Laura Jayne, Inc.

National Labor Relations Board - Board Decisions

Jun 9, 1965

152 N.L.R.B. 1341 (N.L.R.B. 1965)

LAURA JAYNE, INC. 1341
WE WILL NOT coercively interrogate our employees concerning their mem-
bership in and activities on behalf of the Union; threaten our employees with
discharge or other reprisals if they become or remain members of the Union or
assist the Union; keep union meetings under surveillance; or, institute changes
in working conditions because employees join or assist the Union
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor organi-
zations, or to join or assist International Union of Electrical, Radio and Machine
Workers, AFL-CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities.
WE WILL offer Gene Smith, Robert Hicks, Christa Cross, Janetta Louise Dar-
land, Kathryn Kleinberg, and Ernest Fuentes immediate and full reinstatement
to their former or substantially equivalent employment and make them whole
for any loss of pay suffered as a result of our discrimination against them.
All of our employees are free to become or iefrain from becoming members of
the above-named Union, or any other labor organization.
DAL-TEX OPTICAL COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
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, Meacham
Building, 110 West Fifth Street, Fort Worth, Texas, Telephone No. Edison 5-4211,
Extension 2131, if they have any question concerning this notice or compliance with
its provisions.
Laura Jayne, Inc. and International Ladies' Garment Workers
Union , AFL-CIO and Honesdale Dresses Association , Party to
the Contract . Cases Nos. 4-CA-3239 and 4-CA-3348. June 9,
1965
DECISION AND ORDER
On March 3, 1965, Trial Examiner A. Bruce Hunt issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in certain unfair labor practices within the meaning of the
National Labor Relations Act, as amended, and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The Trial Exam-
iner further found that Respondent had not engaged in certain other
unfair labor practices alleged in the complaint, and he recommended
the dismissal of these allegations. Thereafter, Respondent filed excep-
tions to the Trial Examiner's Decision and a supporting brief. The
Charging Party filed cross-exceptions and a supporting brief, and a
brief answering Respondent's exceptions.
152 NLRB No. 139.
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and cross-exceptions, the briefs,
and the entire record in the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner, with the modi-
fications hereinafter set forth.
1. Before Respondent opened its plant in September 1963, two meet-
ings were held between Respondent's officials and future employees.
At both these meetings, officials were asked by one or more employees
whether Respondent would operate a union plant and answered that
the plant would be nonunion. At the second of the two meetings
employees were also told that Respondent would close its plant if the
International should become the employees' representative. The Trial
Examiner found that Respondent violated Section 8(a) (1) of the Act
by, inter alia, "statements to prospective employees that the plant
would be nonunion, and the statement . . . that the plant would be
closed if the International should become the employees' representa-
tive." In adopting this finding, we do not rely upon any statements
made at the earlier meeting (in August 1963 in Avoca, Pennsylvania)
because the reference then to a nonunion plant is not shown to have
been made in a coercive context.
2. The Trial Examiner also found that Respondent violated Section
8(a) (1) of the Act by Plant Manager LaBruno's inquiry of employee
Luella Bachota whether she had been forced to sign an authorization
card for the International. The employee's testimony suggests that
she raised the subject of the card in a conversation with LaBruno
because of her anxiety over the matter. Under such circumstances, we
do not find that the inquiry by LaBruno, perhaps merely an attempt
to clarify what Bachota was volunteering, to be violative of Section
8(a) (1).
3. The Trial Examiner found that Respondent violated Section
8(a) (2) of the Act by, inter alia, the conduct of Florence Zielinski in
joining and attending meetings of the Honesdale Dresses Association.
Although the Trial Examiner counted Zielinski as a unit employee in
determining the International's majority at relevant times, he also
found that she was a "minor supervisor" performing "certain manage-
ment functions" and that Respondent was therefore responsible for
her Association activities.
LAURA JAYNE, INC. 1343
Most of Respondent's employees work on the second floor of its
plant under the supervision of Forelady Kelly. Zielinski and about 10
other employees work on the first floor in the finishing department.
Plant Manager LaBruno's office is on the first floor. Zielinski's "man-
agement functions" appear to consist of contacting part-time employ-
ees to report for work when needed, and telling employees to stop
working when work slacks off. When LaBruno is in the plant, how-
ever, Zielinski merely acts as a conduit for his instructions to other
employees. When LaBruno is not in the plant, the record is not clear
as to whether Zielinski ever decides to call in or send home employees
on her own initiative or whether she always contacts LaBruno before
doing so. The several pressers in the finishing department make sub-
stantially more money than Zielinski, although she is the highest paid
of the other workers. Zielinski spends virtually all her time doing the
same work as the other finishing department employees (other than
the pressers), and there is no other evidence that she exercises any
authority over her coworkers. Upon consideration of these facts, we
adopt the Trial Examiner's finding that Zielinski is a unit employee.
We also find that she is not a supervisor within the meaning of Section
2(11) of the Act, and that therefore Respondent was not responsible
for her conduct in connection with the Association. Accordingly, we
do not adopt the Trial Examiner's finding that Respondent violated
Section 8(a) (2) of the Act as a result of employee Zielinski's partici-
pation in the Association.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondent Laura Jayne, Inc., Honesdale,
Pennsylvania, its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recommended Order, as
so modified :
1. Delete paragraph 1(c) and substitute the following:
"(c) Contributing assistance and support to said Association or any
labor organization admitting to membership its employees."
i The Trial Examiner relied upon Sioux City Brewing Company , 82 NLRB 1061, 1063,
for his conclusion that Respondent was responsible for the conduct of Zielinski as a
"minor supervisor " In that ease , the Board relied upon the fact that the conduct of
"minor supervisors" Frederick and Guillaume followed a pattern set by statutory super-
visors in concluding that the company was responsible for their conduct. Zielinski's par-
ticipation in Association activities did not follow any such pattern , and Sioux City is
consequently inapplicable here.
Member Jenkins would not find that the Respondent violated Section 8 ( a) (2) of the
Act by permitting Langendoerfer to engage in activity within the plant during working
hours which was intended to bring about the creation of the Association as a means of
undermining the International 's majority status In his view, the General Counsel did not
meet his burden of proof in establishing this violation.
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Delete paragraph 1(d) and substitute the following:
"(d) Threatening employees with reprisals if they engage in activi-
ties protected by Section 7 of the Act."
3. Delete the following sentence from the Appendix attached to
the Trial Examiner's Decision :
WE WILL NOT interrogate you concerning your union activities.
IT IS HEREBY FURTHER ORDERED that the complaint herein be, and it
hereby is, dismissed insofar as it alleges violations not found herein.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE1
This proceeding involves allegations that the Respondent , Laura Jayne, Inc., vio-
lated Section 8(a)(1), (2 ), (3), and ( 5) of the National Labor Relations Act, as
amended, 29 U S C. Sec. 151, et seq.2 On June 22 through 24 and August 24 through
26, 1964, a hearing was conducted at Honesdale , Pennsylvania , before Trial Exam-
iner A Bruce Hunt at which all parties were represented by counsel . The Respond-
ent's motion to dismiss the consolidated amended complaint , as further amended at
the hearing , and the Association 's motion to dismiss said complaint insofar as it
relates to the Association , are disposed of in accordance with the determinations
below Upon the entire record and my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. THE RESPONDENT
Laura Jayne, Inc., a Pennsylvania corporation , has its office and place of business
in Honesdale , Pennsylvania, where it is engaged in the manufacture of dresses. Dur-
ing the period of September 1963, when the Respondent commenced operations,
through May 1964, the Respondent shipped goods valued in excess of $50,000
directly to points outside Pennsylvania. There is no dispute , and I find, that the
Respondent is engaged in commerce within the meaning of the Act.
H. THE INTERNATIONAL; THE ASSOCIATION
The Charging Party, International Ladies' Garment Workers Union, AFL-CIO,
herein called the International , and Honesdale Dresses Association , herein called the
Association, are labor organizations which admit to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The principal issues are whether the Respondent ( 1) during August and Septem-
ber 1963, told prospective employees that they could not be represented by the Inter-
national ; ( 2) during November 1963 and thereafter , threatened and warned employ-
ees concerning their activities on behalf of the International ; ( 3) on December 4,
1963, and thereafter , invalidly refused to bargain collectively with the International;
and (4 ) during 1964 , participated in the formation and affairs of the Association
and rendered invalid support to it.
B. Background
The Respondent obtained its name from two plants which are not involved in this
proceeding , Laura Fashions and Jayne 's Fashions which are located in Avoca and
Scranton , Pennsylvania , respectively . Laura Fashions is owned by Rocco Scalachi
who is the Respondent 's president. Jayne's Fashions is owned by Cosmo Iacovazzi
who, along with Scalachi, incorporated the Respondent and became one of its stock-
1 The caption of the proceeding is hereby amended to reflect that the Association is a
party to the proceeding and to a collective labor agreement with the Respondent
2 The charge and amended charge in Case No. 4-CA-3239 were filed on January 29 and
April 17 , 1964, respectively . The complaint in that case was issued on April 24, 1964
The charge In Case No 4-CA-3343 was filed on May 19, 1964, and the consolidated
amended complaint in both cases was issued on May 27, 1964.
LAURA JAYNE, INC. 1345
holders and officers.3 The Respondent occupies a plant in Honesdale, Pennsylvania,
which was formerly occupied by Dresses, Inc., a corporation owned by Bill Failla.
During 1963, Dresses, Inc., whose employees were represented by the International,
ceased operations. Failla dealt with Scalachi and lacovazzi concerning the sale of
certain assets of Dresses, Inc., in the expectation, later realized, that Scalachi and
lacovazzi would reopen the plant. The latter two men were not interested unless
they could obtain assurances that the employees of Dresses, Inc., would work for the
Respondent.
C. Chronology of events
• During August 1963, at the plant of Laura Fashions in Avoca, Scalachi, Iacovazzi,
and Failla met with five women who had worked for Dresses, Inc. Among the sub-
jects discussed were working conditions that might be established in the Honesdale
plant and the question whether the former employees of Dresses, Inc., would work
for Scalachi and lacovazzi if the plant should be reopened. In response to a ques-
tion, Scalachi said that the plant, if reopened, would be nonunion, that he did not
object to the International,4 that the employees of Laura Fashions did not wish to be
represented by that labor organization, and that they had their own shop union .5
On September 14, before the reopening of the plant in Honesdale, Scalachi, laco-
vazzi, and other representatives of the Respondent met in that plant with about 25
or more women who constituted a majority of the former employees of Dresses, Inc.
According to Iacovazzi, he and Scalachi had obtained the impression at the meeting
in Avoca that the persons who had worked for Dresses, Inc., would be "very happy"
if the plant should reopen and would be "happy that the plant was going to be started
out on non-union work." Iacovazzi testified further that the purpose of the meeting
on September 14 was to get together with all the Respondent's prospective employees
and to ascertain whether the impressions gained in Avoca were accurate. The impres-
sions proved to be accurate, lacovazzi testified. According to Scalachi, the purpose
of the meeting was to ascertain whether the women would be interested in working for
the Respondent, and he ascertained that they were interested. During a discussion of
prospective working conditions, including rates of pay and the question whether there
would be steady work, some women inquired whether the plant would be operated
8 lacovazzi's name is spelled herein as it appears on a letterhead of Jayne's Fashions,
which is an exhibit. The name is spelled in other ways in the pleadings, the briefs, and
portions of the transcript. At the time of the hearing, Iacovazzi had terminated his
connection with the Respondent, but he was a stockholder and officer when the Interna-
tional demanded recognition on December 4, 1963, as related hereinafter.
4 The International was not mentioned by name, but it is clear from the record that
Scalachi's references to "the union" were references to that labor organization More-
over, although the employees of Laura Fashions are represented by an unaffiliated orga-
nization, that plant, in Scalachi's words, is "non-union" and all of his connections with
jobbers Involve "non-union work " Iacovazzi's plant, Jayne's Fashions, also is nonunion
5 The findings concerning Scalachi's remarks are based upon the testimony of Kathryn
Runyon, a witness for the General Counsel. Two other women who were present, Dorothy
Altemier and Mildred Jezercak, did not testify. The record discloses that they were in
the Respondent's employ as late as April 1964 when they signed the "Articles of Asso-
ciation of Honesdale Dresses Association," but the record does not disclose whether they
were available as witnesses for any party at the time of the hearing Failla also was
not a witness. The Respondent's witnesses concerning Scalachi's remarks were Scalachi,
Iacovazzi, Florence Kelly, who had been a supervisor for Dresses, Inc , and who became
a supervisor for the Respondent, and Gloria Cox, the fifth woman who attended the meet-
ing in Avoca. The substance of their testimony is that Scalachi said that the plant
would be reopened as a nonunion plant because his business connections were nonunion,
but that he said also that after the beginning of operations the employees would be free
to obtain union representation if they should so desire Iacovazzi testified that when he
or Scalachi asked whether the former employees of Dresses, Inc., would work if the plant
were reopened, the response was an inquiry whether the plant would be "union or non-
union," to which he and Scalachi answered by saying that Laura Fashions, Jayne's
Fashions, and all of their connections were nonunion. Iacovazzi testified further that
Runyon then said that the women "would be tickled pink" to work for Scalachi and
Iacovazzi because most of them "had always been non-union" (i e , opposed to the Inter-
national) and "had a lot of grievances against the" International. Runyon's testimony,
on the other hand, is that she, along with most of the employees of Dresses, Inc , favored
the International, and that she was willing to work for the Respondent In a nonunion
plant because of representations to her that she and others would earn "big money " I
cannot credit the Respondent's witnesses. As will appear, Cox's recollection is faulty in
several material respects, and Scalachi, Iacovazzi, and Kelly are unworthy of belief
789-730-66-vol. 15 2-8 6
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a union shop. Scalachi and lacovazzi replied in the negative . Someone, speaking
for management , said that the plant would be closed if the International should
become the employees ' representative c There is testimony for the Respondent that
the women were told that they were free to designate the International to represent
them , but I cannot credit this testimony for reasons set out in the footnote.?
Within a few days after the September 14 meeting , the plant was reopened. Some-
what later , the International began to organize the employees who, as already recited,
had been represented by that labor organization when the plant was operated by
Dresses , Inc. By the end of October , at least 19 of approximately 40 employees had
signed cards authorizing the International to represent them. During November,
six additional cards were signed. Later a few more cards were signed.8
During November , the International held a meeting for the employees. On the
morning of the day the meeting was to be held, Supervisor Kelly spoke to a few of
the employees , saying that anyone who attended the meeting would be discharged .9
During early December , representatives of the International demanded of laco-
vazzi that the Respondent bargain with it as the employees ' representative . Before
8 Loretta Yurgovsky , a witness for the General Counsel , testified that Iacovazzi threat-
ened closure On the other hand , Stella Urash and Lucy Missavage , also witnesses for the
General Counsel , testified that Iacovazzi said that the plant would be nonunion , but their
testimony does not support that of Yurgovsky that Iocavazzi threatened closure Urash
testified that she did not hear him speak of any occurrence if the employees should desig-
nate the International to represent them , while Missavage testified that she could not
recall any threat to close by lacovazzi at that meeting Ann Petutsly, another witness
for the General Counsel , testified that she asked whether the plant would be operated as
a union shop , to which Scalachi replied in the negative , and that , if she remember[ed]
right, " the threat to close in the event of unionization was made by Michael LaBruno,
who was present and who became the plant ' s manager Turning to the witnesses for the
Respondent , LaP,runo testified incredibly that lie did not heal anything said concerning
the International Florence Hubbaid and Florence Zielinski testified that they did not
hear anything said about a possible closure of the plant if the International should be-
come the employees ' representative , and Cox testified that nothing was said about a
possible closure It is clear fiom Scalachi's testimony , however , that he spoke on the
subject Although he testified on direct examination that he did not "at any time"
indicate to the women that he would close the plant if they should designate the Interna-
tional to represent them, on cross-examination lie testified that he told the women that,
if they should designate the International to represent them, he would have to terminate
his connections with nonunion jobbers and make new connections with union jobbers, that
he might be able to make the change without closing the plant , but that during the time
that he would be seeking the new connections there might be a shutdown "overnight," or
for "a week ," or "[t]here was no telling how long it would take"
7 Scalachi so testified , as did lacovazzi and Cox . On the other hand , four witnesses
for the Respondent , Wanda Lupyak , Florence Kelly , Florence Perry , and Gertrude Martin,
testified in substance that they were not told by management , or that they did not recall
having heard anyone say on behalf of management , that the prospective employees would
be free to designate the International to represent them I am convinced by the Re-
spondent 's conduct , described hereinafter , and by the versions of the September 14 meet-
ing given by the General Counsel's witnesses , that at that meeting the Respondent did
not tell its prospective employees that they were free to designate the International to
represent them
8 The record contains the cards which were signed by employees who were in the
appropriate unit on December 4, 1963 , and on January 23, 1964 . The record does not
contain any cards which were signed by employees who were not in the unit on those dates
9 This finding is based upon the reliable testimony of Yurgovsky . She was not one of
the small group of employees near Kelly when Kelly spoke , but she was within hearing
distance . According to Yurgovsky , Kelly spoke to employees who are known in the plant
as "Brownies " because of their friendship with Kelly , but the incident occurred before
all employees had arrived for work , and Yurgovsky could not identify anyone as having
been in the group near Kelly. On the other hand , Kelly denied having made the threat,
testifying that she "never said such a thing because [she ] never knew when they had a
meeting ." Additional testimony for the Respondent was given by Cox and Beverly
Gregory, who acknowledged having been referred to by other employees as "Brownies "
Cox testified that she did not hear Kelly say anything to Yurgovsky about union activities
and that she never heard Kelly threaten anyone . Gregory testified that she could not
recall whether she had heard Kelly speak to Yurgovsky. I cannot credit Kelly's denial.
The record establishes that she and other representatives of management threatened
employees.
LAURA JAYNE, INC. 1347
the circumstances are discusssed, it should be noted that the Respondent says in its
brief that prior to the International's demand, Iacovazzi had become "aware of the
interest and competition of a rival union," the Association. There is testimony by
various witnesses for the Respondent that during early December a substantial num-
ber of employees demonstrated interest in forming the Association. The fact, how-
ever, as recited hereinafter, is that such interest was not demonstrated until the latter
part of January, by which time the Respondent had made its opposition to the Inter-
national very clear.
On December 4, Sol Hoffman and John Ferraro, representatives of the International,
called upon lacovazzi at the latter's plant, Jayne's Fashions, in Scranton. The find-
ings concerning their conversation are based upon the testimony of Hoffman and
Ferraro who impressed me as reliable witnesses. Iacovazzi's testimony is set out in
footnotes as the conversation is reconstructed. Hoffman, holding a batch of union
cards in his hand, said that the International possessed majority status at the Respond-
ent's plant in Honesdale, and asked for recognition. Iacovazzi rejected the request,
saying that he did not care whether a majority of the employees had signed cards.
Hoffman offered to submit the cards to an impartial person who would determine
whether the International possessed such status, but Iacovazzi rejected the offer.'°
Iacovazzi said that he would close the plant rather than have it unionized. Hoffman
pointed out that the employees had been represented by the International when they
worked for Dresses, Inc., and Iacovazzi said that before the plant was reopened he
had received assurances from the employees that it would be a nonunion plant, and
that, upon the basis of such assurances, he had participated in reopening the plant.11
io Iacovazzi testified that after Hoffman produced the cards, claimed majority status
for the International, and asked "to sit down and talk it over," Iacovazzi demanded to
see the cards, saying that he wanted proof of the claimed majority status, but that
Hoffman refused to allow him to examine the cards At that point, according to Iacovazzi,
he suggested that Hoffman seek a Board election, to which Hoffman did not reply.
lacovazzi denied that Hoffman offered to show the cards to an impartial person
Ii Iacovazzi denied that he spoke of assurances received from the employees, and lie
testified that he said instead that he understood that the women "wanted no part of the
union" and that it had been his impression, gained from talking with the women before
the plant was reopened, that they "didn't want the union" and that they liked "working
for a non-union shop." Iacovazzi testified also that he did not say to Hoffman and
Ferraro whether he would bargain, nor did he express a disbelief that the International
possessed majority status, but that he did say that he wanted proof of such status because
of past experiences which he had had with Hoffman and Ferraro In this connection,
Iacovazzi's testimony was demonstrated to have been false. He testified that Ferraro
and Hoffman once came to him and claimed to represent a majority of the employees at
his plant in Scranton, that he accepted Ferraro's representation, that he soon learned
from the employees that they were not represented by the International, that the employees
demonstrated opposition to the International by conducting a secret ballot among them-
selves and voting overwhelmingly against the International, that thereafter he reported
to Ferraro that Ferraro had misrepresented the situation, and that later Ferraro and
Hoffman tried to induce him to coerce the employees into joining the International.
Iacovazzi testified further that the opposition of the employees to the International was
expressed to him on the same day that Ferraro had claimed majority status, but that
he already had accepted Ferraro's representation and had paid $250 to an employers'
association for membership therein. The truth of the matter, however, is that during
the summer of 1963 Hoffman went to see Iacovazzi and said that the latter's plant in
Scranton was working on goods received from a union manufacturer, that it was a viola-
tion of the manufacturer 's contract with the International to permit the work to be done
in a nonunion plant, and that Iacovazzi would not be permitted to receive goods from
the union manufacturer unless the plant in Scranton would enter into a contract with
the International. As a consequence, on July 31, 1963, Iacovazzi and Hoffman entered
into a written agreement which provided that: (1) lacovazzi would join United Dress
Manufacturers Association of Pennsylvania ; (2) Jayne's Fashions would become subject
to the collective labor agreement between that Association and the International; (3)
all provisions of said agreement, except one providing for a 35-hour week, would not
become effective at Jayne's Fashions until December 1, 1963 ; and (4) the International
would be permitted to enter the plant on and after September 1 for the purpose of
soliciting membership applications, but that no such application would become effective
until after December 1. On November 18, 1963, approximately 2 weeks before lacovazzi
refused to bargain with Hoffman and Ferraro as representatives of the Respondent's em-
ployees, lacovazzi resigned from the employer association, saying that Jayne's Fashions
was "no longer part of the unionized Industry."
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At one point in the conversation, Iacovazzi spoke of the nonunion goods which were
received at the plant, and Hoffman said to him that the International did not insist
that employers sever connections with nonunion jobbers or manufacturers, adding
that employees in many unionized plants work on goods received from nonunion
establishments.12
The next contact between the International and the Respondent occurred in the
latter part of the next month, January 1964, the delay having been caused by the
holiday season and the fact that the International's attorneys were considering
whether the Respondent was bound by a successor clause in the contract which had'
existed between the International and Dresses, Inc.
On January 18, 1964, the International held a meeting. Two more employees
signed cards authorizing it to represent them. One of those employees, John Langen-
doerfer, participated at that meeting in the formation of a committee to deal with
management, but he never served on the committee after the meeting and he soon
became active in the formation of the Association and later became its president.
His testimony concerning his attendance at the meeting reflects adversely upon his
credibility and is set out in a footnote.13
On the next workday, Monday, January 20, Supervisor Kelly, the floorlady, spoke
with one of her subordinates, Mary Brinkman. Kelly approached Brinkman and
said- "So you went to the meeting?" Brinkman responded in the affirmative. Kelly
then said: "Well it won't do you any good because if the union gets in, they'll close
down." 14
On Janaury 22, Hoffman, Ferraro, and the employees who had been named to
a committee on January 18, excluding Langendoerfer, sought to meet with Plant
Manager Michael LaBruno. They were unsuccessful, however, because they went
to the plant after working hours and LaBruno was not there. They decided to see
LaBruno at lunchtime the next day.
During the late morning of January 23, Langendoerfer took the initial step to.
form the Association. The record contains a sheet of paper on which 32 employees,
a majority, signed their names to reflect their interest in the formation of the Asso-
ciation. Langendoerfer solicited the signatures. The paper bears a date as follows.
12Iacovazzi testified that he asked Hoffman, "Why don't you get us a good union
jobber," adding that if Hoffman do so "there wouldn't be no shutdown . . . we could
switch right over and go into union work."
19 Langendoerfer accepted membership on the International's committee and he nominated
another person for membership on it. In an affidavit which he executed a month later,
he said: "Sometime [after January 18] I decided that I did not want to support the
[International]. It seemed just like a Carpenter's Union I once belonged to-you pay
money in and get nothing out." The affidavit also recited that "Sometime" after Jan-
uary 18, Langendoerfer "decided to form an employees association. . . Langendoer-
fer's testimony differs He testified to several reasons for having attended the Janu-
ary 18 meeting and having signed the authorization card: (1) Ferraro suggested to him
that his signing a card would afford protection in the event of a discharge for having
attended the meeting ; ( 2) a belief that he could not attend the meeting unless he signed
the card; and (3) he "wanted to find out what the meeting was about and think things
over for" himself. In elaboration, however, Langendoerfer testified that his mind had
been made up in favor of the Association, that he "knew how many [employees] was
attending" the meetings which he conducted for the Association, and that his basic pur-
pose in attending the International's meeting was the ascertain how many employees
would attend it. This elaboration is partly, if not entirely, false. There had been no
meetings of the Association, nor of employees seeking to form it.
14 The findings concerning this conversation are based upon the testimony of Brink-
man, a witness for the General Counsel On the other hand, Kelly's version of the con-
versation differs. On direct examination, she testified that she told Brinkman that she
did not think that Brinkman could belong to the International because Brinkman's job
was that of floorgirl, and that, in speaking of a possible closure, she said to Brinkman
that if the International "came in, they would have to close for a week or so until they got
union work " On cross-examination, however; Kelly testified that she could not recall
to whom she said that there might be a temporary closure "if the place went union"
and that she could not recall whether her remark was volunteered or made in response
to a question. Upon being asked whether she had said to an employee that the length
of a closure would be "about a week" or until the plant "got union work," she answered,
"I don't remember what I said." I am satisfied that Brinkman's version of the conversa-
tion is accurate.
LAURA JAYNE, INC. 1349
"Dec. 6 end." The numeral "63" was made by pencil. The remainder of the date
is in ink. As will appear, the paper was not circulated for signatures during Decem-
ber 1963. There is reliable testimony by witnesses for the General Counsel that
on January 23, during working hours, Langendoerfer solicited signatures to a paper
which related to the formation of an association. In addition, Brinkman testified
that she did not work on January 23, that on the next day she asked Langendoerfer
for information about a paper which had been circulated and an association which
was to be formed, and that Langendoerfer refused to discuss the matter. Turning
to Langendoerfer's testimony, as president of the Association he testified that he
circulated the paper during December, prior to the 7th day of that month-the 7th
being the date of a Christmas party for the employees-that all signatures were
obtained by him during a single day, and that the Association was functioning and
had selected a bargaining committee before the end of December. Upon being
confronted with his affidavit, which is discussed in footnote 13, supra, and which
reflects that Langendoerfer's activity on behalf of the Association began after he
attended an International meeting on January 18, he testified that his recollection
as a witness differed from his recollection when he executed the affidavit. The
question whether the paper was circulated in early December or late January is
resolved in favor of the latter date partly because two signatures on the paper are
those of employees who were hired during January, one on January 6 and the other
on January 13. Obviously, the paper was not circulated before January 13. More-
over, Luella Bachota, who testified for both the Respondent and the International,
testified for the latter that she first saw the paper on January 23 and that she signed
on the next day, and Gertrude Martin, a witness for the Respondent, testified that
she fixed the date of her signing by reference to an illness of her son in January
which kept her from work for about 3 weeks and that she thought that she signed
after returning to work.
My determination that the paper was not circulated until January 23 necessitates
a recitation of certain testimony by witnesses for the Respondent whose credibility
is adversely affected by their testimony concerning the dates that they signed the paper
Wanda Lupyak, Beverly Gregory, and Beatrice Lintner testified that they signed the
paper in early December before the Christmas party on the 7th. Gloria Cox testified
that she was unsure of the date that she signed, but that she believed it was before
the party was held Florence Perry testified that she signed during early December,
and Florence Hubbard, who signed and who later became the Association' s chair-
lady, testified that the Association was formed in November or December. The 32
signatures on the paper appear in a full column on the lefthand side and one-fourth
of a column on the opposite side. The signature of the employee who was hired on
January 13, Olive Cooper, appears in the full column above the signatures of Lintner,
Hubbard, and Perry. Cox and Gregory signed in the partial column on the right.
There is an issue concerning the places at which employees signed. As we have
seen, witnesses for the General Counsel testified that Langendoerfer circulated a paper
inside the plant during working hours.15 On the other hand, Langendoerfer testified
that he obtained some signatures inside the plant during nonworking hours and other
signatures outside the plant. Langendoerfer testified that he could recall having solic-
ited the signatures of only two employees during working hours, but he changed this
testimony to say that the two solicitations occurred during nonworking hours. The
testimony of Cox, Gregory, Lintner, Lupyak, and Perry concerning the places and
times that they signed is consistent with Langendoerfer's testimony. The testimony
of Martin and Bachota is inconsistent, however. Martin, a witness for the Respond-
ent, testified that, as best she could recall, someone, likely Langendoerfer, solicited her
signature as she entered the plant late for work. Bachota, who was a witness for
both the Respondent and the International , testified that on January 23, when she was
at her sewing machine, Langendoerfer asked her to sign a paper for an association
and that she refused. On the next day she was called to the office where Plant Man-
ager LaBruno spoke with her about a business matter. Langendoerfer was working
in the office at the time. During Bachota's conversation with LaBruno, he asked
whether she had been forced to sign her card for the International. She answered
in the negative, adding that she hoped that he would not discharge her for having
signed it and that she would join the Association. As she prepared to leave the office,
Langendoerfer asked whether she wanted to sign the paper. She answered affirma-
15 Langendoerfer testified that he did not circulate any other similar paper.
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tively, and she and Langendoerfer stepped into a hall where she signed 16, I find that
the Respondent was aware of Langendoerfer's activities within the plant.17
During the early afternoon of January 23, Hoffman, Ferraro, and some of the
members of the employees' committee called upon LaBruno. Hoffman asserted that
the International possessed majority status and requested recognition He also
offered to submit the International's signed cards to an impartial person, such as the
mayor or a judge. LaBruno refused to grant recognition and said that the plant
would be closed before the Respondent would deal with the International. LaBruno
spoke of contacting the plant's owner, and Ferraro left his telephone number with
LaBruno in the event that LaBruno should want to call him.ls
Shortly after the close of the meeting with LaBruno, Supervisor Kelly said to some
employees that if the plant should be organized by the International, it would be
closed 19
Later on January 23 LaBruno telephoned Scalachi. Thereafter LaBruno telephoned
Ferraro and asserted that Ferraro had threatened employees in order to obtain signa-
tures to cards and that the Respondent wanted an election. Ferraro denied having
threatened anyone. The Respondent's contention that employees signed cards because
of threats or other reasons which nullify the signatures is discussed hereinafter in a
resolution of the International's majority status
On January 24, Florence Zielinski, an alleged supervisor whose status is discussed
hereinafter, along with Langendoerfer and four other employees, signed a form to
have the name of the Association registered with the Commonwealth as a nonprofit
corporation. On January 28 the form was filed. The services of a local attorney
were obtained in connection with the matter, but he soon withdrew because of a lack
of experience in labor relations.
On January 29 the International filed its first charge. On the same day the Asso-
ciation held a meeting. Zielinski attended. On February 3 a second attorney, with
whom Langendoerfer had dealt, mailed to Langendoerfer proposed articles of Asso-
ciation and advised, enter alia, that. (1) The articles be signed by employees who
wished to join the Association, and (2) certain other organizational steps be taken
before Langendoerfer requested the Respondent to bargain On February 4, Langen-
doerfer and a number of employees met at a local hotel, but signatures to the articles
of Association were not obtained Within a few days, Langendoerfer and several
employees met with Scalachi and LaBruno. Langendoerfer sought to negotiate a con-
tract, but Scalachi refused. Langendoerfer's affidavit says that the meeting with
Scalachi and LaBruno took place "[a]bout a week or ten days" before execution of
18Bachota testified for both the Respondent and the International Upon each oc-
casion that she was on the stand, she testified concerning a conversation with LaBruno.
As a witness for the Respondent, she fixed the date of the conversation as the last week
in November As a witness for the International, she fixed the date as January 24 be-
cause on that day her husband had an automobile accident and she told him that on the
same day she had signed "the association paper" Counsel for the Respondent stated
that Bachota's testimony involved a single conversation with LaBruno.
17 Most of the 32 signatures appear to have been obtained in 1 day, and Langendoerfer
testified that he solicited the signatures of all female employees It is a reasonable in-
ference, which I draw, that management must have observed his solicitations in the plant
and must have known his purpose.
is These findings are based upon the testimony of witnesses for the General Counsel.
There is no dispute that Hoffman offered to submit the International's cards to an im-
partial person. LaBruno who testified that he had heard of the Association before
January 23 and that he doubted that the International possessed majority status, did not
agree to submit the question of majority status to an impartial local person. In connec-
tion with testimony for the General Counsel that LaBruno expressed disinterest in whether
the International possessed such status, LaBruno testified that he could recall, but was
"pretty sure" that he did not say to Hoffman: "I don't care whether you have a majority
or not " On the subject of a threatened closure of the plant, LaBruno testified that he
spoke of a "temporary shutdown" during the time that the Respondent would seek con-
tracts with union jobbers
19 Yurgovsky and Edna Williams so testified for the General Counsel On the other
hand, Kelly, whose unpersuasive testimony concerning a conversation with lirinkni,ui is
set out in footnote 14, denied that she made the remark attributed to her by Yurgoisky
and Williams. Three additional persons testified for the respondent on this issue They
are Cox, Gregory, and Perry, all of whom gave erroneous testimony concerning the sign-
ing of the paper on January 23. Cox testified that she did not hear Kelly make the
remark attributed to Kelly Gregory and Perry testified that they did not hear the reniaik
and that they may not have been in Kelly's presence at the time.
LAURA JAYNE, INC. 1351
the affidavit on February 18 and that Scalachi rejected a request for recognition , saying
"that he couldn 't talk while this charge [filed by the International ] was pending." As
a witness, Langendoerfer testified that he thought the meeting occurred by February 17
and that, the employees not having signed the articles, one reason given by Scalachi
for refusing to bargain was that the Association could not prove that it possessed
majority status . LaBruno testified that Langendoerfer and the employees who accom-
panied him to the meeting indicated that "they were forming their own association,"
that they showed "a dummy contract" to Scalachi , and that Scalachi refused to bar-
gain because Langendoerfer and his associates , having only "about 16 or 17 names,"
could not prove majority status.
On or before March 2, Langendoerfer signed, and obtained six other signatures to,
a statement to the International wherein the signers asked that their authorization
cards not he counted because they had "changed [their] minds ." On March 2, he
mailed the statement to the International . He testified that the statement was prepared
at the direction of the Association 's attorney so that it could be signed by employees
who had changed their minds about representation by the International.
During early April, the articles of Association were signed by 40 employees At
one point in Langendoerfei 's testimony , he asserted that all but a few of the signatures
were obtained at a meeting in a local hotel . At another point, he testified that a large
number of signatures were obtained outside the plant instead of at the hotel . Zielin-
ski, an alleged supervisor , was among the signers . Subsequently , the Respondent
and the Association entered into a written contract dated April 10. Scalachi and
LaBruno signed on behalf of the Respondent . Langendoerfer and Agnes Weidner,
as officers of the Association , signed along with five members of a negotiating com-
mittee. To an undisclosed extent the contract is similar to one between Laura
Fashions , Scalachi 's other plant which he testified is "non-union," and the unaffiliated
organization which represents the employees there The contract was prepared by
the Association 's attorney .20 LaBruno , consistent with his testimony that he was not
authorized by the Respondent to bargain with any labor organization although he is
the Respondent 's secretary and the manager of the plant , testified that the contract
was handed to him by the Association 's representatives and that he took the contract
to Scalachi at Laura Fashions where, a few days later , Scalachi signed it. On the
other hand , Langendoerfer testified that earlier a proposed contract had been shown
to LaBruno and that LaBruno had disapproved certain provisions therein . A trier of
fact wonders about the extent and genuineness of the negotiations . The contract
covers all employees except supervisors . It is for a 3-year-period subject to a right
reserved by the Association to renegotiate wage rates for the final year The rates
for the first 2 years are in three categories : ( 1) hourly paid workers are to be paid
the minimum wage prescribed by law; 21 (2) pressers are to be paid "according to
the schedule of rates for the vrious [sic] operations as determined by the Company
and the" Association ; and (3 ) other classifications of piece-rate workers are to be
paid "according to the schedule or rates for the various operations as determined by
the Company and the [Association ] together with a percentage of 21 percent after
such employee has earned the minimum hourly wage rate."
The contract does not contain a provision requiring employees to become mem-
bers of the Association . On April 10, however , Hubbard, the Association 's chair-
lady, posted two or three notices relating to membership . One notice was destroyed
by LaBruno , as described hereinafter , and someone else destroyed the remainder, so
that their contents must be determined from the testimony . On April 13, Hoffman
and Ferraro visited the plant and saw one of the notices. Hoffman copied it and
retained the copy. It reads:
Notice
Honesdale Dress Ass.
All employees now working for Laura Jayne, Inc. must sign up within thirty
days since the employer has signed a contract with the Association.
Chairlady Florence Hubbard.
Hoffman called the notice to LaBruno's attention and the latter removed it from the
place at which it had been posted. After a brief discussion , LaBruno destroyed the
notice in the presence of Hoffman and Ferraro . The other notice or notices were
20 Not the attorney who represented the Association at the hearing.
21 Some hourly paid workers were receiving , and at the time of the hearing still received,
more than the minimum wage.
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
destroyed upon undisclosed dates. LaBruno testified that he could not recall the
wording of the notice. The testimony of other witnesses for the Respondent, which
contradicts that of Hoffman and Ferraro, is set out in the footnote.22 The testimony
of additional witnesses for the General Counsel is also set out in a footnote.23 I am
persuaded by Hoffman's credibility, plus the fact that LaBruno destroyed one of the
notices, that the notices were not mere requests of employees to join the Association.
I credit Hoffman's testimony and find accordingly.
On or about April 24, Yurgovsky and Elsie Carroll talked with Scalachi, who hap-
pened to be in the plant that day, and with LaBruno. They went to the office because
of an uncertainty concerning one of the notices which Hubbard had posted, and the
General Counsel contends that Scalachi's remarks to them reflect a requirement by
the Respondent that employees join the Association. Carroll was not a witness and
Yurgovsky's testimony concerning the conversation is so unclear that I cannot recon-
struct it. It is clear, however, that Scalachi said something about a majority, that
he did not say that Yurgovsky and Carroll would be discharged if they did not join
the Association, and that the two employees left the office believing that they would
not be discharged for a refusal to join.24 Insofar as appears, the notices were not
enforced Prior to the posting, 12 adherents of the International had failed to join
the Association by signing the articles of Association. There is no evidence that any
one of the 12 ever joined the Association or was discharged for a failure to join.
D. Interference, restraint, and coercion
I find that the Respondent violated Section 8(a)(1) by the following conduct:
(1) Scalachi's and Iacovazzi's statements to prospective employees that the plant
would be nonunion, and the statement by one of those men or by LaBruno on Sep-
tember 14 that the plant would be closed if the International should become the
employees' representative; (2) Supervisor Kelly's statement to employees that per-
sons attending a meeting of the International would be discharged and that the plant
would be closed if it were organized by the International; (3) Kelly's remark to
Brinkman, "So you went to the [International's] meeting?" and her statement that
"it won't do you any good because if the union gets in, they'll close down"; (4)
LaBruno's inquiry of Bachota whether she had been forced to sign a card for the
International; and (5) LaBruno's threat on January 23 in the presence of employees
that the plant would be closed before the Respondent would deal with the
International.
22 Although the notices were posted on the date the contract bears, Hubbard testified
that the notices contained no reference to the contract. She testified also that she could
not recall the exact wording, but that "[i]t was a notice to the employees that they be-
they were requested to join the association within thirty days " Zielinski testified that
the notices requested "everyone" to join the Association within 30 days if they so desired.
Lintner and Cox testified that the notices requested employees to join within 30 days,
and Cox testified also that she could not recall whether there was a reference to the
contract. Lupyak, Supervisor Kelly, Perry, and Gregory testified that the notices re-
quested employees to join Hansen testified that the notices asked "employees to join
the association if they felt they could" and that there was no reference to the contract.
Martin testified that the notices were "sort of a request, an invitation "
22 Yurgovsky testified that, as she recalled, the notices said that all employees must
sign with the Association within 30 days. Missavage testified that one notice said that
"Any girls of the Laura Jayne factory has thirty days to sign the Association [sic] and
the new girls would have sixty days to sign the contract of the Association " Urash
testified that one notice recited that "the old employees of Laura Jayne have 30 days
to sign contract. New employees have sixty."
24 Scalachi testified that he said to Yurgovsky that she "would not be hurt as far as her
job was concerned and as far as I was concerned . But if thirty girls decide to stop work-
ing because three or four will not sign up with them , now I am on a spot . If thirty of
the girls walk outside and picket me and force these other girls to join , I can't run a
shop with three or four girls That's the only thing we have to worry about Until
it happens, let's not worry about it. . . I never said I would fire them. I said they
would be protected at all costs. In the event these girls went on strike, a majority of
the girls , to force them to sign, then we would sit down and discuss it. There is such a
thing as five girls in the shop being ILG [members of the Association] and the rest not
being. It makes no difference to me "
LAURA JAYNE , INC. 1353
E. The refusal to bargain collectively
1. The appropriate unit and the International's majority status
There is no dispute, and I find, that all production and maintenance employees at
the Respondent's plant, excluding all other employees and supervisors within the
meaning of the Act, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
On December 4, 1963, there were at least 42 employees within the unit. The
Respondent would add Grace Shaffer, an occasional employee who worked as a
presser when her services were needed, but who did not work on December 4. The
General Counsel does not oppose. She will be added. The Respondent also would
add Zielinski, whose alleged supervisory status is discussed hereinafter. The Gen-
eral Counsel and the International oppose, contending that Zielinski is a supervisor
within the meaning of the Act. In view of my determinations concerning her here-
inafter, she will be added. Therefore, the number in the unit on December 4, the
date of the first refusal to bargain, was 44. On January 23, 1964, there were at least
44 employees in the unit. The sole question is whether Zielinski should be added to
make the number 45. For reasons which will appear, she will be added.
Prior to December 4, the International possessed 25 authorization cards which
employees within the unit had signed during the 2 months next preceding. The 25
employees constitute a majority of the 44 employees in the unit on December 4.
Between December 5 and January 18, inclusive, four additional employees signed
cards. I count three of them in determining the International's majority status on
January 23. 1 need not count the card which was signed by Langendoerfer because
the International's majority status is clear.25 On January 23, the International rep-
resented at least 28 of the 45 employees in the unit, a majority.
We have seen that on March 2 Langendoerfer mailed to the International a state-
ment, signed by seven employees, in which they asked that their cards not be counted
because they had "changed [their] minds." Assuming arguendo that the revocations
of the seven cards were not motivated by the unfair labor practices which occurred
before March 2, nevertheless the revocations can have no retroactive effect.2°
The Respondent asserts that the International did not possess majority status on
December 4 and January 23 because there was considerable dissatisfaction with the
International when the plant was operated by Dresses, Inc., and the International
represented the employees. This evidence need not be detailed, although it may be
said that the dissatisfaction may have been more with Dresses, Inc , because of that
employer's actions with respect to wage rates and its failure to meet its obligation to
give a paid holiday. The short answer to the Respondent's contention is that, how-
ever much dissatisfaction with the International there may have been at Dresses, Inc.,
and however much the employees were willing to work in a nonunion shop when the
Respondent began operations, the General Counsel and the International do not rely
upon any card which was signed while an employee worked for Dresses, Inc. After
the Respondent began operations, the International conducted an organizational cam-
paign anew and, whatever dissatisfaction employees may have had in the past, a
majority once more designated the International to represent them.
The Respondent also asserts that various signatures to cards were obtained by
threats and other conduct of a nature to nullify the signatures. Iacovazzi testified
that LaBruno reported to him that Ferraro "was trying to organize the shop and
going from house to house telling the girls if they didn't sign or failed to sign, they
would be automatically out of a job when [the International] took over the shop."
Iacovazzi testified further that he made a trip to the plant to investigate LaBruno's
report and that he talked with only one employee, Zielinski, who did not sign a card.
Z Although Langendoerfer signed the card with an intention to have the International
represent him, and not because he sought to learn the International's strength relative
to that of the Association, the facts remain that he failed to serve on the International's
committee to which he was selected and he also indicated by other conduct that as of
January 23 he did not wish to be represented by the International I do not pass on
the question whether, by January 23, Langendoerfer effectively withdrew his designation
of the International to represent him.
2' As the Board said in Henry Spen & Company, Inc, 150 NLRB 138, "The fact that
the employees may have subsequently revoked the Union's authority to act in their be-
half can have no effect on the need for a bargaining order in this case, since, at the time
of its request for recognition, the Union validly represented a majority of the employees "
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
His testimony that Zielinski reported to him that she had been threatened by Fer-
raro is not supported by Zielinski, who testified for the Respondent, nor by Zielinski's
version of her conversation with Ferraro. I am satisfied, as I have said before, that
Iacovazzi is unworthy of belief. Next, we consider Scalachi's testimony. He testified
that Gloria Wilcox, who did not sign a card, told him that she had been "pressured"
to sign. Wilcox was not a witness and, if she did express a conclusion to Scalachi, she
did not testify to the facts upon which the conclusion was based. Scalachi testified
further that LaBruno reported to him that employees had entered LaBruno's office
"and cried," saying "that they were being forced to sign cards." However, LaBruno
testified that he discussed with Scalachi the reports of only three employees, Nolan,
Bachota, and Lintner. We turn to the facts concerning those three employees.
La Bruno testified that Nolan came to him and said that Ferraro had threatened
that if she did not sign a card she would be discharged. According to LaBruno,
Nolan began to cry in his presence and "was very upset and shaking." On the
other hand, Nolan testified for the Respondent that Ferraro and Petutsky spoke to
her in the presence of her husband, that she signed a card after Ferraro told her, that
she would not lose her job if she were to sign and that "even if Mr LaBruno got
mad at [her] and wanted to lay [her] off for no reason at all, he just could not."
Nolan testified also that she cried as she reported this "pressure" to LaBruno. Fer-
raro testified credibly that Nolan, before signing the card, asked what she should do
in the event she should sign the card and thereafter be discharged, to which Ferraro
replied that if she should be discharged because of having signed the card, the Inter-
national would assist her because the discharge would be a violation of the Act. The
next of the three employees is Bachota. LaBruno testified that Bachota, who had
signed a card on November 14, came to him during the latter part of December and
said that Ferraro had told her that she would be discharged if she did not sign it.
A portion of Bachota's testimony for the Respondent and the International is recited
above in footnote 16 and accompanying text She testified that Ferraro and Petutsky
visited her, that she expressed fear that she would be discharged if she were to sign,
that they assured her that she would not be discharged, that they said that it was
"up to" her whether to sign, and that "they did not force" her to sign. She testified
further that, fearing the loss of her job after the Association had been formed, she
told LaBruno that she had signed the card and that she would join the Association
too. Ferraro and Petutsky credibly testified that they did not threaten any employ-
ees. The last of the three employees is Lintner She signed a card on November 6.
Sometime later she happened to talk with LaBruno in a restaurant According to
LaBruno, Lintner volunteered to him that she had been dissatisfied with the Inter-
national since she worked for Dresses, Inc , because of the International's failure to
represent the employees adequately, that when she signed the card Ferraro and
Petutsky were at her home, that they would not leave, that her son-in-law, very ill,
was asleep, and that she signed the card solely to get rid of Ferraro and Petutsky.
Lintner testified for the Respondent that she had been dissatisfied with the Inter-
national when she worked for Dresses, Inc , that her son-in-law underwent an opera-
tion during October 1963, that she guessed that during that month she told LaBruno
that she "wanted no part of the" International, that during November when Ferraro
and Petutsky called upon her, her son-in-law's condition was very serious, that she
told Ferraro and Petutsky that she did not want to be represented by the International,
but that "they just sat there" and would not leave, so she signed the card as a means
of getting them to leave. Later, according to Lintner, when she and her husband
saw LaBruno in the restaurant, her husband told LaBruno that she had signed the
card, whereupon she explained to LaBruno what had happened and said that she
had signed in order "to get rid of" Ferraro and Petutsky. Lintner's husband did not
testify. On the other hand, Ferraro's version of the conversation impressed me
favorably. He testified that Lintner is well acquainted with his brother, Tom, that
when Lintner answered the door she said, "You must be Tom's brother," to which
he replied affirmatively, that she invited Petutsky and him into the home, that they
talked in the kitchen, that she spoke of her son-in-laws' condition, that she was con-
cerned about that individual's condition and appeared to be upset, that Ferraro said
that he and Petutsky would leave, but Lintner said that they "might lust as well stay,"
that there was a discussion of the International, following which he asked Lintner to
sign a card, and that she signed with the remark that the employees "can use the
union again " Ferraro testified further that as he and Petutsky were leaving, they
went into the parlor where the son-in-law with his wife and children were watching
television, that Ferraro spoke to them for a moment, and left. As recited above, it
was not until March 2 that Langendoerfer mailed to the International a statement by
which Lintner and six other employees sought to withdraw their designations of the
LAURA JAYNE, INC. 1355
International to represent them. If she had been opposed to the International for a
period of months before she signed the card on November 6, and if she had signed
under the circumstances she described, she would not have waited until March 2 to
withdraw her designation.
The circumstances under which two more employees were asked to sign cards
must be discussed. Lupyak did not sign a card. LaBruno testified that Lupyak told
him that representatives of the International "had come to her house, and she had
chased them out." Lupyak's testimony for the Respondent is that Ferraro and Petut-
sky called upon her and told her of benefits to be gained by representation by the
International. She testified further that she recalled nothing else having been said.
She did not testify that she chased Ferraro and Petutsky out, nor did she testify that
she told LaBruno that she had done so. Perry, who signed a card on October 29
and who did not notify the International that she wished to withdraw it, testified for
the Respondent that Ferraro and Petutsky called upon her at her father's home, that
they insisted that she sign a card, that they said that employees who did not sign
"would be out of work," that they claimed to have obtained majority status for the
International, and that she signed in order "to get rid of them because" her father
was not well. Perry testified further that she did not discuss the incident with any-
one. On the other hand, Ferraro's testimony again has the ring of truth. He testified
that Perry introduced him to her father who was having supper, that the father and
Petutsky are relatives, that he and Petutsky quickly induced Perry to sign a card, and
that Perry told him that he need not explain about the benefits because she knew that
the employees needed the International. Thereafter, according to Ferraro, Petutsk}
conversed with Perry's father, following which he and Petutsky left. Ferraro cred-
ibly denied that he spoke of employees' being discharged if they did not sign cards.
In summary, I find that the International's majority status was not obtained by
threats or other improper conduct, and that on December 4, 1963, the International
was, and at all times thereafter has been, the exclusive representative of all employees
in the appropriate unit.
2. The refusal to bargain
The Respondent's contentions that a majority of the employees did not wish to be
represented by the International and that that labor organization did not obtain
majority status because of its alleged improper acts are without merit, as discussed
above. The Respondent's additional contention that it had a good-faith doubt con-
cerning such majority status because of reports made to it by employees has been
analyzed above and is unsupported by reliable evidence. Next, the factual recitation
above concerning the refusal by Iacovazzi to bargain on December 4 and the refusal
by LaBruno to bargain on January 23 establish that they were intent upon maintain-
ing a nonunion plant and that the Respondent was not interested in the Interna-
tional's offer to prove its majority status through the services of an impartial local
citizen. In particular, on December 4, Iacovazzi said that he had received assurances
from employees before the plant was reopened that it would be a nonunion plant,
and that he would close it rather than have it unionized. Moreover, "the totality of
the Respondent's conduct subsequent to the [International's] demand is indicative of
bad faith.. . Henry Spen & Company, Inc., 150 NLRB 138, footnote 26.
Finally, the Respondent asserts that it doubted the International's majority status
because of the existence of the Association. On January 23, LaBruno doubtless was
aware of Langendoerfer's effort to form the Association because during working
hours on that day Langendoerfer solicited signatures of employees to a paper, as
detailed above. On December 4, however, when Iacovazzi refused to bargain, the
movement to form the Association was not underway. Indeed, as late as January 18,
Langendoerfer, who was the most active employee in forming the Association, in
good faith signed a card designating the International to represent him. In short, the
record clearly establishes that the Respondent intended never to bargain with the
International under any circumstances, and I find that on December 4, 1963, and
continuously thereafter, the Respondent refused to bargain with the International in
violation of Section 8(a) (5) and (1) of the Act.
F. The violations of Section 8(a)(2)
We have seen above that during January 1964 the Respondent, after having become
obligated by the Act to bargain collectively with the International, permitted Langen-
doerfer to engage in activity within the plant during working hours which was intended
to bring about the creation of the Association as a means of undermining the Inter-
national's majority status. We have seen too that during April 1964, while the
Respondent continued to be obligated to bargain with the International, and while
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Association was not the employees' representative, the Respondent granted exclu-
sive recognition to the Association and entered into a contract with it 27 Moreover,
the record is abundantly clear that the Respondent's unfair labor practices prior to
April 1964, the month in which the Association was formally organized, constituted
encouragement to the employees to form the Association. I find that by the above
conduct the Respondent rendered unlawful assistance and support to the Association
in violation of Section 8(a) (2) and (1) of the Act.
The consolidated complaint, as amended at the hearing, alleges that the Respond-
ent, by reason of the activities of Zielinski, participated in the formation and affairs
of the Association. Zielinski signed (1) the paper which Langendoerfer circulated
on January 23 and thereafter, (2) the form to have the name of the Association reg-
istered as a nonprofit corporation, and (3) the articles of Association. In addition,
she attended meetings of the Association. The allegation respecting her conduct
brings us to the question whether the Respondent is responsible for it. The original
complaint alleged in a single paragraph that Scalachi, lacovazzi, LaBruno, Kelly, and
Zielinski are supervisors within the meaning of the Act, but the complaint con-
tained no allegation that Zielinski had engaged in invalid conduct. The Respondent,
in its answer, admitted the allegation concerning the supervisory status of the five
individuals. The consolidated complaint contained a like allegation with no mention
of an alleged unfair labor practice by Zielinski, and the Respondent's answer to the
consolidated complaint contains a like admission. During the presentation of the
General Counsel's case, evidence was received concerning the participation of various
persons, including Zielinski, in the formation of the Association. At the point in the
hearing when agreement was reached in large measure on the employees in the appro-
priate unit, counsel for the Respondent, who alone had signed both answers on behalf
of his client, asserted that information had just come to his attention that Zielinski
was not a supervisor within the meaning of the Act. Counsel for the Respondent
asked that he be permitted, during the presentation of the Respondent's case, to offer
evidence that Zielinski is not a supervisor. Subsequently, still before the General
Counsel had rested his case, he moved to amend the consolidated complaint to allege
inter alia unfair labor practices as recited in the opening sentence of this paragraph.
The motion was granted. At this point the General Counsel revised his position
concerning the remedy he was seeking and asserted that the Respondent should be
required to disestablish the Association.28 During the defense, rebuttal, and surre-
buttal stages of the hearing, evidence was received concerning Zielinski's status.
The Respondent's plant has three floors. Cutting operations, which are irregular
and occur largely at night, take place on the third floor. Three-fourths or more of
the employees work on the second floor under Kelly's supervision. Zielinski works
on the first floor in the finishing department with 10 or less employees, depending
upon the amount of work, who perform the final operations such as sewing buttons
on dresses, and cleaning, pressing, inspecting, and bagging the garments. Various
facts are advanced by the General Counsel and counsel for the International in sup-
port of their contention that Zielinski is a supervisor. First, the admissions in the
Respondent's answers. Second, Ferraro and Petutsky called upon Zielinski at her
home, seeking her signature to an authorization card She declined to sign, saying
that she was a forelady.29 Third, Supervisor Kelly testified that Zielinski does not
have various supervisory functions, but that Kelly did not know whether Zielinski
had authority to discipline employees. According to Kelly, "if anything is to be
said to the girls downstairs," Zielinski usually goes to Kelly and asks Kelly "to go
down and do it." Fourth, during the 1963 Christmas season, employees on the second
floor contributed to monetary collections for LaBruno, Kelly, and Langendoerfer.
Employees on the first floor contributed to collections for those three individuals and
Zielinski. The collection for Langendoerfer was because he had given assistance to
the female employees upon various occasions. The General Counsel and counsel for
n "[Al bargaining relationship once rightfully established must be permitted to exist
and function for a reasonable period in which it can be given a fair chance to succeed
Franks Bros Company v N L R B . 321 U.S 702, 705.
° At the opening of the hearing, the General Counsel stated that he was asking for a
limited remedy with respect to the Association Counsel for the International, however,
expressly refused to join in the General Counsel's position
° The findings concerning this conversation are based upon Ferraro's testimony On
the other hand, Zielinski's version of the conversation is that she declined to sign the card
because she had been a member of the International and had become dissatisfied with
it, and that she did not speak of being a forelady I have been unable to credit Zielinski's
testimony as recited above, and I cannot credit it here
LAURA JAYNE, INC. 1357
the International argue that Zielinski gave no such assistance and that the collection
for her must have been because she was a supervisor as were LaBruno and Kelly.
This contention is weakened by Yurgovsky's testimony for the General Counsel that
there were collections on the second floor for various other persons whose names
Yurgovsky could not recall. Fifth, Zielinski is the highest hourly paid employee in
the finishing departent, earning $1.55. Lupyak's rate is $1.45. The lowest paid
employee there earns $1.25. On the other hand, the pressers, who work near Zielin-
ski are compensated at piece rates and their earnings exceed those of Zielinski when
they have sufficient work for a 40-hour week. Sixth, Zielinski telephones part-time
employees to ask them to come to work when their services are needed. Zielinski
acknowledged having done so, but she insisted that in each instance she was directed
to do so by LaBruno. The record is clear that she confers with him when he is in
the plant. She maintained her insistence, however, despite evidence that LaBruno
usually does not arrive at the plant in the mornings until an hour or more after the
start of work. According to Zielinski, if LaBruno is not at the plant, she reaches him
by telephone. With respect to whether Zielinski tells employees to leave the plant
when there is no work for them, again she testified that she acts only upon instruc-
tions given to her by LaBruno upon each occasion. LaBruno testified that there are
occasions when employees in the finishing department come to work but find that
there is no work for them that day, that the occasions are very rare that he is not
in the plant when "they are sent home," and that the "pressers, if they want to go,
they take off." There are other employees besides pressers in the finishing depart-
ment, however, and it appears that the pressers, who seldom do any other work and
who earn more than Zielinski for a 40-hour week, do not regard Zielinski as their
supervisor. Urash, a presser, so testified in effect, and she testified further that she
takes directions from Kelly. Zielinski never told Urash to leave the plant because
of a lack of work, but Urash reports to Zielinski when she has completed all assigned
work and, if LaBruno is not in the plant, Zielinski tells Urash to take a "break until
work comes through again." I conclude that Zielinski is a minor supervisor and that
she does perform certain management functions. Upon the authority of Sioux City
Brewing Company, 82 NLRB 1061, 1063, I hold that the Respondent is responsible
for her conduct in connection with the formation of the Association and that the
Respondent thereby interfered with the formation of the Association and contributed
support to it in violation of Section 8(a) (2) and (1).
G. The alleged violations of Section 8(a)(3)
The contract between the Respondent and the Association contains a provision
that the Respondent will check off the initiation fees and dues of all members of the
Association who authorize the Respondent in writing to do so. The consolidated
complaint, as amended at the hearing, alleges that the checkoff provision violated
Section 8(a) (3). That complaint, as amended, also alleges that the Respondent vio-
lated Section 8(a)(3) because it and the Association have maintained and given
effect to an agreement requiring employees to join the Association, and this allega-
tion is not founded in any provision of the written contract, but instead in the
notices which the Association posted to the effect that employees must join that
labor organization because a contract had been entered into between it and the
Respondent.
The first of the above allegations, that involving the voluntary checkoff, stands or
falls upon the disposition of the second allegation. If there was no invalid agree-
ment requiring membership in the Association, the voluntary checkoff did not violate
Section 8 (a)(3). Masters-Lake Success, Inc., 124 NLRB 580, 581. We have seen
that on April 10, the date of the contract between the Respondent and the Associa-
tion, Hubbard posted two or three notices for the Association to the effect that
employees were required to "sign up" within 30 days because the Respondent and
the Association had executed a contract. We have seen too that on April 13 LaBruno
destroyed one of the notices, but it is clear that another notice remained posted for
an indefinite time and that management was aware of it. On the other hand, there
is no evidence that anyone joined the Association as a consequence of the notices,
or refused to join and was disciplined therefor; indeed, Yurgovsky testified for the
General Counsel that, as a result of a conversation which she and Carroll had with
Scalachi on April 24, those two employees were satisfied that they would not be
discharged for refusing to join the Association. However much the Association may
have intended that the notices coerce employees into joining it, the Association is not
charged with having committed unfair labor practices, and I do not believe that the
Respondent's failure to remove all the notices warrants a finding that the Respondent
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intended to enforce the notices . Absent enforcement or an intent to enforce, there
was no violation of Section 8(a) (3). Port Chester Electrical Products Corporation,
97 NLRB 354, 355.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices , I shall
recommend that it cease and desist therefrom and, that it take certain affirmative
action designed to effectuate the policies of the Act . I have found that the Interna-
tional represented a majority of the employees in the appropriate unit and that the
Respondent refused to bargain collectively . Accordingly , I shall recommend that
the Respondent , upon request , bargain collectively with the International as the exclu-
sive representative of the employees in the appropriate unit. I have found too that
the Respondent interfered with the formation of the Association and invalidly con-
tributed assistance and support to that labor organization . I shall recommend that
the Respondent cease and desist from contributing assistance and support to the
Association and that it withdraw and withhold all recognition from the Association
as the representative of employees for the purpose of dealing with the Respondent
concerning grievances , labor disputes , wages, rates of pay, hours of employment, or
conditions of work, unless and until the Association shall have been certified by the
Board as the exclusive representative of the Respondent 's employees . I shall recom-
mend also that the Respondent cease and desist from giving effect to its contract with
the Association , or to any modification , extension , supplement , or renewal thereof,
or to any superseding agreement , unless and until the Association shall have been
certified as stated . Nothing in these recommendations , however, shall be deemed
to require the Respondent to vary or abandon those wage, hour , seniority , or other
substantive features of its relations with its employees , established in performance
of the contract , or to prejudice the assertion by the employees of any rights they
may have under said contract.
The General Counsel and the International urge that the Respondent be required
to disestablish the Association . The applicable authorities begin with The Carpenter
Steel Company , 76 NLRB 670 , 673, where the Board held that disestablishment will
be ordered only when "an employer's unfair labor practices have been so extensive as
to constitute domination of the organization ." In urging disestablishment , the Gen-
eral Counsel , but not the International , relies primarily upon the activities of Zielin-
ski during the formative stages of the Association . Those activities need not be
repeated . Zielinski was by no means the leader of the organizational movement.
The leader was Langendoerfer , and there is no reason to believe that Zielinski was
more active than several other employees . Under Sioux City Biewing Company,
supra, activities such as those engaged in by Zielinski do "not amount to domination
. within the meaning of the Carpenter Steel decision." 82 NLRB 1061 , 1062. I
have found that during January 1964 , the Respondent permitted Langendoerfer to
engage in activity within the plant during working hours which was intended to bring
about the formation of the Association as a means of undermining the International's
majority status and enabling the Respondent to escape its obligations under the Act.
I have found too that the Association was formed because of the Respondent 's refusal
to bargain with the International and its other unfair labor practices prior to April
1964. It may be, as the General Counsel and the International contend, that the
Association has not been , and has never sought to be, an effective representative of
employees , and that instead it has been subservient and compliant . But a labor
organization 's willingness to be subservient to an employer is not necessarily to be
equated with domination by the employer , as I understand Board law. In my judg-
ment , the unfair labor practices in this case do not establish domination of the Asso-
ciation by the Respondent within the meaning of the line of cases of which Carpenter
Steel is the first.
In order to make effective the interdependent guarantees of Section 7 of the Act,
I shall recommend that the Respondent cease and desist from infringing in any man-
ner upon the rights guaranteed in said section. N .L.R.B. v. Express Publishing Co.,
31? U.S. 426; N. L.R.B. v . Entwistle Mfg . Co., 120 F. 2d 532 (C.A. 4).
U on the basis of the above findings of fact, and upon the entire record in the case,
I ma.-.e the following:
CONCLUSIONS OF LAW
1. The International and the Association are labor organizations within the
meaning of Section 2 (5) of the Act.
LAURA JAYNE, INC. 1359
2. All production and maintenance employees at the Respondent's plant, excluding
all other employees and supervisors within the meaning of the Act, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act.
3. On December 4, 1963, the International was, and at all times thereafter has
been, -the exclusive representative of all employees in such unit for the purposes of
collective bargaining.
4. By interfering with, restraining, and coercing employees in the exercise of their
rights under the Act, by interfering with the formation of the Association and con-
tributing support to it, and by refusing to bargain collectively with the International,
the Respondent has engaged in and is engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1), (2), and (5) and Section 2(6)
and (7) of the Act.
5. The allegations of the consolidated complaint, as amended, that the Respondent
violated Section 8(a)(3) have not been sustained.
RECOMMENDED ORDER
Upon the entire record in the case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, I hereby recommend that the Respondent, Laura
Jayne, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International Ladies' Garment Work-
ers Union, AFL-CIO, as the exclusive representative of all employees in the appro-
priate unit.
(b) Recognizing or in any manner dealing with Honesdale Dresses Association,
or any reorganization thereof or successor thereto, as a representative of any of the
Respondent's employees, as set forth in the section of this Decision entitled "The
Remedy."
(c) Contributing support to said Association and interfering with the formation
of any labor organization of its employees and contributing support to any such
organization.
(d) Interrogating and threatening employees concerning their union activities.
(e) In any other manner interfering with, restraining, or coercing employees in
the exercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act.
(a) Upon request, bargain collectively with International Ladies' Garment Work-
ers Union, AFL-CIO, as the exclusive representative of all employees in the appro-
priate unit and, if an understanding should be reached, embody such understanding
in a signed agreement.
(b) Withdraw and withhold all recognition from Honesdale Dresses Association
as the representative of employees, as set forth in the section of this Decision enti-
titled "The Remedy."
(c) Post at its place of business in Honesdale, Pennsylvania, copies of the attached
notice marked "Appendix." 30 Copies of said notice, to be furnished by the Regional
Director for Region 4, shall, after being duly signed by the Respondent's represent-
ative, be posted by it immediately upon receipt thereof, and be maintained by it for
at least 60 consecutive days thereafter, in conspicuous places, including all places
where notices to employees customarily are posted. Reasonable steps shall be taken
by the Respondent to ensure that said notices are not altered, defaced, or covered by
any material.
(d) Notify said Regional Director, in writing, within 20 days from the receipt
of this Decision, what steps the Respondent has taken to comply herewith 31
It is further recommended that the consolidated complaint be dismissed insofar
as it alleges that the Respondent violated Section 8(a) (3).
"If this Recommended Order should be adopted by the Board, the words "as ordered
by" shall be substituted for "as recommended by a Trial Examiner of" 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 of" shall be inserted immediately following "as ordered by."
31 If this Recommended Order should be 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."
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board we
are posting this notice to inform our employees of rights guaranteed to them by the
National Labor Relations Act.
WE WILL, upon request, bargain collectively with International Ladies' Gar-
ment Workers Union, AFL-CIO, as the exclusive representative of our produc-
tion and maintenance employees, and we will embody in a signed agreement any
understanding reached.
WE WILL NOT deal with or support Honesdale Dresses Association, nor give
effect to our contract with the Association, as long as the ILGWU is your repre-
sentative and the Association has not been certified by the Board.
WE WILL NOT threaten to close the plant because you select the ILGWU to
represent you.
WE WILL NOT interrogate you concerning your union activities.
WE WILL NOT violate any of the rights which you have under the National
Labor Relations Act to join a union and to engage in union activities, or not to
join a union and not to engage in such activities.
LAURA JAYNE, 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 material.
If the employees have any questions concerning this notice or whether the Employer
is complying with its provisions, they may communicate with the Board's Regional
Office, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia,
Pennsylvania, Telephone No. 735-2612.
Bauer Aluminum Company and United Steelworkers of America,
AFL-CIO. Cases Nos. 16-CA-2000 and 16-CA-2027. June 9,1965
DECISION AND ORDER
On December 10, 19641 Trial Examiner Thomas N. Kessel issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that Respondent had not engaged in other unfair
labor practices alleged in the complaint and recommended dismissal
of those allegations. Thereafter, the Respondent filed exceptions to
the Decision and a supporting brief.
The National Labor Relations Board has reviewed the rulings of
the Trial Examiner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed. The Board
has considered the Trial Examiner's Decision, the exceptions and brief,
152 NLRB No. 138.