office
manager, who testified that he had spent about 1 1/2 years
working on it and that it was completed in February 1968.
Levi told the employees what benefits the nonunit
employees were getting and pointed to a large cardboard
box which contained some 200 booklets and told the
employees to take one home and read it. Levi testified that
he addressed himself to the nonunit employees, although he
explained that both unit and nonunit employees ate in the
same lunchroom. (The meeting was called shortly after 12
noon, during the lunch hour.) Menes testified to this talk
given by Levi as follows:
Then he went on to speak of a booklet that he had just
had printed and he said that this booklet showed the
benefits that he was giving to his other employees, the
office help and the stockroom, supervisory force, and the
maintenance employees. After he had had it printed he
thought that it was a very excellent booklet and he was
very proud of it and he wanted us to see the booklet so
we could see what his other employees were getting.
A. (Continuing) He told us that he wanted us to
take it home and read it and think about it.
Then he went on to say that he wanted us all to feel
that we were one big happy family with the exception of
a certain few with whom he would never get along with.
He said then that if we had any problems we were not
to discuss them with our co-workers or anyone outside
of the shop, we were to take them directly to the
supervisor first.
Then he wanted us to also know that his door was
always open to us at any time, that he would be glad to
talk to us at any time.
personal check for $ 18 and reported the incident to the other girls at the
plant The Union's bookkeeper , Helen Gutterman , testified that McGowan
and her daughter both received vacation checks in June . (G C Exh. 18-a
through 18-h)
10 In making credibility findings it must be remembered that the
witnesses were testifying to events which took place more than I year
before hearing and that inaccuracies and faulty recollection were
inevitable
ii Levi testified that both unit and nonunit employees attended the
meeting and other testimony indicates that this was the fact. (Menes also
testified that the announcement of the meeting stated it was for all
employees)
DAISY'S ORIGINALS, INC., OF MIAMI 263
Q. (By Mr. Grossman) Did you see any booklet?
A. He pointed to a large cardboard-well, so
big-carton that he had carried upstairs himself and he
told us all to take the booklet and that's when he told us
to take it home and read it. These booklets were there in
that box and everybody took one.
Shortly thereafter a meeting was held at the plant
between Crost, Menes, and the shop committee, represent-
ing the Union and Levi, Satterwhite, Cohen, and Orvieto,
representing the Respondent. Crost protested the distribu-
tion of Respondent's booklet, stating that it was harmful to
the Union, particularly at a time when antiunion petitions
were being circulated in the shop.iz
Levi's reply to the protest was that the booklet had been
in preparation for 2 years and did not damage the Union.
He also stated that he would put a stop to the circulation of
any antiunion petition during working hours. Crost,
according to Levi, asked to speak to two employees who
Crost thought were circulating the petition. They were
called in and their testimony admitting the charge is set
forth infra, Sec. III, C, 2. During this same meeting Crost
asked Levi if he were willing to negotiate a new contract
and Levi told him the request was premature.
During the first week in March, according to Menes, she
had a conversation with Levi and Satterwhite. Her
testimony reads:
Q. What did they say and what did you say, if
anything?
A. Mr. Levi told me that he had noticed that my
attitude had changed within the past couple of weeks
and he told me that my first loyalty should be with the
Company, after all, I worked there and I earned my
living there, and I told him that I-that my first loyalty
would be to the Union and the people that had elected
me and I also told him that I didn't like the fact that he
had put out the letter and distributed the booklet and
was also allowing these decertification petitions to be
circulated in the plant. I said, "I want to know," I said,
"I feel that you are definitely out to break the Union
and before you break the Union in the shop, we will
strike."
Q. What was Mr. Levi's response, if any?
A. Well, he kind of laughed and said, "You go
ahead and strike." He said, "Go ahead, you will see
what will happen."
Q. What did you say, if anything?
A. I asked him what would happen and he said,
"Well, you won't be able to work in another shop."
Levi and Satterwhite deny that such a meeting took place.
On March 8 Levi called a second meeting of his
employees. Levi testified that he read a document (Resp.
Exh. 16) to his employees.13 This document reads:
Reason for talk: Rumors circulating past several days.
I am upset and angry and feel that both you and I have
been vilified and slandered.
I help bring this union into this plant many years ago.
Obviously I am not opposed to collective bargaining.
I have and will continue to do all that the law requires
of me.
However, I am chiefly concerned about the welfare pf
my employees and our company.
There have been rumors of a strike on February 22 and
when we were absent.
I think it would be terribly unfair to you and to us if this
union or some small clique of employees try to strike
our premises.
I feel it only fair to warn that clique that any economic
strike of this company will be subject to immediate and
permanent replacement.
I want to say that I have been very much upset by the
rumors that some small group has started in this plant.
And I want to assure you that your company is not
going to take away any benefits which you enjoy.
Because that is the only way we can both make money
and be happy in our work.
I am more concerned with a profitable return for my
time and for your time than I am for some small clique
of employees or some power group within this union or
any other union.
Therefore I must talk to you to set the record straight.
Apparently these rumors were started as a result of our
issuing the Employees Booklet describing the benefits at
Daisy's.
I said I was proud of this booklet and I still am.
I am proud of the fact that these employees earned
these benefits and they were given to them for that
reason.
There are rumors that since we gave the benefits, we will
take them away.
This is stupid.
We are concerned with keeping good and satisfied
employees.
We cannot do this without paying them well and
treating them with dignity.
We gave the benefits in this booklet because the
employees earned them and because it benefits us as
much as the employees to be well paid and well thought
of.
These benefits are not going to be taken away or
reduced.
Instead they are going to be increased as much as
possible and as quickly as possible.
It has always been my position that a company cannot
exist except for the employees, and cannot make money
unless the employees make money and are happy with
their jobs.
A company cannot progress unless the employees
progress.
and I am determined to continue progressing.
and I am determined to keep the employees progress-
ing.
I am angry and puzzled by the little political groups that
have tried to disrupt our shop.
And I assume that you are just as angry.
As I explained to you before, there has been a consistent
12 This is the first indication in the record that antiunion petitions were
being circulated
13 Menes testified to what Levi said and her testimony does not differ
substantially from Resp . Exh 16. Menes was testifying from a recollection
going back more than I year
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rumor that the employees under the ILGWU contract
cannot get benefits unless they are members of the
union.
This is a he.
And I believe it is a terrible thing for anyone to mislead
you in this manner.
I want to state clearly that your union membership or
lack of union membership is your business.
But any employee working here will get all the benefits
that the other contract employees get, regardless of
whether they are a member of the union, or are not
members of the union or if they withdraw from the
union.
And regardless of whether or not they have signed or
have revoked a union dues checkoff card.
It is unlawful to force you to join a union in the State of
Florida.
And if anybody tells you anything to the contrary they
are lying to you.
There have also been rumors that certain employees
have been threatened and coerced by various other
employees or any other persons.
I will guarantee you that this will be stopped in this
shop.
If there are any instances of this occurring, I want you
to report them to me and I will take care of it.
Also if any supervisor or management representative
threatens or coerces any of you about the union let me
know about that and I will take care of it.
In conclusion I want to repeat that the 35 hour work
week will never be taken away no matter what.
Daisy's Originals Inc. did not come this far by not
treating people well.
Menes did testify that at this meeting Levi apologized to
the employees because he had not had the booklet
translated into Spanish and distributed translations at the
meeting. A cutter named Gus Rodriguez (cutters were
included in the bargaining unit) asked Levi if he would be
eligible to receive insurance as provided in the booklet and
Levi told him he would have to make up his own mind and
go either way gesturing with his right and then with his left
hand. When Menes asked Levi what decision the employ-
ees had to make he told her, "Don't vote for the Union." i4
Levi testified that when Rodriguez asked him about
receiving insurance benefits Levi told him he could not
receive them, that Levi had paid his welfare benefits to the
Union and that he should go to the Union, and that the
booklet benefits were for nonunion employees. Levi denied
mentioning voting for or against the Union or going one
way or the other.
A third meeting was held on March 18. The employees
were notified by Satterwhite about 3:30 to go to the
lunchroom where, in addition to the usual representatives
of Respondent,15 Attorneys Bruckner and Greene were
present. Again Levi read a brief, prepared statement (Resp.
Exh. 17). This read:
First, I must tell you why it was necessary to call this
meeting at this time, and why none of you can work
overtime this afternoon.
As you know, we have been working overtime fairly
consistently lately, but last Friday I received this
telegram:
(Read Telegram)
Since our contract with the Union has not yet expired,
then we cannot give you overtime work this afternoon. I
called this meeting because as you undoubtedly know, I
have received confidential petitions and letters signed
by most of you, saying that you do not want to be
represented by ILGWU.
In fact, a clear majority of you have sent these letters
and petitions to me and the names are still coming in.
Since this is such a complicated area, and since I
WANT TO MAKE ABSOLUTELY SURE THAT
ALL OF YOU GET ALL THE BENEFITS TO
WHICH you are entitled, i have called in our labor
lawyer to explain what is going on to you.
The telegram referred to (Resp. Exh. 18) read:
Daisys Originals Inc. 6270 North West 37 Ave Miami
Flo please be advised that under no circumstances will
the union authorize overtime work for any of your
employees on Monday March 18 1968. This is because
of a meeting called by the union for the employees in
your shop
Local 415 International Ladies Garment Workers
Union AFL-CIO (51).
Alan A. Bruckner testified that he read from a prepared
talk but abandoned it when he was interrupted by
questions. According to Bruckner he read the following
portion of his prepared talk (Resp. Exh. 21):
We have been informed by your management, Mr.
Levi, that he has received a considerable number of
letters and petitions signed by employees stating that
,they no longer desire to be represented by the Union.
These petitions and letters are still arriving and are
being kept in strict confidence. We have closely
examined these letters and petitions and have deter-
mined that they do in fact represent a clear majority of
the employees. Obviously where the Company, as is the
case here, has been notified by a clear majority of the
employees that they do not wish to be represented by
the Union, then the Company may not and as a matter
of law cannot continue to recognize that Union.
Accordingly we are notifying the Union immediately
that under these circumstances we will comply with the
wishes of the majority and we will not continue to
recognize the Union.
A copy of this communication will be posted on the
bulletin board as soon as it is dispatched.
When Bruckner was interrupted and discontinued his
speech there were questions from the floor which he
attempted to answer.is A number of employees led by
Menes then left the meeting and the meeting was
terminated. Those employees who left the meeting returned
14 This testimony is corroborated, in substance, by that of Gustavo 16 Menes testified that she asked Bruckner how he could decertify the
Rodriguez Union without going through the National Labor Relations Board
15 Levi, Satterwhite, and Cohen attended all the meetings together with According to Menes, Bruckner did not give her a direct answer
Respondent 's lower echelon supervisors
DAISY'S ORIGINALS, INC., OF MIAMI
to work but were told by Satterwhite that they must either
return to the meeting or check out. At least 10 employees
checked out and were not paid for the last 15 minutes of
working time on that day.17
Exhaustive testimony was taken respecting the majority
status of the Union, whether Respondent's unfair labor
practices contributed to such loss of majority and whether
Respondent had a good-faith doubt of the Union's
majority.
The Union's checkoff list for the period of February,
March, and April, 1968 (G.C. Exh. 5-g) shows that 90
employees were on checkoff in February, 91 in March, and
84 in April. It was stipulated at the hearing that from March
1 until May 31, 1968, there were 108 employees in the
bargaining unit.18 The General Counsel concedes that
during the period between January and March 8, 1968,19
some 15 letters were submitted by employees disavowing
their union representation. Therefore, prior to March 8,
some 76 employees on checkoff could fairly be counted as
still designating the Union as their bargaining representa-
tive.
Between March 8 and 18, the date when Bruckner
informed the employees Respondent would no longer
recognize the Union (although it would abide by the
contract until May 31), Respondent received 16 letters,
purportedly from union members indicating they did not
wish to be recognized by the Union. (All but two of these
letters were dated March 8 or 9.) 20 During this same period
Respondent received 10 so-called petitions signed by 54
employees stating they no longer wished representation by
the Union. (G. C. Exh. 8-nn through 8-ww.)21 Eight of
these petitions, prepared in the same handwriting, were
dated March 12 and two were dated March 16. Considering
only the letters the record establishes that, by March 18, 60
employees could be counted as continuing their designation
of the Union. This, however, is still a majority. Considering
the petitions 54 had withdrawn of a total of 108, leaving the
Union without a majority. In addition two employees
signed letters of withdrawal although their names do not
appear on the petitions. (Felita Morales and Manna Pulley,
G. C. Exhs. 8-q and 8-11.) Felicita Morales denied that the
signature on General Counsel 8-q was hers but admitted
that the signature on another letter of repudiation
addressed to Levi was hers. I would therefore add these two
employees to those repudiating the Union prior to March
18.22
Bruckner in his brief talk to the employees on March 18
(Resp. Exh. 21, supra) told them that Respondent would no
longer recognize the Union. I find this the date on which
Respondent refused to bargain with the Union.
On March 19 Respondent, through Bruckner and
Greene, sent Respondent the following letter (Resp. Exh.
12):
17 This is alleged as a violation of Sec 8 (aX3) and is discussed infra
18 G C Exh 9 Resp Exh 10 also states that there were 108 employees
in the bargaining unit on April 4, 1%8.
19 The General Counsel apparently fixes March 8 as the date upon
which majority status should be determined
20 In making this computation I have discounted two letters which
appear to have been written by nonunion employees.
21 Respondent , in its brief, states that 59 valid signatures of employees
repudiating the Union were received but does not indicate how his
March 19, 1968
Local415
International Ladies Garment Workers Union
2841 N.W. Second Avenue
Miami , Florida 33127
Gentlemen:
265
In order to comply with the applicable requirements
of the National Labor Relations Act, as amended, and
to preclude the automatic renewal of the collective
bargaining agreement currently in effect between
Daisy's Originals, Inc. and Local 415 ILGWU, this
letter will serve as written notice of the employer's
intent to terminate the said agreement upon its
expiration date of May 31, 1968.
Additionally, we wish to inform you that a majority
of the employees within the bargaining unit have
unequivocally declared that they do not wish to be
represented for purposes of collective bargaining by
your organization.
Sincerely yours,
Bruckner & Greene
Attorneys for Daisy's
Originals, Inc.
By
ADG:saf
cc. Daisy's Originals, Inc.
The Umon responded by letter dated March 26 (G. C.
Exh. 7-a) directed to Respondent. It reads:
March 26, 1968
Daisy's Originals, Inc.
6270 N. W. 37th Avenue
Miami , Florida 33147
Re: ILGWU - Daisy's Originals, Inc.
1968 Negotiations
Gentlemen:
As you know, the existing contract between Local No.
415, International Ladies' Garment Workers' Union
and your company expires by its terms on May 31,
1968. Pursuant to Article XXXIV of the contract, you
are advised that my client, the Umon, desires to change
and modify the terms of the existing agreement.
Therefore, we hereby make demand upon you to
participate with us in negotiations designed to secure a
collective bargaining agreement which shall become
effective June 1, 1968. Within a few days we shall
computation was made
22 The petitions indicate that they were signed by 18 employees who
were not on checkoff Therefore the computation has been based on the
total of 108 employees within the bargaining unit On the basis of her own
testimony I have disregarded the repudiation letter of Adell Olliff, see infra
My final computation is that 55 authentic repudiations of union authority
were received from the total unit of 108 . The Union did not, on March 18,
represent a majority of the employees in the appropriate unit
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
furnish you, in writing, with a list of our demands for
inclusion in the new contract.
This office has received the letter from Messrs.
Bruckner and Greene dated March 19, 1968, in which
letter your lawyers take the position that a majority of
the employees within the bargaining unit have
"unequivocally declared that they do not wish to be
represented" by my client. Our response to this is:
1. The statement is untrue.
2. The overwhelming majority of your employees are
Union members, and they continue to desire the
Union's representation.
Daisy's Originals, Inc.
March 26, 1968
Page Two
I propose the following times and places for the initial
negotiating session and would appreciate your advising
the Union or the undersigned as to which time and
place is most convenient to you.
Tuesday, April 2,1968,4:00 P.M., my offices;
Wednesday, April 3,1968,4:00 P.M., my offices,
Friday, April 5,1968,2:00 P.M., my offices.
Sincerely,
KAPLAN AND SHAPIRO
By
Herbert L . Kaplan
uix/ig
Certified Mail-Return
cc Mr Harry Metz
Receipt Requested cc. Mr . Morton Shapiro
cc Bruckner & Greene,
Raga. (Certified
Mail- RaR ) cc Mrs Ruth Menes (To
be posted on Union
bulletin board.)
On March 29 Respondent replied (G. C. Exh. 7-e) offering
to submit its evidence to an impartial third party.
On April 2, Kaplan wrote Greene (G. C. Exh. 7-b)
protesting Respondent 's conduct and received a reply from
Greene on April 4 (G. C. Exh. 7-c.) The letters, while
vituperative , contribute little to the issues . On April 4
Respondent filed a representation petition with National
Labor Relations Board (Resp. Exh. 10). The Union did not
agree to an election , asserting the contract as a bar and the
petition was withdrawn.
On May 3 the unfair labor practice charges were filed and
on the same day the Union struck.
2. Respondent's knowledge or sponsorship of the
antiunion letters and petitions
Paragraph 8(b) of the complaint alleges:
23 Trial Examiner hereby corrects the spelling of Crost to Krost
24 The first petitions , as distinguished from the letters, were dated
March 12, after the date of this meeting.
25 Respondent 's Employees Booklet contained , Chapt. V, p 11, par. 6,
the following provisions.
Solicitation of employees, of any kind, during working times if
prohibited Distribution of literature of any kind at any time in
Beginning on or about February 1, 1966, and continu-
ing thereafter , Respondent permitted employees on
Respondent's premises to prepare, and solicit signatures
of other employees to letters and petitions to Respon-
dent stating that the signatory did not wish to be
represented by the Union, with the knowledge of said
activity by President Levi and Production Supervisor
Satterwhite, and despite protest thereof by the Union to
Respondent.
After Levi's first talk on February 23, Krost,23 when he
protested the distribution of Respondent's booklets, told
Levi that antiunion petitions were being circulated in the
shop. Krost stated Levi told him he was unaware of this.24
Later, after the March 8 meeting, Krost again informed
Levi that antiunion petitions were being circulated and two
employees, charged by Krost with circulating the petitions,
were called in. These were employees Antonia De Los
Reyes and Eleanor Lepn.
De Los Reyes admitted, according to Krost, that she had
been circulating antiunion petitions and Levi's reply was
that she had a right to do it. De Los Reyes testified that all
the petitions which were signed in her presence were signed
on nonworking time. Lepn was not called as a witness.25
General Counsel offered the testimony of employee
witnesses to establish that solicitation occurred within the
plant during working hours. Julia Diaz testified that after
the first meeting she approached De Los Reyes at her
machine while Reyes was working and that Reyes told her
that the only way she could keep working was to "sign a
letter to get the union out of the factory." The time was
fixed as "close to noon." Diaz made no reply. Two weeks
later Diaz met Reyes at a water fountain and De Los Reyes
again asked her to sign an antiunion letter. Diaz told her
she would not sign such a letter without reading it first and
asked De Los Reyes to bring it to the parking lot the next
day. De Los Reyes did not bring the letter and, according to
General Counsel's exhibits, Diaz never signed a letter or a
petition repudiating the Union. Accepting Diaz's testimony
in full it does not even suggest management knowledge or
approval of the activity of De Los Reyes by Respondent.
Maria Miller testified that Eileen McGowan, another
employee,26 came to her between the first and second
meetings and told her she was wanted on the second floor.
There Miller met Felicita Morales and Aurora Salvat who
took her into the lunchroom. There she was asked to sign
the "company's paper," told she would lose her job if she
did not and that she was the last one to sign. No "paper"
was offered to her to sign and she never signed a letter or
petition. Again, accepting Miller's testimony, there is no
evidence that any representative of management had any
knowledge of the incident.
Malcolm MacNeil, a cutter, testified that in a period of
time fixed as between the second and third meetings,
Satterwhite and Harold Bottorf, a supervisor of the cutters,
were having a conversation and that Bottorf called to him,
working areas is prohibited
The rule, as to the distribution of literature , is presumptively unlawful
under Walton Manufacturing Company, 126 NLRB 697, 699. This issue,
however , was neither pleaded nor litigated
26 To the extent that the antiunion employees had a leader, McGowan
was it
DAISY 'S ORIGINALS , INC., OF MIAMI 267
"Mac, notches ." This meant , according to MacNeil , that he
had failed to make the notches on one of his bundles. He
went upstairs where the bundles were and Eileen McGow-
an asked him to go into the lunchroom . She gave him a
paper to sign and he refused to sign . When he returned to
the cutting room he told another cutter he had been asked
to sign a paper against the Union and had refused. He
reported this incident to the steward for the cutters.
Satterwhite 's testimony simply stated that she saw
MacNeil go upstairs and make notches and did not know
what he did thereafter . Bottorf did not testify respecting
this incident . McGowan agreed that this incident took
place on working time but denied that either Levi or
Satterwhite told her to ask MacNeil to sign the petition. I
credit McGowan on this point and again find that there was
neither knowledge of nor participation by Respondent in
this solicitation.
Mable Schleyer testified that between the second and
third meetings an employee named Pearl DuVall asked her
to sign a paper stating the employees did not want the
Union to represent them . Schleyer testified that the request
was made on working time and that she refused . Thereafter,
according to Schleyer , she had personal problems with
DuVall in their working relationships . Satterwhite, a day or
two later called Schleyer to her office and asked her what
the trouble was between DuVall and her. Schleyer
mentioned the paper incident and told Satterwhite there
was tension in the shop . Satterwhite told her she would be
glad when it was over and she (Satterwhite) could get rid of
some of the girls . Thereafter Satterwhite criticized her work
and "hollered" at her . This testimony I find too ambiguous
to support any conclusion.27
Angelina Mesa testified that after the first meeting she
had a conversation with Angeline De Los Reyes in her car
at lunchtime (the topic of conversation was not revealed); a
few weeks later she had a conversation with Carmen
Fernandez as they passed on the stairs; and when she went
upstairs she found the girls were signing an antiunion
petition . Fernandez asked her why she did not sign and she
made no reply . A few days later she signed Salvat's petition
in the lunchroom but on working time (G. C. Exh. 8(a)). No
representation of management was present.
Gustavo Rodriguez , a cutter , testified that he had a
conversation with Antonia De Los Reyes about a week
after the second meeting during lunchtime . Later he
testified that De Los Reyes called him outside after
lunchtime and then that the conversation took place in a
room in the plant . De Los Reyes told him he should sign the
antiunion petition because the company "were nice
people ." He told her he could do nothing because he was a
member of the Union. When he returned to his work
station his foreman , Harold Bottorf , asked him where he
had been and he told Bottorf a lady had asked him to sign
an antiunion petition . Bottorf said nothing . De Los Reyes
testified that the incident took place on the parking lot
during lunchtime and that she thought she got back on
time . Bottorf denied that Rodriguez was late for work but,
27 Specifically , I do not find that Satterwhite's remarks established a
threat to fire union members
28 Resp Exh . 20-a through 20-n
29 Satterwhite testified that she and Olliff had been friendly for 10
years If this were true it would be even more difficult to believe that Olliff
more important , Respondent introduced the timecards of
Rodriguez to show that he was not late returning from the
lunchbreak during that week .28 I do not find that the
solicitation , such as it was, took place on working time.
Daniel Benitez, a bundle boy, testified that sometime
before the third meeting Morales asked him to sign the
antiunion petition and he refused . The request was made
during working time . About 10 days later , Abe Joseph,
another employee , asked him to sign "against the Union"
and he refused . His testimony is uncontradicted.
Adell Olliff testified that she had a conversation with
Satterwhite in the plant on March 15 in which Satterwhite
told her she had heard she (Olliff) was going to walk out
and asked her to stay with her . She then told Olliff to get on
the bandwagon and that she had better sign up because
they had just about enough names.
On Sunday , March 17, Olliff called Satterwhite to ask
what she meant and Satterwhite again told her to stick with
her and told Olliff to get her name on the paper because
"they had just about enough to do what they wanted to do."
Satterwhite 's testimony was that she did not refer to any
bandwagon but may have referred to a "gravy train," an
expression used to denote work that was easier than
average . She explicitly denied telling Olliff that she should
stick with her and that she would not regret it. She added,
"I very well know that I was not supposed to discuss
anything with employees pertaining to the petition." She
denied having any telephone conversation with Olliff on
Sunday , March 17.
Despite Satterwhite 's denial and despite the fact that this
is the only witness who testified that Satterwhite encour-
aged her to sign the antiunion petition-I have no difficulty
in finding that by "signing up" Satterwhite meant signing
the antiunion petition-I credit Olliff's testimony. I do not
believe such testimony was a complete fabrication.29
About 10 or 15 minutes after Olliff's telephone conversa-
tion with Satterwhite she received a call from De Los Reyes
and received a visit from her about 6 p.m. De Los Reyes
denied that she had been talking to Satterwhite and asked
her to sign the antiunion petition and Olliff signed, at the
same time telling her, "I am going to sign this paper , but let
me tell you one thing , this is one thing I am not signing
against because I don't like it." She later added that she was
signing just to get "them" off her back . Under the
circumstances I do not find this a valid renunciation.30
This is the testimony upon which the General Counsel
relies to establish knowledge on the part of Respondent that
antiunion activity was taking place.
D. Conclusions
1. The contract, the speeches, and the booklet
The substance of this case rests on the 8(a)(5) allegation.
The authoritative word on this issue, where the Union has
obtained a majority and Respondent has made a fair
election impossible, is N.L.R.B. v. Gissel Packing Company,
would perjure herself to damage Satterwhite.
30 Had Cliff been signing a union authorization card on behalf of the
Union as unambiguous as the statement of repudiation, her testimony as to
her subjective reasons for signing would have been rejected and the card
counted.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inc., 395 U.S. 575, The Sinclair Company v. N.L.R B., 395
U.S. 575. The facts in the instant case are not squarely
apposite with those decided by the Supreme Court in Gissel.
Here the Union had not, through organizational efforts,
obtained a majority of signed authorization cards and then
see that majority dissipated through the unfair labor
practices of the Employer. This Union had obtained both
recognitional and contractual status and maintained that
status over a long period of years. In January, February,
and March, 1968, it had checkoff authorizations from 90,
91, and 89 employees in the appropriate unit. On March 18,
1968, Respondent had received letters or petitions repudiat-
ing the Union's authority from 55 of the 108 employees in
the unit. While the facts are different I do not find them
distinguishable as to rationale and I would find the Court's
decision in Gissel controlling here.
Thus the issue squarely presented is whether the Union's
loss of majority was due to Respondent's unfair labor
practices. (The issue of the means by which majority status
was obtained is not before me.) I find that it was for the
following reasons.
1. The first breach of good faith occurred when counsel
for Respondent substituted his own page 9 for the same
page of the Union's proposed contract thereby cloaking the
contract with illegality.31 While this maneuver favored the
union members of the unit as against the nonunion
members, it also placed the Union, albeit unknown to it, in
the position of being party to an unlawful and discriminato-
ry contract. Inevitably this discrimination, newly imposed,
would ultimately damage the Union's prestige within the
unit and serve to create dissatisfaction with the Union as a
bargaining agent . It is true that when the unlawful clause
was discovered by its present counsel, Bruckner and
Greene, restoration was prompt, but it is equally true that
the fact that the contract contained an unlawful clause was
offered by counsel for Respondent as sufficient to rebut the
presumption of the Union's majority status. I do not find
that because of this clause the Union did not represent an
uncoerced majority of the employees.32 The remedy for the
unlawful clause was by way of full payment for nonmem-
bers to the trust, voluntarily, as here, or by issuance of
complaint under the appropriate sections of the statute. The
question of the majority status of the Union is an entirely
separate issue . I am not, of course, making any finding of a
violation of the Act on the part of Respondent based on the
illegal contract.33 I do think that Respondent's conduct
with respect to the contract is a factor to be evaluated in
appraising its overall conduct.
2. In January 1968, Respondent dispatched a letter to
its employees attached to its W-2 form. (G.C. Exh. 3-a,
supra.) In this letter President Levi referred to the fact that
Respondent had heard rumors that unit employees would
not receive benefits unless they had first paid dues to the
Union. (Levi actually referred to members, not unit
31 The contract as executed by the Respondent was in violation of Sec
8(a)(1) and (3) of the Act . Since the complaint contains no such allegation
and it has not been urged by the General Counsel either at the hearing or
in his brief, no finding is made.
32 I find the situation clearly distinguishable from that in which
employees are forced to join a union under an unlawful union -security
clause.
33 The complaint contains no such allegation
employees.) Levi expressed shock and informed the
employees that they were entitled to all the benefits whether
they were members or not and whether they paid dues or
not. This was an accurate statement of Respondent's
position. Respondent's reference to rumors, however, can
only be taken to mean that it had heard rumors that the
Union was not conforming to this policy and was acting in
derogation of the statute . Examining Respondent 's eviden-
ce of such "rumors" the record indicates that only two
employees, McGowan and her daughter Shawski, claimed
to have been deprived of benefits because they had not paid
dues. On the record I have found McGowan's claim
unsupported. It should also be noted that McGowan
claimed her vacation pay was denied in June 1967. While
she may have, as she testified, told other employees of her
failure to receive vacation benefits it is difficult to believe
that her single claim (which included that of her daughter)
could have survived to support a rumor in January 1968.
There is no evidence that any other employee, whether
union or nonunion was denied any benefits due under the
contract . I therefore find that Respondent's reference to
rumors were unsupported by any facts and that the
reference was intended to denigrate the Union in the eyes
of its employees.34
3. On February 23, Respondent, through Levi, had its
first meeting with the employees, a meeting attended by
both unit and nonunit employees. Prior to this meeting
Respondent had received letters from some, although far
from a majority of its employees, stating they no longer
wished to be represented by the Union. To this meeting
Levi brought a large cardboard box containing the
statement of benefits for nonunit employees. Although Levi
stated that he directed his explanation of the benefits to
nonunit employees it would have been difficult if not
impossible for him to segregate remarks made in the
presence of both groups. While the unit employees may
have and probably did understand that the benefits were
av#ilable to nonunit employees only the matter does not
rest there. Had Levi wished to confine his explanation of
benefits to the nonunit employees he could have done so at
a meeting restricted to the nonunit employees.35 Further, it
would hardly have been necessary to prepare 200 booklets
for the 50-odd nonunit employees. I think it apparent that
the meeting and the distribution of the booklet were
designed in part to impress the unit employees with
benefits. Respondent was voluntarily granting its nonunit
employees. While a clause-by-clause comparison of the
benefits with those contained in the contract makes total
evaluation difficult , I find that in the important categories
of paid sick leave , life insurance , accidental death , hospital
benefits , and surgical benefits those contained in the
booklet were significantly greater than those set forth in the
contract.36 Insurance and medical benefits have become
vital factors in employee working conditions and I
34 The only reasonable conclusion that any employee could draw from
this letter was that Respondent had heard rumors that the Union was
denying benefits to employees and that Respondent was advising them that
they were entitled to such benefits.
31 Levi's reasons for not holding a separate meeting are not only
contradictory, but implausible.
36 G C. Exh 4-a, pp. 4 and 5 , Resp. Exhs. 2 and 8 , and G.C. Exh. 5-f
DAISY'S ORIGINALS, INC., OF MIAMI 269
therefore find this disparity significant. I think that at this
meeting Respondent continued its efforts to create
dissatisfaction and dissension among the unit employees,
including the union members.
4. At the second meeting held on March 8, Levi,
according to his testimony, read from a prepared text,
supra, sec. III ,c,l, and at this meeting the Spanish
translations of the "Employees Booklet" were distributed.
In this speech Levi again referred to rumors that unit
employees could not get the contract benefits unless they
were members of the ILGWU and denounced the rumor as
untrue. I find this statement a continuation of Levi's efforts
to denigrate the Union. He also referred to rumors of a
strike on February 22 by a "small clique" of employees,
although the record supports no such threat.37 The general
import of Levi's remarks was that Respondent would
protect the rights of its employees despite rumors spread by
the Union to the contrary. In the absence of evidence of
such rumors, I find the March 8 speech part and parcel of a
campaign, perhaps subtle and sophisticated, to increase
dissension on the shop and weaken the Union's bargaining
power.
I find credible the testimony of Menes, supported by
Rodriguez, that when Rodriguez asked if he were eligible
for insurance he was told by Levi that he would have to go
one way or the other, indicating by a wave of the booklet he
held in his hand. The only reasonable inference to be drawn
is that Rodriguez could stay with or leave the Union. This
inference is, of course, subject to attack since the benefits of
the booklet were for nonunit, not nonunion, employees.
Levi, however, was a volatile character (from my observa-
tion) not always given to fine rationalization before
speaking. I also credit Menes that, when she asked Levi
what other decisions the employees had to make, he told
her not to vote for the Union.
5. On March 18 Levi made another short speech to his
employees prior to introducing Bruckner and Greene, his
attorneys. In this speech he referred to the petitions and
letters he had received from employees stating they no
longer wanted to be represented by the Union, supra.
Bruckner then spoke from prepared notes, supra, and advised
the employees that since Respondent had been notified by
a "clear majority of its employees that they no longer
wished to be represented by the Union it would no longer
recognize the Union." There then followed the correspond-
ence between the parties in which Respondent declined to
recognize the Union and in which the Union demanded
bargaining negotiations. (Resp. Exh. 12 and G.C. Exh. 7-a.)
Other correspondence followed (G.C. Exh. 7-b, 7-c, 7-d,
7-e, 7-f, 7-g, and 7-h) in which the position of the parties
became fixed. Respondent, while offering to have its
evidence of repudiation of the Union submitted to a third
party, refused to bargain. Respondent also, during the
period following March 18, filed a petition for a
37 Menes , the shop steward and clearly the leader of the prounion
employees , testified that she had heard no such rumor
39 There is no disclosure in the record of any reason why the employees,
having enjoyed the benefits of collective bargaining over such a period of
time , should suddenly repudiate its authority Having read the testimony of
the witnesses respecting solicitation of repudiation letters, I find that the
only arguments advanced were that the Respondent was a "good
company" and that the employees did not need the Union I can only
representation election with the Board which, upon advice
from the Region, was subsequently withdrawn.
Conceding, as one must , that the issue presented is as
close as might be found, I find Respondent violated Section
8(a)(5) of the Act. Since the issue, both as to law and fact, is
so close I do not believe extended dissertation by the Trial
Examiner will contribute to the disposition of the case. The
case properly goes to the Board for application of its
expertise and then to the Court of Appeals for review. In
finding Respondent guilty under the statue I do not find
that the unfair labor practices committed were sufficiently
flagrant so that an election could not be held or should be
set aside under the Gissel rule. I would, however, lower the
requirements of Gissel where the parties have engaged in
collective bargaining for a period of some 14 years and the
Union has been dispossessed of its bargaining status by
Respondent's conduct, whether or not in flagrant violation
of the Act.38 This is stretching Gissel to its farthest reaches,
but where a Union has enjoyed continuous bargaining
status I would apply a different standard than to those
cases, which involved initial organizing activity in nonun-
ion plants, which were before the Court in Gissel.
I also find that the strike of the employees on May 3 was
in direct response to Respondent's refusal to recognize the
Union. In accord with my findings above I find the strike
an unfair labor practice strike.
2. Sponsorship of the repudiation petitions and
letters
The record does not disclose either who or what
provoked the letters and petitions circulated to revoke the
Union's authority to represent the unit employees.
Examining the testimony of the General Counsel's
witnesses thoroughly I find no evidence, with the exception
of the testimony of Olliff, that any representative of
management participated in or was a witness to any of
these solicitations. If the employees' testimony is to be read
fairly it indicates that such solicitations occurred where
they would not be observed and were conducted surrepti-
tiously. The fact that an antiunion letter or petition may
have been signed on company time does not render it
invalid nor, ipso facto, convict the Respondent of either
knowledge or complicity 39 I find no Board decisions
indicating the proper guidelines for an employer in such a
situation after he has been made aware that antiunion
activity is taking place on his premises. The cases are in
agreement that where the employer either participates in or
sponsors such activity particularly if disparate restraints are
placed upon union activity on his premises , he violates
Section 8(a)(1). I do not find cases which define the
employer's responsibility to police his own shop and which
weigh his compliance with such responsibility. Having
found that only 1 employee of the 108 within the bargaining
unit was approached by a representative of management
speculate as to by whom these ideas were implanted in the minds of
employees or as to why such a spontaneous revolt should have arisen at
such a fortuitous time No finding has been made on such speculation
39 I cannot agree with the contention of the General Counsel, advanced
at the close of the hearing , that an employer is responsible for every
antiunion statement made on his premises during working time This
statement was made during a heated argument and was not urged in his
brief
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the suggestion that she sign an antiunion petition, I
find that Respondent neither participated in, sponsored, or
condoned the circulation of either the letters or petitions. I
recommend that the paragraph 8(b) of the complaint be
dismissed.
As to other alleged violations of Section 8(a)(1) I find no
evidence to support paragraphs 8(h), (i), and (j) of the
complaint.40 I do, however, find that Levi's statement to
Menes that if she went on strike she would be blacklisted
from employment in the industry a clear violation of
Section 8(a)(1). I also find his statement to Menes that if the
employees wanted to enjoy the benefits set forth in the
"Employees Booklet" they should vote against the Union a
violation. I also find that by indicating to employees at the
March 8 meeting that they could enjoy the superior benefits
of the booklet if they were not covered by the contract
Respondent violated Section 8(a)(1) of the Act.
It should be added that not every contention raised by
the parties at the hearing and in their briefs, multitudinous
and multifarious as they were, has been disposed of in this
decision. No contention was too minor, isolated, or trivial
to warrant litigation. Where no specific finding has been
made it is because the Trial Examiner considers the issue
irrelevant , the testimony insubstantial , or the issue lacked
impact on the major issues.41
Directed by the Board 42 to take testimony not included
within the scope of the complaint, I have considered that
testimony and find [that it] not only exceeds any
reasonable scope which might be given the complaint but is
also irrelevant and incompetent. It has been disregarded in
the making of findings herein.
Counsel for Respondent raised the issue that the strike
which started on May 3 was in violation of the contract and
that the employees joining the strike lost their status as
employees.
The contract between the parties contained the following
clause:
ARTICLE XXVIII : NO-STRIKE , NO-LOCKOUT
PLEDGES
The Union agrees that it will not call, authorize or
ratify a strike or stoppage during the life of this
agreement , except for the Employer's failure to submit
to arbitration or to comply with the decision of an
40 Par 8(h) presumably refers to an argument between Levi and
Rolando Rodriguez discussed, infra.
41 I have , e.g, disregarded the testimony of Rolando Rodriguez, the
cutter 's steward , respecting his argument with Levi concerning layoffs The
argument was brief but heated and bore no relation to the substance of the
case. Not every argument between a steward and management can be
converted into a violation of the Act because hasty and intemperate
language was used.
42 The General Counsel took special appeal from a ruling of the Trial
Examiner that the testimony of an employee as to what was said at a union
meeting could be used to establish whether a stoke was an unfair labor
strike or economic strike (This, at least, is the only purpose I can find in
the offer of such testimony) The fact that the employees went on strike
was clearly established . Their testimony as to their reasons would be
merely self-serving If the Board wishes to state that such testimony is
either relevant to or perhaps binding upon a Trial Examiner's finding on
that crucial question then this case provides the proper vehicle The Trial
Examiner also refused testimony respecting letters of resignation sent the
Union after the strike vote by nonstriking employees It was not alleged in
the complaint that these letters were sponsored by Respondent or that
arbitrator. Should an unauthorized strike or stoppage of
work by Union members occur, the Union's sole
obligation shall be to endeavor in good faith, within
twenty-four (24) hours after receipt of notice by
registered mail, thereof from the Employer, to bring
about the return to their work of its members who have
stopped work. Upon the failure of any employees to
return to work within said twenty-four (24) hour period,
the Employer may at its option consider that such
employees have abandoned their employment; but
should the Employer reemploy such employees, it shall
treat all such employees alike and shall not discriminate
among them. Compliance by the Union in good faith
with this provision shall be deemed full compliance with
the Union's obligation hereunder.
The Employer agrees that it will not order, authorize
or ratify a lockout during the life of this agreement.
Should a lockout occur, the Employer's sole obligation
shall be to endeavor in good faith, within twenty-four
(24) hours after receipt of notice by registered mail,
thereof from the Union, to terminate the lockout and to
reemploy the employees. Upon the failure of the
Employer to do so within said twenty-four (24) hour
period, the Union at its option may treat the matter as a
dispute to be determined under the machinery for
adjustment of disputes, as provided in this agreement,
or may consider that the Employer has forfeited its
rights under the agreement.
I find this clause totally irrelevant to the issues before me.
Concern must lie with the status of employees on March 18,
the date when Respondent refused to bargain. If the
obligation existed on that date the subsequent conduct of
the employees could not forfeit it. Whether or not the
striking employees might have forfeited another right, i.e.,
their right to reinstatement after an unconditional offer to
return must be decided when that question is presented.
The Violation of Section 8(a)(3)
As it has been set forth, supra, Respondent, through
Satterwhite, told all employees who left the meeting of
March 18 that they could either return to the meeting or
check out. Some 1043 employees checked out and were
docked for 15 minutes in lost time.
It was the contention of the General Counsel that it was a
Respondent participated in their preparation and delivery Since that
General Counsel had almost I year in which to investigate his case between
the filing of the charge and the hearing and made no motion to amend his
complaint it would appear that , were he not the General Counsel, he might
be guilty, among other things, of lathes
The Board predictably, ex parse and in camera, overruled the Trial
Examiner and directed he take such testimony The telegraphic
correspondence relating to the appeal has been set forth as Appendixes B,
C, and D . (G C Exh 10, 12 , and 13 ) Neither the pleadings nor the record
was before the Board when the ruling was made nor was the ruling signed
by any Board member The only name appearing in the telegram of
reversal was that of John C. Truesdale , Assistant Executive Secretary of the
Board While the Trial Examiner is aware that the Office of the Executive
Secretary would not overrule a Trial Examiner without at least notice to
the Board Respondent's counsel is not always privy to the processes of the
Board Had either the authenticity or the authorization of the telegram
been questioned a difficult problem would have been posed
93 This is the number named in the complaint as discriminatees under
Sec 8(a)(3) of the Act
DAISY'S ORIGINALS, INC., OF MIAMI 271
violation of Section 8(a)(3) of the Act to require employees
to attend a meeting at which the Respondent engaged in
conduct in violation of Section 8(a)(1) of the Act or, in the
alternative, to check out despite their willingness to work.
Regardless, I would find that the loss of 15 minutes in
working time constituted, if it constituted any violation at
all, a de minimis violation of the Act. I would therefore
recommend dismissal of the allegation respecting Section
8(a)(1) in its entirety.
APPENDIX B
ALAN A. BRUCKNER , ESQUIRE
232 SECURITY TRUST BUILDING
119 EAST FLAGLER STREET
MIAMI , FLORIDA 33131
ALLAN GREENE, ESQUIRE
232 SECURITY TRUST BUILDING
119 EAST FLAGLER STREET
MIAMI , FLORIDA 33131
IV. THE REMEDY
Having found Respondent engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
and (5) of the Act, I shall recommend that it cease and
desist thereform and, upon request, bargain collectively
with the Union.44
I shall also recommend that it take certain affirmative
action necessary to effectuate the policies of the Act.
Upon the basis of the foregoing findings and conclusions
and the entire record herein, I make the following:
CONCLUSIONS OF LAW
1. By telling an employee that she would be blacklisted
from employment in the industry if she went on strike; by
telling an employee in the presence of other employees that
if she wanted the benefits granted nonunit employees she
should vote against the Union and by indicating to its
employees that nonunit employees enjoyed greater benefits
than unit employees, Respondent violated Section 8(a)(1)
of the Act.
2. By refusing at all times since March 18, 1968, to
bargain collectively with the Union as the exclusive
bargaining agent of the employees in the unit found
appropriate herein, Respondent violated Section 8(a)(5)
and (1) of the Act.
3. The unit appropriate for the purposes of collective
bargaining is:
All production workers at Respondent's Miami, Florida
plant, but excluding all other employees, all office clerical
employees, guards and supervisors as defined by the Act 45
4. The strike on May 3, 1968, was an unfair labor
practice strike.
[Recommended Order omitted from publication.]
44 While I have found that the strike which took place on May 3, 1968,
was an unfair labor practice strike , I shall not recommend a prospective
order requiring Respondent to reinstate unfair labor practice strikers upon
their unconditional offer to return The strike took place during the
contract term and the issue as to breach of the no-strike clause in the
contract and the effect of such breach upon the right to return was not
litigated before me The decisions on this point require close scrutiny of the
facts and I do not find that the record in this case , on an issue not
contained within the pleadings , provides sufficient disclosure of the facts
(Cf Mastro Plastics, v. N L R B, 350 U S 270, National Electric Products
Corporation , 80 NLR 995, Mid-West Metallic Products, Inc, 121 NLRB
1317, Arlan's Department Store of Michigan, Inc, 133 NLRB 802.)
45 The appropriateness of the unit was not disputed
HERBERT L . KAPLAN , ESQUIRE
1674 MERIDIAN AVENUE,
MIAMI BEACH FLORIDA 33139
SEYMOUR A. GOPMAN, ESQUIRE
ONE LINCOLN ROAD BUILDING,
MIAMI BEACH, FLORIDA 33139
JOHN F . FUNKE, TX, NLRB , 51 SW FIRST AVE., MIAMI , FLORIDA
RE: DAISY 'S ORIGINALS , INC. OF MIAMI , 12-CA--4217. HEARING
NOW BEING CONDUCTED IN MIAMI BEFORE TX JOHN FUNKE,
COUNSEL FOR GENERAL COUNSEL RESPECTFULLY REQUESTS
SPECIAL PERMISSION TO APPEAL AND HEREBY DOES APPEAL,
PURSUANT TO SECTION 102.26 OF THE BOARD 'S RULES AND
REGULATIONS, SERIES 8 , AS AMENDED , FROM THE FOLLOWING
RULINGS OF THE TRIAL EXAMINER : (1) RULING EXCLUDING
TESTIMONY OF WITNESS VIOLET REID AS TO EVENTS AT A
UNION MEETING THE DAY BEFORE THE STRIKE BEGAN , AND (2)
STRIKING TESTIMONY OF WITNESS DORIS FULTON AND TX
REFUSAL TO RECEIVE ANY OTHER EVIDENCE ESTABLISHING
THAT RESPONDENT SOLICITED SIGNATURES OF ITS EMPLOYEES
TO LETTERS OF RESIGNATION FROM THE UNION, AND
PREPARED SUCH LETTERS . IN SUPPORT OF APPEAL C FOR GC
STATES COMPLAINT HEREIN ALLEGES STRIKE CAUSED BY
RESPONDENT 'S UNFAIR LABOR PRACTICES , IS UNFAIR LABOR
PRACTICE STRIKE . TX HELD HE IS NOT REQUIRED TO MAKE ANY
SUCH DETERMINATION UNTIL STRIKERS HAVE MADE
UNCONDITIONAL APPLICATION FOR RETURN TO WORK. TX
SECOND REASON FOR RULING WAS FACT, CONCEDED BY GC,
THAT NO REPRESENTATIVES OF RESPONDENT WERE PRESENT
AFORESAID UNION MEETING. GC SUBMITS IN EVENT BOARD
FINDS STRIKERS ARE ENGAGED IN ULP STRIKE , THEY ARE
ENTITLED TO REINSTATEMENT UPON APPLICATION, AND SUCH
RULING SHOULD BE IN THE REMEDIAL SECTION OF BOARD'S
DECISION BASED UPON THE RECORD IN THIS PROCEEDING.
OTHERWISE , FURTHER HEARING ON NATURE OF THE STRIKE
MAY BE REQUIRED AFTER THE STRIKERS APPLY FOR
REINSTATEMENT , THUS RESULTING IN UNNECESSARY COST
AND DELAY . BOARD CUSTOMARILY MAKES ULP STRIKE
DETERMINATIONS PRIOR TO STRIKERS ' APPLICATIONS FOR
REINSTATEMENT. GC FURTHER SHOWS THAT RESPONDENT'S
RESPONSIBILITY FOR UNLAWFUL CONDUCT HAS BEEN
ESTABLISHED BY OTHER EVIDENCE AND ONLY PURPOSE FOR
INTRODUCING TESTIMONY OF EVENTS AT THE UNION MEETING
IS TO ESTABLISH CAUSAL CONNECTION BETWEEN
RESPONDENT 'S PREVIOUSLY ESTABLISHED UNLAWFUL
CONDUCT AND THE STRIKE WHICH FOLLOWED, AND NOT TO
HOLD RESPONDENT RESPONSIBLE AS ULP FOR ANYTHING
STATED AT UNION MEETING . AS BOARD CUSTOMARILY
REQUIRES PROOF OF CAUSAL CONNECTION , SUCH EVIDENCE
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SHOULD APPROPRIATELY BE INTRODUCED IN PRESENT
HEARING. GC FURTHER SHOWS THAT TX STATED HIS REASON
FOR RULING (2) ABOVE WAS GC'S ACKNOWLEDGMENT THAT
THE COMPLAINT DOES NOT ALLEGE THE SPECIFIC CONDUCT BY
RESPONDENT SOUGHT TO BE ESTABLISHED BY THE EXCLUDED
TESTIMONY AND SAID ALLEGED CONDUCT TOOK PLACE AFTER
THE STRIKE BEGAN. IN OPPOSITION TO TX AFORESAID RULING
AND REASONS, GC STATES THAT COMPLAINT ALLEGES SECTION
8(A)(I) AND (3) VIOLATIONS: AND ALSO SINCE JAN. 26, 1968,
RESPONDENT HAS VIOLATED SECTION 8(A)(5) BY DECLINING
FURTHER RECOGNITION AND ATTEMPTING TO UNDERMINE THE
UNION BY VARIOUS ACTS INCLUDING SOLICITATION OF
SIGNATURES FROM EMPLOYEES FOR LETTERS AND PETITIONS
TO RESPONDENT STATING SAID EMPLOYEES DID NOT WISH TO
BE REPRESENTED BY THE UNION. GC SUBMITS THAT
TESTIMONY TO THIS EFFECT HAS BEEN ELICITED AFTER
HEARING. GC FURTHER SHOWS THAT THE STRIKE HEREIN
BEGAN MAY 3, 1968, AND THE EMPLOYEE LETTERS OF
RESIGNATION TO THE UNION ARE DATED ABOUT MAY 6, 1968.
GC SUBMITS THAT RESPONDENT'S ALLEGED SOLICIATION OF
EMPLOYEE LETTERS TO RESPONDENT DISAVOWING THE UNION
IS SUFFICIENTLY CONNECTED TO SOLICITATION EMPLOYEE
RESIGNATION LETTERS TO THE UNION SO AS TO PERMIT PROOF
OF THE LATTER CONDUCT BY RESPONDENT WITHIN THE
GENERAL PLEADINGS OF THE PRESENT COMPLAINT.
ADDITIONALLY, PROOF OF RESPONDENT'S SOLICITATION OF
EMPLOYEE RESIGNATIONS FROM THE UNION EVIDENCES UNION
ANIMUS WHICH IS RELEVANT BACKGROUND EVIDENCE IN
LIGHT OF THE PRESENT COMPLAINT ALLEGATIONS. THE FACT
THAT THE LETTERS OF RESIGNATION ARE DATED ABOUT THREE
DAYS AFTER THE STRIKE COMMENCED DOES NOT PRECLUDE
FINDINGS THAT SOLICITATIONS THEREOF WERE MADE AT A
PRIOR DATE. IN ANY EVENT, THE FACT THAT THE LETTERS ARE
SO DATED DOES NOT PRECLUDE CONSIDERATION THEREOF IN
LIGHT OF THE COMPLAINT ALLEGATION THAT RESPONDENT'S
UNLAWFUL CONDUCT CONTINUES TO DATE. PARTIES SERVED
BY WIRE.
HOWARD I . GROSSMAN
COUNSEL FOR THE GENERAL COUNSEL
C.C. GARMENT WORKERS LOCAL 415, 2841 NW 2ND AVE.,
MIAMI. FLA.
DAISY'S ORIGINALS , INC., 6270 NW 37TH AVE.
MIAMI, FLA.
APPENDIX C
HOWARD GROSSMAN , NATIONAL LABOR RELATIONS BOARD
51 SOUTHWEST FIRST AVE MIAMI FLA
FOLLOWING TELEGRAM SENT TO:
EXECUTIVE SECRETARY
NATIONAL LABOR RELATIONS BOARD.
RE: DAISY'S ORIGINALS , INC. OF MIAMI , 12-CA-4217
THIS DATE RECEIVED COPY OF GENERAL COUNSEL'S REQUEST
TO APPEAL TRIAL EXAMINER 'S RULINGS . REQUEST 10 DAYS
EXTENSION OF TIME WITHIN WHICH TO REPLY THERE TO.
PARTIES SERVED COPIES HEREOF BY WIRE.
BRUCKNER AND GREENE, COUNSEL FOR DAISY'S.
APPENDIX D
JOHN C TRUESDALE DEPUTY EXEC SECY WASH DC NLRB
JAMES L JEFFERS RESIDENT OFFICER , NLRB MIAMI , FLORIDA
HOWARD I GROSSMAN C/O RESIDENT OFFICER , NLRB MIAMI,
FLA.
JOHN F . FUNKE, NLRB TX C/O RESIDENT OFFICER, NLRB
MIAMI, FLA.
RE: DAISY'S ORIGINALS , INC. OF MIAMI , 12-CA-4217.
GENERAL COUNSEL 'S REQUEST FOR SPECIAL PERMISSION TO
APPEAL FROM RULINGS OF TRIAL EXAMINER ( 1) EXCLUDING
TESTIMONY OF WITNESS VIOLET REID AS TO EVENTS AT A
UNION MEETING DAY BEFORE THE STRIKE BEGAN AND (2)
STRIKING TESTIMONY OF WITNESS DORIS FULTON AND
REFUSING TO RECEIVE ANY OTHER EVIDENCE ALLEGEDLY
ESTABLISHING THAT RESPONDENT SOLICITED SIGNATURES OF
ITS EMPLOYEES TO LETTERS OF RESIGNATION FROM THE UNION
AND PREPARED SUCH LETTERS , IS HEREBY GRANTED. SAID
APPEAL IS HEREBY GRANTED , AND THE TRIAL EXAMINER'S
RULINGS ARE REVERSED . RESPONDENT'S REQUEST FOR 10
DAYS IN WHICH TO REPLY TO GENERAL COUNSEL 'S APPEAL
HEREIN IS HEREBY DENIED WITHOUT PREJUDICE TO
RESPONDENT 'S RIGHT TO RAISE THE ISSUES OF THE
APPROPRIATENESS OF TRIAL EXAMINER 'S RULINGS AND THE
INADMISSIBILITY OF SUCH EVIDENCE IN THE ARGUMENT AND
BRIEFS TO THE TRIAL EXAMINER AND IN ANY EXCEPTIONS,
WHICH MAY BE FILED TO THE TRIAL EXAMINER'S DECISION. BY
DIRECTION OF THE BOARD: