Jomax Apparel Co.

National Labor Relations Board - Board Decisions

Mar 31, 1964

146 N.L.R.B. 526 (N.L.R.B. 1964)

526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jomax Apparel Company and Jomax Garment Co., Inc. and
International Ladies' Garment Workers' Union , AFL-CIO.
Case No. 4-CA-2971. March 31, 1964
DECISION AND ORDER
On November 14, 1963, Trial Examiner Thomas A. Ricci issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain-unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's
Decision. He also found that allegations of other unfair labor
practices set forth in the complaint had not been sustained. There-
after, the Respondent and the Charging Party filed exceptions to the
Trial Examiner's Decision and supporting briefs.' The General
Counsel filed a brief in answer to the Respondent's exceptions and
brief.
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 Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following additions and
modifications :
We find, in agreement with the Trial Examiner, that the Respond-
ent violated Section 8(a) (2) and (1) of the Act. In reaching this
conclusion, we rely on the findings of the Trial Examiner that
Schneier, the Respondent's owner and manager, engaged in the follow-
ing conduct :
(1) Shortly after the Charging Union began its campaign to or-
ganize the plant, Schneier made several speeches to the employees
directed against the Charging Union. Then, in a speech made at the
plant on February 11, 1963, during working hours, he stated that
the employees would "gain a point" if they had their own association,
and immediately thereafter gave employee Wolf permission to make
a speech, in which she urged the employees to form an independent
union.
(2) Schneier asked employee Bentzel what she thought about sign-
ing a petition for organization of a shop union, and subsequently,
I The Respondent's request for oral argument is denied , as the record, including the ex-
ceptions and briefs , adequately presents the issues and the positions of the parties.
146 NLRB No. 67.
JOMIAX APPAREL CO. AND JOMAX GARMENT CO., INC. 527
after Wolf addressed the employees, told Bentzel that if the employees
got together and organized, they could work out their problems bet-
ter "among ourselves, instead of being like someone else."
(3) On April 19, 1963, after the Independent Union had been
organized and its officers elected, Hoffman, with another representa-
tive of the Charging Union, visited the plant, told Schneier that he
knew that the employees had been given opportunity to meet and
discuss the Independent inside the plant, and requested "equal time."
Schneier denied the request and ejected the men from the plant .2
(4) Schneier prepared a document entitled "Information to Em-
ployees-Concerning Jomax Employees Assn.," containing campaign
material favorable to the Independent and presented it to the Inde-
pendent's president for distribution to the employees.
By this conduct, the Respondent effectively planted in the minds
of the employees, and gave impetus to, the idea of forming the In-
dependent Union, and thereafter unlawfully assisted it in violation
of Section 8 (a) (2) and (1) of the Act.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following modifications :
Substitute for the first paragraph therein, the following paragraph:
Upon the entire record in this case, land pursuant to Section
10(c) of the National Labor Relations Act, as amended, the Na-
tional Labor Relations Board hereby orders that Respondent,
its officers, agents, successors, and assigns, shall:
2 Contrary to the Trial Examiner, we find that the Respondent, by its disparate treat-
ment of the Charging Union in denying it the same opportunity to meet with employees
on company time and premises afforded the Independent Union, unlawfully assisted the
Independent.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before Trial Examiner
Thomas A. Ricci in York, Pennsylvania, on August 19, 20, and 21, 1963, on com-
plaint issued by the General Counsel against Jomax Apparel Company and Jomax
Garment Co., herein together called the Respondent or the Company. The issue
litigated is whether the Respondent has violated Section 8(a)(1) and (2) of the
statute. After the close of the hearing briefs were filed by the General Counsel,
by the Respondent, and by Jomax Employees Association, herein called the Inde-
pendent; the Charging Party adopted the General Counsel's brief.,
Upon the entire record and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges , the answer admits, and the record shows that Jomax
Apparel Company, a corporation organized under the laws of the State of New
York, and Jomax Garment Co., Inc., a corporation organized under the laws of
the Commonwealth of Pennsylvania, maintain their principal place of business in
744-870-66-vol. 148-35
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
York, Pennsylvania, where they are engaged in ladies' shirt contracting. The two
companies have common officers, ownership, operators, and employees; their of-
ficers and operators formulate and administer a common labor policy for both
companies, affecting all the employees. During the past year the two companies
have jointly and severally in the course and conduct of their business operations
performed contracting and other services valued in excess of $50,000 for customers
located in States of the United States other than the Commonwealth of Pennsylvania.
I find that the two companies are affiliated businesses, constitute a single integrated
business enterprise, and for purposes of this proceeding are a single employer. I
also find, as alleged in the complaint and admitted in the answer, that the Respond-
ent is an employer engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Ladies' Garment Workers' Union, AFL-CIO, herein called the
ILGWU, is a labor organization within the meaning of Section 2(5) of the Act.
I take official notice of a long series of past Board decisions in which the Interna-
tional Ladies' Garment Workers ' Union, AFL-CIO, was a party, and found to be
such a union.
III. THE UNFAIR PRACTICES
The Respondent took over the contracting plant here involved from prior owners
in April 1962, with the major group of employees continuing at work. Max Schneier,
owner and manager of the business, has since then been in charge of all operations,
with daily control and direction of all employees. He is assisted primarily by
Floorlady Mae Bowers, an admitted supervisor. There are about 80 employees,
mostly women, doing machine sewing and handwork in the production of ladies'
blouses; the garments are owned by out-of-town manufacturers for whom the Re-
spondent furnishes direct labor. The activities said to prove the illegal conduct
alleged in the complaint are almost entirely those of Schneier.
The ILGWU instituted an organizational campaign late in 1962 and early 1963.
It distributed campaign literature on a number of occasions, and in consequence
Schneier several times assembled the employees in the factory and spoke to them
in order to respond to and rebut the appeals for membership publicized by that
union. In each instance he spoke to the employees during working hours, after
the lunch hour had passed. In the following months-February, March, and
April-an independent union was formed by the employees, called the Jomax
Employees Association, or the Independent. It elected officers, established writ-
ten bylaws, and collected initiation fees and dues. All parties stipulated that the
Independent is a labor organization within the meaning of the Act.
The complaint alleges that Schneier sponsored and gave illegal assistance to the
Independent, contributed materially to its support, coerced the employees into
its formation, and so interfered with its administration as to dominate it, all in
violation of Section 8(a) (2) of the statute.
The Respondent denies the commission of any illegal acts.
Evidentiary Facts
Schneier started his campaign against the ILGWU's efforts to win adherents in a
speech during the first week of January. He began his talk on this occasion by
explaining how that very day a notice had been posted assuring the employees of
five paid holidays and 1-week paid vacation. He added: "I have just issued the
3rd large round of rate increases based on your achievements in the last three
months, I hope during the coming year to have at least (3) three more rounds of
periodic increases . . " After exhorting the employees to greater effort and
painting a bright picture for the future, Schneier said he had learned that the
ILGWU was again trying to organize the plant. He continued with several argu-
ments why joining that union would not be to the employees' advantage, and
closed with: "Let's keep our factory the family type operation that it is without
outsiders coming between us as a third party and preventing us from working
together as we have been accustomed to in the past."
Schneier made several other short speeches to the employees throughout January,
always immediately after the lunch period had ended and during working hours.
The employees were not obligated to cease working, and some who were on piece
rates did work; others who were hourly paid listened and were paid for such time.
In general, his remarks continued to belittle the ILGWU arguments and to remind
the employees of the benefits they were enjoying without representation by the
ILGWU. On February 11, Schneier gave another talk to the assembled em-
ployees, again in the plant and during their paid working hours. When he finished,
JOMAX APPAREL CO. AND JOMAX GARMENT CO., INC. 529
Mary Wolf, one of the women, requested leave to speak to the employees and
asked Schneier to leave; the owner went into his office. Wolf then spoke to the
women and urged them to form an independent organization of their own to deal
with Schneier concerning their conditions of employment. She did not speak long,
but again the hourly paid employees were paid for what time they spent listening
to her.
Twelve rank-and-file employees appeared as witnesses and; with a single excep-
tion, revealed themselves antagonistic toward the ILGWU and militantly in favor
of the Independent.
Although each of them had been present on February 11, they professed a con-
sistent inability to recall anything that Schneier may have said during his talk
preceding Wolf's direct invitation to them to form a company union. Wolf first
testified her remarks "had nothing whatsoever to do with Mr. Schneier's speech";
then she said the owner spoke "probably about one of the leaflets that the In-
ternational Ladies' Garment Union had given out .. . ... Schneier himself first said
even he could not remember; when pressed for his recollection he added "some-
thing, probably, in answer to an attack made upon me by the union." One em-
ployee, Barbara McCoy, recalled that Schneier spoke "when the union was first
trying to get in . . . and he talked to us about it." One witness, Dorothy Donahue,
testified: "Well, most of the subject was about us losing work because of the union
[ILGWU] wanting to come in and pressuring the people that we were getting
our work from . and he said that he was in a position that he didn't know
what to do at that time, it was up to us girls to make a-to do what we thought
best. If we got our association in, why, we could gain a point."
Wolf's appeal fell upon receptive ears. The employees took a number of steps
toward the formation of the Independent, but the record is not clear as to the
precise chronology of events. Sometime after her talk-2 weeks or so later-
a petition was circulated to indicate who favored such an organization. It was
signed by 64 of the approximately 80 employees. On April 12, 1963, Good
Friday, after work-it was a short day due to the holiday-they held a meeting
in the plant and elected officers. The following Monday a notice was posted on the
plant bulletin board setting out the names of the elected officers.
About this same time, the precise dates again not clear, a-lawyer, Mr. Anderson,
came to the plant and on two occasions spoke to the employees for about 10 or
15 minutes during their lunch hour and explained the procedures necessary for
forming the Independent. It was also about this time that a constitution and/or
bylaws were drawn up. By, the time of the hearing the only money expended by
the secretary, who had collected initiation fees and the dues, was $2 for a checkbook.
On April 22 Anderson wrote to the Respondent, asserting majority status and
demanding exclusive recognition and bargaining rights. By letter dated April 23,
Schneier refused to recognize the Independent or to bargain with it until such time
as it should produce "physical evidence" of its authorization strength. On May 15
the Independent filed a petition for an election with the NLRB Regional Director.
To support the complaint allegation that Schreier gave illegal support to the
Independent and dominated it, the General Counsel relies upon the following
further facts:
1. When Schneier spoke to the employees on February 11, immediately before
Wolf invited them to form the Independent, he effectively planted, or at least gave
great impetus to the idea in their minds. I credit the testimony of Dorothy Donahue
that Schneier said they would "gain a point" if they had their own association. The
consistent refrain of virtually all of the other. witnesses, that they could not recall
even the principal topic of his talk, is on its face incredible. In any event none
of them contradicted Donahue. Schneier said he always writes out his speeches, and
even clears them with his lawyer before delivering them. He placed into evidence a
handwritten document which he said reflects the talk he gave that day; the substance
of Donahue's testimony does not appear in it, yet Schneier did not directly contradict
her either. His statement from the witness stand on the first day of the hearing that
he did not know what he said revealed a lack of candor, for he then had in his
possession the sheets which he later placed into evidence as the "written talk."
Neither his testimony now nor those scratch sheets suffice to offset the very clear
recollection of the employee witness. The sheets are illegible in many places; they
contain erasures, unintelligible alterations, deleted sections, and confusing inter-
lineations and marginal notations . By looking at it no lawyer would or could
express an opinion on whatever Schneier intended to say that day.
2. When the employees were holding their election meeting on April 12, Theresa
Ness, an assistant floorlady, was sitting nearby. Someone suggested Ness' be a
candidate for office but she said she was not allowed to run. When the balloting
was over, someone asked her to obtain a box and she did. As she passed among the
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees to place the box in their midst on a table, several dropped their ballots
into it. During one of the talks by Lawyer Anderson later, Ness asked a question
about seniority.
The General Counsel contends that Theresa Ness is a supervisor within the
meaning of the Act, and that her participation in the election meeting reflects
assistance to the Independent chargeable to the Respondent. There is uncontra-
dicted testimony that Ness spends 90 to 95 percent of her time doing production
work, such as turning cuffs and collars, turning buttons and sleeves. She works
among' the hourly paid girls who do various finishing operations on the blouses.
She picks up and carries partly finished work from one employee to another to keep
it in constant motion so that the other girls need not themselves'leave their work
stations. When work is too greatly accumulated at one spot, or in case of an
absence, Ness sits down and does regular work as a substitute.
She testified, and her supervisor, Bowers, corroborated her that she never criticized
the work of another employee or reported anyone to higher supervision. Bowers
also said Ness does not instruct employees or make any recommendations con-
cerning them. Ness clearly has no authority to hire, discharge, or discipline em-
ployees. Her pay is $1.50 per hour, with a guaranteed weekly salary of $60 for
40 hours even if she works less; she punches the timeclock and receives time and a
half for overtime. The girls who work with her doing the same type of floorwork
are paid for the most part at $1.35 per hour. Bowers, the admitted supervisor
immediately over Ness, is paid $135 weekly salary. There is uncontradicted
evidence that when Schneier is away from the plant, the head cutter acts as manager
over the entire plant.
Against the foregoing evidence there is the fact that at the representation hearing
held pursuant to the petition filed by the Independent, Schneier stipulated that Ness
should be excluded from the bargaining unit. In his earlier affidavit to a Board
agent, Schneier said, "Ness . assists the floorlady in the supervision of produc-
tion . . . [has] a confidential relationship with me as far as plant production is
concerned." In her earlier affidavit to a Board agent Ness said, "I am in charge of
the front end of the shop. I might say that I supervise about 20 girls." Schneier's
ambiguous and conclusionary description of her duties in the earlier proceeding and
the fact that Ness may have believed herself correctly described as a supervisor,
cannot alter the objective facts now appearing as to what she in fact does in the
shop and the clear limitations on her authority. Other employees corroborated the
sworn testimony that she is essentially a "pusher," responsible to see that the
appropriate orders are expedited, but without any supervisory authority within
the meaning of the statute. The stipulation in the representation proceeding, of
course, is not determinative here. I find on the total record that Ness is not a
supervisor.
3. Sometime during the formation of 'the Independent, but after the officers had
been elected, Schneier prepared a written statement entitled "Information to Em-
ployees Concerning Jomax Employees Association." In a series of 11 numbered
items this document explains, among other things, what such a labor organization
limited to this one employer would be, how in the event of Board's certification and
a signed contract no other union could "interfere" for 2 years, how the employees
would be free of the "whim" of an international union, how the dues could be fixed
at only 10 cents weekly, how there would be no assessments unless on request of
majority. The statement closed with: "This is what all the people in the factory
want."
Schneier gave this statement to Vera Wilson, who had already been elected presi-
dent of the Independent, because, as he testified, he knew she was the "leader" in
the plant. Wilson had the document printed and it was distributed to all employees
in the plant. She made no change in the wording prepared by Schneier.
Schneier testified that he prepared this document and gave it to Wilson because
many employees had asked him questions concerning the union activities that were
going on, and, as he had little time, he thought this would be an answer to all their
queries and free him from further bother.
4. On April 19, a week after the election meeting, Hoffman and Amory, regional
director and staff representative of the ILGWU respectively, visited the plant to
speak to Schneier. They announced themselves at the office and proceeded through
the vestibule into the plant proper. Two girl employees who were working nearby,
and Schneier, who was at the rear of the plant, testified that they saw the two men
go to one of the tables on which finished blouses were resting and closely examine
the labels on'them -which bore the name of the owner-manufacturer for whom the
Respondent works. Hoffman testified and said he did not do that; as to Amory,
JOMAX APPAREL CO. AND JOMAX GARMENT CO., INC. 531
Hoffman said he "may have" examined the garments. Amory, although present at
the hearing, did not testify. On this testimony it seems clear Amory, at least, did
examine the blouses being manufactured.
As Schneier saw the two men from far away in the shop he came forward very
angry and, taking each by the arm, rushed them out of the plant. He raised his
voice and was irritated. As the men were leaving Hoffman told the manager
that he was there to ask for "equal time," because he knew the employees had been
given opportunity to meet and to discuss the Independent inside the plant. Hoffman
also testified that in denying the request Schneier said that what he did to help the
Independent was his business and he would not give the same pr!velege to the
ILGWU. Schneier admitted the phrase concerning equal time was uttered, but
denied having said he was helping the Independent, and admitted he threw the men
out.
5. Anna Attig, an employee, testified that sometime in April she left the Respond-
ent's employ. When she told Schneier she was leaving for a better job, he said
he knew no reason why she should not, and added that she "might have to write a
letter of resignation as treasurer" of the Independent. She left and was gone only
a week and returned; she never did anything about resigning and there is no con-
tradiction of this testimony.
6. Marjorie Bentzel, a former employee, testified that one day Schneier ap-
proached her at her. machine and, referring to a petition concerning the organiza-
t!oq of a shop union, asked her what she thought about it, and when she said "not
much," the manager said: "Marge, will you talk to the girls that work right around
you and see what they say?" Bentzel continued to testify that a few weeks later,
after Miss Wolf had addressed the employees, Schneier again approached her at
the machine and asked did she think she would sign the second petition; again
Bentzel replied she did not think much of it. At that point, still according to
Bentzel, Schneier said "he was sure that if we got together and would organize
some that we could work out our problems better among ourselves instead of
being like someone else," and that "he thought the dues would be anywhere from a
dime to a quarter a month, and the initiation fee would probably be around $1."
Bentzel's final testimony as to this conversation was that, as a further inducement,
Schneier then offered to contribute the profit of the Coke machine, "about $500
a year."
Schneier denied having offered any money to Bentzel as assistance to the Inde-
pendent. He also denied generally having spoken to individual employees in any
instance on the subject of unionism and what they should individually do about
it. He did not, however, directly deny the testimony of Bentzel that in an earlier
conversation, at least, he had inquired as to her sentiments about signing a shop
union petition and that the employees-could work out their problems better with-
out an outside union.
Bentzel left the Respondent's employ shortly after these events, on May 24.
One day she called Schneier to her machine and complained about her earnings;
he expressed the thought she was not working correctly, and the employee said
the rates were set too low. The two exchanged words, she threatened to leave,
and Schneier told her she could go. She did not return the following Monday.
The record as a whole shows clearly that she quit.
To support her testimony putting damaging words into the manager's mouth,
Bentzel insisted that Mildred Wilhelm, an employee a few feet in front of her
working on a back-to-back machine, heard all the conversations with Schneier.
She even said she spoke of the matter to Wilhelm shortly thereafter, and the other
girl discussed it with her. Wilhelm, appearing as a witness, recalled the conversa-
tion in which both she and Bentzel told Schneier the rates were too low. She
unequivocally denied, however, having heard Schneier say anything about any
petition favoring the Independent, about the Coke machine, or about money to
assist the company union.
In the circumstances, I credit the denials of Wilhelm and of the manager. As
to the invitation about signing the petitions and the suggestion that the employees
could work out their problems better directly with the employer or through an
inside organization, I do believe, particularly in the absence of denial by Schneier,
that he made such statements. They were consistent with other statements he
made, as found on the record.
Analysis and Conclusion
That the Respondent was opposed to the ILGWU and that, if it had to bargain
collectively with its employees, it preferred doing so on the basis of an independent
labor organization limited to the employees of this plant, is clear on the record
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a whole, and is not seriously disputed by the Company. The evidence taken
in its entirety fairly establishes also that Schneier conveyed such thoughts to his
employees with the intent that the idea should take root in their minds. All this,
of course, was perfectly legitimate, for an employer has the right, under the statute,
to express his opinion on such things to his employees.
Still fairly appraised, however, the preponderance of the substantial evidence
in the record as a whole supports the complaint allegation that Schneier assisted
the Independent, both in its birth and in its development, to such a point as to trans-
cend the proscription of Section 8(a) (2) of the statute. It may well be that each
of the separate incidents of assistance or instigation shown on the record, viewed in
isolation, would not in itself constitute a violation of that section of the Act. Col-
lectively viewed they reveal a pattern of assistance beyond legitimate expression
of opinion.
Two petitions were circulated among the employees, inviting signatures in favor
of an independent organization apart from the ILGWU. Both were circulated
in the plant, in the production areas, during working time. The first was in
the lunchroom, in the rear of the plant, for several days, and signed there. The
second, circulated sometime late in February, picked up 64 names and was circulated,
according to some witnesses, at their machines. Schneier said he did not know
about these petitions, but his persistent interest in the matter, and the other steps
he took to encourage the girls toward a union of their own, coupled with the
"fatherly" picture-as he testified-that the employees had of him, make 0 his
denial unpersuasive. He certainly knew about them when he encouraged Bentzel to
sign while she was at work.
So far as the evidence shows, the actual, affirmative steps toward establishing
the Independent-circulation of petitions, holding of the election, drafting of by-
laws, collection of dues, and the hire of a lawyer-were all taken by the employees.
The motive power, as it were, was all contributed by them. In this area of social
or even economic activity, definitive inquiry into the inner reasons why people act
the way they do is always an illusive search, the answer at best containing an ele-
ment of doubt in all instances. One employee after another was paraded to the
witness stand by the Respondent to say that she joined, or assisted in the formation
of, the Independent because she "liked" it, because she individually was so inclined,
in response to an inner urge. Whatever may have been the mental gyrations which
impelled them toward such a course, the fact remains that in his very first speech,
early in January, Schneier combined three thoughts which he presented for their
serious consideration: he had just given raises and planned more; the ILGWU
was again trying to organize the plant; and "let's keep our factory the family
type . . . without outsiders coming between us . As a single package this
message was nothing more than a statement-that without the ILGWU, and with a
company union instead, the raises could well continue, but if the ILGWU pre-
vailed, the consequences might well be adverse to the employees' interest. This
was a threat, not too thinly veiled, of economic loss attached to achievement of
majority status by the ILGWU, and therefore an act of illegal coercion by Schneier
in violation of Section 8(a) (1) of the Act. It was also a very strong reason planted
in the employees' minds for them to form the Independent, and therefore a factor
to be considered on the question of why they took positive steps later.
Schneier paid the employees to hear his earlier speeches. He also paid them
when, on February 11, he equated the ILGWU to loss of work, and in contrast,
made a company union synonymous with "gaining a point." In his February 11
speech he talked-about the employees "losing work" because of the ILGWU, but
there had been no layoffs yet. His statement therefore could only have appeared
as a threat of what might happen to them. When he then added it was "up to the
girls," and that if they "get our organization," they would gain a point, there was
no conclusion the employees could reach except to believe that he was telling them
that in order to have their jobs they must form their own union.- The girls then
listened to Vera Wolf propose immediate self-organization. Given the significant
sequence of these events, I do not credit Schneier's testimony that he did not know
why Wolf asked permission to address the girls or what she said. He must have
known, and again he paid the girls for what time was devoted to hearing Wolf.
Here again was direct, material assistance to the formation of the Independent.
The written statement of information concerning the Independent, prepared by
Schneier and distributed to all of the employees, reads as follows:
Information to Employees-Concerning Jomax Employees Assn,
1. This would be 'our own organization, controlled by ourselves - and not
beholden to anyone. .
2. We would elect our own officers.
JOMAX APPAREL CO. AND JOMAX GARMENT CO., INC . 533
3. We would not be subject to any other organization.
4. We would be certified by the National Labor Relations Board, if we had
a majority, after a secret ballot election conducted by the N.L.R.B.
5. We would enjoy all the rights and privileges accorded under the law, as
any other labor organization, regardless of size.
6. We would try to negotiate a contract with our employer calling for
increased benefits including more holidays, more vacation, etc., after we were
certified.
7. After we were certified and we wrote 'a contract with our employer for
two or three years, no other labor organization could interfere with us in any
manner whatsoever for a period of two years. If after 2 years we again voted
for our own organization, we would then not be bothered for an additional two
years.
8. We would be able to take up any complaints daily with our employer
and if they were justified correct them immediately.
9. We would have the additional prestige of having a union in the factory
which might facilitate the employer's job of getting more work into the factory.
10. These and many more benefits could be realized without being subject
to the whims of an International Union ad paying as little dues as we decided:
as an example, we could fix our dues at only 100 a week. We would never
have an extra assessment unless the majority of the employees agreed.
11. But above all we would be the masters of our destinies and think and
speak as we pleased and not as someone else would tell us to think and speak.
This is the American Way. This is what all of the people in the factory want.
So sign up now and be a charter member of our group.
JOMAx EMPLOYEES ASSN.,
Organizing Committee.
Schneier admitted that when he gave this document to Wilson, he "thought it
would be" distributed to the employees. He explained all of this as mere factual
replies to questions asked him by many employees; he said he wanted to reply to
all of them with one answer. At the hearing he testified that as originally drafted
by him and typed by his secretary, there were no first person pronouns or adjec-
tives, such as "we," "us," and "our," but instead that he wrote "you," and "your,"
and "yours." He also said that the last phrase about "joining up now" and be-
coming "a charter member," together with the name of the Independent, were added
by someone else after he gave the document to Wilson, the president.
Wilson testified that she passed the document, as she received it from Schneier,
to Emma Heiss, another employee, for printing, and that it was then distributed
to the employees in the plant. She also said that she knew of no change that was
made in its wording between the time Schreier gave it to her and when the employees
received it. As to the final phrase urging that the girls "sign up," Wilson said she
did not recall whether or not it was on the paper when received from Schneier.
No doubt some of the employees asked questions of Schneier about the new union
being formed. His full statement, however, contains far more than factual answers
to the type of questions which these employees were likely to ask. It is instead
an eloquent and persuasive argumentation in favor of a company union and in
criticism of external affiliation, precisely in keeping with Schneier's earlier speeches
to the employees. It is difficult to believe Schneier was asked questions calling for
such phrases as not being "beholden to anyone," or "having additional prestige,"
or about not being "subject to the whims of an international union," or "we would
be the masters of our destinies." If all Schneier was doing was replying to factual
inquiries, there was no occasion to tell the employees: "This is the American Way.
This is what all the people in the factory want."
This is more than a factual explanation, or even a suggestion that the employees
go independent instead of ILGWU: it constitutes instead an out-and-out exhortation
to the employees, with the various economic advantages listed in the statement
presented by clear implication, as the rewards for compliance. This was but an-
other form of interference with the employees' free choice in the matter, and of
assistance toward the formation of the Independent far beyond the privilege of -any
employer under the free-speech provisions of the statute.
Clearly the Respondent interfered with the employees' privilege to make an un-
trammeled choice between two unions and gave unwarranted support to the Inde-
pendent . Before the first steps ,were taken to organize it, Schneier told the employees
they would gain economically if they so proceeded and would lose if the ILGWU
prevailed . There could be no clearer interference in their affairs. And when the
officers had been elected , he wrote the most persuasive campaign material possible
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for its firmer establishment . When , as here , there are two unions competing for
the employees ' adherence , the employer "must refrain from any action which tends
to give either an advantage over its rival ; he may do nothing that tends to coerce
his employees to join or refrain from joining a particular union ." 1 I find, on the
basis of the entire record , that in its assistance to the Independent through the acts
of the manager , the Respondent violated Section 8(a)(2) of the Act.
Over the years the Board has distinguished between employer conduct which
merely gave illegal assistance to a labor organization , or which improperly inter-
fered with the employees ' freedom to act independently on the matter, and activities
which could be said to "dominate " a labor organization . This dichotomy follows
the language of Section 8(a)(2), which makes it illegal for an employer "to
dominate or interfere" with a labor organization , "or contribute financial or other
support to it." The material effect of this distinction has been that in the first situa-
tion the employer is ordered to discontinue the illegal assistance , or interference,
and not to deal with such a union until it-establishes majority status on the basis of
a Board-conducted election, while in the second case it is ordered to disestablish the
assisted union entirely . In this proceeding the General Counsel requests, in his
brief, that a finding of domination be made and that the Respondent be ordered to
disestablish the Independent.
The record in its entirety does not warrant such an extreme conclusion or remedial
order . The first real act of assistance occurred on February 11, 1963, when Schneier
told the employees that a company union would be to their material advantage in
the shop . There is indication , however, that anti-ILGWU sentiment among the
employees predated that event . The year before, when the ILGWU first appeared
on the scene , a statement to the effect that the employees "do not want a union" was
signed by a large number of employees . A second petition , reading, "We the under-
signed desire to form an independent organization within the factory ," was signed
by 13 employees , and while the date of this document was not definitively shown,
there is indication that it may have been circulated nand signed before the February
11 incident . Moreover , the General Counsel stated at the hearing: "We do not
intend to offer any proof which goes to the establishment, per se, of this Jomax
Employees Association."
There is no evidence that the Respondent participated in the actual formation or
internal activities of the Independent , and the only occasion when the employees
met for such purposes on company time was the initial meeting of February 11.
Thereafter there were a number of conferences but always on the employees' own
time. They hired their own lawyer , kept their own records , and limited their expen-
ditures to their own money. Most significant of all, when the Independent de-
manded recognition as bargaining agent , the end object which Schneier above all
surely desired , he refrained from committing the critical act which would have
entrenched the assisted union in the plant. Instead , his refusal to extend recogni-
tion forced the Independent into the proper channel-a petition for an election by
the Board . Had this union really been the Respondent's creation , Schneier would
more likely have followed through with immediate bargaining.
The final answer to the General Counsel 's request for a disestablishment order
must be the same even assuming that , contrary to the evidence , Ness was a lower
supervisor , and that Schneiers ejection of the ILGWU representatives from the
plant constituted a disparate treatment of one union as against another. Ness did
not vote in the election of officers for the Independent , and her participation in
the meeting was a minimum. Organizer Hoffmah 's request for equal time, voiced
in the teeth of Schneier 's understandable resentment of an unwarranted inspection
of the work being manufactured in the shop , was hardly the kind of calm, proper
communication to an employer which can be the predicate for an unfair labor
practice finding. But even a deliberate policy of denying fair employee access
to the ILGWU while assisting the Independent , falls far short of being such control
over the affairs of the Independent as to support a finding of illegal domination.
In conclusion I find, on the basis of the evidence as a whole, that an order to dis-
establish the Independent would not be justified here .2 Accordingly , the Respond-
ent will be ordered to cease and desist from continuing the illegal assistance it has
been giving the Jomax Employees Association , and not to accord it recognition
as exclusive bargaining agent until such time as it shall have proved its majority
status pursuant to a Board -conducted election.
i N.L.R.B. v. Indianapolis Newapapera , Inc., 210 F. 2d 501 (C.A. 7).,
a Cf. Guard Services -Inc., 134 NLRB 1753.
JOMAX APPAREL CO. AND JOMAX GARMENT CO., INC. 535
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in connection with
the operations of the Respondent as set out in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it be ordered to cease and desist therefrom and to take
certain affirmative action necessary to effectuate the policies of the Act.
Upon the basis of the foregoing, and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. Jomax Apparel Company and Jomax Garment Co., Inc., together constitute
an employer within the meaning of Section 2(2) of the Act.
2. International Ladies' Garment Workers' Union, AFL-CIO, and Jomax Em-
ployees Association are labor organizations within the meaning of Section 2(5)
of the Act.
3. By contributing unlawful assistance and support to Jomax Employees Asso-
ciation the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a) (2) of the Act.
4. By the foregoing conduct, and by threatening the employees with loss of
work if they joined the ILGWU, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
5. The foregoing unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case, and pursuant to Section 10(c) of the Act,
the National Labor Relations Board hereby orders that Respondent, Jomax Ap-
parel Company and Jomax Garment Co., Inc., York, Pennsylvania, their officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering in the formation of, or contributing assistance to, Jomax Em-
ployees Association, or any other labor organization of their employees.
(b) Threatening their employees with economic loss in the event they select
International Ladies' Garment Workers' Union, AFL-CIO, or any other labor
organization, as their bargaining representative in violation of Section 8(a)(1) of
the Act.
(c) In any like or related manner interfering with, restraining, or coercing their
employees in the exercise of their rights to self-organization, to bargain collectively
through representatives of their own choosing, and to engage in other concerted
activities for the purposes of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extent that such rights
may be affected by an agreement requiring membership in a labor organization as
a condition of employment as authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action which is designed to effectuate the
policies of the Act:
(a) Withhold all recognition from Jomax Employees Association as the ex-
clusive representative of the employees for the purpose of dealing with it con-
cerning grievances, labor disputes, wages, rates of pay, hours of employment, or
other terms and conditions of employment, unless and until such labor organiza-
tion shall have been certified by the Board as the exclusive bargaining representa-
tive of such employees.
(b) Post at their York, Pennsylvania, plant copies of the attached notice marked
"Appendix." 3 Copies of said notice, to be furnished by the Regional Director
for the Fourth Region, shall, after being duly signed by the Respondent's representa-
tive, be posted by the Respondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places, including all
3If this Recommended Order be 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 be 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."
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
places where notices to the employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director for the Fourth Region, in writing, within 20
days from the date of this Decision, what steps the Respondent has taken to comply
herewith?
4In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT threaten our employees with economic loss in the event they
select International Ladies' Garment Workers' Union, AFL-CIO, or any other
labor organization, as their bargaining representative, in violation of Section
8(a)( I) of the Act.
WE WILL NOT interfere with the formation of, or contribute assistance to,
Jomax Employees Association, or any other labor organization of our
employees.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of their rights to, self-organization, to
form, join, or assist International Ladies' Garment Workers' Union, AFL-CIO,
or any other labor organization, to bargain collectively 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
or all such activities, except to the extent that such rights may be affected by
an agreement requiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the Act, as amended.
WE WILL NOT recognize Jomax Employees Association, or any successor
thereof, 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
representative of such employees.
All our employees are free to become, remain, or refrain from becoming or
remaining members of International Ladies' Garment Workers' Union, AFL-CIO,
or any other labor organization.
JOMAx APPAREL COMPANY,
Employer.
JOMAx GARMENT CO., INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 1700
Bankers Securities Building, Walnut sand Juniper Streets, Philadelphia, Pennsylvania,
Telephone No. 735-2612, if they have any question concerning this notice or com-
pliance with its provisions.
Earle Industries, Inc. and International Ladies' Garment Work-
ers' Union, AFL-CIO. Case No. 26-CA-1550. March 31, 1964
DECISION AND ORDER
On January 21, 1964, Trial Examiner Fannie M. Boyls issued her
Decision in the above-entitled proceeding, finding that the Respond-
146 NLRB No. 71.