Sidran Sportswear

National Labor Relations Board - Board Decisions

Jan 25, 1949

81 N.L.R.B. 270 (N.L.R.B. 1949)

In the Matter Of JOSEPH SIDRAN , DOING BUSINESS AS SIDRAN SPORTS-
WEAR and INTERNATIONAL LADIES GARMENT WORKERS UNION,
AFL
Case No. 16-C-1509.-Decided Januaryy_115, 1949
DECISION
AND
ORDER
On August 5, 1948, Trial Examiner A. Bruce Hunt issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices,' and recommending that he cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, as amended,
the National Labor Relations Board has delegated its powers in con-
nection with this proceeding to a three-man panel consisting of the
undersigned Board Members.*
The Board has reviewed the rulings made by the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions filed by the Respondent, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, with the additions and modifications set forth
below.
1. On October 14, 1946, the Respondent and the Union executed an
"Agreement for Consent Election," providing for an election by secret
ballot to be conducted by the Board's Regional Director on November
13, 1946, among the Respondent's employees at his Brownwood, Texas,
plant. The agreement provided that "the determination of the Re-
gional Director shall be final and binding upon any question, including
questions as to the eligibility of voters, raised by any party hereto
related in any manner to the election."
I Those provisions of Section 8 (1) and ( 5) of the National Labor Relations Act, which
the Trial Examiner found were violated , are continued in Section 8 (a) (1) and ( 5) of the
Act, as amended by the Labor Management Relations Act, 1947.
'Chairman Herzog and Members Houston and Murdock.
81 N. L. R. B., No. 44.
270
SIDRAN SPORTSWEAR 271
At the time this agreement was executed, there was a dispute as to
the status of a group of six employees described as "bundle girls," the
Union claiming that they were supervisors , and the Respondent main-
taining that they were non-supervisory. It was agreed that these six
individuals would not be specifically included in or excluded from the
unit, and that they would be permitted to vote subject to challenge
by the Union. At the election, all six bundle girls voted, and their
ballots were challenged by the Union.2 Both the Union and the Em-
ployer filed memoranda with the Regional Director concerning these
challenges. The Regional Director investigated the matter, and, on
December 13, 1946, issued his report, finding that the bundle girls were
supervisors and sustaining the Union's challenges to their ballots.
Accordingly, on December 30, 1946, the Regional Director issued his
Consent Determination of Representatives, finding that the Union had
been designated and selected by a majority of the employees in an
appropriate unit. On December 17, 1946, the Respondent appealed
to the Board, which, on January 10, 1947, informed the Respondent
that it refused to consider the appeal. Thereafter, on February 17,
1947, the Respondent refused to bargain with the Union on the ground
that the Board "was in error" in failing to consider the appeal and
to declare the election void or lost by the Union.
The Respondent contends that the Regional Director's determina-
tion was arbitrary and capricious, and should therefore be reversed.
At the hearing, the Respondent produced evidence in support of his
contention that the bundle girls are not supervisors. However, the
Respondent made no claim that the Regional Director's investigation
was inadequate, and produced no evidence that his findings, based on
the information before him, were arbitrary or capricious. Under the
circumstances, and regardless of how we might have determined the
question if the Respondent had not authorized the Regional Director
to determine it finally, we cannot say that the Regional Director's
determination was arbitrary or capricious, or that it lacked substantial
support.'
2. The Trial Examiner found that the Respondent refused on
January 4, 1947, to bargain with the Union, in violation of Section 8
(5) of the Act. The Respondent's appeal to the Board was still
pending on that date. The Respondent again refused, on February 17,
2 The Resrondent chillenged the ballots of certain persons on the ground that they were
not on the lay roll wwhihh had been selected as the basis of eligibility to vote The Regional
Director sustained one of these C hallenges and overruled the others. We agree with the
Trial Examiner that the Regional Director' s determinations as to these challenges were
proper . and that, in any event, the determinations did not change the outcome of the
election
2 Matter of Capitol Greyhound Lines , of al , 49 N . L R B 156, enforced 140 F (2d)
7,54 (C A. (1)
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1947, to bargain with the Union, although its appeal to the Board had
then been disposed of. Accordingly, without passing on whether there
was an earlier refusal to bargain, we find that on February 17, 1947,
and at all times thereafter, the Respondent refused to bargain col-
lectively with the Union as the exclusive representative of its em-
ployees, and thereby interfered with, restrained, and coerced his em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act,
in violation of Section 8 (1) and (5) of the Act.
3. On November 12, 1946, the day preceding the election, Joseph
Sidran, the Employer, delivered a speech to all the employees in the
plant. Although much of the speech was a non-coercive argument
against self-organization, several statements in the speech, which are
set forth in the Intermediate Report, clearly contained a threat that the
plant might be closed if the Union won the election. We find, as did
the Trial Examiner, that these statements were coercive, and that the
Respondent thereby violated Section 8 (1) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Joseph Sidran,
doing business as Sidran Sportswear, Brownwood, Texas, and his
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Ladies Gar-
ment Workers Union, AFL, as the exclusive representative of all pro-
duction workers, at the Respondent's Brownwood, Texas, plant includ-
ing operators, finishers, pressers, markers, inspectors, bundlers, and
special machine operators, but excluding office workers, clericals, ship-
ping clerks, porters, and supervisors;
(b) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Ladies Garment
Workers Union, AFL, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any and all of
such activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition
of employment as authorized in Section 8 (a) (3) of the Act, as guar-
anteed by Section 7 thereof.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
SIDRAN SPORTSWEAR 273
(a) Upon request, bargain collectively with International Ladies
Garment Workers Union, AFL, as the exclusive bargaining represent-
ative of all the production workers at the Respondent's Brownwood,
Texas, plant including operators, finishers, pressers, markers, inspec-
tors, bt cjlers, and, special machine operators, but excluding office
workers, clericals, shipping clerks, porters, and supervisors, with
respect to rates of pay, wages, hours of employment, or other condi-
tions of employment and if an understanding is reached embody such
understanding in a legal agreement ;
(b) Post at his plant in Brownwood, Texas, copies of the notice
attached hereto, marked "Appendix A."' Copies of such notice, to be
furnished by the Regional Director for the Sixteenth Region, shall,
after being duly signed by the Respondent or his representative, be
posted by the Respondent immediately upon receipt thereof, and main-
tained by him for a period of at least 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 Sixteenth Region in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor
organizations, to join or assist INTERNATIONAL LADIES GARMENT
WORKERS UNION, AFL, or any other labor organization, to bar-
gain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection or to refrain from
any and all of such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act,
* In the event this Order is enforced by decree of a United States Court of Appeals, there.
shall be ip tted before the words, "A Decision and Order ," the words , "A Decree of the.
United States Court of Appeals Enforcing "
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL BARGAIN collectively, upon request, with the above-
named union as the exclusive representative of all the employees
in the bargaining unit described below with respect to wages,
rates of pay, hours of employment, or other conditions of employ-
ment, and, if an understanding is reached, embody such under-
standing in a signed agreement. The bargaining unit is :
All production workers, including operators, finishers, pressers,
markers, inspectors, bundlers, and special machine operators, em-
ployed at the Brownwood plant, exclusive of office workers,
clericals, shipping clerks, porters, and supervisors.
JOSEPH SIDRAN, DOING BUSINESS AS
SIDRAN SPORTSWEAR
Employer.
Dated---------------- By------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
AND
RECOMMENDED ORDER
Mr. E. Don Wilson, for the General Counsel.
Corenbleth & Passman, by Mr. Emil Corenbleth, of Dallas, Tex., for the
Respondent.
Mr. Jack Johannes and Mr. Raymond Hagerty, of Dallas, Tex., for the Union.
STATEMENT OF THE CASE
Upon a charge filed on February 19, 1947, by International Ladies Garment
Workers Union, AFL, herein called the Union, the General Counsel for the
National Labor Relations Board,' by the Regional Director for the Sixteenth
Region (Fort Worth, Texas), issued a complaint dated April 23, 1948, against
Joseph Sidran, doing business under the trade name and style of Sidran Sports-
wear, Dallas, Texas, 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, and Section
8 (a) (1) and 8 (a) (5) and Section 2 (6) and (7) of the Act as amended by
the Labor Management Relations Act, 1947, 61 Stat. 136. Copies of the com-
plaint and notice of hearing thereon were duly served upon the Respondent
and the Union.
With respect to the unfair labor practices, the complaint as amended at the
hearing, alleged in substance that (a) on or about January 4, 1947, and at all
times thereafter, the Respondent refused to bargain collectively with the Union
as the exclusive representative of his employees in an appropriate unit, although
a majority of said employees had designated the Union as their representative
for such purposes; and (b) by said act, and by disparaging and expressing dis-
i The General Counsel and the attorney representing him at the hearing are referred to
as the General Counsel. The National Labor Relations Board is referred to as the Board.
SIDRAN SPORTSWEAR 275
approval of the Union, and urging, persuading, threatening, and warning the emr
ployees to refrain from assisting or becoming or remaining members of the
Union, the Respondent interfered with, restrained, and coerced, and is interfering
with, restraining, and coercing his employees in the exercise of the rightg
guaranteed in Section 7 of the Act.
On May 4, 1948, the Respondent filed his "Motion to Dismiss and Answer,"
admitting certain allegations of the complaint concerning his business activitiel,
but denying that he had engaged in unfair labor practices. The Answer admits
that the Respondent refused to bargain collectively with the Union, but allege$
affirmatively inter alia that an election was conducted among the employees
by the Board, pursuant to a consent election agreement between the Respondent
and the Union, that the challenged ballots were sufficient to affect the result of
the election, that the Regional Director's determinations of the issues were
capricious and arbitrary, that had such determinations been otherwise the Union
would not have been certified by the Regional Director as the exclusive repre-
sentative of the employees, that the election should have been declared void,
and that the Union does not now represent a majority of the employees. Ili
addition, the Motion to Dismiss contains various motions that the complaint
be dismissed in whole and in part upon grounds set forth in substance below.
Pursuant to notice, a hearing was held on May 18, 1948, at Brownwood, Texas,
before the undersigned Trial Examiner duly designated by the Chief Trial Ex-
aminer. The General Counsel, the Respondent, and the Union were represented
by counsel and all participated in the hearing. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence bearing
on the issues was afforded all parties. At the opening of the hearing, the Gen-
eral Counsel moved to amend the complaint so that the allegations respecting
the appropriate unit would coincide with the description of such unit in the
consent election agreement, and the Respondent moved to amend its answer
so as to show agreement therewith. These motions were granted without objec-
tion. The Respondent's motions to dismiss the complaint, in whole and in part,
were denied. The motions, insofar as they assert that the Labor Management
Relations Act, 1947, "repealed the provisions of the Wagner Act covering the
alleged violations set out in this complaint" and that "No savings provisions or
clauses in the" amendatory legislation "permit the filing of, hearing or action
on this complaint," is without merit.2 Likewise, the motions, insofar as they
assert that the "complaint comes too late and is barred by limitations and laches,"
and that because "of the lapse of time the results of . . . [the consent] election
are not now determinative . ." is without merit.' Finally, the assertion that
2As the Board said in Matter of Republic Steel Corporation (Upson Division), 77
N. L. It. B 1107: "The contention overlooks the general savings statute, which is as
much a part of the amended Act as if specifically incorporated therein. [Authority
cited] . . . We have heretofore held, with judicial approval, that `The obligations of
employers arising out of violation of the National Labor Relations Act are clearly
"liabilities" within the meaning of the general savings statute' and that the statute
`must be held to preserve "all liabilities" arising under the National Labor Relations Act
prior to amendment.' [Authority cited]."
' The Respondent acknowledges that it refused to bargain in February 1947. The charge
was filed during that month, written notice thereof was given to the Respondent promptly,
and a copy thereof was served upon the Respondent during June 1947. The complaint
was issued on April 3, 1948. See Matter of Standard Oil Company of California, 61
N. L. It. B. 1251, 1255, and authority cited therein, where the Board said that "the doctrine
of lathes does not apply to an agency of the United States Government in proceedings
which are an exercise of Its public or governmental function " Moreover, the Respondent' A
professed doubt about the Union' s present majority status is of no merit under authority
of Matter of Marshall and Bruce Company, 75 N. L. R B. 90.
829595-50-vol 81-19
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the charge does "not conform to the law as required by [Section] 9 (f), 9 (g) and
9 (h) of the" Labor Management Relations Act, 1947, is also meritless.4 At the
close of the General Counsel's case, the Respondent renewed its motions to dis-
miss, which were again denied. At the close of the hearing, the motions were
again renewed, and were taken under advisement. They are hereby denied.
The General Counsel moved to conform the pleadings to the proof as to formal
matters, and this motion was granted without objection. The parties did not
avail themselves of an opportunity to argue orally. Pursuant to leave granted,
the General Counsel and the Union, but not the Respondent, filed briefs
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an individual doing business under the trade name and style of
Sidran Sportswear, has his principal office and place of business in Dallas, Texas,
where he is engaged in the manufacture of ladies' sportswear. The Respondent
also operates a plant in Brownwood, Texas, with which we are particularly con-
cerned here.
During 1946, the Respondent purchased raw materials, valued at approximately
$160,000, of which 95 percent was shipped to the Respondent from points outside
Texas. Approximately 30 percent of such materials was shipped to the Brown-
wood plant, either directly by the sellers outside Texas or by shipment first to
the Respondent's plant in Dallas and, thereafter, by the Respondent from his
Dallas plant to his Brownwood plant.
The finished products manufactured by the Respondent in 1946 exceeded $400,-
000 in value, of which about 30 percent was manufactured at the Brownwood
plant. After manufacture there, the garments were transported by the Respond-
ent to his Dallas plant, and from that point 65 percent of his total sales were made
to persons outside Texas.
The Respondent's business for the year 1947 was substantially the same as
that for 1946, with the addition that he manufactured garments for the United
States Government. Such garments were manufactured in the Brownwood plant
of raw materials shipped by the Government to that plant from points outside
Texas, and the Respondent's remuneration therefore was $75,000. The Re-
spondent acknowledges, and I find, that he is engaged in commerce within the
meaning of the Act.
4 See Matte of The Baldwin Locomotive Works, 76 N L R. B 922, wherein the Board
said that the "determination of compliance with these requirements is an administrative
one to be made by the Board itself, and is not litigable by the parties."
G At the hearing I rejected General Counsel's Exhibit No. 12, a copy of a letter dated
December 19, 1946, from the Regional Director to the Respondent, for the reason that
there was an absence of proof that the original thereof had been mailed or received. By
agreement of counsel, however, it was stipulated that the General Counsel should be
afforded an opportunity to forward to me, subsequent to the hearing, proof that the
original letter was received by the Respondent and that I might then reverse my ruling
on admission of the copy in evidence. The General Counsel having furnished such
proof in a letter of May 28, 1948, to me, with copies to the other parties, and having
attached thereto a return receipt from the Post Office Department showing that the
original of General Counsel's Exhibit No 12 was delivered to the Respondent, it is hereby
ordered that said exhibit be received in evidence. It is further ordered that said letter
of May 28, 1948, from the General Counsel to me be received in evidence as Trial Examiner's
Exhibit No 1.
SIDRAN SPORTSWEAR
II. THE ORGANIZATION INVOLVED
277
International Ladies Garment Workers Union is a labor organization affiliated
with the American Federation of Labor, which admits to membership employees
of the Respondent.
M. THE UNFAIR LABOR PRACTICES
A. The chronology of events
On October 14, 1946, the Respondent and the Union executed an "Agreement
for Consent Election," providing that an election by secret ballot should be con-
ducted by the Board's Regional Director on November 13, 1946, among the Re-
spondent's Brownwood employees in a unit which the Respondent and the Union
agreed was appropriate for the purposes of collective bargaining. On October
28, the agreement received the approval of the Regional Director, and at an un-
disclosed time shortly thereafter the Respondent posted a notice of the election
for the attention of the employees.
On November 12, 1946, the day preceding the election, the employees were as-
sembled on company time and property to hear an address by the Respondent.
The speech, previously reduced to writing, was received in evidence, and in a num-
ber of paragraphs it is a non-coercive argument against self-organization. The
employees were told that they were free to join or not to join the Union without
fear of discrimination, to vote as they pleased in the election, and that the Re-
spondent would "abide by" the "returns" and bargain collectively with the Union
if it won the election. In some respects, however, the speech contained refer-
ences to a possibility that the plant would be closed. Thus, the Respondent
said :
I hope I can make a success of this factory so I won't have to lease it or
sell it for some other manufacturing business.
* * * * *
I want to make this the best plant in Texas, and if I don't I'll be tempted to
close it and lease it for some other manufacturing purpose, such as furniture
or the like.
* * * * *
You know the difficult time we have had getting materials. . . . I haven't
had enough to keep my three factories going. I could have closed this fac-
tory and still not have had enough for my other plants I didn't do this
because I wanted to give you work and prepare for the time I could really
make things hum here. I honestly believe if this were a Union shop the
incentive for such efforts would be gone. [Emphasis supplied.]
I am deeply concerned that if you vote for the Union tomorrow you may
injure this business and yourself.
On November 13 the election was conducted, and the "Certification On Con-
duct Of Election," dated that day, was signed by an agent of the Regional
Director and the "authorized observers" of the Respondent and the Union, who
certified that the balloting was fairly conducted. On the same day, the agent
of the Regional Director issued a "Tally of Ballots," in which he certified that
there were 33 votes cast for the Union, 30 against it, that there were no void
ballots, and that 12 ballots were challenged, which were sufficient in number
to affect the result of the election. This document was signed by the "authorized
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
observers" of the Respondent and the Union, who certified as to the tabulating
and secrecy of the ballots. The 12 challenged ballots, unopened, were im-
pounded by the agent of the Regional Director.
On November 18, the Respondent filed with the Regional Director a written
argument in support of its position that certain ballots, cast by persons whom
the Respondent had challenged, should not be counted ; that other ballots, cast
by persons whom the Union had challenged, should be counted; and alleging
that one of the individuals whose ballot had been challenged by the Respondent
was brought to the plant by the Union immediately before the election and had
engaged in electioneering with the result that 3 employees, "who would have
voted for the Company," did not vote. In addition, the Respondent withdrew
1 of its challenges, leaving the number of challenged ballots at 11. On November
20, the Union filed with the Regional Director a written statement of its position
on the challenges and asserted that there was no merit to the Respondent's
claim that improper electioneering had been engaged in on the Respondent's
premises before the election. On November 25, the Respondent filed with the
Regional Director its argument in answer to that which had been submitted by
the Union.
On December 13, the Regional Director issued his "Report On Objections To
Election And Challenged Ballots," and served copies upon the Respondent and
the Union. He found that the polling place was located " some fifty feet" from
the plant, that no solicitation or electioneering at or near the polls was observed
or called to the attention of his agent conducting the election, and that the
alleged electioneering could not have resulted in three employees having ab-
stained from voting because all but one of the eligible voters cast ballots. With
respect to the six ballots which were challenged by the Respondent, one of
which challenges was withdrawn, the Regional Director ruled that such ballot
and four others should be counted , and sustained the objection of the Respondent
in one instance. With respect to the six ballots challenged by the Union, the
Regional Director ruled that the persons casting them were employed in a
supervisory capacity, and sustained the challenges. Thus, five of the impounded
ballots were to be opened and counted, and the Regional Director fixed Decem-
ber 19 at his office as the time and place therefor!
On December 17, the Respondent filed with the Board in Washington its ob-
jections and exceptions to the report of the Regional Director. On January 10,
1947, the Board wrote to the Respondent, stating that it would not consider
the Respondent's appeal! In the meantime, however, a revised tally of ballots
had been issued by the Regional Director as described below.
By telegram and mail the Regional Director informed the Respondent of his
intention to count the five challenged ballots on December 19. Upon receipt of a
copy of the Respondent's appeal to the Board, the Regional Director again tele-
graphed the Respondent that the counting would take place as scheduled and
6 The arguments advanced by the Respondent and the Union with respect to the challenged
ballots are discussed below, but it may be observed here that at the hearing the Respondent
offered no evidence in connection with the alleged electioneering.
T The Board informed the Respondent, in part, that it had
uniformly adhered to the policy of deeming itself bound by the customary commitment
of the parties to regard as final and binding the Regional Director 's determinations
with respect to questions arising out of the conduct of an election held pursuant to an
"Agreement for Consent Election." The Board therefore has refused to consider the
merits of objections to rulings of its Regional Directors on matters relating to consent
elections (except when pertinent to the issues presented in an unfair labor practice
proceeding, in which event the Board will disturb the Regional Director's rulings only
if it clearly appears that they are arbitrary or capricious).
SIDRAN SPORTSWEAR 279
requested that the Respondent have an observer present. The Regional Director
stated also that, in the absence of an observer, he would retain the ballots for
a period of 30 days in order that the Respondent might examine them within
that time It does not appear that the Respondent made such examination, nor
did he have an observer present at the counting. Accordingly, the revised tally
of ballots, issued on December 19, does not bear the signature of an observer
for the Respondent. It shows that of the 5 ballots counted, 3 were cast for the
Union and 2 against it, which made the final vote 36 to 32 in favor of representa-
tion by the Union. A copy of the revised tally of ballots was mailed to the
Respondent by the Regional Director on December 19.8
On December 30, 1946, the Regional Director issued a "Consent Determination
of Representatives," and served copies upon the Respondent and the Union. He
found that the Union, having received a majority of the ballots cast, was the
exclusive bargaining representative of the employees within the appropriate unit
set forth in the consent election agreement.
On January 2, 1947, the Union wrote to the Respondent, pointing out that it
had received the Regional Director's determination of representatives, and ask-
ing for a bargaining conference. On January 4, the Respondent's attorney
replied, asserting that there had been no determination because of its appeal to
the Board, which had not been acted upon, and saying that the request of the
Union was "premature." Subsequent to the Board's letter to the Respondent
acting upon his appeal, the Union again asked for a conference. The Respond-
ent's reply was delayed because of his absence from the State, but on Febru-
ary 17,1947, lie responded, saying that the Board "was in error" in not considering
the appeal and in not declaring the election void or deciding that the Union had
lost it, and refusing to bargain because the matter had not "yet been deter-
mined" nor had there been "a valid election."
B. The refusal to bargain collectively
1. The appropriate unit
In accordance with the terms of the consent election agreement and the posi-
tion of the parties, I find that all production workers, including operators,
finishers, pressers, markers, inspectors, bundlers, and special machine operators,
of the Respondent employed at his Brownwood, Texas, plant, exclusive of office
workers, clericals, shipping clerks, porters, and supervisory employees with
authority to hire or discharge or effectively to recommend such action, constitute
a unit appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
2. Representation by the Union of a majority in the appropriate unit
Prefatory to an examination of the positions of the parties on the challenged
ballots and the rulings of the Regional Director, certain pertinent portions of the
consent election agreement and a Board Decision in an analogous matter will
be quoted:
1. SECRET BALLOT- . .. Said election shall be held in accordance
with the National Labor Relations Act, the Board's Rules and Regulations,
and the customary procedures and policies of the Board, provided that the
determination of the Regional Director shall be final and binding upon any
I It is this letter from the Regional Director to the Respondent which is referred to in
footnote 5.
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
question, including questions as to the eligibility of voters, raised by any
party hereto relating in any manner to the election.
2. ELIGIBLE VOTERS-The eligible voters shall be those employees
included within the Unit described below, who appear on the Employer's
pay roll for the period indicated below, including employees who did not
work during said pay-roll period because they were 111 or on vacation or
temporarily laid off . . .
Like the first quoted paragraph, the Board's Rules and Regulations then in
effect provided that ". . . the rulings and the determinations by the Regional
Director of the results . . . [of the consent election] shall be final." °
In Matter of Capitol Greyhound Lines et al.,10 the Board was confronted with
a problem not unlike that here, and it decided that it would not disturb a
Regional Director's determinations in the absence of a showing that they were
arbitrary or capricious. The Board's language, which received judicial approval,
is quoted in the footnote.11 Thus, the question here is whether the Regional
Director acted arbitrarily or capriciously in ruling upon the challenges and
objections, and the Respondent concedes that the burden is upon him to establish
the fact.
The challenged ballots fall into two categories, those made by the Respondent
and those made by the Union. With respect to the former, the Respondent
challenged the ballots of six persons, later withdrawing one challenge. That
person's ballot was counted, and of the remaining five, only one challenge was
sustained by the Regional Director. The four challenges which were overruled
involved employees found by the Regional Director to have been ill or tempo-
rarily laid off during the pay-roll period set forth in the consent election agree-
ment to determine eligibility.
That agreement, as above quoted, specifically provided that employees who did
not work during the particular pay-roll period because they were "ill or on vaca-
tion or temporarily laid off" should be eligible to vote. While the Respondent
at the hearing did not agree with the Regional Director's findings that the four
employees actually had been ill or temporarily laid off, he offered no evidence
to contradict the findings. Moreover, he did not dispute the Regional Director's
findings that all of these employees worked prior and subsequent to that pay-roll
period and that three of them were working on the day of the election.
The Respondent does not contend that the Regional Director's rulings were
inconsistent with the language of the consent election agreement. Instead, his
° N. L. R. B. Rules and Regulations, Series 4, Section 203 48, effective September 11, 1946.
Subsequent Rules and Regulations, Series 5, Section 203 54, effective August 22, 1947,
contain a like provision.
10 49 N. L. R. B. 156
1149 N. L. R. B. 156-9, aff'd N. L. R. B. v. Capitol Greyhound Lines, 140 F. (2d) 754,
758 (C C A 6), cert den. 322 U. S. 763:
The factual question of majority is bottomed upon a consent agreement which
expressly provided that a determination of the Regional Director as to questions
arising out of the conduct of the election, including questions arising out of eligibility
of voters, shall be final and binding on the parties. . .
Upon these facts, we find that the Regional Director's ruling was neither arbitrary
nor capricious In the absence of such conduct, we feel ourselves bound by the terms
of the agreement providing for the finality and binding effect of the Regional Director's
determination to the same extent as a court is bound by an agreement to abide by an
arbitrator's award [authority cited) To hold otherwise would permit an employer
deliberately to ignore binding commitments embodied in a consent agreement ; would
open the door to subterfuges for hampering and delaying a final determination of a
bargaining representative ; and would tend to defeat, rather than to effectuate, the
policies of the Act.
SIDRAN SPORTSWEAR 281
position is that at the time the agreement was executed in the office of his
counsel, there was an oral agreement among the Respondent, the Union, and the
agent of the Regional Director to the effect that only employees who actually
worked during the particular pay-roll period would be eligible to vote and that
employees would be ineligible if they had not worked then because of having been
ill or temporarily laid off.12 The Respondent's assertion is unconvincing. It
amounts to a contention that an oral understanding was reached, modifying the
standard practice of the Board, but that no steps were taken to alter the language
of the written agreement so that it would conform to the alleged modification,
and that the Regional Director was arbitrary or capricious in following the
written terms. The weakness of the Respondent's contention is apparent on its
face. It is even weaker when one considers that after the execution of the
written agreement, the Regional Director furnished to the Respondent a notice
of the election which contained the following language : "Employees described
under VOTING UNIT in this Notice of Election who did not work during the
designated pay-roll period because they were ill or on vacation or temporarily
laid off . . . shall be eligible to vote." The Respondent acknowledged receipt of
this notice and posted it in the plant for the attention of the employees, but
did not point out to the Regional Director the variance from the alleged oral
agreement. Instead, the Respondent waited until the election to raise the point.
Under these circumstances, there is no evidence that the Regional Director was
arbitrary or capricious. His rulings were consistent with the written agreement
of the parties and were wholly reasonable and proper . Moreover, since the
original tally of ballots showed the vote as 33 to 30 in favor of the Union, and
the revised tally, made after the counting of the 5 challenged ballots, increased
the figures to 36 to 32, it is apparent that the outcome of the election would not
have been different if the Regional Director had sustained all challenges by the
Respondent. Therefore, the principal issue is with respect to the ballots of the
persons who were challenged by the Union, and that issue is discussed immedi-
ately below.
At the conference in the office of the Respondent's counsel when the consent
election agreement was executed, there was considerable discussion about whether
a particular category of six employees should be included within the appropriate
unit. The Respondent argued that the employees were non-supervisory, while
the Union maintained the contrary, and agreement was not reached. The category
was neither specifically included in nor excluded from the unit, and it was de-
cided to leave the matter open for challenges by the Union at the polls and sub-
sequent rulings by the Regional Director. Accordingly, the six employees were
challenged by the Union.
The Regional Director found that these employees were classified by the Re-
spondent as "Bundle Girls" (not to be confused with "bundlers," a category of
employees who were specifically included within the unit), by the Union as
"Floorladies," and by themselves as "Supervisors." He found further inter alia
that they are the "extra eyes" of the plant's superintendent, that various em-
ployees work under their direction, that the "Bundle Girls" take the unfinished
garments to the girls who operate sewing machines, see that the cloth progresses
from one operation to another and that the operations are performed properly,
report deficient work to the superintendent, instinct and train new employees,
collect the employees' work sheets each day and turn them in to the pay-roll
clerk, attend training programs, and are paid at a higher hourly rate than the
12 The Respondent offered no evidence to support his contention. Indeed, the admis-
sibility of such evidence, had it been offered, is open to serious question.
X82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sewing machine operators and receive bonuses based upon the quantity of work
produced by the employees who work under their direction . Finally, the Re-
gional Director found that these six employees did not have authority to hire, pro-
mote, transfer , lay off or discharge employees , but that they reported "all matters
of this nature" to the superintendent , that their status was supervisory and that
they were "more closely associated with, and are a part of , management."
To establish that these findings were arbitrary or capricious , the Respondent
called as a witness , Leo Miller , the superintendent . Miller's testimony need not
be detailed . The most that can be said for it is that Miller cast doubt upon the
accuracy of the Regional Director 's findings in some instances and confirmed
other findings, but that his testimony falls short of establishing even a prima facie
case that the Regional Director was arbitrary or capricious . According to Miller,
there is a "Bundle Girl" for each line of sewing machine operators , and her
hourly rate of pay at the time of the election exceeded that of the operators by
50 percent . He testified also that he could not recall whether he had referred to
the "Bundle Girls" as "supervisors ," but that other employees may have done
so. In some instances Miller's testimony is weak indeed. Thus , lie testified
that he demonstrates to each of the "Bundle Girls" how the sewing operations.
on new products should be performed and that they learn to perform the opera-
tions themselves . But, according to Miller, the practical experience of per-
forming the operations is not acquired for the purpose of telling the individual
operators who work under their direction how to perform the operations ; instead,
it is for the purpose of being able to recognize whether an operation has been
performed correctly and reporting to Miller when any employee has failed to meet
the standard . Thereupon, Miller testified , he himself discusses the faulty oper-
ation with the employee . In this respect , the work of the "Bundle Girls" would
appear to overlap that of the inspectors , who examine each garment after it has
passed from one end of a line to the other end . Moreover , according to Miller,
the "Bundle Girls" do not supervise the operators , although they are paid a
bonus which is based upon the quantity of work produced by the operators The
bonus, Miller said in substance , is simply an incentive to do such minor tasks
as to pick up the cloth when one operator has finished her operation and to hand
it to the next operator in the line . Notwithstanding this incentive to the "Bundle
Girls" to see that garments are produced in quantity, Miller testified that he does
not rely upon them to inform him when an operator is loafing , but that he
relies upon control sheets which he examines at the end of each day.
The Respondent did not call as a witness any of the "Bundle Girls " or sewing
machine operators to testify whether the functions of the former included
supervision over the latter . He relies upon the testimony of Superintendent
Miller, and in doing so he fails to sustain his burden of proof . Miller's testi-
mony does not create a prima facie basis for concluding that the Regional Direc-
tor was arbitrary or capricious . We are not concerned here with whether the
judgment of the Trial Examiner , the Board , or an appropriate court would coin-
cide with that of the Regional Director . We are concerned instead with whether
the Regional Director acted without "any course of reasoning and exercise of
judgment" and in disregard of patent facts'
It will be recalled that the representatives of the Respondent and the Union
advanced different views respecting the "Bundle Girls" at the time that the
consent election agreement was executed . There is no indication , however,
that the representatives were insincere or unreasonable in advancing such views.
13 6 C. J. S. Arbitrary, p. 145.
SIDRAN SPORTSWEAR 283
Where, as here, a controversy existed respecting the "Bundle Girls," and reasona-
ble men differed, it canot be said that the decision of the person to whom they
entrusted their controversy was arbitrary. So long as reasonable men differ
on an issue, the decision may not be stamped as arbitrary or capricious.
The Regional Director's report, on its face, is a reasoned document which con-
tains the facts found by him. Those facts reasonably support his conclusions.
Under the circumstances here, and following the rule announced by the Board
in the Capitol Greyhound case above quoted, the Regional Director's findings
may not be disturbed.
Therefore, I find that on December 30, 1946, the date of the Consent Deter-
mination of Representatives, and at all times thereafter, the Union was the
duly designated representative of a majority of the employees in the appropriate
unit and, pursuant to Section 9 (a) of the Act, was the exclusive representativq
of all the employees in such unit for the purposes of collective bargaining In
respect to rates of pay, wages, hours of employment, and other conditions of
employment.
3. The refusal to bargain
It is admitted that the Respondent refused to bargain with the Union. His
defense has been considered and found to be without merit. I find, therefore,
that on January 4, 1947, the date of the Respondent's first refusal to meet with
the Union after issuance of the Consent Determination of Representatives, and
at all times thereafter, the Respondent refused to bargain collectively with the
Union as the exclusive representative of his employees in an appropriate unit,
and that the Respondent has thereby interfered with, restrained, and coercedi
and is interfering with, restraining, and coercing his employees in the exercise
of the rights guaranteed in Section 7 of the Act.
C. Interference, restraint, and coercion
As set forth above, on the day before the election, the Respondent addressed
the employees and advocated that they vote against representation by the
Union. While many of the Respondent's remarks, if considered alone, would
not constitute violations of the Act because of Section 8 (c) thereof," it is
nevertheless clear that portions of the speech are outside the immunizing
language of that Section. Although the Respondent spoke of his willingness to
"abide by" the "election returns," to bargain collectively with the Union if the
employees designated it, and said that they need not fear discrimination at his
hands because of union activities, there is within the address an unquestionable
threat that the plant would be closed if the Union were designated. There art-
three separate references to a possible closing of the plant and its lease
to another employer. These references, coupled with the statement that "the
incentive" to continue operations would "be gone" if "this were a Union shop" and
that if the employees voted for the Union they would "injure" the business
and themselves, constitute violations of the Act.1S Therefore, I find that by
making said address the Respondent interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing his employees in the exercise
of the rights guaranteed in Section 7 of the Act.
Section 8 (c) reads as follows :
The expressing of any views , argument, or opinion, or the dissemination thereo;,
whether in written, printed, graphic, or visual form, shall not constitute or be evidence
of an unfair labor practice under any of the provisions of this Act, if such expression
contains no threat of reprisal or force or promise of benefit.
1o Matter of Morrison Turning Co., Inc., 77 N. L. R. B. 670.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
Having found that the Respondent has engaged in certain unfair labor
practices, I shall recommend that he cease and desist therefrom and that he take
certain affirmative action designed to effectuate the policies of the Act. It
having been found that the Union represented a majority of the employees in
the appropriate unit and that the Respondent refused to bargain collectively
with it, it will be recommended that the Respondent, upon request, bargain
collectively with the Union.
Upon the basis of the above findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. International Ladies Garment Workers Union, AFL, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2. All production workers, including operators, finishers, pressers , markers,
inspectors, bundlers, and special machine operators, of the Respondent em-
ployed at his Brownwood, Texas, plant, exclusive of office workers, clericals,
shipping clerks, porters, and supervisory employees with authority to hire or
discharge or effectively to recommend such action, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
3. International Ladies Garment Workers Union, AFL, on December 30, 1946,
was, and at all times thereafter has been, the exclusive representative of all the
employees in such unit for the purposes of collective bargaining within the
meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with International Ladies Garment
Workers Union, AFL, as the exclusive representative of his employees in the
appropriate unit, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (5) of the original Act and
Section 8 (a) (5) of the Act as amended.
5. By interfering with, restraining, and coercing his 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 original Act and Section 8 (a) (1) of the Act as amended.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, I
hereby recommend that the Respondent, Joseph Sidran, doing business under the
trade name and style of Sidran Sportswear, his officers, agents, successors, and
assigns , shall:
SIDRAN SPORTSWEAR 285
1. Cease and desist from :
(a) Refusing to bargain collectively with International Ladies Garment
Workers Union, AFL, as the exclusive representative of all the production
workers, including operators , finishers , pressers , markers, inspectors , bundlers,
and special machine operators of the Respondent employed at his Brownwood,
Texas, plant , exclusive of office workers , clericals , shipping clerks, porters, and
supervisory employees with authority to hire or discharge or effectively to rec-
ommend such action ; and
(b) Engaging in like or related acts or conduct interfering with, restraining,
or coercing his employees in the exercise of the rights to self-organization, to
form labor organizations, or to join or assist International Ladies Garment
Workers Union, AFL, or any other labor organization , to bargain collectively
through representatives of their own choosing, and to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid or protection,
as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which I find will effectuate the
policies of the Act :
(a) Upon request, bargain collectively with International Ladies Garment
Workers Union, AFL, as the exclusive representative of all the production
workers, including operators, finishers, pressers, markers, inspectors, bundlers,
and special machine operators, of the Respondent employed at his Brownwood,
Texas, plant, exclusive of office workers, clericals, shipping clerks, porters, and
supervisory employees with authority to hire or discharge or effectively to recom-
mend such action ;
(b) Post at his plant in Brownwood, Texas, copies of the notice attached
hereto, marked "Appendix A." Copies of the notice, to be furnished by the
Regional Director for the Sixteenth Region, shall, after being duly signed by
the Respondent's representative, be posted by the Respondent immediately upon
receipt thereof, and maintained by him for a period of at least sixty (60) con-
secutive 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; and
(c) File with the Regional Director for the Sixteenth Region within ten (10)
days from the receipt of this Intermediate Report and Recommended Order, a
report in writing setting forth in detail the manner and form in which the
Respondent has complied with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report and Recommended Order, the Respondent
notifies said Regional Director in writing that he 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 203.46 of the Rules and Regulations of the National
Labor Relations Board, Series 5, effective August 22, 1947, any party may, within
twenty (20) days from the date of service of the order transferring the case to
the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the
Board, Rochambeau Building, Washington 25, D. C., an original and six 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 six
copies of a brief in support thereof ; and any party may, within the same period,
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
file an original and six copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such statement of exceptions and/or briefs, the
party filing the same shall serve a copy thereof upon each of the other parties.
Proof of service on the other parties of all papers filed with the Board shall be
promptly made as required by Section 203.85. As further provided in said
Section 203.46, 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.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions
and order, and all objections and exceptions thereto shall be deemed waived for
all purposes.
A. BRUCE HUNT,
Trial Examiner.
Dated August 5, 1948.
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 NOT interfere with, restrain, or coerce our employees in the exer-
cise of their right to self-organization, to form labor organizations, to join
or assist INTERNATIONAL LADIES GARMENT WORKERS UNION, AFL, or any other
labor organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection. All our employees are
free to become or remain members of the above-named union or any other
labor organization.
WE WILL BARGAIN collectively, upon request, with the above-named union
as the exclusive representative of all the employees in the bargaining unit
described below with respect to wages, rates of pay, hours of employment,
or other conditions of employment, and, if an understanding is reached,
embody such understanding in a signed agreement. The bargaining unit is:
All production workers, including operators, finishers, pressers, markers,
inspectors, bundlers, and special machine operators, employed at the Brown
wood plant exclusive of office workers, clericals, shipping clerks, porters, and
supervisory employees with authority to hire or discharge or effectively to
recommend such action.
Dated----------------------
JOSEPH SIDRAN, DOING BUSINESS
UNDER THE TRADE NAME AND
STYLE OF SIDRAN SPORTSWEAR,
Employer.
By-----------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.