J. Levine Textile, Inc.

National Labor Relations Board - Board Decisions

Nov 15, 1968

173 N.L.R.B. 837 (N.L.R.B. 1968)

J LEVINE TEXTILE 837
J. Levine Textile, Inc. and District 65, Retail,
Wholesale and Department Store Union,
AFL-CIO. Case 2-CA-11487
Inc., New York, New York, its officers, agents,
successors , and assigns , shall take the action set forth
in the Trial Examiner's Recommended Order.
November 15, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND BROWN
On July 15, 1968, Trial Examiner John F. Funke
issued his Decision in this proceeding, finding that
Respondent had engaged in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that it
cease and desist therefrom and take certain affirm-
ative action, as set forth in the attached Trial
Examiner's Decision. He further found that Respond-
ent had not engaged in certain other unfair labor
practices and recommended that such allegations be
dismissed. Thereafter, the General Counsel and Re-
spondent filed exceptions to the Trial Examiner's
Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondent, J. Levine Textile,
1 Although we agree with the Trial Examiner 's finding that Respon-
dent did not violate Section 8(a)(5) by refusing to recognize the Union
on January 10, we disagree with his statement that "the witnesses were
willing to testify against their employer on both the issues on which
violations of Section 8(a)(1) were found so the impact of the violations
could hardly be called substantial " The Trial Examiner ' s assumption
that the impact of unfair labor practices upon employees may be
measured by the willingness of those employees to testify is, of course,
unwarranted.
In addition , we note that the Trial Examiner 's statement regarding
the purported "notorious unreliability " of a card check is an expression
of personal opinion and therefore not part of the "findings , conclusions,
and recommendations" adopted by this Decision and Order The
position of the Board on the subject of authorization cards was recently
expressed in Levi Strauss and Co , 172 NLRB No 57.
MEMBER BROWN, dissenting in part'
As found by the Trial Examiner and my colleagues,
the Union represented a majority of Respondent's
employees in an appropriate bargaining unit as of
January 10, 1968. On that date, the Union requested
recognition and was rejected. It was told by Levine,
Respondent's president, that he had been in business
for 52 years without a union and would close his
doors before dealing with one. On January 16, Levine
repeated this threat at a meeting with employees. And
on January 19, he gave gratuities to employees to
diminish their enthusiasm for the Union.
Like the Trial Examiner, my colleagues have
concluded that Respondent, by its threat and gratui-
ties to employees, violated Section 8(a)(1) of the Act.
But they also adopt the Trial Examiner's dismissal of
the 8(a)(5) allegation in the case, though they
disavow his view that "the impact of the [8(a)(1)]
violations could hardly be called substantial."
I agree with all these findings and conclusions of
my colleagues except insofar as they adopt the Trial
Examiner's dismissal of the 8(a)(5), even at the same
time that they reject the critical subsidiary holding
which influenced his dismissal. For the reason why
Respondent refused to recognize the Union is mani-
fest, and it is unlawful. It is found in Respondent's
statements to the Union representatives when they
requested recognition and in the later remarks to the
employees. Already noted, it is that Respondent, in
business for 52 years without a union, was deter-
mined not to deal with one. No good cause appears
for not accepting this explanation from Respondent's
own lips, twice given.'
Respondent's conduct reveals a total rejection of
its bargaining obligation under the Act and ought to
be found a violation of Section 8(a)(5).
2 That Respondent filed an RM petition can have no significance
following, as it did, Respondent's unlawful conduct which precluded
the holding of a free election.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner. Upon a charge dated
January 18, 1968 and an amended charge dated February 2,
1968, filed by District 65, Retail, Wholesale and Department
Store Union, herein District 65 or the Union, against J Levine
Textile, Inc., herein the Respondent, the General Counsel
issued complaint dated March 29, 1968, alleging Respondent
violated Section 8(a)(1)(3) and (5) of the Act. The answer of
Respondent denied the commission of any unfair labor
practices.
This proceeding, with all parties represented, was heard by
me at New York, New York, on May 13, 14, 15, 16, and 17,
173 NLRB No. 124
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1968 At the conclusion of the hearing the parties were given
leave to file briefs and briefs were received from the General
Counsel and Respondent on June 28.
Upon the entire record in this case and from my observation
of the witnesses while testifying, I make the following:
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Respondent is a New York corporation having its office and
principal place of business at 369 Broadway, New York City
It is engaged in business as a weaver converter and exporter of
synthetic fabrics and in a representative year purchases
materials valued in excess of $100,000, of which materials
valued in excess of $50,000 are delivered to Respondent
directly from states other than the State of New York
Respondent is engaged in commerce within the meaning of the
Act.
District 65 is a labor organization within the meaning of the
Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Violations of Section 8(a)(1)
The complaint alleges two independent violations of Section
8(a)(1) (1) that on January 16, 1968,' Respondent
threatened its employees with a plant shutdown, discharge,
and other reprisals and (2) that on January 19 and 20
Respondent granted gratuities to its employees to discourage
union activity.
District 65 demanded recognition as exclusive bargaining
agent of Respondent's warehouse employees on January 10,
which appears to be the date on which Respondent first
learned of union organization in its plant On January 16 Jack
Levine, Respondent's president, read from a paper entitled
"Remarks by Mr. Levine" to his employees.' (Res Exh 5 )
This document reads as follows
I got a terrible surprise the other day Three men came
into my office and said they were from a union. They tried
to tell me that some of you were interested in having a
union here. This comes as a great shock and disappointment
to me. Frankly, I don't believe it. I have been in business
here for fifty-two years, and we have never had anybody
come in between us and you, our employees
Nobody in our employ ever had to pay any dues,
initiation fees and fines or go on strikes to get a job here or
to keep a job here Nobody had to pay dues to get the
many benefits that you have enjoyed here. Look at these
benefits
Steady wages and regular increases, vacations, holidays,
overtime, Blue Cross and Blue Shield with no cost to
you, Profit sharing plan after you are with us two years.
These benefits have grown from year to year.
Now somebody comes along who doesn't own a
business, who is not in the converting business, who has no
jobs to give out, who does not meet a payroll, who does
nothing except make promises They come along and they
are going to try to take money out of my pocket and give it
to you I don't need them and you don't need them for that
purpose.
Levine testified that he did not deviate from the text of the
speech
Morris Woody, employed by Respondent, testified that Jack
Levine spoke to him later on the day the union representatives
had made their demand for recognition. According to Woody,
Levine asked him why he had signed a card and told him that
he (Levine) had been in business for 52 years and that before
he would have a union he would go out of business Woody
also testified, not without some prompting, that Levine told
his employees at the January 16 meeting that "before you
have a union in his place of business he would go out of
business "3
William Soto, an employee, testified that he attended the
meeting called by Jack Levine on January 16 and that Levine
stated "he been in business for 52 years, that he never had a
union there, and close the shop if they have a union."
Leroy Midyette, employed by Respondent until sometime
in February, testified that at the January 16 meeting Levine
told the employees "I have been here for 52 years and I never
had a union and I'm not going to have one now. I would rather
close up this shop " He also told them they would be out of a
job
With respect to gratuities, Woody testified that on Friday,
January 19, Levine asked him to work overtime on Saturday
and that he refused because he had something else to do Later
that day Levine repeated his request and was again refused.
Then, according to Woody, Levine gave him a $10 bill and told
him to keep it but not to let anyone know about it Woody did
not work Saturday.
Leroy Midyette testified that on January 19 he was asked
by Levine to work overtime. He refused because he had a job
as usher at the Banco theatre. Levine then called his boss at the
Banco who agreed to let Midyette work for Respondent on
Saturday, January 20. While he was packing cases on Saturday
morning Levine came to him, gave him a $10 bill, told him to
put it in his pocket and "don't tell nobody." On the following
pay period he received his overtime pay for Saturday in
addition to the $10
No mention of the Union was made in either of these
conversations and neither employee had received such a gift
before Neither repaid the $10.
Levine denied that he ever told any employee that he might
close down the plant and denied that he made any such
statement at the time he read his "remarks" to his employees.
As to the gratuities Levine testified that each was in the
amount of $5, not $10, and that each was a loan made at the
request of the employee He added that the loaning of small
sums of money to his employees was a matter of common
practice
I Unless otherwise noted all dates refer to 1968.
2 Levine testified that the remarks were read to all his employees
The employees testified that it was read only to those who had signed
union cards.
3 Roy Lester, also an employee, testified that at this meeting Levine
"said close down or something like that , close down I guess is
what. . " He also told them he did not want a union but that if the
employees "feel that they want to have a union, he can't stop because
that's your prerogative."
J LEVINE TEXTILE 839
2 The termination of Howard Orange
Howard Orange was employed by Respondent in August
1967, and the last day he worked was January 11, 1968 He
was employed as a shipping clerk and received $60 per week,
later increased to $65 On November 1, 1967, he and some
other employees went to 13 Astor Place where they met
Murray Rothman of District 65 and signed union cards. His
card was among those shown Jack Levine by Rothman on
January 10
Orange testified that when he arrived home on January 11
he was ill and that the next day he was coughing blood There
was no telephone in the apartment (they lived on the fourth
floor) and the nearest public telephone was in a candy store
some 2 1/2 blocks away, according to Rosetta Orange, his
wife Rosetta called Respondent's office on Friday, January
12, and went to 369 Broadway where she saw Jack Levine and
received Howard's check
Orange testified that during the weekend he "caught the
flu" and went to Lincoln Hospital in the Bronx where he was
treated by a doctor with flu shots and given pills When first
questioned as to the date of his visit to Lincoln, Orange stated
he thought it was Friday, January 12, the first day he was sick
On cross-examination he testified it took place on the
weekend, either Saturday or Sunday.
Orange further testified that he was home sick the entire
week of Monday, January 15, and did not report for work
until 8 30 a.m on Monday, January 22. The first person he
saw was Murray Miller who asked him if Jack Levine knew he
was coming into work and told him he had better see Levine
Orange went upstairs and started putting away stock Shortly
thereafter he had a conversation with Jack Levine who asked
him what had happened to him He told Levine that his wife
had called the office to explain his absence but Miller, who was
present, told Levine he (Miller) had received no calls after
January 12 Levine then told him he (Orange) was a good
fellow and to go home and wait until he either called him or
wrote him He also told Orange, according to Orange, that he
was one of those who had signed union cards and then told
him that in a week or two things would clear up. As Orange
was leaving the plant he met Levine who told him, "I didn't
know where I was at .. and hired somebody to replace you."
That evening, after calling Rothman, Orange went to the
union hall, where he saw Rothman who agreed to try to have
him reinstated. The next day Rothman and Orange met with
Levine in his office. Rothman asked Levine if it was possible to
return Orange to his job and Levine said he would wait until he
heard from his lawyer. Orange called later in the day and spoke
to Irvin Levine, Jack's son, who told him to call later
Subsequently he received a letter from Jack Levine dated
January 25 telling him work was not available 4 He never
returned to work for the Respondent
Rosetta Orange testified that Howard was sick on Friday,
January 12, and that she called the office to report his illness
and went to the office to get his check. She stated on direct
examination that the call was made about 3 30 p.m. At the
office she spoke to Jack Levine who told her to urge Howard
to come in on Monday On Monday, January 15, Mrs. Orange
again called the office asked to speak to Mr Levine and when
told he was not in left the message that Howard was sick On
Tuesday she again called and told Murray Miller Howard was
still sick. According to Mrs Orange, Miller said nothing.
Wednesday she forgot to call but on Thursday she called and
when neither Levine nor Miller were in she left the message
with the operator She did not call on Friday, and on Monday
Howard reported for work.
Jack Levine testified that Howard Orange was employed by
him in August 1967, and worked until sometime in the week
of January 8, 1968. Levine remembered that on Friday,
January 12, Mrs. Orange called his office and spoke to Murray
Miller, asked if she could come down for Orange's paycheck
and was told that she could. According to Levine, he asked her
when she arrived if her husband drank and she replied that he
was a heavy drinker and that she had trouble getting him up in
the morning .5 Levine denied that she told him her husband
was sick and stated he never heard from her or saw her since
that day.
When Murray Miller reported to Levine that Orange had
reported for work on January 22 he brought Orange down to
his office and told him he had been replaced. Levine's
testimony was as follows:
I told him he didn't show all week and naturally the boys
were busy and I had to get them another boy upstairs to
take his job. They were complaining they were a little bit
busy and the men upstairs came down and told us if I could
get them a boy, which I did, and didn't think Howard
would never show because I didn't hear from him all that
week.
Levine denied that he mentioned to Orange that he was not
taking him back because of the union business, that he asked
him if he had signed a union card,6 or that he told him he
would take him back "after this thing blew over "
The next day or thereabouts Levine had a discussion with
Murray Rothman and Orange concerning Orange's rein-
statement. In the course of this discussion Levine's son, Irvin
Levine, suggested that they wait until they had talked to their
attorney before making any commitment. Levine denied
telling Rothman that he had been informed by Mrs. Orange
that Howard was sick with the flu Later that week he wrote
Orange a letter, dated January 25 (Res. Exh 4), the substance
of which read
This is to confirm our conversation of January 22, 1968, in
which I informed you that there was no work available at
present.
This was Levine's last contact with Howard Orange.7
Philip Epstein, called by Respondent, testified that he was
employed as Registrar at Lincoln Hospital and that he had
charge of the "screening book." Epstein explained that when a
patient came to the hospital and complained of an illness he
filled out a form which is sent to the doctor examining him
4 Resp. Exh. 4.
5 Levine stated he raised this point because he had heard that
Howard occasionally took a dunk in the back room.
6 Since Orange 's card was one of those submitted to Levine by
Rothman there was no need to ask this question. Orange's original
testimony , confused by his response to the Trial Examiner's question,
was that Levine told him "you was one of the fellows signed a union
card."
' On cross-examination of Levine it was stipulated that at least three
employees were hired and retained in employment by Respondent after
January 22 . Levine's reason for not offering reinstatement to Orange
was that he had heard from Murray Miller that Orange was working at
another plant in the area . Another employee , Kamel, had been hired on
either January 18 or 19 to replace Orange.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the diagnosis would be placed on the form which was
retained by the hospital. If a patient required emergency
treatment his name would appear in the "emergency book."
Orange's name did not appear on the admission list nor in the
emergency book for either January 12, 13, or 14.8
Irvin Levine testified that he was in the office during the
entire workweek commencing January 15. It was the normal
procedure when a call came in for "Mr. Levine" for the
operator to ask which Mr. Levine was wanted If the call was
for Jack Levine and he was not in, the call would be directed
to Irvin Levine If neither Levines were present the call would
be directed to Murray Miller. During the week in question Irvin
Levine stated he received no call nor message from either Mrs.
Orange or from Howard Orange.
On Monday, January 22, Irvin reported for work and was
told by Murray Miller that Orange had gone upstairs to go to
work. Miller had told him to wait for Jack Levine but Orange
had proceeded anyway. Irvin testified that he was a party to a
conversation the next day between Jack Levine and Murray
Rothman When asked why Orange had been let go, Irvin told
Rothman
. . and I explained that it's always been our custom that
when a man shows last on payday and then doesn't show
any longer and doesn't call, we don't hear from him, we
assume that he is no longer going to show up, because we
have had many occasions on short term employees, and it
was my conclusion that Orange was not going to show up
and therefore was no longer in our employ and we replaced
him.
Rothman then stated that it would be an unfair labor
practice if Respondent did not reinstate Orange. Jack Levine
replied that it would be all right with him but Irvin suggested
calling Respondent's lawyers. On the 24th, Irvin took a call
from Orange who asked what decision had been made. Levine
told him Respondent was still consulting with its lawyers.
Murray Miller, Respondent's general manager, testified that
he, not Jack Levine, received the telephone call from Mrs.
Orange on January 12, that she asked if she could come for
Howard's check and told him Howard was in the hospital. He
was present during the conversation between Jack Levine and
Mrs. Orange which took place when she arrived. Miller testified
that Levine asked her if Howard had been drinking and that
she said he had been drinking "a little excessively " She then
left. Miller neither received a telephone call from Mrs. Orange
nor did he receive a message during the week of the 15th
advising him that Orange would not be in. Any such calls
would be transferred to either Jack Levine, Irvin Levine or
himself. Miller further testified that when Orange reported to
work on January 22 he asked him to wait for Jack Levine but
that Orange paid no attention but proceeded upstairs.
Miller stated that when Orange and Levine came downstairs
Levine asked him if he had received any calls from Orange and
he told Levine he had not According to Miller, absenteeism
and turnover were factors in Respondent's business.9
Harriet Bowers, called byRespondent, testified that she was
employed by Respondent as a switchboard operator during the
week of January 15. She testified that she had received a few
calls from Howard Orange but could not remember if they
were made during the week of January 15 or not.' 0 She could
not recall receiving any call from Mrs. Orange advising her that
Howard was sick, in fact she could not remember anyone
calling. She did corroborate Irvin Levine's testimony as to
procedure, namely, to transfer all calls to either Jack or Irvin
Levine or Murray Miller.
Zena Lipkowitz testified that she was the relief operator
and that a call was received from Mrs. Orange on January 12,
that the call went to Mr. Miller and that Mrs. Orange asked if
she could get Howard's paycheck. She was not on the
switchboard at the time but had a desk next to Miller and
overheard the conversation. She never received any call from
either Mrs. Orange or Orange while at the switchboard.
3. Violation of Section 8(a)(5)
a. Demand and refusal
Murray Rothman, an organizer for District 65, testified that
on September 14, 1967, an employee of Respondent named
Juan Colon came to his office and told Rothman he was inter-
ested in joining District 65. Rothman explained union benefits
to him and Colon signed a union card.i Rothman told Colon
it would be necessary to have other employees sign and gave
him blank cards. On September 18 four other employees of
Respondent came to the office, went through the same proce-
dure and signed cards. Sometime after September 21 Colon
brought in a card signed by an employee named Perez and on
or about October 3 Colon brought in four additional em-
ployees, Bogan, Lester, Woody and Midyette. Again the advan-
tages of the Union were explained and all signed cards. On
October 25 there was a meeting of the employees and at this
meeting Nelson Ortiz signed a card. The employees told Roth-
man, who suggested a demand for recognition be made upon
Respondent, that it was getting close to Christmas and to wait
until after they received their Christmas bonus. Rothman
agreed to the delay. On November 1 another meeting was held
and two more employees signed cards, John Harrison and
Howard Orange. Rothman told the men they now had 13 of
the 16 warehouse employees signed and should demand recog-
nition. The employees again asked him to hold off until after
Christmas so they would be certain of their Christmas bonus.
Rothman agreed.
On January 4 a meeting was held and the employees told
Rothman they still wanted a union and it was agreed that
Rothman would contact Respondent on January 10. On
January 10 Rothman, together with organizers Bill Taylor and
Neal James went to 369 Broadway where they met Jack
Levine and, after introducing themselves and telling Levine
that they represented a majority of his warehouse workers,
went into his office. Rothman repeated his request for
recognition, took 10 cards and gave them to Levine .1 2
Rothman testified that Levine examined the cards and told
him he would return them at the end of their meeting.
8 Orange testified that when he went to the hospital his name and
address were taken. He did not state by whom.
9 Respondent 's record indicated that an employee named Pierre
Joachim left its employ on January 23, Leroy Midyette on February 2,
John Harrison on January 16 and John O'Reilly, employed for 1 week,
on February 2.
10 Orange testified that he had been sick once or twice prior to
January 12 and had called in on each occasion.
11 The cards , G.C. Exh. 3-a through 3-J, stated on their face that the
employee accepted membership in District 65 and designated it as his
bargaining agent On the reverse it authorized a checkoff of union dues.
12 Three signers had terminated their employment with Respondent
during the interim period.
J. LEVINE TEXTILE
Rothman informed Levine that he was obligated to recognize
and bargain with District 65. He suggested Levine see his
lawyer or contact his trade association. Rothman's testimony
is that Levine replied that he had been in business for 52 years
and did not need a union to tell him what to do and that
before he did he would go out of business. Levine told the
representatives he would see his lawyer. Before he left Levine
returned the cards but not until after he had written down the
names of the signers.
At the beginning of the next week a Mr. Frank from the
offices Jackson, Lewis and Schnitzler, attorneys called Roth-
man and asked for more time to consider the Union's request.
Later Rothman received a letter from William Krupman, of the
same firm, dated January 16 (G.C. Exh. 2), which read:
We are informed that you have requested recognition of
your union by the above Company. Our client advises us
that they doubt that you represent an uncoerced and
informed majority of their employees in a unit appropriate
for collective bargaining.
The steps you have taken, we do not believe, are a
suitable way to resolve the Company's doubt of your claim
of majority status. A mechanical check of alleged signatures
in no way indicates whether an employee has signed a card
under coercion or duress or because of misrepresentation as
to the purpose of the card. You know as well as we, that
cards signed under the above circumstances have been held
to be invalid, and a mechanical card check does not reveal
these shortcomings.
Our distrust of cards is premised on the fact that they do
not provide any way to determine what influence or
pressure is brought to bear on an employee when he signs
one of your cards.
Consequently we share our client's doubt about the
reliability of authorization cards and therefore we feel that
the questions raised by your request for signature to a
recognition agreement can only and best be resolved by a
secret ballot election before the National Labor Relations
Board.
We recommend that you file a petition for an election if
you intend to pursue your claim. Should you fail to do so
we are prepared to go forward with such a proceeding
ourselves.
Upon receipt of this letter Rothman filed unfair labor
practice charges with the National Labor Relations Board.
(G.C. Exh. 1-a.)
The testimony of Jack Levine does not differ substantially
from that of Rothman respecting their discussion on January
10. Levine testified that Rothman, accompanied by two other
men came to the plant, asked to see him and that Rothman
told him he represented the Union and had a majority of the
cards signed. This was the first intimation he had that union
organization had taken place among his employees. Levine
stated Rothman described the unit as "the boys" in the plant
and did not mention either the warehouse employees or
production and maintenance employees. (Levine denied he
operated a warehouse.) As to Levine's understanding of the
unit he testified, "We consider the males boys, females a
woman." While there are sciences which might consider this an
oversimplification there can be little quarrel with the dis-
tinction from a legal point of view. At this first confrontation
Rothman offered to show Levine the cards and Levine
accepted. To the best of his recollection there were "about
eight, nine or ten." He had never seen a union card before,
841
either authorization, membership or checkoff authorization.
Before Rothman left Levine asked to see the cards again and
stated he believed he "jotted down the names." His reason for
jotting down the names was that he doubted a majority since
he estimated the boys in the plant, by which he meant
everyone who worked for a living in the plant, numbered 25.
A day or two later Levine saw Louis Jackson, of Jackson,
Lewis and Schnitzler, and told him he did not believe the
Union represented a majority in the plant. Following this
meeting with Jackson the letter signed by Krupman was sent
to Rothman. Levine also discussed holding an election and on
January 22 Respondent filed a petition for a representation
election with the National Labor Relations Board. (Res. Exh.
3.)
Clearly the Respondent refused to bargain with District 65
on January 16 and at all times thereafter.
b. The appropriate unit and majority status
The nature of Respondent 's business and its methods of
operation are best described in the testimony of Irvin Levine.
Respondent was a converter of synthetic textiles primarily for
the export trade. Goods were woven to Respondent's specifica-
tions by weaving mills and sold to Respondent in an unfinished
state. The goods were then shipped from the weaver to a dyer
where they were dyed, again according to Respondent's
instructions. The fabrics are then shipped to Respondent in
New York, unloaded and stored in Respondent's building.
Respondent's chief responsibility in this operation is the
styling and coloring of the materials, styling designed for
overseas sales. The last phase of Respondent's business is the
shipping of materials to the purchaser who has ordered the
goods. Goods are all stamped "made in U.S.A." and also
stamped with Respondent's trademark.
Respondent's building consists of four floors and a base-
ment with the offices on the first floor. There are also
production and maintenance employees working on the first
floor for goods are also stored on the first floor. In the back of
the first floor Respondent keeps lumber for making wooden
boxes for the shipping of goods. Rolls of goods are also stored
on the upper floors and in the basement. No employees were
assigned exclusively to specific floors but worked where
needed at any particular time. The Respondent's operations
were characterized, according to Levine, by flexibility. When a
shipment arrives from the dyer any employees who are
available will help unload and store the goods. The first
employee responding to shipment will sign the invoice. Orders
are received from overseas by mail, credit is checked and
Murray Miller will hand the order to whomever is available or
whomever is familiar with the line for shipment out. Goods are
measured on a rolling machine and Levine testified that almost
anyone in the Company could operate the machine. Also
almost any employee could use the stamping machine, referred
to as the selvedge stamping iron. Adding machines were used
for inventory purposes and all of the men used these. Scales
were used for weighing piece goods and cases and were also
generally used. The nature of the business was such, due to the
constant flow of goods, as to require constant inventory taking
and again all the men participated in this operation.
Levine testified that Respondent had no fixed job classifica-
tions for its employees who performed these services and no
fixed limits of responsibility. In the absence of such classifica-
tions ruling on exclusion and inclusion is a precarious matter.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based on testimony which, is scant and meagre, the following
rulings are made.' 3
The complaint alleges the appropriate unit to be
All Respondent's production and maintenance employees,
including packers, shipping clerks and their helpers, and
excluding salesmen, office clerical employees, guards and
all supervisors as defined in Section 2(11) of the Act.
I find this unit appropriate for the purposes of collective
bargaining.
No demand was ever made for recognition in such a unit by
District 65 prior to the filing of the charge herein on January
18. Rothman's testimony is that he demanded recognition for
"all warehouse employees" and Levine's testimony is that
Rothman claimed to represent "all the boys." There is, of
course, a discrepancy between the unit as set forth in the
complaint and that for which recognition was demanded
whether Rothran's or Levine's version is accepted. Although I
do not find the distinction between Rothman's and Levine's
testimony crucial I would accept Rothman's on the ground
that while it was Levine's habit to refer to and think of his
employees as boys, it is hardly likely that a union organizer
would so classify them.
The question then presented is whether there is a sufficient
variance between the unit claimed by Rothman and that found
appropriate, above, to warrant dismissal. I think not. In Steel
City Transport, 166 NLRB No. 54, the union requested a unit
of "all drivers." The General Counsel in his complaint in that
case modified the unit to read.
All single-owner operators and non-owner drivers of per-
manently leased equipment, excluding multiequipment
owner operators, the mechanic, dispatchers, office clerical
employees and guards, professional employees and super-
visors as defined by the Act.
By excluding the multrequipment owner-operators the General
Counsel eliminated a substantial number of "drivers" but the
Board adopted without comment the Trial Examiner's finding
that the variance was not substantial. The Trial Examiner's
finding relied on American Rubber Products Corp., 106 NLRB
73, United Abattoir, Inc., 123 NLRB 946, Hamilton Plastic
Molding Company, 135 NLRB 371; American Manufacturing
Company of Texas, 139 NLRB 815. In making this finding I
have given consideration to the fact that District 65's
recognition agreement requested recognition for "all em-
ployees " I feel that the cases cited indicate the accom-
modation the Board will give to a petitioning labor organiza-
tion with respect to the unit issue. If I am in error this case
presents this issue clearly and the error car. accordingly be
corrected.
On January 10, Rothman submitted 10 cards to Levine.
These were signed by the following employees and I find no
dispute as to their inclusion within the unit.' 4 These 10 are.
Name Salary
William Soto $75
Pierre Joachim
Leroy Midyette 70
Roy Lester 70
Morris Woody 75
Edward Bogan 85
Nelson Ortiz 95
John Harrison 70
Howard Orange 65
Jose Perez 65
In addition I find the following six employees are also
included within the unit, thus reaching the total of 16
estimated by the Union- Pete Lachinski, Rudy Miller,
George Brodsky, Alphonse Marc, Charles O'Reilly, and Bill
O'Reilly.
I find that Pete Lachinski identified by Bogan as a
maintenance man who also made packing cases to be the same
individual identified by Irvin Levine as Peter Leszczyzyn, a
carpenter.' 5
I find three employees concerning whose placement there is
serious dispute. Irvin Levine testified that Harvey Fishman and
his brother Marvin worked on the first floor taking incoming
freight, handling it, working a "double and rolling machine,"
cutting sample yardage, stamping selvedges and packing orders.
He also testified that while Fishman had two domestic
accounts only approximately 1 percent of his income was
received from sales. Harvey Fishman performed the same work
as his brother except that he apparently had no accounts. I
find that the brothers had a community of interest with the
other employees, either as production and maintenance em-
ployees or plant clerical employees. I make this finding on
testimony which is far from conclusive but neither Fishman
was called by either party to perfect the record. I shall include
them in the appropriate unit.
Cheong Oh worked primarily on inventory. He had a desk
on the first floor next to Leslie Mellis, a converter, but
Respondent refused to concede he was assistant to Mellis. Oh
checked goods to be shipped and told the other employees
whether the goods were in stock and, if so, where they were
stored. He received $90 per week. Since his work brought him
chiefly in contact with the production and maintenance
employees I would include him in the umt.' 6
I would exclude from the unit Harriet Bowers, Lena
Lipkowitz, Ellen Conners and Beatrice Quinones as clerical
employees; Herman Stern, Jacobo Blachar and Joseph Hauser
as salesmen, Milton Schwartz and Alan Asloss as either clericals
or accountants; Leslie Mellis, the converter, on the ground that
his superior responsibilities and substantially higher salary
established that he enjoyed no community of interest with the
13 While Respondent had no formal job classifications or job
descriptions certain classifications were designated for some of its
employees , not by either Levine , but by one of Respondent 's clericals
These classifications were requested by "Workmen 's Compensation,"
according to Levine Edward Bogan , who described himself as a packer,
classitied the 16 employees who were computed as within the unit by
the General Counsel variously as packers , shippers and helpers.
Respondent classified them as general laborers . Regardless of this
conflict, more semantic than real , I find that these employees , however
designated , worked interchangeably and performed the same general
duties. Salaries appear to have been based on length of service and
without any guidelines.
14 On the testimony which I credit, the cards were signed under
circumstances which reflected no doubt on their validity
15 Although the General Counsel stated that he had subpenaed
Respondent 's payroll records for the period which included January 10,
they were never offered in evidence . The head count required in card
check cases was therefore made the more difficult for the Trial
Examiner who was forced to rely on the testimony of interested
witnesses . As to the duties of employees in contested classifications the
attorneys seemingly were more interested in bickering with each other
and with the Trial Examiner than in making a clear and concise record.
Had petty and inconsequential argument between counsel been elimi-
nated the case would have been concluded in 2 rather than 5 days and a
better record would have been made
16 Maryland Cup Corp., 171 NLRB No. 71.
J. LEVINE TEXTILE
production and maintenance employees, and Thomas Muniz,
export correspondent, excluded by ruling of the Trial Exam-
iner at the hearing.
Based on the foregoing, I find that District 65 represented
10 of the 19 employees in the appropriate unit on January 10.
B. Conclusions
1. Violations of Section 8(a)(1)
Three of the General Counsel's witnesses, Woody, Soto, and
Midyette testified that at the January 16 meeting with his
employees Jack Levine told them that he had been in business
52 years and that before he would have a union he would go
out of business.' 7 Levine testified that he read from a
prepared text, did not deviate from nor expand upon it and
specifically denied that he made such a statement to any
employee at any time. Thus the issue resolves on credibility
with no extraneous factors to give guidance . To make
resolution more difficult some of the witnesses for both the
General Counsel and Respondent gave the indication that they
would tell the truth when the truth served their purpose and
resort to perjury when it did not. If the Board wishes to regard
this direct conflict in testimony as to what Levine said as
merely "different versions of the same events,"' 8 I do not. I
do not base my finding that Levine made a threat to close
down the plant at the time lie made his prepared remarks on
demeanor for the reason just stated. At the time he delivered
his remarks he had been advised by an attorney experienced in
labor law and the remarks had been authorized by his attorney
and prepared in his office. I am sure that any attorney
experienced in labor law advising a client in Mr. Levine's
position would advise him, at the least, to avoid those familiar
threats so commonplace in the early stages of union organiza-
tion, the threat to fire employees and the threat to close his
plant. Nevertheless I shall accept as credible the testimony of
Soto and Midyette that Levine did make such a threat. As was
amply demonstrated at the hearing Levine was an impulsive
interjector with seemingly no capacity for self-restraint. The
allegations are directly in keeping with Levine's statement
made to Rothman when recognition was requested, that he
had been in business for 52 years without a union and would
close his business before dealing with one.
As to the gratuities alleged to have been given to Woody
and Midyette I reach the same conclusion . This is not the usual
patented 8(a)(1) allegation found in almost every 8(a)(1) and
(3) complaint. I do not believe either witness sufficiently
ingenious to contrive such a charge. Furthermore Levine's
defense that he frequently loaned money to his employees, a
statement I credit, would not explain the fact that these loans,
if such they were, were made on Friday. which was payday. It
is, of course, a familiar practice in many small shops with low
17 Roy Lester also testified but his testimony on this specific
statement , supra , is too ambiguous to support a finding
18 The quotation is from the Board 's decision in Fotochrome, Inc.,
146 NLRB 1010 , in which the Board criticized the Trial Examiner for
commenting on the prevalence of perjury in Board hearings. If the
Board does not realize that the credibility issue or, more bluntly, the
determination of who is lying and who is not is a Trial Examiner's most
recurring problem it may he because no Board Member has participated
in a hearing , either as Examiner or counsel . Chief counsel to two Board
Members are former Trial Examiners and should be able to enlighten
them One of these, in Blue Flash Express, Inc , 109 NLRB 591,
dismissed a portion of the complaint on the ground that he could not
resolve a direct conflict in testimony and that the General Counsel had
not therefore sustained his burden of proof.
843
wage scales for employees to borrow from the boss. It is the
practice, however, to borrow until payday, not on payday.
There is no evidence that any employee received any gratuity
from Jack Levine on any other occasion. Coming as they did
so shortly after District 65's demand for recognition I can only
infer that the gratuities were given to diminish the enthusiasm
of these employees for District 65 and evoke some gratitude
toward their employer.
I find that the threat to close the plant and the giving of the
gratuities violated Section 8(a)(1) of the Act, although it must
be conceded that both findings skate on very thin ice.
2. The termination of Howard Orange
Orange was either terminated by Respondent because of his
union activity or because Respondent had reasonable grounds
to believe he had quit its employment with no intention to
return. The General Counsel has the burden of proving that the
former was the true reason. I do not believe he has sustained
this burden.
The issue again pivots upon the credibility of the witnesses.
There is general agreement that on the first day her husband
was sick Rosetta Orange came to Respondent's plant and
collected his paycheck. Levine testified that she did not tell
him her husband was sick but that she did admit he drank
excessively. I do not believe she made any such statement and
I do believe her testimony that she told him Howard was
sick,' 9 that she was urged to have him report on Monday and
that she told Levine Howard would report if he was able.20
On the other hand, I accept the testimony of the two
witnesses who served the switchboard for Respondent, Harriet
Bowers and Lena Lipkowitz, that neither could recall receiving
any call from Mrs. Orange during the week starting January 15
nor was either requested to relay a message to either Jack
Levine or Murray Miller that Orange was sick. Of the witnesses
who appeared in this case Bowers and Lipkowitz appeared
most credible. Orange himself is discredited as to his testimony
that he visited Lincoln Hospital and was treated there on either
January 12, 13 or 14 by the records of the hospital which
indicated he was not treated nor admitted there on any of
those days.
Having reached this conclusion on credibility I find that
Respondent had reasonable grounds for believing that Orange
had quit with no expectation of returning. This conclusion is
fortified by the fact Respondent hired a replacement for
Orange and that its previous experience had been that
employees, particularly short-term employees, quit without
giving notice.21 I do not think any further argument,
exposition or analysis would contribute to this finding. It will
be recommended that the complaint, insofar as it alleges
violation of Section 8(a)(3) of the Act, be dismissed.
19 Murray Miller testified that he, not Jack Levine , received the
telephone call and that Mrs. Orange told him Howard was in the
hospital
20 It is impossible for me to believe that a wife , meeting her
husband's employer for the first time, would admit that he drank
excessively , particularly after she had advised another member of
management on that same day that her husband was sick.
21 I have also considered as relevant that fact that Respondent hired
three employees after January 22 without offering reemployment to
Orange. Balancing this fact is Levine 's testimony that he had heard from
Murray Miller that Orange was elsewhere employed, a fact verified by
Orange's own testimony.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Violation of Section 8(a)(5)
Having found that District 65 represented a majority,
however bare, of Respondent's employees in a unit appropriate
for collective bargaining and that there was a demand for and a
refusal of recognition of District 65 as collective-bargaining
agent I find the sole issue to be whether Respondent had a
good faith doubt of District 65's majority status. I find
reasonable grounds for such a doubt for the following reasons.
The Respondent's president, Jack Levine, had no previous
experience with unions and no knowledge that District 65 was
organizing his employees. On January 10, when Rothman first
presented his demand and the 10 cards in support thereof,
Levine could scarcely have known how many employees
Rothman contended to represent nor what employees con-
stituted an appropriate unit.22 The phrase "all warehouse
employees" is certainly not free from ambiguity even to one
experienced in the nuances of appropriate unit determinations.
Respondent contended that it did not operate a warehouse and
that its business consisted of distributing its products locally
and overseas and that all employees were engaged, interchange-
ably, in executing this overall function. At the time of this oral
demand Rothman submitted a recognition of agreement which
included "all employees" and which could only serve to
further confuse Respondent. Clearly District 65 did not
represent a majority of all Respondent's employees. No
appropriate bargaining unit was ever clearly defined until the
General Counsel did so when he issued his complaint more
than 2 months after the original demand and after the refusal
on January 16. I cannot conceive of circumstances under
which more valid grounds for a reasonable doubt could exist.
Here, as in Aaron Brothers Company of California, 158 NLRB
1077, there was no prior history of collective bargaining and
the General Counsel had the duty to establish affirmatively
that the refusal was in bad faith. (See also John P. Serpa, Inc.,
155 NLRB 99.)
The only ground on which a violation of Section 8(a)(5)
and which would justify the "strong medicine"23 of a
remedial bargaining order is the commission of other unfair
labor practices on the part of the Respondent. These findings
not only rest on precarious grounds, i.e., the testimony of
witnesses whose credibility was open to question, but I also
find that they indicated no complete rejection of the col-
lective-bargaining obligation. It was the Respondent and not
the Union which filed the petition for an election and which
sought to obtain a decision by secret ballot in conformity with
the statute rather than by resort to the "notorious unre-
liability" of a card check.
I do not find this one avenue sufficient to support the
position of the General Counsel. Had the Respondent "en-
gaged in substantial unfair labor practices to dissipate union
support" which would lead to the conclusion that the
22 It must be noted that the Board employs more than 100 legal
assistants to help it in arriving at a determination of such issues and that
it may take its staff months to reach decision . On the question of an
appropriate unit its decisions , as the courts have pointed out, may be
squarely contradictory. Cf. N.L.R.B. v. Tallahassee Coca-Cola Bottling
Co., 381 F.2d 863 (C.A. 5), and cases cited.
23 N.L.R.B. v. Flomatic Corporation, 347 F.2d 74 (C A. 2).
24 Hammond & Irving Incorporated, 154 NLRB 1071 , N.L.R.B. V.
Dee's of New Jersey, Inc., 395 F.2d 112 (C.A. 3), Lane Drug Co. v.
N.L.R.B., 391 F.2d 812 (C.A. 6), Pulley, Etc v. N.L.R.B., 395 F.2d
Respondent's insistence on an election was not motivated by a
good-faith doubt of majority but a desire to gain time in which
to undermine the Union, a different conclusion might be
reached. (Aaron Brothers, supra.) The record in this case
indicates, however, that the witnesses were willing to testify
against their employer on both the issues on which violation of
Section 8(a)(1) were found so the impact of the violations
could hardly be called substantial.24
III. THE REMEDY
Having found the Respondent engaged in certain unfair
labor practices it shall be recommended that it cease and desist
therefrom and take certain affirmative action necessary to
effectuate the policies of the Act.
Upon the basis of the foregoing findings and conclusions
and upon the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. By threatening to close its plant and by giving its
employees gratuities to discourage membership in, sympathy
for and activity on behalf of District 65, Respondent violated
Section 8(a)(1) of the Act.
2. Respondent did not violate Section 8(a)(3) and (5) of
the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
It is recommended that Respondent, J. Levine Textile, Inc.,
its officers, agents, successors and assigns, shall.
1. Cease and desist from threatening its employees with
closing the plant and giving its employees gratuities in the form
of money or any other valuable consideration for the purpose
of discouraging membership in, sympathy for or activity on
behalf of District 65, Retail, Wholesale and Department Store
Union, AFL-CIO, or any other labor organization.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its place of business at New York, New York,
copies of the notice attached hereto and marked "Ap-
pendix .s25 Copies of said notice, on forms to be provided by
the Regional Director for Region 2, after being duly signed by
an authorized representative of the Respondent, shall be
posted immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to
870 (C A. 6), Colecraft Manufacturing Co., Inc. v. N.L.R.B., 385 F.2d
998 (C.A. 2),N.L.R.B. v. River Togs, Inc., 382 F.2d 198 (C.A. 2).
25 In the event that this Recommended Order is adopted by the
Board the words "a Decision and Order " shall be substituted for the
words "the Recommended Order of a Trial Examiner " in the notice. In
the further event that the Board's Order is enforced by a decree of a
United States Court of Appeals , the words "a Decree of the United
States Court of Appeals Enforcing an Order" shall be substituted for the
words "a Decision and Order."
J. LEVINE TEXTILE 845
insure that said notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director for Region 2, in writing,
within 20 days from the date of this Decision, what steps
Respondent has taken to comply herewith.26
IT IS FURTHER RECOMMENDED that all allegations of the
complaint not specifically found to be in violation of the Act
be dismissed.
26 In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read "Notify the Regional
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board , and in order to
effectuate the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE will not threaten our employees that we will close
our plant to discourage them from becoming or remaining a
member in or to have sympathy for or be active in District
65, Retail, Wholesale and Department Store Union,
AFL-CIO, or any other labor organization.
WE will not give any of our employees money or any
other gift of value to discourage them from becoming or
remaining a member in or to have sympathy for or to be
active in District 65, Retail , Wholesale and Department
Store Union , AFL-CIO, or any other union.
J. LEVINE TEXTILE, INC.
(Employer)
Director for Region 2, in writing within 10 days from this Order, what
steps Respondent has taken to comply herewith."
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material.
If employees have any question concerning this notice or
compliance with its provisions, they may communicate di-
rectly with the Board's Regional Office, Fifth Floor, Squibb
Building, 745 Fifth Avenue, New York, New York 10022,
Telephone PL-1-5500, Ext. 852.
Dated By
(Representative) (Title)