Manchester Modes, Inc.

National Labor Relations Board - Board Decisions

Feb 18, 1955

111 N.L.R.B. 755 (N.L.R.B. 1955)

MANCHESTER MODES, INC. 755
peculiarly within the knowledge of" the contracting parties. The
Board did not permit the new contract negotiated in the interim to
be a bar for the reason, as I view it, that to do so would permit
parties to benefit from the nondisclosure of evidence peculiarly within
their knowledge, which, if disclosed, would negate the position ad-
vanced before and adopted by the Board.
Here, the Petitioner originally sought severance on the theory that
the employees were a craft. The Board, on the record, found they
did not constitute a true craft or a proper departmental group and
dismissed the petition on the basis of the American Potash decision?
Petitioner's motion to reopen did not allege that the Board, on the
record before it, erred in dismissing the petition. Rather Petitioner
urged that the record be reopened "to take further evidence concern-
ing the positive true craft identity of the unit herein sought," excus-
ing its failure to do so at the original hearing only on the ground that
in a proceeding 2 years earlier an election had been ordered in an
identical unit.
In these circumstances, I think the contract executed by the Em-
ployer and Intervenor while the motion to reopen was pending should
be held a bar to a present election. To do otherwise, it seems to me,
places a premium on piecemeal presentation of cases, and makes for
uncertainty and instability in collective-bargaining relationships. I
think it is most inequitable to penalize the Intervenor for the Peti-
tioner's failure to persuade the Board of the appropriateness of the
unit sought by evidence of which it was at all times cognizant. I be-
lieve the proper rule would be to hold that a petitioner in these cir-
cumstances must bear the risk of being denied an election by reason
of an intervening contract. A contrary rule will encourage motions
to reconsider and reopen, thereby unnecessarily prolonging the reso-
lution of representation proceedings.
7107 NLRB 1418 , issued March 1, 1954 . The original hearing in the present case was
held on March 24, 1954. The Petitioner , therefore , cannot complain that it was then
unaware of the necessity for producing evidence meeting the requirements for severance
set forth in Amerscan Potash
MANCHESTER MODES, INC., AND BRITAIN HALL, INC. and LOCAL 141,
INTERNATIONAL LADIES' GARMENT WORKERS UNION, AFL, PETI-
TIONER. Case No. 1-RC-3071. February 18, 1955
Second Supplemental Decision and Direction
On October 3, 1953, pursuant to a Supplemental Decision, Order,
and Direction of Second Election,' an election by secret ballot was
conducted under the direction and supervision of the Regional Direc-
I Not reported in printed volume of Board Decisions and Orders
111 NLRB No. 113.
344056-55-vol 111 49
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tor for the First Region, among the employees in the unit found ap-
propriate. Upon the completion of the election, a tally of ballots was
furnished the parties. The tally reveals that of approximately 640
eligible voters, 629 cast ballots, of which 239 were cast for the Peti-
tioner, 248 were against the Petitioner, 139 were challenged,2 and 2
were void.
The Regional Director investigated the challenges and, on Novem-
ber 9, 1953, issued and served upon the parties a report on challenged
ballots. In his report, the Regional Director recommended that the
challenges to 43 of the ballots be sustained, challenges to 21 of the
ballots be overruled, opened, and counted, but that such opening and
counting be deferred until the Board determined the voting eligibility
of those persons listed in category E and sick leave (B) as set forth
in the report, and that a hearing be held concerning the eligibility
status of the latter voters. The Petitioner filed timely exceptions to
certain portions of the Regional Director's report, but concurred in
his recommendation that a hearing be held. On December 21, 1953,
the Board adopted the Regional Director's recommendations, sustain-
ing 43 challenges, overruling 21, and deferred directing that the latter
be opened and counted until the Board passed upon the eligibility of
the voters listed in category E and sick leave (B). The Board also
ordered that a hearing be held as to the status of the 75 voters in these
two categories. The Board in its Order directed the hearing officer
to resolve credibility issues and to make findings of fact and recom-
mendations to the Board as to the disposition of the challenges. On
January 6, 1954, the Petitioner filed a motion requesting partial recon-
sideration of the aforesaid Order. Having further considered the
matter,,the Board, on January 21, 1954, decided to broaden the scope
of the hearing on challenges directed in its Order of December 28,
1953, to include the taking of evidence concerning the 26 challenged
voters as to whom issues were raised by Petitioner's exceptions.'
Thereafter, a hearing was held commencing on February 8, 1954,
and ending on March 25, 1954, before Robert S. Fuchs, hearing officer.
The Employer and the Petitioner appeared and participated. Full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues, was afforded the parties.
The hearing officer's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed.
On June 16, 1954, the hearing officer issued his report in which he
recommended that the challenges to 79 ballots be sustained and 11 be
2 Because of a duplication of one name , the tally incorrectly indicated the number of
challenged ballots as 140
3 These consisted of 19 of the ballots as to which the Regional Director had recom-
mended that the challenges be sustained, and 7 of the ballots as to which he had recom-
mended that the challenges be overruled.
MANCHESTER MODES, INC. 757
overruled.' On July 27, 1954, the Petitioner filed timely exceptions
to certain portions of the hearing officer's report, and, on August 13,
1954, by special leave of the Board, the Employer filed a reply brief.
The Board has considered the hearing officer's report, the exceptions
and briefs, and the entire record in this case and hereby adopts the
findings, conclusions, and recommendations of the hearing officer.
In the absence of any exceptions, we hereby adopt the hearing
officer's findings and recommendations and sustain the challenges to
the ballots of Margaret Hawkins, Rose Bironi, Anna Zanishka, Peter
Olivia, Georgianna Scudder, Mildred Grigas, and Madeline Poppel.
For the same reason, we likewise adopt his findings and recommenda-
tions and overrule the challenges to the ballots of Marion Wright,
Michael Angel, Donald Tryon, Angelina Di Thomas, Panfilo Berardi-
nelli, Helen Badrigian, Rose Ann Hawrylik, Jennie Liss, Marion
Frangione, Susie Manduke, and Anna Buccheri.
As to the 72 remaining challenged ballots, all cast by laid-off voters,
the hearing officer found, inter alga, that because of the economic, situa-
tion then existing at the New Britain plant where the layoffs occurred,
none of the laid-off workers had a reasonable expectation of reemploy-
ment within the foreseeable future. The Petitioner in its exceptions
does not dispute the hearing officer's factual findings but contends
that the Board should not follow his conclusions and recommendations
as to these voters,' urging that the evidence concerning the Employer's
economic situation should be evaluated in the light of several acts by
the Employer through which, Petitioner alleges, the Employer has
sought to deceive the Board by creating the appearance that the laid-
off voters had no reasonable expectancy of reemployment. In sup-
port of this contention, Petitioner asserts that the Employer: (a) On
September 18, 1953, the last workday before the eligibility period, sent
letters to each of the laid-off employees advising each that no work
was available and suggesting that the workers seek employment else-
where; (b) prepared an eligibility list including thereon only the
names of employees who actually worked during the eligibility period,
contrary to the Board's Decision and Direction of Election provision
that temporarily laid-off employees were eligible; and (c) "dated-
back" group insurance cancellations to show that the laid-off voters
4 At the hearing and in its brief to the hearing officer the Petitioner withdrew its excep-
tions to the Regional Director 's recommendations concerning 11 of the challenged ballots.
Accordingly, in the absence of any exceptions, we shall adopt the Regional Director's find-
ings and recommendations , and sustain the challenges to the ballots cast by Roger Negro,
Michelina Naples, Edmund Tarcini, Gregory Listini, Josephine Ruggeri, Lena Listini,
Frances Gagne , Susan Montione , Frank Rock , and Gertrude Abrams , and overrule the
challenge to the ballot of Clara Stowell
5 The Petitioner , however, concedes , and we agree , that the eligibility of all these voters
may be resolved solely by a determination of the broader question of whether or not the
laid-off employees had a reasonable expectancy of reemployment at the time of the
election.
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were permanently terminated prior to the eligibility period. The
Petitioner specifically contends that the hearing officer erred by not
according any weight whatever to evidence concerning the "wholesale"
letter and the back-dated insurance cancellations while on the other
hand basing his findings and recommendations primarily upon the
testimony of Miller, the Employer's vice president. The Petitioner
requests that the Board reverse the hearing officer's finding that Miller
was a credible witness, because of the alleged deceptive acts set forth
above.
Miller was in charge of coordination of production, purchases,
and sales at the New Britain women's suit manufacturing plant
where the layoffs occurred.' Normally, spring seasons were the heavi-
est in the women's suit manufacturing industry. Spring season pro-
duction at New Britain commenced around October or November and
continued until February. Spring sales began in November, reach-
ing a peak several weeks before Easter. During the 1952 spring
season, the Employer had gambled concerning its production. It
produced on an inventory basis with the expectation that future sales
would warrant the quantity made. This expectation was only partly
realized as the Employer assumed a loss on some items which were
sold as low as 50 percent below the cost of manufacture. In the fol-
lowing 1953 spring season the Employer also had "over-manu-
factured" with serious economic consequences. About 3 weeks before
Easter-usually the peak of the season-the women' s suit market col-
lapsed. During March, April, May, and June of that year, the Em-
ployer lost money on its operations.
In line with his past practice, Miller visited the major cities of the
South during the summer of 1953 for the purpose of obtaining infor-
mation that would assist the Employer in improving its merchan-
dise and evaluating its sales prospects for the approaching season.
He learned from the southern buyers that retail outlets were attempt-
ing to dispose of their stocks, and were not interested in purchasing
new lines of garments. His inquiry disclosed that the economic
situation in the women's suit industry was "very disastrous." There-
after, Miller visited New York City where his appraisal of market
conditions was confirmed. Upon his return about the first of Sep-
tember, Miller told Production Manager Valente to start "curtailing
right down the list because . . . it will have to be from day to day."
He testified that the Employer was utilizing too many employees for
the quantity of merchandise produced, and was "consistently in the
red." As a consequence, most of the 72 challenged voters in issue,
along with some others, were laid off during the first several weeks
in September. About September 17 or 18, Miller again instructed
e Manchester Modes, Inc , the other plant included in the two -plant unit , is engaged in
the manufacture of women 's coats and is not involved in this aspect of the proceeding.
MANCHESTER MODES, INC. 759
his subordinates to reduce production. In an effort to keep the plant
operating, the Employer began manufacturing a new line of leather
jackets and goods. As its basic crew had no knowledge or skills
related to the manufacture of the new line, the Employer discon-
tinued this production when the resulting loss became too great.
Miller further testified that, as of the early part of September 1953,
he could not foresee when the plant would resume quantity produc-
tion. On October 1, 1953, a few days before the election, the plant
was still operating on a "day-to-day" basis. Because of the outlook
then, the Employer did not expect to have satisfactory sales during
the normally good spring production months of January, February,
and March, and believed that it had an adequate work force to take
care of its existing and future requirements.
After the unprofitable spring 1953 experience, the Employer en-
deavored to utilize its stockpile of piece goods before purchasing
any new materials. Late in December 1953 or early in January 1954,
the Britain Hall, Inc., stockholders decided to liquidate the corpora-
tion because of the acute financial situation.' On January 8, 1954,
the necessary legal steps were taken to dissolve the corporation effec-
tive February 28, 1954. At the time of the hearing, the Employer was
selling out the remainder of its piece goods in the course of liquidating
its stock.
It is clear from the foregoing, and we find in agreement with the
hearing officer, that the 72 laid-off voters had no reasonable expect-
ancy of recall on the eligibility date.' The Petitioner urges that as
these voters in past years had been recalled after between season lay-
offs, they consequently had a reasonable expectation of recall for the
following 1954 spring season. We disagree with the logic of this rea-
soning. Although production requirements during past spring sea-
sons may have necessitated the recall of all laid-off employees, it does
not necessarily follow that all such workers would be recalled for sub-
sequent seasons. It is evident that the serious economic plight begin-
ning at the height of the 1953 spring season, coupled with the unusu-
ally bleak outlook as to future sales prevailing at the time of the elec-
tion, removed whatever expectancy of reemployment within the fore-
seeable future these voters might have had.
We shall now consider the other issues raised by the Petitioner's
exceptions. Concerning the "wholesale" dispatch of letters inform-
ing employees, in effect, that they were permanently laid off, the
hearing officer refused to credit Bruno, the junior executive who
sent the letters, a finding with which we agree. He concluded that
the letters were not sent with the knowledge and consent of the proper
management authorities, and assigned no evidentiary weight to them.
'' Sales had dropped from 50 to 70 percent of the volume of the last peak year.
8 Gerber Plastic Company, 110 NLRB 269.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to the cancelled group insurance policies, the hearing officer like-
wise accorded no probative weight to testimony concerning the can-
cellations either in establishing the permanency of the layoffs, or
supporting a finding that the cancelled policies were deliberately back-
dated. In this connection, he relied upon evidence that (a) the group
policy provides that a temporarily laid-off employee may be carried
on the active rolls at the Employer's option, but not beyond the end
of the month following the month of layoff ; and (b) the insurance
records were loosely handled by Guyette, the personnel clerk. With
respect to the contention that the Employer, contrary to the Board's
decision, supplied an eligibility list composed only of employees actu-
ally working during the eligibility period, the hearing officer found
that Guyette, upon instructions of Mosler, secretary-comptroller, had
prepared such a list and that Mosler did not discuss with her the
inclusion of laid-off employees or those on sick leave.
We have carefully considered the evidence relating to the dispatch
of the letters, the group insurance cancellations, and the preparation
of the eligibility list, and conclude that any inferences adverse to the
Employer's contention which might be drawn from such evidence are
not sufficient to overcome the uncontroverted testimony of Miller, a
major official of the Employer who had no personal connection with
the aforementioned matters, that the Employer's business outlook on
the critical date was very poor. We also ,find no merit in Petitioner's
contention that the Board should reject the hearing officer's finding
that Miller was a credible witness. A hearing officer, like a Trial
Examiner, has the advantage of seeing and hearing the witnesses and
we attach great weight to his credibility findings. We do not overrule
them except where the preponderance of all the relevant evidence
convinces us that he is incorrect.' Accordingly, we shall sustain the
challenges to the ballots cast by the 72 employees whose names appear
on Appendix A.
As the 12 ballots as to which the challenges are overruled herein
and the 14 ballots as to which the challenges are overruled in the
Board's Order of December 21, 1953, as modified by its Order of Jan-
uary 21, 1954, are determinative as to the outcome of the election, we
shall direct that these ballots be opened and counted.
[The Board directed that the Regional Director for the First Region
shall, pursuant to the Rules and Regulations of the Board, open and
count the ballots cast by Clara Stowell, Marion Wright, Michael
Angel, Donald Tryon, Angelina Di Thomas, Panfilo Berardinelli,
Helen Badrigian, Rose Ann Hawrylik, Jennie Liss, Marion Frangione,
Susie Manduke, Anna Buccheri, Vaildis Aldins, John Corbett, Charles
Harmin, Jack Hallam, Mary Caramia, Rose Faccinti, Marie Martel,
s Semet-Solvay Division, Alltied Chemical & Dye Corporation, 96 NLRB 1374 , 1375. See,
also, Whiting Corporation, 99 NLRB 117 , 120, and cases cited therein.
MARTINOLICH SHIP REPAIR CO. 761
C. Mazzarella, Connie Palozzalo, Jennie Palys, Eva Pedersen, Alice
Silva, Ethel Silva, and Concetta Vassallo in the election held herein,
and serve upon the parties to this proceeding a supplemental tally of
ballots, including therein the count of said ballots.]
Appendix A
Josephine Bellotti Louis J. Rio manna Elsaser
Julia Barone Margaret Russo Anna Kucharski
Rose Giattino Concertina Sales Satenig Garabedian
Erma Scarpa Michelina Szdlowski Monroe Frascona
Loretta Berard Mary Syzmanowski Mary Gionfriddo
Mary Cianci Pasqualina Smith Mary Anginito
Catherine Marijosius Angelo Veneziano Jennie Kayko
Vera Symolon Constance S. Veneziano Mary Kalinowski
Josephine Amenta Pauline Zisk Yvonne Moore
Joseph Borselle John Verillo Lillian Motto
Anna Bystry Anna Atkinson Pauline Majka
Connie Cappello Salvatore Annino Jessie Niedziwicki
Annamaria D'Agata Angelina Agnello Lucy Negrini
Laura Forgione Albert Baruffi Ann Pandolfi
Julia Ingenito Tinino Bissoni Angelina Orticari
Angelo Mendolfo Carmeline Berritta Jennie Rio
Carmela Mazzarella Josephine Bissone James Rio
Julia Mariotti Jianine Bianco Edmund Sargis
Anthony Manduke Maria Catala Cinda Russo
Patsy Motto Mary Caristia Lucy Suprynowicz
Francisco Moreno Rose Caldarone Anna Taricani
Dorothy Muraca Florence Diminno Lillian Volonino
Marie Pawlicki Angelina Di Luzio Enrico Vitelli
Francis A. Parise Ann Dorbuck Frances Vaccariello
MARTINOLICH SHIP REPAIR Co. and INTERNATIONAL ASSOCIATION OF
MACHINISTS, AFL, PETITIONER. Case No. 2O-RC-1610. February
101,1955
Supplemental Decision and Direction
Pursuant to a Decision and Direction of Election issued by the Board
herein on October 5, 1954,1 an election by secret ballot was conducted on
October 27, 1954, under the direction and supervision of the Regional
Director for the Twentieth Region, among the employees in the ap-
propriate unit. Upon the conclusion of the election, the parties were
furnished a tally of ballots which showed that of 21 votes cast in the
1 Not reported in printed volumes of Board Decisions and Orders.
111 NLRB No. 120.