Greystone Knitwear Corp.

National Labor Relations Board - Board Decisions

Mar 26, 1962

136 N.L.R.B. 573 (N.L.R.B. 1962)

GREYSTONE KNITWEAR CORP. AND DONWOOD, LTD. 573
Greystone Knitwear Corp. and Donwood, Ltd. and District 65,
Retail, Wholesale and Department Store Union , AFL-CIO
and Greystone Employees ' Association and Knitwear Em-
ployees' Association , Parties in Interest . Case No. 2-CA-6898.
March 26, 1960
DECISION AND ORDER
On April 25, 1961, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in this proceeding, finding that the Respondent
had not engaged in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed in its entirety, as
set forth in the Intermediate Report and Recommended Order at-
tached hereto. Thereafter, the Respondents, the Charging Party, and
the General Counsel filed timely exceptions thereto and supporting
briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Leedom].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and finds merit in the exceptions as set forth below. Accordingly,
the Board adopts the findings of the Trial Examiner only to the extent
they are consistent herewith.
We agree with the Trial Examiner that Respondents Goodman,
Gismondi, and Pekow were not supervisors within the meaning of the
Act,' and that no unfair labor practice can be attributed to the Re-
spondents through their activities. We also agree with his finding
that the evidence presented to support the allegations of the complaint
which charged that Henry and Mel Stern interrogated their employees
about their union activities and promised them economic benefits to
influence such activities was inadequate.
Contrary to the Trial Examiner, however, we find that the evidence
presented was sufficient to prove that the Stern brothers intentionally
and deliberately initiated and assisted the formation of an Employees'
Committee, which in turn promptly formed a labor organization
known originally as Greystone Employees' Association and later as
Knitwear Employees' Association.
The record shows that District 65 began a serious organizational
drive on September 14, 1959, and by September 17 had obtained the
signatures of 21 of the 41 employees.
During the height of this drive, on the morning of September 17,
1959, the Sterns visited the warehouse and after discussing space and
1 Precision Fabricators, Inc., 101 NLRB 1537.
136 NLRB No. 53.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production problems with Supervisor Wolman, walked around the
warehouse and conversed with several employees, who voiced com-
plaints about such matters as the distribution of overtime work, the
operation of a company production bonus plan, and their gross earn-
ings, but who indicated an unwillingness to submit these grievances
to management through a suggestion box available to them.
In sharp contrast with their brief and casual conversations about
these subjects with the above employees, the Sterns spent approxi-
mately 45 minutes in the quality control room discussing these same
grievances with Martin Barksdale, an early and active adherent of
District 65.
Following this conversation with Barksdale and upon their return
to Wolman's office, the Sterns decided that a grievance committee,
composed of two or three employees, should be established to serve the
function which the Respondents' suggestion box had been designed to
serve. The same afternoon they called an employee meeting on the
Companies' premises during working hours, and suggested to their
employees that such a grievance committee be formed to facilitate the
prompt referral of grievances to management.
The next day Barksdale conducted a meeting in the warehouse with
the consent of the Sterns, at which employees discussed the selection
of a collective-bargaining representative. He called for a show of
hands by those employees who were willing to attend a meeting at
District 65's union hall. When only 16 employees (including Barks-
dale) of the 41 present indicated a willingness to go to such a meeting,
Barksdale advised those present that they, "might just as well forget
the entire idea right then and there. . . ." Immediately after this
meeting he commenced his successful efforts to organize the Employees'
Committee, which the Sterns had suggested be formed.
This evidence convinces us that the Respondents initiated the Em-
ployees' Committee and recruited Barksdale to bring it into being in
order to frustrate District 65's organizational drive. Under all of the
above circumstances, we therefore hold that Henry and Mel Stern
furnished illegal assistance and support to the Employees' Committee,
which their employees formed between September 18 and 22, 1959,
pursuant to their suggestion, and to Greystone Employees' Associ-
ation and its successor, Knitwear Employees' Association, in violation
of Section 8(a) (2) and (1) of the Act'
We also disagree with the Trial Examiner's finding that there was
no proof to sustain the refusal to bargain allegation in the complaint.
We think the evidence adequately sustains this charge. The record
shows that on the morning of September 18, 1959, Dicker, business
agent of District 65, requested the Respondents to recognize and
2Internattional Association of Machinists , Tool and Die Makers Lodge No 85 v.
N L.R B. (Serrrock Corp ), 311 U.S. 72; Philanmon Laboratories , Inc, 131 NLRB 80.
GREYSTONE KNITWEAR CORP. AND DONWOOD, LTD. 575
bargain with that Union. There were then 41 employees in the appro-
priate unit (21 of whom had signed District 65 application cards?
The Union thus had in its hands actual evidence of a majority. De-
spite this fact the Respondents rejected District 65's offer to display
this evidence to an impartial party, declined to grant the Union
recognition, and insisted that the question of its majority status should
be determined in a Board election.
An employer may, of course, insist upon a Board-conducted election
when it entertains a good-faith doubt as to the majority status of the
labor organization demanding recognition. But here the Respondents
on the day previous to the demand for bargaining had begun unfair
labor practices which were to culminate on that very day in the
organization of the Employees' Association initiated by Respondents.
Thus it is clear that the Respondents had no good-faith doubt at the
time Dicker demanded bargaining, but insisted on the Board-
conducted election to gain the time necessary for the unfair labor
practices to have their full effect. And under these circumstances
Dicker was fully justified in refusing to submit to a Board election
for he was aware of the continuing effect that the unfair labor prac-
tices would have upon District 65's majority by the time such an elec-
tion could be held. We therefore find that the Respondents' refusal
to recognize and bargain with District 65 as the bargaining repre-
sentative of their employees on the morning of September 18, 1959,
violated Section 8(a) (5) and (1) of the Act.
Moreover, even if the attempt to dissipate District 65's narrow
majority might be deemed to have been successful, so that as of the
time of the Union's demand for recognition it no longer was chosen
by an actual majority of employees, we would nevertheless deem an
order to bargain appropriate in this case. In such circumstances Re-
spondents would be precluded from asserting a good-faith doubt of
the Union's majority, because of their previous commission of unfair
labor practices and because such conduct had prevented the holding
of a fair election. Inasmuch as the Unions' majority was clearly
established by a showing of cards signed prior to the unfair labor
practices we would hold the Respondents' conduct, including their
refusal to recognize the Union, to constitute unlawful interference
with employee rights in violation of Section 8(a) (1). Upon the
basis of such finding we would further order the Respondents to
bargain with the Union and thus achieve "a restoration of the situ-
ation, as nearly as possible to that which would have obtained but for
the commission of the unfair labor practices." 4 Indeed, under such
3 James Williams , a Donwood employee who was absent on military leave in September
1959, has been excluded from the unit in computing the Union's majority in accordance
with the Board's established practice See Conso Fastener Corporation , 120 NLRB 532,
542; Supersweet Feed Company, Incorporated, et at, 62 NLRB 53, 55.
4 Phelps Dodge Corp v. N L R B, 313 U S 177 , 194; see also N.L R B. v. Everett Van
Hleeck and Company, Inc, 189 F. 2d 516, 517 ( C.A. 2), and cases there cited ; N L R.B. v.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances not to order Respondents to bargain with the Union
would in effect enable Respondents to profit by their unfair labor
practices.5
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Greystone Knit-
wear Corp. and Donwood, Ltd., New York, New York, their officers,
agents, successors , and assigns, shall:
1. Cease and desist from :
(a) Refusing or failing to bargain collectively in good faith with
District 65, Retail, Wholesale and Department Store Union, AFL-
CIO, as the exclusive representative of all of Respondents' employees
in the appropriate unit.
The appropriate bargaining unit is: "All employees employed at
the Companies' warehouse located at New York, City, New York, ex-
cluding all supervisors as defined in the Act.
(b) Contributing assistance and support to the Employees' Com-
mittee formed between September 18 and 22, 1959, or Greystone Em-
ployees' Association or Knitwear Employees' Association or any suc-
cessor thereto, or any other labor organization of their employees.
(c) Recognizing the Employees' Committee formed between Sep-
tember 18 and 22, 1959, or Greystone Employees' Association or Knit-
wear Employees' Association, or any successor thereto, as the exclu-
sive representative of their employees for the purpose of dealing with
the Respondents concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or other conditions of employment, un-
less and until such labor organization shall have been certified by the
Board as the exclusive representative of such employees.
(d) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their rights to self-organization, to
form labor organizations , to join or assist District 65, Retail, Whole-
sale and Department Store Union, AFL-CIO, or any other labor
organization , to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purposes
of collective bargaining and 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
Stow Manufacturing Co., 217 F 2d 900 (C A 2 ), cert denied 348 U S 964 , Summit Mxnang
Corporation v. N L R B ., 260 F. 2d 894 , 900 (C .A. 3); Piasecka Aircraft Corporation v
N.L R B , 280 F 2d 575 , 591-592 ( C A 3), cert denied 364 U S 933 , Editorial "El
Impartial" Inc v. N.L.R B ., 278 F 2d 184 , 187 (C A 1) ; D H Holmes Company, Ltd v
N.L.R.B , 179 F 2d 876, 879-880 (C A. 5); N L R B v. Joe and Mike Caldarera, d/b/a
Falstaff Distributing Company, 209 F 2d 265 , 268-269 ( C A. 8) ; Texarkana Bus Company,
Inc., at at . v. NL.R.B., 119 F. 2d 480 , 484-485 (C A 8).
6 Cf Medo Photo Supply Corporation ` NLRB, 321 US 678, 687; Franks Bros
Company v . N.L.R.B , 321 U S. 702, 703-705.
GREYSTONE KNITWEAR CORP. AND DONWOOD, LTD. 577
labor organization as a condition of employment, as authorized in Sec-
tion 8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with District 65, Retail,
Wholesale and Department Store Union, AFL-CIO, as the exclusive
representative of all their employees in the above-described appro-
priate unit and embody any understanding reached in a signed
agreement.
(b) Withdraw and withhold exclusive recognition from the Em-
ployees' Committee formed between September 18 and 22, 1959, or
Greystone Employees' Association or Knitwear Employees' Associa-
tion, or any successor thereto, as the exclusive representative of their
employees for the purpose of dealing with it concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment unless and until such labor organization
shall have been certified by the Board as the exclusive representative
of such employees.
(c) Post at their warehouse in New York City, New York, copies
of the notice attached hereto marked "Appendix." 6 Copies of said
notice, to be furnished by the Regional Director for the Second
Region, shall, after being signed by the Respondents' representatives,
be posted by the Respondents immediately upon receipt thereof, and
be maintained by them for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ents to insure that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for the Second Region, in writ-
ing, within 10 days from the date of this Order, what steps have been
taken to comply herewith.
MEMBER RODGERS dissenting :
I would sustain the Trial Examiner and dismiss the complaint.
As the Trial Examiner concluded, the General Counsel did not
sustain the burden of establishing that the Respondent rendered il-
legal assistance to the Employees' Committee or to the Employees'
Association. As for the 8 (a) (5) allegation, District 65 may have had,
at one point, 21 cards from the 41 employees. But the Committee also
had more than half the employee signatures. The latter fact, plus
the other circumstances of the case, convince me that the Trial Ex-
aminer's disposition of this allegation, too, was correct.
61u. the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL, upon request, bargain collectively with District 65,
Retail, Wholesale and Department Store Union, AFL-CIO, as
the exclusive representative of all employees in the bargaining
unit described below with respect to rates of pay, wages, hours of
employment, and other conditions of employment, and, if an
understanding is reached, embody such understanding in a signed
agreement. The bargaining unit is :
All employees employed at the Companies' New York, New
York, warehouse, excluding all supervisors as defined in the
Act.
WE WILL NOT contribute assistance and support to any labor
organization of our employees.
WE WILL NOT recognize the Employees' Committee, formed be-
tween September 18 and 22, 1959, or Greystone Employees' As-
sociation or Knitwear Employees' Association, or any successor
thereto, as the exclusive representative of our employees for the
purpose of dealing with us concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
employment, unless and until such labor organization shall have
been certified by the Board as the exclusive representaive of such
employees.
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
District 65, Retail, Wholesale and Department Store Union,
AFL-CIO, or any other labor organization, to bargain collective-
ly through representatives of their own choosing, to engage in
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 organi-
zation as a condition of employment, as authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
All our employees are free to become, remain, or refrain from
becoming members of District 65, Retail, Wholesale and Department
Store Union, AFL-CIO, or any other labor organizations, except to
GREYSTONE KNITWEAR CORP. AND DONWOOD, LTD. 579,
the extent that this right may be affected by an agreement in con-
formity with Section 8(a) (3) of the amended Act.
GREYSTONE KNITWEAR CORP.
AND DONWOOD, Lm.,
Employers.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 745 Fifth Avenue, New York, New York, Telephone Number
Plaza 1-5500, if they have any question concerning this notice or
compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the National Labor Relations,
Act, as amended , 61 Stat. 131, 136; 73 Stat . 519 (herein called the Act), is based
upon a charge filed on September 23, 1959, by District 65, Retail, Wholesale and
Department Store Union , AFL-CIO, hereinafter sometimes called District 65 or
the Union. The charge relates that Greystone Knitwear Corp. and Donwood, Ltd.,
Respondents herein , had engaged in and were engaging in unfair labor practices
within the meaning of Section 8(a) (1), (2), (3), and (5) of the Act. The Regional
Director of the National Labor Relations Board for the Second Region , acting as
agent of the Board, on November 27, 1959, issued a complaint and notice of hearing
against the Respondents , and brought in as a party in interest Greystone Employees'
Association. Subsequently, the Regional Director issued an amended complaint and
notice of hearing on June 7, 1960, against the same Respondents , the amended com-
plaint and notice of hearing being for the General Counsel of the National Labor
Relations Board on behalf of the Board.
The complaint as amended alleges violations by the Respondents of Section
8(a)(1), (2 ), and (5) of the Act.
The Respondents , Greystone Knitwear Corp . and Donwood , Ltd., filed timely
answer to the amended complaint , denying substantive violations of the provisions
of the Act as set forth in the amended complaint. The Respondents set up an
affirmative defense which if sustained would on its face be a complete defense to
the allegations of violations of Section 8(a) of the Act, as alleged in the complaint
as amended.
The parties in interest , Greystone Employees ' Association and Knitwear Em-
ployees ' Association' too filed timely answer, effectively denying substantive vio-
lations of the Act.
On the issues framed by the pleadings , this case came on to be heard before
Arthur E. Reyman , the duly designated Trial Examiner , at New York, New York,
on July 18, 1960 . The hearing was closed on July 29, 1960 . At the hearing, each
party was represented by counsel . Full opportunity was afforded them to be heard,
to examine and cross -examine witnesses , and to introduce evidence pertinent to the
issues. Each party was afforded opportunity to make oral argument on the record,
to file proposed findings of fact and conclusions , or both, and to file briefs . Counsel
engaged in oral argument at the conclusion of the hearing, and a brief filed on
behalf of the Respondents has been received and carefully considered.
Upon the entire record in the case , from my observation of the witnesses, and
after careful consideration, I make the following:
1 This association first known as Greystone Employees ' Association.
641795-63-vol. 136-38
.580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF GREYSTONE KNITWEAR CORP. AND DONWOOD, LTD.
Greystone and Donwood are and have been at all times material hereto corpora-
tions duly organized under and existing by virtue of the laws of the State of New
York, and during such times Greystone and Donwood have maintained their principal
office and place of business at 1407 Broadway, in the city of New York, as their main
office, and a warehouse at 54th Stret and 12th Avenue, in the city of New York and
State of New York, and are now and have been continuously engaged at said main
.office and warehouse in the sale and distribution of women's sweaters and related
products. Said corporations are, and at all times material hereto have been affiliated
businesses with common offices, ownership, directors, and operators and constitute
a single integrated business enterprise. Their directors and operators formulate and
administer a common labor policy for said corporations, affecting the employees of
said corporations.
During the past year the Respondents collectively, in the course and conduct of
their business operations, caused to be purchased, transferred, and delivered to their
New York City warehouse, sweaters and other goods and materials valued at in
excess of $2,000,000, of which goods and materials valued at in excess of $1,000,000,
were transported to the warehouse in interstate commerce directly from States of
the United States other than the State of New York; and during the past year said
corporations, Respondents herein, in the course and conduct of their business op-
erations, caused to be sold and distributed at said warehouse, products valued in
an excess of $4,000,000, of which products valued in excess of $2,000,000 were
shipped from said warehouse in interstate commerce directly to States of the United
States other than the State of New York.
These Respondents are and have been at all times material to the times mentioned
herein, employers engaged in commerce within the meaning of Section 2(2), (6)
and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
(a) Greystone Employees' Association and District 65, Retail, Wholesale and
Department Store Union, AFL-CIO, are, and have been at all times material hereto,
labor organizations within the meaning of Section 2(5) of the Act, except that
(b) Since on or about January 20, 1960, Knitwear Employees' Association has
functioned as a successor in interest and alter ego of the Greystone Employees'
Association . As such , it is and has been a labor organization within the meaning
of Section 2(5) of the Act.
IH. THE ALLEGED UNFAIR LABOR PRACTICES
The Labor Organizations Involved
During the month of September 1958, Al Dicker, a general organizer for District
65, Retail, Wholesale and Department Store Union, AFL-CIO (District 65), ap-
proached Henry Stern, the president of Greystone Knitwear Corp. (Greystone) with
the view toward eventually obtaining recognition of District 65 as bargaining rep-
resentative for the employees of Greystone and Donwood, Ltd. (Donwood), em-
ployed at the Companies' warehouse at 54th Street and 12th Avenue, New York
City. At this time, Dicker conceded that District 65 did not represent a majority
of employees, and according to him President Stern and Paul Kelberg, attorney for
the Companies, had then and some other times discussed the terms of a possible
collective-bargaining agreement which might be acceptable to these employers in the
event District 65 obtained the majority of employees in the warehouse as members
of the Union. On one occasion, at least, about this time, Dicker met with the em-
ployees who had been called in to meet them at a place located within the warehouse
by Ed Wolman, warehouse superintendent. At that time the employees rejected
District 65 as their bargaining representative, and nothing came of Dicker's then
effort to obtain recognition. Subsequently and probably about June 1959, Dicker
again took up the matter of recognition of District 65 by the Company, at which
times President Stern repeated what he and Kelberg had told Stern in September
of the preceding year-that if Dicker for District 65 was able to sign up a majority
of the warehouse employees, employer representatives would sit down and attempt
to negotiate a collective-bargaining agreement between District 65 and Greystone
and Donwood covering the warehouse employees
Monroe Berler, who at some previous time had been a member of District 65,
signed a union membership card dated July 21, 1959. Berler arranged a meeting
of some employees with Dan Bloom, an organizer for District 65, the meeting being
GREYSTONE KNITWEAR CORP. AND DONWOOD, LTD. 581
held on the afternoon of Monday, September 14, 1959, in a park near the warehouse.
At that time, Bloom said that he had been advised that some of the employees were
interested in District 65, and passed out some cards for application for union member-
ship to the eight or nine employees who were present at that meeting. Before that
meeting, according to Bloom, "we had constantly from time to time had leaflet dis-
tributions, and some of our members that worked not ,too far away from the Grey-
stone plant had been off and on talking to the people as they were walking in and
out of the premises of the warehouse on 54th Street." On September 14, Bloom ar-
ranged for a meeting Ito be held at District 65 headquarters the following day, Tues-
day, September 15 .2 On that day a group of about 11 employees called at the
headquarters of District 65, at which time Dicker advised them concerning the
Union, told them to obtain signatures of a majority of the employees to application
cards for membership in District 65, and gave the employees present blank appli-
cation cards to be distributed by .them to other employees.
After the meeting at union headquarters on September 15, and on September 16,
on which day certain employees solicited other employees to join 65 without a
great deal of success, a movement began to organize an employees' committee, sep-
arate from District 65, or an independent employees' 'association. As a result of
activities in this connection, and after a meeting of all employees at the warehouse, a
committee of employees was formed for the express purpose of communicating with
management with a view toward obtaining recognition as bargaining representative of
the warehouse employees.
On the morning of Friday, September 18, about 10:30 or 11 a.m., Dicker with
Bloom met with President Stern, his brother Mel Stern, an owner and official of both
Greystone and Donwood, and Attorney Kelberg, at which time Dicker asserted that
he had obtained the signatures of a majority of the warehouse employees and re-
quested recognition of District 65 as bargaining representative. On the suggestion
of President Stern that the Union ask for an election to be conducted by the National
Labor Relations Board, Dicker replied that because Stern had engaged in an unfair
labor practice by meeting with the employees of the warehouse on the evening of
September 17 3 "we did not want to enter into any agreement or to go to the Labor
Board for an election, that some of the effects of what he had said the day before
might have had an effect upon some of the workers there." Dicker then demanded
an immediate answer, reminding Stern and Kelberg that "they had always told him
in the past, that if we organize the workers we will have no problem in sitting down
and negotiating a contract and reaching a conclusion." President Stern adhered to
his suggestion and said that he wanted an election to decide the representation
question.
After a meeting among the employees at the warehouse at the conclusion of the
workday on Friday, September 18, the employees formed their committee and sub-
sequently on Monday, September 21, the employees' committee met with Stern and
told him of the formation of the Greystone Employees' Association and requested
recognition; Stern asked them for proof of a majority. On the following day, the
employees' committee submitted to Stern a list containing the signatures of em-
ployees of the warehouse which indicated that a majority of employees within the
warehouse desired representation by the committee or by ,the Association.
Certain employees met with Dicker at union headquarters on Saturday, September
19, when Dicker explained the organizing situation to the group of Greystone and
Donwood employees assembled there.
On the morning of September 21 Dicker telephoned Stern and again renewed his
request for recognition.
After the telephone call from Dicker on the morning of September 21 and before
the meeting with the committee in early evening on September 21, Henry Stem
filed a petition with the Regional Director for the Second Region, asserting that an
Employees' Committee and District 65, Retail, Wholesale and Department Store
Union, AFL-CIO, had presented conflicting claims for recognition as the representa-
tive of Greystone's employees engaged in warehouse activities except supervisors,
and requested the National Labor Relations Board "proceed under its proper au-
thority" to determine the rival claims. Case No. 2-RM-1051 [not published in
NLRB volumes]. By letter dated September 22, the Regional Director notified the
Committee and District 65 of the filing of this petition. On September 28, the parties
were notified by the Regional Office that a conference in connection with the Com-
2 Unless specifically shown, all dates hereinafter mentioned are for the year 1959.
3 This is discussed more fully below
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany's petition, scheduled for September 30, was postponed because of the pendency
of a charge filed by or on behalf of District 65 on September 23.
The complaint herein alleges and is not denied, that all employees of Greystone,
and Donwood employed at the warehouse exclusive of all supervisors 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. It is conceded and I
find that the unit as thus described is an appropriate unit for the purposes of col-
lective bargaining.
The Employees' Committee, employees Martin Barksdale, Joseph McKay, Rubye
Holden, Benjamin Sanders, and Jack Pekow was the committee which discussed the
forming of an association; that committee obtained the signatures on the list of
employees presented to the Company on September 22 as proof of the majority
and as indicating the formation of the Greystone Employees' Association.
Sometime during the month of November the committee on behalf of the Asso-
ciation called at the Regional Office of the Board for the purpose of filing a petition
with the Board. At that time James Graham, an agent of the Board, advised the
committee that a petition had been filed by the Companies, that the petition contained
the name of the Greystone Employees' Association, and that if an election were
held the Association would presumably be on the ballot; Mr. Graham further in-
formed the committee that that being the case, there was no need for them to file a
petition. On October 6, the committee called on an attorney, Mortimer Sperling,
who advised them concerning the organization of the committee into an Association;
Manuel G. Guerreiro, an attorney, was retained by the Association early in December
and a formal meeting was conducted on December 15 at the home of one of the
employees, at which 21 employees who previously had indicated an interest in the
Association met "to discuss the Employees' Committee of Greystone et al." A
formal meeting was held on January 20, 1960, on 10 days' notice, at which time the
Employees' Knitwear Association formally met and elected officers and named a
committee.
An analysis of the testimony and the documentary evidence herein discloses the
following information in connection with the conflicting claims of membership as
between the rival organizations on the critical dates in September:
Employees who
signed application
cards for District
65, w, 1h date
Employees whose names were on payrolls for
weeks ending Sept 16 and 24, 1959, who
signed Local 165 card, or statement favoring
Association or Committee, or both, or
neither
Employees who favored
Association or Com-
mittee as shown by
signed statement of
Sept. 22
Employer-
D =Donwood,
G =Greystone
1959
9/14--------------- Martin Barksdale------------------------- Yes------------------- D.
9/14----------------- Joseph McKay---------------------------- Yes------------------- G
9/15----------------- Briscio Moreno --------------------------- No-------------------- D
9/15----------------- Enrique Moreno-------------------------- No------------------- D
9/15-----------------
Carlos Ahreu------------------------------ No-------------------- D
9/23 ----------------- Jack Ziff---------------------------------- No-------------------- D.
9/16----------------- Ana 0. Hernandez (Aponte) -------------- Yes------------------- D
9/16----------------- Isiah Keene ------------------------------- Yes------------------- D
9/16---------------- Durina Rodriquez------------------------ Yes------------------- G.
9/22 ----------------- Clinton Pittman-------------------------- No-------------------- D
9/21----------------- Milton White----------------------------- No-------------------- D.
9/15----------------- John Smalls------------------------------- No------------------- D.
9/15----------------- Edw Drake------------------------------ Yes------------------- D.
9/15----------------- Janice Mason ----- - --------------------- No-------------------- D.
9/15---------------- Barry Mason----------------------------- No-------------------- D.
9/15----------------- M Rosado-------------------------------- Yes------------------- D.
9/14-----------------
9/14-----
Willie Mills, Jr----------------------------
Louis Burris------------------------------
Guy Dickinson ---------------------------
Yes-------------------
Yes- -- ---------------
No--------------------
D.
D.
D_
-----------------
Carlos Acosta-----------------------------
Beal F. Saunders-------------------------
No--------------------
Yes- ---------- ------ -
D.
D.
9/23 ----------------- John Jarvis ------------------------------- Yes------------------- D.
9/16----------------- Ricardo Rosano--------------------------- Yes------------------- D.
9/15- --------------- A Modesto Merino----------------------- No-------------------- D.
7/21----------------- Monroe Berler---------------------------- No-------------------- D.
No------------------
Rubye Holden---------------------------- Yes------------------- D.
GREYSTONE KNITWEAR CORP. AND DONWOOD, LTD. 583
Employees who
signed application
cards for District
65, with date
Employees whose names were on payrolls
for weeks ending Sept 16 and 24, 1959,
who signed Local 165 card, or statement
favoring Association or Committee, or
both, or neither
Employees with favored
Association or Com-
mittee as shown by
signed statement of
Sept. 22
Employer-
D=Donwood,
G=Greystone
No------------------ Gudelia Muronda------------------------- Yes------------------- G
No------------------ Anthony Anone--------------------------- Yes------------------- G
No------------------ Arnold Goodman------------------------- Yes------------------- G
No------------------ Jack Pekow----------------------------- Yes------------------- D.
No------------------ Dominick Gismondi---------------------- Yes------------------- D
No------------------ Sara Richardson-------------------------- Yes------------------- D
No------------------ Evelyn Halstead-------------------------- Yes------------------- D
No------------------ Rosalie Campbell------- ---------------- Yes------------------- D
No------------------ Shuley Levine---------- -------------- Yes------------------ D.
No------------------ Carmen Bryan---------------------------- Yes--- --------------- D
No------------------ Reuben Gale------------------------------ Yes------------------- D
No- ---------------- Reginald Martin---- --------------------- Yes------------------- G
No------------------ Arthur J Durham------------------------ Yes------------------- D.
No------------------ A Benjamin------------------------------ No-------------------- D
No------------------ C Roond--------------------------------- No-------------------- D.
No------------------ E Wolman------------------------------- No-------------------- D.
No------------------ J Tomasulo------------------------------- No-------------------- G
NOTE 1 -John Smalls was discharged on September 21 An unfair labor practice charge against the
employer concerning his discharge was later dismissed by the Regional Director.
NOTE 2 -James Williams, a Donwood employee, left for military service on or about June 28, 1958, and
returned to work on July 12 or 13, 1960 His absence in September 1959 has no bearing on rival claims of
majority here. Twenty-fourth Annual Report of the NLRB, p 45.
NOTE 3 -Employees Arnold Goodman, John Tomasulo, Dominick Gismondi, and Jack Pekow are found
not to be supervisors within the meaning of the Act As stipulated, Edward Wolman and Charles Roond
are supervisors.
SUMMARY
Number of application cards held by District 65 on Sept. 18--------------------------------------- -- 21
Number of application cards held by District 65 on Sept 24----------------------------------------- 25
Number of signatures obtained by Committee as of Sept 22---------------------------------------- 24
Number of signatures obtained by Committee on or br fore Sept. 24--------------------------------- 26
Total number of employees on payrolls covering Sept 18-24----------------------------------------- 43
Supervisors on payrolls covering Sept 18-24--------------------------------------------------------- 2
Supervision of Employees in the Warehouse
The warehouse used jointly by Greystone and Donwood located at 54th Street
and 12th Avenue in New York City is a structure with floor space of approximately
200 by 50 feet. At one end of the floor area is a space devoted to shipping, packing,
and receiving, and at the opposite end in one corner of the floor is the quality control
room. Just off the shipping, packing, and receiving space is a small office used by
Supervisors Wolman and Roond, and next to that is a lunchroom area. A wire fence
separates the main floor area and on the east side of the building and outside of the
wire are restrooms and two passenger elevators. The passenger elevators are located
at the end of the floor opposite the quality control room. Next to the shipping,
packing, and receiving area are the freight elevators. The main part of the floor
space, with the shipping, packing, and receiving area at one end and the quality
control room at the other, is occupied by large bins made of steel shelves. The bins
are some 7 feet high and are wide enough to hold folded, packed, or unpacked
sweaters. Goods received may be stored in these bins until such time as they are
removed for the filling of particular orders.
There is no dispute that Wolman and Roond were supervisors before and during
the month of September when organization activity on the part of each rival organiza-
tion was at its height.
At the hearing it was contended by the General Counsel that John Tomasulo,
Arnold Goodman, Dominick Gismondi, and Jack Pekow were, during these times,
supervisors within the meaning of the Act.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John Tomasulo, at a time some 3 years prior to the hearing in this case, was super-
visor in the warehouse. He was and is an employee of Greystone. He was advised
by President Stern sometime during the year 1956 that he was being displaced as a
warehouse supervisor and was given a job as a packer of special orders. Since the
time his duties were changed, he has remained on the payroll as a weekly salaried
employee. At the time his duties were changed, he was told by Stern that in view
of the increased work and responsibilities he felt that Tomasulo could not handle the
supervisor's job properly and therefore the change was being made; that he would
retain his weekly salary as before but would be expected from time to time to work
overtime without additional compensation. It may be noted that Tomasulo at the
present time is the only salaried nonsupervisory employee in the warehouse. Toma-
sulo was replaced by a person who acted as supervisor for a period of a year this
person in turn being succeeded by Wolman who presently occupies the supervisory
position formerly held by Tomasulo. In his work consisting of filling special orders,
Tomasulo selects the merchandise called for by written order preparatory to its
being packed and shipped to the customer. He does not work with anyone, he
supervises no one, his duties are routine; he in no sense meets the standards of super-
visor as set forth in Section 2(11) of the Act.
The complaint alleges, among other things, that "Respondent [Greystone and
Donwood] did initiate, form, sponsor and promote the Greystone Association, and
did dominate, interfere with the formation and administration of said labor organiza-
tion, and contributed financial and other support to it, and . through its super-
visors Jack Pekow, Arnold Goodman and Dominick Gismondi, has participated in
and dominated the administration and officers of the Greystone Association and its
successor and alter ego, the Knitwear Association " The complaint also alleges
that these three men urged and solicited employees in the warehouse to sign a mem-
bership petition for the Greystone Employees' Association and to join and assist
that Association, and refused to permit representatives of District 65 to enter the
warehouse and solicit membership among the employees on behalf of District 65,
although the employer invited and permitted representatives of the Association to
engage in such conduct.
Arnold Goodman during the times material herein , worked in the shipping de-
partment helping to seal, pack, and check orders. He worked with some six other
employees and after he had received particular order slips from Supervisor Wolman,
he customarily divided the work to be done between himself and the other employees.
He testified that after a boy had been hired as an order picker and he had instructed
the boy how to pick orders, he later reported to Supervisor Wolman that he did not
think that the boy was competent to perform the work. Thereafter the boy was
assigned various duties around the warehouse and subsequently left the employ of
the employer. This is the only instance of a "recommendation" by Goodman acted,
upon, impliedly, by Wolman. Goodman's duties include the performance of physi-
cal work; he does not have the right to hire or fire or lay off, to promote, and with
the exception of his comments to Wolman concerning the above-mentioned boy
which were made sometime in May or June 1959, there is no other evidence that
he exercised control, directly or indirectly. over the operations in his particular area.
The operations of the packing and shipping departments are essentially simple.
Merchandise is brought into this area on wagons , taken off the wagons, put into
cartons of appropriate sizes, and sent on to the shipping area after the cartons have
been sealed by persons who work as sealers. This type of work constitutes the prin-
cipal part of Goodmans' activities in the warehouse. Charles Acosta, an employee
who worked as a shipping clerk, packer, and sealer, on direct examination said he
regarded Goodman as a supervisor . Acosta said that Goodman "gave me an idea
of what I had to do"; and that he together with an employee, Burris, put packages
in boxes, sealed, and shipped. So far as work assignments were concerned, he said
that he could get them from Burris as well as from Goodman who "would bring the
racks over to Lou [Burris] for him to pack. Then as soon as he packs it, we seal
it and put it on a conveyor and roll it down to the shipping clerk"; that the nature
of instructions given to him by Goodman or Burris would be to tear down boxes for
garbage or tell him to go and work with someone else , perhaps Pekow or Gismondi
or the general supervisor. Jokingly or not (according to Acosta), Goodman some-
times would tell him to work faster; at other times Goodman would tell him, when
he was almost through with one job, to go over and do something else. The direct
testimony of Acosta concerning the precise instructions given to him by Goodman
became diluted on cross-examination , from which it clearly appears, by his own
testimony, that he received few if any instructions from Goodman concerning the
way in which to do his work (except perhaps in the way of instruction); that Burris
gave him as many if not more instructions that Goodman; that he knew after a week
GREYSTONE KNITWEAR CORP. AND DONWOOD, LTD. 585
or so of employment the size of carton or cartons to use in the packing operation;
and that Goodman simply transmitted the instructions with respect to packing from
the written orders received from the shipping department office. In response to a
suggestion by counsel for the Respondent that "there really wasn't very much advice
or instructions you had to ask from anybody," Acosta answered, "Right." Acosta
said that wen he worked with Gismondi, the latter would give him a list of work to,
do, more than one job, and that he would go from one side of the warehouse to the
other to pick out orders for the order pickers. When he worked for Pekow, the
work was essentially the same; there were, to quote Acosta, packages to be shipped
to Puerto Rico and packages coming from Puerto Rico and other warehouses so
that merchandise was either packed or shipped.
Gismondi testified that he was employed in the warehouse as stock clerk and that
his duties were to take care of the stocks, to give cartons to the order pickers, to
receive goods, and to put them in stock. He said that he worked with Enrique Merino,
Armando Merino, Carlos Abreu, and Willie Mills, each of whom did the same work
that he did. He said further that he had instructed new employees in that he showed
them the cartons, how to find them, where to put goods, this upon instructions given
to him by Wolman. He relayed instructions from Wolman to other employees, the
instructions generally being in connection with the handling of merchandise accord-
ing to receipt or order for shipment. Gismondi said that in September he at times
received orders or instructions from Charles Roond, Wolman's assistant, who took
care of the office. Gismondi obviously did not regard himself as a supervisor. He
did not have the right to hire, fire, transfer, suspend, lay off, or promote, to make
job assignments, or to exert discipline of any kind. In answer to a question as to what
kind of instructions from Wolman he relayed to Abreu, the Merino brothers and'
other employees, he stated, succinctly, "Like a team, you know. Mr. Wolman can-
not go to different people to say, `let's do this.' You know? He tells just me because
I know how to do from experience. So they work with me, we work together on the
job."
Monroe Berler worked as an order picker in September 1959, he described his
duties like this: "Well, an order picker is given an order sent in by a particular
customer and it's either specified in style, number and size, or else its style number,
and assorted. If it's size, it's very simple picking out sizes. If it's assorted you use-
your judgment based upon the amount of colors and sizes in stock." Berler during
the time of his employment worked with Goodman, Gismondi, and Pekow. He said,
regarding Goodman, that when he first started to work, Goodman gave him initial'
instructions but that later Goodman realized that he knew what was what and there
was no need for specific instructions; that when working "with and for" Gismondi
in the receiving area, he described the operations and Gismondi's duties to be as
follows:
Well, Dominick Gismondi had, was in charge of what they called the receiver
area. The Greystone Donwood operation, works on using, having a minimum
amount of stock in the open bins, and everything else that comes in is put in
sealed cartons in what they call the receiver area. This receiver area is desig-
nated according to number and letter. The number designates the aisle and the
letter designates a specific bin, going from A, to as far as the number of bins.
One letter in the alphabet for a total number of bins in that specific aisle And
his job was to fit these cartons in the area, keep a record of empty space so that'
new stock coming in, that there is no immediate use for, can be put in. His job,
was also to see to it that when a specific carton has been requisitioned, the order
picker is given that carton so as to fill his particular order. Those were his
main duties. He also has the three Merino boys under him and he has Abreu
under him, but before these boys came, when order picking was very slow or
slack, before the big season starts in the latter part of June, I was working with
him too, when I wasnt needed elsewhere with Pekow or Goodman or Roond.
Berler testified that at times he also worked with John Tomasulo, whose function
was to fill mail orders. Again quoting Berler,
and since the mail order houses have peculiarities for packing.-like Montgomery
Ward sizes, all merchandise is in their bags, it's their bags with their emblem on,
their number of the item had to be printed on the outside of the bag and they
had to be bundled, in multiples , sixes, or in multiples of sixes, if the sweater
wasn't too thick. There was one mail order house . . . -they want only
polyethylene bags, and they provided bags too, with an opaque area in which
we could print their number on it , and it was John Tomasulo's duty to see that
all the numbers with the peculiar type of arrangements should be filled. He was
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the most experienced man in the warehouse as far as knowing that type of
business. .. .
Berler said further that Tomasulo worked alone but he did have him, Berler, occa-
sionally and sometimes Shirley Levine whose specific job was to control the receiver
area slips which are made out when merchandise is put in the receiver area where
Gismondi was employed.
Pekow, employed in the receiving department testified that merchandise received
in the warehouse was handled after Wolman had instructed him what to do with the
goods and after Pekow transmitted Wolman 's instructions to the other employees
working there with him, that the way such instructions were transmitted , according
to Pekow , was ". . . if I would get a style in the house and that style either had to
be spread out or to be put in the bin, I would be advised where this particular style
would go and in turn I would tell these people where it is going , what to do with that
particular style."
Employees Barksdale and Berler and President Stern testified regarding the duties
and responsibilities of Tomasulo ; employees Acosta and Berler testified regarding
the duties and responsibilities of Goodman ; Berler, Wills, Dickinson , and Acosta
testified with respect to the duties and responsibilities of Gismondi ; and Pittman,
Dickinson , and Berler testified in the same respects concerning Pekow. Concerning
Tomasulo, it is clearly apparent that, after some 20 years of work, he was trans-
ferred from his job as a supervisor and put into that sort of job which required
some special knowledge of picking and packing special or mail orders . This latter
job did not require the exercise of supervisory authority in any sense. Goodman,
Gismondi , and Pekow at most can be considered leadmen-that is, employees who
received essential instructions regarding receiving , packing, and shipping from
Wolman or at times Roond, and simply carried these instructions into effect with
other people in their particular area; all of this work was routine in nature and even
though these three men might have had more direct contact with the supervisor,
the contact was purely of a functional nature and in connection with the actual
doing of the required work of receiving , sorting, or packing, as the case might be.
The sum and substance of the testimony of Acosta , Barksdale , Berler, Wills, Dick-
inson , and Pittman , all employees in the warehouse , demonstrates conclusively from
their own observation of the work of the three men claimed by the General Counsel
to be supervisors , that such work in the main was the same as the work done in
their respective areas by other employees, with the sole exception of the fact that
they did receive the primary instructions concerning work in their areas from the
supervisor.
Each of the employees mentioned above, including Gismondi, Pekow, and Good-
man, were called as witnesses by counsel for the General Counsel , who introduced
in evidence pretrial statements made by Gismondi , Pekow, and Goodman. These
exhibits were received in evidence by me for the weight to be attached to them as
evidentiary only and not for impeachment purposes . Generally speaking , the con-
tents of each statement are generally in accord with the testimony of the witness
at the hearing. There are minor deviations , which are inconsequential , and where
there is apparent discrepancy or inconsistency in testimony and in statement, I have
given greater weight to the testimony of the witness observed and heard by me at
hearing.
These facts are crystal clear: Wolman as supervisor covers the whole warehouse
area and exercises real supervision and there is no real delegation of authority out-
side of routine work given by him to those men claimed by the General Counsel to
be supervisors Roond, the other supervisor, spends the greater part of his time
within the office on the warehouse floor. The operations on the warehouse floor
essentially are simple . After merchandise is received , the various sizes or lots are
stored and thereafter a picker, with written memorandum or instruction, makes up
the various lots The mere fact that Goodman, Gismondi. and Pekow divide the
work in their respective areas among the other men working with them does not
add such value to their iob as to make them supervisors The independent decisions
claimed by the General Counsel to be made by them are those decisions of the
kind that Section 2(11) mentions; they are not of the kind "not of a merely routine
or clerical nature" requiring the use of indenendent iudement. On the contrary such
decisions if they may be so called are affirmatively merely routine or clerical in
nature and do not require the use of independent iudement.
Consequently. I feel that those activities of these emnlovees. as set forth in the
complaint, which attribute unfair labor practices to the Respondents by or through
such activities, cannot (even if engaged in) be regarded as the acts of the
Respondents.
GREYSTONE KNITWEAR CORP. AND DONWOOD, LTD. 587
Meeting of September 17
President Stern testified that on Wednesday, September 16, he had engaged in a
telephone conversation with Supervisor Wolman wherein Wolman mentioned that
he was having a particularly bad time at the height of the season, and that among
the other things that concerned him was a space problem-that a considerable
amount of merchandise had accumulated for which there were no orders, that it
was blocking the aisles, and that Wolman did not know what disposition to make
of it because it was interfering with the handling of goods which could be shipped.
Wolman also mentioned that he felt he was not getting out the production he should
with available manpower and that shipments were not going out as planned or
expected at that particular time.
On the following day, Thursday, September 17, President Stern called at the
warehouse in the company of Mel Stern. The two saw Wolman and discussed the
situations mentioned by Wolman in his telephone conversation of the previous day.
The space problem was considered first and production was discussed next. At the
conclusion of the conversation in Wolman's office, the three men decided to walk
around the warehouse themselves so that the Stern brothers could have an op-
portunity to observe and to talk to the employees. During the course of their
tour they met and talked to Pekow, Goodman, Tomasulo, Martin, one of the
Merino brothers, Gismondi, McKay, and Rubye Holden. According to Henry
Stern, general greetings and comments were exchanged and made with Goodman,
Pekow, and Tomasulo. In talking to McKay, the latter expressed the desire that he
would like to make some overtime pay whereupon he was asked why he had not
expressed himself to Wolman or why if he had any suggestions he had not used the
suggestion box, which had been set up some time previously for that purpose,
McKay expressed reluctance to "write up things and put them in a box." Greetings
were exchanged between Merino and the Sterns and Wolman. In talking to
Reginald Martin, in answer to a question by Henry Stern as to how everything was
and whether he had any complaints, Martin said that everything was fine as far as
he was concerned but there were a number of complaints that he had heard around
the place, principally revolving around "money in some form or other." In talking
to Gismondi, the latter said that everything was fine but that there were a lot of
complaints heard among the employees particularly concerning earnings and the
bonus arrangements and distribution of overtime. Rubye Holden complained about
bad language used in the presence of women employees and when asked why she
did not avail herself of the suggestion box for such a complaint she too expressed
her reluctance to put the complaint in writing and deposit it in the box.
A more lengthy discussion was had with Martin Barksdale in the quality control
room where Barksdale told the Stern brothers and Wolman that he understood that
many employees were dissatisfied and that there were grievances being nursed which
the employees were reluctant to bring forth. Stern's version of the conversation
with Barksdale is substantially the same; he mentioned the fact that Barksdale had
brought up the subject of dissatisfaction and individual grievances, including wages,
particularly an incident where one office girl had complained that she was doing the
same work for the same salary as a girl who had been very recently hired; that
employees felt that overtime was not being distributed on an equitable basis and had
voiced complaints in regard to the production bonus plan. The conversation with
Barksdale lasted for some 40 or 45 minutes
As a result of these talks with individual employees, and after discussing the situa-
tion in Wolman's office, it was agreed that the officers and supervisors were not
obtaining or did not have a proper communication system between themselves and
the employees and that the employees were not utilizing the suggestion box set up
for the purpose of communication of grievances; according to President Stern, the
three men talked about the possibility of replacing the suggestion box with a com-
mittee of two or three people to whom the rest of the employees could come if
they had a grievance, the committee in turn to bring the grievance or grievances to
Wolman or Stern. The ultimate result of the discussion was the calling of a meeting
of the warehouse employees for 4 o'clock that afternoon in the warehouse.
At this meeting, held in the area immediately outside Wolman's office, Wolman
and Henry and Mel Stern were present. Henry Stern spoke to the employees and
told them that management was concerned about the communication of views be-
tween the employees and management and how important management felt it was
that there be a clear line of communication between them and the employees. He
advanced the idea of a suggestion committee rather than a suggestion box, the com-
mittee to be made up of two or three employees who could be given complaints or
grievances and who would in turn convey them to Wolman or to Stern. At this
Z88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
point, according to Henry Stern, Berler spoke up and said that "We want 65, District
-65. We want the Union. We are not interested in anything else." Thereupon
there was an employee's reaction during which a number of them said that Berler
-was not talking for them and that they were not interested in a union or in District 65;
there was a general free-for-all discussion among the employees; when this abated
to some extent, Henry Stern again spoke and told the employees that they were com-
ppletely free to do whatever they wished; that management had no interest or concern
in the matter except "to go along with what the majority of the people wanted"; and
said that from their point of view, they felt that they treated their employees fairly,
had come up with a production bonus plan and a new insurance plan, and they
(management ) did not think that the employees needed a union. He said that they
were providing all the things that the Union could provide but, in the final analysis,
the employees would have to decide for themselves.
Mel Stern again spoke, along the same general lines "mentioning that the people
were completely free to do what they want and it is up to them to make their own
decisions, but that they should also remember how the Company had treated them
and how it was handling them and how we felt that we have always been reasonably
progressive."
After Mel Stern spoke, there was some discussion from the floor and it was sug-
gested that the employees discuss the whole question among themselves and decide
what they wanted to do. The group requested permission to use the facilities of the
warehouse the following day in which to hold a meeting , to which Stern agreed. He
specifically requested Wolman and Roond to stay away from such a meeting.
Dickinson, who was present at this meeting, substantially confirmed what Stern
said he had said at this meeting and what had transpired. He mentioned the dis-
•.cussion prompted by Berler's comment that the employees wanted District 65 and in
effect confirmed the remarks Stern said he had made in connection with the need
of the employees for a union.
Concerning this meeting, Acosta, a not too sure witness, testified in substance:
It was all, like I said before, that the Union wasn't for us, that they could give
'us as much as the Union could give us, plus the benefits that the Union can give
us, he [Henry Stern] can also provide that for us and that he had done so up
to now. That's all I can remember.
and further, after prompting:
Yes. He spoke about. now that I look at a few of. what it says there, he had
mentioned the different benefits that the Company had offered us. I believe I
said that before, that the different benefits that the Company has for the
workers. . . I don't remember the date that he had mentioned that these things,
that this was in effect, but he mentioned about it.
Acosta remembered that Henry Stern had said that if the employees wanted a union
they would have to make the decision themselves and that if a majority selected a
union he would recognize it; he remembered Berler saying that the employees already
had selected District 65; and that Goodman, Pekow, and Gismondi were present at
that meeting . Acosta remembered a discussion about a suggestion committee, al-
though he did not know who first mentioned it; he thought it was McKay who had
remarked at the September 17 meeting that:
. .. we have had it before but we had no results of it because we put in our
suggestions but there was, nobody seemed to look at them or anything, or they'd
take them from there, or, I believe that it was said that-yes, they said the sug-
gestions are taken out of the box and thrown in the garbage because there were
too many suggestions and they didn't have any time to look at them.
Monroe Berler, also called as a witness by counsel for the General Counsel, testified
,concerning this meeting:
. Henry Stern spoke briefly and then Mr. Mel Stern spoke at quite a good
length, and then Mr. Henry Stern spoke again. Now, the things that Mr. Mel
Stern brought up were more specific than what Mr. Henry Stern brought up.
Mr. Henry Stern only gave the impression that he was a friend of the employees
and that he had their best interests at heart and they could come to him with
their problems and suggestion box. But by the time Mr. Stern had gotten
through, the entire conversation had undergone a change because Mr. Mel Stern
had specifically suggested it, the conversation had finally gotten around to un-
ionism, whether the employees should be-follow the course of unionizing-and
by that time, Mr. Henry Stern was again involved . when the meeting was
about to be broken up, Mr. Henry Stern suggested that one-one of the em-
GREYSTONE KNITWEAR CORP. AND DONWOOD, LTD. 589
ployees on the floor suggested a meeting of the employees, and Mr Henry Stern
suggested a meeting at their warehouse that next day, with the management to
be excluded. They were to have what they called the measuring room, way
in the rear, on the southeast corner of the warehouse, and the door was to be
closed.
According to this witness the meeting of employees was suggested by an employee
from the floor and Henry Stern immediately offered the use of the warehouse the
following day. (He was the only witness who said or implied that unionism was
first mentioned by Mel Stern.) Berler testified that it was at this meeting, after or
during the course of the pro and con discussion by the employees themselves, that
Goodman "gave a very loud and hesitant speech in favor of the Sterns and against
the Union." Berler thought that Carmen Bryan was the one who suggested a meeting
for employees only.
Employees' Meeting of September 18
As remarked above, District 65 Representative Dicker together with organizer
Bloom called at the company offices at 1407 Broadway about 10 or 10:30 am. on
Friday, September 18. At this meeting Dicker, who had had prior notice of the
employees' meeting scheduled for that afternoon, renewed his request for recogni-
tion of District 65 as representative of the employees. During the course of this
discussion, he said that it was agreed by Henry Stern and other management repre-
sentatives present that the status quo would be maintained pending the resolution of
the representation question. After Bloom had spent a little time at this meeting, he
was sent by Dicker to the warehouse where, according to Dicker, he was to talk to the
employees during the lunch hour in an effort to dissuade them from attending the
meeting scheduled for that evening.
Upon reaching the warehouse Bloom entered it where he talked to a number of
the employees, including Acosta and Berler. Wolman discovered Bloom talking
to Acosta and other employees in the warehouse; he telephoned Henry Stern who
at that time was still talking to Dicker and Stern told Dicker that it was reported to
`him by Wolman that there was some kind of a commotion at the warehouse and
asked him, Dicker, to talk to Bloom; Dicker says he talked to Bloom over the tele-
phone and instructed him that he had not sent him into the place but had asked
him to contact the employees when they came out on their lunch time, and ask them
to be available for him when he left the Company's offices so he could talk to the
workers on their lunch hour across the street in the park. Berler, who was present,
said that Bloom had entered the lunchroom, spoke to a group of about seven
employees, told them that the meeting scheduled for that evening was a trick, that
they should not attend that meeting but rather should attend the District 65 meeting
previously scheduled for the following day, the 19th. At any rate, it is clear that
Wolman approached him and told him that he could not remain in ,the lunchroom;
that he nevertheless stayed there for about 5 minutes, when Wolman returned and
said that he had spoken to Henry Stern and they could have a meeting if they would
"go down in the park." Without regard to Berler's testimony, it is clearly apparent
that Dicker instructed Bloom to leave the premises of the Company after his exchange
with Wolman.
The meeting of the employees was held in the warehouse about 5 p m. on September
18. Barksdale led the discussion. During a discussion as to the course the employees
should take regarding union representation, Barksdale called for a show of hands
for those employees who held a willingness to attend the Local 65 meeting scheduled
for the next night. Sixteen employees indicated their willingness to attend the
Local 65 meeting. Barksdale's account of this meeting, substantially confirmed
by the testimony of Acosta, Berler, and Dickinson, is as follows:
After I led the discussion, had at the meeting among the employees, which we
didn't seem to be getting any place or getting any results from the meeting, I
asked the employees how many of them that were present were willing to attend
a meeting that was scheduled for the following Saturday, which would have
been the 19th, I believe, at the union hall. At that time, only 16 people raised
their hands, including myself. After taking a count of hands raised I then made
the statement that if that was all that had a desire to attend the union hall, that
we might just as well to have forgot the entire idea right then and there. . . to
the best of my knowledge Mr. Goodman was trying to determine, as well as
myself, how many people were willing to attend the Union-rather to have a
union to represent them. He mentioned the fact that he didn't care for a union
to represent him, that he felt quite contented and satisfied with the way things
were going. He also made a point to point out to the employees that he was
590 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
speaking only for himself and as far as his feelings were concerned . As well,
he tried to point out some of the good qualities that he felt prevailed in the
warehouse , and that he could see no reason why they couldn 't get together and
set down, if one would have a grievance , or a misunderstanding or was discon-
tented in any way, and try to smooth it out themselves.
District 65 held a meeting at its union hall on the evening of September 19 at
which time Dicker discussed organization activities at the warehouse and accepted
or he and Bloom obtained a number of assigned authorization cards from Greystone
and Donwood employees in attendance at that meeting . After the meeting, Dicker
and Burris engaged in a conversation and discussed the possibility of recapturing
some of the employees who initially, including Barksdale and McKay , had been
interested in District 65 but who had later indicated an interest in an employees'
committee or an independent association.
As of September 19, those employees including Barksdale , McKay, Burris, and
Sanders who had evinced interest in Local 65 prior thereto, had definitely decided
against representation by Local 65 and were actively engaged in furthering the
purposes of an employees ' committee or an independent association . After the
meeting of September 18, Barksdale , McKay, Shirley Levine, and Goodman dis-
cussed an employees ' committee among themselves ; on September 19, Barksdale,
McKay, Rubye Holden, Goodman , and Pekow discussed the formation of a com-
mittee; thereafter , at a meeting in Henry Stern 's office about 6:30 p.m. on the after-
noon of September 21, the committee advised Stern of its formation at which time
Stern informed them that he wanted proof that the committee represented a majority
of; employees and at the same time told them that the Company had filed its petition
for resolution of the representation question with the Regional Office of the Board_
Barksdale, after discussing the question of formation of an employees ' committee
with McKay on Friday night , September 18, with McKay visited Wills, Burris, San-
ders, Rubye Holden, and Pekow on Sunday, September 20, where the committee
consisting of Barksdale , McKay, Sanders, Holden, and Pekow was ("unofficially")
formed. Briefly, in sequence , the employees met on the afternoon of September 18,
on Saturday and Sunday a number of them engaged actively in the formation of a
committee , on Monday , September 21, met with Henry Stern , and on September 22
furnished Stern with a list of signatures of those employees who expressed their
willingness to be represented by an association.
Wolman knew that the several employees above named discussed the formation
of a committee after the meeting of September 19; there is , however, no evidence
in the record that Wolman in any way participated in any discussion having to do
with the formation of a committee or an independent association . Quite obvious
is the fact that Arnold Goodman , Dominick Gismondi, and Jack Pekow were
actively interested in support of the committee and later of the association . Should
the Board find, opposite to me, that these three men actually were supervisors at
these critical times, then there would be substance to the contention of the General
Counsel and the Charging Party that the management of Greystone and Donwood
actively supported the committee or association and opposed District 65. I find to
the contrary.
I do not believe that the comment , suggestions , and remarks made by the Stern
brothers at the meeting of September 17 in any way can be construed as interfer-
ence with the formation and administration of the association or that its agents or
supervisors in any way participated in and dominated the administration and officers
of the Greystone Employees ' Association and its successor , Knitwear Employees'
Association.
Further on the basis of the analysis of cards held by District 65 and signatures
of the employees held by the Association on September 22, as shown above, it clearly
is apparent that District 65 could not legally demand recognition as bargaining repre-
sentative on September 18 or any further date mentioned in the complaint when, it
is alleged, Greystone and Donwood refused to bargain collectively and in good faith
with District 65. District 65 never could prove a clear majority. Nor can it be said
that at these times the employees ' committee or the Association could show a clear
majority. It seems quite obvious that the employer , absent unfair labor practices,
was fully justified in petitioning the Board to decide the representation question.
Meetings at the State Mediation Board
At the instance of District 65 Representative Dicker, a meeting was held with
Commissioner Wolff at the New York State Mediation Board on September 23.
GREYSTONE KNITWEAR CORP. AND DONWOOD, LTD. 591
Present for the Company were Representative Dicker, Frank ,Brown, vice president,
Berler, Janice Mason, and Burris, who later became president of the Association.
There, according to Dicker:
The general discussion was that District 65 represented a majority of the em-
ployees in Donwood Greyston, that we wanted the Company to sit down and
negotiate a contract with us for the employees. There was this conference and
in the course of the meeting, very little discussion in this main room that we
were meeting. The bulk of the discussion during the course of the meeting, as
I had stated before, took place outside of the room with Mr. Kelberg, Mr. Stern,
Mr. Wolff and Mr. Brown of the Union were discussing what to do in the
matter Subsequently they came back and there was some discussion in the
meeting room where the-again the decision was left that Mr. Stern would
reconsider and let us know within the few days whether he would grant
recognition or no.
Henry Stern and Attorney Kelberg called on Commissioner Wolff at the State
mediation board offices on Monday the 28th and informed the latter that they felt
that they were caught "in the middle of the majority"; that they were faced by the
threat of a strike by District 65 and the threat of a strike by Local 155 of the Inter-
national Union; and that without regard to the threats hanging over them they were
in no position except to again request that an election be held under the auspices of
the National Labor Relations Board.
Miscellaneous Alleged Acts of Interference, etc.
The complaint alleges that the Respondents, through its officers, Henry Stern and
Mel Stern, and other agents of the Respondent, promised its employees economic
benefits and other benefits to induce them to refrain from or becoming members of
District 65, and from giving any assistance or support to it. The evidence to support
these broad allegations is skimpy and, so far as I can determine, is based principally
upon the administration of the Blue Cross Plan and certain personal loans together
with wage increases granted to McKay. Regarding the implied imposition of the
Blue Cross Plan at a time when District 65 was engaged in an effort to organize the
warehouse employees, it appears only through the witness Acosta that it was believed
the employees were receiving something new in the way of economic benefits.
Actually the Blue Cross Plan had been in effect from at least since June 1, 1959, with
employees becoming eligible for membership in the plan after 90 days of employ-
ment. Acosta was employed on June 29; consequently he was advised of his right
to participation in the plan 90 days thereafter which happened to fall within the time
when the employees were actively interested in union organization.
On June 8, 1959, Joseph McKay applied to his employer, Greystone, for a loan of
$70, which subsequently was repaid; on about September 22, he applied for and
received a loan for $50 which was subsequently repaid, and during January 1960
applied for and received a loan for $100 which was repaid. During the month of
June 1960, he applied for and received a loan for $250 of which at the time of hearing
$40 had been repaid All repayments of the several loans were made by checking
off a certain amount from McKay's earnings. Only by innuendo can it be presumed
that the loans were made to McKay to influence his adherence to or opposition to
any labor organization. The testimony, uncontradicted, is to the effect that the
loans were made to him in usual course and the proceeds were used by him for
personal indebtedness. Certainly, it is not unusual for employers to grant such
loans to employees with substantial length of service and I find nothing in the record
to support any implication that the loans were made by McKay's employer in order
to influence his feeling for or against District 65 or any other organization.
I admitted into evidence on cross-examination of ,McKay testimony from him
concerning certain wage increases given to him. He received a wage increase of
$5 on January 21, 1959, an increase of $5 on May 26, and an increase in bonus
increment of $5.50 per week on January 30, 1960. On the basis of the whole of the
testimony adduced by counsel for the General Counsel, I have concluded that these
wage increases did not, any more than the loans granted to McKay, operate to
influence him in favor of the Company's position in regard to the Union. I think
on the basis of the testimony of McKay only, and without regard to any inference
to be drawn other than that the increases were made, that they were proper and
probably deserving in view of the Employer. When Burris was on the witness stand,
counsel for the Charging Party attempted to show that he, too, had received
wage increases. The reason therefor, as stated by counsel in opposition to an objec-
tion to the line of question was
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. Rosary : I want to know what his salary is now and when he got raises
and I want to show that because of these raises he is biased and prejudiced and
has been bought by the Company by these increases and, therefore, his testimony
should not be believed.
I specifically and again reject this offer of proof as being improper, beyond any
allegation of the complaint, and untimely made. Further, I feel that no presumption.
can be drawn that the wage increases were improper in the absence of a showing that
wage increases were not or have not been generally granted by the employer uni-
laterally and without consent of any Union, in the absence of union representation.
The evidence brought on at the hearing in regard to the Blue Cross Plan, in regard
to loans made to McKay by his Employer, in regard to wage increases to McKay and
to Burris , seem to me to consist of such flimsy material as to deserve no weight what-
soever on the whole merits of this case.
One other incident recorded and needed to be noted concerns remarks made or
allegedly made by Mel Stern on October 2. According to Berler, he had a conver-
sation with Mel Stern at the warehouse on October 2 at a time when Stern "came over
to me and he said that he had a proposal to make to me, and he started to make the
proposal and I insisted that at that point, that the other members of our commitee
would be present when he makes that proposal, because it involved everybody "
Berler said that Stern remarked that he would see to it "that our committee, the
Committee of the members of District 65, got equal representation if they would,
join it, with the Committee of the Greystone-Donwood Employees Association." He
said that he called Burris, Dickinson, and Janice Mason together to listen to Stern
who then told them that he would have been willing to recognize District 65 as the
lone bargaining agent of the warehouse employees had they not been associated with
"Nelson's outfit," Nelson then being identified by Berler as the "president of the
International Ladies Garment Workers Union, which deals with the knitting of
sweaters and other things."
The version of this conversation or discussion at the meeting as given by Mel
Stern is considerably at variance with that of Berler and much more coherent Mel
Stern said that while he was at the warehouse checking into production problems
he was approached by Berler, who apologized for any trouble that he might have
caused in the warehouse, to which Stern said he replied there was no need at all for
him to apologize; that the only thing that the Company was interested in or concerned'
with was to achieve harmonious atmosphere so that work that had to be done in the-
height of the season could be done and that the bickering and the factions that
existed could be dissipated; that Berler asked him if he wanted to accomplish that
why the Company would not recognize District 65, to which Stem replied that the
Employer could only recognize a majority. Stern said that the evidence in the
hands of the employer at that particular time indicated "if at all" the employees'
committee actually represented a majority but that the Company's lawyer, because
of the entire confused situation, had recommended to the employer and had immedi-
ately filed for an election by the Board to determine who actually did represent the
majority. According to Stern, Mel Stern and Berler separated for lunch, after which
Berler with his committee consisting of the persons above named again entered into
a discussion concerning the situation ; Stern reiterated that they would do anything
possible to protect the rights of the majority and that until they were confident who
did represent the majority they would refuse to recognize any organization, which
was the very reason they had filed their petition with the Board. Between Mel Stern
and Berler, I credit the testimony of Stern principally because he was direct and'
positive with respect to what was said by any of the persons present at this meeting
and second , Berler could not possibly , in the circumstances , assume that Mel Steen
had the right to offer to recognize District 65 along with the employees' Association.
The alleged conversation occurred after the meetings between company representa-
tives and leaders of each of the factions , and after all parties were clearly advised of
the position of management that it would recognize neither of the rivals until such
time as the representation question had been definitively settled by the National Labor
Relations Board . I refuse to accept as fact Berler's statement to the effect that Stern
indicated a preference for the employees ' Association over District 65. The dis-
cussion as reported by Stern can more reasonably be accepted than that of Berler.
Concluding Findings
I find first that the allegations of unfair labor practices attributed to the Respond-
ent through the activities of Goodman , Gismondi , and Pekow must fall simply
because none of these men was a supervisor within the meaning of the Act.
GREYSTONE KNITWEAR CORP. AND DONWOOD, LTD . 593
I can find no proof to sustain the allegations of the complaint that the Respondent
refused to bargain collectively with an appropriate bargaining representative, Dis-
trict 65. As pointed out above, District 65 at no time was able to demonstrate to
the employer a clear majority of employees as members of its organization or a clear
majority of employees who desired District 65 to act as its bargaining representative.
Section 8(a)'(2) of the Act makes it an unfair labor practice for an employer to
"contribute . . . support" to a labor organization. The Board has long recognized
that "once an employer has conferred recognition on a particular organization it
has a marked advantage over any other in securing the adherence of the employees"
(N.L.R.B. v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261, 267), for even
"slight suggestions as to the employer's choice . . . may have a telling effect among
[employees]" (international Association of Machinists, Tool and Die Makers Lodge
No. 35 v. N L.R.B. (Serrick Corp.), 311 U.S. 72, 78). When an employer confers
such exclusive recognition on a majority union he is not contributing unlawful sup-
port, for he is under a legal duty to recognize it. However, when he confers
exclusive recognition on a union which does not represent a majority, the "marked
advantage . . . in securing the adherence of the employees" thus afforded the Union
falls within the interdiction of Section 8(a) (2), as it cannot be excused by a showing,
of a legal duty to recognize. Similarly, the grant of exclusive recognition in these
circumstances would constitute an abridgement of the employees' Section 7 right
"to bargain collectively through representatives of their own choosing" or ",to refrain
from" such activity, and hence violate Section 8(a)(1) which bars an employer
from interfering with or restraining the exercise of Section 7 rights.
It is too well settled to require citation of authority that an employer violates
Section 8(a)(1) and (2) by granting exclusive recognition to a union which rep-
resents only a minority of the employees. It behooves an employer, therefore, to
be quite sure that a claimant labor organization actually represents a majority of
employees within an appropriate bargaining unit before the employer bestows the
right upon the Union to approach him for bargaining purposes. In the instant case,
there was no such clarity of right attached to the claims of District 65 to afford the
employer, in the face of rival claims by the employee committee or the Association,
to confer recognition upon District 65.
Now, with regard to the appearances of the Stern brothers and their remarks
before the employees on September 17, nowhere in the record can I find any remarks
attributed to or admitted by them which could by the wildest stretch of imagination
be construed as threats, as inducements to act on behalf of or against District 65,
any threat of revocation of benefits or granting of economic gains, or any other
statement or action on their part at that time which would constitute interference,
intimidation, or coercion as mentioned in Section 7 of the Act. It appears without
much question that the word "union" was mentioned first at that meeting by an
employee or employees; it further appears without contradiction that the employees
themselves suggested to management representatives at that time that they be per-
mitted to hold a meeting among themselves in the absence of management repre-
sentatives to discuss and, if they could, determine what action they wished to take
collectively in furtherance of organization efforts either for or against District 65.
Either standing alone, or in the whole context of this case, I cannot find that the
actions and statements made by the Stern brothers at the meeting of September 17
can be construed as unfair labor practices.
The claim that the employees' Association was granted privileges for meeting and
that District 65 was denied such privileges is contradicted in itself by the fact, first,
that District 65 was the organization first offered an opportunity to meet for or-
ganizational purposes on company premises and second, that it was at the suggestion
and request of employees that the employer furnished a meeting place for them
on September 17. The fact that Dan Bloom, the union organizer, was requested by
Wolman and instructed by his superior, Dicker, to leave the warehouse premises
on September 18 does not, to me, constitute proof of a refusal on the part of the
employer to grant "equal privileges." The Board has never held that mere permission
to a union to address employees on company time is per se a violation of Section
8(a)(2) of the Act. "Such conduct, however, has been found to violate this section
of the Act where other unlawful assistance has occurred or where the employer has
discriminated between competing unions seeking to represent its employees. In the
instant case, however, the record sustains a finding that the Company maintained
its neutrality with respect to the Respondent-Union's 1959 organizing drive." Jolog
Sportswear, Inc. and Jonathan Logan, Inc., 128 NLRB 886.
I cannot go so far as to find that management representatives intentionally and
deliberately suggested to the employees or planted in their minds the formation of
an employees' committee or a so-called suggestion committee. I believe rather, and
find, that the idea of the employees' committee grew out of the mutual exchange
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between management and employees at the September 17 meeting . The instant case
is distinguished from Coppus Engineering Corporation v. N.L.R.B., 240 F. 2d 564
(C.A. 1), where the employer suggested the formation of a grievance committee
at an employee meeting sometime after the union had lost an eletcion . The em-
ployees then formed a shop committee and from this , the Board inferred that the
impetus for the shop committee came from the employer and that "inherent in the
suggestion was a promise to recognize and deal with the shop committee ." Those
circumstances do not exist in the instant case. Beginning with this first contact of
management with employees on the subject , management of Greystone and Donwood
consistently held to their position that the representation question should be settled
through the processes of the Board.
In all other , as in these respects , I find that the General Counsel has failed to
sustain the burden of proof of the allegations of the amended complaint.
CONCLUSIONS OF LAW
1. Greystone Knitwear and Donwood , Ltd., are, and at all times material herein
have been , affiliated businesses with common officers, ownership , directors, and
operators , and constitute a single integrated business enterprise , and their activities
affect commerce within the meaning of the Act.
2. District 65, Retail, Wholesale and Department Store Union, AFL-CIO, and
Greystone Employees ' Association and Knitwear Employees ' Association , its suc-
cessor. are labor Knitwear Corp. and Donwood, Ltd., have not engaged in unfair
3. Greystone Knitwear Corp. and Donwood, Ltd ., have not engaged in unfair
labor practices as alleged in the complaint herein.
4. The amended complaint should be dismissed in its entirety.
RECOMMENDATION
Upon failure of proof to support the allegations of the amended complaint, I
recommend that it be dismissed in its entirety.
ACF Industri es, Incorporated (formerly American Car and
Foundry Company)' and International Association of Ma-
chinists , AFL-CIO, Petitioner . Cases Nos. 28-RC-462 and 28-
RC-475 (formerly 33-RC-.162 and 33-RC-475). March 26, 1962
DECISION AND ORDER DENYING MOTIONS
On March 5, 1954, following a Board-directed election in Case No.
33-RC-462 (now 28-RC-462), the Petitioner was certified as the
collective-bargaining representative for a unit of all production and
maintenance employees at the Employers Atomic Energy Commission
Operations, Albuquerque, New Mexico, excluding, inter alia,
inspectors.
On April 29, 1954, following an election in Case No. 33-RC-475
(now 28-RC-475) held pursuant to a consent-election agreement, the
Petitioner was certified as the bargaining representative of a unit of
all inspectors.
On December 7,1960, the Petitioner filed with the Board in Case No.
28-RC-462 a motion for clarification seeking inclusion in the pro-
duction and maintenance unit certain employees operating "machine
tools and producing parts." On December 15, 1960, a similar motion
I The Employer' s name appears as corrected at the hearing.
136 NLRB No. 54.