Salant & Salant, Inc.

National Labor Relations Board - Board Decisions

Aug 21, 1947

74 N.L.R.B. 1405 (N.L.R.B. 1947)

In the Matter of SALANT & SALANT , INC. and AMALGAMATED CLOTHING
WORKERS OF AMERICA, CIO
Case No. 15-C-1922.Decided August 21,1947
Mr. T. Lowry Whittaker, for the-Board.
Martin ct Cochran, by Mr. Joseph Martin, of Nashville , Tenn., for
the respondent.
Messrs. Edward A. Blair and Harold S. Marthenke, of Nashville,
Tenn., for the Union.
Mr. Melvin J. Welles, of counsel to the Board.
DECISION
AND
ORDER
On December 6, 1946, Trial Examiner Frederic I. Parkes, 2nd, is-
sued his Intermediate Report in the above-entitled proceeding, finding
that the respondent had engaged in and was engaging in certain un-
fair labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered, the Intermediate
Report, the respondent's exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the additions hereinafter set
forth.
We agree with the Trial Examiner's finding that the respondent, by
refusing to bargain with the Union, violated Section 8 (1) and (5) of
the Act. The respondent, in its exceptions, contests the composition
of the unit found appropriate by the Board in a prior representation
proceeding,' and by the Trial Examiner in the Intermediate Report,
contending that the unit should have included both its Union City,
Tennessee, and its Obion, Tennessee, plants, and that eight foreladies
should not have been excluded therefrom. As we indicated in our
Decision and Direction of Election in the representation proceeding,
1 Matter of Salant & Salant, Inc., 69 N. L. R. B. 84.
74 N. L. R. B., No. 239.
1405
1406, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
however, the Union City and Obion plants are 16 miles apart, they are
separately supervised, and there is almost no interchange of employees
between them. Furthermore, each plant has a separate maintenance
crew, and, although similar welfare and vacation plans are in effect at
both and -wages at both are comparable, working hours differ, morning
recesses are granted only at one plant, and the "bundle" system of
production is employed at one, whereas both the "bundle" and "line"
system are used at the other. The employees at Union City are a dis-
tinct "plant unit," plainly appropriate under Section 9 (b) of the Act.
It is immaterial that the Union, since the election in the representa-
tion proceeding, has attempted to organize the employees at the Obion
plant. We likewise agree with the Trial Examiner, for the reasons set
forth in the Intermediate Report, that the foreladies in question were
properly excluded from the unit.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
,of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Salant & Salant, Inc., Union
City, Tennessee, and its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Amalgamated Clothing
Workers of America, CIO, as the exclusive representative of all pro-
duction and maintenance employees at the respondent's Union City,
Tennessee, plant, including machinists and watchmen, but excluding
clerical employees, administrative and executive employees, foreladies,
and all other supervisory employees ;
(b) In any manner interfering with the efforts of Amalgamated
Clothing Workers of America, CIO, to bargain collectively with it
on behalf of the employees in the aforesaid appropriate unit.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Amalgamated Clothing
Workers of America, CIO, as the exclusive representative of all pro-
duction and maintenance employees at the respondent's Union City,
Tennessee, plant including machinists and watchmen, but excluding
clerical employees, administrative and executive employees, foreladies,
and all other supervisory employees, in respect to grievances, labor
disputes, rates of pay, wages, hours of employment, and other condi-
tions of employment, and if agreement is reached on any such matters,
embody such understanding in a signed contract;
(b) Post at its plant at Union City, Tennessee, copies of the notice
attached to the Intermediate Report, marked "Appendix A." 2 Copies
2
Said notice, however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "The Recommendations of a Trial Examiner" and substituting
SALANT & SALANT, INC. 1407
of said notice , to be furnished by the Regional Director for the
Fifteenth Region, shall , after being duly signed by the respondent's
representative , be posted by the respondent immediately upon receipt
thereof and maintained by it for a period of sixty ( 60) consecutive
days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the respondent to insure that said notices are not altered,
defaced, or covered by any other material;
(c) Notify the Regional Director for the Fifteenth Region, in
writing, within ten (10 ) days from the date of this order, what steps
the respondent has taken to comply herewith.
MR. JAMES J. REYNOLDS , JR., took no part in the consideration of the
above Decision and Order.
"APPENDIX A"
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the Na-
tional Labor Relations Board, and in order to effectuate the policies
of the National Labor Relations Act, we hereby notify our employees
that :
WE WILL BARGAIN collectively upon request, with AMALGAMATED
CLOTHING WORKERS OF AMERICA, CIO , as the exclusive represent-
ative of all our employees in the bargaining unit composed of :
All production and maintenance employees of our Union
City, Tennessee, plant, including machinists and watchmen,
but excluding clerical employees, administrative and execu-
tive employees, foreladies, and all other supervisory em-
ployees with authority to hire, promote, discharge, disci-
pline, or otherwise effect changes in the status of employees,
or effectively recommend such action.
WE WILL NOT in any manner interfere with the efforts of the
above-named Union to bargain with us, or refuse to bargain with
said-Union as the exclusive representative of the employees in the
bargaining unit set forth above.
SALANT & SALANT, INC.,
Employer.
Dated -------------------- By --------------------------------
(Representative) (Title)
This notice must remain posted for sixty (60) days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
in lieu thereof the words "A Decision and Order." In the event this Order is enforced by
decree of a Circuit Court of Appeals , there shall be inserted, before the words "A Decision
and Order," the words, "A Decree of The United States Circuit Court of Appeals Enforcing."
755420-48-vol. 74-90
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Mr. T. Lowry Whittaker, for the Board.
Martin & Cochran, by Mr. Joseph Martin, of Nashville, Tenn., for the respondent.
Messrs. Edward A. Blair and Harold S. Marthenke, of Nashville, Tenn., for
.the Union.
STATEMENT OF THE CASE
Upon a charge duly filed by Amalgamated Clothing Workers of America, CIO,
herein called the Union, the National Labor Relations Board, herein called the
Board, by its Regional Director for the Fifteenth Region (New Orleans, Louisi-
ana), issued its complaint dated September 19, 1946, against Salant & Salant,
Inc., Union City, Tennessee, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1) and (5) and Section 2 (6) and
(7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint, accompanied by notice of hearing, were duly served
upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged, in substance,
that the respondent, on or about August 12, 1946, and thereafter, refused to
bargain collectively with the Union as the exclusive bargaining representative
of the respondent's employees within an appropriate bargaining unit although
on May 5, 1946, the Board by its Certification of Representatives certified that a
majority of the employees within the appropriate unit had designated and
selected the Union as their representative for the purposes of collective bargain-
ing, thereby interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.'
The respondent thereafter filed its answer in which it admitted that it was
engaged in interstate commerce, that on August 5, 1946, the Board by its Certifica-
tion of Representatives certified the Union as the collective bargaining represent-
ative of the respondent's employees within the unit described in the complaint,
and that, on the dates mentioned in the complaint, the respondent refused to
bargain collectively with the Union as the exclusive representative of the em-
ployees in such unit, but denied that the unit was appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act, and
further denied that it had engaged in any unfair labor practices within the mean-
ing of the Act.
Pursuant to notice, a hearing was held on October 3, 1946, at Union City, Ten-
nessee, before Frederic B. Parkes, 2nd, the undersigned Trial Examiner, duly
designated by the Chief Trial Examiner. The Board and the respondent were
represented at the hearing by counsel and the Union by official representatives.
Full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce eviO Once bearing on the issues was afforded all parties. At the close
of the hearing, the motion of counsel for the Board to conform the pleadings to
the proof as to minor variances was granted without objection. At the close of
' In addition, the complaint alleged that "the respondent, by its officers, agents, repre-
sentatives and employees, while engaged as described above, from in or around July 1946,
to the present time engaged in statements and conversations discouraging activity on the
part of the respondent's employees for the purposes of collective bargaining and other
mutual aid and protection and discouraging membership and activity among said employees
in the Union." The respondent filed a motion that this allegation of the complaint be
either stricken for indefiniteness or made more specific. At the hearing, counsel for the
Board moved to withdraw this allegation of the complaint. The motion was granted and
counsel for the respondent indicated that such withdrawal satisfied the purpose of his
motion.
SALANT & SALANT, INC. 1409
the hearing, the respondent moved to dismiss the complaint on the ground that the
unit was not appropriate. Ruling on that motion was reserved. The motion is
hereby denied. Upon the conclusion of the hearing, the undersigned advised the
parties that they might argue orally before, and file briefs or proposed findings
and conclusions, or both, with, the Trial Examiner. There were no oral argu-
ments, but the respondent later filed a brief with the undersigned.
On motion of counsel for the Board, the transcript of evidence, exhibits, and the
entire record in Case No. 15-R-1675 2 was incorporated into and made a part of
the record in this proceeding.
Upon the entire record in the case and from his observation of the witness, the
undersigned make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Salant & Salant, Inc., a New York corporation with its principal office and
place of business at New York City, is engaged in the operation of several garment
factories in the State of Tennessee, one of which is located at Union City, Ten-
nessee. During the last 12-month period, the respondent purchased raw materials
valued in excess of $500,000, approximately all of which was shipped to its factory
at Union City, Tennessee, from points outside the State of Tennessee. During
the same period, the respondent manufactured finished products consisting of
men's work clothes, valued in excess of $500,000, approximately all of which was
shipped from its Union City, Tennessee, factory to, into, and through States of
the United States other than the State of Tennessee. The respondent concedes
that it is subject to the Board's jurisdiction.
H. THE ORGANIZATION INVOLVED
Amalgamated Clothing `Yorkers of America is a labor organization affiliated
with the Congress of Industrial Organizations, admitting to membership em-
ployees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The appropriate unit and representation by the Union of a majority therein
On June 26, 1946, the Board issued a Decision and Direction of Election in Case
No. 15-R-1675,' finding, among other things, that all production and maintenance
employees of the respondent's Union City, Tennessee, plant, including machinists
and watchmen, but excluding clerical employees, administrative and executive
employees, foreladies, and all other supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status of em-
ployees,,,)r effectively recommend such action, constituted a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9 (b) of the
Act. -
On July 19, 1946, pursuant to the foregoing Direction of Election, an election
by secret ballot was conducted under the supervision of the Regional Director
for the Fifteenth Region. Upon the conclusion of.the election, a Tally of Ballots
was furnished the respondent and the Union in accordance with the Rules and
Regulations of the Board. No objections were filed by the respondent or the Union
2 Matter of Salant & Salant , Inc., 69 N. L. R. B. 84.
8 See footnote 2, supra.
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the time provided therefor. The Tally showed that of the approximately
337 eligible voters, 316 cast valid votes, of which 174 were for the Union, 134 for
United Garment Workers of America, A. F. L., none for Shirt Makers Welfare
Association, Union City, Tennessee, and 8 for no organization. On August 5, 1946,
the Board certified the Union as the representative for the purposes of collective
bargaining of the employees in the unit heretofore mentioned.
The respondent contests the appropriateness of the unit found by the Board,
urging (1) that the employees of its Obion, Tennessee, plant, located some 16 miles
from its Union City, Tennessee, factory, should have been included in the unit of
its Union City employees, and (2) that 8 foreladies were erroneously excluded by
the Board from the unit.'
As appears from the Board's Decision and Direction of Election and from the
record in the representation proceeding (69 N. L. R. B. 84), these precise con-
tentions were raised by the respondent in that case, and there litigated and decided
adversely to the respondent. That is, the Board held that the employees of the
Obion plant and the 8 foreladies in question should be excluded from the appro-
priate unit. The respondent has introduced neither evidence nor argument in the
instant proceeding which, in the undersigned's opinion, effectively challenges
the correctness of the Board's earlier finding as to the appropriate unit.
The only additional facts adduced in respect to the scope of the unit were that
(1) of the respondent's seven Tennessee plants, all but the Union City and Obion
plants were located in different counties and (2) following the election conducted
by the Board in May 1946, the Union commenced an organizational campaign
among the employees of the respondent's Obion plant and filed charges alleging
violations of Section 8 (1) and (3) of the Act with respect to such employees.
The undersigned finds that these facts constitute insufficient reason to disturb
the Board's earlier determination that a unit of production and maintenance
employees of the respondent's Union City plant was appropriate and that the
Obion plant employees should not be included therein.
In regard to the foreladies in question, the only additional evidence elicited was
that in an earlier unfair labor practice proceeding involving the respondent"
Forelady Vera Mae Wash, who was then employed at a plant operated by the
respondent at Martin, Tennessee, testified that she was a member of the Union.
Inasmuch as the Martin plant was not included in the list of the respondent's
Tennessee operations, the undersigned infers and finds that that plant is no
longer a part of the respondent's chain. In any event, under all the circumstances,
the undersigned finds the evidence respecting Forelady Wash's membership in the
Union at a plant previously operated by the respondent not to have sufficient
weight as to justify the inclusion of the foreladies in the appropriate unit.
Upon the basis of the entire record, including that of Case No. 15-R-1675, the
undersigned finds that all production and maintenance employees of the respond-
ent's Union City, Tennessee, plant, including machinists and watchmen, but
excluding clerical employees, administrative and executive employees, foreladies,
and all other supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees or effectively
recommend such action constitute, and during all the times material herein con-
stituted, a unit appropriate for the purposes of collective bargaining.
The undersigned further finds that on and after July 19, 1946, the Union was
the duly designated bargaining representative of a majority of the employees in
the aforesaid appropriate unit, and that, pursuant to the provisions of Section
9 (a) of the Act, the Union was on July 19, 1946, and at all times , thereafter has
4 Specifically , Mary McGraw , Anna May Holloman , Estelle Crews , Mrs. Leo Kindred,
Jeannette Simmons, Virginia Latimer, Grace Henderson, and Flo Holland.
5 Matter of Salant ti Salant , Inc., 66 N. L. R. B. 24.
SALANT & SALANT, INC. 1411
been, and now is, the exclusive representative of all the employees in the aforesaid
unit for the purposes of collective bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of employment.
2. The refusal to bargain
On August 2, 1946, the Union wrote to the respondent, referring to the Board's
certification and requesting that the respondent set a time and place for a con-
ference with the Union's representatives so that a collective bargaining contract
might be negotiated. By letter dated August 12, 1946, the respondent rejected
the Union's request, giving as its reason therefor its belief that the Board erred
in, overruling the respondent's contentions as to the appropriate unit, above re-
ferred to. The undersigned finds that on August 12, 1946, and at all times there-
after, the respondent has refused to bargain collectively with the Union as the
exclusive representative of its employees in the appropriate unit with respect to
rates of pay, wages, hours of employment, and other conditions of employment,
and that the respondent has thereby interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to_effectuate the policies of the Act. It having been
found that the respondent has refused to bargain collectively with the Union as
the exclusive representative of its employees in an appropriate unit, it will be
recommended that the respondent upon request bargain collectively with the
Union.
Because of the basis of the respondent's refusal to bargain, as indicated in the
facts found, and because of the absence of any evidence in this record of other
unfair labor practices, the undersigned will not recommend that the respondent
cease and desist from the commission of any other unfair labor practice. Never-
theless, in order to effectuate the policies of the Act, Vie undersigned will recom-
mend that the respondent cease and desist from the unfair labor practices found
and from in any manner interfering with the efforts of the Union to bargain
collectively with it e
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS of LAW
1. Amalgamated Clothing Workers of America, CIO, is a labor organization,
within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of the respondent's Union City,
Tennessee, plant, including machinists and watchmen, but excluding, clerical
employees, administrative and executive employees, foreladies, and all other
supervisory employees with authority to hire, promote, discharge, discipline, or
6 Sea N . L. R. B. v . Express Publishing Company, 312 U. S. 426.
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
otherwise effect changes in the status of employees, or effectively recommend such
action, constitute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act.
3. Amalgamated Clothing Workers of America, CIO, was on July 19, 1946, and
at all times thereafter has been the exclusive representative of all employees in
the aforesaid unit for the purposes of collective bargaining, within the meaning
of Section 8 (5) of the Act.
4. By refusing on August 12, 1946, and at all times thereafter, to bargain col-
lectively with Amalgamated Clothing Workers of America, CIO, as the exclusive
representative of all its employees in the aforesaid appropriate unit, the respond-
ent has engage& in and is engaging in unfair labor practices, within the meaning
of Section 8 (5) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging-in unfair labor practices, within the meaning of Section 8 (1) of
the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law and upon
the entire record in the case, the undersigned recommends that the respondent,
Salant & Salant, Inc., Union City, Tennessee, and its officers,' agents, successors,
and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Amalgamated Clothing Workers of
America, CIO, as the exclusive representative of all production and maintenance
employees of the respondent's Union City, Tennessee, plant, including machin-
ists and watchmen, but excluding clerical employees, administrative and execu-
tive employees, foreladies, and all other supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action ;
(b) In any manner interfering with the efforts of Amalgamated Clothing
Workers of America, CIO, to bargain collectively with it on behalf of the
employees in the aforesaid appropriate unit.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Amalgamated Clothing Workers
of America, CIO, as the execlusive representative of all production and mainte-
nance employees of the respondent's Union City, Tennessee, plant, including
machinists and watchmen, but excluding clerical employees, administrative and
executive employees, foreladies, and all other supervisory employees with author-
ity to hire, promote, discharge, discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action, in respect to rates of
pay, wages hours of employment, and other conditions of employment ;
(b) Post at its plant at Union City, Tennessee, copies, of the notice attached
hereto, marked "Appendix A." Copies of said notice, to be furnished by the
P-ginnal Director for the Fifteenth Region, shall, after being duly signed by
the respondent's representative, be posted by the respondent immediately upon
receipt thereof and maintained by it for a period of sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the respondent to
insure that said notices are not altered, defaced, or covered by any other
material ;
(c) Notify the Regional Director for the Fifteenth Region, in writing, within
ten (10) days from the receipt of this Intermediate Report, what steps the
respondent has taken to comply therewith.
SALANT & SALANT, INC. 1413.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Direc-
tor in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
As provided in Section 203.39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service
of the order transferring the case to the Board, pursuant to Section 203.38
of said Rules and Regulations, file with, the Board, Rochambeau Building,
Washington 25, D. C., an original and four copies of a statement in writing
setting forth such exceptions to the Intermediate Report or to any 'other part
of the record or proceeding (including rulings upon all motions or objections)
as he relies upon, together with the original and four copies of a brief in support
thereof ; and any party or counsel for the Board may, within the same period,
file an original and four copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such statement of exceptions and/or briefs, the
party or counsel for the Board filing the same shall serve a copy thereof upon
each of the other parties and shall file a copy with the Regional Director. Proof
of service on the other parties of all papers filed with the Board shall be
promptly made as required by Section 203.65. As further provided in said
Section 203.39, should any party desire permission to argue orally before the
Board, request therefor must be made in writing to the Board within ten (10)
days from the date of service of the order transferring the case to the Board.
FREDERIC B. PARKES, 2ND,
Trial Examiner.
Dated December 6, 1946.
"APPENDIX A"
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL BARGAIN collectively upon request, with AMALGAMATED CLOTHING
WORKERS OF AMERICA, CIO, as the exclusive representative of all our em-
ployees in a bargaining unit composed of :
All production and maintenance employees of our Union City, Tennessee,
plant, including machinists and watchmen, but eycluding clerical employees,
administrative and executive employees,'foreladies, and all other supervisory
employees with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees, or effectively recommend such
action.
WI WILL NOT in any manner interfere with the efforts of the above-named
Union to bargain with us, or refuse to bargain with said Union as the exclusive
representative of the employees in the bargaining unit set forth above.
SALANT & SALANT, INC.
Employer.
Dated----------------------------- By ------------------------------------
(Representative ) (Title)
This notice must remain posted for sixty (60) days from the date of posting,
and must not be altered, defaced, or covered by any other material.