222 N.L.R.B. 627 (N.L.R.B. 1976)

Triumph Curing Center, Inc

National Labor Relations Board - Board DecisionsJan 29, 1976

222 N.L.R.B. 627 (N.L.R.B. 1976)

TRIUMPH CURING CENTER, INC. Triumph Curing Center, Inc. and San Francisco Joint Board, International Ladies' Garment Workers' Union Triumph Curing Center , Inc.; M. F. Lee d/b/a Lee's Sewing Company and San Francisco Joint Board, International Ladies' Garment Workers' Union. Cases 20-CA-9201 and 20-CA-8468 January 29, 1976 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On July 23, 1975, Administrative Law Judge Mar- tin S. Bennett issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a limited cross-exception and refiled its brief submit- ted to the Administrative Law Judge. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions t of the Administrative Law Judge and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondents, Triumph Curing Cen- ter, Inc., and M. F. Lee d/b/a Lee's Sewing Compa- ny, San Francisco, California, their officers, agents, successors, and assigns, shall take the action set forth in said recommended Order except that the attached notice is substituted for the Administrative Law Judge's notice. i The record, by stipulation , indicates that the employees involved herein are members of the International Ladies ' Garment Workers' Union (ILGWU) and are, on the basis of function , assigned to a local by the ILGWU and, further , that the San Francisco Joint Board , Charging Party herein, is a bargaining arm of the ILGWU and governing body of the various locals within its territorial jurisdiction We therefore find that refer- ences throughout the Administrative Law Judge's Decision , and in particu- lar his Conclusions of Law, to "the Union" should properly be construed as referring to all three entities 2 In agreement with the General Counsel, we find that, in the circum- stances of this case , the latter's recommended notice will more adequately and clearly inform the employees of their rights Accordingly, we shall sub- stitute the attached notice for that provided by the Administrative Law Judge APPENDIX 627 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR- RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a hearing at which all parties were permitted to give evidence, that we violated the National Labor Relations Act, we have been ordered to post this no- tice. The laws of the United States give all employees these rights: To organize themselves To form, loin, or help unions To bargain as a group through a representa- tive they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any and all these things. WE WILL NOT solicit employees to withdraw from Local 101 of the International Ladies' Gar- ment Workers' Union. WE WILL NOT circulate a petition soliciting em- ployees to withdraw from Local 101 of the Inter- national Ladies' Garment Workers' Union. WE WILL NOT invite strikers to return to work provided they submit proof of resignation from Local 101 of the International Ladies' Garment Workers' Union. WE WILL NOT require strikers to furnish proof they have resigned from Local 101 of the Inter- national Ladies' Garment Workers' Union be- fore allowing them to return to work. WE WILL NOT assist strikers in processing with- drawals from Local 101 of the International La- dies' Garment Workers' Union. WE WILL NOT in any other way interfere with, restrain, or coerce our employees in exercising the rights guaranteed to them by the National Labor Relations Act. WE WILL bargain with International Ladles' Garment Workers' Union; San Francisco Joint Board International Ladies' Garment Workers' Union; and Local 101 of the International La- dies' Garment Workers' Union as the represen- tative of our pressing department employees, ex- cluding guards and supervisors, and, if an agreement is reached, sign same. TRIUMPH CURING CENTER, INC. M. F. LEE d/b/a LEE'S SEWING COMPANY 222 NLRB No. 103 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE MARTIN S. BENNETT, Administrative Law Judge: This matter was heard on 14 hearing dates between March 4 and April 1, 1975. The amended consolidated complaint issued December 13, 1974, based on a charge in Case 20-CA-8468 filed August 1, 1973, by San Francisco Joint Board, International Ladies' Garment Workers' Union, herein the Union, and based on charges filed by the Union in Case 20-CA-9201 on May 16 and September 20, 1974, alleges that Respondents, Triumph Curing Center, Inc., herein Triumph, and M. F. Lee d/b/a Lee's Sewing Com- pany, herein Lee, have engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act. Briefs have been submitted by the parties. A posthear- ing motion by the General Counsel to correct minor errors in the transcript is hereby granted.' Upon the entire record in the case, and from my obser- vation of the witnesses, I make the following: 1. JURISDICTIONAL FINDINGS Triumph Curing Center, Inc., a California corporation, was located prior to May 8, 1974, at 1170 Howard Street, San Francisco, California, where it was engaged in the pressing of clothes for general contractors under contract to garment manufacturers. The parties stipulated that "during the past fiscal year, Respondent Triumph sold goods or performed services valued in excess of $50,000 to firms, including San Francisco Shirt Works, each of which firms made sales in excess of $50,000 directly to customers located outside the State of California or purchased goods valued in excess of $50,000 directly from suppliers located outside the State of California." M. F. Lee d/b/a Lee's Sewing Company is a sole propri- etorship ostensibly wholly owned by Ms. Marian F. Lee 2 with a place of business at 1875 Mission Street in San Francisco, where it is engaged in the sewing and pressing of garments for various manufacturers; Lee also operates two other garment facilities in the Chinatown district of San Francisco. The parties stipulated that during the past year Lee's has performed services valued in excess of $50,000 for a San Francisco firm known as Grant Avenue Fashions, which in turn shipped goods and products val- ued in excess of $50,000 directly to points outside the State of California. I find that the operations of Triumph and Lee affect commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED International Ladies' Garment Workers' Union; San Francisco Joint Board, International Ladies' Garment 1 The proposed correction of p. 1677 inadvertently lists 1. 6 instead of 1. 8 Other minor errors in the transcript do not affect the sense of the testimony. 2 Shown in the transcript as Marion Workers' Union, which is a bargaining arm of the former; and Local 101 of International Ladies' Garment Workers' Union are labor organizations within the meaning of Sec- tion 2(5) of the Act. III. THE UNFAIR LABOR) PRACTICES A. Introduction; the Issues Triumph and the Union have been parties to several contracts covering pressing employees at the 1170 Howard Street, San Francisco, California, location of Triumph. Recognition was initially granted without an election, it appearing that Triumph did not then meet the Board's ju- risdictional standards, although, as found, at all times ma- terial herein it does. The most recent contract was duly terminated by notice from the Union, expired December 1, 1973, and negotiations for a new contract commenced prior thereto. Triumph is owned solely by Floyd Andrews and his wife Irene. At the time of the instant hearing, it was shut down and out of business in its own name and, alleg- edly, according to Floyd Andrews, but a corporate shell. Andrews wears other hats, including one as a general contractor in the garment business located at the time rele- vant herein at 1019 Market Street, San Francisco. All three locations are near each other. This ties in with the fact that in the San Francisco Bay Area garment manufacturers, al- though designing and marketing their products, generally do not produce them. They will contract with a general contractor, such as Andrews wearing that hat, who in turn subcontracts to various subcontractors, such as Triumph. Lee was also such a subcontractor and received much work from Andrews as a general contractor. The record also discloses that Andrews in the latter capacity had sub- contracts with 15 shops in San Francisco's Chinatown area and, although not explicitly set forth in such words, it would seem that the Union in its 1973-74 negotiations with Triumph was not only interested in reaching Triumph at potential locations other than 1170 Howard Street, but, in addition via appropriate contract language, was also inter- ested in reaching other subcontractors with whom An- drews had business relations. The General Counsel contends that Lee is an alter ego of Tnumph;3 that they as a single-integrated enterprise and point employer engaged in surface bargaining with the Union for a new contract; that Respondent violated the Act by shutting down Triumph and transferring its press- ing operations to Lee; and that Respondent unlawfully sponsored a decertification petition, conditioned employ- ment upon withdrawal from union membership and inter- rogated employees concerning their union membership. The Union ultimately struck Triumph on March 29, 1974, and is still picketing the premises of Lee. Playing a prominent part herein is one Charles Hom. Andrews originally testified that he hired Hom, with expe- rience in labor contract negotiations in behalf of Hughes Airwest during prior employment with the latter, and also an accountant proficient in Chinese and active in the Chi- a The General Counsel has other cumulative theories which I deem un- necessary to explicate in view of the findings hereinafter made TRIUMPH CURING CENTER, INC. 629 natown area, to be his negotiator with the Union for a new contract. - He later testified that Hom could have been hired at the end of 1972 and was with Triumph when it received the Union's notice in May 1973 to terminate the contract. Hom, and this is relevant to the refusal-to-bargain allega- tion, allegedly had no limitations placed on his authority to negotiate. According to Hom, he is an accountant and business consultant to Floyd Andrews at his 1019 Market Street location and, as described more fully below, he does, at the request of Floyd Andrews, provide services to Lee, such as quarterly tax returns, advice and investments, and on its credit such as how to pay its bills and maintain its credit ratings 4 B. The Refusal To Bargain While out of chronology, the gravamen of this case, as I view it, is this facet of the case, namely, the General Counsel's claim that Triumph bargained in bad faith with the Union and that Lee and Triumph, and for that matter Andrews as well, are one joint employer or integrated en- terprise. A preponderance of the evidence supports this contention and further warrants the conclusion that Triumph did not bargain in good faith. A consideration of various factors set forth below, and these are not all that are in the record, leads me to the conclusion that Triumph and/or Andrews purported through Horn to be bargaining in good faith with the Union, while they simultaneously commenced arrangements, prior to a strike by the Union on March 29, 1974, to transfer its operations to Lee. Triumph claims that it also had lease problems on its premises. As will be set forth below, this is not realistically supported and casts substantial doubt on its claim that union strike pressure resulted in loss of customers and that this was the reason why the pressing operations were trans- ferred to Lee, allegedly, a disinterested subcontractor. I deem it unnecessary therefore to set forth the full histo- ry of the bargaining negotiations, also relied on by the General Counsel and the Charging Party, except in several crucial areas, as at best this would not add to the remedy set forth below and might add substantially to the length and might not add to the quality of the decision. See re- marks of Justice Blackman, reported July 8, 1975, San Jose Mercury News (California). There were approximately 19 meetings between the parties. The Union sent a notice to terminate the contract, which expired in December 1973. Mattie Jackson, negotiator for the Union, was tied up with other negotiations and sought an initial meeting in Octo- ber. Charles Horn requested a later date and they met on November 13, 1973. Jackson encountered some difficulty in arranging a sec- ond meeting. She, wired Andrews demanding a second meeting prior to the contract's expiration date. Andrews wired back that January would be the earliest available 4 Certain conduct in 1973, discussed later, is attributed to Mabel Bobo Ford, then an admitted supervisor for Respondent Triumph and also a shop steward for the Union This is reflected in the earlier complaint set forth above and a settlement thereof was later set aside by the Regional Director, which in this case I believe to have been justifiable. date. Jackson in turn proposed December 12. This was not responded to and the Union filed unfair labor practice charges in Case 20-CA-8846 on December 21, 1973, but these were later withdrawn. Business Representative Mirgon of the Union was un- able to get Triumph to agree to extend the contract until January 15, 1974, but Hom did sign two memorandum agreements wherein the parties agreed to make any neces- sary payments to the Union's welfare and vacation funds. The second meeting was held on January 15, 1974, and was followed by meetings at the union offices on January 17 and 22, February 13, and March 14. Subsequent meetings were held at the offices of the Federal Mediation and Con- ciliation Service on March 14 and 15 and thereafter. A March 26 meeting was postponed to March 28 due to Horn's inability to appear. Later meetings were held through May 8, on which date negotiations were broken off by Triumph on the basis that it was out of business, although it did offer to discuss and treat with the effect of this termination on Triumph's employees. What I find most difficult to believe is that Horn admittedly told Jack- son on April 29 that the Triumph future looked good, yet he contended that he did not learn of the May 8 closure until on or about the previous day. A key meeting under the auspices of the Federal author- ities relied on by the General Counsel was fixed at various dates and apparently took place on April 9. This was at- tended by John Anderson, attorney for the Union; Jack- son; and by Horn and Robert Magor, one of counsel for Respondent, and appearing for the first and only time. Mirgon also was present. Jackson testified that she showed Magor a side letter presented to Hom at the previous meeting. Magor re- sponded that Respondent was not interested in any side letter, that Respondent-had previously submitted a coun- terproposal and that this was the only contract to which Respondent would agree. Magor did concede herein that he withdrew agreement previously reached concerning the union-security language because he was concerned about its legality and the possibility of its being construed as a closed-shop agreement. At the behest of the mediator, the parties went through the two proposals and did arrive at agreement on some and disagreement on other clauses. According to Magor, he flatly did not make the state- ment that Respondent's counterproposal was the only one Respondent would agree to. Magor was a clear and forth- right witness, with considerable experience in the labor re- lations field, and had taken notes of the meeting to which he referred, as had Jackson. He was corroborated by Horn, who in this area, unlike others, I credit. Jackson in turn was a rambling witness who demonstrated confusion in a num- ber of instances as to the dates of meetings and as to whether the topic of discussion was the language in the Union's proposal or that in Respondent's counterproposal. I therefore credit Magor herein. I note as follows: 1. Andrews testified that a main factor in closing down Triumph was his inability to renew the lease on the prem- ises. He allegedly received a note on March 5, 1974, since misplaced, from KSW Properties, the owner of the 1170 Howard Street premises, stating, that his lease, due to ex- pire at the end of March, would not be renewed, although 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he could continue on a month-to-month basis through Oc- tober. This was signed by Thomas Reichling, general man- ager for KSW Properties. According to Andrews, this fol- lowed a telephone call from Reichling to the same effect. Andrews was able to postpone his departure briefly, but on November 6 he was sent a 30-day notice of cancellation. Reichling , a most impressive witness and obviously a disinterested third party, contradicted Andrews in many basic respects . He flatly testified that neither he nor anyone else in his office, which has a staff of seven beneath him, ever contacted Andrews prior to June 1974 about the can- cellation or renewal of the lease, and as of that date KSW had made no arrangements to lease the premises. He fur- ther testified that a brief memo to the files concerning these premises was not sent to Andrews, consistent with company policy.' According to Reichling, he telephoned Andrews on sev- eral occasions between May and October, was unable to reach him and there was no reply. A letter sent to Andrews in August about the premises was not answered, although he therein asked Andrews to contact him. Reichling's rec- ords do disclose that in September, Andrews telephoned and asked for a new lease. Andrews attempted to explain this by testifying that he called on this occasion because another business venture of his, Marcello-S, a manufacturer of men's shirts, needed a fabric warehouse. This concern, it is interesting to note, was then located at 1019 Market Street, and is now located at 1875 Mission in the same building where Lee is located. I further note that Andrews testified that in the fall of 1974, because Triumph was "broke," he in person, or via Marcello-S, paid the rent at 1170 Howard rather than Triumph. This was in direct conflict with earlier testimony by him that neither he, in person, nor Marcello-S had ever paid the rent at 1170 Howard. Needless to say, his contact of KSW in September destroys his prior argument that as of May 8 he knew he would be forced out of the premises because of the lease and because of the loss of business from his manufacturers due to the strike activities. 2. Andrews maintained that Triumph and Lee were sep- arate subcontractors who happened to work for the same general contractor, namely, Floyd Andrews. But, in 1974, a bookkeeper on the payroll of Lee which had approximately 60 employees, a complement larger than that of Triumph, also did the Triumph payroll. Indeed, the payrolls were combined at 1875 Mission, where Lee had moved in 1972, and Triumph allegedly reimbursed Lee therefor. 3. Lee does not pay Floyd Andrews rent for the work it does on three floors at 1875 Mission when working on An- drews' merchandise, although when, on occasion, it does work for another contractor, it makes a payment based on the floor space used. The record discloses that the great bulk of Lee work is done for Andrews. 4. Floyd Andrews owns all the sewing machines used by Lee at 1875 Mission and testified that this is not unusual for a general contractor in the garment business. While 5 The premises known as 1170 Howard Street are part of a parcel of property with four adjacent tenants. KSW chose to continue on a month-to- month basis , according to Reichlmg , so as to remain flexible in the event a tenant desiring the entire parcel came along claiming that he also owns the sewing machines used by other subcontractors working on his merchandise as a gen- eral contractor, he also testified that in these other cases, and he named a number of them, this generally consisted of special machines performing unique operations and con- stituting but 20 percent of the machines utilized by these subcontractors. 5. Andrews initially testified that he had no business ventures other than Triumph and a general contracting business. When pressed, he conceded that he was the sole stockholder in Marcello-S, described above in connection with the abortive lease of September 1974 of the premises on Howard Street. He also testified that Charles Hom was the comptroller of this concern; Hom testified that he worked for Andrews, was paid by him, and did not know how Andrews differentiated the work. 6. In my judgment, a cogent item of evidence as to the relationship between Triumph and Lee is the purchase of certain pressing equipment. This transaction was initiated in January 1974 while Hom, in behalf of Triumph, was duly engaged in negotiations with the Union for a new contract.6 Charles Catallo owns Nor-Cal Plumbing, sells and installs pressing equipment for the garment industry and has known Andrews for many years. Catallo, a clear and forthright witness with no interest in the merits of the instant dispute, testified, and I so find, that Andrews tele- phoned him late in January 1974 7 for a boiler and ten steam irons and directed that they be installed at 1875 Mis- sion Street, the premises of Lee; this was manifestly a com- mercial installation. Due to the press of business, Catallo did not get to the task until late in April. In their discussions, Andrews asked him to also install other equipment, including an air-vacuum system and some form finishers; the latter are known as suzies. This other equipment, Catallo was told by Andrews, was locat- ed at the Howard Street location of Triumph. Andrews asked that he inspect them. Catallo noticed the picket line, advised Andrews that his men would not cross the line, and Andrews responded that he would take care of moving the equipment. There is ample evidence from Catallo and em- ployees'at Lee who thereafter recognized the equipment as Triumph equipment which ultimately found its way to the Lee premises at 1875 Mission. Andrews also purchased three rebuilt pressing machines from Catallo, who installed them at the Lee premises at 1875 Mission. Catallo, in addi- tion, recognized certain equipment at that location in- stalled by others as Triumph equipment from Howard Street. Thereafter, Catallo encountered some difficulty in being paid for his equipment and services. He spoke with Albert Young, manager of Lee at Mission Street since 1972. He threatened to remove the equipment unless he was paid. Young brought him to Hom and introduced Hom as the bookkeeper for Lee.8 Hom promptly placed a telephone 6 The initial introductory meeting between the parties was held on No- vember 1, 1973, the second meeting was held on January 15, 1974, and the final meeting on May 8 7 He initially testified that this was in January. In his affidavit he placed this as January 28 8 Hom initially testified that he has no position with Lee He then conced- ed that he was a "financial adviser" to Lee and that in his employment with Andrews he would provide services to Lee at the request of Andrews, such TRIUMPH CURING CENTER, INC. 631 call and directed a lady to make out the necessary checks for Catallo. Catallo received, I find, four checks in June and July, all drawn on the account of Lee and signed by Andrews. The last payment was made in September 1974. Catallo flatly denied that Young ever wrote him a check for this equipment. In'this respect, I further note that An- drews also admitted that he, on occasion, signed Lee pay- roll checks. This is not explained. Young presented what might be best described-as fanci- ful testimony concerning this entire transaction. He initial- ly testified that it was he who ordered the equipment from Catallo.9 After Catallo's testimony described above, Young later testified that he asked Andrews' advice as to what equipment to install, and Andrews also later testified that, after talking with Young, he as well had called Catallo. Young's testimony varied from slow comprehension to rapid response as the occasion warranted. He initially testi- fied that he acquired two suzies from Catallo. Later, he stated that he did not know who installed the suzies or who owned them. He also surprisingly maintained that he did not know whether former Triumph equipment was located on his first floor.10 Although ostensibly the plant manager, he did not know if Horn had a position or office there, although conceding that he saw Hom on the premises once or twice a week; and there is testimony below that Hom used a desk-there. He insisted that he asked the bookkeeper for Lee to pay Catallo and testified that the latter never asked to be paid by Andrews. All of this was despite the fact that Hom previously testified, as set forth, about being financial ad- viser to Lee; this I am unable to accept. Furthermore, while knowing Lee's telephone number, Young did not know whether it was listed in the telephone directory. There are other inconsistencies or improbabilities but, in view of the foregoing, as indicated, I credit the testimony of Catallo herein with respect to the purchase of and pay- ment for the pressing equipment and his other testimony as to all contacts with Floyd Andrews, Triumph, and/or Lee. Concluding Findings The record well demonstrates that Floyd Andrews has exercised complete control over Lee since 1972. The sewing division of Lee, now located at 1875 Mission Street, has been operated at no cost to Lee and at the expense of Andrews who holds the lease and pays the rent for the entire three-story property.il Andrews owns the sewing machines as well as the cutting equipment which, in the 3-month period prior to the instant hearing, was moved to Mission Street from the Market Street address. As the General Counsel points out, Marian Lee, the purported owner of Lee, owns no assets at the 1875 Mission Street premises. as reviewing their quarterly tax returns, investments, and the state of Lee's credit 9 The name is misspelled at p. 112 of the transcript, but I find that it is manifestly a reference to Catallo. 10 All pressing at Lee is done on the fast floor The second and third floors are utilized for sewing operations 11 Except when Lee on occasion performs work for another general con- tractor and then pays a rental rate based on the square footage it occupies. In addition, the payrolls for Lee and Triumph have been -combined and are done by a Lee employee at the 1875 Mission Street address. Significantly, Andrews has the au- thority and does sign payroll checks for Lee and personally ordered equipment involving a major capital investment, such as a commercial boiler, pressing machines, and irons, and has signed the checks of Lee to pay for same. This was not explained. He has the authority to direct the employees of Lee to work overtime and controls the day-to-day pro- duction process. Andrews provides the employees of Lee with all or al- most all of the production work it performs. Prior to May 8, 1974, every garment sewn at Lee was taken to Triumph to be pressed and to no other installation. Triumph itself had no drivers or delivery trucks, so garments were not only delivered to it on the trucks of Lee, but also were returned to the manufacturer from Triumph on trucks owned by Lee. There is evidence that Andrews has hired employees for Lee. I find therefore that Triumph, An- drews, and Lee are one integrated employer. See N.L.R.B. v. Sweet Lumber Co., 519 F.2d 785 (C.A. 10, 1975); Senco, Inc., et al, 177 NLRB 882 (1969); and Freda Redmond and Sir James, Inc. 147 NLRB 1025 (1964). Al Young, the ostensible manager of Lee, displayed con- siderable absence of memory about how Lee operated. He did not know where the trucks of Lee delivered merchan- dise, what dollar volume Lee did with its largest customer, San Francisco Shirt Works, and did not even know who owned the pressing equipment on the first floor of Lee. I conclude that Andrews ran the entire operation and that Young obviously avoided calling the truth as it was. The inference is well warranted that when Triumph moved out of its Howard Street premises it simply relocat- ed itself at 1875 Mission Street in San Francisco. The suzie machines, manifold system, irons, and pressing boards in use at Mission Street all emanated from the Triumph premises or were purchased by Andrews., Supervisors Ford and Martinez, admittedly supervisors at Howard Street, simply relocated themselves at Mission Street. Indeed, Hom, comptroller for Triumph, became the financial ad- viser for Lee. - A comparison of the payrolls shows that a majority of the workers in the first floor pressing department of Lee were former Triumph employees, some of whom had.been solicited to return to work at Lee and did so.12 The record indicates that in May, and then in October 1974, Lee solic- ited Triumph strikers or employees to work at Lee and that they did so. As the General Counsel points out, records furnished by Respondents reflect that by the end of May all 13 employees in the first floor pressing department at Lee had previously worked at Triumph, prior to its shut- down on May 8. In June, 15 of the 17 were former Triumph workers; in July, 14 of the 20; in August, 13 out of 18; in September, 14 out of 30; in October, 15 out of 24; in November, 13 out of 23; and, finally, 10, out of 15 in December. I find that at all times material herein the Union has been and is the representative of the pressing employees of 12 There is no dispute, and I find, that the pressing employees of Triumph, now at Lee, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Sec. 9(b) of the Act. 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Triumph and the pressing department employees of Lee within the meaning of Section 9(a) of the Act. That the Union was not initially certified is of no import in this context. See N.L.R.B. v. Frick Company, 423 F.2d 1327 (C.A. 3, 1970). Needless to say, if this pressing department and its employees are again relocated at still another loca- tion, under comparable circumstances, the same conclu- sions would apply. As found, the Triumph employees struck on March 29 in protest of the conduct of Triumph at the bargaining table. And I have also heretofore found that, commencing in Jan- uary of that year, Triumph and Andrews took major steps, in effect, to run away from the Howard Street location and reestablish Triumph at Lee on Mission Street. I find there- fore that Respondent Triumph has evaded its obligation to bargain in good faith within the meaning of the Act and that it and Lee have engaged in unfair labor practices with- in the meaning of Section 8(a)(5) and (1) of the Act. I also find that the entire collective-bargaining procedure was a sham and that the strikers were unfair labor practice strik- ers protesting the ostensible bargaining being carried on. Even assuming that they were economic strikers at the in- ception of the strike, I find that they became unfair labor practice strikers on and after May 8, 1974, protesting the sham bargaining being carried on, and particularly the de- vious method by which Triumph was shifted to Lee. C. Interference, Restraint, and Coercion The Union attempted to commence bargaining negotia- tions in May 1973. In July, Mabel Bobo Ford, an admitted supervisor for Triumph and also a shop steward, gathered the Triumph employees in small groups and spoke with them. i3 The testimony of Delia Montano and Anna Garcia is to the effect, and I so find, that Ford told them that she had received a telephone call from "someone" to the effect that the employees should abandon the Union and that, with- out the Union in the picture, employee benefits would be improved. She specified that there would be 2 weeks' paid vacation, death insurance, no cut in piece rates, and ample work. She also stated that if they did not abandon the Union, Triumph would close down and the work sent else- where; as noted above, this in essence is what happened in 1974. The next day, with mixed success, she circulated a petition among the employees seeking signers to remove the Union. Ford testified that she received an unexpectedly small vacation check through the Union and that this triggered her resentment. Her demeanor and testimony lacked trust- worthiness, although I do credit her testimony that her va- cation check was less than what she had expected. She admitted telling the girls that they would receive the same vacation and other benefits as the employees at Lee.14 Her testimony may best be described as being all over the lot. She initially, at a union trial, denied circulating the petition, but later admitted telling Mattie Jackson of the Union as well as union counsel that she had not circulated the petition. She also gave some testimony that she circu- lated the petition to raise money for an employee who had lost her wallet. In an affidavit in September 1973, she deposed that An- drews had told her that employee benefits at his other com- panies would surpass those at Triumph. Her testimony also vacillated between denial of remarks attributed to her and her admission that her affidavit was to the contrary. On the night of April 1, 1974, just after the start of the strike, Ford telephoned Mei Yuk Wan, a striker, asked if she would like to return to work and received an affirma- tive reply.15 The following night, as Wan testified, Ford called again and started to explain that Wan would have to send a letter resigning from the Union and provide a copy thereof to Triumph. Because of the communication barrier, Wan turned the telephone over to her teenage son, Mi- chael, a most impressive witness, whose testimony I credit. Ford told Michael Wan that in order for his mother to return to work she should send a registered letter of resig- nation to the Union and provide a copy to Triumph. Mi- chael duly typed such a letter, obtained the signature of his mother, and mailed it the following morning. That same morning Mrs. Wan received a telephone call directing her to report to Al Young of Lee at 1875 Mission Street. She did so and gave him a copy of her resignation letter. As she testified, Young asked if she preferred to work there or return to Triumph at 1170 Howard. Indicating a preference for the latter, she was taken there and gave a copy of her resignation from the Union to Irene Andrews. On May 20, 1974, Lee sent letters to all former Triumph employees offering them jobs. Striker Gregory King testi- fied, and I find, that in response to the letter he visited Manager Al Young of Lee on May 23. He spoke with Young and Hom in the first floor office at 1875 Mission Street . Young told him that there was a job available, but that he initially would have to quit the Union. Hom added that the easiest way to accomplish this was by telegram, wrote out the wording of the wire, provided King with the telephone number of Western Union and allowed him to use his office telephone. 16 Hom, on the other hand, admit- ted telling King how to write out the wire, looked up the Western Union telephone number and allowed him to use the telephone- King was duly allowed to return to work. Artemio Sayio, Jr., another striker, received the same letter sent to King, telephoned Ford at home and asked if this was a legitimate inquiry; she assured him that it was and advised him to contact Young. He did so several days later, as he testified, and was told by Young he had a job if he quit the Union. On May 27, Sayio visited the union hall and abortively attempted to withdraw his union member- ship. On the following day, he visited Hom at 1875 Mission Street in an office on the first floor and reported his expen- ence. As Sayio testified, Hom suggested that he send a 15 Wan speaks broken English, testified with some aid from an interpret- 13 The Union at that time was unaware of her dual status. Shortly thereaf- er, and was able to repeat in English some of Ford's statements ter, the Union removed her from the latter role 16 Young, previously found a most unimpressive witness, on cross-exami- 14 This manifestly supports the conclusion above that as far back as July nation demonstrated evasiveness and denied ever being in the first floor 1973 Andrews controlled Lee office together with Hom and King TRIUMPH CURING CENTER, INC. 633 wire, gave him the telephone number of Western Union and allowed him to use the office phone for this purpose. A few days later, he reported for work at Lee and was asked by Young and Ford if he had quit the Union; he re- sponded that he had and was put to work.17 I find that, by the foregoing conduct, Respondent has engaged in conduct violative of Section 8(a)(1) of the Act. See J. A. Patterson, 217 NLRB No. 175 (1975). Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Triumph Curing Center, Inc., and M. F. Lee d/b/a Lee's Sewing Company are employers, a single integrated business, and a joint employer engaged in the pressing of clothes within the meaning of Section 2(2) of the Act. 2. International Ladies' Garment Workers' Union; San Francisco Joint Board, International Ladies' Garment Workers' Union; and Local 101, International Ladies' Garment Workers' Union, are labor organizations within the meaning of Section 2(5) of the Act. 3. All pressing department employees of Respondents, excluding guards and supervisors, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein the Union named above has been the representative of the employees of Respon- dent in the above-described appropriate unit, including those at the premises of Lee at 1875 Mission Street, San Francisco, within the meaning of Section 9(a) of the Act. 5. By engaging in sham bargaining at the premises of Triumph, by deviously transferring its operations to the premises of Lee, and by denying the Union recognition at either premises, Respondents have engaged in unfair labor practices within the meaning of Section 8(a)(5) and (3) of the Act. 6. The strikers of March 29, 1974, in protest of the fore- going conduct were unfair labor practice strikers. 7. By the foregoing, by soliciting employees to withdraw from the Union, by circulating a petition soliciting such withdrawal, by inviting strikers to return to work if they submitted proof of resignation from the Union, and requir- ing such proof, and by assisting strikers in procuring such withdrawal, Respondents have engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action 17 Hom admitted that he told Sayio that he should send the Union a wire, but did not recall if Sayio then placed the call He denied providing him with the language for the resignation wire Hom, otherwise a meticulous witness, was less than impressive in this area . I therefore find that he did precisely what Sayro attributed to him. designed to effectuate the policies of the Act. Respondents have argued vigorously and adduced con- siderable testimony, countered by the Charging Party, con- cerning purported strike misconduct. It is urged that the Board therefore withhold a bargaining order under the au- thority of Laura Modes Company, 144 NLRB 1592 (1963). I note additional authority in Allou Distributors, Inc., 201 NLRB 47, where six union agents attempted to forcibly procure the withdrawal of a decertification petition. The Charging Party has directed attention to New Fair- view Hall Convalescent Hospital, 206 NLRB 688 (1973), where the Board reversed a recommendation that a bar- gaining order be withheld. It relied on the fact that the conduct occurred sporadically during a 4-month long strike, involved a small proportion of strikers, and took place against a background of frequent and recurring un- fair labor practices. Surely, in the present case, Respon- dents' unfair labor practices go beyond that as they were constant. It is noteworthy that all allegations of misconduct took place during the first month of the strike, which has lasted for over 1 year and is still continuing. Indeed, the last al- leged incident late in April took place while Respondent was still in the process of running away from Triumph to Lee and ultimately shut down Triumph on May 8, 1974. Needless to say, this early conduct did take place in the early days of a heated strike. For a case involving similar conduct in an election context, see N.L.R.B. v. Bostik Divi- sion, USM Corporation, 517 F.2d 971 (C.A. 6, 1975). In perspective, while not condoning these alleged incidents, I think that the equities balance in favor of not applying Laura Modes herein 111 also find that a broad remedy is in order. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER 19 Respondents Triumph Curing Center, Inc., and M. F. Lee d/b/a Lee's Sewing Company, San Francisco, Califor- nia, their officers , agents, successors , and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize or bargain with International Ladies' Garment Workers' Union; San Francisco Joint Board International Ladies' Garment Workers Union; and Local 101 of -the International Ladies' Garment Workers' Union, as the representative of their pressing employees 18 Certain conduct, such as threatening to throw acid apparently not in his possession in the face of Irene Andrews, was attributed to former organ- izer Richard Sorro, now working for an affirma tive action office for the Mayor of San Francisco , although initially her testimony was that it was said by two others in his presence He was also accused of setting a fire in a trash can beside the building and kicking on a rear door Although he was a most unimpressive witness whose denials I do not credit, I still adhere, on balance, to the views set forth above 19 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions and Order, and all objections thereto shall be deemed waived for all purposes. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD now located on the first floor of Lee at 1875 Mission Street, San Francisco, or at any other location they may be trans- ferred to. (b) Soliciting employees to withdraw from the above- named labor organizations; circulating a petition soliciting such withdrawals; inviting strikers to return to work pro- vided they submit proof of resignation from those labor organizations and requiring such proof; or assisting strikers in procuring or processing such withdrawals. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of- the rights guaranteed them under Section 7 of the National Labor Relations Act, except to the extent such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Upon request, bargain with International Ladies' Garment Workers' Union; San Francisco Joint Board, In- ternational Ladies' Garment Workers Union; and Local 101, International Ladies' Garment Workers' Union as the representative of the above-described pressing bargaining unit employees, formerly at Triumph, now at Lee, or wher- ever they may be transferred and, if an agreement is reached, sign same. (b) Post at its premises in the pressing department of Lee at San Francisco, California, copies of the attached notice marked "Appendix." 20 Copies of said notice on forms provided by the Regional Director for Region 20, after being duly signed by representatives of Respondents, shall be posted by them immediately upon receipt thereof and maintained for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondents to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 20, in writ- ing, within 20 days from the date of this Order, what steps they have taken to comply herewith. 20 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board"