Playtime Kiddie Wear, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1970

184 N.L.R.B. 373 (N.L.R.B. 1970)

PLAYTIME KIDDIE WEAR, INC. 373
Playtime Kiddie Wear, Inc., Deer Park Mfg. Co.,
Inc. and Local 107 , International Ladies Garment
Workers Union , AFL-CIO. Case 29-CA-1683
June 30, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND JENKINS
and considering also the absence of any evidence that the employees were
led to believe these changes were related to the union campaign , we do not
find sufficient evidence that the grant of the foregoing benefits was unlaw-
fully motivated
We correct the Trial Examiner 's inadvertent reference, in the first par of
sec B of his Decision , to February 15, 1969 , as the date on which
DiGirolamo began visiting the plant once a month It is clear from the
record that the correct date is February 15, 1968
TRIAL EXAMINER'S DECISION
On March 27, 1970, Trial Examiner Joseph I.
Nachman issued his Decision in the above -entitled
proceeding, finding that Respondents had engaged
in and were engaging in certain unfair labor prac-
tices within the meaning of the National Labor
Relations Act, as amended, and recommending that
they cease and desist therefrom and take certain af-
firmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, Respondents filed
exceptions to the Trial Examiner's Decision and a
supporting brief. -
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.
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 brief
and the entire record in the case, and except as
noted in the margin, hereby adopts the findings,
conclusions, and recommendations of the Trial Ex-
aminer.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recom-
mended Order of the Trial Examiner, as herein
modified, and hereby orders that Respondents,
Playtime Kiddie Wear, Inc., and Deer Park Mfg.
Co., Inc., their officers, agents, successors, and as-
signs, shall take the action set forth in the Trial Ex-
aminer's Recommended Order, with the following
modification:
Delete paragraph 1(a) of the Recommended
Order and renumber the remaining paragraphs ac-
cordingly.
' We do not adopt that portion of the Trial Examiner 's Decision which
finds that the Respondents violated Section 8(a)( 1) of the Act by (I)
restoring the 5-minute clean-up bell in late November or early December
1968, (2 ) instituting, at the same time, a 10-minute coffee break, and (3)
granting wage increases to certain of the unorganized employees between
late December 1968 and early 1969
The record establishes the existence of economic considerations which
reasonably justified the above-described actions In these circumstances,
184 NLRB No. 41
STATEMENT OF THE CASE
JOSEPH I. NACHMAN , Trial Examiner . This matter
tried before me at Brooklyn , New York , on January
5, 6, and 9 , 1970, with all parties present and
represented by counsel , involves a complaint' pur-
suant to Section 10(b) of the National Labor Rela-
tions Act, as amended ( herein the Act), alleging
that in the course of an organizational campaign by
Local 107, International Ladies Garment Workers
Union , AFL-CIO ( herein Local 107 or the Union),
Playtime Kiddie Wear , Inc., and Deer Park Mfg.
Co., Inc . ( herein Playtime and Deer Park , respec-
tively, and collectively called Respondent, and
which allegedly constitute a single integrated busi-
ness enterprise ), by - various acts , interfered with,
restrained , and coerced its employees in the exer-
cise of rights guaranteed by Section 7 of the Act.
For reasons hereafter stated , I find that Respondent
violated Section 8(a)(1) of the Act , and recom-
mended a remedial order.
At the trial the parties were afforded full oppor-
tunity to introduce relevant evidence , to examine
and cross-examine witnesses , to argue on the
record, and to submit briefs. Oral argument was
waived . A brief submitted by the General Counsel
has been duly considered.2 Upon the pleadings,
evidence , stipulations of counsel , and the entire
record in the case , including my observation of the
demeanor of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges , the answer admits, and I
find that Playtime and Deer Park are New York
corporations, engaged in the village of Deer Park,
New York, in the manufacture of children's
clothing, and that Playtime annually receives from
and ships to points and places outside the State of
New York, raw materials and finished products
valued in excess of $50,000. However, Respondents
deny the further averment in the complaint that
Playtime and Deer Park constitute a single in-
tegrated business enterprise. The uncontradicted
' Issued August 29 on a charge filed and served May 29 Unless other-
wise indicated, all dates are 1969
R Although counsel for Respondent stated at the hearing that he would
file a brief, and obtained an extension of time for that purpose, no such
brief has been received
427-835 0 - 74 - 25
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony on that issue shows that Harold Rose3 is
president of Playtime and vice president of Deer
Park; that Mortimer Cherin is vice president of
Playtime and president of Deer Park, there being
no other officers of either corporation; and the
stock in both corporations is owned in equal shares
by the two individuals mentioned. Cherin devotes
himself primarily to the purchasing of materials,
production, and costing, while Rose handles
primarily sales, finances, and office management. In
addition to sample makers, Playtime employs cut-
ters who cut materials to specified sizes and shapes.
The cut material is then turned over to Deer Park
who contracts for the necessary sewing operations
at various needle shops in the New York area.
Upon completion of the sewing operations, the gar-
ments are returned to Deer Park, where pressers,
drapers, and finishers employed by Deer Park put
the garments in condition for sale. The finished gar-
ments are returned to Playtime where they are
stored until packed for shipment in fulfillment of
orders obtained by Playtime; the work of storing,
packing, and shipping being done by employees of
Playtime. Playtime conducts these operations from
premises known as 699 and 721 Long Island
Avenue, while Deer Park's operations are in a por-
tion of the -building known as 699 Long Island
Avenue, separated from Playtime's operations by a
concrete wall with five openings at each end, which
are generally kept open to permit the free flow of
merchandise between the two operations. At
Playtime all decisions respecting labor relations are
made as a result of consultation between Rose and
Cherin. Although Rose initially claimed that mat-
ters of labor relations at Deer Park were deter-
mined by its manager of operations (at the time of
the events here material, one Paul Goldman), he
subsequently admitted that a decision with respect
to whether a union should be recognized or not
could only be made after he and Cherin had
discussed the matter.' On the basis of the foregoing
facts, applied in the light of the tests developed by
the Board for a "single employer," I find and con-
clude that Playtime and Deer Park constitute a sin-
gle integrated business enterprise administering a
common labor policy for the employees of said
Companies. See Radio and Television Broadcast
Technicians Local Union 1264 v. Broadcast Service
of Mobile, Inc., 380 U.S. 255, and the cases there
cited.
II. THE LABOR ORGANIZATION INVOLVED
Although the complaint does not allege that the
8 When called to testify, the witness identified himself as Harold Rose,
and he is so known to the employees . However , the parties stipulated that
his correct name is Harold G. Rosengarten.
4 My findings to this point are based on the uncontradicted testimony of
Rose Respondents sought to adduce testimony and made an offer of proof
tending to show that the two corporations operate at arms length as
separate entities, that each pay their employees from their separate bank
accounts ; that neither guarantees the credit of the other ; and that each
leases its own space by separate lease agreements , for whichhthey pay by
separate checks drawn on separate bank accounts All such testimony was
rejected as being irrelevant and immaterial to the issue.
Union is a labor organization, the evidence shows
that Local 107 has entered into a contract- with
Playtime covering the, wages, hours, and terms and
conditions of employment of a unit of cutters em-
ployed by Playtime. On the. basis of this evidence,
and the organizational activities of Local 107,
hereafter set forth, I find and conclude that Local
107 is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES ALLEGED
A. Background
On February 15, 1968, Playtime recognized and
entered into a collective-bargaining agreement with
Local 107 with respect to a unit composed of "all
employees of the cutting department, employed at
the Company's premises located at Long Island
Avenue, Deer Park, New York, including but not
limited to cutters, spreaders, graders, marker
makers and floor boys ... "5 for a term of 2 years.
The contract makes no reference to the subject of a
bonus to employees covered by, it. Union Agent
John DiGirolamo conducted the campaign in fall of
1967 which led to the organization of the, cutting
department employees, and after February 15,
1968, serviced the employees covered by the afore-
mentioned contract, visiting the premises on Long
Island Avenue at least once a month. Except for the
cutting department employees, all employees of
Playtime and Deer Park are unorganized.
B. Current Facts
The Organizational Campaign
As a result of a telephone call from a sample
maker at Playtime, Local 107 in early November
1968 began a campaign to organize all the unor-
ganized employees of both Playtime and Deer Park.
DiGirolamo was the principal union agent engaged
in this activity, visiting employees at their homes
where he obtained a number of authorization
cards.' No effort was made to keep the Union's ac-
tivity in that regard a secret. Paul Goldman, an ad-
mitted agent of Respondent,7 conceded that em-
ployee Muriel Reha discussed with him the fact that
union agents were visiting employees. -Although
Goldman claimed that these discussions with Reha
did not occur until "sometime in January 1969,"
and that he did not know DiGirolamo until the
S The unit description excludes "all other production and maintenance
employees, office clerical employees , guards, watchmen, professional em-
ployees, and all supervisors" as defined in the Act.
6 There is no evidence to indicate whether the number of cards obtained
by the Union approached a majority of the employees involved.
- r Goldman described himself as general manager in charge of production
at Deer Park , and quality control manager for Playtime . The evidence
leaves no room for doubt that Goldman was the highest authority of
Respondent at the plant with respect to its day-to-day operations , Rose and
Cherin spending their time at premises in New York City , visiting the plant
in Deer Park with such frequency as they deemed necessary.
PLAYTIME KIDDIE WEAR, INC. 375
latter part of January 1969, I do not credit his
testimony in that regard. I find it impossible to be-
lieve that in this small plant where total employ-
ment does not exceed 70, DiGirolamo could have
visited the plant at least once a month since
February 15, 1969, and Goldman, who admitted
that he saw DiGirolamo about the plant, would not
have known who he was and the reason for being
on the premises. I also find it impossible to believe
that with the union campaign being a subject of
discussion among the employees in the plant, as
employee Daddino testified it was, information of
that fact did not come to Goldman before January
1969. Accordingly, I find and conclude that Gold-
man was aware of the Union's organizational efforts
among its unorganized employees virtually from the
inception of the Union's campaign which began in
early November 1968.8 The Union's campaign was
continuing at the time of the hearing.
The General Counsel contends that during the
period from November 1968 through January
1969, Respondent engaged in a series of acts viola-
tive of Section 8(a)(1) of the Act. The evidence
with respect to these incidents will now be detailed.
1. Reinstitution of the warning bell and
establishment of the morning coffee break
For some years prior to October 1968, Playtime
employees who worked as sample makers received
a 10-minute coffee break at 2:30 p.m. each day, but
no coffee break during the morning hours. In addi-
tion a bell rang at 4:25 p.m., at which time these
employees were permitted to quit work so they
could wash up and leave the plant at 4:30 p.m.
Sometime in October, before the Union began its
campaign, the 4:25 p.m. bell was eliminated and
work continued until 4:30, with employees making
ready to leave on their own time. In late November
or early December, after the Union began its cam-
paign, the employees were told that an additional
coffee break running from 10 to 10:10 a.m., was
being granted, and that the 4:25 p.m. bell was being
restored. No reason was given the employees for
the additional coffee break or for the restoration of
the 4:25 p.m. bell.9
2. The wage increases
Employee Daddino had worked for Playtime as a
samplemaker for something over 8 years. At the
beginning of 1966, Daddino was receiving a weekly
salary of $60, which was increased to $65 as of the
week ending September 26, 1966; to $70 as of the
week ending May 31, 1967; and further increased
to $80 in January 1969, when all samplemakers
were increased to that figure. In addition, a sub-
stantial number of Deer Park employees were given
wage increases during November and December
1968 and January 1969.10
C. The Christmas Bonus
During the Christmas season of 1966 and 1967,
Playtime paid its cutter employees a Christmas
bonus, but no bonus was paid to the remaining em-
ployees of Playtime or to the employees of Deer
Park." The day before Christmas 1968, Respon-
dent gave a Christmas party which was attended by
all employees of Playtime and Deer Park who were
at work that day, as well as by Playtime President
Rose . During the party an office employee dressed
as Santa Claus announced that he was going to read
off a list of names , and that those persons called
should step up and receive an envelope containing
a gift. The names so called by "Santa Claus" were
the unorganized employees of Playtime and Deer
Park.12 After so distributing the envelopes "Santa
Claus" announced "Now I am going through the
cutting department," and with that he went through
a door leading to the street, and did not reappear.
Playtime President Rose was present during this en-
tire event, but made no comment. 13
A day or two after Christmas, Beltram , a cutter
employed at Playtime, complained to his union
representative about his failure to receive a bonus
in 1968, and the union agent thereupon conferred
with Rose regarding the matter. Rose admittedly
took the position that he was under no obligation to
pay a bonus to the cutters, and would not do so. In
the course of the discussion, when pressed for a
reason for not paying a bonus to the cutters, Rose
' That a trier of fact may find the contrary of the uncontradicted
testimony of a witness is settled See N LR B v Walton Manufacturing
Co, 369 U S 404, where the Supreme Court , quoting with approval from
the opinion of Judge Learned Hand writing for the Second Circuit in Dyer
v. MacDougall, 201 F 2d 265, 269, stated that the demeanor of a witness
"may satisfy the tribunal, not only that the witness' testimony is not true,
but that the truth is the opposite of his story, for the denial of one, who has
a motive to deny, may be uttered with such hesitation , discomfort, ar-
rogance or defiance , as to give assurance that he is fabricating , and that, if
he is, there is no alternative but to assume the truth of what he denies " 369
U.S. at 408
° The above findings are based on the testimony of employee Daddino
Plant Manager Goldman admitted the establishment of the morning coffee
break and the reinstitution of the 4 25 p in bell However , his reasons
therefor are not credited
10 The findings in this section are based on a stipulation of the parties and
Resps Exits 5 and 7
" Cutter Beltram, who started work at Playtime in February 1967,
testified that at Christmas of that year he received a bonus of $50, but that
other cutters who had been there longer received $100
" The envelopes so distributed contained a check which Respondent
calls a Christmas bonus . The method of computing the bonus is not dis-
closed by the evidence , nor does the evidence disclose the precise number
of employees who received such a bonus or the amount paid each It does
appear that the amount of the bonus paid employee Daddino was $10 46,
which indicates that it was computed by some kind of formula
" Rose admits his presence at the party , but denies that he knew of or
authorized the distribution of the envelopes by "Santa Claus ," or that he
heard the remark made by the latter about taking care of the cutters , claim-
ing that intoxicants were flowing freely, and that " half of us ( presumably
including himself] were pretty well loaded at that time " 1 do not credit his
testimony disclaiming knowledge of the event.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remarked, "Well, maybe I don't like the cutters
anymore. 1114
D. The Meeting With Employees
On January 17, and again on January 24, 1969,
all of the unorganized employees of Playtime and
Deer Park were notified by management to assem-
ble in the lunchroom during an approaching break
period. Certain statements made at these meetings
by management officials which the General Coun-
sel contends violated Section 8(a)(1) of the Act are
set separately for each meeting.
1. January 17 meeting
At this meeting Plant Manager Goldman stated
that it had come to his attention that the employees
were being visited at their homes by Union Agent
DiGirolamo, and this was fine with him if the em-
ployees wanted a union. One employee stated that
DiGirolamo came to her home that preceding even-
ing and that she had signed a union card. After ask-
ing what the card said and being told that she did
not know, Goldman stated that the paper she
signed could have been a commitment to pay $100
a week or a month. In the course of the meeting
Goldman also stated that the advent of the Union
could bring strikes, reduced work, loss of earnings,
possible plant closure, and in any event would not
make things better for the employees.15
2. The January 24 meeting
This meeting, like the previous one, was attended
by the unorganized employees of both Playtime and
Deer Park. When the approximately 30 employees
first assembled, no representative of management
was present. After employee Daddino asked the
purpose of the meeting, employee Marion Leo re-
marked it was to take a vote on whether the em-
ployees wanted the Union or not. When Daddino
announced, in a voice loud enough for all assem-
bled to hear, that she would not vote because such
a vote did not mean anything, Leo left the room
and returned with Company President Rose and
" This finding based on the testimony of Jesus Beltram and Union Agent
DiGirolamo Rose did not deny the quoted remark attributed to him
1' Upon learning of the January 17 meeting , the Union , on January 20,
1969, wrote Goldman that as the latter had assembled and addressed the
employees concerning their union activities , the Union wished equal time
to address the employees during working hours on the Company's
premises Respondent received this letter on January 22 and admittedly did
not reply to it
16 My findings with respect to the two meetings are based on the credited
testimony of employee Daddino, and in some instances the admissions by
Goldman Goldman admitted that at the January 17 meeting, he did tell the
employee who said she had signed a union card without reading it that the
card might have been a purchase order obligating her to the payment of
several hundred dollars He claimed , however, that the information that the
employee had signed a card was volunteered by the employee , and was not
in response to a question by him Goldman also admitted that at the Janua-
ry 24 meeting , the subject of the employees forming their own union and
selecting one of their own group to represent them was discussed, but
claimed that the suggestion came from one of the employees and not from
him, and in this regard Goldman is corroborated by Rose Additionally,
Plant Manager Goldman. After asking what the
problem was, and being told that the employees
"don't want to take a vote," Goldman told the as-
sembled group that if they wanted a union they
could have one, but suggested that they form their
own union and select one of their group to
represent them. After some further discussion re-
garding the mechanics of Goldman's suggestion,
but without any agreement thereon, the meeting
concluded without any vote being taken. The only
comment made by Rose at this meeting was that if
the employees wanted a union they could have one,
and that if anyone was interested in seeing the con-
tract he had with the Union representing the cut-
ters, he would be glad to show it to them.'
E. The Alleged Surveillance
After being informed of what transpired at the
meetings of January 17 and 24, Union Agent
DiGirolamo beginning on January 27 or 28, 1969,
and continuing for the next 4 days, stationed him-
self at lunchtime and the end of the workday, at the
plant entrance used by all Playtime and Deer Park
employees when they report for or leave work, for
the purpose of speaking with the employees. During
these 4 days, whenever DiGirolamo so appeared at
Respondent 's premises , Plant Manager Goldman
stationed himself outside the building near the em-
ployee entrance, in full view of all employees that
would pass, and stayed there for the entire period
that DiGirolamo remained at the premises.
DiGirolamo testified without contradiction that on
these occasions when he attempted to converse
with the employees as they came out of the build-
ing, some of them refused to talk with him. The
evidence also shows that on some of these occa-
sions , Goldman was not aware the DiGirolamo had
arrived outside the building, but was notified of that
fact and promptly moved to station himself outside
the employee entrance to the building. Goldman
admitted that at the times involved nothing con-
nected with the Company's business required him
to be at the employee entrance to the building, and
claimed that his presence there was motivated only
by curiosity.17
Goldman admitted that at one of the meetings he had with the employees
he was asked what would happen if they selected the Union to represent
them and demands were made to which Respondent would not agree, and
that he replied, "the possibility then was they would go out on strike, the
possibility was that they would lose time from work , that means they would
lose income , the Company would lose business and possibly lose accounts
because they didn't deliver and this may possibly cause a loss of some
jobs " Goldman also admitted that at these meetings he told the employees
that a union 's demand for hours and wages were dependent on the ability of
the Company to pay, and that if the demands were beyond its ability to pay,
it was possible the Company would have to close down To the extent that
the testimony of Goldman and Rose conflicts with that of Daddmo , I credit
the latter
11 As indicated above, I do not credit Goldman's testimony that he did
not know DiGirolamo until January 27, 1969, the first day the latter sta-
tioned himself outside the employee entrance, and that his purpose in going
to the employee entrance that day was to ascertain the identity of an ap-
parent stranger and the reason for his being there Neither do I credit Gold-
man's testimony that his presence at the employee entrance, as above in-
dicated , was dictated solely by his curiosity
PLAYTIME KIDDIE WEAR , INC. 377
F. Contentions and Conclusions
1. The violations of Section 8(a)(1)
I find and conclude that Respondent violated
Section 8(a)(1) of the Act in the following particu-
lars:
(a) By reestablishing the 4:25 p.m. bell, institut-
ing the morning coffee break, granting the wage in-
creases to the samplemakers employed by Playtime
and certain employees of Deer Park in late
December 1968 and early 1969, and the payment
of the Christmas bonus in 1968 to the noncutting
employees. Upon the entire record and in view of
the timing of these benefits, I am convinced, and
therefore find and conclude, that the benefits
referred to were granted as blandishments to
demonstrate to the employees that that selection of
union representation was not only unnecessary, but
unwise. Or, as the Supreme Court expressed it in
N.L.R.B. v. Exchange Parts Company, 375 U.S.
405, 409:
The danger inherent in well-timed increases in
benefits is the suggestion of a fist inside the
velvet glove. Employees are not likely to miss
the inference that the source of benefits now
conferred is also the source from which future
benefits must flow and which may dry up if it is
not obliged.
(b) The statements of Goldman made at his
meeting with employees on January 17 and 24 that
the advent of the Union would bring about strikes,
reduced work, loss of earnings, and possible plant
closure, as well as his suggestion that the employees
form their own union and select one of their group
to represent them . Although Goldman's remarks
about strikes, reduced volume of work, loss of
earnings , and plant closure were phrased in terms
that such events were possible, on consideration of
the entire record, and particularly Respondent's
union animus , I am convinced and accordingly find
and conclude "that the intended and understood
import of [Goldman's] message was not to predict
that unionization would inevitably cause the plant
to close but to threaten to throw employees out of
work regardless of the economic realities"
(N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575,
619), and hence constitute threats proscribed by
Section 8(a)(1) of the Act. In this connection, it
may be noted that Respondent offered no
testimony even tending to show that the dire con-
sequences referred to by Goldman had any basis in
fact. Cf. N.L.R.B. v. Gissel, supra at 618. That an
"'Me General Counsel contends that Respondent additionally violated
Section 8 (a)(1) of the Act by announcing, in February 1969, the formation
of a profit-sharing plan Respondent contends that the plan was formulated
and announced to the employees in the late summer of 1968, some 2 to 3
months before the Union's organizational campaign began , by posting a
notice thereof on the bulletin board located over the timeclock Although
employee Daddino testified that she never saw the notice on the bulletin
board and knew nothing of the plan until she was given a statement of her
interest therein sometime in February 1969, 1 find it a little strange that no
other employee was called by the General Counsel to refute the positive
employer 's suggestion to his employees that they
organize their own union constitutes the inter-
ference proscribed by Section 8(a)(1) is settled by
Board adjudication . Abex Corporation , 162 NLRB
328; Yankee Distributors , 152 NLRB 1018, 1024.
(c) Goldman 's conduct during the latter part of
January 1969, in stationing himself outside the em-
ployee entrance to Respondent 's premises when
DiGirolamo came to that entrance , which conduct I
find and conclude constitutes surveillance which is
proscribed by Section 8(a)(1) of the Act. As the
facts set forth above demonstrate , Goldman did not
go to the employee entrance for the purpose of at-
tending to any legitimate company activity . Indeed
he admits that his sole reason was curiosity; a
reason which I reject as specious . While Goldman
carried on this activity on company property, at a
place where he had every right to be , and was not
required to close his eyes to union activity taking
place in his direct line of vision , I am convinced
and therefore find and conclude that Goldman en-
gaged in the activity referred to with the intent and
purpose of demonstrating to employees that
management was watching their contacts with the
Union 's agent and to discourage such contact. That
Goldman 's conduct had the effect he intended is in-
dicated by DiGirolamo 's testimony that although
the employees talked freely to him in other circum-
stances, they indicated reluctance to do so while
Goldman was observing them . Accordingly, I find
and conclude that Goldman 's conduct constitutes
surveillance violative of Section 8(a)(1) of the Act.
J. W. Mortell Company, 168 NLRB 435; Certain-
Teed Products Corporation , 153 NLRB 495, 498,
507; cf. Atlanta Gas Light Co., 162 NLRB 436. See
also Tex Manufacturing Company, 180 NLRB 808.
Goldman's purpose , as above found , distinguished
the instant case from Salant & Salant , Incorporated,
92 NLRB 417, 446-447.18
2. The 8( a)(3) violation
The General Counsel conceded that Respondent
was under no contractual obligation to pay the cut-
ters a bonus at Christmas 1968. He further con-
cedes that the Christmas bonuses paid in prior
years to the cutters had not been paid under cir-
cumstances from which it might be appropriately
concluded that the bonus had by custom and prac-
tice become a part of the regular rate of pay.
Rather, the General Counsel contends that the
bonus was withheld from the cutters for the pur-
pose of demonstrating to the noncutting employees
testimony of Plant Manager Goldman that he posted the notice on the bul-
letin board sometime in September 1968, and that it was still on the bul-
letin board on the last day of the trial herein Accordingly, I find and con-
clude that the General Counsel failed to establish by a preponderance of
the evidence that the profit-sharing plan was not made known to the em-
ployees prior to the Union's campaign Additionally, it may be noted that
even if it were to be found that Respondent did announce a profit-sharing
plan under circumstances constituting a violation of section 8(a)( I ) of the
Act, such finding would add nothing to the scope of the order that will be
recommended
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whom the Union was then attempting to organize
that they could expect to lose benefits if they
selected union representation. Consideration of the
entire record convinces me, and I find and con-
clude, that Respondent withheld the 1968 Christ-
mas bonus from the cutters with the intent and pur-
pose asserted by the General Counsel. The state-
ment and conduct of "Santa Claus" at the Christ-
mas party about taking care of the cutters, all of
which Rose not only saw and heard, but remained
silent, and Rose's statement when the Union com-
plained about the failure to pay a bonus to the cut-
ters that perhaps he "didn't like the cutters any-
more," when considered in the light of Respon-
dent's union animus evidenced by its other unfair
labor practices herein found, in my opinion dictate
the conclusion which I have reached. Although
Rose denied that the decision to withhold the bonus
from the cutters was in any way motivated by the
fact that an organizational campaign was in
progress among the noncutting employees, and
claimed that his decision was predicated solely on
the fact that costs in the cutting department went
up and production fell during 1968, no company
records, which certainly exist, were introduced. In-
stead Respondent relies solely on Rose's uncor-
roborated testimony, which itself makes the defense
suspect. For, as the Supreme Court said in In-
terstate Circuit, Inc. v. United States, 306 U.S. 208,
226, "The production of weak evidence when
strong is available can lead only to the conclusion
that the strong would have been adverse."
As the withholding of the bonus from the cutters
constituted discrimination and had the natural and
foreseeable effect of discouraging membership in
the Union, said conduct violated Section 8(a)(3) of
the Act, and as it also constituted interference with,
and restraint and coercion of, both the cutting and
noncutting employees, it also violated Section
8(a)(1) of the Act. I so find.
Upon the foregoing findings of fact and the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. Playtime and Deer Park constitute a single in-
tegrated enterprise administering a common labor
policy and 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. By the conduct set forth in section III, C,
hereof, Respondent interfered with, restrained, and
coerced employees in the exercise of rights guaran-
teed them by Section 7 of the Act, and thereby has
engaged in and is engaging in unfair labor practices
proscribed by Section 8(a)(1) of the Act.
4. By denying a Christmas bonus to its cutters
'H With respect to remedy, the General Counsel urges that in addition to
the customary posting of notices in its plant , Respondent be required to
mail a copy of said notice to each employee at his or her last known ad-
for the purpose of demonstrating to noncutter em-
ployees that their adherence to the Union would
result in reduced benefits, all as found in section III,
C, hereof, Respondent discriminated against said
cutters in regard to their hire and tenure of employ-
ment and the terms and conditions thereof, to
discourage membership in the Union, and inter-
fered with, restrained, and coerced its employees in
the exercise of rights guaranteed by Section 7 of
the Act, and thereby has engaged in and is engaging
in unfair labor practices proscribed by Section
8(a)(3) and (1) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair
labor practices, I shall recommend that it be
required to cease and desist therefrom and take
certain affirmative action found necessary and
designed to effectuate the policies of the Act.
Having found that Respondent interfered with,
restrained, and coerced its employees in the exer-
cise of rights guaranteed by Section 7 of the Act, it
will be recommended that it be required to cease
and desist therefrom. Because of the nature and
character of the unfair labor practices found, which
go to the very heart of the Act, I shall recommend
that Respondent be required to cease and desist
from in any manner interfering with, restraining, or
coercing employees in the exercise of their Section
7 rights. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d
532 (C.A. 4); California Lingerie, Inc., 129 NLRB
912, 915.
Having also found that Respondent discrimina-
torily denied a 1968 Christmas bonus to its cutting
department employees, it will be recommended
that it be required to make each of said employees
whole for the loss suffered by reason of said dis-
crimination against them by paying to each of them
the bonus they normally would have received but
for said discrimination, with interest thereon at the
rate of 6 percent per annum, from December 24,
1968, until paid, as provided in Isis Plumbing &
Heating Co., 138 NLRB 716. To assist in procuring
compliance with this provision, it will be recom-
mended that Respondent be required to preserve
and make available to agents of the Board all
payroll and other records necessary or useful in
determining compliance with the Board's order, or
in computing the amount of backpay due. 19
RECOMMENDED ORDER
Upon the basis of the above findings of fact, con-
clusions of law, and the entire record in the case,
and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, it is recom-
mended that the National Labor Relations Board
order Playtime Kiddie Wear, Inc., and Deer Park
dress I find nothing in the evidence to indicate why the usual and customa-
ry posting at Respondent 's plant would not be adequate to fully advise the
employees of their statutory tights
PLAYTIME KIDDIE WEAR,
Mfg. Co., their officers , agents , successors , and as-
signs, to:
1. Cease and desist from:
(a) Changing the wages , hours, or the terms and
conditions of employment of its employees for the
purpose of inducing employees to cease supporting
a labor organization.
(b) Telling employees that their selection of a
labor organization to act as their collective -bargain-
ing representative will bring about strikes, reduced
work , loss of earnings , or plant closure.
(c) Urging or suggesting to employees that they
select one of their fellow employees as a collective-
bargaining representative rather than a labor or-
ganization.
(d) Granting or refusing to grant employees a
bonus for the purpose of discouraging employees
from assisting or supporting a labor organization.
(e) Engaging in surveillance of the union activi-
ties of employees , or in any conduct from which
employees may reasonably infer that their union ac-
tivities are under such surveillance.
(f) Discouraging membership in Local 107, In-
ternational Ladies Garment Workers Union,
AFL-CIO , or any other labor organization by dis-
criminating against any employee in regard to his or
her hire, tenure , or any term or condition of em-
ployment.
(g) In any other manner interfering with,
restraining , or coercing employees in the exercise
of their right to self-organization , to form , join, or
assist labor organizations, to bargain collectively
through representatives of their own choosing, and
to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or
protection , or to refrain from any and all such ac-
tivities.
2. Take the following affirmative action found
necessary and designed to effectuate the policies of
the Act:
(a) Make whole the employees in its cutting de-
partment for the bonus they would have received in
December 1968 but for the discrimination against
them in the manner set forth in the section hereof
entitled "The Remedy."
(b) Preserve and, upon request, make available
to the Board or its agents , for examination and
copying, all payroll records, social security payment
records , timecards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
recommended Order.
(c) Post at its Deer Park , New York , plants co-
pies of the attached notice marked "Appendix. "20
Copies of said notice , on forms provided by the Re-
40 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations, and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals , the words in the notice reading " Posted by Order of the Na-
INC. 379
gional Director for Region 29 (Brooklyn, New
York), after being duly signed by an authorized
representative , shall be posted by it immediately
upon receipt thereof, and be maintained by it for
60 consecutive days thereafter , in conspicuous
places , including all places where notices to em-
ployees are customarily posted . Reasonable steps
shall be taken by it to insure that said notices are
not altered , defaced, or covered by any other
material.
(d) Notify said Regional Director , in writing,
within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.21
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full trial in which both sides had the op-
portunity to present their evidence , the National
Labor Relations Board has found that we, Playtime
Kiddie Wear , Inc., and Deer Park Mfg . Co., Inc.,
violated the National Labor Relations Act, and or-
dered us to post this notice. We therefore notify
you that:
The Act gives all employees these rights
To organize themselves
To form , join, or help unions
To act together for collective bargaining
or other mutual aid or protection
To refuse to do any or all of these
things.
WE WILL NOT do anything to interfere with
you in the exercise of these rights . All of our
employees are free to become or remain a
member of Local 107, International Ladies
Garment Workers Union , AFL-CIO, or any
other union , or not to become or remain a
member of any union.
WE WILL NOT tell our employees that the
selection of a union to represent them in col-
lective bargaining may result in strikes,
reduced work , loss of earnings, or the closing
of our plants.
WE WILL NOT urge or suggest that you select
one of your fellow employees as your collec-
tive-bargaining representative , rather than a
union.
WE WILL NOT spy on your union activities, or
engage in any conduct to make you think we
are spying on you.
tional Labor Relations Board " shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
Si In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
wasting , within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT pay or refuse to pay any of our
employees a bonus , or make any change in
your wages , hours, or other terms and condi-
tions of your employment for the purpose of
influencing you not to help or support a union.
We fully understand , however , that nothing in
the order of the National Labor Relations
Board requires us to withdraw , change, or
abandon any term or condition of employment
that you now enjoy.
As it has been found that we violated the law
when we withheld a bonus from our cutting de-
partment employees at Christmas 1968, to in-
duce our employees not to assist or support
Local 107, we will pay to said cutting depart-
ment employees the bonus they would nor-
mally have received at Christmas 1968, with
interest.
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to
the Board ' s Office , 16 Court Street , Fourth
Floor , Brooklyn , New York 11201 , Telephone
212-596-3535.
PLAYTIME KIDDIE WEAR,
INC., DEER PARK MFG.
Co., INC.
(Employer)