Sportswear Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1964

147 N.L.R.B. 758 (N.L.R.B. 1964)

758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining or other mutual aid or protection , or to refrain from any or all 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.
All our employees are free to become or remain , or to refrain from becoming or
remaining, members of the above-named or any other labor organization . We will
not discriminate in regard to hire or tenure of employment or any term or condition
of employment against any employee because of membership in or activity on behalf
of any labor organization.
NATIONAL SCREEN PRODUCTS CO.,
Employer.
Dated---- --------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above -named employees , if presently serving in the
Armed Forces of the United States, of their right to full reinstatement upon appli-'
cation in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Information regarding the provisions of this notice or compliance with its terms
may be secured from the Regional Office of the National Labor Relations Board,
849 South Broadway, Los Angeles , California, Telephone No. 688-5204.
Sportswear Industries , Inc. and District 65, Retail , Wholesale
and Department Store Union , AFL-CIO and Local No. 2, Cap
Makers Union , affiliated with United Hatters , Cap and Milli-
nery Workers , AFL-CIO,. Party in Interest . Case No. 2-CA-
9268. June 26, 1964
DECISION AND ORDER
On December 24, 1963, Trial Examiner Thomas F. Maher issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the Act, and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. He also found that the Re-
spondent had not engaged in certain other unfair labor practices and
recommended dismissal of the complaint as to them. Thereafter, the
General Counsel filed exceptions to the Trial Examiner's Decision and
a supporting brief, the Respondent filed an answering brief and cross-
exceptions, and the Party in Interest filed an answer to the General
Counsel's exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed . The Board has considered the Trial
147 NLRB No. 79.
SPORTSWEAR INDUSTRIES, INC. 759
Examiner's Decision, the exceptions, the briefs, and the entire record
in this case, and adopts the findings,' conclusions , and the recom-
mendations of the Trial Examiner, as modified herein.
1. We agree with the Trial Examiner as to the violations of Section
8 (a) (1), (2), and (3) which he found. Although we regard the rea-
sons put forward by Respondent for the discharge of Velez and the
2-week layoff of Reyes as barely credible, we shall adopt the Trial
Examiner's finding that a preponderance of the evidence does not sus-
^ain the allegations of the complaint that they were discriminated
against in violation of Section 8 (a) (3). We also adopt the Trial
Examiner's finding that the alleged instances of employee interroga-
tion and of urging employees to withdraw from District 65 and to
join Local 2, which were bottomed solely on the testimony of employees
Quinones and De Jesus, have not been proved. The Trial Examiner
so concluded after discrediting such testimony on the basis of the
witnesses ' general dismeanor and their conflicting and contradictory
testimony. Although a reading of the cold record might not indicate
their testimony to be as unworthy of credence gas the Trial Examiner
would have it appear, we recognize that the judgment of the Trial
Examiner, who had the opportunity to observe the witnesses person-
ally, is entitled to great weight. As we indicated in Standard Dry
Wall Products, Inc., 91 NLRB 544, 545:
.. . we do not overrule a Trial Examiner's resolutions as to
credibility except where the clear preponderance of all the relevant
evidence convinces us that the Trial Examiner's resolution
was incorrect.
Applying that standard, we are not fully persuaded that rejection of
the Trial Examiner's resolution is warranted. In any event, we note
that even if such alleged violations were found to be supported, they
would only be cumulative of other instances of Section 8(a) (1) and
(2) violations which the Trial Examiner has found.
2. We agree with the Trial Examiner that the Respondent did not
violate Section 8(a) (5), but for a different reason. The complaint
alleged that the unit in which District 65 had established its majority
was "all packing, ticketing, receiving and shipping employees, ex-
clusive of servicemen, office clericals," etc. The General Counsel es-
tablished that there were 13 employees in the aforesaid classifications
on March 25, and he based his allegation of the. Union's majority status
1 The Trial Examiner found that Reyes had joined Local No. 2. Although it appears
that Respondent repeatedly 'urged Reyes to join and entrusted his paycheck to organizers
for Local No. 2 as a device for coercing him into joining, there is nothing in the record to
indicate that Reyes ever did, in fact , join Local No. 2. The foregoing error, which we
correct , does not otherwise require modification of the Trial Examiner 's conclusions and
recommendations . We hereby also correct the Trial Examiner ' s inadvertent reference to
March 25 as being the day before Reyes' layoff , when it is apparent that he meant that it
was the day before Zayas ' layoff.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the fact that the Union had in its possession nine signed authoriza -
tion cards . The Trial Examiner held that the unit described in the
complaint was not appropriate and that the only appropriate unit
was one that included five additional employees-four servicemen and
a shipping clerk. As the Union's 9 cards did not comprise a majority
of the 18 employees who, he held , must be included in the unit, the
Trial Examiner dismissed the refusal-to-bargain allegation of
the complaint.
The Respondent is engaged at its premises at 588 Broadway, New
York City, in distributing hats , caps , and knitted headwear manu-
factured by another company or companies . District 65 obtained the
nine authorization cards on March 22, 1963, and on Monday , March 25,
its organizers met with Small, Respondent 's vice president , and re-
quested recognition . Although Van Delft, one of the organizers for
District 65 who made the request, testified that he asked Small at this
meeting to recognize the Union in a unit of packers , shippers, and
ticketers, the Trial Examiner did not credit his testimony on that
point , but found that the request for recognition included all Sports-
wear employees , with the customary exclusion of supervisors and
guards.
Additional support for the Trial Examiner 's finding that the
Union's request was not limited to recognition for a unit of packers,
shippers , and ticketers derives from the fact that the Union on
March 25, the same day that its oral request was made, filed a peti-
tion with the Board in which it asserted the appropriate unit to be
one consisting of all Sportswear employees at its premises at 588
Broadway , excluding supervisors , managers , and guards . The Union
stated on the petition form that the unit consisted of 13 employees.
It may be that the Union was so advised by employees of Sportswear
who did not consider the four servicemen as sharing a community of
interest with them. But , even so, this does not justify alteration of
the unit described in the Union 's petition in order to establish a
majority showing in a narrower unit. The fact remains that the
Union claimed to represent a majority of all the Respondent's em-
ployees at its premises at 588 Broadway , without excluding the service-
men, and its erroneous impression as to the number of affected em-
ployees is immaterial.
We need not decide whether the Trial Examiner was right in finding
that a unit which excluded servicemen could not be appropriate. It
may be that the unit now claimed by the General Counsel as appro-
priate, limited in effect to warehousing employees , and excluding serv-
icemen because of t difference in interests , may also be appropriate.
But whether such a unit would have been appropriate when the Union
made its claim for recognition on March 25 is not a pertinent con-
sideration . Once having defined the unit it claims to represent, and
SPORTSWEAR INDUSTRIES, INC. 761
having made a bargaining demand on that basis, the Union has thereby
established the frame of reference for measuring the validity of its
demand. "Such a requirement imposes oil the union representative
only the obligation to say what he means. Failing to do so, [the union]
cannot be considered as having made the sort of request to bargain
which imposes upon an employer a legal obl igation to comply."'
Including the 4 servicemen in the unit Would still give the Union a
majority of 9 in a unit of 17.. However, in agreement with the Trial
Examiner, we find that on March 25-the crucial date when recogni-
tion was requested-the unit also included a shipping clerk named
O'Neal, thus making a total unit complement of 18. O 'Neal had
Worked Friday morning, March 22, and then, claiming to be ill, took
the afternoon off. He did not report on Monday or Tuesday, March 25
or 26, nor did he call to explain his absence . When he failed to report
again on Wednesday, March 27, the Respondent hired a new employee
in his place . O'Neal never returned and indeed forfeited a. half day's
pay for Friday morning. Thus , on Monday , March 25, the Respond-
ent knew only that O'Neal was absent because of illness. It did not
know O'Neal 's plans as to returning to Work, nor had it yet decided
to replace himn. On these facts, we find, contrary to the General
Counsel 's contention , that on March 25 , O'Neal was employed in the
unit which District 65 claimed to represent .' We further find that as
such unit consisted of 18 employees , the 9 who had designated the
Union did not constitute a majority.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order, the Order recommended by the Trial Examiner, and orders
that the Respondent, Sportswear Industries, Inc., its officers, agents,
successors, and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as modified below : 4
2 The C. L. Bailey Grocery Company, 100 NLRB 576, 579. See also Smith Transfer Com-
pany, Inc., 100 NLRB 834, and the cases cited in footnote 27 of the Trial Examiner's
Decision.
3 Sylvania Electric Products, Inc., 119 NLRB 824, 832; Foley Manufacturing Company,
115 NLRB 1205; E. H. Sargent and Co., a corporation, 99 NLRB 1318, 1320; George
Sexton, an individual, d/b/a Sexton Welding Company, 96 NLRB 454; Whiting Corpora-
tion , Spencer and Morris Division, 92 NLRB 1851.
The notice attached to the Trial Examiner's Decision shall also be modified as follows:
(a) Substitute the following for the first paragraph:
WE WILL NOT render aid, assistance, or support to Local No. 2, Cap Makers Union,
affiliated with United Hatters, Cap and Millinery Workers, AFL-CIO.
(b) Insert the following as the second paragraph:
WE WILL NOT recognize Local No. 2, Cap Makers Union, affiliated with United
Hatters, Cap and Millinery Workers, AFL-'CIO, as the representative of our employees
for the purpose of bargaining collectively. concerning conditions of employment, un-
less and until said labor organization shall have been certified by the Board as the
exclusive representative of such employees.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Substitute the following for paragraph 1 (a) of the Recommended
Order :
Rendering aid, assistance, or support to Local No. 2, Cap
Makers Union, affiliated with United Hatters, Cap and Millinery
Workers, AFL-CIO.
2. Insert the following as paragraph 1(b), and amend the designa-
tions of present paragraphs 1(b), 1(c), and 1(d) to read 1(c), 1(d),
and 1(e) :
(b) Recognizing Local No. 2, Cap Makers Union, affiliated with
United Hatters, Cap and Millinery Workers, AFL-CIO, as the
representative of its employees for the purpose of bargaining
collectively concerning conditions of employment, unless and un-
til said labor organization shall have been certified by the Board
as the exclusive representative of such employees.
3. In footnote 32, the phrase "The National Labor Relations Board
hereby orders," shall be substituted for "The National Labor Rela-
tions Board hereby recommends".
4. Substitute the following for paragraph 2 (d) of the Recommended
Order :
(d) Post at its 588 Broadway, New York, New York, premises,
copies of the attached notice marked "Appendix."" Copies of
said notice, both in English and Spanish, to be furnished by the
Regional Director for the Second Region, shall, after being duly
signed by the Respondent, be posted by it immediately upon re-
ceipt thereof, and be maintained by it for a period of 60 consecu-
tive 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.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on April 12, 1963 by District 65, Retail, Wholesale and De-
partment Store Union, AFL-CIO, the Regional Director for the Second Region
of the National Labor Relations Board, herein called the Board, issued a complaint
on behalf of the General Counsel of the Board on June 18, 1963, against Sportswear
Industries, Inc., Respondent herein, alleging violations of Section 8(a) (1), (2), (3),
and (5) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151,
et seq.), herein called the Act. In its duly filed answer Respondent, while admitting
certain allegations of the complaint, denied the commission of any unfair
labor practices.
Pursuant to notice, a hearing was held before Trial Examiner Thomas F. Maher
in New York, New York, on September 23 through 26, 1963. Pursuant to remand
of the Board upon special appeal taken to it by counsel for the General Counsel,
further hearing was held before me on November 12, 1963, for the limited purpose
of adducing rebuttal evidence previously excluded by me as not relevant or neces-
SPORTSWEAR INDUSTRIES, INC. 763
sary for the determination of issues framed by the pleadings. All parties were
represented and were afforded full opportunity to introduce relevant evidence, to pre-
sent oral argument, and to file briefs. Briefs were filed by the parties on Novem-
ber 19, 1963.1
Upon consideration of the entire record in this case, including the briefs of the
parties, and upon my observation of each of the witnesses appearing before me,2
I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
Sportswear Industries, Inc., is a New York corporation with its principal office
and ,place of business at 588 Broadway, New York, New York, where it is engaged
in the sale and distribution at wholesale of hats, caps, knitted headwear, and related
products. In the course and conduct of its business Respondent annually purchased
the aforementioned items and other goods and materials, all valued in excess of
$50,000, of which goods and materials valued in excess of $50,000 were transported
and delivered to its warehouse in interstate commerce directly from States of
the United States other than the State of New York. During the same annual
period Respondent sold, distributed and delivered goods valued in excess of $50,000
from its warehouse in interstate commerce directly to customers located in States of
the United States other than the State of New York. Upon the foregoing facts agreed
upon by the parties I find and conclude that the Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
It also. appears from a reading of the testimony that there is an undisclosed in-
terrelationship between Respondent and Smolowitz and Benkel, a manufacturer of
Ladies' wear selling a substantial proportion of its product to Sportswear and sharing
quarters with Sportswear at 588 Broadway, Sportswear being located on the 9th
and 10th floors and Smolowitz and Benkel occupying the remainder of the 9th floor.
The organizations likewise share at least one corporate officer, Sportswear's vice
president, Samuel Small, whose father-in-law, Nathan Smolowitz, is an employee
of Respondent and is also an officer of Smolowitz and Benkel. I do not, however,
make any finding with respect to the single employer status of these two organizations,
no representations having been made by counsel, except to note the undenied testi-
mony of numerous witnesses that the employees of Smolowitz and Benkel have
frequently been used to perform on Sportswear's premises duties regularly per-
formed by Sportswear's employees.
II. THE LABOR ORGANIZATIONS INVOLVED
District 65, Retail, Wholesale and Department Store Union, AFL-CIO, and Local
No. 2, Cap Makers Union, affiliated with United Hatters, Cap and Millinery Work-
ers, AFL-CIO, are conceded to be labor organizations within the meaning of the
Act and I so conclude and find.
III. THE ISSUES
1. Threats, promises of benefit, and employee interrogation as interference, re-
straint, and coercion.
1 In her brief counsel for the General Counsel states that the brief has been limited be-
cause of my rejection of a request for additional preparation time. At the September 26
closing, after 4 days of hearing, October 81 was set for filing of briefs. In my order of
October 18 reopening the hearing I indicated that the time for filing of briefs would not be
extended beyond November 19, noting the limited purpose for which the hearing was being
reopened. Under such circumstances, therefore, I do not deem the total Intervening time
of 7% weeks since the Initial closing of the hearing to be Inadequate within which to pre-
pare a brief upon issues litigated fully during the 4 hearing days.
2 Unless specifically indicated to the contrary, any credibility evaluation I make of the
testimony of any witness appearing before me is based, at least in part, upon his demeanor
as I observed it at the time the testimony was given. Cf. Retail Clerks International
Association, AFL-CIO, Local 219 (National Food Stores, Inc.), 134 NLRB 1680, 1682, and
footnote 3; Bryan Brothers Packing Company, 129 NLRB 285. To the extent that I do
not rely upon or I reject in part or entirely the testimony of any given witness, it is my
intent thereby to indicate that such part or whole of the testimony, as the case may be,
is discredited by me. Jackson Maintenance Corporation, 126 NLRB 115, 117, footnote 1,
enfd. 283 F. 2d 569 (.C.A. 2). To the extent that I credit any witness only in part I do
so upon the evidentiary rule that it is not uncommon "to believe some and not all" of a
witness' testimony. N.L.R.B. v. Universal Camera Corporation, 179 F. 2d 749, 7,54 (C.A. 2).
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Substantiality of evidence to support finding of Zayas' discharge.
3. Existence of justifiable cause as evidence of proper disciplinary layoff of Reyes.
4. Absence of employer knowledge as rebutting discrimination against Velez.
5. Unlawful support and assistance to Local 2.
6. Inclusion of servicemen in appropriate bargaining unit.
7. Unit placement of absent employee.
. 8. Majority status of District 65.
IV. THE UNFAIR LABOR PRACTICES
A. Squence of events
On Friday , March 22, 1963 , nine of Respondent 's employees selected District 65,
Retail , Wholesale and Department Store Union , AFL-CIO , hereafter referred to as
District 65, as their bargaining representative and each of them signed the member-
ship cards in that organization.3
Thereafter on Monday , March 25, Peter Van Delft and Jerry Barrafato , organizers
for District 65, and Anthony Mendez , a local officer of that union , called at Respond-
ent's premises and met Samuel Small, its vice president , of whom they requested
recognition as majority representative of Sportswear 's employees . Small expressed
surprise at the turn of events and requested time to consider the matter . The Dis-
trict 65 representatives agreed to his request , suggesting another meeting within
the next 24 hours. They also suggested to Small that he consult with his attorney
and that in any event he do nothing that would prejudice the existing status of the
employees . During the course of this conversation a number of the employees
whose identities were known to Small and to the union representatives hovered in
the background of the group but apparently not close enough to the conversation
to hear it.4
Among those who witnessed District 65's meeting with Small at the entrance to
Respondent 's establishment was, as previously noted , Hector Zayas, earlier designated
as the shop steward. In his company were the other members of the committee,
employees Quinones , Reyes , and DeJesus .5 On March 26, the day following the
meeting, Zayas had occasion to be working on -the ground floor and as he concluded
his work and was about . to enter the elevator he met Organizer Barrafato and had
a short conversation with him , including a notification from him that a union meet-
3 The nine were : Pedro Rosario Quinones , Rafael Velez , Hector Zayas , Adolfo DeJesus,
Cristobal Rasario, Victor Reyes , Epltonio Martinez , Ida Lopez , Rafaelo Maldonado.
4 The foregoing is a synthesis of the testimony of Vice President Small and District 65
Representatives Van Delft and Barrafato . To an extent the testimony of these witnesses
conflicts , but not as to the substance of the incident described . Thus Small testified only
to his surprise and to the fact that he asked for time . He denied saying anything further,
and when asked if the union people said anything else stated that "they might have."
Van Delft , on the other hand , testified that Small asked for and was refused the names
of the employee union members, and that he,asked "who were these people," indicating the
shop committee which Van Delft and Barrafato testified was present, but, according to
Barrafato was standing at a distance apart from them.
As all participants testified the conversation lasted for at least 5 minutes Small obvi-
ously was mistaken when he limited the extent of his remarks as he did (unless lie stood
mute, and I doubt that). On the other hand, his inquiry as to the names of the members,
as testified to by Van Delft , was not substantiated by Barrafato , who did substantiate the
quoting of Small asking "who were these people." Nor did Barrafato substantiate Van
Delft ' s testimony that he named the shop committee members to Small. And finally, em-
ployee Pedro Quinones , testifying to the March 25 meeting , stated he was not close to the
principals during the foregoing conversation , heard nothing , and was alone ; whereas em-
ployee Elector Zayas testified that lie too was present in the company of the shop com-
mittee and heard the conversation , little of which lie appears to have remembered.
The foregoing discrepancies serve only to illustrate that in describing any event 6 months
later it is quite possible that as to subsidiary details the participants are uncertain, con-
tradictory , and frequently wrong . I therefore reject any suggestion that the variants de-
scribed here should affect the composite which I have found in the text . However, I do
reject Van Delft 's testimony that the members of the shop committee were identified by
him on this occasion. '
5 The testimony of Zayas, corroborating Organizer Van Delft . I do not , however , credit
Zayas' further testimony that the only thing he recalls of the Small-Van Delft conversa-
tion was Small ' s statement that he already had a union-Local 2-in the shop. I am of
the opinion that Zayas was confused when he thus attributed to the morning meeting of
March 25 a. subject matter of a later m eeting. Cf. footnote 2.
SPORTSWEAR INDUSTRIES, INC. 765
ing was to be 'held that evening. • Immediately thereafter and while also awaiting
the elevator Vice President Small's father-in-law, Nathan Smolowitz, an officer in
Smolowitz and Benkel, came up to Zayas and said, "Don't think that you going to
scare me. Lam not afraid of you because you join the Union." . Shortly thereafter
Mannie Goldberg, Respondent's sales manager, met Zayas and asked him what he
was talking about "to the union man downstairs." First Zayas replied that he had
said nothing, but when Goldberg told him he was not supposed to talk to anybody
during worktime Zayas said, "Well, I was waiting for the elevator, and I saw him,
I went down by his side and he tell me-we just talk a few words." When Gold-
berg asked 'how long the visit lasted Zayas assured him that it "lasted only a minute."
Zayas' next encounter with Goldberg occurred 2 hours later at 5 o'clock, quitting
time. As Zayas was finishing his work Goldberg told him not to come back because
there was no work for him. He returned on the following Friday for his paycheck
which was given him by Small.6
With respect to Zayas' layoff and an identical one given to another employee,
Rafael Velez, Respondent adduced testimony to support the reason given Zayas at
the time, that they had no work for him. Thus Edward Milano, the foreman,
testified with corroboration by Vice President Small and Sales Manager Goldberg
that on the two successive Saturdays preceding the layoff plans were discussed for
curtailing the staff by three or four employees, which number was finally reduced
to two. The two selected were Shop Steward Zayas and Rafael Velez who was
otherwise unidentified except that it was established on the record that he was one
of the nine employees who had joined District 65 on March 22. On cross-examina-
tion Foreman Milano also testified that on the day of the layoff, as well as for several
weeks after it, the volume of work required nine employees in addition to himself
to work overtime. Although Milano suggested and Respondent's counsel urged
strenuously that this overtime was due to a special situation, the explanation loses
its force when fully considered. Thus he stated "every once in a while we get a
couple of rush orders, so we kept a couple of girls (ticketers), order picker and a
packer." 7 The fact of the matter is that among those whom he states worked over-
time during the week ending March 28 were DeJesus, Martinez, Maldonado, and
Quinones, all either pickers or packers, and Millman and Greenberg, customer serv-
icemen, who spent some of their time picking and packing orders; and in the following
payroll period Krauser, the newly hired shipping clerk, was among those who worked
overtime. Under such circumstances as the foregoing reveal it can hardly be said
that the overtime was but to meet an emergency situation requiring the work of a
few of the employees. On the contrary it indicates to me, and I so find, that during
the week of and following the March 26 layoffs Respondent had enough work to
require one-half its staff to work overtime.
When Zayas and Velez were laid off, as described above, they reported immediately
to District 65's headquarters, told Van Delft and Barrafato their stories, and returned
with them to the plant, arriving there after the regular quitting time to find
the employees still at work. The union representatives met Respondent's Gold-
berg who countered their requests for reinstatement of the laid-off employees by
repeating the excuse that there was no work for them.8 Neither has since been
reemployed .9
The foregoing is the testimony of employee Zayas whom I credit generally. Cf. foot-
note 2. Both Smolowitz and Goldberg deny the statements attributed to them. Upon
observation of each as they testified, I am not persuaded of the credibility of their denials
and accordingly reject them.
4 "Picking" an order constitutes selection of merchandise from stock in according with
styles, sizes, and colors designated on the order.
"Packing" is what the term suggests-preparation for shipment.
"Ticketing" is the marking of merchandise by style, size, and color.
'There is considerable conflicting testimony as to the exact time of the layoff, of the
appearance of the employees at the union office, and of their reappearance at the plant.
There is no dispute that the events occurred at the end of the workday on March 26.
Accordingly I accept the basic facts and deem the conflicts as to time of no major
significance.
a Vice President Small testified without contradiction that it is company policy not to
recall laid-off employees. It would therefore seem that the term "laid-off" is euphemistic,
to say the least. Because the complaint alleges as discriminatory Respondent's refusal to
recall as well as its layoff of the employees involved Respondent's policy is significant only
when the layoff itself has been established as violative of the Act. As I so find hereafter
(infra), company policy would seem to be of no consequence. Velez was not called to
testify.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
District 65's appearance on the scene created numerous sequels. It is to be noted
that Local 2 was conceded to be the representative of the employees employed by
Smolowitz and Benkel on the floor below, and it is also to be noted that when the
District 65 representatives first requested recognition employee Zayas quotes Small
as saying that they already had a union in the shop-Local 2. With this as a back-
drop Respondent's subsequent conduct has more than usual significance. Thus,
on March 25, the very day that District 65 representatives appeared and sought
recognition and the day before Reyes' layoff, supposedly for lack of work, he was
approached by Sales Manager Goldberg and told that he could work as much overtime
as he wished, for the work was busy. When Reyes replied that he could not work
,overtime on that day because he had to attend a union meeting, Goldberg asked him
what he would get out of the union. He spoke of the union in uncomplimentary
terms and told Reyes all he would get would,be $2 which Goldberg himself would
give him.10 Goldberg went on to remind Reyes of an outstanding garnishment
against his salary, the implication of which appears to have been that Reyes' salary
would suffer thereby for having joined District 65. And finally, Goldberg told
Reyes that two workers were going to be laid off and he had persuaded Small not
to include Reyes in this group. In the light of that Goldberg suggested that Reyes
think over what he was going to do about joining District 65.11
Reyes had a second significant conversation on the day of District 65's appearance
seeking recognition, this one with Vice President Small who asked him to quit District
65, a request that Small repeated to Reyes numerous times thereafter. Over and
above this, however, Small repeatedly requested Reyes to join Local 2, the Union with
which he claimed contract relations, and which represented the employees of
Smolowitz and Benkel on the floor below. And in the course of this campaign both
Small and Goldberg offered to lend Reyes money any time he needed ir.
Small's and Goldberg's opposition efforts appear to have borne fruit, for dur-
ing the second or third week of April, Reyes visited the offices of Local 2 and
joined. The circumstances leading to this event have an unusual flavor because
it appears that Reyes owed either Small or Goldberg a sum of money that he had
been repaying at the rate of $5 per week, but which, upon Reyes' joining of District
65, was called for in full. Pending payment, Respondent withheld Reyes' ',paycheck.
When Small sent Local 2's representative, Mackler, Chanin, and a third official, to
solicit Reyes' membership, Reyes told them of this situation and enlisted their help.
They obtained the paycheck from Small and when Reyes joined Local 2 they gave
the check to him.12
Employee Frank W. Krauser, employed as a shipping clerk several days after
District 65's request for recognition, soon became enmeshed in the union con-
troversy. On April 3, he joined District 65. Shortly thereafter, in a conversation
with Vice President Small, Krauser was asked if he had been "bothered" by any of
the people in the factory. The full import of Small's reference to being "bothered"
became evident 3 or 4 days later when he again spoke to Krauser and in the course
of this conversation, as best Krauser could recall, he asked him if he had joined
District 65; to which Karuser replied in the affirmative. Small then told Krauser
that. representatives from Local 2 would be at the plant on the following day, "and
this was the Union he wanted me to join." Krauser signed a Local 2 card on the
following day upon the appearance of the three Local 2 representatives noted above,
and referred to by Reyes (supra ) in his account of the circumstances under which he
joined Local 2.
The Local 2 representatives' visit to the plant had none of the handicaps experienced
by Van Delft and Barrafato, representatives of District 65, on their several visits
to the plant. Indeed , these two never got beyond the front gate of the plant and on
one occasion ( the protesting of Zayas' and Velez' discharge ) were invited off the
10I do not view this offer of a $2 raise as a gift or a bribe. I Interpret Reyes' testi-
mony, upon which this incident is based, as an account of Goldberg's argument that the
Company could give a $2 raise without union efforts. Accordingly, I reject Reyes' likely
misunderstanding in this respect as a possible violation of the Act.
III do not credit Goldberg's dental of this or other like conduct attributed to him.
12 Counsel for the General Counsel does not urge that the withholding of the check by
Local 2 to be a violation of the Act, there being no charge outstanding against that organi-
zation. The incident, therefore, is relied upon as further evidence of Respondent's assist-
ance of Local 2 in its campaign for members among Respondent's employees.
The foregoing findings are based upon the credited testimony of employee Reyes cor-
roborated by witness Mendez. Reyes' demeanor persuades me of his truthfulness despite a
number of instances of confusion and contradiction which I specifically do not credit. I do
not accept Small's or Goldberg 's denial of conduct attributed to them by this witness.
SPORTSWEAR INDUSTRIES, INC. 767
premises as the alternative to calling the police. The Local 2 men, on the other
hand, were given an opportunity to talk with the employees, including Krauser,
individually, as Small and Foreman Milano stood by to add their encouragement.
Thus, as a Local 2 organizer was talking to Krauser, Milano added a word-"telling
me the Union is a good union to get in." 13 Milano's recommendation thus serves
to support the assurance which one of the Local 2 representatives had just given
Krauser: "He was telling me about the benefits that Local 2 had, and the increase
which would be five dollars that I would get."
B. Specific rejected testimony
In addition to the foregoing findings, all based upon the credible testimony of em-
ployee Reyes, Zayas, Mendez, and Krauser, the record is replete with similar in-
stances of employee interrogation, urging of withdrawal from District 65 in ex-
change for improved working conditions, etc., and encouragement to join Local 2.
These, however, derive from the testimony of employees Quinones and DeJesus,
neither of whom I credit because of the general demeanor displayed by each through-
out the hearing and by reason of the conflicting, contradictory, and frequently bel-
ligerent testimony they gave. In the circumstances, therefore, I base no findings
upon any testimony supplied by them and recommend that so much of the complaint
as relies for sole support upon such testimony be dismissed.
In addition, several items of testimony of credited witnesses relating to allegations
of the complaint require special consideration. Thus Hector Zayas, after testifying
to having joined District 65, further stated that on the same day, or the following one,
he was given a raise but was told not to tell anyone. On two counts this is im-
probable, and I reject it as evidence. Zayas could hardly be expected to be thus
rewarded for joining the union opposed by Respondent, and, of all times, on the day
of his layoff which I find hereafter (infra) to have been by reason of his union
membership.
And finally, Reyes testified at some length to a pushing and shoving incident be-
tween him and Vice President Small. Because I find the testimony so confused and
unintelligible, I refuse to make any finding thereon insofar as it would relate to a
threat by Respondent-or indeed as an executed threat.
C. Reyes' termination
Employee Reyes' problems do not seem to have evaporated by joining Local 2 at
Respondent's request in early April, for a month later he was given a 2-week dis-
ciplinary layoff. What must be determined is whether this was of Reyes' or Re-
spondent's making. Upon documentary evidence supplied by the General Counsel,
coupled with Reyes' own testimony on cross-examination, I am persuaded that Reyes
was given the layoff for good and sufficient reason.
Reyes testified without contradiction that work for the several weeks preceding
May 3 was slack, that he had worked only several half days during each week, that
the women employees frequently had nothing to do, and that he was required to call
in to see if there would be work on any given day. In this state of indefinite em-
ployment it would appear that Reyes showed less than a minimum interest in coming
to work. This conclusion derives from a memo presented by Vice President Small
on May 3, and introduced into evidence by counsel for the General Counsel. It
states as follows:
Subject: Disciplinary Action
On Friday April 26, I told you to come Monday April 29. You did not come
in that day. On Tuesday April 30, you came to work and I told you to come in
on Wednesday May 1st. You didn't come in on Wednesday May 1st or
May 2nd. You have done this numerous times in the past 2 weeks. We are
giving you a disciplinary layoff of 2 weeks. If you don't shape up upon your
return of 5/20/63, you will receive more severe disciplinary action.
May 3, 1963.
SAMUEL SMALL.
When cross-examined on the substance of this memo and the truth of the statements
made in it by Small, Reyes became so confused, excited, and unintelligible as "to
convince me that the laxity of which he had been accused was actually a fact and
13 The foregoing is the credited testimony of employee Krauser whose name is frequently
misspelled as Krouser in the record. I reject Small's and Goldberg's denial of the conduct
attributed to them. Foreman Milano was not questioned concerning the matters testified
to by Krauser.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the 2 -week layoff was for the reasons stated . I accordingly reject so much of
Reyes' testimony as suggests the contrary and find that he was laid off between
May 3 and 20 for the reasons given by Respondent at the time.
D. The interference, restraint, and coercion of Respondent 's employees
A review of the foregoing findings of fact reveals a definite antipathy on the part
of Sportswear and its officials , Small and Goldberg, against District 65, and an active
determination to do something about it. Thus they questioned their employees con-
cerning their membership in that organization and asked what it could do for them,
urged them to withdraw from it by threats , cajoling, and promises of better pay, and
all the while encouraged membership in Local 2, which enjoyed Respondent 's favor,
by openly inviting its representatives onto the working floor, speaking glowingly of
it, threatening employees for their failure to join, and even becoming party to the
withholding of an employee's paycheck until he did join . Citation of authority is
unnecessary to establish that such conduct interferes with, restrains , and coerces em-,
ployees in the exercise of their rights guaranteed by the Act. I accordingly conclude
and find that Respondent thereby violated Section 8(a) (1) of the Act.
E. Discrimination against employees Zayas, Velez , and Reyes
Employee Hector Zayas, the shop steward , in the company of the other shop com-
mittee members, stood nearby when the District 65 representatives appeared at Re-
spondent 's front gate and requested of Vice President Small that he recognize it as
the employees ' bargaining representative . And it was this group of whom Small
then inquired , "Who are these people?" Although by virtue of my credibility de-
terminations I do not accept as a proven fact that Organizer Van Delft then identified
them as the committee , it is nevertheless quite obvious , and I conclude and find, that
Small thus became well aware of the group 's, including Zayas', particular interest in
District 65.
Zayas' connection with District 65 twice again came to Respondent 's attention on
the following day when Small's father -in-law, Smolowitz , commented on the Union
in an uncomplimentary fashion to Zayas immediately following the conclusion of a
conversation between Zayas and District 65 Organizer Barrafato at the entrance to
the Respondent 's elevator on the ground floor. As this conversation thus occurred
when both Smolowitz and Zayas were waiting for the elevator it may be presumed
that Smolowitz observed the conversation and that it prompted his remarks about
Zayas' union membership found above (supra). Sales Manager Goldberg's re-
action shortly thereafter removes all doubt as to the employer 's awareness of Zayas'
association with District 65; for when he asked Zayas what he was saying "to the
union man downstairs" Smolowitz' observations were thus confirmed and Respond-
ent's awareness of Zayas' activities established.
Viewed against the backdrop set forth above Respondent 's reason for laying off
Zayas-lack of work-becomes highly suspect . It becomes unbelievable in the face
of Respondent 's own foreman's testimony thereafter that both before and after the
layoff employees engaged in the same duties performed by Zayas were working over-
time. On these facts I cannot conclude otherwise but that Respondent laid off
Hector Zayas on March 26 and has since then refused to reinstate him for his known
membership in and activities in behalf of District 65, thus discriminating against him
in violation of Section 8 (a) (3) and ( 1) of the Act.
The case of Rafael Velez presents an entirely different picture. Velez was laid
off at the same time as Hector Zayas for the same stated reason , lack of work, at
a time when employees were working overtime.
It is clear to me that Velez was not laid off for the reason stated and I so find
and conclude , but notwithstanding the suspicious character of the circumstances this
does not thereby establish the presumption that he was discharged for reasons pro-
scribed by the Act. The burden of proving this always remains with the General
Counsel . 14 While it is evident that Velez was one of the nine employees who. joined
the Union there is nothing else in the record to suggest that this was the motivating
factor of his layoff . He was never called to testify, testimony of his activity in
District 65 was limited only to a visit that he made to the union office and there-
after to Respondent 's plant with union officials after his layoff, he was not among
those present , as was Zayas when District 65 representatives made its initial bid for
recognition , and indeed , no evidence of any sort has been proffered to suggest that
Respondent might have known of Velez' District 65 membership and activity, and
that so knowing it , it discharged . him for it.
14N.L.R.B. v. Standard Coil Products Co., Inc., 224 F. 2d 465, 470 (C.A. 1).
SPORTSWEAR INDUSTRIES, INC. 769
I have before me Respondent's motion to dismiss the complaint as to Velez.
I reserved decision on this at the close of General Counsel's case, stating as I did
so that Respondent would notbe required to defend as to Velez unless and until such
time as I denied its motion. In view of what follows 1 deem such defense un-
necessary. Addressing myself at this time to the motion before me after a thorough
reading of all the testimony I am not aware of any single fact, or indeed remote
indication, that any of Respondent's officials were aware of Velez' union member-
ship or activity at the time of his layoff.'B Evidence of his union membership appears
in the form of an application card admitted as an exhibit at the hearing. It is also
established that after his layoff he openly sought and obtained union help in getting
back his job. Except for these two items, however, there is nothing that could
conceivably be construed as indication to Respondent of Velez' union membership,
little less his union activity. Notwithstanding the peculiar circumstances under which
Velez' employment was terminated, I cannot substitute my suspicions, however lively,
for legal evidence that Respondent was aware of or was motivated by Velez's
membership in District 65.16 Accordingly, I will grant Respondent's motion at this
time and dismiss so much of the complaint as alleges that Rafael Velez was dis-
charged in violation of Section 8(a) (3) and (1) of the Act.
Six weeks after Victor Reyes joined District 65 and was recognized among the
members of the plant shop committee, he was given a 2-week disciplinary layoff.
But this was also a month after he had joined Local 2 at Respondent's bidding.
A review of the record, particularly in the light of these circumstances, discloses
nothing to rebut the contents of the memo presented in evidence by counsel for the
General Counsel wherein Respondent states its reason for disciplining him, namely,
his repeated failure to report for work. Only by rejecting this evidence, which I
refuse to do, could I infer that the layoff was other than for a cause. I will recom-
mend, therefore, that so much of the complaint as alleges discrimination against
Victor Reyes in violation of Section 8(a)(3) and (1) of the Act be dismissed.
F. Unlawful assistance and support to Local 2
A review of the facts found above discloses that as soon as Respondent was con-
fronted with a demand for bargaining by District 65 on March 25 it set about to
thwart that organization by the simple expedient of a backfire. Thus it enlisted
support for Local 2 among its employees by the several means which I have already
enumerated (supra) and have found to constitute interference, restraint, and
coercion of those employees in the exercise of their statutory rights. Such conduct
is no less a violation of the Act's mandate of neutrality set forth in Section 8(a) (2)
of the Act.
It is well settled that soliciting membership in a favored union,17 promising in-
creases in pay for joining such a union,16 permitting the agents of a favored union
to engage in solicitation on the plant premises,19 and withholding benefits from em-
ployees unless they join a favored union, thus discriminating against them,20 con-
stitute unlawful support and assistance to such a labor organization. As the facts
here manifest those very conditions, I conclude and find that Respondent has thereby
violated Section 8(a) (2) of the Act.
G. The refusal to bargain
District 65 filed a petition for a representation election with the Board in Case No.
2-RC-12625 on March 25, 1963, following its request to bargain and Respondent's
refusal to comply therewith. In this petition it describes the requested unit as "all
employees at 588 Broadway, New York City premises" and would exclude "super-
visors, managers, guards, and watchmen as defined in the Act." 21
Is Double A Products Company, 134 NLRB 222, 230.
16 Cf. Diamond Ginger Ale, incorporated, 125 NLRB 1173.
17 Lykes Bros. Inc. of Georgia, 128 NLRB 606, 607.
is Lenscraft Optical Corporation and Rayex Corporation, 128 NLRB 807, 826.
19 A. 0. Smith Corporation, Granite City Plant, 132 NLRB 339, 341 ; GEM International,
Inc., et at ., 137 NLRB 1343, 1346.
'OLykes Bros. Inc. of Georgia, supra. Cf. Campo Plastics Company, a Division of
Chicago Molded Products Corporation, 142 NLRB 1272.
21 In this respect I do not credit Organizer Van Delft's contrary testimony that when
requesting recognition of Vice President Small he referred only to packers, shippers, and
ticketers.
756-236--65-vol. 147-50
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint in this proceeding, however, alleges in paragraph 6 the following:
All packing, ticketing, receiving, and shipping employees of Respondent, em-
ployed at its premises at 588 Broadway, New York City, exclusive of service-
men, office clericals, salesmen, professional employees, guards, watchmen, and
all supervisors as defined in Section 2(11) of the Act, constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
Implicit in every finding of an unlawful refusal to bargain is a demand for such
bargaining in behalf of a majority of the employees in a unit deemed appropriate for
the purpose. There is no question here but that the demand was made. But what
remains to be determined is whether District 65, on that date, March 25, by the nine
authorization cards it held, represented its majority in such an appropriate unit.
For the reasons which follow I find that it did not.
1. The appropriate unit
No question is raised as to the 13 employees at Respondent's 10th floor premises
at 588 Broadway. These variously, and according to their strength and skills, load
and unload trucks, open shipments of caps and hats, sort and store them, and upon
order, pick out the appropriate styles and sizes of caps and hats and pack them for
delivery to customers, usually in the Metropolitan New York area. In addition to
these employees, all paid in the neighborhood of $48 to $60, there is the classification
of "shipping clerk" filed by one William O'Neal on Friday, March 22, and by Frank
Krauser on Wednesday, March 27. There are also four servicemen whose duties
and unit placement will be considered in detail hereafter. It is General Counsel's
position, and perforce District 65's, that on March 25, the day of the bargaining
request, the classification of "shipping clerk" was vacant and that at no time, either
then or thereafter, should the unit include the four servicemen.
a. William O'Neal, the shipping clerk
William O'Neal, the shipping clerk, took sick at noon, Friday, March 22, taking
with him his paycheck for the payroll period ending on the previously day, March 21.
O'Neal did not appear for work on either Monday or Tuesday, March 25 or 26,
although he had indicated when he left that he would be in on Monday. Meanwhile,
Respondent's Vice President Small and Foreman Milano had discussed the billing
work that was then accumulating and were expecting O'Neal on each of the first
2 days of the week. When O'Neal failed to appear by Wednesday, March 27, Frank
Krauser was hired and told he was O'Neal's replacement. O'Neal never returned to
collect the half day's pay due him and efforts to locate him have failed 22
It is General Counsel's position that due to O'Neal's absence on March 25, the day
of District 65's demand for recognition, and thereafter, there were but 13 employees,
excluding the four servicemen. O'Neal, it will be recalled, admittedly left at noon
on Friday, because he was sick, saying he would be in on Monday. Respondent's
officials, moreover, believed O'Neal, expected him on Monday and again on Tuesday,
and General Counsel has adduced no evidence to establish the contrary. To argue,
therefore, that on Monday morning, March 25, at 8 a.m., for this tenuous reason the
bargaining unit has been reduced in number by 1, from 14 to 13, would be tanta-
mount to suggesting that the size of the bargaining unit may be controlled by the
size of the sick and absence lists on any given day. The Board has consistently relied
upon the stabler device of the employer's payroll at a given date as the appropriate
criterion for determining voting eligibility and the composition of the bargaining
unit,23 and no good reason for deviating has been suggested here. On the payrolls
for both March 22 and 28, 14 employees, excluding the disputed servicemen, were
shown to have been employed, and for the purpose of determining the bargaining
unit herein I so conclude and find.
b. The servicemen
Included among Respondent's employees are four with identical duties: Arthur
Simkowitz, Abe Greenberg, Arnold Millman, and A. Samson Teich. Respondent
refers to them as servicemen as does General Counsel in paragraph 6 of the complaint.
rL The foregoing facts are the corroborating, undenied testimony of Small and Milano
which I credit.
28 Simplicity Pattern Company, Inc., 21 NLRB 499.
SPORTSWEAR INDUSTRIES, INC. 771
The principal duties of these employees differ from those of the other 14 employees
in the plant. They are each assigned a given number of customers, usually large
chainstores and discount establishments, and it is their responsibility to see that
Respondent's product being retailed on consignment by such stores is properly dis-
played, is available in adequate size and number to the purchasing public, and that
the merchandising situation is maintained in each store to Respondent's best interests.
The servicemen travel from one customer's store to another performing these duties,
and in so doing use a company car assigned to them. For short periods each morn-
ing, before leaving for their field duties, the servicemen report to the plant premises
and perform routine work usually related to orders going to their respective custom-
ers. Thus for an hour or two daily they will pick orders, i.e., select an appropriate
assortment, as designated by the customer's order sheet, pack the, orders, and perform
such other routine details as may be required of them. For performing the duties
thus described the servicemen receive salaries ranging between $125 and $160 per
week, paid to them on a weekly salary basis without overtime, whereas Respondent's
other employees are paid an hourly wage plus overtime.
In addition to the foregoing duties there is evidence that these servicemen do some
sporadic selling. Sales, however, are handled generally by a staff of commissioned
salesmen who operate independently from the overall plant supervision and work
out of an uptown sales office located in the Empire State Building. Sales to the
major accounts, and these appear to constitute a continuing operation, are written
by Vice President Small, Sales Manager Goldberg, and by "the house," a term re-
ferring to sales written up by whoever is on duty when the order comes in. The
servicemen participate in these "house" sales, whereas the other employees do not.
It is clear, however, that their functions in the field, servicing the accounts assigned
them, do not include selling. They have no supervisory duties and are directly
supervised by Small.24
Both General Counsel and District 65 would exclude this group from the bargain-
ing unit claiming a lack of community of interest with the remainder of the em-
ployees. The Respondent would include them. The servicemen themselves have
never had opportunity to express a preference. I would recommend they be in-
cluded for the reasons which follow.
They perform duties directly related to and frequently dependent upon the duties
of the other employees. On a regular basis they report to the plant for a significant
amount of time and while there perform duties identical to those performed by the
others, including the picking of orders and packing them for shipment, usually those
destined for their own customers. And at customers' stores they maintain displays
of these products. None of the servicemen have supervisory authority and are sub-
ject, together with the other employees, to the active supervision of Vice President
Small, but without the intervening supervision of Foreman Milano.
It is true, of course, that the servicemen are paid differently and at a higher rate
than other employees. However, under the circumstances of such a small and
closely knit operation where all the employees are working on the very items which
the servicemen themselves handle and promote in customers' stores such disparity
of payment is of minimal significance.25
A review of the authorities discloses that there is no impediment to the inclusion
of employees simply because they may be absent from the plant on occasion in per-
forming their work in the field.26 There does not, therefore, appear to be an absence
of a community of interest such as General Counsel urges. Furthermore, the exclu-
sion of these four employees would unnecessarily fragment the bargaining unit, and,
as no other labor organization seeks to represent them, they would be left without
adequate representation. Accordingly, I would recommend they be included in
the unit.
Upon the foregoing, therefore, I conclude and find the following to be a unit
appropriate for collective bargaining:
24 The foregoing findings as to the duties of these servicemen is a synthesis of all the
testimony on the subject as supplied by Vice President Small, Sales Manager Goldberg,
Foreman Milano, and the employees who testified concerning them. I specifically reject,
however, testimony of DeJesus, Quinones, and Reyes to the effect that they never saw the
servicemen work on orders, or in fact that they did not know who the servicemen were.
25 Cf. Arthur S. Carter, d/b/a Carter Camera & Gift Shops, 1,30 NLRB 276, 278, and
footnote 5; Bradley Flying Service, Inc., 131 NLRB 437, 438; White Provision Company,
116 NLRB 1552, 1555.
28 Carter Camera & Gift Shops, supra. See Jones-Dabney Company, Division of Devoe .&
Reynolds Co., 116 NLRB 1556 , 1558 ; Challenge-Cook Bros., Incorporated , 129 NLRB
1235, 1240.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All of Respondent 's employees employed at its 588 Broadway , New York, New
York, premises ; including the shipping clerk and servicemen , but excluding super-
visors, managers , office clerical employees , guards, and watchmen as defined by
the Act.
c. Conclusions
Upon the foregoing it is clear that while an adequate demand was made upon
Respondent for recognition and bargaining by District 65 on March 25, 1963, and
Respondent then and thereafter refused this demand, it has not been established to
my satisfaction that District 65 acted in behalf of a majority of the employees in a.
unit appropriate for bargaining.
Finding as I have that O'Neal was an employee at the time the demand was made
and that the four servicemen should be included in the unit, the actual total com-
ponent of the unit is not 13, as claimed by General Counsel, but 5 more than that
number, to a total of 18. As District 65 represented but nine of this number when
it made its demand it did not satisfy the majority requirement and Respondent was
neither then, nor thereafter, obliged to accede to the recognition and bargaining re-
quested. I accordingly recommend that so much of the complaint as alleges Re--
spondent's unlawful refusal to bargain be dismissed.27
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section IV, above, occurring in con-
nection 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 com-
merce and the free flow of commerce.
VI. THE REMEDY
Having found and concluded that Respondent rendered unlawful assistance and
support to Local No. 2, Cap Makers Union, affiliated with United Hatters, Cap and
Millinery Workers, AFL-CIO, unlawfully discriminated against employee Hector
Zayas, and otherwise interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed them by Section 7 of the Act, I shall recommend that
it cease and desist from such conduct or in any other manner unlawfully interfering
with, restraining, and coercing its employees 28
Affirmatively I shall recommend that Respondent withdraw and withhold any
recognition it has granted to the aforesaid Local 2 unless and until it has been certi-
fied by the National Labor Relations Board as majority representative of Respond-
ent's employees following a Board-conducted election in a bargaining unit which I
have concluded and found to be appropriate for such purposes. I shall further
recommend that Respondent offer immediate and full reinstatement, 29 with backpay
computed in the customary fashion 30 together with interest at the rate of 6 percent
per annum,31 to the employee whom I have found to have been discriminatorily
discharged.
I shall also recommend that Respondent make available to the Board, upon re-
quest, payroll and other data necessary to compute backpay due, that it notify the
employee discriminatorily discharged, if he presently be in the Armed Forces of the
United States, of his rights under the Board's Order, and that it post the required
notices of compliance with the said Order.
RECOMMENDED ORDER
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, I recommend 32 that Respondent, Sportswear In-
dustries, Inc., its officers, agents, successors, and assigns, shall:
-7 Barlow-Haney Laboratories, Inc., 65 NLRB 928, 943-944. Cf. Columbine Beverage-
Company, 138 NLRB 1297, 1298.
2S N.L.R.B. v. Lamar Creamery Company, 246 F. 2d 8 (C.A. 5).
29 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
30 F. W. Woolworth Company, 90 NLRB 289.
-'Isis Plumbing and Heating Co:, 138 NLRB 716.
-' In the event that this Recommended Order be adopted by the Board the word "recom-
mended" shall be deleted from its caption and wherever else it thereafter appears ; and'
for the words "' I recommend " there shall be substituted "The National Labor Relations
Board hereby recommends".,
SPORTSWEAR INDUSTRIES, INC. 773
1. Cease and desist from:
(a) Rendering aid, assistance, or support to Local No. 2, Cap Makers Union,
affiliated with United Hatters, Cap and Millinery Workers, AFL-CIO, unless and
until it is certified by the National Labor Relations Board as the representative of
Respondent's employees in an appropriate bargaining unit. The appropriate unit is:
All of Respondent's employees employed at its 588 Broadway, New York, New
York, premises, including the shipping clerk and servicemen, but excluding super-
visors, managers, office clerical employees, guards, and watchmen as defined by
the Act.
(b) Encouraging membership in Local No. 2 aforesaid, or any other labor organi-
zation, and discouraging membership in District 65, Retail, Wholesale and Depart-
ment Store Union, AFL-CIO, or any other labor organization, by discharging or in
any other manner discriminating against employees in regard to their hire or tenure
of employment or any term or condition of employment.
(c) Unlawfully interrogating its employees concerning their union membership,
interest, or activity, threatening them with reprisals for their membership in one
rather than another union, offering benefits and wage increases for like reasons, and
withholding paychecks until employees join a union of its choice.
(d) In any other manner interfering with, restraining, or coercing its employees
in the exercise of rights guaranteed them by Section 7 of the National Labor Rela-
tions Act.
2. Take the following affirmative action which. it is found will effectuate the
policies of the Act:
(a) Offer immediate and full reinstatement to Hector Zayas to his former or sub-
stantially equivalent position in accordance with and in the manner set forth in the
section 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, time-
cards, personnel records and reports, and all other records necessary for the determi-
nation of the amount of backpay due and the right of reinstatement due under this
Recommended Order.
(c) Notify the above-named employee if presently serving in the Armed Forces
of the United States, of his rights to full reinstatement upon application in accord-
ance with the Selective Service Act and the Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed Forces.
(d) Post at its 588 Broadway, New York, New York, premises, copies of the at-
tached notice marked "Appendix." 33 Copies of said notice, to be furnished by the
Regional Director for the Second Region, shall, after being duly signed by a rep-
resentative of the Respondent, be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees or prospective
employees are customarily posted. Reasonable steps shall be taken to insure that
such notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Second Region, in writing, with 20 days
from the date of the receipt of this Trial Examiner's Decision, what steps the Re-
spondent has taken to comply herewith.34
IT IS FURTHER RECOMMENDED that so much of the complaint in this proceeding
as alleges that Respondent discriminated against Rafael Velez and Victor Reyes
in violation of Section 8(a)(3) of the Act and refused to bargain with District 65
as the representative of a majority of its employees in an appropriate bargaining
unit in violation of Section 8(a)(5) of the Act, be dismissed.
33 In the event that this Recommended Order be adopted by the Board, the words "a De-
cision and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and
Order."
34 In the- event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT render aid, assistance , or support to Local No . 2, Cap Makers
Union , affiliated with United Hatters, Cap and Millinery Workers, AFL-CIO,
unless and until it is certified by the National Labor Relations Board as the
majority representative of all our employees.
WE WILL NOT encourage membership in Local No . 2, Cap Makers Union, or
any other labor organization , nor will we discourage membership in District 65,
Retail , Wholesale and Department Store Union , AFL-CIO, or any other labor
organization , by discharging or in any other manner discriminating against our
employees in regard to their hire or tenure of employment , or any term or
condition of employment.
WE WILL NOT unlawfully interrogate our employees concerning their union
membership, interest, or activity, threaten them with reprisals for their member-
ship in one rather than another union, offer them benefits or wage increases for
like reasons , or withhold paychecks until any of our employees join a union
of our choice.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist the above-named or any other labor organization,.
to bargain collectively through representatives of their own choosing, and to
engage in any other concerted activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any or all 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.
WE WILL offer Hector Zayas immediate and full reinstatement to his former or
substantially equivalent position , and make him whole for any loss of earnings
he may have suffered by reason of the discrimination against him.
All our employees are free to become , remain , or refrain from becoming or remain-
ing, members of Local No . 2, Cap Makers Union, affiliated with United Hatters, Cap
and Millinery Workers, AFL-CIO, or District 65, Retail , Wholesale and Department
Store Union , AFL-CIO, or of any other labor organization.
SPORTSWEAR INDUSTRIES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE: We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Fifth
Floor, Squibb Building , 745 Fifth Avenue , New York , New York , Telephone No.
751-5500, if they have any question concerning this notice or compliance with its
provisions.
Houston Sheet Metal Contractors Association (Kitchen Equip-
ment Division ), Industrial Metal Fixtures, Southern Metal
Manufacturing Company, Inc ., Texas Metal Equipment Co.
and Local Union No. 54, Sheet Metal Workers International
Association , AFL-CIO. Case No. 23-CA-1672. June 26, 196 .
DECISION AND ORDER
On January 30, 1964, Trial Examiner Eugene F. Frey issued his
Decision in the above-entitled proceeding, finding that Respondents
had engaged in and were engaging in certain unfair labor practices
and recommending that they cease and desist therefrom and take
147 NLRB No. 96.