Makins Hats, Ltd.

National Labor Relations Board - Board Decisions

Sep 13, 2000

332 N.L.R.B. 19 (N.L.R.B. 2000)

MAKINS HATS, LTD 19
Makins Hats, LTD and Millinery Workers Union Lo-
cal 24–42H, New York-New Jersey Regional
Joint Board, UNITE, AFL–CIO. Case 2–CA–
29591
September 13, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On December 22, 1997, Administrative Law Judge D.
Barry Morris issued the attached decision. The General
Counsel filed exceptions and a supporting brief, the Re-
spondent filed cross-exceptions with a brief supporting
its cross-exceptions and opposing the General Counsel’s
exceptions. The General Counsel filed a brief in re-
sponse to the Respondent’s cross-exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.
Facts
The facts, as set forth more fully in the judge’s deci-
sion, are as follows.
In 1980, Marcia Akins, president of the Respondent
(Makins), signed a contract with the Union recognizing it
as the exclusive bargaining representative for its workers.
When that contract expired, the Respondent signed no
further contracts with the Union.
Akins testified that in 1983, she was being harassed by
a union representative. She called David Stein, the
president of the American Millinery Manufacturers As-
sociation (the Association). Stein told Akins to send him
a check for $300 and that by doing so she “would be a
member of the American Millinery Manufacturers Asso-
ciation, Inc. and that he would stop the harassment.” He
did not tell Akins that by joining the Association the Re-
spondent would be bound to the Association contracts
with the Union and Akins did not request that the Asso-
ciation represent Makins in collective bargaining. There
is no evidence that Makins signed any document with the
Association conferring any authority on it or memorializ-
ing any type of relationship. Finally, when the Associa-
tion wrote to the Union, on Makins’ behalf, it merely
complained that the Union was harassing Makins and
stated that “we represent Marcia Akins and Makins Hats,
Ltd., a member of the American Millinery Manufacturers
Association, Inc.” Thereafter, there was no further deal-
ing between Makins and the Association until the instant
dispute.
From the time Akins signed the 1980 contract until at
least 1996, the Respondent paid union rates, made con-
tributions to the union funds, and complied with the
terms of the contract with respect to those employees
who were members of the Union. There is additional
evidence that the Respondent participated in arbitrations
with representatives of contractual benefit funds over
disputes as to fund contributions pertaining to employees
acknowledged by the Respondent to be full members of
the Union. During various periods between 1983 and
1996, nonunion members performed unit work without
receiving contractual wages or benefits. A union repre-
sentative made frequent visits to the plant and there was
a shop steward on the premises.
Judge’s Findings
The judge concluded that in 1983, when the Respon-
dent remitted $300 to Stein, it had joined the Associa-
tion. The judge further found that a 1983 letter from the
Respondent’s attorney to the Union stating, inter alia,
that the Respondent was “a member of the American
Millinery Manufacturers Association, Inc.,” and the fact
that the Respondent continuously applied the terms of the
collective-bargaining agreement to the unit employees
who were union members was sufficient to establish that
the Respondent had made “objective manifestations of
intent to be bound by group action.”1 The judge con-
cluded that, based on Scandia Stucco Co., 319 NLRB
850, 856 (1995), the Respondent remained a member of
the Association from 1983 until February 1997 when the
Respondent’s attorney wrote to both the Union and the
Association affirmatively withdrawing its membership.
Notwithstanding its Association membership, the
judge concluded that the Respondent operated under a
“members-only” arrangement. Thus, the judge credited
the testimony of Akins, that the Respondent consistently
applied the contracts only to employees known to it as
members of the Union, and did not pay contractual bene-
fits or otherwise apply the contracts to unit employees
whom it believed did not belong to the Union. He fur-
ther found, based on testimony of both Akins and the
Union’s district director, Sandra Bermejo, that Bermejo
had visited the Respondent’s shop on a frequent and
regular basis since 1983 and that one of the employees
served as a union steward during much of that time. All
the unit employees worked in a large open room and
were visible to anyone who entered. Crediting Akins
over Bermejo, the judge found that Bermejo knew of the
presence of unit employees to whom the contract was not

1 Kroger Co., 148 NLRB 569, 573–574 (1964). See also Custom Col-
ors Contractors, 226 NLRB 851 (1976), enfd. 564 F.2d 190 (5th Cir.
1977).
332 NLRB No. 1
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20
being applied and acquiesced in that arrangement. The
judge further determined that because the Board will not
issue bargaining orders in “member-only” units, the
complaint should be dismissed. See, e.g., Don Menden-
hall, Inc., 194 NLRB 1109 (1972). We agree that the
complaint should be dismissed, but do so for the follow-
ing reasons.
Discussion
We disagree with the judge’s conclusion that the Re-
spondent manifested an intent to be bound by group bar-
gaining after its individual 1980 agreement expired, but
in doing so we rely on his finding that the Respondent
had never followed the Association agreements except
on a “members-only” basis. We find it unnecessary to
decide whether, in the absence of that evidence, the Re-
spondent’s conduct should be deemed to manifest such
an intent.
Having determined that the evidence fails to show that
the Respondent was part of the multiemployer Associa-
tion for bargaining purposes, we must then decide
whether the Respondent, as an individual employer,
nonetheless violated Section 8(a)(5) by withdrawing rec-
ognition from the Union and repudiating the Union-
Association agreement. We find that it did not. It is
clear from the evidence summarized in the fact statement
above, that the Respondent at all relevant times applied
the contract terms on a members-only basis and that the
Union must reasonably have been aware of this fact. The
Board will not issue a bargaining order under those cir-
cumstances. See Arthur Sarnow Candy Co., 306 NLRB
213 (1992); Goski Trucking Corp., 325 NLRB 1032
(1998).
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Susannah Z. Ringel, Esq., for the General Counsel.
Ira A. Sturm, Esq., of New York, New York, for the Respon-
dent.
Larry Magarik, Esq., of New York, New York, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in New York City on June 25 and July 21
and 22, 1997. Upon a charge filed on July 29, l996, an amended
complaint was issued on April 29, 1997, alleging that Makins
Hats Ltd. (Respondent) violated Section 8(a)(1) and (5) of the
National Labor Relations Act, (the Act). Respondent filed an
answer denying the commission of the alleged unfair labor
practices.
The parties were given full opportunity to participate, pro-
duce evidence, examine and cross-examine witnesses, argue
orally, and file briefs. Briefs were filed by all of the parties.
On the entire record of the case, including my observation of
the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation, with an office and
place of business in New York City, has been engaged in the
manufacture of men’s and women’s hats. Respondent has ad-
mitted, and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act. In
addition, it has been admitted, and I find, that Millinery Work-
ers Union Local 24–42H, New York-New Jersey Regional Joint
Board, UNITE, AFL–CIO (the Union) is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Millinery Manufacturers Association
On February 26, 1980, Marcia Akins, president of Respon-
dent, signed a contract with the Union recognizing it as the
exclusive bargaining agent for its workers, excluding book-
keepers, office clerical employees, designers, foremen, fore-
ladies, models, and sales personnel. Akins admitted that from
the time she signed this contract she has complied with the
contract’s provisions for union members.
The American Millinery Manufacturers Association (the As-
sociation) is an association of millinery shops, which negotiates
contracts with the Union on behalf of its members. David Stein
served as president of the Association in the 1980s and Elliott
Taradash has served as Association president since 1991. Akins
testified that during 1983 she was being harassed by the union
representative, Joseph Innocent. She testified that she called
Stein, who told her to send him a check for $300 and that she
“would be a member of the American Millinery Manufacturers
Association, Inc. and that he would stop the harassment.” Soon
thereafter Akins remitted $300 to Stein. On October 31, 1983,
Neil S. Goldstein, Esq., attorney for Respondent, wrote to the
Union complaining about the alleged harassment by Innocent.
The letter stated, “[W]e represent Marcia Akins and Makins
Hats Ltd., a member of the American Millinery Manufacturers
Association, Inc.” Akins testified that through 1995 Respon-
dent received a bill every month from the benefit funds. She
filled in the payroll amount for union members on the appropri-
ate form and then returned the form with the required payment.
In a letter dated August 24, 1992, to Sandra Bermejo, the union
representative, Akins stated that her employees were given their
vacation pay “in accordance with the union contract.”
In May 1996, Bermejo contacted Akins concerning vacation
money owed to unit employee, Altigracia Santos. Bermejo
testified that during their phone call Akins stated that she re-
fused to pay Santos the vacation check because the funds owed
money to Respondent. On June 14, 1996, Akins wrote to Ber-
mejo stating, “I am no longer a member of the Union, nor have
MAKINS HATS, LTD 21
I been for quite some time. I have no signed contract with you
nor have I ever signed any agreement with any manufacturers
association.” Akins admitted that prior to this letter she had
never informed the Union that she was withdrawing recognition
from the Union as representative of her employees. On July 16,
1996, Taradash wrote to Marilyn Levine, impartial chair for the
Millinery Industry, that “at no time did Makins Hats, Ltd. ever
advise the Association that it was withdrawing from the Asso-
ciation or refusing to have the Association bargaining for it in
these contract negotiations.” By letter dated February 6, 1997,
from Ira Sturm, Esq., counsel for Respondent, to the Associa-
tion and the Union, counsel stated:

In order to make it clear for the future to both the Association
and the Union and without admitting any current liability,
Makins Hats, Ltd. affirmatively withdraws membership in the
Association; withdraws from multi-employer bargaining and
withdraws any apparent authority of the Association to bar-
gain a renewal agreement obligating Makins Hats, Ltd.
2. Members-only arrangement
Akins testified that from the time she signed the collective-
bargaining agreement in 1980 she paid union rates, made con-
tributions to the funds, and complied with the terms of the con-
tract, only with respect to those employees who were members
of the Union. She further testified that Respondent employed
workers doing unit work who were not union members. Using
the Company’s payroll records, she identified 11 employees
who did unit work in 1983. Of these 11 employees, Akins testi-
fied that 3 were union members and 8 were not members of the
Union. The eight nonunion employees included Meldavsky,
Febregas, Etienne, Shirley Austin, Henry Austin, Palmer,
Faircloth, and Senior. Bermejo testified that Etienne and
Palmer were union members. There was no evidence or testi-
mony controverting Akins’ testimony that the six other em-
ployees were not members of the Union.
Again referring to the payroll records, Akins testified that in
1987 there were seven employees doing unit work. Five of the
employees were union members, and two of the employees,
Meldavsky and Serrano, were not members of the Union. With
respect to 1996, Akins identified five employees doing unit
work. One employee, Santos, the shop steward, was a union
member. Akins testified that the other four employees were not
union members. These included Jagernauth, a trimmer; Nina
Archeval, also a trimmer; Carrol, an operator; and Joe Ar-
cheval, a blocker. Canniel Wattley, presently a foreman, testi-
fied that in 1990 and 1991 he was a blocker and packer and was
not a member of the Union. He testified that during that time
Bermejo came to the plant to speak to the union members and
that he was standing approximately 4 feet away from Bermejo
and was visible to Bermejo.
B. Discussion and Conclusions
1. Millinery Manufacturers Association
The record is clear that in 1983 Respondent joined the Asso-
ciation. Thus, Akins testified that she was told by Stein to remit
$300 and that Respondent would then be a member of the As-
sociation. She subsequently made the $300 payment. On Octo-
ber 31, 1983, Respondent’s attorney wrote to the Union, stat-
ing, “[W]e represent Marsha Akins and Makins Hats, Ltd., a
member of the American Millinery Manufacturers Association,
Inc.” Akins testified that she continuously applied the terms of
the collective-bargaining agreement to the unit employees who
were union members. In a letter dated August 24, 1992, to Ber-
mejo, Akins stated that the employees were given their vacation
pay “in accordance with the Union contract.”
The Board looks to objective manifestations of intent to be
bound by group action in determining whether an employer is
governed by the collective bargaining of an association.
Kroger Co., 148 NLRB 569, 573–574 (1964). In Custom Col-
ors Contractors, 226 NLRB 851, 853 (1976), enfd. 564 F.2d
190 (5th Cir. 1977), the Board stated, “An employer who,
through a course of conduct or otherwise, signifies that it has
authorized the group to act in its behalf will be bound by that
apparent creation of authority.”
In Retail Associates, Inc., 120 NLRB 388, 395 (1958), the
Board set forth the rules governing withdrawal of an employer
or union from multiemployer bargaining. The party’s with-
drawal is only accomplished by adequate written notice given
prior to a contractually established date for contract modifica-
tion or the agreed-upon date for the beginning of multiemployer
negotiations. It was not until February 6, 1997, that Respon-
dent, through counsel, withdrew its membership in the Associa-
tion. Accordingly, I find that Respondent joined the Associa-
tion in 1983 and through its course of conduct continued to
remain a member of the Association until it withdrew in Febru-
ary 1997. See Scandia Stucco Co., 319 NLRB 850, 856 (1995).
Respondent maintains that even if it did join the Association,
at the time it joined, the Association was incorporated and
thereafter a new association was formed, which was no longer
incorporated. I credit Stein’s testimony that the nonincorpo-
rated Association was formed in 1982, before Respondent
joined in 1983. In addition, I find no legal support for the con-
tention that such a change in corporate status would affect an
association’s bargaining relationship with the Union or its
status as agent for its members. Respondent also contends that
the nature of the Association changed when it merged with
UNITE on July 1, 1995. Akins testified that she was aware of
the merger. No evidence was presented that Respondent ob-
jected to the Union concerning the merger. In addition, I credit
the testimony of Taradash that the union’s affiliation with
UNITE did not change the Association’s bargaining relation-
ship with the Union. Furthermore, in Sewell-Allen Big Star, 294
NLRB 312, 313 (1989), the Board stated that a party may not
attack, more than 6 months after the event, the “validity of the
merger process through a defense of a later withdrawal of rec-
ognition.”
2. Members-only arrangement
Akins testified that in practice the contract covered only unit
employees who were members of the Union. She testified that
in 1983, of 11 unit employees, 8 were not union members.
While Bermejo testified that Etienne, a trimmer, and Palmer, a
porter, were union members, there was no evidence or testi-
mony rebutting Akins’ testimony with respect to the other six
employees. I credit Akins’ testimony and find that during 1983,
of 11 employees doing unit work, 6 of the employees were not
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 22
union members. I also credit Akins’ testimony and find that in
1987, out of seven employees doing unit work, two were not
union members. Similarly, I credit Akins’ testimony and find
that in 1996, out of the five employees doing unit work, four of
them were not members of the Union.
While the Union contends that it was not aware of nonunion
members doing unit work, I believe that the record indicates
otherwise. I credit Akins’ testimony that in 1983 Innocent, the
union representative, spoke to Jonas, a trimmer doing unit
work, who was not a union member. In addition, I credit the
testimony of Wattley that in the early 1990s he was a blocker
and packer doing unit work, but was not a union member. I
credit his testimony that Bermejo came to the facility to speak
with the union members and Wattley was standing approxi-
mately 4 feet from Bermejo. The work area was small and
Bermejo testified that she made frequent visits to the plant. I
find it inconceivable that she did not see the nonunion members
working in the plant. In addition, Santos, who was the union
steward, certainly had to have been aware that nonunion mem-
bers were doing unit work.
As was stated in Don Mendenhall, Inc., 194 NLRB 1109
(1972), “It is evident from these facts that, although recognized
ostensibly as the exclusive bargaining agent for all of the Re-
spondent’s employees . . . . the Union in fact represented only
those who were its members.” In Manufacturing Woodworkers
Assn., 194 NLRB 1122, 1123 (1972), it was stated that the
“Board has held that a history of collective bargaining on a
‘members only’ basis does not provide an adequate basis for
representation nor the appropriateness of a bargaining unit such
as the statute contemplates.” The Board does not issue bargain-
ing orders in “members only” units. See Reebie Storage &
Moving Co., 313 NLRB 510 (1993), enfd. 44 F.3d 605 (7th Cir.
1995). See also Arthur Sarnow Candy Co., 306 NLRB 213,
216 (1992). Accordingly, I find that Respondent has not vio-
lated Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent has not violated the Act in the manner alleged
in the complaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended.1
ORDER
The complaint is dismissed.

1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.