Gay Paree Undergarment Co.

National Labor Relations Board - Board Decisions

Oct 30, 1950

91 N.L.R.B. 1363 (N.L.R.B. 1950)

jn the latter of DAVID I. COHEN, AN INDIVIDUAL, DOING BUSINESS AS
GAY PAREE UNDERGARMENT COMPANY and INTERNATIONAL LADIES'
GARMENT WORKERS UNION
Case No. 21-CA-670.-Decided October 30, 1950
DECISION AND ORDER
On August 11, 1950, Trial Examiner C. W. Whittemore issued his.
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a brief in support
thereof.
The Board 1 has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the modifications set forth
below.
1. The Trial Examiner found, and we agree, that the Respondent
refused to bargain -with the Union, within the meaning of Section
8 (a) (5) of the Act.
The Trial Examiner's finding ' that the Respondent refused "to
negotiate" with the Union upon matters relating to wages and other
conditions of employment requires some clarification. It is apparent,
and we find, that such characterization of the Respondent's conduct
had reference to its lack of good faith during the bargaining sego-
tiations. The record is clear that the Respondent did meet with the
Union and discussed various proposals submitted by the Union. But
such conduct by the Respondent does not necessarily satisfy its bar-
gaining obligation, for the real question is whether or not the Re-
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman Herzog and Members Reynolds and Murdock].
91 NLRB No. 1999.
1363
917572-51-vol. 91-S7
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent was dealing in good 'faith or engaged in mere "surface
bargaining," without any intent of concluding an agreement on a
give-and-take basis.2 Of course, the Act does not compel agreement,
but it does require that both parties enter into negotiations and bar-
gain in good faith in an effort to reach such agreement.
We agree with the Trial Examiner that the record shows, as fully '
set forth in the Intermediate Report, that the Respondent engaged
in negotiations with a predetermination not to make any concession
to the Union and to reserve to itself the unilateral power to decide
matters of earnings, grievances, and other conditions of employment.
This attitude is incompatible with a bona fide endeavor to reach an
understanding with the chosen representative of employees, and mani-
fests the negation of the collective bargaining envisaged by the Act.-'
Moreover the Respondent's insistence upon having a contractual right
to discharge strikers "whether for union activity or not" further indi-
cates its lack of good faith and constitutes per se a violation of Section
8 (a) (5).4
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that David I. Cohen, an individual
doing business as Gay Paree Undergarment Company, Los Angeles,
California, his officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Ladies'
Garment Workers Union, as the exclusive representative of all its
employees in the appropriate unit with respect to rates of pay, wages,
hours of employment, or other conditions of employment;
(b) In any manner interfering with the efforts of International
Ladies' Garment Workers Union ' to bargain collectively with the
Respondent.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with International Ladies'
Garment Workers Union as the exclusive representative of all the
employees in the appropriate unit, and embody any understanding
reached in a signed agreement;
(b) Post at its Anza Village, California, plant, copies of the notice
2N. L. R. B . v. Whittier Hills, 111 F. 2c1 474 , 478 (C . A. 5) ; N. L. It. B. v. Athens
Manufacturing Co., 161 F. 2d 8 ( C. A. 5).
3 South Carolina Granite Company, 58 NLRB 1448 ; Atlanta Broadcasting Company, 90
NLRB S08.
4Anacrican National Insurance Conxpany , 89 NLRB 185 . See also N. L. It. B. v. J. H.
Allison cG Co., 165 F . 2c1 706 ( C. A. 6), certiorari denied, 335 U. S. 814.
GAY PARES UNDERGARMENT COMPANY 1365
attached to the Intermediate Report marked Appendix A.5 Copies
of such notice, to be furnished by the Regional Director for the
Twenty-first Region, shall, after being duly signed by the Respond-
ent's authorized representative, be posted by the Respondent imme-
diately upon receipt thereof, in conspicuous places, including all
places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said.notices
are not altered, defaced, or covered by any other material;
(c) Notify the Regional Director for the Twenty-first Region, in
writing, within ten (10) days from receipt of this Order what steps
the Respondent has taken to comply herewith.
INTERMEDIATE REPORT
Mr. George H. O'Brien., of Los Angeles, Calif., for the General Counsel.
Mr. A. F. Lenny, of Los Angeles, Calif., for the Union.
Mr. Arthur P. Kaufman, of Los Angeles, Calif., for the Respondent.
STATEMENT OF THE CASE
Upon a charge duly filed by International Ladies' Garment Workers Union,
herein called the Union, the General Counsel of the National Labor Relations
Board,' by the Regional Director for the Twenty-first Region (Los Angeles, Cali-
fornia) issued his complaint dated June 6, 1950, against David I. Cohen, an in-
dividual doing business at Gay Paree Undergarment Company, Los Angeles, Cali-
fornia, herein called the Respondent, alleging that the Respondent had engaged in
and was engaging in unfair labor practices affecting commerce within the mean-
ing of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor
Relations Act, as amended, Public Law 101 (80th Congress, First Session), herein
called the Act. Copies of the complaint, the charge, and a notice of hearing were
duly served upon the Respondent and the Union.
With respect to unfair labor practices, the complaint alleges in substance that
the Respondent from on or about October 9, 1949, has failed and refused to
bargain in good faith with the Union, and thereby has interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed in Section 7 of
the Act.
The Respondent's answer, duly filed, denies that it has engaged in. the unfair
labor practices alleged.
Pursuant to notice, a hearing was held on July 11, 1950, before the undersigned
Trial Examiner, duly designated by the Chief Trial Examiner. The General
Counsel, the Respondent, and the Union were represented by counsel. All parties
participated in the hearing and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing upon
I This notice, however, shall be and it hereby is, amended by striking from line 3 thereof
the words "The recommendations of a Trial Examiner" and substituting in lieu thereof
the words "A Decision and Order." In the event that this Order is enforced by a decree
of a United States Court of Appeals,. there shall be inserted before the words, "A Decision
and Order" the words, "A Decree of the United States Court of Appeals Enforcing."
1 The representative of the General Counsel at the hearing is herein referred to as Gen-
eral Counsel , the National Labor Relations Board as the Board.
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the issues . Opportunity was waived to argue orally and to file briefs. Follow-
ing the hearing, the General Counsel filed with the Trial Examiner and the other
parties a "List of Authorities,"-citations of Board cases relevant to issues in
this case.
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent has his principal place of business in Los Angeles, California,
and is engaged in the business of manufacturing ladies' undergarments at plants
in Los Angeles, San Diego, and Anza Village, all in California. During the year
ending January 25, 1950, the Respondent bought more than $85,000 worth of raw
materials, such as rayon, cotton, and other fabrics, of which more than 80 percent
in value was shipped to his places of business in interstate commerce from and
through States other than California, and sold finished products valued at more
than $562,000, of which about 50 percent in value was sold and transported from
his places of business in interstate commerce to and through States other than
California.
The Respondent does not contest the dilegation that it is engaged in commerce
within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
International Ladies' Garment Workers Union, an affiliate of the American
Federation of Labor, is a labor organization admitting to membership employees
of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain,; ii terfere^tcc, restraint, and coercion
1. The appropriate unit; the Union's majority representation
In accordance with a Certification of Representatives issued October 5, 1949,
by the Regional Director for the Twenty-first Region (Case No. 21-RC-956),
the Trial Examiner finds that on and since that date the Union is and has been
the exclusive representative of all the Respondent's employees at its Anza Vil-
lage plant in an appropriate collective bargaining unit consisting of all produc-
tion workers, floor help, and packing and shipping workers, but excluding ma-
chinists and supervisory employees as defined in Section 2 (11) of the National
Labor Relations Act.
2. Negotiating conferences
Only two negotiating meetings were held before the Union filed charges of
refusal to bargain. One occurred on October 9 and the second on November
21, 1949. Testimony as to these meetings was elicited from only two witnesses
for the General Counsel and one for the Respondent.
At the first conference the Respondent was represented by David Cohen
and attorney Arthur Kaufman. The Union was represented by its attorney,
A. F. Levy, two officials, and a shop committee consisting of two workers. Al-
though all three witnesses characterized the initial meeting as "exploratory" or as
a "s"eneral discussion," the policies then enunciated by Cohen cannot be ignored
GAY PAREE UNDERGARMENT COMPANY 1367
in determining the question of "good faith" bargaining, the major issue in the
case, and in resolving conflicting testimony as to events at the second meeting.
It is undisputed that at the opening of the first conference Cohen directed the
following remark, in substance, to the shop committee :
Well, you voted for the Union. I don't know why you did it because
you are not going to get anything as a result of it.
When the union counsel pointed out that it was his duty to bargain and enter
into an agreement, Cohen replied that he would bargain and sign a contract,
but no one would tell him how to run his business.
It is also uncontradicted that at the same meeting Cohen stated :
(1) that he would hire and fire as he saw fit remaining the "sole judge"
on this matter ;
(2) that no raise would be granted and that he would be the "sole judge"
of earnings and piece rates; and that while he would discuss such points
with the Union, he would neither "take the Union's advice" nor submit
any dispute to arbitration ;
(3) that he would not bargain on a vacation, health, and welfare plan.
At the second conference only Kaufman represented the Respondent, while
the Union was represented by its attorney and one official. Each of 26 provisions
in a written contract proposed by the Union was discussed, briefly or at length.
Much of the testimony concerning arguments made and positions maintained
by each of the two parties is in conflict. It appears unnecessary to encumber
this report with a complete digest of such contradictory testimony. Findings,
therefore, are limited to a summary of ultimate positions taken as established by
the preponderance of credible evidence. In resolving conflicts, the Trial Ex-
aminer is mindful of the fact that counsel for the Union testified from notes
recorded at the conference, while counsel for the Respondent relied, upon his
recollection of a meeting which had taken place about 8 months before the
hearing, and that testimony regarding Cohen's basic policy, outlined at the first
conference, is not disputed.
Substantial agreement was reached as to the Union's proposed clauses regard-
ing recognition, a weekly payday, examination by the Union,of the Respondent's
books to determine if contract provisions were being observed, equal distribution
of work among employees at the plant, grievance procedure up to management
level, homework for employees, contracting within the shop, authority and agency
of shop chairmen, a so-called "saving clause," observance of wage-hour legisla-
tion, and the term of the agreement.
The employer's representative rejected union proposals as to substantially
all other matters, and as to some refused to offer counterproposals or to negoti-
ate. The checkoff provision was rejected. Proposals for a shorter workweek
and overtime were met with a refusal to agree to any change in current practice.
The employer refused to consider or to counterpropose any form of arbitration
or conciliation of disputes, maintaining adamantly its position that Cohen must
remain as the final authority in all controversies and no recourse would be
permitted from his decisions. Similar refusal was accorded the Union's pro-
posals as to holidays and holiday pay. When asked to make some counteroffer
on this point, Kaufman said that this was a matter for Cohen's "unilateral"
decision, and stated that "it is not within the realm of the Union's business to
bargain with or tell an employer or request an employer to pay for holidays."
As to the Union's proposal concerning a joint method of fixing piecework rates,
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent countered only with the statement that such rates would be
fixed unilaterally, as it saw fit.
Concerning proposals as to work stoppages, discharges, and the crossing of
picket lines, the employer insisted that while any union protest would be re-
ceived and discussed, final authority to hire and fire must be Cohen's. Further-
more, Kaufman demanded that a clause be included stating that "the employer's
right to discharge is final and the Union shall have no recourse, whether it be
to arbitration or to court, on this question." When the union counsel asked
for at least a clause recognizing its right to protest discharges because of union
activity and the requirement to reinstate under such circumstances, Kaufman
said : "No. The employer wants the right to discharge at his will and discretion."
The Respondent refused to negotiate the proposal for a •15-cent hourly increase
in pay for all employees, and flatly declined to make any counterproposal, al-
though directly asked to do so. As to a minimum scale of wages, Kaufman said
that while the company would pay wages equal to those paid by competitors
or required by law, it would agree to no contractual clause binding it as to any
rates.
Although Kaufman agreed to include a clause recognizing the right to strike,
he insisted that such right be conditioned by the following qualification : `But if
any worker does strike for higher wages, better conditions, et cetera, the em-
ployer shall' have the right to discharge said worker. If any worker-strikes
because another worker has been fired, whether for Union activity or not, she
may strike but all strikers are to be discharged."
The employer refused to negotiate the proposal concerning equal distribution
of work between its three Los, Angeles factories, only one of which is organized.
It likewise refused to negotiate as to the proposal for vacation, health, and wel-
fare benefits.
Upon reaching the end of the proposals, Kaufman said to the union representa-
tives : "This is the contract we offer you. If you want it, take it. If you don't
want it, go ahead and strike."
3. Conclusions
In the light of Cohen's opening declaration to the shop committee to the
effect that they would not "get anything as a result" of voting for the Union,
and of Kaufman's blunt summary of the Respondent's position of "take it" or
"strike," after discussing specific union proposals ; the Trial Examiner is unable
to perceive "good faith" bargaining by the Respondent at either of the two con-
ferences held by the parties. At the hearing Kaufman insisted that the reason
negotiations broke down was the Union's adamant position that it must have
a "job security" clause, and that on all other matters further bargaining con-
ferences might well have produced agreement. More credible testimony, in-
cluding parts of his own detailed account of negotiations at the second meet-
ing, refute Kaufman's claim.2
General Counsel cites as controlling in this case American National Insurance
Comrpany (89 NLRB 185) in which the Board said, in part :
2 Doubt upon the- accuracy of Kaufman 's recollection generally is cast by the con-
tradiction apparent in the following quotation from his own testimony : "No discussion
of any kind was had with reference to Union activities. The matter of discharge for
Union activities-the matter was not raised. No statement was made by me that any
employee was discharged for Union activities , and as a matter of fact I stated to him
that he knows my client has not discharged employees for Union activities ; but on the
contrary has hired girls he knows have been guilty of Union activities."
GAY PAREE UNDERGARMENT COMPANY 1369
It is clear that from the inception of negotiations the chief obstacle to
agreement was the Respondent 's inflexible position that it would not conclude
any contract with the Union unless it accepted the Respondent 's so-called
prerogative clause, either in the original or amended form, as described
in the Intermediate Report. By this clause the Respondent sought to re-
serve to itself the exclusive right to determine unilaterally such terms and
conditions of employment as working rules, work schedules , the establish-
ment of extra shifts, lay -off policy , lunch periods , the granting of leave of
absence, and the distribution of overtime.... Nor was the Union any more
successful in its offer to accept the Respondent 's demands provided that
disputes arising under the contract were made subject to arbitration. The
Respondent refused to qualify its asserted management prerogatives.
The Trial Examiner finds merit in General Counsel's , claim. In major and
substantial respects the Respondent here involved likewise refused to yield upon
or to negotiate concerning any matter which it considered management preroga-
tive, or to negotiate concerning any form of arbitration or conciliation of dis-
putes which might arise under the contract . The Respondent 's insistence that
a clause be included which would insure that the "employer 's right to discharge
is final and the Union shall have no recourse , whether it be to arbitration or
to court," was plainly an effort to deprive that organization of its legal right
to represent the Respondent ' s employees . Similarly restrictive of employees'
rights under the Act was the Respondent 's insistence upon the Union's agree- -
ment to a provision permitting the employer to discharge strikers "whether for
Union activity or not."
Accordingly, the Trial Examiner concludes and finds that the Respondent, by
refusing to negotiate upon matters clearly within the .realm of collective bar-
gaining, such as holidays , wages and piecework rates, a general increase, dis-
tribution of work among its three factories , arbitration of disputes , and vaca-
tion, health , and welfare benefits, by insisting upon clauses depriving the Union of
the right to protest discharges beyond the level of the employer himself, and
by the lack of good faith evident from its whole course of purported bargain-
ing with the Union , has failed to perform its statutory obligation to bargain, in
violation of Section 8 (a) (5) of the Act, and thereby has interfered with, re-
strained , and coerced its employees in the exercise of their guaranteed rights in
violation of Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several . States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take
certain affirmative action to effectuate the policies of the Act.
It has been found that the Respondent has refused to bargain collectively with
the Union, thereby interfering with, restraining, and coercing its employees. It
will therefore be recommended that the Respondent cease and desist therefrom
and, also, that it bargain collectively with the Union with. respect to wages, hours,
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and other terms and conditions of employment, and if an understanding is
reached, embody such understanding in a signed contract.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following :
-CONCLUSIONS OF LAW
1. International Ladies' Garment Workers Union is a labor organization within
the meaning of Section 2 (5) of the Act.
2. All production workers, floor help, and packing and shipping workers em-
ployed by the Respondent at its Anza Village, California, plant, excluding
machinists, and supervisory employees as defined in Section 2 (11) of the Act,
constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
3. International Ladies' Garment Workers Union was, on October 5, 1949, and
at all times since has been, the exclusive representative within the meaning of
Section 9 (a) of the Act of all employees in the aforesaid .unit for the purposes
of collective bargaining.
4. By refusing to bargain collectively with International Ladies' Garment
Workers Union, as the exclusive bargaining representative of the employees in
the appropriate unit, the Respondent has engaged in and is engaging in unfair
labor practices within the.meaning of Section 8 (a) (5) of the Act.
5. By said acts the Respondent has interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in Section 7 of the Act, thereby
engaging in unfair labor practices within the meaning of Section 8 ( a) (1) of
the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]