Donna Lee Sportswear

National Labor Relations Board - Board Decisions

Feb 6, 1969

174 N.L.R.B. 318 (N.L.R.B. 1969)

318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Donna Lee Sportswear and International Ladies'
Garment Workers ' Union , AFL-CIO
Donna Lee Sportswear and International Ladies'
Garment Workers' Union , AFL-CIO and The
Grievance Committee and Donna Lee Sportswear
Employees' Independent Union , Parties in Interest
Donna Lee Sportswear and International Ladies'
Garment Workers' Union , AFL-CIO. Cases
4-CA-4403, 4-CA-4452, and 4-CA-4483
February 6, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On August 9, 1968, Trial Examiner David S.
Davidson issued his Decision in the above
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices in violation 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. He further found that
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and
recommended that the allegations pertaining thereto
be dismissed. Thereafter, the Respondent and
Donna Lee Sportswear Employees' Independent
Union, hereinafter called the Independent, as one of
the Parties in Interest, filed exceptions to the Trial
Examiner's Decision and supporting briefs,' the
General Counsel filed cross-exceptions and a brief in
answer to Respondent's exceptions and in support of
its cross-exceptions, and the Charging Party filed
cross-exceptions and brief in support thereof and a
motion to strike the exceptions and briefs of the
Respondent and Parties in Interest.2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases 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,
cross-exceptions, briefs, and motion, and the entire
record in these cases, and hereby adopts the
findings,' conclusions,' and recommendationss of the
Trial Examiner, with the modifications noted below.
'Respondents have requested oral argument . Because , in our opinion, the
record , the exceptions and briefs , adequately set forth the issues and the
positions of the parties , this request is hereby denied
'The Charging Party' s motion to strike the exceptions and briefs of the
Respondent and Parties in Interest for failure to meet the requirements of
the Board ' s Rules and Regulations , Series 8, as amended , is hereby denied
as we find these documents are in substantial compliance with the Board's
requirements
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Donna Lee
Sportswear, York, Pennsylvania, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as herein modified:
1. Modify paragraph 2(a) of the Trial Examiner's
Recommended Order as follows-
"(a) Offer Mary Fizer, Dorothy Goheen, and
Ruby Rodefer immediate and full reinstatement to
their former or substantially equivalent positions
without prejudice to their seniority or other rights
and privileges previously enjoyed and make them
whole for any loss they may have suffered by reason
of the discrimination against Mary Fizer, Dorothy
Goheen, and Ruby Rodefer in the manner set forth
in the section of the Trial Examiner's Decision
entitled "The Remedy," as modified by this
Decision and Order."
2. Modify paragraph 2(e) of the Trial Examiner's
Recommended Order as follows:
"(e) Rescind its warning and discharge policy
instituted in November 1967, and all warning
notices issued pursuant to that policy."
3. Substitute the following for the first indented
paragraph of the notice attached to the Trial,
Examiner's Decision:
'The Trial Examiner found that the Grievance Committee was
instrumental in bringing employees to "Respondent 's office" to give
statements concerning their authorization cards The record establishes that
it was the Respondent ' s attorney 's office The Trial Examiner found that
Respondent' s recognition and continued dealing with the Grievance
Committee during the 10(b) period constituted unlawful assistance to the
Committee, but failed to make a formal finding that the unlawful
assistance was a violation of Section 8(a)(2) We hereby correct these
madvertences
'The Trial Examiner found that, when viewed in the light of the
background evidence as to the formation of the Grievance Committee,
Respondent ' s continued recognition of the Grievance Committee during the
critical period, both before and after the ILGWU demand for recognition,
constituted unlawful assistance to the Grievance Committee We find that
Respondent ' s contemporaneous 8(a)(1) and (3) conduct, which was aimed
directly at undermining the employees ' support of the ILGWU, also
constituted evidence of unlawful assistance and support to the Grievance
Committee , and its alter ego, the Independent, and that this provides a
further basis for the Trial Examiner's 8(a)(2 ) conclusions
'The Trial Examiner found that the institution of the warning and
discharge policy by the Respondent violated Section 8(a)(5) and (1) of the
Act and recommended as part of the remedy the reinstatement of Pat
Fauth, who had been discharged pursuant to the policy We do not agree
that the reinstatement of Fauth is a proper remedy for the 8(a)(5) conduct
and would limit the remedy to the rescission of the warning and
disciplinary policy
We find merit in the General Counsel's exceptions to the Trial
Examiner's recommendation that Mary Fizer should not receive backpay
for the strike period Fizer was discriminatorily laid off by Respondent on
September 8, 1967, and thereafter joined the strike which began September
11, 1967 In accordance with established Board policy in cases of
discriminatory termination before the employee goes on strike , we find that
Fizer is entitled to backpay for the entire period from her layoff on
September 8, 1967, to the time of an offer of reinstatement . See Monahan
Ford Corp., 157 NLRB 1034
174 NLRB No. 54
DONNA LEE SPORTSWEAR
WE WILL offer Mary Fizer, Dorothy Goheen,
and Ruby Rodefer immediate reinstatement to
their former or substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, and WE WILL make them whole
for any loss they may have suffered as a result of
our discharge of Mary Fizer and our refusals to
reinstate Dorothy Goheen and Ruby Rodefer
upon their requests after the strike.
4. Substitute the following for the third indented
paragraph of the notice attached to the Trial
Examiner's Decision:
WE WILL rescind the warning and discharge
policy instituted in November 1967, and all
warning notices issued pursuant to that policy.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is dismissed insofar as it alleges unfair
labor practices not found herein by the Board.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Trial Examiner: Pursuant to
charges filed on September 11, 1967, in Case 4-CA-4403
by International Ladies' Garment Workers' Union,
AFL-C11O, referred to hereinafter as ILG, a complaint
issued on October 31, 1967, alleging that Respondent
discriminatorily discharged Mary Fizer on September 8,
1967, because of her activities and support for ILG, that
Respondent unlawfully refused to bargain with ILG since
on or about September 7, 1967, and that Respondent's
employees had engaged in an unfair labor practice strike
since on or about September 11, 1967. Thereafter, on
November 8, 1967, ILG filed a charge in Case
4-CA-4452, which was amended on December 26, 1967,
and filed a further charge in Case 4-CA-4483 on
December 13, 1967. Pursuant to these charges on
February 12, 1968, an order consolidating cases and a
consolidated amended complaint issued consolidating the
three charges, reiterating the allegations of the original
complaint, and alleging further as follows. Respondent
over a period of time dominated and interfered with the
formation and administration of the Grievance Committee
and Donna Lee Sportswear Employees' Independent
Union and contributed financial and other support to
these organizations; Respondent in October and
November 1967 unilaterally changed existing wage rates,
piece rates, its warning and discharge policy, and other
terms and conditions of employment; Respondent refused
to reinstate employees Ruby Rodefer, Betty Ruby, and
Dorothy Goheen after unconditional requests for
reinstatement by them on October 24, 26, and November
1, 1967, respectively; and on or about December 1, 1967,
Respondent discriminatorily discharged employee Patricia
Fauth because of her union activities and support. The
consolidated complaint charges that by these acts
Respondent violated Section 8(a)(1), (2), (3), and (5) of
the National Labor Relations Act, as amended.
Respondent filed answers to the original complaint and
the consolidated amended complaint in which it denied the
commission of any unfair labor practices.
A hearing was held before me in York, Pennsylvania,
on February 26 and 27 and March 26 through 29, 1968.
At the close of the hearing oral argument was waived, and
the parties were given leave to file briefs which have been
319
received.
Upon the entire record in this case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a partnership composed of Robert D.
Williams, Kenneth Williams, Kathleen Williams and
Celestine Williams doing business as Donna Lee
Sportswear. At all times material Respondent has
maintained its principal office and place of business at R.
D. 9, Lower Windsor Township, York County,
Pennsylvania, where it engages in the manufacture of
ladies' wear as a contractor. With insignificant exception
all of Respondent's work is performed for Cardinal
Cotton Corporation, a manufacturer of ladies' garments
with its principal office in New York and manufacturing
plant at Coatesville, Pennsylvania. Respondent annually
performs contracting services for Cardinal valued in
excess of $100,000 a year All goods on which Respondent
works are purchased by Cardinal and remain under
Cardinal's ownership while being processed by
Respondent. The goods are shipped by Cardinal to
Respondent in Cardinal's trucks. Respondent cuts and
sews materials into finished goods, which are then
returned to Cardinal in Cardinal's trucks. Cardinal presses
the finished garments and then ships them to its
customers. Cardinal annually sells finished ladies' wear
valued in excess of $50,000 in interstate commerce and
makes purchases valued in excess of $50,000 from sources
outside the State of Pennsylvania.
Cardinal uses the services of other contractors who
work on the same lots as Respondent. The goods supplied
to the various contractors and the finished garments
received from them are mingled together by Cardinal
making it impossible for Cardinal to trace the sources of
the goods which are sent to Respondent for processing or
the ultimate destination of finished goods manufactured
by Respondent. There is no evidence to indicate to what
extent, if any, Respondent works on goods of Cardinal
that have either been received from or are destined for
shipment out of State.
In Siemons Mailing Service, 122 NLRB 81, 85, the
Board announced jurisdictional standards now followed by
the Board applicable to nonretail establishments:
[T]he Board has concluded that it will best effectuate
the policies of the Act if jurisdiction is asserted over all
nonretail enterprises which have an outflow or inflow
across State lines of at least $50,000, whether such
outflow or inflow be regarded as direct or indirect. For
the purposes of applying this standard, direct outflow
refers to goods shipped or services furnished by the
employer outside the State. Indirect outflow refers to
sales of goods or services to users meeting any of the
Board's jurisdictional standards except the indirect
outflow or indirect inflow standard. Direct inflow refers
to goods or services furnished directly to the employer
from outside the State in which the employer is located.
Indirect inflow refers to the purchase of goods or
services which originated outside the employer's State
but which he purchased from a seller within the State
who received such goods or services from outside the
State.'
1122 NLRB at 85 (fn. omitted)
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cardinal Cottons meets both the Board's direct outflow
and direct inflow standards. Respondent's sale of services
to Cardinal constitutes indirect outflow in excess of
$50,000 and therefore meets the Board's indirect outflow
standards. Respondent contends, nonetheless, that the
Board's jurisdiction has not been established because of
the lack of proof that any of the materials received by it
from Cardinal originated out of State or that any of the
garments manufactured by the Respondent ultimately
were sent out of State. The Board answered this
contention in Southern Dolomite, stating:
[T]he very meeting of the [outflow-inflow) standard
establishes, legal jurisdiction within the meaning of
Section 2(6) or (7) of the Act. In establishing this
standard, the Board had already concluded in the light
of its experience that when the operations of the
employer meet this standard, they substantially affect
commerce within the meaning of the Act. Accordingly,
the Board requires no further proof of legal or statutory
jurisdiction in these cases.'
The Board's conclusion that the inflow-outflow standard
carries with it the necessary foundation to establish the
existence of legal jurisdiction is supported by the
reasoning of the opinion of the Supreme Court in
N.L R B. v. Reliance Fuel Oil Corporation.' Accordingly,
I conclude that Respondent is engaged in commerce or in
operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act and that it will effectuate
the policies of the Act to assert jurisdiction herein
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated and I find that International
Ladies' Garment Workers' Union, AFL-CIO, the
Grievance Committee, and Donna Lee Sportswear
Employees' Independent Union are and have been at all
times material labor organizations within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Violations of Section 8(a)(2)
1. Background - The formation of the Grievance
Committee
Robert Williams and Kenneth Williams are brothers In
partnership with their sister, Kathleen, and mother,
Celestine, they operate Donna Lee Sportswear. Robert
has extensive experience in the manufacturing of clothing
and is the managing partner of Respondent. Kenneth
entered the industry more recently, joining the Respondent
in June 1965, with a background in accounting. He serves
as plant manager for Respondent, but it appears that his
duties do not extend to matters requiring technical
background or experience in the industry. These duties,
including the making of timestudies and the assignment of
the employees to particular operations, are performed by
Robert who spends substantial time at the plant in its
active management
2129 NLRB 1342 , 1344, fns. omitted
'371 U S. 224 There the Court affirmed the Board ' s reliance upon
indirect inflow to establish legal jurisdiction supporting assertion of
jurisdiction on the basis of a gross volume of business test applicable to
retail enterprises
'Robert also is president of Williams Manufacturing Corp , which has a
In June 1966, more than a year before the charges in
this case were filed, Robert Williams called the employees
at the plant together and told them that he believed it
would be a good idea if they had a grievance committee to
whom they could present grievances and who would in
turn present them to him 5 Kenneth Williams passed out
slips of paper to the employees and Robert told them to
write down the names of five girls who they thought
would be good for the Committee. After the names were
written by the employees, the ballots were collected by
Kenneth and taken to the plant office where they were
counted by Robert. The three employees who were found
by Robert to have received the highest number of votes
were named as committee members and a notice to that
effect was posted at the timeclock 6 The three employees
named were Marylyn Costabile, Dolores, Dosch, and Ruth
Smith. The employees were not asked to vote on whether
or not they wanted a committee The procedure for
selecting the members and the size of the Committee were
determined by Robert Williams.
Robert Williams testified that at the time the
Committee was established, he presented it to the
employees as an alternative means of presenting
grievances to him because he observed that some girls
were afraid to come to him with grievances and instead
complained to one another. Dolores Dosch and Marylyn
Costabile also testified that some employees went directly
to Williams with their complaints. However, the testimony
of Pat Fauth and Dorothy Goheen, as well as an incident
not denied by Williams,' leads me to conclude that
Williams did not present the Committee to the employees
in this fashion, but told them that when they had any
complaints they were to go to the Grievance Committee
and the Committee would go to him, in place of going to
him individually with their complaints, unless a complaint
was of a personal nature '
Following formation of the Committee, employees on
occasion presented grievances to the Committee, and the
Committee presented all grievances which they received to
Robert Williams. They discussed them with Williams both
privately and with the complainant present. Some of the
grievances were answered with adjustments and some were
rejected. On one occasion the Committee was used by
Kenneth Williams to convey to employee Patricia Fauth
that she should stop complaining to other girls or action
would be taken by Respondent.'
plant at Scottdale , Pennsylvania He divides his time between the two
plants
'Where not otherwise indicated, my findings are based on credited
uncontradicted testimony
'It is not clear from the testimony whether a single ballot was taken or
whether a second ballot was taken in which the employees were asked to
select three from among the five employees who had received the greatest
number of votes on the first ballot . Resolution of this ambiguity is not
material to the issues in this case.
'On one occasion employee Ruby Rodefer went directly to Robert
Williams to complain about a rate which she believed was too low
Williams initially told her that she should go to the Committee with the
grievance unless it was something personal When she replied that she
considered it personal, Williams discussed the grievance with her
'Although Kenneth Williams testified that the Committee was the
employees' idea, it is clear from the testimony of Robert , as well as that of
the other employees , that Robert Williams initiated the idea and carried
through with the formation of the Committee
'Kenneth Williams denied that he had instructed the Committee to
convey this message to Fauth , However, after initially denying that either
Williams had ever given the Committee messages for employees , Marylyn
Costabile in effect conceded that the incident described by Fauth occurred
I have credited Fauth in this regard.
DONNA LEE SPORTSWEAR
In July 1967, Respondent moved its operations to a
new plant. Shortly before the move in June, the
Committee told Robert Williams that they believed the
employees needed a wage increase . Williams told them
that after the move was complete and they were settled in
the new plant, he would give them one.
The three committee members were given no special
consideration by Respondent for their service on the
Committee and no threats or promises were made to the
employees to induce them to vote for the committee
members or to utilize its services. Nothing was ever said
by Robert Williams after the Committee was formed
about the length of time the members would serve and the
same three employees served on the Committee from its
inception. The Committee collected no dues and
conducted no meetings with employees.
2. The activities of the Grievance Committee
immediately after the ILG demand
a. September 7, 1967
As set forth in detail below, in late August 1967, the
ILG began an organizational campaign among
Respondent's employees and secured authorization cards
from a number of Respondent's employees. On the
morning of September 7, 1967, a delegation of ILG
representatives visited Robert Williams at the plant,
requested recognition, and presented authorization cards
to Williams for his inspection. A group of nine employees
was called to Williams' office from the plant area to be
present at the time of the request. At that time, after
conferring with his attorney by telephone, Williams
advised the ILG representatives that they should file a
petition with the NLRB and have an election if they
wished to represent the employees.
Based on the testimony of Ruby Rodefer, Betty Ruby,
and Patricia Fauth, whom I credit for reasons set forth
below, I find that at some time after the visit of the ILG
representatives on September 7, the three Grievance
Committee members were off the production floor for a
period of time with Kenneth Williams in his office.
Forelady Donna Himes was also off the floor at the time.
Durnng the afternoon these employees and Dorothy
Goheen also observed the Grievance Committee members
walking around the plant from machine to machine
talking to other girls. None of these witnesses was spoken
to by the Grievance Committee members or heard what
they said to others except for isolated comments.
Dosch, Costabile, Himes, and Kenneth Williams denied
that they met together at any time that day, and also
denied that the Grievance Committee members went from
machine to machine speaking to other employees during
working time that afternoon. Their denials were not
persuasive. In support of these denials Dosch and
Costabile also denied that they had any knowledge of the
ILG activities until after September 7. Dosch initially
testified that she did not learn of the ILG activities until
picketing started on September 11, but ultimately she
conceded that before September 9 she and other
Grievance Committee members spoke to employees about
withdrawing their ILG authorizations and she indicated
that she'did not recall exactly when they started. Costabile
testified that she did not learn of the visit of the ILG
representatives to the plant until the morning of
September 8. Costabile conceded that she heard some
discussion at breaktime and lunch on September 7 about
strangers having been in the plant, but insisted that no one
321
to whom she spoke knew who they were and that she did
not become aware of their identity until that evening when
union representatives visited her at home and mentioned
that they had been at the plant. She testified that among
those she spoke to at breaktime and lunch was Letha
Dietz. Yet Dietz testified that she heard about the visit of
the ILG representatives on the day it occurred and
expressed anger to other employees all through that day
because she had understood that Robert Williams would
not be shown her card. Dietz also testified that on that
afternoon there was a lot of talk in the shop about what
had happened that morning.
The evidence is also in conflict as to the state of
production in the plant that afternoon, although there is
no dispute that trimmers Ruby and Rodefer were sent
home early on the afternoon of September 7 because of a
lack of work. Rodefer and Ruby attributed the lack of
work to a failure to receive work from Costabile,'° and
Rodefer testified that little work was done in the plant
that afternoon because the whole shop was in a turmoil.
Kenneth Williams disputed their testimony as to the
source of their work and the cause of its shortage.
According to Williams, there was a production snag that
afternoon because they were having trouble with a
particular style. Costabile testified that she worked
steadily without noticing any disruption in the plant, that
she never lacked work that day, and that she had no
trouble with any style. Himes testified that the three
Grievance Committee members worked at their machines
without interruption, but that there were production
problems that afternoon because everyone slowed up
because of what happened that morning, affecting
production and movement of goods throughout the shop.
She could recall no problem with any particular style.
Whatever the immediate source of the work of the
trimmers," it is clear that contrary to Costabile's
testimony there was disruption of production in the shop
that afternoon. The vagueness of Williams' testimony and
the testimony of Himes also persuades me that there was
turmoil in the shop because of the ILG demand, as
Rodefer testified, and that it and not trouble with a
particular style was the source of the production problem.
I find incredible the testimony of Dosch and Costabile
as to when they became aware of the ILG activities
While neither conceded knowledge of the ILG visit on
September 7, both receded considerably from their initial
testimony under cross-examination.' Z In the light of
Costabile's concession that she spoke' to Dietz, Dietz'
testimony as to the venting of her anger over what the
ILG had done, Dietz' testimony that on Thursday
afternoon there was a lot of talk in the shop about what
had happened, and my conclusion that production
problems that afternoon were caused by employee reaction
to the visit of the ILG representatives, I find it
inconceivable that neither Dosch nor Costabile heard
anything about the ILG visit until the following day.
Indeed, I have concluded from the objective evidence as
well as the manner in which they testified under
cross-examination and the sequence of their testimony
that each sought to conceal her earlier knowledge of the
'°Ruby testified that their work came from Ruth Smith as well as
Costabile
"In this respect Kenneth Williams testified convincingly that work did
not normally flow from Ruth Smith, a zipper setter , to the trimmers but it
appears that there was at most a single nonoperational step between
Costabile 's work and trimming
"Dosch was called as a witness by counsel for the General Counsel but
was examined as an adverse witness.
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ILG activities and only conceded greater knowledge than
she originally intended to reveal as she realized while
testifying that her initial claims would not square with
events more difficult to deny than a state of mind
Viewing their testimony as I do, and having found
substantial cause to discredit Kenneth Williams and Himes
with respect to other material matters set forth below, I
have credited the testimony of Rodefer, Ruby, Fauth, and
Goheen as to what they observed in the plant on
September 7 after the ILG demand.
b. September 8, 1967
During the day on September 8, Dosch and Costabile
concededly spoke to other employees about getting their
cards back Both conceded that they took the initative in
raising the matter with a number of the employees, but
testified also that some employees came to them to state
that they did not like the way the ILG organizers harassed
them to sign cards or that they wanted their cards back."
Costabile testified that before work started that morning a
group of employees told her that they wanted to do
something about getting their cards back.- According to
Costabile, after these employees spoke to her, she went to
Kenneth Williams and asked him a question in response
to which he told her to see his lawyer.' 5 Costabile, Dosch,
the Williams' brothers, and Himes denied that anyone in
management asked them to talk to employees about
getting their cards back
One of the employees to whom the committee spoke
that day was Patricia Fauth. At the afternoon break,
Marylyn Costabile came to her and said that she and the
other two committee members wanted to talk to her
outside. Fauth went with them. Costabile asked her why
she wanted a union and said that they did not need it and
had the Committee for that purpose. Costabile asked her
if she knew that if her machine broke down, Costabile's
husband Tony, who was the plant mechanic, could let her
sit all day if he wanted to. Costabile also asked her if she
knew that if Robert Williams wanted to fire her, he could.
Fauth replied that if he fired her, he would have to fire a
lot more because 27 had signed cards which were shown
Williams by the ILG representatives. Costabile replied
that she did not believe that because she knew 15 who did
not sign cards and that the Union had to forge cards to
have that many. Fauth disputed this and Costabile told
her that she had better get out of it then.' 6
"Dosch initially testified that Letha Dietz was the only employee she
could recall who was really upset Later she testified Ruth May, Elsie
Olewiler , and Phyllis Paules had come to her and told her that the union
organizers had told her the cards would be kept confidential Finally she
testified that Paules had complained only about the ILG conduct on
September 11
"She identified those in the group as Ruth Smith , Dolores Dosch, Letha
Dietz, Mildred Seiple, and Elsie Olewder She testified that Olewiler had
said she was sorry she signed a card and wished she had not done so Of
the employees named by Costabile and Dosch, only Dietz testified As
indicated above, Dietz testified that on the previous day and thereafter she
had expressed her anger that her card had been shown to Williams
"Costabile testified initially that she merely asked him the name of his
lawyer . Later she testified that she went to him with three questions
relating to the Union which she could not recall , she asked one of them,
and Williams replied that she should see his lawyer Costabile testified that
she went to Williams after Olewiler told her that she was sorry she had
signed a card and wished she had not done so
"Fauth so testified Dosch conceded that the committee members spoke
to Fauth and also that they told Fauth that Robert Williams had referred
them to his lawyer, but did not testify otherwise as to the substance of
After work that day, Costabile telephoned Respondent's
attorney, Markowitz, and made an appointment to see
him the following morning.
That night between 10 and 10:30, Costabile telephoned
Fauth at her home and asked her if she would like to get
her authorization card back. Fauth replied that she could
not because the Union did not have them any longer.
Costabile replied that they could and that some of the
girls had gone to Robert Williams and he had told them
to contact his lawyer. Costabile told her that Markowitz
had told her they could come into his office and sign
affidavits saying that the Union had lied to them and that
was why they wanted their cards back. Fauth replied that
she could not do that because the Union had not lied to
her. Costabile said that she had talked to Letha Dietz and
Ruth May and that they were going in to the lawyer's
office the next morning to sign affidavits. Costabile said
she was trying to reach Lucienne Arsenault and asked
Fauth if she thought Mildred Seiple would go along to
ask for her card back. Fauth replied that she did not
know."
Costabile also telephoned Letha Dietz, Elsie Olewiler,
and Ruth May and arranged to take them to Markowitz'
office the following morning, having spoken to them about
it at work earlier that day.
c. September 9, 1967
On Saturday morning, September 9 Costabile drove
Ruth May, Elsie Olewiler, and Letha Dietz to Markowitz'
office The three employees told Markowitz that they
wanted to revoke or cancel their authorization cards.1e
Except in the case of Dietz, who testified that she sought
return of her card because she believed that ILG
Representative Haugh had misrepresented that the cards
would be kept confidential, it is not clear what reasons
were advanced by the other two employees for wanting to
withdraw their authorizations." Markowitz told them that
he could not represent them or take any direct action to
get their cards back for them, but that he would take
their conversation Costabile also conceded that on one occasion the
Committee spoke to Fauth She denied threatening that her husband would
let Fauth sit at her machine if she did not seek to withdraw her card, but
did not testify otherwise as to the substance of her conversation. I have
credited Fauth whom I have found more credible in all respects than
Costabile.
"Fauth who testified to this conversation had no knowledge of the basis
of Costabile' s statements to her other than what Costabile told her.
Costabile testified that she telephoned Fauth that evening , but was not
questioned about the content of their conversation
"My findings as to what happened at Markowitz ' office are based on a
composite of the testimony of Marylyn Costabile, Markowitz, and Letha
Dietz, unless otherwise indicated
"According to Costabile, the other employees said they had had a
"change of heart," and that before visiting Markowitz, Olewiler had told
her she was sorry she had signed a card. Markowitz testified that Dietz
and May indicated that they believed certain misrepresentations had been
made to them He testified that Dietz told him that the ILG
representatives had told her that a majority of the employees had signed up
and that they had promised that they would keep her card strictly
confidential He testified that May said that Mathews ' visit to her was
offensive Dietz, however , in her testimony indicated only a single basis for
complaint , and Markowitz later testified after checking a statement he
took from May that he was mistaken as to her complaint , without
specifying further what her complaint was The statements taken from
employees at this time which they signed the following Monday are not in
evidence , and neither May nor Olewiler was called as a witness. As to
Olewiler and May, therefore , the evidence shows at most that they
indicated that they had changed their minds and does not establish the
reason they advanced for the change
DONNA LEE SPORTSWEAR 323
statements to present to an NLRB field agent when he
investigated the case, " and they would have to take
whatever steps were necessary to get their cards back
from the ILG. Markowitz interviewed each of the
employees, except Costabile who had not signed a card,
and told them to return Monday to sign written
statements. Costabile asked Markowitz if she could bring
additional girls to his office on Monday and he replied
that she could. According to Markowitz, he told the
employees who came to his office at this time that they
had a right to join a union of their choice or not to join
and to take any action they desired.
d. September 11, 1967
As set forth in more detail below, on Friday,
September 8, one of the nine employees who had
accompanied the ILG representatives when they visited
Robert Williams was discharged. Thereafter, the ILG
decided to call a strike of Respondent's employees. On
Monday, September 11, the ILG set up a picket line at
the plait. The plant opening was delayed and there was
some disorder outside the plant in the attempt to prevent
employees from entering.
After the employees succeeded in entering the plant on
September 11, work did not start immediately, and
employees talked with each other about what had
happened. Again that morning the Grievance Committee
members spoke to other employees about going to
Markowitz' office but the evidence is not uniform as to
the circumstances under which this happened
On the one hand, Kenneth Williams and Markowitz
testified that soon after Williams entered the plant, he
telephoned Markowitz to tell him what had happened.
Markowitz asked Williams to try to get witnesses to come
to Markowitz' office to give statements concerning the
disorder outside the plant that morning. According to
Williams, he asked most of the employees personally at
their machines if they would go to Markowitz' office after
work to give statements. He denied that he asked the
Grievance Committee to contact employees for this
purpose, that he counseled the Grievance Committee with
respect to efforts to persuade employees to reject the ILG,
that he said anything to any employee about revoking
their authorization cards, or that any of the employees to
whom he spoke mentioned that they already intended to
go to Markowitz' office.
On the other hand, other witnesses testified only to
activities of the Grievance Committee resulting in visits to
Markowitz' office later that day. Both Dosch and
Costabile testified that some of the employees came to
them and indicated that they were either unhappy with the
way their cards had been solicited or wanted their cards
back because of what had happened outside the plant.21
Both testified that they also went to a number of
employees who had not approached them to ask them if
they wanted to go to Markowitz' office. Both denied that
Kenneth Williams asked them to go to Markowitz' office
or said anything to them about asking other employees to
see his lawyer.
Among the employees to whom the Grievance
Committee spoke that morning was Patricia Fauth.
'Markowitz testified that Hoffman had informed him by telephone
before this that charges would be filed
"Costabtle testified that Norma Henry was among those who came to
her Henry testified that Costabile asked her if she wanted to join other
girls who were going to Markowitz' office because they wanted their cards
back Henry could not recall whether she had previously indicated that she
wanted to get her card back
Shortly after she entered the plant, Marylyn Costabile and
Ruth Smith came to her and asked her to go to
Markowitz' office to ask for her card back. They told her
that it would not be necessary to say that the Union had
lied to her. Fauth still declined to go and was upset and
crying.22
A while later Supervisors Donna Himes and Larue
Dayhoff came to Fauth and tried to comfort her and calm
her down Dayhoff asked her why she did not just go
along to Markowitz' office, listen to what he had to say,
and if it had anything to do with saying that the Union
lied, she should not sign.23
I find it incredible that two independent efforts to urge
employees to go to Markowitz' office could have gone on
in the plant that day without Kenneth Williams and the
Grievance Committee each knowing of the efforts of the
other. Although Williams professed that his memory was
unclear as to the identity of those to whom he spoke, he
identified Marylyn Costabile among them, and it is
unlikely that having observed what had happened when
she tried to enter the plant, as he testified, he would have
neglected to ask her to go to Markowitz' office.24 Yet
Costabile denied that Williams spoke to her about it.
Williams also testified that he spoke to Norma Henry,
Letha Dietz, Elsie Olewiler, and Ruth May. Three of
these employees had visited Markowitz the previous
Saturday and were to return that day to sign statements. I
find it unlikely that, as Williams testified, none of them
would have mentioned this fact when Williams spoke to
them. Both Dietz and Henry, who testified, stated they
went to Markowitz as a result of talking with Costabile,
and neither mentioned that Williams had also asked them
to go Williams, Dosch, Costabile, and Himes, all
impressed me as coloring their testimony to fit
preconceived notions of what their testimony should be. I
have concluded that their testimony as to the events in the
plant on the morning of September I I does not reveal the
entire truth and contains substantial untruth to conceal
the conjunction of their efforts to induce employees to
visit Markowitz' office.
On Monday afternoon after work, 12 or 13 employees
visited Markowitz' office, including Marylyn Costabile,
Letha Dietz, Ruth May, Elsie Olewiler, Norma Henry,
Lucienne Arsenault, Raeann Quickel, Mildred Seiple,
Anna Paules, and Phyllis Paules.YS Markowitz told the
employees that he would take statements to give to the
Board's field examiner when he came to investigate, that
he could not represent the employees because he was
Respondent's attorney, and that they had a right not to
give statements. Markowitz and two of his associates
interviewed the employees and took statements from
"Fauth so testified Costabile conceded that she went to Fauth to ask
her to go to Markowitz' office, but was not questioned as to what was
said I have credited Fauth
"Fauth so testified Himes denied that she tried to comfort Fauth or
talked to Fauth about going to Markowitz' office or that she was present
at anytime when Dayhoff spoke with Fauth. Himes also testified that she
was busy bandaging herself in the ladies' room before work started that
day She denied that she had any contact with the Grievance Committee
with respect to persuading employees to reject the ILG, that she knew the
employees were going to Markowitz' office that afternoon, or that she saw
Kenneth Williams speak to any employees that day Dayhoff did not
testify I have credited Fauth.
"As Himes sustained an injury entering the plant, it is also likely that
Williams would have asked her to give a statement and unlikely that she
would not have known that employees were going to Markowitz' office
"The findings as to the identity of those who visited Markowitz' office
are based on the testimony of Markowitz and Marylyn Costabile.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them. In interviewing the employees, Markowitz
questioned them not only about the incidents at the plant
that morning but also about statements made to them at
the time they signed authorization cards.26
3. Dealings between Respondent and the Grievance
Committee after the ILG demand
The Grievance Committee continued to meet with
Robert Williams during October and thereafter and still
met with him at the time of the hearing if it had a
particular problem to discuss. The membership of the
Grievance Committee continued unchanged.27
4 The formation of the Independent Union
In October, Marylyn Costabile spoke to the other two
members of the Grievance Committee about forming an
independent union. She made an appointment with an
attorney, Sterling, to see him on October 18, and invited
the other two committee members to join her.2S On
October 18, she and Dolores Dosch went to Sterling's
office. They told him that a group of employees had
signed cards for the ILG, had become disenchanted, and
wanted to know if they could revoke their cards and form
an independent union. Sterling told them that he believed
there wquld be some remedy, that they could probably set
up an independent union, and that he would like to meet
with some of the employees involved. Accordingly they
scheduled a meeting at Sterling's office for October 25, to
which employees were to be invited. Costabile and Dosch
asked Sterling to prepare whatever papers were necessary
and he prepared a set of bylaws and authorization cards
for the independent union. Sterling told them that he
expected to be paid for his work and that he would charge
them on an hourly basis but at less than his usual rate
because they were a small group.29 According to Sterling,
on October 18 neither Costabile nor Dosch said anything
about Costabile's prior visits to Markowitz or the earlier
efforts of employees with respect to revocation of
authorization cards.
On October 20, Sterling sent a letter to the ILG with
copies to the NLRB, the Pennsylvania Labor Relations
Board, and ILG attorney Widmer, in which he stated that
he represented a majority of the employees of Respondent
who informed him "that they were pressured, coerced and
''According to Markowitz , some of the employees complained about
misrepresentations made to them in securing their cards , but their basic
complaint was about the disturbance at the plant that morning The
statements taken were not offered in evidence and the nature of their
complaints , except in the case of Dietz, was not further specified.
"Dolores Dosch so testified , and Robert Williams conceded that the
Committee had come to him in October to remind him of an earlier
promise of wage increases Marylyn Costabile testified that the Committee
did not function after August 1967, but also testified that employees
sometimes asked Grievance Committee members to represent them as
individuals and that on very few occasions employees used the Committee
to represent them . All witnesses testified that neither Robert nor Kenneth
Williams ever announced that the Grievance Committee was disbanded I
credit Dosch and do not credit Costabile ' s testimony that the Grievance
Committee ceased functioning in August
='Costabtle testified that she obtained Sterling's name from a neighbor
one day while in her yard hanging up clothes
"Sterling so testified He testified that as of the time of the hearing he
had not sent any bill to the independent because he still did not know how
much work was involved He testified that he received uo payments or
promises of payment from any other source, and Markowitz and the
Williams brothers testified that they had no understandings or
arrangements to pay for Sterling 's services and had nothing to do with his
retention.
by misrepresentation of facts signed cards which they did
not read" authorizing ILG to represent them. The letter
stated that the employees informed him that they were
revoking their authorizations, but that he would not
disclose their names at that time because they were fearful
that other pressure might be exerted against them in order
to have them sign new authorizations.31
The Grievance Committee members spread the word of
the October 25 meeting to other employees and asked
them to attend." From 8 to 12 employees attended the
meeting. Sterling told them that there were authorization
cards on his desk, that they could sign them there or take
them with them and sign them outside his presence. One
employee signed a card at the meeting and the others took
cards with them. Sterling testified that the purpose of the
meeting was to answer questions that some of the
employees had relating to revocation of their ILG
authorizations, whether there would be an election, and
the formation of the Independent. According to Sterling,
there was no discussion of the fact that some of the
employees had already given statements to Markowitz
with respect to revocation of their cards, and he did not
recall telling the employees on October 25 how to go
about revoking their authorization cards.32
None of the Grievance Committee members were
present at the start of the meeting, but during the
meeting, Sterling called Costabile and asked her to come
to pick up the blank authorization cards which were
ready. She arrived during the meeting to pick up the
cards, but did not participate in the meeting and did not
remain.
Following the meeting in Sterling's office, the
Grievance Committee and other employees solicited
signatures for the Independent authorization cards.33 Some
time thereafter in October or November, the Independent
held a meeting at Ruth May's house at which the bylaws
drafted by Sterling were adopted and officers wereelected.3a
Those elected were Dolores Dosch, president; Marylyn
Costabile, vice president; Grace Smith, recording
secretary; and Phyllis Paules, treasurer. Ruth Smith was
not elected to any office. The bylaws adopted provided
that dues and initiation fees would be established later. At
the time of the hearing, they had not been set. The
Independent has no treasury and has paid nothing to
Sterling.
Insofar as the record shows, the Independent held one
additional meeting after the election of its officers, but it
has not sought recognition from Respondent, and
Respondent has not dealt with it.
Costabile and Dosch denied that 'they received any
support or assistance from either Robert or Kenneth
"Sterling testified that he wrote this letter on the strength of what
Costabile and Dosch had told him. He did not send a copy of the letter to
Respondent or Markowitz, but called Markowitz before sending the letter
to learn Widmer' s address and discovered at the time the pendency of a
Pennsylvania Labor Relations Board proceeding. He testified that he had
read newspaper articles indicating that Markowitz represented Respondent
"Norma Henry testified that Dosch asked her to go to sign a card to get
an independent union in the shop . Both Dosch and Costabile testified that
they did not speak to employees other than the Grievance Committee
members until after their October 18 visit with Sterling
"After this meeting, Sterling did not write any further letter seeking
return of any particular cards He expressed the belief that each employee
would have to authorize revocation individually , but did not indicate
whether he communicated this belief to the employees present
"According to Norma Henry , she was solicited by Phyllis Paules at her
machine during working hours
"A written notice of the meeting , prepared by the Grievance Committee,
was passed around to the girls at their machines during working hours
DONNA LEE SPORTSWEAR 325
Williams in the formation of the Independent. They also
denied that the Grievance Committee members have
received any special privileges or favors from Respondent 35
Costabile also denied that the Independent was formed
or promoted by the Grievance Committee to take over its
functions.
5. Concluding findings as to Section 8(a)(2)
The evidence as to the circumstances of the formation
of the Grievance Committee and Respondent's dealings
with it before May 8, 1967, all predates the filing of the
8(a)(2) charge by more than 6 months and therefore was
received only as background evidence. As such it may be
utilized "to shed light on the true character" of events
occurring after May 8, 1967, but it may not be relied on
to render unlawful conduct occurring after that date which
would otherwise be lawful 36
Here the evidence shows that Respondent continued to
deal with the Grievance Committee, stipulated to be a
labor organization, during the critical period with respect
to pay increases and grievances both before and after the
ILG demand The Grievance Committee continued to
exist during that period with no formalized structure.
While the establishment of the Committee may not be
attacked by the complaint, the facts as to its
establishment illuminate the status of the Committee
members during the critical period and show that insofar
as any employee could tell, the Committee members
continued to serve at the pleasure of Robert Williams,
who having conducted the initial election of the
Committee and established its ground rules, retained the
power to conduct a new election or change the ground
rules at any time.
Apart from Respondent's continued dealings with the
Grievance Committee with respect to grievances and pay,
the evidence shows that the Grievance Committee was
instrumental in bringing employees, to Respondent's office
to give statements concerning their authorization cards.
The facts as to what Kenneth Williams and the Grievance
Committee members said to each other are left in some
mystery, as their conversations occurred outside the
presence of other employees and I am convinced that their
testimony revealed considerably less than the whole truth.
But it is clear that soon after the ILG demand for
recognition on September 7, the Grievance Committee
met with Kenneth Williams and that on the next day
Costabile spoke with Williams and was referred by him to
his lawyer. These contacts between the Committee
members and Williams were accompanied by visits to the
employees at their machines by the Committee and efforts
of the Committee to induce other employees to take
action to indicate their desire to withdraw their ILG
authorizations. Whether the initiative of the Committee
was stimulated by the complaint of Dietz and possibly
other employees, it is clear that the Committee did not
merely passively receive complaints from employees, but
actively solicited employees to register their desire to
withdraw their authorizations. At least in the case of
Fauth the effort was aggressively pursued. The inference is
strong that the efforts of the Committee in this respect
grew out of the initial contact between the Committee and
Kenneth Williams. Even if they were independently
"Cositabile conceded that she and her husband have a social relationship
with Robert Williams outside of work, but testified that she did not talk
shop wu,h Williams when she socializes
"Local Lodge No 1424, IAM v N.L R.B, 362 U.S. 411
pursued at first, it is clear that at the very latest
Respondent entered the activities of the Grievance
Committee with the referral of Costabile to Respondent's
attorney by Williams. While the exact nature of that
referral is not revealed by Costabile's testimony, it is clear
that at that point the efforts of the Committee members
became focused upon soliciting employees to visit
Respondent's attorney, who in the eyes of the employees
could hardly be distinguished from Respondent, to state
their desire to revoke their authorization cards. From this
point on any claim that the Committee's activities were
independent must be rejected. That the Committee
members and Respondent were pursuing a joint effort is
even more clearly established by the events of September
11. While there is no direct evidence that the Committee
and Kenneth Williams merged their efforts to induce
employees to visit Markowitz' office, I have not credited
Williams' testimony that he independently solicited
employees to visit Markowitz because of the events of that
morning, but conclude that Williams gave the assignment
to the Committee members who in soliciting other
employees to go to Markowitz' office related the purpose
of the visit to withdrawal of ILG authorizations as did
Supervisor Dayhoff in supporting their efforts to induce
Fauth to visit Markowitz.
In sum, I conclude that evidence sustains the inference
that Respondent encouraged and utilized the Grievance
Committee to solicit withdrawal of ILG authorizations by
employees and offered the services of its attorney for this
purpose .31 This activity went beyond mere passive
assistance to employees who expressed a desire to
withdraw their authorizations, and put the employees in
the position in which they had to reveal their wishes with
respect to their authorizations directly to Respondent by
either visiting its attorney to state their wishes to him or
declining to do so. I conclude that Respondent's conduct
in this regard constituted unlawful interference with the
rights of its employees in violation of Section 8(a)(1) of
the Act.38
I conclude also that Respondent's recognition and
continued dealing with the Grievance Committee during
the critical period also constituted unlawful assistance to
the Committee. Whether or not Respondent had formally
recognized the Grievance Committee as the exclusive
representative of its employees, it dealt in fact with the
Committee as the representative of all its employees. The
utilization of the Grievance Committee to induce
employees to visit Markowitz' office clearly placed the
Grievance Committee in the position of a favored
organization. When viewed in the light of the background
evidence as to the formation of the Committee,
Respondent's continued recognition of the Grievance
Committee during the critical period both before and after
the ILG demand for recognition constituted unlawful
assistance to the Committee.39 Although there is some
evidence to support the allegation in the complaint that
Respondent dominated the administration of the
Grievance Committee, I find it unnecessary to decide
whether Respondent's role in the affairs of the Grievance
"Although not essential to this conclusion, this inference is strengthened
by the background evidence establishing Respondent ' s role in the
formation of the Grievance Committee
"Manila Manufacturing Company , 171 NLRB No 151, The National
Cash Register Company , 167 NLRB No. 153; Big Ben Department Stores,
Inc, 160 NLRB 1925, enfd. 396 F.2d 786 (C.A. 2), Heights Funeral
Homes , Inc., 159 NLRB 723, 734-735 enfd. as modified 385 F 2d 879
(C.A. 5)
"The National Cash Register Company, 167 NLRB No. 153
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Committee amounted to domination of its administration
in view of my findings below with respect to Respondent's
refusal to bargain with the ILG.40
With respect to the Donna Lee Sportswear Employees
Independent Union, the evidence established that the three
members of the Grievance Committee, and particularly
Costabile caused its formation. Dosch and Costabile
became its two top officers. There is no evidence that the
Independent sought or received recognition by
Respondent, but Sterling testified that at the meeting of
employees at his office at which Independent
authorization cards were distributed, one of the questions
he discussed was whether there would be an election.
Although Costabile denied that the Independent was
formed by the Grievance Committee to take over its
functions, it strains credulity to conclude that the
Independent was formed by the Grievance Committee to
function as a rival organization to the Committee. It more
readily follows from the evidence that the Independent
was promoted by Grievance Committee members to
constitute a more formalized organization in which other
employees could also participate to stand in place of the
Grievance Committee in the event that the question of
representation of Respondent's employees was ultimately
to be resolved by an election.
Here there was no disappearance of the Committee
followed by later formation of the Independent. Rather
the members of the Grievance Committee, at a time when
I have found that Respondent continued to assist the
Committee, formed the independent as an alternative
organization in which two of the three members of the
Committee continued to play a dominant role. In these
circumstances, I conclude that the Independent was an
alter ego to the Grievance Committee and inherited
Respondent's unlawful assistance to the Grievance
Committee in the absence, prior to formation of the
Independent, of a remedy for Respondent's unlawful
assistance to the Committee and assurance to the
employees of freedom from further interference in their
choice of a bargaining representative." Although the
evidence relating to the formation and structure of the
Independent raises strong suspicion that Respondent's
involvement in its affairs went beyond what the testimony
purports to show, there is no independent evidence to
establish Respondent's role, and I find it unnecessary to
consider further whether Respondent also dominated the
formation of the Independent for the same reasons that I
find it unnecessary above to consider further its alleged
domination of the administration of the Committee.
B. The Discharge of Mary Fizer
On Friday, September 8, shortly before the end of the
workday, Mary Fizer was called into Kenneth Williams'
office and was told that she was terminated because her
work was unsatisfactory and she talked excessively at
work. Fizer had worked at the plant less than a month,
having started work on August 14. Fizer was one of the
nine employees who were called to Robert Williams'
office by the ILG representatives on the morning of
September 7 to be present when the Union made its
recognition demand.
Fizer was initially assigned by Respondent to work as a
floorgirl, and shortly thereafter she was given additional
"See Drives . Incorporated, 172 NLRB No 101
°Huberta Coal Co., Inc., 168 NLRB No 22; United States Railway
Equipment Company , 172 NLRB No 51
duties as an assistant to Floorlady Donna Himes. Fizer
denied that she had received any warnings or criticism
about her work before she was discharged, but testified
that on one occasion shortly after she was assigned to
assist Donna Himes, she and another floorgirl, Nancy
Diffenderfer, were called into Kenneth Williams' office
and were complimented by him about their work.
According to Fizer, after the ILG representative visited
the shop, her duties were increased twice before she was
fired by the addition of more operators to those for whom
she was required to take out work.42
Respondent's evidence was in sharp conflict with the
testimony of Fizer. In summary, Respondent's witnesses,
Robert and Kenneth Williams and Donna Himes testified
that Fizer initially worked well, prompting them to give
her additional duties as Himes' assistant. However, almost
immediately thereafter, Fizer began to neglect her duties,
spending excessive time visiting and talking with other
employees, and frequently leaving the production floor to
visit the ladies' room. It was their version that on August
23, Donna Himes spoke to Fizer about her deficiencies
and urged her to change her ways, that Fizer did not
improve, that on September 1 at Himes' request Williams
spoke to Fizer about her deficiencies, telling her that if
they were not corrected he would not put up with them,
and that when she still did not improve he decided on
September 8 to discharge Fizer after first getting the
approval of Respondent's attorney In support of this
version, Respondent offered in evidence three interoffice
memos dated August 23, September 1, and September 8,
allegedly written on those dates memorializing the
counseling of Fizer by Himes, the warning of Fizer by
Williams, and the discharge decision. According to
Respondent's witnesses, Fizer's union activities played no
part in the decision to discharge her. Kenneth Williams
and Donna Himes denied that they were even aware that
Fizer was supporting the ILG at the time of her discharge,
and Robert Williams testified that the decision to
discharge Fizer was made by Kenneth and that he became
aware of it and approved it only after it had occurred.
I am convinced that the truth lies somewhere between
the two competing versions. On the one hand Fizer's
testimony as to the increase in her duties following the
ILG demand is clearly inaccurate at the very least. Thus
she testified that she was given two additional operators to
service after the ILG demand, that she was given two
more operators to service a couple of days after that, and
that she was discharged a couple of days after that. As
her discharge occurred the day after the ILG demand, this
testimony cannot be accurate.d3 There is a strong
suggestion that following her discharge Fizer's view of her
employment was colored by resentment over her treatment
by Respondent and that she tended to view her
performance in purer terms than the facts warranted. If in
fact the number of operators she serviced was increased,
the increase may have accompanied her removal as an
assistant to Himes, a fact as to which she was not
questioned and to which Respondent's witnesses testified
without contradiction.
On the other hand serious discrepancies in the
testimony of Respondent's witnesses persuade me that
"'Dorothy Goheen testified in support of Fizer that she had no
complaints about the way Fizer took out work for her and had never heard
other operators complain Goheen also testified that Fizer ' s duties were
increased after the ILG demand , but it is not clear that she was in a
position to observe any more than that Fizer 's assignment was changed
"'Finer also testified , contrary to a later̀ stipulation , that she started to
work in July and worked for 2 months before she was discharged.
DONNA LEE SPORTSWEAR 327
their testimony as to Fizer's work performance and the
circumstances of her discharge was even more colored by
their need to defend their decision to discharge her.
Robert Williams testified that Fizer started out in her
employment as "a ball of fire" but then slacked off after
she was made Himes' assistant. However, Himes, who
initially corroborated this testimony, testified that Fizer's
excessive talking and absences from the floor to smoke
and primp in the ladies' room had gone on continuously
from the time she started to work at the plant. Kenneth
Williams testified that Himes' initial complaint on August
23 concerned not only Fizer but two other employees,
Nancy Diffenderfer and Raeann Quickel, that on
September 1, Himes again complained to him about the
work of all three, and that he then spoke to them. The
interoffice memo allegedly prepared by Himes on August
23 names Fizer and Diffenderfer, and the memo allegedly
prepared by Williams on September 1 names all three.
Himes initially corroborated Williams in her testimony,
although she stated that she spoke to Quickel separately
from Fizer and Diffenderfer and she did not mention that
she made a later complaint about Quickel. However, she
later testified that at the time of her talk with Diffenderfer
on August 23, Diffenderfer said that she wanted to do
better and that Diffenderfer improved after that. She also
testified that she made no further reports about
Diffenderfer but reported orally only that Diffenderfer was
doing better. The conflict between Williams and Himes in
this regard casts strong doubt on the authenticity of the
interoffice memos offered by Respondent as
contemporaneous recordings of the events they purport to
record. It is inconceivable to me that Williams would have
warned Diffenderfer on September 1 at Himes' request in
the face of Himes' observation that she had improved
after August 23 or that he would have mistakenly included
Diffenderfer' s name in a memo made contemporaneously
with the September 1 warning. I conclude that no credit
can be given to Williams' testimony as to the time of the
preparation of the September 1 memo and indeed that this
conflict casts a long shadow over the testimony as to the
origin of the other memos.44
The testimony of Respondent's witnesses is also in
conflict concerning the events of the day Fizer was
discharged Kenneth Williams testified that on September
8 he discussed Fizer's employment with Himes, made
Robert Williams aware of the situation, and after
checking with Respondent's lawyer, decided to terminate
Fizer. Robert Williams testified that he was not consulted
by Himes or Kenneth Williams before Fizer was
discharged, but believed that he discussed it with Kenneth
after the discharge occurred.45 Donna Himes testified that
on the day of Fizer's discharge she spoke to Robert
"Because the authenticity of the dates of these memos and the regularity
with which such memos were made and kept by Respondent were
challenged by the General Counsel and the Charging Party, I have closely
examined the physical appearance of the memos That examination gives
some basis to believe that contrary to the testimony of Kenneth Williams
and Himes, the August 23 memo was not typed by Himes on a different
typewriter from that used by Williams in typing the September 1 and 8
memos However, as I do not believe that this conclusion may be drawn
without the aid of more sophisticated expert analysis and I have concluded
on the basis of ample other evidence that Williams and Himes are not to
be credited, I have not relied on this observation in resolving the credibility
issues before me. See 7 Wigmore , Evidence Sections 2023, 2024, 2149 (3d
ed.); Osborn , Questioned Documents , pp. 581-662 (2d Ed Boyd Printing
Co., 1964). If I had doubt on the basis of the evidence otherwise as to the
resolution of the credibility issues relating to Fizer' s discharge , I would
have considered reopening the record to obtain expert testimony as to the
source of these memos.
Williams in his office before lunchtime. According to her,
Robert Williams asked her how Fizer was doing, and she
replied that Fizer was not working out and they could not
use a person like that. She testified that she also spoke to
Kenneth Williams either before or after lunchtime that
day and told him the same thing. She testified that she
recommended Fizer's discharge to Robert Williams, and
not to Kenneth, and that Robert said nothing further
about it until later that afternoon when he told her that he
had been watching Fizer the rest of the day and decided
that it was time for her to be discharged 46 Himes'
testimony is thus in direct conflict with that of Robert and
Kenneth Williams that Robert Williams played no direct
part in the decision to discharge Fizer.
To bolster their denials that Fizer's discharge was
caused by her ILG activities, Kenneth Williams and
Himes denied knowledge of Fizer's ILG activities.
Kenneth Williams testified that he was not aware that
Fizer was a member of the ILG at the time of her
discharge and added that she was the last one he would
have thought was for the ILG because she had visited
Robert Williams at his home" and he felt that she liked
her place of work. Apart from the evidence set forth
below that persuades me that both Williams and Donna
Himes knew the identity of the employees who left their
work to join the ILG representatives on September 7
when they visited the plant, I find it incredible that
Williams would have believed that Fizer was the last
person who would be for the ILG, if he also believed that,
as he testified, he had warned Fizer that he would not
continue to put up with her work performance. Himes
also testified that when she recommended Fizer's
discharge, she had no idea whether Fizer was a member of
the ILG. Yet when questioned about the visit of the ILG
representatives on September 7, she conceded that she had
heard ILG Representative Paluscio call out Fizer's name
at the back of the shop and had observed Paluscio later
telling Fizer that the Union was not through with them
yet and not to worry because they were on union business.
Their denials of knowledge can not be credited.
The burden of establishing that Fizer's discharge was
based on her union activities rests with the General
Counsel. It is not incumbent upon Respondent to prove
the contrary I am persuaded that the General Counsel
has sustained his burden. Fizer was one of the nine
employees who accompanied the ILG representatives to
Robert Williams' office, and this fact was known to
Respondents, as shown below. Her discharge followed the
ILG demand by only 1 day, and it was contemporaneous
with the efforts of the Grievance Committee, supported by
Respondent, to attempt to persuade employees to visit
Respondent's lawyer and register their desire to revoke
their ILG authorizations. These facts support an inference
that whatever deficiencies Fizer's work performance may
have had, it was her union activities and not work which
caused her discharge at this time. Far from negating that
inference, Respondent's evidence in defense adds further
substance to it. The unpersuasive attempts to deny
"'Initially Robert Williams testified that he was not at the plant between
September 7 and 14. Later he testified , however, that he believed he was at
the plant on September 8, but could not remember what time of the day he
was there. He also indicated uncertainty as to when he discussed Fizer's
discharge with Kenneth
46Himes also testified that Robert and not Kenneth told Fizer she was
discharged , but that she was not present at the time.
"There is evidence that on one occasion on a date with Chris Costabile,
brother-in-law of Marylyn, Fizer spent an evening with Robert Williams,
Tony Costabile, and their wives
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knowledge of Fizer's ILG activities, the conflict in the
testimony as to when Fizer's work turned sour, the
attempt to bolster the discharge with ex post facto
memos, and the conflict in testimony as to the events of
the day of Fizer's discharge all lead to the conclusion that
Respondent sought to invent a story to cloak the true
circumstances and cause of Fizer's discharge.41 In these
circumstances, I conclude that whatever faults Fizer may
have had, she would not have been discharged on
September 8 but for her union activities and that her
discharge violated Section 8(a)(3) of the Act."
C. The Alleged Refusal to Bargain with the ILG
1. The ILG organizational efforts
On or about August 28, 1967, employee Dorothy
Goheen telephoned Velma Haugh, a business agent of the
ILG. As a result Haugh and several other representatives
of the ILG started to visit Respondent's employees at
their homes and urged them to sign authorization cards
for the Union From August 28 through September 6, 21
employees of Respondent signed authorization cards for
the Union 50 Six of these employees signed blue
authorization card forms which contained the following
printed matter.
International Ladies' Garment Workers' Union
Affiliated with the A .F.L.-C.I.O.
AUTHORIZATION CARD
I, of my own free will, hereby authorize the
INTERNATIONAL LADIES' GARMENT
WORKERS' UNION, its affiliates and its
representatives, to act exclusively as my agent and
representative for the purpose of collective bargaining.
Print Name
Address
(Street and Number)
City State
Employed by
Employer's Address
Signature Date
STRICTLY CONFIDENTIAL
"The testimony of Respondent's attorney that Kenneth Williams spoke
to him by telephone before the discharge and secured his approval of the
decision does not overcome the serious deficiencies in Respondent's
evidence Among other things , Markowitz testified that Williams told him
that Fizer was insubordinate to Himes, was not doing her job , and was
talking and walking around the plant instead of working The only
independent evidence of insubordination by Fizer concerns Fizer's remarks
to Himes after Fizer's discharge It appears likely that Markowitz, whose
testimony shows other failures of recollection , was mistaken and that his
conversation with Williams came after Fizer's discharge and not before.
"Ulbrtch Stainless Steels , Inc. 164 NLRB 130, enfd. 393 F.2d 871
(C.A. 2) See also N L R B v Dee's of New Jersey, Inc, 395 F 2d 112, fn
4 (C.A. 3)
"Six additional persons signed cards who at one time , and possibly at
the time of signing , were employees of Respondent However, it was
stipulated that they were not on Respondent 's payroll at the time the
Union requested recognition on September 7
The remaining employees signed yellow cards which
were identical to the blue card except that the words
"STRICTLY CONFIDENTIAL" do not appear on
them
In the course of their visits to employees to solicit
signatures, the ILG representatives discussed union
organization with employees and sought to persuade them
to give ILG their support
The union representatives testified generally, with some
variation, that they explained wage, vacation, and holiday
benefits under union contracts without promising
specifically that they would obtain these benefits from
Respondent if ILG became the representative of
Respondent's employees. They also explained certain
health and welfare benefits offered by the Union directly
to its members, including a union-operated pharmacy and
a program for obtaining eyeglasses ILG Organizer
Mathews testified that in describing union contract
benefits he did not tell the employees that he could not
guarantee that ILG could obtain for Respondent's
employees what it had secured at other shops, and the
testimony of Norma Henry indicates that she understood
Mathews as telling her that the Union would obtain
similar benefits for Respondent's employees."
ILG Representative Haugh discussed what would be
done with cards with two employees, Letha Dietz and
Ruth May Haugh testified that this discussion occurred
when these employees, whom she visited separately, asked
her if there would be an election. According to Haugh,
she replied that if the ILG obtained cards from more than
50 percent of the girls, there would be a card check, and
she explained that a card check meant that some impartial
person would go over the cards. Haugh denied that she
told Dietz that the cards would not be shown to Williams
or would be kept confidential Dietz testified that she
asked Haugh several times if Robert Williams would see
her card, and that Haugh told her that the only way that
he would see the card was that if he did not believe that
the employees had signed them and that they would have
a minister or an attorney check the cards. May did not
testify. The testimony of Haugh and Dietz is not in
conflict although each places her emphasis on different
portions of Haugh's remarks. Even from Dietz' testimony
it appears that Haugh did not say that Williams would
never see the cards, but sought to reassure her that before
Williams would see them an impartial person would see
them first and that the only reason Williams would see
her card would be that he wanted to inspect the
handwriting or signature.
The ILG representatives also concededly made
statements to employees concerning the number of
employees who had signed cards. Mathews testified that
he did not recall exactly what he said to the individual
employees but that he might have made statements to
them indicating that just about everyone the organizers
had thus far seen had signed cards and that at the rate
they were going, they would soon have a majority. Haugh
testified similarly that she told employees Ruth May and
"Mathews obtained cards from five employees who were in the
bargaining unit on September 7 They were Marie Smith, Rachel Ruby,
Roberta Little, Phyllis Paules, and Anna Paules Mathews' testimony
indicates that he had no clear recollection of what he told any individual
employee, but that he told all of them about the same things He visited
Henry , but she did not sign a card until a later visit by Representatives
Haugh and Hoffman None of the employees who signed cards at
Mathews' request were called as witnesses
DONNA LEE SPORTSWEAR 329
Raeann Quickel that all but two of those she had seen had
signed cards. Neither May nor Quickel testified. However,
Norma Henry testified that when Mathews visited her,52
he said simply that a majority of the girls had signed
cards without specifying whether his reference was to the
girls in the shop or the girls he had seen Ruby Rodefer
testified that she was visited once by Haugh on August 28
when she told Haugh she wanted to wait and see how
other employees felt about the Union. She was visited on
August 31 by Russo and Paluscio. She testified that at
that time one of them said something to her about a
majority having signed cards, but that she had decided to
sign a card before they came and had independently
concluded that the ILG had majority support from talk
she had heard among the employees in the shop.53
Haugh also testified that she told one employee, Betty
Ruby that there would be no initiation fee for those who
came in the Union as a group at the time the shop was
organized, but that anyone who joined later would be
required to pay an initiation fee.
2 The ILG demand for recognition
On the night of Wednesday, September 6, the ILG
representatives held a meeting for Donna Lee employees.
Nine employees attended. At this meeting the ILG
representatives discussed with the employees the policy to
follow in the campaign and decided that the next morning
at the employees' breaktime they would visit Robert
Williams to request recognition on the basis of the
authorization cards they had received from a majority of
the girls in the shop. They asked the nine employees
present to join them in Williams' office at the time they
made the demand for recognition.
The next morning, September 7, at approximately 9:30,
ILG District Manager Hoffman, Director of Organization
Phil Russo, Business Agent Velma Haugh, Organizer
Thomas Mathews, and Organizer Jane Paluscio entered
the front door of the plant.54 The door opens into a
hallway running toward the rear of the plant. At one side
of the hall are three offices running along the hall toward
the rear of the plant. Closest to the entrance is Robert
Williams' office. The office used by Kathleen Williams,
who serves as the plant secretary, is next, and Kenneth
Williams' office is last. Across the hall from the offices is
the plant cafeteria. At the end of the hall at the rear of
the building is the production area. The rear wall of
Kenneth Williams' office is adjacent to the production
area and has a window through which he can look into the
production area.
Upon entering the plant, the ILG representatives
encountered Kenneth Williams in the hallway. Hoffman
asked to speak with Robert Williams. Kenneth asked
Hoffman to wait there a few minutes and went to find
Robert. Mathews, Haugh, and Paluscio went to the
production area at the rear of the plant where they called
out the names of the enployees who had agreed to join
them in Williams' office. The morning break period had
not yet started but these employees left their machines
"As indicated Henry did not sign a card on that occasion The date of
Mathews ' visit to Henry was not established , but necessarily occurred
before September 1 when she signed a card.
"Russo was not questioned about this , and Paluscio did not testify
''Except where indicated below, my findings as to what happened during
the visit of the ILG representatives to the plant are based on a synthesis of
the testimony of Hoffman, Haugh, Mathews, Robert Williams, Kenneth
Williams, and Donna Himes, who were in basic agreement as to the
sequence of events, although not as to all significant details
and went toward the front of the plant. They were Mary
Fizer, Dorothy Goheen, Betty Ruby, Patricia Fauth,
Lucienne Arsenault, Norma Henry, Mildred Seiple, Betty
Cook, and Sharon Fizer.
Robert Williams came from the back of the plant to
where Hoffman and the ILG representatives were waiting.
Hoffman introduced himself, and Williams invited them
to enter his office. The ILG representatives entered the
office along with Robert and Kenneth Williams. Hoffman
told Robert Williams he had a committee and wanted
them present while they talked. Williams consented, and
at least some of the employees who had left their
machines entered the office.55 Hoffman told Williams that
the ILG had signed up a majority of his employees and
asked Williams to sit down and negotiate a contract with
him.56 Robert Williams indicated surprise at Hoffman's
claim of a majority At that point Kenneth Williams left
Robert's office and went to his own office to place a call
to Respondent's attorney, Markowitz. Hoffman proceeded
to count out on Robert Williams' desk 27 authorization
cards that he had been holding in his hand. Williams went
through the cards57 and laid three aside stating that the
employees who had signed them had quit a couple of days
before.58 Hoffman asked Williams if there was still a
majority, and Williams replied that there was.59 Hoffman
asked Williams how many employees he had, and he
replied that there were less than 40.
At this time Kenneth returned to Robert's office and
told Robert there was a telephone call for him. Robert
went to Kenneth's office to take the call while the union
representatives waited in Robert's office with Kenneth.
Williams told Markowitz that the ILG representatives
had come to the plant and wanted him to sign a contract.
Markowitz advised Williams to tell the ILG
"There is a conflict in the evidence, discussed below, as to how many
employees entered the office
"Hoffman and Haugh testified that Hoffman asked Williams to
negotiate a contract. Robert and Kenneth Williams testified that Hoffman
said they were there to sign a contract For reasons set forth below in the
conclusions, I find it unnecessary to resolve this conflict.
"According to Williams, Hoffman asked him if he would like to see the
cards and Williams said that he would Hoffman testified that Williams
also counted the cards However, his testimony in this regard was not
supported by Russo or Haugh and was denied by Williams I find that
Williams did not count the cards but looked through them
"Williams testified that it was his recollection that all the cards which
Hoffman showed him were blue, unlike most of those identified at the
hearing Hoffman testified that he showed Williams the cards which he
identified at the hearing. If Williams were correct, then the ILG either had
duplicate cards from most of the employees or obtained new cards from
most of those who had signed after the demand for recognition Although
there is evidence that one or two employees signed a second card before
the demand for recognition, there is no evidence to indicate that a majority
of the signers signed a second card at any time If the ILG had sought to
replace the blue cards with yellow cards after the demand because of the
difference in the printed matter on them , it is unlikely that it would not
have obtained yellows cards from Dorothy Goheen and Betty Ruby, two of
its earliest and most persistent supporters , while obtaining them from
employees who gave statements to Respondent 's attorney a few days after
the ILG demand . One would also expect that if replacement cards were
obtained from those who visited Respondent's office, Respondent would
have been able to produce direct evidence of the fact that their yellow
cards were solicited as replacements for blue cards signed before the
demand. In these circumstances , and as Williams frequently pleaded an
uncertain memory and was less than definite in his responses , I do not
credit Williams
"Hoffman and Haugh both so testified Williams conceded that at one
point Hoffman asked him if he doubted that the Union had a majority and
that he replied that he did not doubt it if Hoffman said so. At one point he
testified that this occurred before Kenneth Williams returned to the office,
but he also testified that it occurred after Kenneth 's return
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representatives to file a petition for an election.60
Robert Williams returned to his office and told
Hoffman that the ILG should petition for an election.
Hoffman asked why they should petition, reminding him
that he had seen that the Union had cards from a
majority of the girls. Robert replied that he had just
talked to his lawyer who had said that was what Williams
should say. Hoffman asked who Respondent's lawyer was
and Williams told him." Robert Williams testified that
Hoffman again asked him if he doubted that the Union
had a majority and that Williams replied "If you say so,
Sol.""
At that point the ILG representatives started to leave
Robert Williams' office. As they were leaving, in the
presence of the employees who had come up to Williams,
Hoffman reminded Williams and ILG representatives
assured the employees that it was unlawful for
Respondent to discriminate against or intimidate any
employee who wanted the Union. Hoffman also told
Williams that whether or not he dealt with a union
manufacturer the employees had a right to join a union
and that the ILG represented the employees of many
contractors in the area who worked for nonunion
manufacturers. 63 The ILG representatives then told the
employees to return to work, and they left the plant.
As indicated above, there is a conflict in the evidence as
to the number of employees who entered Robert Williams'
office with the ILG committee. Resolution of this conflict
is significant only insofar as it bears upon Respondent's
knowledge of the identity of the employees who came to
"Williams testified that he did not remember telling Markowitz that
Hoffman had cards with him or that the cards were mentioned by either of
them. He was not certain whether he mentioned that the Union claimed to
represent a majority . Markowitz testified that Williams told him that
Hoffman had shown some cards to Williams but that Williams was
unfamiliar with the signatures on the cards and could not recognize them
and did not know what it was all about. If Williams had discussed the
cards and his inability to recognize their genuineness with Markowitz, I
find it unlikely that he would not have given this as a reason for wanting
an election after his conversation with Markowitz , particularly in the light
of his lame explanation at the hearing for not taking issue with Hoffman's
majority claim . Markowitz spoke to Williams later in the day at
Markowitz ' office , and Markowitz testified that at that time when
Williams told him what had happened that morning , he asked Williams
whether he could recognize the signatures or was familiar with the cards I
conclude that Markowitz confused the afternoon visit with the morning
telephone call, and credit Williams ' version of the telephone call over
Markowitz',
"According to Williams, at this point Hoffman said that the Union had
a majority and that if Respondent did not sign a contract , he would pull
the employees out on strike . He testified that Hoffman also said that he
would not be able to work and that ILG would not let trucks come to the
plant Kenneth Williams also testified that Hoffman said "we will strike"
or something like that and Robert said nothing. As set forth below, I am
persuaded that the strike which started on September I I was caused by the
discharge of Mary Fizer and not the refusal to bargain Moreover,
Hoffman testified that he told Williams that he knew Markowitz from
other dealings and might be able to contact him Hoffman later called
Markowitz to see if recognition could be arranged In view of these facts
and my findings as to the credibility of both Williams ', I do not credit
their testimony that Hoffman threatened a strike while in Williams' office
"Williams testified that this exchange occurred after he had spoken to
Markowitz He explained that he was not going to stand there and argue
because Hoffman had most of his people in the hall and he needed
production . According to Williams, the break period had ended at this
point Williams also testified most illogically that he did not recognize the
signatures of his employees , could not tell whether they were genuine, and
for that reason did not question their genuineness at any time that
morning.
"These statements appear to have been made with reference to reports
Hoffman heard of a speech by Robert Williams to the employees
Williams' office with the ILG committee. I find it
unnecessary to decide how many of the employees actually
entered Williams' office, as I find it clear from the
testimony of Respondent's witnesses that Respondent
learned the identity of those who joined the ILG
representatives. Thus, although Robert Williams testified
that he could only recall two employees who were in his
office, he also testified that when he left his office with
Hoffman at the end of the visit, he saw from 7 to 10
employees in the hallway whom he recognized at the time
but could not identify at the time of the hearing. Kenneth
Williams testified that while he was in Robert Williams'
office no employees were in the office but that he saw
employees in the hallway. He testified that when the ILG
representatives left the office there were some employees
in the hallway, of whom he noticed only three. He also
testified that when he went to and from his own office in
connection with the telephone call to Markowitz, he
walked through the middle office and did not go into the
hall. Supervisor Donna Himes testified that when the ILG
representatives first entered the plant, ILG Representative
Paluscio went to the production area and called off the
names of employees to come to the office. Himes testified
that she saw several of the employees come forward, and
that she remembered several of the names that were called
including Mary Fizer's but not Patricia Fauth's. Himes
also testified that during the entire time the ILG
representatives were in Robert Williams' office, she was
seated in the adjacent office with the connecting door
opened a crack. She testified that during that time she did
not see Robert or Kenneth Williams. She also testified
that at the end of the break period she saw Jane Paluscio
stop some employees in the hall, including Mary Fizer
and Dorothy Goheen, to tell them that the Union was not
through with them yet and not to worry because they were
on union business. She testified that she did not see any
other employees because she was too confused and upset
From this testimony it is clear that Respondent knew at
the time which employees had come forward to join the
ILG representatives. Hoffman had asked to have a
committee present and Williams' had consented.
Assuming that the employees could not all fit into the
office, Williams must have known that the employees
standing outside the door of his office were there for the
same reason as those inside. Himes had heard the names
of the employees called off by Paluscio, had seen some of
them come forward, and saw some of them in the hall
talking to Paluscio The conflict between the testimony of
Kenneth Williams and Donna Himes indicates that one or
the other of them was not truthful in his efforts to put
himself in a place where he could not see the employees
while the ILG representatives were in Robert Williams'
office. Either Himes did not remain in the middle office
during the period of time she said she was there, or when
Robert and Kenneth Williams went to the telephone in
Kenneth's office, they both passed through the hall where
the employees, if any, who had not entered the office were
standing. I am convinced that among them, the Williams
brothers and Himes had ample opportunity to identify the
employees who came to Robert Williams' office in
support of the ILG and knew who they were.
3. Conclusions as to the ILG majority
I find, as alleged in the complaint, that all production
and maintenance employees of Respondent, employed at
its York, Pennsylvania, plant, excluding office clerical
employees and supervisors as defined in the Act,
DONNA LEE SPORTSWEAR 331
constitute a unit appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the Act 64
The parties stipulated as to the composition of the
bargaining unit on September 7, the date of the ILG
demand. Pursuant to their stipulation I find that there
were 31 employees in the bargaining unit of whom 21 had
signed authorization cards for the ILG. Their cards were
among the 27 cards presented to Robert Williams by
Hoffman on September 7.65
As noted above , six of the cards were printed on blue
stock and bore the printed words "STRICTLY
CONFIDENTIAL" at the bottom . These cards were
signed by Dorothy Goheen, Betty Ruby, Letha Dietz,
Ruth May, Mildred Sieple , and Raeann Quickel. Two of
these employees , Dietz and May, also discussed with ILG
Representative Haugh what would be done with the cards
at the time they signed them Of these employees , there is
evidence that only Letha Dietz sought to obtain the return
of her card from ILG representatives following the ILG
demand Although there is evidence , as set forth above,
that Ruth May, Letha Dietz, Mildred Seiple , and Raeann
Quickel visited Markowitz ' office and gave him
statements concerning the solicitation of their cards, none
of these employees went further , despite Markowitz'
advice, to make an independent effort to revoke their
authorizations or obtain return of their cards . The record
does not establish that any of them , other than Dietz,
complained about a breach of confidentiality."
A representation by a solicitor that a card will be kept
confidential differs from a representation that a card will
be used only to obtain an election or for some purpose
other than that stated on its face . A representation as to
confidentiality does not detract from the purpose of the
card as an authorization or provide any basis for
concluding that the signer did not intend to authorize the
Union to represent him. The assurance of confidentiality
goes to allaying fears of retaliation rather than
misrepresentation of the purpose or effect of the card.67
Accordingly , I conclude that the printed matter on the
blue cards , which does not appear to have been discussed
by four of the six employees who signed them, does not
detract from the effectiveness of these cards as valid
authorizations despite the fact that ,the cards were shown
to Robert Williams.68
1 find further that in the case of Ruth May, the
uncontradicted testimony of Velma Haugh as to what she
"Respondent amended its answer at the hearing to concede that the
allegation of the complaint as to the appropriate unit would be correct if
Respondent were engaged in interstate commerce , but to deny the
allegation because Respondent was not engaged in interstate commerce.
"The remaining six cards were those referred to in fn 50, supra.
"As indicated in section A, above , none of these employees , other than
Dietz, appeared as witnesses and their statements were not offered in
evidence Dosch's testimony as to complaints made to her in the plant was
on its face unreliable Markowitz did not testify that May complained on
September 9 that a promise to keep her card confidential had been
breached , and after initially testifying that she complained that Mathews'
visit to her was offensive , corrected his testimony only to the extent of
saying that he was mistaken The complaints of Quickel and Seiple at
Markowitz' office were not identified, except to the extent that Markowitz
testified that some of the 12 or 13 employees who visited him on
September it, complained about misrepresentations made to them in
securing their cards , but their basic complaint was about the disturbance at
the plant that morning. Seiple was among the group that met with the ILG
represent atives the night before the ILG demand and accompanied the
ILG representatives to Robert Williams' office.
"See Manila Manufacturing Company, 1-71 NLRB No 151.
"M. Koppel Company, 166 NLRB No. 114.
told May adds nothing to what the printed matter
indicated and that her card may also be counted Indeed
Haugh's explanation that the card could be used to obtain
recognition on the basis of a card check reenforced the
printed authorization on the card. The card of Letha Dietz
raises a closer question. It appears from Dietz' testimony
that she sought explicit assurance that her card would not
be shown to Williams Although Haugh indicated certain
conditions under which the card might be shown to
Williams, they were not the conditions under which the
disclosure occurred. Dietz promptly voiced her displeasure
over the disclosure and queried union representatives
about the return of her card. Although the above analysis
relating to the five other blue cards would indicate similar
disposition of this card, I find it unnecessary to decide
whether Dietz' card should be counted because, as I find
below, the ILG had a clear majority without her card.
The evidence as to statements made by ILG
representatives to employees otherwise relates to the
benefits discussed by organizers with employees, initiation
fees, and the number of employees who had signed cards.
The statements concerning union benefits were typical of
union organizing campaigns. Even if ILG Organizer
Mathews indicated to Norma Henry that the ILG would
get Respondent's employees similar benefits, as she
understood him to say, these statements did not amount
to flat promises of automatic increases once the ILG
secured recognition.69 Similarly there was no unlawful
inducement in Haugh's statement to Betty Ruby that
those who joined the ILG at the time of the organization
of the shop would not be required to pay an initiation fee.70
The various statements made to employees as to the
number who had previously signed cards do not, insofar
as the record shows, appear to have been
misrepresentations. It appears from the testimony of the
ILG representatives, as well as from the authorization
cards received in evidence, that most of the employees the
representatives visited signed cards and that it was true
that at the rate they were going, the ILG would soon have
a majority. While the date of Mathews' visit to Henry is
not established, it appears that it was likely to have
occurred on either August 30 or 31, when Mathews visited
a number of other employees. By the end of the evening
on August 30, the ILG representative had obtained 13
cards, including some from persons not on the payroll on
September 7, and by the end of the evening on August 31,
they had obtained a total of 22 cards of which 17 were
signed by employees who were on the September 7
payroll. Although it is doubtful that Mathews had
reasonable cause to believe that a majority had already
signed cards on August 30, it appears that he not only had
cause to believe that at some point during the evening of
August 31 but that it was most likely true.71 Thus, I
conclude that neither Henry, who did not sign her card
until September 1, Rodefer, who signed on August 31, nor
any other employee was induced to sign her card on the
basis of a misrepresentation as to the majority status of
the ILG. In any event such a misrepresentation would not
"R W Inc , d/b/a K-Mart Foods, 170 NLRB No 67; Better Val-U
Stores of Mansfield . Inc, 161 NLRB 762, 769-771 As noted above, no
employee other than Henry testified to Mathews ' statements in this regard.
"Fabricators , Incorporated, 168 NLRB No. 21.
"As the exact dates of payroll changes do not appear in the record, it
cannot be said with certainty that the ILG had cards from a majority by
the close of August 31 But as it appears that there were nine employees
whose status was in doubt, five of whom had signed cards, it is likely that
the ILG had a majority at that time.
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
invalidate their authorizations.72
Accordingly, I conclude that at the time of the ILG
demand for recognition, the ILG had valid authorizations
from at least 20 of the 31 employees in the appropriate
unit and was the majority representative of the employees
in the unit.
4. The refusal to bargain
As noted above, the evidence is in conflict as to
whether the ILG representatives asked Williams to
negotiate a contract or to sign a contract. I find it
immaterial which was said. There is no single formula
which must be followed in requesting recognition, and it is
clear that in presenting Williams with the cards signed by
the employees Hoffman sought to establish the status of
the ILG as representative of Respondent's employees for
the purpose of being recognized and entering into a
collective-bargaining agreement with Respondent.73
Although Williams inspected the cards and orally
acquiesced to the ILG majority claim, after speaking with
his lawyer, Williams told the ILG representatives to file a
petition and seek an election if it wished to represent his
employees, thus effectively declining to grant the
recognition sought by Hoffman.
In Aaron Brothers Company of California, 158 NLRB
1077, the Board stated:
While an employer's right to an election is not
absolute, it has long been established Board policy that
an employer may refuse to bargain and insist upon such
an election as proof of a union's majority unless its
refusal and insistence were not made with a good-faith
doubt of the union 's majority. An election by secret
ballot is normally a more satisfactory means of
determining employees' wishes, although authorization
cards signed by a majority may also evidence their
desires. Absent an affirmative showing of bad faith, an
employer, presented with a majority card showing and
a bargaining request, will not be held to have violated
his bargaining obligation under the law simply because
he refuses to rely upon cards, rather than an election,
as the method for determining the union's majority."
The burden rests upon the General Counsel to establish
bad faith, not upon the Respondent to establish its good
faith. "Where a company has engaged in substantial
unfair labor practices calculated to dissipate union
support, the Board, with the courts' approval has
concluded that employer insistence on an election was not
motivated by a good-faith doubt of the union's majority,
but rather by a rejection of the collective-bargaining
principle or by a desire to gain time within which to
undermine the union."75
Here there is evidence that almost immediately after
the ILG demand, the efforts of the Grievance Committee
to induce employees to visit Respondent's attorney to
state their desire to revoke their authorization cards
began. I have found above that the Grievance
Committee's efforts in this regard were not independent
but were assisted and encouraged by Respondent in
violation of the Act. These efforts were aimed directly at
undermining the employees' support of the ILG through
"G & A Truck Line, Inc., 168 NLRB No. 106.
"Steel City Transport, Inc v. N.L.R B, 389 F 2d 735 (C.A 3). There is
no evidence to suggest that Hoffman sought to compel Respondent to sign
a set of specific contract terms without change or negotiation . Compare
Roadhome Construction Corp, 170 NLRB No 91.
7"158 NLRB at 1078 (fns. omitted).
"Aaron Brothers Company of California, supra , 158 NLRB at 1079.
unlawful means. Also, contemporaneously, Respondent
discharged Mary Fizer in violation of Section 8(a)(3) of
the Act, as I have found, for discriminatory reasons
further evidencing a desire to undermine the ILG. This
evidence overrides any contrary inference that might be
drawn from Letha Dietz' complaint about the showing of
her card to Robert Williams and the less specific
testimony that other employees on their own initiative
complained about the way their cards were solicited or
indicated that they had a change of heart. Had
Respondent not engaged in contemporaneous unfair labor
practices and merely rested on its stated desire to have the
ILG put its claim to proof by means of an election, a
different question would be presented.76 But in the light of
the fact that the expressions of revocation of support for
the ILG, only one of which was communicated to the
ILG, were stimulated by Respondent's unlawful activity, I
conclude that any doubt Respondent entertained as to the
ILG majority stemmed from its own unfair labor
practices 77 Accordingly, I conclude that since September
7, 1967, Respondent has violated Section 8(a)(5) and (1)
of the Act by refusing to bargain in good faith with the
ILG as collective- bargaining representative of the
employees in the unit set forth above .78
D. The Replacement of Goheen, Rodefer, and Ruby
On Friday evening, September 8, ILG Representative
Russo learned of Fizer's discharge. The following morning
he telephoned Robert Williams and asked Williams if he
would take Fizer back. Williams declined to reinstate
Fizer. Later that day the union representatives decided to
put a picket line in front of the plant and to ask the
employees to honor it. On Sunday afternoon and evening
Russo and Mathews visited some, but not all, of
Respondent's employees at their homes and explained to
them their decision to call a strike at Respondent's plant.79
No general meeting of employees was held before the
decision was made or the picketing started
Russo testified that the discharge of Mary Fizer was
not, the sole reason for the decision to strike, but that the
decision was also motivated by the fear that other
employees would be discharged and - after a pause in his
testimony - the fact that Williams had refused to
bargain . Dorothy Goheen testified that she was told by
Mathews on Sunday, September 10, that Respondent had
fired Mary Fizer, that it was an unfair labor practice, and
that they were going to strike.80
"In this connection , I find it unnecessary to pass upon the General
Counsel' s alternative theory that Williams ' conduct at the time of the ILG
demand established that Respondent had no good-faith doubt of the ILG's
representative status at the time of the demand and sought an election
without a valid ground in violation of Section 8(a)(5), citing Snow & Sons,
134 NLRB 709, enfd. 308 F.2d 687 (C A. 9); Jem Mfg, Inc., 156 NLRB
643. -
"Manila Manufacturing Company , 171 NLRB No 151 , The National
Cash Register Company, 167 NLRB No 153.
"In reaching this conclusion, I do not rely on evidence of a speech by
Robert Williams to the employees at the start of the ILG campaign
Although some of Williams' remarks indicated that the advent of a union
would decrease employee work opportunities , he also at that time assured
the employees of their right to join a union , as Rodefer's testimony clearly
indicates . To the extent that Williams ' testimony as to this speech was in
conflict with that of Patricia Fauth , Dorothy Goheen, and Ruby Rodefer, I
credit the latter witnesses whose testimony was similar in content . Williams
equivocated extensively and confessed difficulty in remembering what he
said at this time I specifically discredit his equivocal denial of awareness
of union activity at the time of the speech
"Russo so testified.
"Goheen also testified that she joined the picket line for that reason and
DONNA LEE SPORTSWEAR 333
On Monday, September It, before the start of work, a
number of ILG representatives appeared outside the plant
along with union members from other shops and some of
Respondent's employees 81 At the outset that morning,
there was no well-defined picket line. However, some of
the ILG representatives had blocked the road leading to
Respondent's plant so that employees were required to
park their cars away from the plant and walk the rest of
the way. The opening of the plant was delayed by the late
arrival of Tony Costabile who had the keys to the plant
door. For a period of time a number of people milled
about including those who wanted to go to work and the
union representatives and supporters. Letha Dietz was
pushed by two women and fell as `she tried to walk toward
the plant."
When Tony Costabile arrived with the key and started
to open the plant door, more pushing and scuffling
ensued.83 Tony Costabile was prevented from opening the
front door of the plant but succeeded in opening a' side
door through which he and the others who wished to work
were able to enter.84
After the employees entered the plant, a picket line was
drawn along the edge of Respondent's premises, and there
is no evidence of further disorder."
The picketing of Respondent's plant continued after
September 11. Dorothy Goheen joined the picket line
from the outset. A replacement was hired to perform her
job within a week after the picketing started.
Ruby Rodefer crossed the picket line and worked on
September 11. She worked again on September 13. On
September 14, she decided to honor the picket line and
stayed at home. On that day Robert Williams called her
at home and asked her why she had not come to work.
She told him that she had decided to honor the picket
line. According to Williams, he told her at this time that
he had to get his work out and that he would possibly
have to replace her. A day or two later Williams hired a
replacement for Rodefer. On October 2, she joined the
picket line, having merely honored it until then.
Betty Ruby worked on September 11 but did not report
to work on September 12 because of illness. That morning
Kenneth Williams called her to ask if she was coming to
did not believe there would have been a picket line if Fizer had not been
discharged
"Among the employees who joined the picket line, Russo identified
Mary and Sharon Fizer, the Cooks, Dorothy Goheen, and others whom he
did not know . Russo estimated that from 9 to 11 employees honored the
picket line , but there is no evidence that any employees other than those he
named did so.
"Dietz so testified . Kenneth Williams also testified that he was pushed
by an ILG organizer as he walked toward the plant.
"Although Russo attributed the start of the disorder to Tony Costabile,
who he testified shoved him, and Marylyn Costabile, who he said charged
into the pickets , it is clear that the disorder was attributable to ILG
representatives and supporters who sought to bar employees from entering
the plant. I credit the explicit testimony to this effect of Marylyn
Costabile , Kenneth Williams, and Donna Himes Without condoning their
conduct, 11 do not find, however, that there was misconduct by ILG
representatives sufficient to warrant dismissal of the allegations of violation
of Section 8(a)(5) in the complaint United Mineral & Chemical
Corporation, 155 NLRB 1390
"Donna Himes testified that as she went through the door, two ILG
organizers tried to slam it, catching her foot in the door and injuring it.
"Respondent hired a constable and a detective agency to protect its
property and instituted a civil court injunction proceeding on September
11 No injunction issued , but the return date of an order to show cause was
continued indefinitely on September 18, on condition that upon the filing
of affidavits by Respondent alleging further misconduct a preliminary
injunction would issue forthwith.
work. She told him that she was sick and was going to see
her doctor. Kenneth asked her if she wanted a leave of
absence. She said that she wanted to find out first what
was the matter with her.86 She visited her doctor who told
her that she was suffering from high blood pressure and
grippe and that she should stay out of work until her
blood pressure was down. On September 13, she called
Robert Williams and told him what her visit to the doctor
had disclosed. She said she would be out of work for some
time, but did not know how long. Williams told her that
he would not be able to wait for her and pressed her for
some indication of the probable length of her absence,
which she said she could not give. Williams said that he
would have to get someone to replace her and that she
should call him when she was feeling better.87 He hired a
replacement for her shortly thereafter.
About 2 weeks later Patricia Fauth told Ruby that she
had been replaced. Based on that information, she decided
to join the picket line on October 2, and she remained on
it until it was removed. Ruby did not call Williams again
after September 13 to tell him she was ready to return to
work until after the picket line was removed.88
The picket line was maintained until around October
20, when Russo and Hoffman decided to end the
picketing. At that time Dorothy Goheen, Betty Ruby, and
Ruby Rodefer were the only employees still honoring the
picket line, the others who picketed having found other
employment.89
On October 24, Ruby Rodefer telephoned Robert
Williams and asked about returning to work. Williams
told her that she had been replaced and that he would call
her if he needed anyone later.
On October 26, Betty Ruby called Robert Williams and
asked how she stood with her job. He told her that she
had been replaced and that he did not have work for her
at that time, but might have work later.
On October 31 and November 1, Dorothy Goheen
telephoned the plant several times and asked to speak to
Robert Williams but was unable to reach him. On one of
these occasions she spoke to Kenneth Williams. She told
Kenneth that she was calling because she wanted her job
back. Kenneth said that he knew nothing about it and that
she would have to talk to Robert. Kenneth told her to
leave her number and that he would ask Robert to call
her, but Robert never called back. Then, on advice of the
ILG representatives, she sent a telegram to the
Respondent asking to be reinstated. She received no
response to the telegram.
At the time of the hearing, Goheen, Rodefer, and Ruby
had not been reinstated, and their replacements were still
working.
Although there is some evidence that the picketing was
caused by Respondent's refusal to bargain as well as the
discharge of Fizer, I conclude that it would not have
occurred but for Fizer's discharge. Russo's mention of the
refusal to bargain in this regard appeared to be an
"Ruby so testified without contradiction
"The testimony of Ruby and Williams as to this conversation is
essentially the 'same Ruby did not testify that Williams said it would be
necessary to replace her, but did not deny that he said it
""Ruby testified that she would have been ready to return to work at the
time she joined the picket line.
"'ILG strike assistance records indicate that in addition to these three
employees, Betty Cook, James Cook, Carol Cook, and Mary Fizer were
the only other employees who received assistance during the penod of the
picketing
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
afterthought. Goheen did not mention it as a cause of the
strike, and Hoffman appeared to have some hope of being
able to persuade Markowitz that Respondent should
recognize the ILG after his visit to Robert Williams'
office. It is, of course, possible that once Fizer was
discharged, both the discharge and the refusal to bargain
became causes of the picketing, but I find that the
evidence is sufficient to establish only that the discharge
was its cause. As several of Respondent's employees
joined in and participated in the picketing over Fizer's
discharge, which I have found was an unfair labor
practice, I find that these employees were engaged from
the outset in an unfair labor practice strike.
Dorothy Goheen and Ruby Rodefer were both replaced
at a time when they had joined the strike. As unfair labor
practice strikers, they were entitled to reinstatement to
their former jobs by Respondent upon request, regardless
of their replacement, unless their conduct during the strike
disqualified them for reinstatement. Although Respondent
argued at the hearing that it would show misconduct of
replaced strikers in seeking admission of evidence relating
to strike misconduct, no such showing was made. Rodefer
requested, and was denied reinstatement on October 24.
Goheen tried to reach Robert Williams to request
reinstatement on October 31 and November 1. On one of
those 2 days, she conveyed the purpose of her call to
Kenneth Williams, who said he would have Robert call
her back. I find that at least by November 1, Goheen had
requested reinstatement and that it was effectively denied
her when Williams failed to respond to her call or her
telegram.
Betty Ruby stands in a different position. Unlike
Rodefer, who had notified Robert Williams before she
was replaced that she was honoring the picket line, Ruby
stayed out of work until October 2 because of illness and
so notified Williams. When she reported to Robert
Williams on September 13, she was unable to state how
long she would be out, and Williams told her he might not
be able to wait for her return. A replacement was hired
shortly thereafter, and the fact that she was replaced was
at least one of the reasons that she decided to join the
strike. Thus Ruby was replaced before she became a
striker. In order to conclude that Ruby is entitled to
reinstatement it would be necessary to conclude that the
decision to replace her was motivated by her union
activities rather than by economic reasons. It is true that
Ruby was one of those who left her work on September 7
to join the ILG representatives at Robert Williams' office.
However, Patricia Fauth, who was also one of the group
who went to Williams' office, also was out of work for
medical reasons during the strike and was not replaced.
Perhaps more evidence explaining the difference in their
treatment as well as evidence relating to Respondent's sick
leave policies would support the conclusion that Ruby's
replacement was discriminatory, but I conclude that the
evidence before me is insufficient to support that
conclusion, particularly in the light of Ruby's inability to
predict on September 13 when she would be ready to
return to work.
Accordingly, I conclude that Respondent's refusal to
reinstate Ruby Rodefer on October 24 and Dorothy
Goheen on November 1, upon their respective requests,
violated Section 8(a)(3) of the Act. However, I do not find
that Respondent's refusal to reinstate Betty Ruby
similarly violated the Act.
E. Unilateral Changes in Wages and Conditions of
Employment and the Discharge of Fauth
1. The unilateral changes
Most of Respondent's employees are paid on an
incentive basis. The employees keep records of what they
produce, and at the end of each week their earnings are
computed by applying the appropriate piece rates to what
they have produced. Respondent also keeps track of the
hours worked by each employee and maintains minimum
hourly rates Each employee's minimum weekly pay is
computed by multiplying the number of hours worked by
the employee' s minimum rate. If an employee's minimum
exceeds his incentive earnings for the week, he is paid the
minimum and the difference 'is known as makeup. If an
employee's incentive earnings exceed his minimum, he is
paid the incentive earnings and the difference is known as
a bonus.
In June, some time before the move to the new plant,
the Grievance Committee asked Robert Williams about a
wage increase. Williams told them that after they got
settled in the new plant he would give one. Sometime in
October, the Grievance Committee reminded Williams of
his promise. Williams then increased the minimum hourly
rate for the employees and also increased the amounts
paid per piece for purposes of computing incentive
earnings by about 5 percent. The increases were effective
sometime in October.90
At some time not made clear in the record Respondent
also changed the terms in which its piece rates were
stated.91 This change merely restated piece rates in terms
of price paid per hundred garments rather than price paid
per dozen garments . It did not affect earnings received by
employees but simply made it easier for them to calculate
their earnings.
In early November Robert Williams held a meeting
with the employees in the plant cafeteria. He told them
that he was paying out too much makeup pay and that it
had to stop, even if it meant that he had to get rid of the
old employees and hire all new help. He told the
employees that he was going to hand out warning slips to
those whose makeup was excessive and that if an
employee received three slips she should not bother
coming back to work because there would be no job for
her. Williams did not single out Patricia Fauth or any
other operator for individual criticism at that time. He
told all the employees that it would be company policy to
discharge upon three warnings if an improvement was not
shown in makeup. Both Robert and Kenneth Williams
testified that they decided to institute the warning and
discharge policy because they were having too much
makeup and had to do something to reduce it.
2. The discharge of Fauth
Patricia Fauth started to work for Respondent in
March 1966. She was hired as a zipper setter, having
previously worked in that capacity for another employer.
From the start of her employment Fauth's pay rarely, if
ever, exceeded her minimum rate and she usually received
makeup pay. At some point relatively early in her
"Only Robert Williams testified as to the increases and their
surrounding circumstances
"Robert Williams testified at one point that this change occurred in
November and at another that it happened in August Marylyn Costabile
placed it in October or November.
DONNA LEE SPORTSWEAR 335
employment, Fauth was taken off zipper setting and
assigned a variety of tasks generally classified as parts
operations.92
When Fauth first started to work for Respondent her
minimum rate was $1.25 an hour. After 3 weeks, her
minimum was raised to $1.30 an hour. After another
month it was raised to $1.35 and later it was raised to
$1.40. When Respondent moved to its new plant in July
1967, her minimum was raised to $1.50. At the time,
Kenneth Williams told her that she was doing better. In
October 1967, her minimum was again raised to $1.60.
From the start Fauth rarely, if ever, produced enough
over a weekly period to earn piecework earnings in excess
of her minimum rate, and she received makeup pay most
of the time. According to Fauth, the reason for her
constant failure to exceed the minimum was that she was
moved around from one job to another several times a
day and sometimes had to sit and wait for work.
According to her, much of the time also she worked
without the assistance of a floorgirl and as a result lost
time taking work out of her machine, thereby increasing
the time spent on each job.
Shortly after Respondent moved to the new plant Fauth
asked Floorlady Donna Himes if she could have an hourly
paid job as a floorgirl because she was not exceeding the
minimum as an operator and she felt she could not make
any less working as a floorgirl. Himes told her that she
could not have a floor job because she was needed on a
machine.93
On November 10, 1967, a few days after Robert
Williams announced the warning slip policy, the
employees received their paychecks for the pay period
ending the previous Saturday. With her paycheck,
Kenneth Williams gave Patricia Fauth a warning slip
which showed that her total pay for the week was $66, of
which she earned $34.93 at piecework and the balance,
$31.07, was makeup.94 At the bottom of the slip was
printed "Comment: Must show improvement." When she
received this slip, Fauth told Williams that he might just
as well give her the other two slips because she could not
make the minimum and was going to get them anyway.
She also told him that she could not eliminate her makeup
pay because they were assigning her too many different
jobs. Williams told her not to get worked up and worried
and that the slip did not mean she was fired but only that
she had l o show improvement.93
Fauth also failed to make her minimum for the week
ending November 11, but she did not receive a second
warning slip on November 17 with her paycheck for that
week.9' However, on November 24, 1967, having again
failed to make her minimum for the week ending
November 17, she received a second warning slip. That
slip indiLcated that her total pay was $66, including
attendance bonus, of which she had earned $38.69 and had
"Fauth testified that she overlocked sleeves, fronts , backs, and facings,
set tags and bindings , joined shoulders , and seamed up for zippers Robert
Williams testified that Fauth ' s regular jobs apart from zipper setting were
seaming fronts , overlocking , and working on small parts He testified that
these jobs required only simple straight sewing and were all considered in
the general category of parts operations.
"Although several floorgirls were hired after the ILG demand, Fauth
was not offered a chance to work as a floorgirl at any time However, it
does not appear that she ever renewed her request for a transfer
"Included in her total earnings was a $2 attendance bonus for having
worked the full week This amount was apparently included in the amount
indicated as makeup It is not established whether or not this amount was
added to the bonus of those who exceeded their minimum
"Fauth to testified without contradiction.
makeup of $27.31. It stated "Must show considerable
improvement." On December 1, 1967, she received a third
slip which indicated total pay of $51.20 for the week
ending November 25, of which she had earned $34.89 and
had makeup of $16.31." It stated "This is your third slip
which means automatic discharge."
Other employees received one warning notice and some
received two. Fauth, however, was the only employee who
received a third notice and was discharged pursuant to the
policy up to the time of the hearing.
Although there are differences in detail in the testimony
as to Fauth's work record before November 1967 and the
reasons why Respondent stopped assigning her to zipper
setting,"' there is no dispute that whatever Fauth was
assigned to, she failed as a rule to exceed minimum
earnings. However, until the warning slip system was
instituted in November 1967, Fauth had never previously
been warned about her work or told how much makeup
she was paid, although she knew she was receiving
makeup pay.99
For the first 4 weeks after the warning and discharge
policy was instituted, Respondent kept summary sheets
showing the earnings of each employee and the amount of
makeup or bonus she received.' Thereafter, Respondent
stopped keeping such summaries and kept summaries
which showed bonuses earned but not makeup pay.'
Kenneth Williams testified that the warning system was
still in effect, but that he had not given out any slips in
the month or two before he testified. He could not recall
when he had last given out a warning slip, and conceded
that he had not given out any slips since the end of 1967,
but he testified that he had given out warnings after Fauth
was discharged.3 However, both Robert and Kenneth
Williams testified that the warning system was successful
and substantially reduced makeup, eliminating the need
for further warnings.'
"Kenneth Williams testified that he gave no slips at the end of the
second week because he wanted to give all the employees a chance to
improve.
"As Fauth missed 1 day of work during that pay period , she did not
receive an attendance bonus and was paid only for the hours she worked.
"According to Fauth, she was told that it was because there were two
other zipper setters with more seniority . According to Robert Williams, it
was because she did not make the production rate on all but one style, she
was often absent, and he could get more production out of utility girls at
zipper setting . He testified that he told Fauth that the latter was the reason
she was not being given zippers.
"Fauth so testified Kenneth Williams testified that even before
Respondent moved he had discussed Fauth's makeup with her and had
tried to help her out and give her every break that he could Robert
Williams testified that he had noticed on a number of occasions that Fauth
left her work for periods of 20 minutes during working time and that he
called it to Humes ' attention twice. According to him, Himes reported back
that Fauth's nerves were bad and she was in the restroom crying. Himes
testified that she could tell from observation that Fautb was on makeup
but never checked to see if Fauth was making her time , Both Robert
Williams and Himes testified that it was their observation that Fauth's
attitude was that she did not care whether she exceeded her minimum.
However, none of Respondent's witnesses testified that Fauth had been
warned that her work must improve if she wanted to retain her job
'Fauth's third notice and discharge were based on her performance for
the last of these 4 weeks
'Kenneth Williams testified that he jotted down lists of those receiving
excessive makeup on a scratch pad each week when he prepared the
payroll but did not have them . In an attempt to explain their loss he
testified that when the plant moved, he lost a lot of them and could not
find others. The move occurred , of course , before the warning system was
instituted.
'Williams was vague as to the identity of employees other than Fauth
who received warning slips , particularly after Fauth 's discharge.
'Makeup figures in the records for the first 4 weeks after the policy was
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Concluding findings
I have found above that denials of knowledge of
Fauth's participation in the group of employees who
visited Robert Williams' office by both Williams and
Himes were not convincing, and I am no more persuaded
by Robert Williams' equivocal testimony as to his
recollection and knowledge of her ILG activities at the
time of her discharge.' As the General Counsel has
pointed out, by the time of Fauth's discharge, of those
employees who went to Williams' office on September 7,
all but Fauth either had quit, had been discharged, had
been replaced, or had visited Markowitz' office to give a
statement. The-General Counsel contends that the warning
and discharge policy was adopted as a means of
eliminating Fauth, the last of this group, from the plant,
relying on the evidence of other unfair labor practices in
this case and the evidence surrounding the adoption and
implementation of the warning and discharge policy.
There are factors which support this contention. Thus
summaries of makeup paid employees were only kept for
a 4-week period following institution of the warning policy
and were not kept after Fauth's discharge. The evidence is
at best vague as to the implementation of the policy after
Fauth's discharge. Fauth's performance had been poor for
an extended period of time before the warning and
discharge policy was instituted. Her minimum rate had
been increased several times during that period, thereby
increasing the production required of her to avoid makeup
pay,6 but she had never previously been given a warning to
improve her production or face discharge. Fauth's
production in fact improved during the week on which her
third notice was based.' While her makeup remained
substantial , it would appear that the first two warnings
had brought about improvement which it was the purpose
of the warnings to induce.
Some of the explanations given by Fauth for her poor
makeup were not rebutted.' Respondent's evidence as to
the principal reason advanced by Fauth for her excessive
makeup was in conflict. Although Kenneth Williams and
Donna Himes testified that Fauth was not moved from
job to job,' Robert Williams testified that after Fauth was
taken off zipper setting he could not assign her to a steady
job because she was frequently absent.
Also lending support to the General Counsel's
contention are discrepancies in the testimony of Kenneth
Williams, Robert Williams, and Himes as to the
implementation of the system. Although Kenneth
instituted show a substantial reduction in total makeup pay over that
period.
'According to Respondent 's Attorney Markowitz, he and Robert
Williams were aware of Fauth's union activities at the time of her
discharge.
'Fauth 's October increase in her minimum rate amounted close to 7
percent Piece rates were increased by 5 percent at that time. Thus if
Fauth 's production had remained constant thereafter, her makeup pay
would have been increased
'The makeup indicated on Fauth's first warning constituted
approximately 45 percent of her total pay The makeup indicated on her
second warning constituted 40 percent of her total pay The makeup
indicated on her final warning constituted approximately 32 percent of her
total pay. In computing these percentages I have excluded Fauth's
attendance bonus from both her makeup and her total pay for purposes of
computation.
'These were her claims that she was sometimes left to sit without work
and that she worked much of the time without a floorgirl There is no
evidence, however , to indicate whether Fauth was unique in these respects.
'Kenneth Williams testified that only utility girls were moved from job
to job
Williams administered the system, his testimony
establishes that he was not well qualified to make the
subjective determinations as to what was excessive
makeup which the system required. Williams testified that
he relied on Himes for advice before issuing warning slips,
but she testified that she was not consulted as to all the
warnings. As to Fauth, Williams testified that he
consulted Himes before issuing the final warning for the
week in which Fauth had shown improvement, but Himes
testified that she was consulted only as to Fauth's first
warning.,
Both Robert and Kenneth Williams testified that
among the factors they looked at in determining whether
makeup was excessive was whether an employee was
working at her regular job. Yet their testimony also
indicates that when an employee other than a utility girl
was assigned to work which was not considered a part of
her regular job, she was paid on a straight-time basis.
Thus, an assignment outside of an employee's regular job
would not increase her makeup, unless she was a utility
girl who was expected to perform all jobs.
On the other hand, these are a number of factors which
indicate that the warning system was instituted for a
legitimate purpose. The evidence is uncontradicted that
there was considerable makeup pay before Respondent
instituted the warning and discharge policy and that
makeup in the plant declined after it was instituted. It
appears likely that whatever the problem before the
October wage increases , the economic need to increase
production became greater after Respondent's total
payroll increased The warning system was announced to
all employees, and Fauth was not singled out for criticism.
While Respondent's makeup summaries indicate that
some employees continued to have high makeup,
practically all of those employees whose makeup
continued high were identified as trainees or utility girls
whose special consideration with respect to makeup was
satisfactorily explained, and even when compared to these
employees, Fauth's record was close to the worst
When Fauth spoke with Kenneth Williams at the time
she received her first slip, Williams tried to assure her that
she needed only to show improvement. It was Fauth and
not Williams who suggested that any effort by her to
improve would be futile and that he might as well proceed
to issue the remaining warnings Although 'Robert
Williams, contrary to Donna Himes and his brother
Kenneth, supported Fauth's testimony that she was moved
from job to job a great deal, he testified without
contradiction that all of her jobs were considered to fall in
a single classification and required only straight sewing.
Fauth, who like Betty Ruby was absent for medical
reasons for 3 weeks during the strike, was not replaced at
that critical juncture when it might have been expected
that Respondent would have used the opportunity if so
motivated to remove her from the plant. It is true that at
the time of her discharge, in addition to her earlier ILG
activities, Fauth had refrained from joining in the activity
in behalf of the newly formed Independent. However, by
that time the ILG strike had failed, and it appears that
Respondent's earlier unfair labor practices, as well as the
strike, had effectively dissipated the ILG support in the
plant.
I find sufficient doubt as to the motivation for
instituting the warning and discharge policy and Fauth's
discharge to conclude that the General Counsel has not
established that the institution of the policy and Fauth's
discharge were caused by her union activities.
DONNA LEE SPORTSWEAR
The question remains, however, as to whether the
unilateral wage increase and the institution of the warning
and discharge policy violated Section 8(a)(5) and (1) of
the Act. There is no question that the warning system had
not previously existed and was unilaterally instituted in
early November by Respondent. As it had direct effect on
job tenure and on the amount of work employees were
expected to perform, the warning system was a matter
falling within the scope of "wages, hours, and other terms
and conditions of employment" and was an appropriate
matter for collective bargaining." Before it was instituted,
insofar as the record shows, the job tenure of employees
was not threatened by a failure to reduce or eliminate
their makeup. The new policy changed these conditions.
Coming soon after a unilateral wage increase, it may be
inferred that the threat to employee tenure and the
increase in Respondent's production demands was
associated with the increase in Respondent's payroll.
Absent representation of its employees by a union, both
the increase in wages and the institution of the warning
system were management decisions which Respondent was
free to make. Indeed, even in the face of union
representation and bargaining, these were decisions that
Respondent would have been free to make unilaterally if
requisite bargaining had occurred but failed to result in
agreement. However, Respondent did not recognize the
ILG and took both actions without bargaining with it. In
these circumstances both the granting of the wage
increases and the institution of the warning system
constituted unilateral changes in wages, hours, and other
terms and conditions of employment in derogation of the
ILG's representative status and in violation of Section
8(a)(5) of the Act."
As the institution and implementation of the warning
system resulted in the receipt of warning notices by a
number of employees and the discharge of Fauth, in order
to remedly the violation of Section 8(a)(5), I shall
recommend below that Respondent rescind the warning
and discharge policy, all warning notices issued pursuant
to it, and the discharge of Patricia Fauth. However the
benefits which accrued to the employees as a result of the
October wage increases are not to be rescinded or changed
by virtue of anything contained in this Decision or
Recommended Order.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent violated Section 8( a)(1),
(2), (3), and (5) of the Act, I shall recommend that it
cease and desist therefrom and take certain affirmative
"Russell-Newman Manufacturing Company, Inc., 167 NLRB No 156;
Dixie Ohio Express Company, 167 NLRB No. 72; Miller Brewing
Company, 166 NLRB No. 90.
"N.L R B v. Katz, 369 U S. 736; Farmers Co-Operative Gin
Association, 161 NLRB 887, 899-900, enfd . 389 F 2d 553 (C.A.D.C ). See
also cases cited in fn 10 directly above.
337
action designed to effectuate the policies of the Act.
As I have found that Respondent discriminatorily
discharged Mary Fizer, discharged Patricia Fauth
pursuant to an unlawfully instituted warning system, and
refused to reinstate unfair labor practice strikers Dorothy
Goheen and Ruby Rodefer, I shall recommend that
Respondent be ordered to offer them immediate and full
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority and other
rights and privileges, and to make them whole for any loss
of earnings they may have suffered by payment to them of
sums of money equal to the amount each normally would
have earned as wages from the dates of the respective
discharges of Fizer and Fauth and the requests for
reinstatement of Goheen and Rodefer to the dates of
offers of reinstatement, less net earnings, in accordance
with the formula set forth in F. W. Woolworth Company,
90 NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716.12
Upon the basis of the above findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Donna Lee Sportswear, is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. International Ladies' Garment Workers' Union,
AFL-CIO, the Grievance Committee, and Donna Lee
Sportswear Employees' Independent Union are labor
organizations within the meaning of the Act.
3. All production and maintenance employees employed
at Respondent's York, Pennsylvania, plant, excluding
office clerical employees and supervisors as defined in the
Act constitute an appropriate unit for the purpose of
collective bargaining within the meaning of Section 9{b) of
the Act.
4. At all times since September 7, 1967, International
Ladies' Garment Workers' Union, AFL-CIO has been
and now is the exclusive representative of the employees in
the unit described above for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. By soliciting employees to state their desire to
withdraw from the International Ladies' Garment
Workers' Union, AFL-CIO, rendering assistance to the
Grievance Committee and its alter ego, Donna Lee
Sportswear Employees' Independent Union, discharging
Mary Fizer because of her union activities, refusing to
reinstate unfair labor practice strikers Dorothy Goheen
and Ruby Rodefer upon their request, refusing to bargain
upon request with International Ladies' Garment
Workers' Union, AFL-CIO in the appropriate unit set
forth in paragraph 3, above, and by unilaterally increasing
employees' wages and instituting and implementing a
warning and discharge policy following the request for
recognition of International Ladies' Garment Workers'
Union, AFL-CIO, Respondent has engaged in and is
engaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1), (2), (3), and (5) and
Section 2(6) and (7) of the Act.
"In the case of Fizer the period during which she joined the strike will
be excluded from the period for which she is eligible for backpay.
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and pursuant to Section 10(c) of the
Act, I hereby recommend that Respondent, Donna Lee
Sportswear, its partners, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Recognizing the Grievance Committee or Donna
Lee Sportswear Employees' Independent Union as the
bargaining representative of any of its employees for the
purpose of dealing with Respondent concerning
grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment, unless
and until either of these labor organizations shall have
demonstrated its exclusive majority representative status
pursuant to a Board-conducted election among
Respondent's employees.
(b) Rendering assistance to the Grievance Committee
or Donna Lee Sportswear Employees' Independent Union
in the administration and conduct of their affairs.
(c) Soliciting employees to state their desire to
withdraw from a union.
(d) Discouraging membership in International Ladies'
Garment Workers' Union, AFL-CIO, or any other labor
organization, by discriminating in regard to the hire and
tenure of employees or any term or condition of their
employment.
(e) Refusing to bargain collectively in good faith
concerning rates of pay, hours of employment, and other
conditions of employment with International Ladies'
Garment Workers' Union, AFL-CIO, as the exclusive
representative of the employees in the appropriate unit
described in paragraph 3 of the section of the Decision
entitled "Conclusions of Law."
(f) Unilaterally changing rates of pay and other terms
and conditions of employment without notice to and
bargaining with International Ladies' Garment Workers'
Union, AFL-CIO.
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to
self-organization, to form labor organizations, to join or
assist International Ladies' Garment Workers' Union,
AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in any other concerted activities for the
purposes of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section
8(a)(3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Mary Fizer, Patricia Fauth, Dorothy Goheen,
and Ruby Rodefer immediate and full reinstatement to
their former or substantially equivalent positions without
prejudice to their seniority or other rights and privileges
previously enjoyed and make them whole for any loss they
may have suffered by reason of the discrimination against
Mary Fizer, Dorothy Goheen, and Ruby Rodefer and by
reason of the operation of Respondent's unilaterally
adopted warning and discharge policy against Patricia
Fauth in the manner set forth in the section of the above
Decision entitled "The Remedy."
(b) Notify the above-named employees 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 and Universal Military Training
and Service Act, as amended , after discharge from the
Armed Forces.
(c) 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 relevant and necessary to a determination of
compliance with paragraphs (a) and (b) above.
(d) Upon request , bargain collectively with
International Ladies ' Garment Workers ' Union,
AFL-CIO, as the exclusive representative of all employees
in the appropriate unit and embody in a signed agreement
any understanding reached.
(e) Rescind its warning and discharge policy instituted
in November 1967, and rescind all warnings and
disciplinary actions taken pursuant to said policy.
(f) Withhold all recognition from the Grievance
Committee and Donna Lee Sportswear Employees'
Independent Union as the representative of the employees
for the purpose of dealing with either organization
concerning wages , rates of pay , hours of employment, or
other terms and conditions of employment, unless and
until such labor organization shall be certified by the
Board as the exclusive bargaining representative of such
employees
(g) Post at its York, Pennsylvania , place of business,
copies of the attached notice marked "Appendix ""
Copies of said notice , on forms provided by the Regional
Director for Region 4, after being duly signed by the
Respondent ' s representative, shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(h) Notify the Regional Director for Region 4, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL offer Mary Fizer, Patricia Fauth, Dorothy
Goheen, and Ruby Rodefer reinstatement to their
former or substantially equivalent positions, without
prejudice to their seniority and -other rights and
privileges, and WE WILL make them whole for any loss
they may have suffered as a result of ourdischarges of
DONNA LEE SPORTSWEAR
Mary Fizer and Patricia Fauth and our refusals to
reinstate Dorothy Goheen and Ruby Rodefer upon their
requests after the strike
WE WILL, upon request , bargain collectively with
International Ladies ' Garment Workers' Union,
AFL-CIO, as the exclusive representative of all the
employees in the bargaining unit described below with
respect to rates of pay, wages , hours of employment,
and other terms and conditions of employment and, if
an understanding is reached , embody such
understanding in a signed agreement . The bargaining
unit is:
All production and maintenance employees
employed at our Pennsylvania , plant, excluding office
clerical employees and supervisors as defined in the
Act.
WE WILL rescind the warning and discharge policy
instituted in November 1967, and WE WILL rescind all
warning notices and disciplinary actions taken pursuant
to that pollicy.
WE WILL withhold all recognition from the
Grievance Committee and Donna Lee Sportswear
Employees ' Independent Union as the representative of
our employees for the purpose of dealing with either
organization concerning wages, rates of pay, hours of
employment , or other terms and conditions of
employment , unless and until such labor organization
shall be certified by the Board as the exclusive
bargaining representative of such employees.
WE WILL NOT discourage membership in
International Ladies' Garment Workers ' Union,
AFL-CIO, or any other labor organization by
discriminatorily discharging or refusing to reinstate any
of our employees.
WE WILL NOT refuse to bargain collectively with
International Ladies' Garment Workers ' Union,
AFL-CIO ., as the exclusive bargaining representative of
all the employees in the bargaining unit described
above.
WE WILL NOT unilaterally change wages , hours, or
other terms and conditions of employment without
notice to or bargaining with International Ladies'
Garment Workers' Union , AFL-CIO.
WE WILL NOT recognize the Grievance Committee or
Donna Lee Sportswear Employees' Independent Union
as the bargaining representative of any of our
employees for the purpose of dealing with either
339
organization concerning grievances , labor disputes,
wages, rates of pay, hours of employment , or other
conditions of employment , unless and until either of
these organizations shall have demonstrated its
exclusive majority representative status pursuant to a
Board-conducted election among our employees.
WE WILL NOT render assistance to the Grievance
Committee or Donna Lee Sportswear Employees'
Independent Union in the administration and conduct
of their affairs.
WE WILL NOT solicit our employees to state their
desire to withdraw from a union.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their rights to self-organization , to form labor
organizations , to join or assist International Ladies'
Garment Workers ' Union, AFL-CIO, or any other
labor organization , to bargain collectively through
representatives of their own choosing , and to engage in
other concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities , except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment , as authorized in Section
8(a)(3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of
1959.
Dated By
DONNA LEE SPORTSWEAR
(Employer)
(Representative ) (Title)
Note- We will notify the above-named employees 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.
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.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 1700 Bankers
Securities Building, Walnut and Juniper Streets,
Philadelphia, Pennsylvania 19107, Telephone 597-7601.