Norlee Togs, Inc.

National Labor Relations Board - Board Decisions

Sep 8, 1960

129 N.L.R.B. 14 (N.L.R.B. 1960)

14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
come back here ." He identified no one of the "approximately 300" people he said
were there . Such evidence permits no finding as to (1) who, if anyone, threw any-
thing at his car; (2 ) who called out, "Don't come back here "; or (3) whether the
remark was directed at him, the occupant of the car he drove around , or someone
else in the crowd of 300 . In any event, in the 4 months of the strike it appears that
Long has been entering and leaving the plant without molestation.
March 11 : Floyd Rich , a mechanic at the same Lovick plant , has been passing
through the picket line night and morning without interference since the strike
began. On March 11, he said as a witness , while he was eating lunch in front of
the office four strikers , including John Hall, came up to him , and during their con-
versation Hall remarked that he "was afraid somebody is going to get hurt and I
hope it ain 't you." In view of the fact that Rich has not been in any way deterred
by pickets from working during the long strike and that there is no evidence of
any actual violence against anyone during this period , the Trial Examiner is unable
to attach any coercive significance to Hall 's remark , even if made.'
C. Conclusions
The incidents above described are trivial and scattered through a 4-month-long
strike . They form no pattern of violence or threat of violence . In the opinion
of the Trial Examiner they provide no reasonable ground for an inference that any
striking employee was or might have been deterred from returning to work, or that
any nonstriking employee was prevented from working.
The Trial Examiner concludes and finds that the evidence fails to sustain the allega-
tions of the complaint as to violations of Section 8(b)(1) (A) of the Act.
(Recommendations omitted from publication.]
I Hall 's credible account of this incident , which is undisputed , is as follows : "We
walked over to him . . . and we began to talk about the strike and I told him we wouldn't
ever get a raise as long as he continued to do our job-because he was a mechanic but
he was loading brick and so he told us he was sorry but the company had him employed
but he didn 't have any union to back him up, but if he refused to work they could just get
rid of him. He said he wished he could get a raise-by us getting a raise he could prob-
ably get a raise himself-he said that he wished the strike would hurry up and get over
with-I did tell him that I hoped anyone would not get hurt over the jobs . . . he said
he hoped they didn 't either."
Norlee Togs, Inc. and Children's Dress, Infants' Wear, House-
dress & Bathrobe Makers' Union , Local 91, International
Ladies' Garment Workers' Union , AFL-CIO. Case No. P-CA-
6902. September 8, 1960
DECISION AND ORDER
On May 4, 1960, Trial Examiner Arnold Ordman issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Rodgers and Jenkins].
129 NLRB No. 5.
NORLEE TOGS, INC. 15
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exrjelpfions and brief, and the entire record in
the case, and, except as noted below, hereby adopts the Trial Ex-
aminer's findings, conclusions, and recommendations.
In concluding that the Respondent had not violated Section
8 (a) (5) of the Act, the Trial Examiner found (1) that the Union did
not in fact represent a majority of the Respondent's employees, and
(2) assuming arguendo that the Union did represent a majority, the
Respondent had a good-faith doubt as to the majority status. Chair-
man Leedom and Member Jenkins agree with the Trial Examiner's
findings that the Respondent had a good-faith doubt of the Union's
majority status, and for this reason adopt the Trial Examiner's recom-
mendation of dismissal of the complaint. They find it unnecessary
to determine whether the Union had in fact majority status, and
accordingly do not adopt or pass upon the Trial Examiner's findings
in this regard. Member Rodgers is of the opinion that the record
fully supports all findings of the Trial Examiner and would adopt
the Intermediate Report in its entirety.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before the duly designated
Trial Examiner in New York, New York, on February 29 and March 1 and 2, 1960,
on an amended complaint issued by the General Counsel of the National Labor
Relations Board and on the answer thereto of Norlee Togs, Inc., herein called Re-
spondent. The issues litigated were: (1) whether Respondent refused to bargain
collectively with a union representing a majority of its employees in an appropriate
unit ; and (2) whether Respondent, through its vice president, Bella Dermer, inter-
rogated employees concerning their union-activities and and sympathies and promised
employees economic and other benefits if they abandoned a strike. Oral argument
was presented at the close of the hearing. No briefs were filed.
Upon the entire record, and from my observation of the witnesses, I hereby make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent is a New York corporation engaged in the manufacture, sale, and
distribution of children's clothing and related products at its place of business in
the Borough of Brooklyn, city and State of New York. During the year preceding
the issuance of the complaint, Respondent's output of products exceeded $425,000
in value, of which more than $300,000 worth was shipped in interstate commerce
directly to States other than the State of New York.
I find that Respondent is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat.
136), herein called the Act, and that the assertion of jurisdiction in this case is
proper.
II. THE LABOR ORGANIZATION INVOLVED
C
Children's Dress, Infants ' Wear , Housedress & Bathrobe Makers' Union, Local 91,
International Ladies' Garment Workers ' Union , AFL-CIO, herein called the Union,
is a labor organization within the meaning of Section 2 ( 5) of the Act.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
. A. General chronology of events; the positions of the parties
Late in August 1959 the Union started an organizational campaign among Re-
spondent's production and maintenance employees numbering 34 in all according
to General Counsel and 41 according to Respondent. On and before September 10,
1959, the Union obtained a total of 19 authorization cards in which employees
designated the Union as their gargaining representative, and on September 11 the
Union obtained 1 more, making a total of 20. On the morning of September 10,
these 19 or 20 employees did not report for work but attended a meeting at the union
hall and decided to go on strike. The strike began that afternoon and a picket line
was stationed in front of Respondent's plant. The rest of the employees remained
at work.
On September 11, the day following the strike, Raymond Orsini, union business
representative, told Aaron Dermer, president of Respondent, that the Union wanted
a contract. Orsini made no statement that the Union represented a majority of the
employees and Dermer did not ask whether it did. However, Orsini and Dermer
discussed the terms of a proposed contract but could not agree on a wage increase
which the Union sought. Further discussions failed to resolve the wage issue.
In the meantime, on September 16, 1959, a regular payday, a number of strikers
reported to the office of Respondent to collect their pay for work done prior to the
strike. On that day Respondent posted two notices in the office, one in English, the
other in Spanish, which recited benefits available for Norlee Togs, Inc., employees,
such as a 37th-hour workweek, 7 paid holidays, vacations with pay, disability bene-
fits, optional hospitalization, and yearly wage increases.' On September 18, 1959,
Respondent filed with the Board a petition for representation of its production and
maintenance employees which recited, inter alia, that it employed 35 such employees,
that the Union had made a claim for recognition on September 10, 1959, and re-
questing the Board to make a representation determination pursuant to its authority
under the Act.
Evidence was also adduced relating to two instances of alleged interrogation, both
occurring prior to the strike. The first instance occurred when Bella Dermer, vice
president of Respondent, mistook two union representatives for detectives and asked
an employee what the two individuals wanted of her. The second instance occurred
when Bella Dermer asked another employee in substance what a union man had
asked her. This evidence was elicited from Bella Dermer in the course of her testi-
mony as witness for Respondent; General Counsel offered no affirmative evidence
in this regard.
The recital in the foregoing paragraphs sets forth the evidence in broad outline.
General Counsel's position, in sum , is that on September 11, 1959, the Union
represented a majority of the employees in the appropriate unit, namely 20 out of
34; that Respondent, though not expressly advised of the Union's majority status,
knew or should have known that fact from the extent of the employees' participation
in the strike and in the picketing; and that Respondent entertained no real doubt
as to the Union's majority status but delayed the grant of recognition, balked in
contract negotiations, and ultimately filed a representation petition-all for the
purpose of gaining time within which to dissipate the Union's majority status
General Counsel asserts further that Respondent achieved its purpose in that
regard by its delay and by the promises of benefits set forth in the signs posted
in Respondent's office on Sepember 16. Citing Joy Silk Mills, Inc., 85 NLRB 1263,
enfd. in relevant part 185 F 2d 732 (C.A.D.C.), cert. denied 341 U.S. 914; and
Pyne Moulding Corporation, 110 NLRB 1700, enfd. 226 F. 2d 818 (C.A. 2), General
Counsel contends that by the foregoing conduct, Respondent refused to bargain
within the meaning of Section 8(a)(5) and (1) of the Act. General Counsel con-
tends further that Respondent also violated Section 8(a)(1) of the Act by Bella
Dermer's interrogation of employees prior to the strike.
Respondent takes issue with General Counsel in virtually every respect. In the
first place, Respondent denies that the Union represented a majority of the employees
in the appropriate unit. Moreover, Respondent contends that in any event it enter-
tained, and had good reason to entertain, a good-faith doubt of the Union's majority
status which justified its refusal to bargain and its resort to Board processes for
1 A copy of the signs was not put in evidence, but the several witnesses who testified
concerning the signs were In general agreement as to their content.
NORLEE TOGS, INC. 17
the resolution of the question concerning representation. Respondent argues
further that the promises of benefit allegedly contained in the signs posted in its
office were not promises of benefit at all but merely a statement of the terms and
conditions of employment which the employees were enjoying and had enjoyed prior
to the organizational campaign of the Union. Finally, Respondent contends that
the evidence concerning Bella Dermer's interrogation of employees represents at
most an isolated act of interrogation which does not warrant a finding of unfair
labor practice. Accordingly, Respondent asks that the amended complaint upon
which this proceeding is based be dismissed in its entirety.
The several issues here joined will now be considered in detail.
B. Analysis and conclusions
1. The appropriate unit and the question of majority status
It is undisputed and I find that all production and maintenance employees of Re-
spondent at its Brooklyn plant, exclusive of office and clerical employees, profes-
sional employees, guards, and supervisors, constitute an appropriate unit for purposes
of collective bargaining. As already indicated, General Counsel contends that
the unit so defined during the period here relevant consisted of 34 employees and
in support of this contention introduced into evidence a list of names prepared
by Respondent showing 34 employees who were employed as of September 9, 1959.
Respondent argues that this list is incomplete inasmuch as it omitted seven em-
ployees who were on Respondent's payroll but who, for one reason or another, were
not working that week. Of these seven empolyees, one has ceased working in
March, five in July, and one in August 1959. Three of the seven had not returned
to work at the time of the hearing, one returned on September 19, one on October
17, and one on November 7, 1959. The seventh employee, who had left her em-
ployment in July 1959, returned on October 3, 1959, but illness again interrupted
her employment. Respondent contends that these 7 employees should be included
in the appropriate unit making the total count 41. On the other hand, as of Septem-
ber 18, 1959, when Respondent filed its representation petition, it recited therein
that there were 35 employees in the appropriate unit. In view of this recital and
for purposes of this proceeding, I conclude and find that there was a maximum of
35 employees in the appropriate unit during the period here relevant.
General Counsel introduced into evidence union authorization cards signed by
20 of the employees listed as working for Respondents on September 9. All but
one of these were signed on or before September 10, 1959, and the last card was
signed on September 11, the day Orsini told Respondent's president that the Union
wanted a contract. Twenty or even nineteen, valid authorization cards would, of
course, establish the Union's majority status in the appropriate unit. Respondent,
however, disputes General Counsel's contention that all the authorization cards were
valid.
Many of Respondent's employees could not speak or write English and under-
stood Spanish only.2 General Counsel adduced testimony that at two meetings of
employees, on September 4 and 10, respectively, where most of the authorization
cards were signed, the content and significance of the authorization cards as desig-
nations of the Union for purposes of collective bargaining were carefully explained
to the employees both in English and Spanish before the signatures were affixed.
On the other hand, several of the employees who had signed such authorization cards
testified that they had done so on the basis of representations that the signing of
such a card was a condition precedent to their continued employment with
Respondent.
Thus, Mrs. Librado Martinez, who could not read English, testified that when she
arrived at Respondent's plant on the morning of September 10 she saw a group of
people in front of the plant, was told she could not go in, and was then driven
together with other employees to the union office. She further testified, "When
we arrived at the office, they told me I had to sign that card in order to work at the
place. I had to work, of course, so I signed " Mrs. Martinez subsequently did
picket duty and drew strike benefits from the Union. She testified, however, that
2 As the record discloses, much of the testimony in this hearing was adduced through
an interpreter
586439-61-vol. 129-3
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she was directed to picket by the "union people" who told her that unless she
complied with that directive, she would not be able to work.3
Maria Melendez testified that although she, too, had signed a union authorization
card at the September 10 meeting in the union office, she had likewise been informed
that "You better sign this card if you want to work." Maria Melendez, like Mrs.
Martinez, subsequently did picket duty and got strike benefits from the Union.
Emerita Torres testified that she signed an authorization card at her home on
September 10, when her cousin, Carmen Dolores Ortega, also employed by Re-
spondent, said to her, "Sign the card and you'll have a job again with Norlee, but
you have to sign the card." She testified further that she did not read the card
and did not know what it meant. Emerita Torres did picket duty for I day but on
the Monday following the strike called Bella Dermer, vice president of Respondent,
and told the latter that she wanted to return to work, and that she did not "want
the union" and did not understand "about this union."
Carmelita Ramos signed an authorization card at the union office on September
10. According to her testimony she was driven to the union office that morning
and on arrival there was told by union officials that she had to affix her signature
before she would be permitted to work. Thereafter she engaged in picket duty for
several days.
Ramon Alvarado was also driven to the union office on September 10. Ramon
Alvarado testified that there was a good deal of talking on that occasion both in
English and Spanish and that it was difficult for him to understand even the Spanish.
He was told, however, that he had to sign an authorization card in order to work for
Respondent and he did sign such a card. Alvarado engaged in picketing for about a
week thereafter and collected strike benefits.
As the foregoing recital suggests, there are substantial discrepancies in the
testimony given by General Counsel's witnesses on the one hand and by Respondent's
witnesses on the other concerning the events at the union office on the morning of
September 10. According to General Counsel's witnesses, a number of the em-
ployees were driven to the union office. Orsini joined the group later and explained
in detail in English the content and meaning of the authorization cards and Brunhilda
Garcia, an employee of Respondent, translated his remarks into Spanish. Barnes and
Kochian, union representatives, were not present. Orsini vigorously denied, as did
Brunhilda Garcia, that the employees were told they had to sign authorization cards
if they wanted to work for Respondent. On the other hand, as already stated, four
employees testified that they were given this ultimatum at this meeting and in some
instances identified Barnes and in one instance Brunhilda Garcia as having made
the statements.4
I believe it unnecessary to resolve all the discrepancies. The critical issue here,
and the only critical issue, is whether the employees who signed authorization cards
did so of their own volition and with full knowledge of their action, or whether they
did so under compulsion in the sense that they believed this was the only way they
could keep their jobs. The usual presumption that a person who signs a document
is aware of and adopts the contents of the document is of negligible significance
here where it is plain that many of the employees could not read or understand
English, the language in which the authorization cards were written. Moreover,
possibilities of misunderstanding were rife in this bilingual meeting hurriedly as-
sembled in the context of a strike situation. Finally, it is not important for present
purposes whether the employees were misinformed or merely misunderstood the
significance of their signing an authorization card. The sole issue is whether they
intended thereby freely and without compulsion to designate the Union as their
bargaining representative. On this narrow issue, I conclude and find that at least
five employees, specifically, Librado Martinez, Maria Melendez, Emerita Torres,
Carmelita Ramos, and Ramon Alvarado, did not freely designate the Union as their
bargaining representative but signed authorization cards because of their belief
that failure to do so would disqualify them from employment with Respondent.
Subtracting these 5 authorization cards from the 20 submitted into evidence by
I The evidence also disclosed that on February 9, 1960, 20 days before the hearing in
the instant case, Mrs. Martinez furnished an affidavit to a representative of the General
Counsel in which she stated under oath that she signed the authorization card "because
one of the union men present told me I would be out of a job if I didn 't sign "
4A fifth employee , Emerita Tories , testified that she was given this ultimatum at her
home.
NORLEE TOGS, INC. 19
General Counsel, I conclude and find that the remaining 15 did not constitute a
majority in the appropriate unit .5
2. Respondent's good-faith doubt as to majority status and the alleged promises
of benefit
If, as I have found, the Union did not represent a majority of the employees in
the appropriate unit, Respondent is absolved of any duty to bargain with the Union
and a finding of a Section 8(a)(5) violation is precluded. Assuming arguendo,
however, that the Union did represent a majority, it does not follow that Respondent
thereby engaged in a refusal to bargain. A majority showing based on signed
authorization cards does not, in and of itself, evoke a duty on the part of an
employer to recognize and bargain with a union. "Ordinarily, an employer faced
with a demand for recognition by a union which claims to represent a majority of
his employees may refuse to rely upon evidence of representation in the form of
authorization cards signed by employees and insist that the Union establish its
majority by means of a Board-conducted secret election." Pyne Moulding Corpora-
tion, supra at 1707. This is particularly true here where, on the Union's own ad-
mission, it never showed Respondent the signed authorization cards and, indeed,
never even told Respondent the Union represented a majority.
The foregoing principle, however, is predicated on the premise that the employer
in good faith doubts the Union's majority status Where the employer does not
entertain a good-faith doubt of majority status but refuses recognition in order "to
gain time and to take action to dissipate the Union's majority, the refusal is no
longer justifiable and constitutes a violation of the duty to bargain set forth in
Section 8(a) (5) of the Act " Joy Silk Mills v. N L.R.B., supra at 741. It is on
this ground that General Counsel pitches its case. Restated, General Counsel argues
that Respondent, though not expressly advised of the Union's majority status, knew
from the extent of the employees' participation in the strike and the concomitant
picketing that the Union did represent a majority and that Respondent's later tactics
including the notices of September 16 promising its employees benefits and the
filing of a representation petition were for the purpose of gaining time to dissipate
that status.
The record does not sustain General Counsel's position. Respondent was aware,
of course, that the Union wanted recognition and a contract. It was presumably
aware also that a majority of its employees did not report for work on September 10,
the day of the strike. Finally, it was aware of the picket lines. However, the fact
that a majority of employees do not report to work during a strike does not of itself
establish majority status. The failure or refusal of employees to cross a picket line
or work during a strike does not necessarily indicate that they subscribe to or
approve of the objectives of the strike. Indeed, in the instant case Respondent was
informed by several of its employees very shortly after the strike began that they
were not in sympathy with the strike or the Union.6 Under these circumstances
Respondent could properly doubt the majority status of the Union and I find that
it did entertain such a doubt. However, since the Union was nevertheless claiming
recognition and a contract, Respondent properly resorted to the Board by filing a
petition to resolve the question concerning representation.
General Counsel can likewise derive no comfort from its claim that Respondent,
by posting notices in its office on September 16 in English and Spanish listing certain
terms and conditions of employment, was seeking by promises of economic benefit
to induce the employees to abandon the strike and their adherence to the Union.
General Counsel argues that Respondent's utilization of this technique confirms his
contention that Respondent knew all along of the Union's majority status and was
merely seeking for time and an opportunity to dissipate that status. The contention
has a fatal defect. For quite apart from the findings I have already made that the
Union did not represent a majority of the employees in the appropriate unit and
that Respondent in any event entertained a good-faith doubt of the Union's majority
status, the evidence in the record preponderates heavily, and I find, that the alleged
benefits listed in the notices of September 16 merely enumerated terms and condi-
6 Even on General Counsel's hypothesis that the appropriate unit consisted of 34 em-
ployees, at least 18 would be required to establish majority status
6 Bella Dormer credibly testified that she had talked to or received telephone calls from
Vincenta Nieves, Emerita Torres, Librado Martinez, Maria Melendez, Francisco Soto, and
Luisa Velazquez So far as relevant to them, Vincenta Nieves and Emerita Torres sub-
stantially corroborated Bella Dermer's testimony.
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions of employment which were and had been in effect in Respondent's plant before
the strike and before the organizational campaign. Thus, Respondent had been
granting paid vacations and paid holidays,7 had provided disability coverage, had
made provision for an optional hospitalization plan, had operated on a 371A-hour
workweek, and had given periodic wage increases. Under these circumstances it
was not unlawful for Respondent to convey to the employees, as it did,8 the terms and
conditions of employment which had been in existence before the strike and which
would be in existence thereafter. Nothing in the Act precludes an employer from
truthfully setting forth, in countering an organizational campaign, the existing terms
and conditions of employment. Contrary to General Counsel's claim, I find that
neither a promise of benefit nor a threat of reprisal was embraced in the notices
of September 16, or in Respondent's conduct with respect to those notices.9
For the foregoing reasons, therefore, I find and conclude that General Counsel
has failed to sustain the allegations of the complaint herein alleging an unfair labor
practice within the meaning of Section 8(a) (5) of the Act.
3. The alleged interference, restraint, and coercion
The amended complaint herein also alleges that Respondent by its conduct violated
Section 8(a)(1) of the Act by interfering with, restraining, and coercing its em-
ployees in the rights guaranteed them in Section 7 of the Act to organize and
bargain collectively and to engage in other concerted activities for their mutual aid
and protection. I have already found that Respondent's alleged refusal to bargain
and the alleged promises of benefit contained in the September 16 notices infringed
no rights guaranteed its employees by the Act. The only issue remaining for dispo-
sition, therefore, is the allegation that Bella Dermer, by interrogating the employees
concerning their activities on behalf of and sympathy in the Union, violated Section
8(a)(1) of the Act.
As already stated, General Counsel introduced no evidence in this regard in the
presentation of his affirmative case. On cross-examination of Respondent's witness,
Bella Dermer, however, he elicited that some 10 days before the strike she had
asked employee Marion Meyers who certain men were because the men looked like
detectives. He also elicited that 3 days before the strike Bella Dermer asked
employee Artemia Nieves what a union man had asked her. There was no further
evidence as to this issue. Neither Marion Meyers nor Artemia Nieves appeared as
witnesses. On this showing, only the inquiry of Artemia Nieves could conceivably
be the basis of a finding of unlawful interrogation. Such an isolated inquiry, con-
sidered in the context of the instant case which is devoid of other unfair labor
practices and devoid also of any substantial showing of hostility to union organiza-
tion, falls short of interference and coercion and is not unlawful. Blue Flash Ex-
press, Inc., 109 NLRB 591, 593-594. Accordingly, I find that Respondent did not,
on the basis of the evidence here adduced, violate Section 8(a) (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 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 Section 8(a)(5) of the Act as alleged in the
amended complaint herein.
4. Respondent has not violated Section 8(a)(1) of the Act as alleged in the
amended complaint herein.
[Recommendations omitted from publication.]
7 A few instances where such payments were not made arose because the particular
employee failed to qualify as, for example, not working a full week on the week the
holiday occurred,
8 On September 16 Bella Dermer specifically directed the attention of several of the
employees to the notices and to the fact that Respondent paid vacation and holiday pay.
9 Brunhilda Garcia, an outspoken advocate of the Union among Respondent's employees,
tEistified that Bella Dermer made no promises or threats in connection with the Union
and that, on the contrary, Bella Dermer had called a meeting of the employees some time
before the strike and told the employees that "anything we wanted to do about the
union, go ahead and do it "