Gem Knits, Inc.

National Labor Relations Board - Board Decisions

Feb 12, 1969

174 N.L.R.B. 449 (N.L.R.B. 1969)

GEM KNITS, INC.
Gem (Knits, Inc. and Amalgamated Clothing Workers
of America, AFL-CIO. Cases 3-CA-3461 and
3-CA-3512
February 12, 1969
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On September 13; 1968, Trial Examiner Richard
D. Taplitz issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
certain unfair labor practices and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, Respondent filed
exceptions to the Decision and a supporting brief. ,
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 this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Gem Knits, Inc.,
Hudson, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order, as modified
below:
1. Add the following as paragraph 2(c), and
reletter the following paragraphs accordingly:
"(c) Notify the above-named employee if
presently serving in the Armed Forces of the United
States, of her 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."
2. Add the following as the last indented
paragraph of the notice:
WE WILL notify the above-named employee if
presently serving in the Armed Forces of the
United States of her 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.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
449
RICHARD D. TAPLrrz, Trial Examiner: Upon a charge
filed by the Amalgamated Clothing Workers of America,
AFL-CIO, herein called the Union, in Case 3-CA-3461 on
March 18, 1968, an amended charge filed in that case on
May 22, 1968, and a charge filed by the Union in Case
3-CA-3512 on May 22, 1968, an order consolidating cases,
complaint and notice of hearing dated June 7, 1968, was
issued alleging that Gem Knits, Inc., herein called
Respondent, has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1), (3),
and (5) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Respondent by its answer
denied that it violated the Act. A hearing was held in
Albany, New York on July 30, 31, and August 1, 1968.
Thereafter, briefs were filed on behalf of the Union, the
General Counsel and the Respondent which have been
carefully considered.
Upon the entire record in the case' and from my
observation of the witnesses and their demeanor, I make
the following: ,
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Respondent, a New York corporation, maintains an
office and place of business at 513 Columbia Street in the
City of Hudson, New York, herein called the plant, where
it is engaged in the manufacture, sale and distribution of
cloth garments and related products. During the past 12
months, Respondent performed services valued in excess
of $50,000 for other enterprises located in the State of
New York, each of which other enterprises annually
purchases and receives goods valued in excess of $50,000,
(from directly outside the State of New York and each of
which other enterprises annually sells and ships goods
valued in excess of $50,000,) directly to customers in
states other than the State of New York.
The complaint alleges, the answer admits, and I find
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
IL THE LABOR ORGANIZATION INVOLVED
Amalgamated Clothing Workers of America,
AFL-CIO, herein called the Union, is a labor
organization within the meaning of Section 2 (5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged 8(a)(5)
The complaint alleges and the answer admits that after
a secret ballot election in Gem Knits, Inc., 3-RC-4295,
conducted under the supervision of the Regional Director
for the Third Region of the Board, the Regional Director
'The record discloses a great number of errors in transcription. However,
in the absence of a motion to correct the record and based on my opinion
that the errors are either self-correcting because of their context or that
they occur with regard to matters which are not necessary for the
resolution of the issues in this case , no action is taken with regard to the
transcript
174 NLRB No. 69
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on or about January 16, 1968, certified the Union as the
exclusive collective-bargaining representative of the
employees in an appropriate unit,2 that on or about
February 27, 1968, the Union requested Respondent to
bargain collectively, and that, at all times material herein,
Respondent has refused to bargain collectively with the
Union Respondent defends its refusal to bargain on the
ground that the certification is invalid
1. Background
After a hearing in Gem Knits, Inc., 3-RC-4295 on
October 20, 1967, and a decision and direction of election
dated November 7, 1967, an election was conducted on
December 7, 1967, in which out of 63 valid votes 35 were
cast for the Union, 27 were cast against the Union and 1
was challenged. On December 12, 1967, Respondent filed
objections to conduct affecting the results of the election
alleging in substance that the Union intimidated and
threatened employees and engaged in election propaganda
that contained substantial misrepresentations. One
misrepresentation alleged was that all union members
received certain benefits. After investigation, a
supplemental decision and certification of representative
issued dated January 16, 1968, in which the Regional
Director for the Third Region of the Board overruled the
objections, finding that they did not raise substantial or
material issues with respect to the conduct and results of
the election. The Union was thereupon certified. On
January 31, 1968, Respondent requested a further
investigation and moved for reconsideration. By telegram
dated February 5, 1968, the Regional Director denied the
request and motion on the ground that the Respondent
had raised no new issues or matters not previously
considered. On February 5, 1968, Respondent filed a
request for review of the Regional Director's supplemental
decision and certification of representative and moved for
stay of certification. With regard to Respondent's
allegation that the Union misled the employees into
believing that all members of the Union received certain
benefits, the Respondent stated in its request for,review at
footnote 5:
. the Employer filed a Request for Further
Investigation and Motion for Reconsideration with the
Regional Director. With this pleading, the Employer
submitted two Amalgamated Clothing Workers
Contracts, which were different, in varying degrees,
from the conditions in Exhibits 1, 2, and `A.' The
Regional Director was also advised that, to the
knowledge of the Employer, Manhattan Shirt Company
and Gant Shirt Company, both of Hudson, New York,
had contracts with the Union and that the wage rates in
these contracts (as well as the wage rates in the two
contracts furnished) differed materially from the rates
set out in the Union literature. . . All else aside, we
believe that this newly discovered evidence warrants
further investigation and reconsideration favorable to
the Employer.
On February 26, 1968, the Board denied Respondent's
request for review on the ground that it did not raise
substantial issues warranting review by the Board.
The Respondent contends that the certification is
invalid because, pursuant to the Excelsior rule,' it was
"The unit is "All production and maintenance employees including plant
clerical employees employed by Respondent at its plant excluding all office
clerical employees and guards, professional employees and supervisors as
defined in the Act "
required to furnish the Union with a list containing the
names and addresses of employees who were eligible to
vote in the election, and further that the certification was
invalid for the reasons set forth in its objections and
because a hearing was not granted on its objection.
2. Analysis of 8(a )(5) allegation
Respondent's first contention may be summarily
disposed of. The requirement that an employer furnish the
Union with the names and addresses of employees in
election cases is set forth in Excelsior Underwear Inc.,
supra. That case established the current Board law on the
subject4 and I have no authority to review it or to change
it. Morganton Full Fashioned Company and Huffman
Full Fashioned Hosiery Mills, Inc., 115 NLRB 1267,
enfd. 241 F.2d 913; Esquire, Inc., 109 NLRB 530, enfd.
222 F.2d 253 (C.A. 7). It is noted that Respondent did not
raise this contention in its objections to the election. In
any event, even if the Excelsior rule were to be set aside,
it would by no means follow that the certification in this
case would be invalid.
As to Respondent's contention that the certification is
invalid for the reasons set forth in its objections and
because of the lack of a hearing on its objections, the
Board law is clearly set forth in LTV Electrosystems, Inc,
166 NLRB No. 81, enfd 388 F.2d 683 (C.A. 4), in which
the Board adopted the Trial Examiner's decision which
stated:
It has been seen that the Union was certified by the
Regional Director as the lawful bargaining
representative in the appropriate bargaining unit; this
certification was in effect affirmed by the Board when it
refused the Respondent's request for review thereof. It
is therefore clear that the Respondent seeks to litigate
in this unfair labor practice proceeding issues which
have been finally decided by the Board in the
representation proceeding This the Respondent may
not do before the Trial Examiner. It is established
Board policy, in the absence of newly discovered or
previously unavailable evidence, not to permit litigation
in a complaint case of issues which were or could have
been litigated in a prior related representation
proceeding.'
This policy is applicable even though no formal
hearing on objections has been provided by the Board.
Such a hearing is not a matter of right unless
substantial and material issues are raised.' And that
there are not such issues has been effectively decided by
the Board.
'Excelsior Underwear Inc, 156 NLRB 1236.
Three courts of appeals have found the Excelsior rule to be valid. See
N.L.R B. v. Hanes Hosiery Division - Hanes Corporation, 384 F.2d 188
(C A. 4), cert. denied 390 U.S 950; Howell Refining Co v N.L R.B, 400
F.2d 213 (C A. 5); N L.R.B v Rohlen , 385 F.2d 52 (C.A 7). Contra see
Wyman-Gordon Co v. N.L R B., 397 F 2d 394 (C.A. 1) In the
Wyman-Gordon case a petition for certiorari to the U S . Supreme Court
has been filed by the Board.
'Pittsburg Plate Glass Company v N.L.R B ., 313 U.S . 146, 162, Collins
& Aikman Corp ., 160 NLRB No . 135 And see Rules and Regulations,
National Labor Relations Board, Series 8, as revised January 1, 1965, Sec.
102 67(f).
Denial of a request for review [of a decision by a Regional Director in a
representation case] shall constitute an affirmance of the Regional
Director's action which shall also preclude relitigatmg any such issues in
any related subsequent unfair labor practice proceeding.
See also 102 69(c)
'O.K. Van and Storage, Inc, 127 NLRB 1537, E-Z Davies Chevrolet,
161 NLRB No . 121. And see Air Control Window Products , Inc, 335
GEM KNITS, INC.
The Trial Examiner has no authority to review the
Board's final dispositions of the representation issues or
to question its conclusions made on the existing record.
The Respondent is free, in exceptions to this Decision,
to request the Board to reconsider the determinations in
the representation case, and, in the event of an
unfavorable final order by the Board the Respondent
may request review of the determinations in an
appropriate court of appeals. At this stage of the
proceedings, however, absent newly discovered evidence,
the Board's disposition of the representation matters is
the law of the case and binding on the Trial Examiner.
The question remains whether Respondent has newly
discovered or previously unavailable evidence to prove
that the certification was invalid. The only evidence
Respondent attempted to introduce related to contracts
the Union had with other employers in the area.'
The Supplemental Decision and Certification of
Representative, on which the Board refused to grant
review, found that the Respondent had not established its
contention that the union literature was false. However,
the Decision went beyond that and found that if, assuming
arguendo, the literature was false, it had to be viewed in
the light of the 20 leaflets Respondent distributed, the 8
distributed by the Union, the 3 meetings held by the
Respondent and the 2 meetings held by the Union. In one
of those meetings the Union stated that benefits were
subject to negotiations with the Respondent and that the
Union could not promise that all benefits would be
obtained. The Decision found that the employer had
sufficient time and opportunity to reply effectively to the
union literature, and the employees could intelligently
evaluate the information given them. Finally the Decision
analyzed the literature in question and found that it
referred generally to what benefits union members
received and did not necessarily say that all members
receive these benefits. Respondent sought, through its
attempt to introduce contracts the Union had with other
employers, to establish as a fact that the union had
distributed false information relating to benefits union
members received. However, even if with a factual
conclusion were reached the legal conclusion would
remain unchanged that under the circumstances of this
case, it could not be found that the election was unfair or
failed to demonstrate the true wishes of the employees.
Respondent has not raised any newly discovered or
previously unobtainable evidence but has simply restated
its original position. Baumritter Corporation, 164 NLRB
-No. 56, enfd, 386 F.2d 117 (C A. 1).
Respondent was unable to indicate any relevance that
these documents might have to this proceeding other than
as related to its objections to the election, but contends in
effect that the evidence that would be disclosed by the
contracts in question is newly discovered in the sense that
such evidence is not in its control and is unobtainable
F 2d 245, 249. `If there is nothing to hear, then a hearing is a senseless and
useless formality.'
'The issue was raised on a petition to revoke subpoenaes . During the
hearing, Respondent subpoenaed two union officials requiring them to
produce contracts the Union had with other employers in the Hudson area,
particularly with the Manhattan Shirt Company and Gant Shirt Company.
One of these subpoenaes required the production of contracts which
differed from the wage rates described in the union literature distributed to
employees of Respondent in connection with the election campaign.
Pursuant to a previous ruling that no evidence would be received in this
case relating to the validity of the certification unless such evidence was
newly discovered, I granted a petition to quash the subpoenaes insofar as
they required the production of the documents heretofore mentioned.
451
except through its subpoena power. As counsel for
Respondent stated "if you don't have anything, you can't
introduce it." Other than the attempt to subpoena the
contracts as set forth above, Respondent during the course
of the hearing made no effort to introduce any evidence
and it called no witnesses
As Respondent argued before both the Regional
Director of the Third Region and the Board that these
contracts would show that the Union engaged in
misrepresentation sufficient to set aside the election, it is
clear that this issue was fully decided by the Board when
it refused to grant Respondent's request for review.
Respondent seeks through these proceedings to have the
Board rule for a second time on its objections. This it
cannot do. O. K. Van and Storage, Inc., 127 NLRB 1537,
enfd. 297 F.2d 74. As the Board stated in that case:
The Board has rejected the contention that a
Respondent is entitled as a matter of right to a hearing
on objections to an election. [Footnote omitted.] In
order to prevent delay in election procedure the Board
has uniformly refused to direct a hearing on objections
unless the party supplies evidence of conduct which
prima facie would warrant setting aside the election.
The speculative possibility advanced by a party that
evidence to support its allegations might be developed
at a hearing is insufficient to warrant delay.
For the reasons set forth above, I find that the
Respondent's defenses are without substance and that it
has refused to bargain in violation of Section 8(a)(5) of
the Act.'
B. The Alleged 8(a)(1)
The facts set forth below are based upon a composite of
the testimony of the witnesses for the General Counsel
This testimony stands uncontradicted. In addition, the
tenor of the testimony of each lent support to the
testimony of the others and my observation of the
demeanor of these witnesses while they were giving
testimony convinced me that they were testifying
truthfully.
1. The alleged surveillance
On about October 26, 1967, Respondent's President
and General Manager George Meyerson? parked near the
union hall to observe who attended a union meeting. On
the following day, Supervisor Edythe Graziano told
employee Theresa Luongo about this surveillance.
Supervisor Graziano also told Mrs. Luongo that Mr.
'The complaint also alleges that the Respondent violated Section 8(a)(5)
by certain conduct in violation of Section 8(a)(1) which would tend to
undermine the Union, by bargaining directly with employees after the
certification and by making certain unilateral changes in working
conditions after the certification All three of these allegations have
meaning only if the underlying duty to bargain is established . As to the
undermining and direct bargaining allegations they are discussed in the
section below dealing with violations of Section 8(a)(1). As to the
allegation of unilateral change in working conditions the uncontradicted
testimony in the record establishes that the Respondent , without bargaining
with the Union , and after the certification gave employees a half day paid
holiday on Good Friday and also gave free coffee I find that the granting
of these benefits constitutes an additional violation of Section 8(a)(5) of the
Act. American School Supply Company, 157 NLRB 473
'The complaint alleges, the answer admits and I find that George
Meyerson is the president and general manager and Edythe Graziano is a
supervisor of Respondent and both are supervisors within the meaning of
the Act
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meyerson was very angry at her because he had seen her
go into the union hall and that if she voted for the Union
she would not have a job. Mrs Graziano told her not to
be seen with the union organizer and that if she did go o6't
with him there would be no work for her.
2. The alleged threats
On December 2, 1967, President Meyerson had a
conversation with employees Martha Szepessy and Ruth
Wilcox in the plant in which he informed them that he
wanted to tell the girls that he was going to close the
doors if the Union came in. He asked these two
employees to tell the other employees.
On February 2, 1967, Supervisor Graziano, in her own
home, had a conversation with her sister, employee
Martha Szepessy. Mrs. Szepessy testified as follows: "and
she, also asked me why I wanted the Union. I said `for
security.' Well, she said, `what security will you have if
Gem Knits closes its doors?' I said, `I will go and look for
another job.' She said `I will see to it that you don't get
another job around this area again .' . . She also said that
95 percent of the girls in the shop were for the Union
because of me." As noted above, this testimony was
uncontroverted and it is credited.
In October 1967, President Meyerson told employee
Lorain Schemerhorn that the plant would have to close if
the Union got in, as the Company could not afford the
Union. In January or February 1967, Mr. Meyerson
called employee Mary Rutkowski into his office. He told
her that he wanted a new election, that it would be her job
if the Union got in and that he would have to close the
plant.
President Meyerson on or about October 26, 1967, told
employee Philomena Nuendel and in December 1967, told
employee -Catherine Otty that Respondent would not
purchase new equipment until things had worked out.
Both conversations were in the context of discussions
about the Union. In the conversation with Catherine Otty,
Mr. Meyerson also stated that the planned Christmas
party had been called off until things were settled.
In November 1967, foreman Louis Cravers told
employees Catherine Otty and Diana Meer that he had
spoken to other employers in the Hudson area and that
the girls who voted for the Union would never be able to
find another job in that area.
In early January 1968, a petition for a new election was
being circulated in the plant. Supervisor Graziano
approached employee Catherine MacDonald and asked
her to sign the petition. She also asked Catherine
MacDonald to see if the other girls at her table would
sign. In the first or third week of January 1968, Mrs.
Graziano asked employee Catherine Otty to sign the
petition for a new election and added that if they did not
get the names on the petition, the mill would close down.
Mrs. Graziano also spoke to employee Mary Rutkowski
about this time and told her to think over her refusal to
sign the petition as it could mean her job,
On about March 11, 1968, Supervisor Graziano told
employee Theresa Luongo that if there were a strike and
the girls went out, the plant would be closed Mrs.
Luongo was told by President Meyerson about that time
'In his testimony on the record in Gem Knits, Inc, Case 3-RC-4295,
President Meyerson stated that Louis Craver was a supervisor, that he had
authority to discipline and reprimand employees and that if he were to
recommend the discharge of an employee , the recommendation would be
followed Based on these admissions against interest I find that Louis
Craver is a supervisor within the meaning of the Act.
that if the Union came in the plant would be shut. Also in
early March 1968, Mr. Meyerson told employee
Philomena Nuendel that if the girls walked out- on strike,
he would use it as an excuse to lock his doors.
3. Alleged promises of benefits
At a plant meeting on March 11, 1968, President
Meyerson told the employees, that he would not bargain
with the Union but that he would give benefits including
holidays and vacations. He also made a promise of
benefits to employees including Lillian Cush in the
beginning of February and added that he could give as
many benefits as the Union with no union dues.
On March 11, 1968, at a plant meeting President
Meyerson told the assembled employees that Respondent
was going to give them'a half day off with pay on Good
Friday,and free coffee. He said further that the plant was
looking into insurance.
4. The alleged direct negotiations with employees
Near the end of December 1967, President Meyerson
called employees Szepessy, Nuendel, Krisniski and
Kisselbranch into his office. Mr. Meyerson told them that
he wanted the girls to form' a committee so that he could
have a contract with them. He said that he would give
holidays, vacations and other benefits. Employee Nuendel
asked "you want to give us what the Union wants to give
us without the Union," and he answered that that was
right. Vacations, seniority, job transfer and pay
differential were promised in the contract. Subsequently,
Mr. Meyerson discussed the proposed contract with other
employees.
5. Additional allegations of 8(a)(l)
Near the end of September 1967, Supervisor Graziano
spoke to employee Edna O'Leary in the plant and asked
her to sign a paper saying that some of the girls who
worked for the Union threatened her. She refused to sign
and answered that she had not been threatened.
In October 1967, President Meyerson, in the company
office, told employees Philomena Nuendel and Sandy
Killelbrach that he believed that they had called in the
Union and he asked them why 'they stayed if they did not
like working there.
,6 Analysis as to the 8( a)(1) allegations
The uncontradicted and credited facts set forth above
establish that Respondent has engaged in a consistent and
continued series of activities to undermine the certified
bargaining agent among its employees and to interfere
with employee rights under Section 7 of the Act.
The surveillance of union activity, the creation of the
impression of surveillance, the threat to Mrs. Luongo that
she would lose her job if she voted for the Union or was
seen with the union organizer, the threat to other
employees that the plant would close and their jobs would
be lost if the Union came in, the threats to employees that
they would be unable to get other, jobs in the area because
of their union activities, the statement to employees that
no new equipment would be purchased and that the
Christmas party was cancelled in the , context of a
discussion about the Union, the soliciting of employees to
sign a petition for a new election and the threat that they
would lose their employment if they had not signed, the
GEM KNITS, INC.
promise of benefits to discourage union activity, and the
attempt to negotiate a contract directly with employees
after the certification all are in violation of Section 8(a)(1)
of the Act and I so find.' In the context of this activity I
also find that Respondent violated Section 8(a)(1) of the
Act by requesting employee Edna O'Leary to sign a paper
saying that some of the prounion girls had threatened her
and by telling employees Neundel and Killelbrach that
they had called in the Union and asking them why they
stayed if they did not like the work.'°
C. The Alleged 8(a)(3) and (I p'
1. Facts
The facts set forth below are based on the
uncontradicted testimony of employee Theresa Luongo
and union organizer Frank Luongo. Mrs. Luongo, who
was recently married, was formerly known as Theresa
Altomer and she is alleged in the complaint as a
discritninatee under that name. Her husband is Frank
Luongo, an organizer for the Union who has been
assigned by the Union to organize Respondent. Thus a
possibility of bias does exist. However, after carefully
observing Mrs. Luongo on the witness stand I believe her
to be an honest witness who takes her oath very seriously.
In addition, much of her testimony is corroborated by
other witnesses and as Respondent did not call any
witnesses her testimony stands uncontradicted.
Union organizer Frank Luongo began organizing
Respondent in July 1967. During his conversations with
various employees he was told that certain working
conditions were bad and that many employees were not
paid for overtime., Based on these complaints, Mr. Luongo
contacted various governmental agencies including, the
Wage and Hour Division of the United States Department
of Labor. He then told various employees that their
complaints had been registered. The Wage and Hour
Division investigated and found that certain employees
including Theresa Luongo had been underpaid. In Mrs.
Luongo's case the amount was $720. In the beginning of
'The attempt to negotiate a contract directly with the employees after
the Union was certified also constitutes a breach of Respondent 's duty to
bargain with the Union and therefore violates Section 8(a)(5) of the Act
In addition all of Respondent 's conduct found herein to violate Section
8(a)(1) of the Act which occurred after the Union was certified tended to
undermine the Union as well as to interfere with the Section 7 rights of the
employees and constituted violations of Section 8(a)(5) of the Act.
10At the hearing, the General Counsel amended the complaint to add as
paragraph 6(v) an allegation of interrogation General Counsel's proof as
to this subparagraph consisted of testimony that President Meyerson called
employees into his office, told them he was thinking of protesting the
election and asking if the Union had made any threats to them . It is noted
that he was not asking the employees about any protected or union activity
in which they may have engaged . The question appears to be a step in
preparation for Board proceedings rather than unlawful interrogation, and
I so find.
The record contains much testimony relating to predictions that
important business would be lost and that Michael Pauker, an admitted
agent of Respondent with some undisclosed interest in the Company,
would leave it the Union became the bargaining agent of the employees
While the evidence might indicate unlawful veiled threats to close, I find it
unnecessary to make any findings thereon in view of the direct evidence of
threats set forth above. In any event the Recommended Order relating to
8(a)(11) violations would be the same.
"During the course of the hearing Counsel for the General Counsel
moved to delete from the complaint the allegation that Carmela Manuh
was laid off in violation of the Act The Charging Party joined in the
motion and it was granted
453
January 1968, President Meyerson spoke to Mrs. Luongo
and told her that she had money due her but that he did
not want her to take it. He said he would write a note
that he wanted her to sign. The following day Mr.
Meyerson wrote out and gave Mrs. Luongo the following
note:
Dear Mr. Meyerson,
I thank you for offering me this check that you wish
to pay because of the labor dept found I did something
that wan't right. I do not feel I earned this money and
I cannot accept it.
Mrs. Luongo then took the note and showed it to other
girls in the plant. The following day Mrs. Luongo was
called into Mr. Meyerson's office and he said to her-
. . . `I thought this would be confidential between
you and me. I didn't want you to go out and show it to
the girls ' .... . `Do you understand what it is? You
are being disloyal to me.'
* *
... `If you accept this check . I will take all of
the privileges away from you.' . . . `No other work.'
`You only got button work and that is it.' ..
`You only got a few more buttons to do. When you
finish those buttons, you can go home.'
On January 8, 1968, when she finished her button work,
Mrs. Luongo was laid off. She was recalled on January
23, 1968.
Mrs Luongo is an employee of 7 years standing.
During that time she worked on button holes, cover
stitching, hemming, blind stitching, pressing, and cutting
room work. She worked on all the machines in the plant
except the binding machine. Prior to January 8, 1968, she
had never been laid off. When she would finish one job
she would be assigned to another.
Analysis as to the January 8 layoff
The complaint alleges that the layoff of January 8 to
23, 1968, violated Section 8(a)(1) and (3) of the Act. The
evidence establishes that Mrs. Luongo was laid off
because she declined to refuse the payment due her for
overtime work. This action on Mrs. Luongo's part is
directly connected to and intertwined with the complaint
of employees to the union organizer concerning working
conditions and the transfer of this complaint from the
union organizer to the Wage and Hour Division. The
employee complaints to the Union, together with the
employee activities flowing out of such complaints,
including the refusal of Mrs. Luongo to decline to accept
the check due her, directly related to working conditions
and were concerted activities for mutual aid and
protection within the meaning of Section 7 of the Act. As
a number of employees were entitled to money for
overtime and as Mr. Meyerson knew that the "note" that
he had prepared for Mrs. Luongo to sign had been
circulated among other employees, Respondent had
knowledge that the entire incident was not something
individual to Mrs. Luongo but involved other employees.
Walsh Manufacturing Company, Inc, 137 NLRB 1317,
enfd. 321 F.2d 753. I find that by laying off Mrs. Luongo
from January 8 to 23, 1968, Respondent interfered with
employees in the exercise of their Section 7 rights and
therefore violated Section 8(a)(1) of the Act. N.L.R.B. v.
Washington Aluminum Co., 370 U.S. 9, Montgomery
Ward & Co., Incorporated, 156 NLRB 7. Cf.
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Guernsey-Muskingum Electric Cooperative, Inc., 124
NLRB 618, enfd. 285 F.2d 8.12
The layoff of Mrs. Luongo from January 31 to
February 7, 1967
As already mentioned , in January 1968 a petition for a
new election was being circulated in the plant On January
31, 1968 , Mrs. Luongo , who was then doing seaming and
other nonbutton work, was approached by employee Mary
Aldrich who asked her to sign the petition for the new
election After some discussion , Mrs. Luongo refused to
do so . Mary Aldrich then walked about 30 feet away
where Supervisor Graziano was standing , and spoke to
Mrs. Graziano for a few moments . Immediately
thereafter , Mrs. Graziano walked over to Mrs. Luongo
and told her that there would be no work for her the
following day and that there would be no work until
button work became available At the time Mrs. Luongo
was working on closing sleeves and she had a few more
days' work of that nature to do. Mrs. Luongo was
recalled oil February 7, 1968 and she has continued to
work since.
Analysis as to the January 31 to February 7 layoff
Though there is no evidence as to what was said
between Supervisor Graziano and employee Mary
Aldrich, the conclusion from the entire pattern of conduct
is inescapable that the motivating factor causing the
second layoff of Mrs. Luongo was her refusal to sign the
petition fora new election . Respondent called no witnesses
and made no effort to rebut this inference I find that the
layoff of Mrs. Luongo from January 31 to February 7,
1968, was in violation of Section 8(a)(3) and (I) 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
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.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. All production and maintenance employees, including
plant clerical employees employed by Respondent at its
plant, excluding all office clerical employees and guards,
professional employees and supervisors as defined in the
"It is also alleged that this layoff constituted a violation of Section
8(a)(3) of the Act. Though the layoff was a discrimination in employment
the question is presented whether it discouraged membership in the Union
The Union did act as intermediary in passing on employee complaints to
the Wage and Hour Division but there is no evidence in the record to
indicate that Respondent knew that the Union was involved . Nor is there
any evidence that Respondent intended to use this layoff to discourage
membership in the Union I therefore find that Respondent did not violate
Section 8 (a)(3) by laying off Mrs. Luongo from January 8 to January 23,
1968.
Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
3 Since January 16, 1968, the Union has been and now
is the certified and exclusive representative of all
employees in the aforesaid appropriate unit for the
purpose of collective bargaining within the meaning of
Section 9(a) of the Act.
4. By refusing on or about February 27, 1968, and at
all times thereafter to bargain collectively with the Union
as the exclusive bargaining representative of all the
employees of Respondent in the aforesaid appropriate
unit, Respondent has engaged in and is now engaging in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
5. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act and by laying off Theresa Luongo from
January 8 to 23, 1968, the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
6. By laying off Theresa Luongo from January 31 to
February 7, 1968, because of her refusal to sign a petition
for a new election, thereby discouraging membership in
the Union, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act, I shall recommend that it cease and desist
therefrom and upon request bargain collectively with the
Union as the. exclusive representative of all employees in
the unit set forth above and if an understanding is reached
embody such an understanding in a signed agreement.
Having found that Respondent has laid off Theresa
Luongo in violation of the Act, I shall further recommend
that Respondent make Theresa Luongo whole for any loss
of pay that she may have suffered by reason of her
unlawful layoffs in accordance with the formula set forth
in F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
In order to insure that the employees will be accorded
the statutorily prescribed services of their selected
bargaining agent for the period provided by law, it will be
recommended that the initial year of certification begin on
the date the Respondent commences to bargain in good
faith with the Union as their recognized bargaining
representative in the appropriate unit.13
Upon the foregoing findings and conclusions and the
entire record in the case, I recommend that the Board
issue the following
ORDER
A. For the purpose of determining the effective period
of duration of the certification the initial year of
certification shall be deemed to begin on the date the
Respondent commences to bargain in good faith with the
Union as a recognized bargaining representative in the
appropriate unit.
13LTY Electrosystems . Inc, supra
GEM KNITS, INC.
B. Gem Knits, Inc , its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Amalgamated
Clothing Workers of America, AFL-CIO, as the exclusive
collective-bargaining representative in the following
appropriate bargaining unit.
All production and maintenance employees including
plant clerical employees employed by Respondent at its
plant in Hudson, New York, excluding all office clerical
employees and guards, professional employees and
supervisors as defined in the Act.
(b) Interfering with the efforts of the Union to
negotiate or represent the employees in said appropriate
unit as the exclusive collective-bargaining representative.
(c) Discouraging membership in the Union or any other
labor organization of its employees, by laying off
employees or otherwise discriminating against them in
regard to their hire and tenure of employment or any term
or condition of employment.
(d) Engaging in or creating the impression of engaging
in surveillance of the union activities of its employees.
(e) Threatening its employees with the closing of the
plant, the loss of employment and poor working
conditions through the failure to buy new equipment in
order to discourage activities on behalf of the Union.
(f) Threatening employees that they will be unable to
obtain other employment because of their union activities
(g) Soliciting its employees to sign a petition for a new
election and threatening employees with loss of
employment if they refuse to sign such a petition.
(h) Promising employees benefits as an inducement to
renounce the Union as their exclusive bargaining agent.
(i) Unilaterally changing wages, hours or conditions of
employment, dealing directly with employees in the unit
concerning their jobs, wages, working conditions,
conditions of employment or contracts, and bypassing or
ignoring the aforesaid union as the exclusive bargaining
representative of all employees in the certified unit.
0) In any manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2 Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request bargain collectively with the
Amalgamated Clothing Workers of America, AFL-CIO,
as the exclusive representative of the employees in the
appropriate unit with respect to rates of pay, wages, hours
of woik and other terms and conditions of employment,
and embody in a signed agreement any understanding
reached.
(b) Make whole Theresa Luongo for any loss of
earnings she may have suffered by reason of her layoffs
from January 8 to 23, 1968, and from January 31 to
February 7, 1968, in the manner set forth in the section of
this decision entitled "The Remedy."
(c) Post at its Hudson, New York, plant, copies of the
attached notice marked "Appendix ."'" Copies of said
notice, on forms to be furnished by the Regional Director
for Region 3 shall, after being duly signed by an
authorized representative of the Respondent, be posted by
the Respondent immediately upon receipt thereof, and
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.
455
(d) Notify the Regional Director for the Third Region,
in writing, within 20 days from the receipt of this decision,
what steps it has 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 for
Region 3, 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 NOT refuse to bargain collectively with
Amalgamated Clothing Workers of America,
AFL-CIO, as the exclusive collective-bargaining
representative of our employees in the following
appropriate bargaining unit:
All production and maintenance employees,
including plant clerical employees, employed by us
at our plant in Hudson, New York, excluding all
office clerical employees and guards, professional
employees and supervisors as defined in the Act.
WE WILL NOT interfere with the efforts of the
above-named union to negotiate or represent the
employees in said appropriate unit as the exclusive
collective- bargaining representative.
WE WILL NOT discourage membership in the
above-named union or any other labor organization of
our employees, by laying off employees or otherwise
discriminating against them in regard to their hire and
tenure of employment or any term or condition of
employment.
WE WILL NOT engage in or create the impression of
engaging in surveillance of the union activities of our
employees.
WE WILL NOT threaten our employees with the
closing of the plant, the loss of employment, or poor
working conditions through the failure to buy new
equipment, in order to discourage activities on behalf of
the above-named union.
WE WILL NOT threaten our employees that they will
be unable to obtain other employment because of their
union activities.
WE WILL NOT solicit employees to sign a petition for
a new election or threaten our employees with loss of
employment if they refuse to sign such a petition.
WE WILL NOT promise our employees benefits as an
inducement to renounce the above-named union as their
exclusive bargaining agent.
WE WILL NOT unilaterally change wages, hours or
conditions of employment, deal directly with our
employees in the unit concerning their jobs, wages,
working conditions, conditions of employment or
contracts, or bypass or ignore the aforesaid union as
the exclusive bargaining representative of all employees
in the aforesaid unit.
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any manner interfere with , restrain
or coerce our employees in the exercise of their rights
guaranteed them by Section 7 of the Act.
layoffs from January 8 to 23, 1968, and from January
31 to February 7, 1968.
WE WILL, upon request, bargain collectively with
Amalgamated Clothing Workers of America,
AFL-CIO, as the exclusive representative of the
employees in the appropriate unit with respect to rates
of pay, wages , hours of work and other terms and
conditions of employment , and embody in a signed
agreement any understanding reached.
WE WILL make whole Theresa Luongo for any loss
of earnings she may have suffered by reason of her
Dated By
GEM KNITS, INC.
(Employer)
(Representative ) (Title)
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, 4th Floor, The
120 Building , 120 Delaware Avenue, Buffalo, New York
14202, Telephone 842-3100.