Lancaster Garment Co.

National Labor Relations Board - Board Decisions

Aug 16, 1948

78 N.L.R.B. 935 (N.L.R.B. 1948)

In the Matter of LANCASTER GARMENT COMPANY and INTERNATIONAL
LADIES' GARMENT WORKERS' UNION (A. F. or L.)
Case No. 4-C-1602.-Decided August 16, 1948
11tiss Helen F. Humphrey, for the Board.
Mr. John W. Beyer, of Lancaster, Pa., and Schw,ader, Keniworthy,
Segal and Lewis, by Mr. Irving R. Segal, of Philadelphia, Pa., for the
Respondent. 0
Mr. Sidney Handler, of Harrisburg , Pa., for the Union.
DECISION
AND
ORDER
On June 4, 1947, Trial Examiner John H. Eadie issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and -vas engaging in certain unfair labor
practices 1 and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief. The
Respondent's request for oral argument is hereby denied, as the record
and brief adequately present the issues and positions of the parties.'
The Board 2 has considered the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. Except
as hereinafter noted, the rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and brief filed by
the Respondent, and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner,
with the exceptions and additions set forth below :
1. The Trial Examiner found, and we agree, that the Respondent
violated Section 8 (1) of the Act by certain statements and conduct
' The Trial Examiner found that the provisions of Section 8 (1) and ( 5) of the Act had
been violated . These provisions are continued in Section 8 (a) (1) and 8 ( a) (5) of the
Act, as amended.
2 Pursuant to the provisions of Section 3 (b) of the Act , as amended , the National Labor
Relations Board has delegated its power in connection with this proceeding to a three-
man panel consisting of the undersigned Board Members [ Chairman Herzog and Members
Houston and Reynolds].
78 N. L. R. B., No. 135.
935
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Forelady Sherts and Plant Manager Keller. Our agreement, how-
ever, is based only on the following conduct.3 Shortly after the or-
ganizational meetings, Sherts told employees that management would
not agree to let the Union come into the plant, and warned them that
'the Respondent could close the.plant for 30 days and then reopen it
to forestall self-organization. Sherts also asked employees what bene-
fits the Union u-as seeking to, obtain and whether the employees would
be willing to abandon their organizational activity if "all these benefits
were granted by the Respondent. During a conversation with two
employees about some trouble in connection with the distribution of
work, Plant Manager Keller impliedly threatened them with economic
retaliation if they continued to adhere to the Union, as found by the
Trial Examiner. - ,
2. The Trial Examiner found, and we agree, that the Respondent
violated the Act by putting into effect a wage increase on January 12,
1946, and by announcing on January 31, that the employees would
be given an additional week of vacation during the summer of that
year.
The record shows that the Union began its active campaign on or
about January 10, 1946, and that on the following day, employee
Musser reported this activity to Forelady Sherts, who at that time
apparently viewed it with favor 4 On the following day, January 12,
a previously unannounced wage increase was put into effect. The
Union requested bargaining on January 22. At the end of the month,
as found by the Trial Examiner, the Respondent announced the addi-
tional vacation period and also a free hospitalization plan.
Contrary to the Respondent's contention, the Trial Examiner found
that the decision to grant the wage increase and the additional vaca-
tion had not been contemplated or definitely made for any appreciable
length of time prior to their announcement and inauguration and that
both were granted for an unlawful purpose.5
Unlike the Trial Examiner, we do not rest our decision solely oil
the time these benefits were actually determined upon. For, assuming,
as the Respondent contends, that such determination had been made
some time prior to the advent of the Union, we are convinced that the
3 We do not rely on other anti -union statements of Sherts , which are apparently included
in the Trial Examiner 's finding, because they do not appear to be coercive ; nor do we rely
on the Examiner 's "totality of conduct" theory.
4 Later , as heretofore found , Shorts evinced hostility toward the union movement.
5The Tiial Examiner , r elying on the testimony of a representative of the insurance com-
pany involved , found that the Respondent had definitely decided prior to the ad%ent of
the Union to grant employees free hospitalization benefits , and therefore failed to base any
unfair labor practice thereon In view of our discussion below , it is arguable that the
timing of the announcement of*this benefit was also a violation of,the Act , but since there
was no exception filed to the Trial Examiner 's contrary finding, we do not pass on this
point
t.
LANCASTER GARMENT COMPANY 937
wage increase was put into effect, and the vacation plan was announced
-it the time in question, for the purpose of inducing the employees to
abandon their efforts to bargain collectively, in violation of the Act.'
This conclusion is supported by the record as a whole and especially
by the following circumstances : Each act was timed so as to coincide
with an important phase of the Union's organizational activity; the
benefits granted were the same benefits which the Respondent, through
Sherts, knew that the Union intended to seek for the employees; the
unconvincing explanation by the Respondent as to why its alleged
predetermined decision to grant those benefits was disclosed, for the
first time, shortly after the advent of the Union; and the Respondent's
coercive conduct, mentioned above, and its unlawful refusal to bargain
with the Union, as found below.
We, like the Trial Examiner, are unable to accept the Respondent's
-explanation that it posted the vacation notice in January so as to
give employees an opportunity to plan their mid-summer vacation.
In contrast to this extended notice as to vacations, the Respondent
gave no notice whatsoever of the wage increase, which was first
revealed in the regular pay envelope of January 12. At the hearing,
the Respondent offered no credible explanation of why it failed to
apprise employees at the beginning of the pay period of the wage
increase applicable thereto. Had the Respondent reached a deftite
decision early in December to put the wage increase into effect on the
first pay day in January, it is reasonable to infer, contrary to Respond-
ent's evidence which the Examiner refused to credit, that it would not
have been kept a closely guarded secret even from Forelady Sherts.
On the basis of this record, it is apparent and we find that the com-
mon factor which motivated the timing of the advance notice of the
vacation benefit, which could not be realized for some 6 months, and
of the retroactive and unannounced wage increase, was the Union's
activity which had just begun and which the Respondent desired to
forestall.
3. The Trial Examiner found, and we agree, that on January 22,
1946, and thereafter, the Union represented a majority of the Re-
spondent's employees in the appropriate unit. This finding is amply
supported by the results of a card check conducted by the Respond-
ent's attorney on March 15, 1946, and by the authorization cards sub-
mitted at the hearing.' As found by the Trial Examiner, the record
fails to support the Respondent's contention that the Union used coer-
cive tactics in its organizing campaign and that therefore the member-
° See Matter of Hudson, Hosiery Co., 72 N. L. R. B. 1434, and Matter of Wilson & Co.,
Inc., 77 N L R. B 959.
The record affords no support for the Respondent 's belated attack on the authenticity
of these cards.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ship cards do not reflect the free choice of the employees. A reason-
able interpretation of the evidence shows that during the campaign
some employees were told in effect that the Union would seek a closed
shop, requiring membership in the Union as a condition of employ-
ment, and that the employees could now join without paying the
customary initiation fee, which would be required of them later when
they would have to join. As we have previously held, such statements
merely indicate the legitimate consequences of a closed-shop agreement
and do not impair the exercise of a free choice at the election.,,
To justify its admitted refusal to bargain collectively with the
Union on April 5, 1946, and thereafter, the Respondent seeks to avoid
the results of the card check of March 15, which was held at its insist-
ence and under its supervision, on the ground that prior reports of
coercive solicitation by the Union raised a good faith doubt as to the
Union's majority status. We agree with the Trial Examiner that
under the circumstances fully set forth in the Intermediate Report,
the Respondent's position is untenable.
In reaching this conclusion, we have accepted and considered the
Respondent's offer of proof, which was erroneously rejected by the
Trial Examiner, that before April 5, Plant Manager Keller advised
the Respondent's directors of the reports he had received as to the
Union's alleged coercive solicitation and that at Kellar's suggestion
the Respondent decided to withhold bargaining with the Union until
its majority was established in a Board election. While this private
discussion among officials of the company tends to show, as contended
by the Respondent, that reports of the Union's alleged coercion were
received, it does not establish good faith on the part of Keller, the
Respondent's official directly involved in the events under considera-
tion. He testified that his attention was first called to these reports
in February 1946. At that time, he made no investigation and did
not charge the Union with any misconduct. Instead, with full knowl-
edge of these reports, the Respondent insisted on a card check as the
appropriate procedure for establishing the Union's majority status.
In our opinion, the Respondent's subsequent attempt to repudiate
the card check on the basis of these antecedent reports and its insist-
ence upon an election after it had engaged in coercive acts designed
to thwart self-organization of the employees, manifest a lack of good
faith doubt by the Respondent which would have excused its refusal
to bargain without a Board-conducted election .9
8 Matter of American Dredging Co , 71 N L R B 401 ; Matter of Consumers Lumber
& Veneer Co ., 63 N. L R B. 34-5
° The instant case is distinguishable on the facts from Matter of Clem D Johnston, d/b/a
Roanoke Public Warehouse, 72 N. L . It. B. 1281, where we held , on the basis of that par-
ticular record , that the employer's refusal to bargain , absent a Board election , was not
a violation of the Act.
LANCASTER GARMENT COMPANY 939
Upon the basis of the entire record, we find, as did the Trial
Examiner, that the Respondent refused to bargain collectively with
the Union, in violation of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Lancaster Gar-
ment Company, Lancaster, Pennsylvania, and its officers, agents,
successors , and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Ladies'
Garment Workers' Union (A. F. of L.), as the exclusive repre-
sentative of all the production and maintenance employees of the
Respondent, excluding office and clerical employees, machinists, and
supervisors;
(b) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of the right to self-organization, to
form labor organizations , to join or assist International Ladies' Gar-
ment Workers' Union (A. F. of L.), or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, as guaranteed
in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Ladies'
Garment Workers' Union (A. F. of L.), as the exclusive representa-
tive of all its employees in the aforesaid appropriate unit with respect
to rates of pay, wages, hours of employment, and other conditions of
employment, and, if an understanding is reached, embody such under-
standing in a signed agreement;
(b) Post at its plant in Lancaster, Pennsylvania, copies of the notice
attached hereto and marked "Appendix A." 10 Copies of said notice,
to be furnished by the Regional Director for the Fourth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and be main-
tained by it for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
io In the event that this Order is enforced by decree of a Circuit Court of Appeals, there
shalt be inserted in the notice, before the words: "A Decision and Order" the words :
"A Decree of the United States Circuit Court of Appeals enforcing."
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply therewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist INTERNATIONAL
LADIES' GARMENT WORKERS' UNION (A. F. OF L.), or any other
labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or pro-
tection. All our employees are free to become or remain members
of this Union or any other labor organization.
WE WILL BARGAIN collectively upon request with INTERNATIONAL
LADIES' GARMENT WORK ERS' UNION (A. F. OF L.) as the exclusive
representative of all employees in the bargaining unit described
herein, with respect to rates of pay, hours of employment or other
conditions of employment, and if an understanding is reached,
embody such understanding in a signed agreement. The bargain-
ing unit is :
All production and maintenance employees excluding office
and clerical employees, machinists, and supervisors.
LANCASTER GARMENT COMPANY,
Employer.
By ----------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
,and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Miss Helen F. Humphrey, for the Board.
Mr. John W. Beyer, of Lancaster, Pa., and Sohnader. Kenworthy, Segal & Lewis,
.by Mr. Irving R. Segal, of Philadelphia, Pa., for the respondent.
Mr. Sidney Handler, of Harrisburg, Pa., for the Union.
LANCASTER GARMENT COMPANY 941
STATEMENT OF THE CASE
Upon an amended charge duly filed by International Ladies' Garment Workers'
Union (A. F. of L.), herein called the Union, the National Labor Relations Board,
herein called the Board, by its Regional Director for the Fourth Region (Phila:
delphia, Pennsylvania), issued its complaint dated February 11, 1947, against Lan-
caster Garment Company, herein called the respondent, alleging that the respond-
ent had engaged in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the
complaint and notice of hearing were duly served on the respondent and the
Union.
With respect to the unfair labor practices, the complaint alleges in substance.,
(1) that the respondent on or about January 22, 1946, and at all times thereafter,
has retused to bargain collectively with the Union, although the Union was the
representative of a majority of the employees in an appropriate unit; (2) that
the respondent engaged in unilateral conduct violative of Section 8 (5) of the-
Act in that (a) on or about January 31, 1946, it announced a vacation plan for
its employees, and (b) on or about February 1, 1946, it announced a hospitaliza-
tion plan for its employees; and (3) that by the above acts and from in or
about December 1945 and January 1946, until the date of the issuance of the
complaint, (a) by urging, persuading, threatening and warning its employees to.
refrain from assisting, becoming members of, or remaining members of the Union,
(b) by vilifying, disparaging and expressing disapproval of the Union and its
organizers, (c) by interrogating its employees concerning their union affiliations
or activities, (d) by threatening its employees that it would shut down its plant
because of their activities on behalf of the Union, and (e) by inducing its,
employees not to become members of or remain members of the Union or select
the Union as their bargaining representative by granting a wage increase during
the Union's organizational campaign, the respondent has interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
The respondent filed an answer in which it admitted the jurisdictional alle-
gations of the complaint but denied the commission of any alleged unfair labor
practices.
Pursuant to notice, a hearing was held at Lancaster, Pennsylvania, from March
20 to March-26, 1947, inclusive, before the undersigned Trial Examiner duly-
designated by the Chief Trial Examiner The Board, the respondent and the
Union were each represented by counsel, and all participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties. At the conclusionlof the
evidence counsel for the Board moved to amend the pleadings to conform to the
proof as to nonsubstantive matters. The motion was granted without objection.
At the close of the case the respondent moved to dismiss the complaint, and ruling
thereon was reserved by the undersigned. The motion to dismiss is hereby denied.
The Board, the respondent and the Union have submitted briefs to the under-
signed. Although offered an opportunity to do so, none of the parties presented
oral argument before the undersigned at the hearing.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a Pennsylvania corporation with its principal office and
place of business located at Lancaster , Pennsylvania , where it is engaged in the
manufacture, sale and distribution of children ' s dresses.
In the course and conduct of its business the respondent uses raw materials
consisting principally of cotton cloth, and having a value in excess of $100,000 per
year. All of the respondent's raw materials come from States of the United
States other than the Commonwealth of Pennsylvania, and over 90 percent of the
respondent's finished products, which have a value in excess of $400,000 per year,
is sold and shipped to points outside the Commonwealth of Pennsylvania
At the hearing the respondent admitted that it is engaged in commerce within
the meaning of the Act.
II. THE ORGANIZATION INVOLVED
International Ladies' Garment Workers' Union (A. F. of L.) is a labor organ-
ization which admits to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference,iestraint, and coercion
1. Statements of supervisory employees
It appears that the Union first requested recognition as the collective bargaining
agent of the respondent's employees in 1942. _ At that time Max Zuckerman, the
respondent 's attorney , conducted a card check of the Union 's designation cards
against a pay roll of the respondent and found that the Union did not represent
a majority of the employees. Accordingly, the respondent refused to recognize
the Union, and the Union abandoned its organizational efforts of the respondent's
employees until December 1945.
In the latter part of December 1945, organizers of the Union visited employees
Grace Martin and Anna Musser. On December 27, Michael Johnson, Interna-
tional Representative and District Manager of the Union, met with several
employees at the home of Martin . Musser signed a union application card on
about January 4 , 1946,, and thereafter became the strongest proponent of the
Union in the plant. On January 10, the first regular meeting of the Union was
held at Musser 's home.
On January 11, Floorlady Sherts, while at work , questioned Musser about the
outcome of the union meeting. Musser told Sherts , in substance , that the meeting
had been Successful .' Some few days after January 11, Sherts interrogated Musser
as to whether or not Musser thought the Union would be successful in its organi-
zation efforts. On another occassion, Sherts told Musser that she could not
understand how the Union could benefit the employees since the respondent
under existing law was unable to pay them more than 55 cents per hour. Sherts
also made a similar statement to employee Martha Snyder. In one of the con-
I Sherts was not called as a witness at the hearing and all remarks attributed to her
are uncontradicted It appears that Musser had advised Sherts prior to January 10 that a
meeting of the Union was to be held and that Sherts up and until about the time of the
above conversation did not express opposition to the Union , but on the contrary , indicated
her approval of the organization of respondent 's employees . As will be hereinafter shown,
it conclusively appears that Sherts' attitude toward the Union changed to one of hostility.
LANCASTER GARMENT COMPANY 943
versations with Musser, Sherts told Musser that she would quit her job if the
'Union organized the plant and inquired of Musser if the employees would drop
the Union "if Roy would give you all these things that the Union is going to try
to get for us." 2 Musser replied that the employees would not drop the Union
under such circumstances.
Also early in January, Sherts questioned Snyder as to whether or not Musser
had told Snyder anything about the Union and asked Snyder if she knew who
the employees were who had signed cards in the Union. On or about January 10,
Snyder asked Sherts about a rumor which she had heard that the plant would
close down for 30 days if the Union were successful in its organizational efforts.
.Sherts affirmed this rumor by telling Snyder, "Roy could close down for 30 days
and then reopen." At about this time Sherts had some conversations with em-
ployee Lulu Clark concerning the Union In these conversations Sherts expressed
her disapproval of the employees paying union dues "to pay for white collar jobs
in Harrisburg." Sherts further told Clark that Keller would not agree to having
.the plant organized and that she [Sherts] would not work in a union plant
On about January 14 and 16, Sherts engaged employee Sandoe in conversa-
tion. Sherts asked Sandoe if the organizer of the Union had called upon her
,and what the organizer had promised the employees. Sandoe replied that the
organizer had told the employees that the Union would try to get hospitalization,
2 weeks vacation, a raise, and better working conditions. In reply Sherts told
Sandoe, "Roy is giving you the same thing."
On about January 14 or 15, Sherts advised Musser that she had "better hurry"
if she planned to organize the plant as Keller was leaving for a Florida vacation
about the first of February. Some few days after this conversation, on about
January 16, Musser stated to Sherts that she was beginning to hear rumors about
her to the effect that she had begun to talk against the Union. Sherts confirmed
Musser's charge by stating, "Well, I was never for it." Musser replied, "Well,
you led an awful lot of girls to believe that you were." At or about this same
time, Sherts came to Musser's place of work and informed her that Keller would
close clown the plant for 6 months and then reopen, in order to keep the Union out.
Musser replied that such procedure on an employer's part was illegal. Later
Sherts returned to Musser's machine and told her that she had just found out that
Keller could close the plant for 30 days and reopen.' After the above conversation
Sherts, who had been friendly to Musser, ceased to speak to her except as required
in the course of their work.
On about January 25, the day following a meeting of the Union, Sherts stated
to employee Alice McGill, "Alice, I believe you let me down." McGill asked
Sherts what she meant by this statement. Sherts replied, "You know what I
mean "' Sherts then went on to say that she would quit her job if the Union
organized the plant and stated, "Why should you pay thirty-five cents weekly dues
for Jews and loafers? Because Roy is going to give you 2 weeks vacation and
hospitalization." McGill inquired, "Why didn't this happen before?" Sherts
replied, "Because you girls wouldn't go and talk to Roy, and that's why nothing's
been clone." McGill remarked that she had thought that Sherts was in favor
of the Union, to which Sherts replied, "I am for more money, but I was never for
the Union."
2In this statement Sherts was referring to Roy D. Keller who was treasurer of the
respondent and in charge of operations at the Lancaster plant,
3 The undersigned finds that by this statement Sherts was referring to the eventuality
that the Union successfully organized the plant
4 By this remark the undersigned finds that Sherts was referring to McGill 's adherence
to the Union.
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On about March 15, 1946, McGill and Sandoe went to Keller's office in order to
talk to him regarding some trouble with work in the plant. During the conversa-
tion Keller, who was "upset" at the time, stated that the employees were "stab-
bing" him in the back and that he would "get even" with them some day.' During
the conversation Sandoe told Keller in substance that Sherts had encouraged the
employees to join the Union and Keller stated his disbelief of this charge
The undersigned finds that by the totality of the above statements of Sherts and
Keller the respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed under Section 7 of the Act. While the
record indicates that Sherts originally approved of the organizational efforts of
the respondent's employees, nevertheless this does not detract from the illegality
of her subsequent activities concerning the Union Her verbal conduct was
clearly coercive since she interrogated employees concerning their Union affilia-
tions and impliedly threatened that the plant would be closed if it was success-
fully organized by the Union. Keller's remarks to McGill and Sandoe implied
the threat of retaliation if the employees continued to adhere to the Union. While
it does not appear that Sherts' remarks to the employees effectively restrained the
employees from choosing the Union as their bargaining representative, neverthe-
less this does not excuse the respondent from responsibility for her conduct
2. The unilateral granting of economic benefits
Keller testified to the effect that he usually learned what was going on in the
plant from Sheets. He admitted that he first heard about the Union's attempt to
organize the plant about the middle of January 1946
The respondent distributed a general wage increase in the first pay roll for
1946, or on or about January 12.' As to this wage increase, Emma Moseman, the
respondent's bookkeeper, testified that she was instructed by K'ller in the early
part of December 1945, to put the wage increase into effect after the employees
got back from the Christmas holidays. She further testified that lie advised her
at the same time that it had been decided to grant the employees a vacation of
2.weeks and hospitalization benefits and that she should post a notice after the
Christmas holid iys to this effect. Moseman testified that she posted a brief
notice concerning vacations and hospitalization on about January 3 or 4'
By letter dated January 22, 1946, the Union advised the respondent that it
represented a majority of the employees and requested recognition as the bar-
gaining representative.
On or about January 31, 1946, the following notice was posted in' the plant:
c The undersigned finds that by these remarks Keller was referring to the employees ' adher-
ence to the Union
6 McGill testified credibly to the above conversation with Keller Sandoe 's testimony
concerning the conversation was substantially the same as McGill's Keller denied the
statements attributed to him by McGill and Sandoe . The undersigned rejects his denial
'There is no evidence indicating any discrimination against members of the Union In
the distribution of this wage increase or in any other respect
8 Moseman testified that no copy of this or other notices which were posted in the plant
were kept on file. Keller corroborated the testimony of Moseman concerning the above
instructions . Employees Margaret Miller, Myrtle Snyder, and Edna Fisher , who were called
by the respondent as witnesses, also testified to the effect that a notice announcing vacation
and hospitalization benefits was posted about the first week in January
6 Keller, who first was called as a witness in the Board's case, originally testified that
the above notice was posted during the first week in January When he was Iatei called
as a witness in the respondent ' s case, he gave substantially the same testimony as did
Moseman concerning the announcement of these benefits. Witnesses for the Board testi-
fied credibly that the above notice was posted in the latter part of January.
LANCASTER GARMENT COMPANY 945
LANCASTER GARMENT CO., INCORPORATED
241 North Ann Street
JAN 31, 1946
NOTICE TO EMPLOYEES
In order that all the employees may have plenty of time and opportunity
to plan their vacations with their families, our plant w,il be closed for
vacations on June 28, 1946 and resume operation July 8, 1946.
Our plant will also be closed this year on Dec. 20, 1946 and resume opera-
tion Dec. 30, 1946.
All employees working here one year will be paid for both weeks ; and
those employees working here less than a year will be paid in proportion to
the length of time worked.
LANCASTER GARMENT CO, INC
By letter dated February 1, 1946, the respondent announced to each of its
employees the inauguration of hospitalization benefits. It conclusively appears
that the respondent had for some time prior to its announcement contemplated
the granting of hospitalization to its employees, and that the respondent definitely
determined to grant hospitalization at some time during December 1945, prior
to any apparent organizational attempts by the Union 10 Accordingly, the under-
signed does not find the granting of this benefit on or about February 1, 1916,
to be violative of the Act.
The respondent, however, as shown by the above testimony of Keller and
Moseman, claims that the wage increase and additional vacation benefits were
also definitely decided upon in the early part of December 1945 Apparently in
support of this contention, witnesses for the respondent testified that a notice
concerning vacations and hospitalization was posted during the first week of
January." The undersigned does not believe that any such notice was posted
during the first week in January and rejects the testimony of respondent's wit-
nesses in this respect Witnesses for the Board testified credibly that they did
not see any notice concerning vacations or hospitalization prior to the posting of
the notice dated January 31. The undersigned considers that it is significant
that the respondent did not retain for its file a copy of the first notice alleged to
have been posted and that Keller when first called as a witness, testified that
the vacation notice and the letter announcing hospitalization benefits were
posted and sent out during the first week in January, although they were dated
January 31 and February 1, respectively Further, it is the uncontradicted
evide;i e that a wage increase and hospitalization and vacation benefits were some
of the objectives sought by the Union If any announcement concerning them
had been made early in January, certainly it would have caused comment
among the employees and impressed itself on their rounds The conversations
between Floorlady Sherts and employees, which have been related above, are un-
30 Kieth Walsh, who was an employee of the Inter-County Hospitalization Plan and who
was called by the respondent as a witness, testified ciedibly that in August of 194.5, Keller
told him that he had decided to sponsor the hospitalizat;on plan for his employees that
Keller at the time stated that it would take 3 or 4 months to complete arrangements and
that he would call Walsh when lie was ready and that at some time prior to Chiistmas
1945 Keller notified him to go ahead with the plan
ii Th.s alleged notice did not mention the forthcoming 'iage increase
a
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contradicted and clearly indicate that no announcement as to benefits had been=
made as of the time of the conversations.
Keller admittedly kept himself advised of the happenings in his plant through,
Sherts. The undersigned is convinced, therefore, that Keller was aware that the
Union was seeking a wage increase and additional vacation benefits, in addition.
to hospitalization. Significantly, Sherts advised the employees that all of these
economic benefits were forthcoming, and that for that reason it was useless for
them to join the Union. At about the time of these conversations the wage
increase was granted and thereafter the notice concerning vacations was posted
on January 31, almost 6 months prior to the time when vacations were scheduled
to take effect. The respondent contends that this notice was posted so that the
employees would have ample time and opportunity to plan their vacations. The
undersigned does not believe that this reason for the posting of the notice is
plausible, especially in view of Sherts' uncontradicted statements to employees,
Nor does the undersigned believe that the respondent contemplated or definitely
determined upon the granting of a wage increase and additional vacation bene-
fits for any appreciable length of time prior to their announcement or maugula-
tion. Accordingly, the undersigned rejects the testimony of \Ioseman and Keller
in this respect. Certainly Shei ts, as forelady who had supervision over almost
the whole plant and who appal ently had frequent conversations with Keller
concerning personnel problems, would have been aware of any impending wage
increase or additional vacation benefit. It appears that she was not aware that
the respondent contemplated the granting of such benefits, at least until or
shortly prior to about January 10, as the testimony indicates that she was in
favor of the Union up to about that time or shortly thereafter and that her
attitude toward the Union was based solely upon whether or not organization
by the Union would bring increased wages. It is significant that wages were
increased on about January 12 and that her attitude toward the Union changed
to one of hostility at about the same time.
Under all the circumstances the undersigned is convinced and finds that the
,,wage increase and additional vacation benefits were granted on about January
12 and January 31, 1946, respectively, as an inducement to persuade employees
to abandon the Union as their representative, and that such conduct on the re-
spondent's part constitutes interference, restraint, and coercion."
B. The refusal to balguroi
1. The appropriate unit and representation of a majority therein
The complaint alleges that all production and maintenance employees engaged
at respondent's Lancaster plant, exclusive of office and clerical employees,
machinists, and all supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action, constitute a unit appropriate for the pur-
poses of collective bargaining. Although in its answer the respondent denied
the appropriateness of the unit alleged in the complaint, it did not offer any evi-
dence at the hearing concerning this question It also appears that in the nego-
tiations hereinafter related the respondent not only did not challenge the unit
clair.ied by the Union to be appropriate, but agreed to it. Accordingly, and in
view of the nature of the respondent's operations, the undersigned finds that at
all times material herein, the above-mentioned unit constituted and does now
12 Matter of Hudson Hosiery Company, 72 N. L. R. B. 1434.
LANCASTER GARMENT COMPANY 947
constitute an appropriate unit within the meaning of the Act; he finds that said
unit will insure to the employees of the respondent the full benefit of their rights
to self-organization and collective bargaining and otherwise effectuate the pur-
poses of the Act.
As related above, the Union requested the respondent to recognize it as the
exclusive bargaining representative of the employees by letter dated January-
22, 1946. As will be hereinafter more fully related, Zuckerman, the respondent's
attorney at that time, suggested that he deteumne the Union's majority status
by checking authorization cards signed by the employees against the respondent's
pay roll. This procedure was finally agreed upon and the check was made by
Zuckerman, using the pay roll of'January 26, 1946. There was a total of 125,
persons on this pay roll within the appropriate unit. Of this number, the Union
presented authorization cards to Zuckerman for 81 employees ; and Zuckerman,
after the card check, advised the respondent that 76 of the Union's cards were
authentic and that the Union represented a majority. Zuckerman found that
,he signatures on 5 of the Union's cards did not conform to the signatures on the
n espondents' records used in the card check. The respondent at the hearing did
not contest Zuckerman's findings as to the authenticity of the signatures. How-
ever, it apparently is the contention of the respondent that the Union did not
represent a majority for the reason that some of the employees were coerced by-
employee organizers of the Union into signing authorization cards. The under--
signed rejects this contention and will hereinafter discuss more fully the alleged
coercion.
The authorization cards and the respondent's pay roll for the week ending
January 26, 1946, were introduced into evidence. The undersigned finds that
of the 81 cards submitted in evidence, the names of all employees thereon appear
in the above-mentioned pay roll. Moreover, the Board adduced at the hearing
credible evidence as to the method by which signatures were solicited, which
was corroborated by some of the employees who had signed the cards. All of
this evidence more than sustained the Board's burden of proving a prima facie
showing of majority. The respondent produced only one witness who testified
to the effect that she was coerced into signing a card. Accordingly, the under-
s^gned finds that on and at all times after January 22, 1946, the Union was the
duly designated bargaining representative of a majority of the employees in the,
aforesaid appropriate unit and that, pursuant to the provisions of Section 9 (a)
of the Act, the Union was on January 22, 1946, and at all times thereafter-
has been and is now the exclusive representative of all employees in the aforesaid
unit for the purposes of collective bargaining with respect to rates of pay, wages,
hours of employment and other conditions of employment.
2. The negotiations
By letter dated January 22, 1946, the Union requested recognition as the ex-
clusive bargaining agent of the respondent's employees. In answer to this letter
Zuckerman telephoned the Union's representative, Michael Johnson, and suggested
the card check. Johnson at first protested this procedure and suggested that the
cards be checked by the Board, but finally agreed to their being checked by
Zuckerman. After a delay of several weeks at Zuckerman's request, a meeting
'. as finally scheduled and held at Zuckerman's office on March 11, 1946 At this
meeting the respondent was represented by Zuckerman, Keller and two other-
representatives of the respondent. The Union refused to submit its cards for
the inspection of Keller, and since the respondent failed to bring to the meeting-
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
records showing signatures of its employees by which the authenticity of the
signatures on the Union's cards could be established, the parties postponed the
card check until such time as signatures could be submitted by Keller to
Zuckerman.
Johnson and Zuckerman again met on March 15 , 1946, and Zuckerman com-
pleted the card check He found that the Union represented a majority in the
unit agreed to be appropriate and immediately drafted a letter notifying the
respondent to this effect. In this letter he also recommended that the respond-
ent bargain with the Union." At the conclusion of the meeting between Johnson
and Zuckerman the latter suggested that Johnson wait a week or so before com-
municating with the respondent, since a representative of the respondent would
probably communicate with Johnson to arrange for a meeting. Thereafter the
respondent failed to communicate with Johnson as Zuckerman had indicated.
Johnson thereupon wrote to the respondent on March 26, and requested a con-
ference. On March 28, Keller wrote Johnson that one of the members of the
respondent's company was out of town and that the respondent would coin-
municate with Johnson the following week. By letter dated April 5, 1946,
Keller notified Johnson to the effect that the respondent would not bargain with
the Union as it did not believe that the Union had a majority. In this letter
the respondent did not give any reason why it did not believe the Union repre-
sented a majority of the employees.
On May 6, 1946 , a conference was held at the offices of the Board in Philadel-
phia. At this conference Keller for the first time explained that the respondent's
refusal to bargain after the card check was based on the fact that it had come
to his knowledge that some employees had been coerced into signing authorization
cards. At this conference Keller stated In , s willingness to consent to an election.
Concluding Findings
In support of its contention that employees had been coerced into signing
authorization cards, the respondent called as witnesses at the hearing employees
Margaret Miller, Myrtle Snyder, Edna Fisher, and Esther Offner. Of these all
but Snyder testified that they did not sign union cards. As to coercion their
testimony was, in substance, that employee organizers told them that if they
did not sign cards, they would be fined $5 or lose their jobs Snyder testified
that she was "frightened" by this and therefore signed a card."
Keller testified that he first heard these reports of "coercion" from Forelady
Sherts on or about February 24. He further testified that he did nothing to
verify the reports . As noted above , Sherts was not called as a witness at the
hearing.
Under all the circumstances, the undersigned is convinced and finds that the
respondent did not entertain a bona fide doubt as to the Union's majority status.
When the Union first requested recognition on January 22, the respondent did not
insist upon an election, but suggested and practically insisted on a card check
"Theie is some contention in the case by the Board to the effect that Zuckerman had
agieed with Johnson that the respondent would recognize the Union , provided that it
prored a nialouty status in the card check Zuckerman testified credibly to the effect that
ho had inerely agreed to iecoumend to the respondent that it bargain with the Union in
ouch an cv eutuality
' Witnesses for the Board , . n substance , testified that they explained to employees that
the Un - on was seeking a closed shop , that it was the policy of the Union to waive the
$5 initiation fee in the case of the employees who signed cards during the organizational
campaign ; and that it a contract contained a closed -shop provision , the employees who
d'd not sign authorization cards would lose their jobs.
LANCASTER GARMENT COMPANY 949
conducted by its own attorney over the initial protest by the Union. It is signifi-
cant that Keller allegedly first received reports of "coercion" from Sherts on or
about February 24, and that he did not mention his concern over these reports at
the conference on March 11, at which time final arrangements for the card check
were made. This clearly indicates that if Keller did in fact receive reports of
this alleged "coercion," either they did not raise any sincere doubts in his mind
as to the Union's majority status or he himself did not believe that the state-
ments of the Union's employee organizers could be construed as "coercive." The
fact that he permitted the card check to take place as scheduled indicates bad
faith on the respondent's part under such circumstances. Moreover, it has been
found above that the respondent, by the statements of Keller and of Forelady
Sherts, and by the unilateral granting of economic benefits, interfered with,
restrained, and coerced its employees. The granting of additional vacation bene-
fits coming as it did after the Union's request for exclusive recognition, when
in fact it did at that time represent a majority of the employees in an appropriate
unit, was also tantamount to a violation of Section 8 (5) of the Act. This con-
duct on the respondent's part, together with the refusal to bargain, may well have
dissipated the Union's majority, and precluded the respondent from seeking a
redetermination when it said it would agree to a consent election on May 6, 1946.
Accordingly, the undersigned concludes and finds that from on or about Janu-
ary 22, 1946, and at all times thereafter the respondent in bad faith has refused to
bargain collectively with the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has failed and refused to bargain
with the Union as the representative of all its employees in an appropriate unit,
it will be recommended that it cease and desist therefrom and that, upon request,
the respondent bargain collectively with the Union with respect to wages, hours,
and other terms and conditions of employment.
In view of the respondent's attempts to induce and persuade its employees to
disassociate themselves from the Union ; by the conduct of its supervisory em-
ployees and by the unilateral granting of economic benefits, manifesting a de-
termination to defeat and discourage self-organization by its employees and
otherwise to defeat the purposes of the Act, and in order to effectuate the guar-
antees of Section 7 of the Act, it will be recommended that the respondent be
ordered to cease and desist from in any manner interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed in Section 7
of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record ill
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. International Ladies' Garment Workers' Union (A. F. of L.) is a labor
organization within the meaning of Section 2 (5) of the Act.
798767-49-vol 78-61
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. All production and maintenance employees engaged at respondent's Lan-
caster plant, exclusive of office and clerical employees, machinists and all super-
visory employees with authority to hire, promote, discharge, discipline, or other-
wise effect changes in the status of employees or effectively recommend such
action, constitute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act.
3 International Ladies' Garment Workers' Union (A. F. of L) was on Jan-
uary 22, 1946, and at all times thereafter has been the exclusive representative
of all employees in the aforesaid unit for the purposes of collective bargaining,
within the meaning of Section 9 (a) of the Act.
4. By failing and refusing at various times since January 22, 1946, and at all
times thereafter, to bargain in good faith with International Ladies' Garment
Workers' Union (A. F of L.), as the exclusive representative of its employees in
the appropriate unit, the respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (5) of the Act
5. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1) of
the Act
'6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent , Lancaster Garment Company, its
agents, officers , successors , and assigns , shall:
1. Cease and desist from :
(a) Refusing to bargain collectively and in good faith with International
Ladies' Garment Workers' Union ( A. F. of L ) as the exclusive representative of
all of its employees in the unit hereinabove found to be appropriate ;
(b) In any other manner interfering with, restraining , or coercing its em-
ployees in the exercise of the right to self -organization , to form labor organiza-
tions, to join or assist International Ladies' Garment Workers' Union (A. F of
L.) or any other labor organization , to bargain collectively through representa-
tives of their own choosing , and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection , as guaranteed in Section 7
of the Act
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request. bargain collectively with International Ladies' Garment
Workers ' Union (A. F. of L.), as the exclusive representative of all its employees
in the unit hereinabove found to be appropriate in respect to rates of pay, wages,
hours of employment , and other conditions of employment , and, if an understand-
ing is reached , embody 'such understanding in a signed agreement ;
(b) Post at its plant in Lancaster , Pennsylvania , copies of the notice attached
hereto marked "Appendix A." Copies of said notice, to be furnished by the Re-
gional Director for the Fourth Region ( Philadelphia , Pennsylvania ), shall, after
being duly signed by the respondent 's representative , be posted by the respondent
immediately upon receipt thereof, and maintained by it for sixty ( 60) consecutive
days thereafter , in conspicuous places , including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by the respondent
LANCASTER GARMENT COMPANY 951
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 ten
(10) days from the receipt of this Intermediate Report what steps the respondent
has taken to comply herewith.
It is further recommended that unless on or before ten (10 ) days from the date
of the receipt of this Intermediate Report the respondent notifies the said Re-
gional Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the respondent to
take the action aforesaid.
As provided in Section 203 39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15 ) days from the date of service of
the order transferring the case to the Board, pursuant to Section 203.38 of said
Rules and Regulations , file with the Board, Rochambeau Building , Washington 25,
D. C., an original and four copies of a statement in writing setting forth such
exceptions to the Intermediate Report or to any other part of the record or pro-
ceeding ( including rulings upon all motions or objections ) as he relies upon,
together with the original and four copies of a brief in support thereof ; and any
party or counsel for the Board may, within the same period , file an original and
four copies of a brief in support of the Intermediate Report. Immediately upon
the filing of such statement of exceptions and/or briefs , the party or counsel for
the Board filing the same shall serve a copy thereof upon each of the other parties
and shall file a copy with the Regional Director. Proof of service on the other
parties of all papers filed with the Board shall be promptly made as required by
Section 203 .65. As further provided in said Section 203.39, should any party
desire permission to argue orally before the Board, request therefor must be
made in writing to the Board within ten (10 ) days from the date of service of
the order transferring the case to the Board.
JOHN H. EADIE,
Trial Examiner.
Dated June 4, 1947.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT In any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist INTERNATIONAL LADIES' GARMENT WORKERS'
UNION (A F. OF L.), or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual aid or
protection. All our employees are free to become or remain members of this
union or any other labor organization.
WE WILL BARGAIN collectively upon request with INTERNATIONAL LADIES'
GARMENT WORKERS' UNION (A. F. OF L) as the, exclusive representative o'f
all employees in the bargaining unit described herein with respect to rates
of pay, hours of employment or other conditions of employment, and if an
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
understanding is reached , embody such understanding in a signed agreement.
The bargaining unit is :
All of the employees employed by the respondent , but excluding office
workers, spot laborers , supervisors , working foreman , and all other super-
visory employees with authority to hire, promote, discharge , discipline or
otherwise effect changes in the status of employees or effectively recommend
such action.
LANCASTER GARMENT COMPANY,
Employer.
By -----------------------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof, and must not
be altered , defaced, or covered by any other material.