Watertown Undergarment Corp.

National Labor Relations Board - Board Decisions

May 24, 1962

137 N.L.R.B. 287 (N.L.R.B. 1962)

WATERTOWN UNDERGARMENT CORPORATION 287
Under these circumstances I must and do find that the General Counsel has failed
to sustain the burden of proof on such issue. (See Casa Grande Cotton Oil Mill,
11ONLRB 1834.)
In arriving at the findings and conclusions on which my recommendations herein
are based , I have carefully considered all of the evidence adduced and have based my
findings and recommendations on the entire record in this case.
CONCLUSION OF LAW
On the basis of the foregoing , I conclude that Dal -Tex Optical Company, Inc., the
Respondent herein, has not violated Section & ( a)(1) or ( 3) of the Act as alleged in
the complaint herein , as amended.
RECOMMENDED ORDER
I therefore recommend that the complaint herein , as amended , be dismissed in its
entirely.
Watertown Undergarment Corporation and Local 223 of the
International Ladies' Garment Workers' Union . Cases Nos.
1-CA-3/.36 and i-CA-3461. May 24, 196.
DECISION AND ORDER
On November 16,1961, Trial Examiner Charles W. Schneider issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report, together with a supporting brief,' and the
General Counsel filed a brief.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and finds merit in certain exceptions of the Respondent.
Accordingly, the Board adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent they are con-
sistent with the Decision and Order herein.
1. We concur in the Trial Examiner's findings that the Respondent
interfered with, restrained, and coerced employees in violation of
Section 8(a) (1) of the Act; and that the Respondent admittedly
"stalled" the Union during negotiations, failed to make good-faith ef-
forts to secure resolution of disputed issues, repudiated agreements
reached with the Union, engaged in a course of coercive action at its
plant designed to secure repudiation of the Union by the employees,
1 The Respondent ' s request for oral argument is hereby denied as the record , including
the exceptions and briefs , adequately presents the issues and the positions of the parties.
137 NLRB No. 34.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and negotiated an employee insurance program without notification
to the Union, in violation of Section 8(a) (5) and (1) of the Act.
2. The Trial Examiner further found that the Respondent refused
to sign a contract containing terms which had been agreed upon be-
tween the parties, and recommended that the Respondent be ordered
to sign an agreement with the Union, upon the Union's request, in-
corporating the terms of a particular document. We disagree with
this finding and shall not, therefore, adopt this recommendation for
the reasons set forth below.
A. The relevant facts
The negotiations went through several phases. In the first phase,
which began on January 26, 1960, Janis, an ILGWU official, and Mil-
ton Goldstein, the Respondent's representative, reached tentative
agreement on some of the Union's oral demands,2 with the understand-
ing that any agreements they reached were subject to final approval
by the Respondent's president, Berkley, and by its attorneys.
The second phase commenced on July 7, 1960, when Janis brought
to a negotiating conference the Union's standard form contract, which
contained numerous provisions not in the Union's original demands,
and, apparently, not previously discussed by Janis and Goldstein. The
meeting concluded with agreement by Janis and Goldstein on every
provision of this document, as modified by them, except for the follow-
ing proposed addendum to article XXVII the article providing for
no-strike no-lockout pledges :
It is expressly understood and agreed that Berkliff Undergarment
of New York City and any manufacturer contractor or sub-
contractor working for said Berkliff are affiliated with or related
to the Employer herein 3
At the end of August or early September 1960, this document, as
retyped by the Union, was submitted by Janis to Goldstein, who for-
warded it to Berkley. On September 8,1960, this document, referred
to herein as General Counsel's Exhibit No. 8,4 was submitted to one of
the Respondent's attorneys, Arnold Goldstein of the law firm of Con-
rad & Smith, with a covering letter, over the signature of "Berkliff
Undergarment Corp.," referring specifically to the proposed ad-
dendum to article XXVII, and indicating strong objection to incor-
2 The precise terms of these tentative agreements do not appear in the record
3 Berkley , president of the Respondent , which is a Waterbury, Connecticut , plant , is also
president of Berkliff Undergarment Corporation , whose offices are in New York City, and
owns all the stock in Beauty Maid Mills, a North Carolina plant The sole customer of
the Respondent and Beauty Maid Mills is Berl.liff , which provides the material for which
the Respondent and Beauty Maid Mills furnish labor
4 Neither the original nor a copy of this document is in evidence During the hearing
herein, however , a reconstruction of this document was prepared by Janis pith the
assistance of the Union 's attorney , Schlesinger , was offered in evidence , and was admitted
by the Trial Examiner as General Counsel ' s Exhibit No. 8
WATERTOWN UNDERGARMENT CORPORATION 289
poration of the name "Berkliff Undergarment Corp." in the contract.
On October 10, Respondent Attorneys Goldstein and Conrad, who
met with Janis and Milton Goldstein to discuss General Counsel's
Exhibit No. 8, objected particularly to the addendum to article
XXVII, and to the fact that General Counsel's Exhibit No. 8 was
based on a printed standard form contract whereas the parties for-
merly negotiated generally on the basis of supplements and amend-
ments to their basic agreement of January 29, 1954.5 The meeting
concluded with the understanding that a 5-percent wage increase was
to be put into effect immediately, retroactive to July 1, 1960; 5 that
resolution of article XXVII would be held in abeyance for the 6 to 8
weeks Conrad would be in Florida; and that the Union would prepare
a document in the form of a supplement to the parties' previous
agreement?
At the end of January 1961, the ensuing phase began when Janis,
having been informed that Conrad was not yet available, telephoned
Schlesinger and instructed him to "prepare a memorandum of under-
standing to supplement the prior contract." Schlesinger, on oral in-
structions by telephone from Janis, and without reference to General
Counsel's Exhibit No. 8 or any guides other than his telephone con-
versation, prepared a "Memorandum of Understanding" in language
which he testified was "a creation of my mind completely." This
"Memorandum of Understanding," in addition to providing for re-
newal of the parties' previous contracts, was substantially a state-
ment of the tentative agreements Janis and Milton Goldstein had
reached prior to their consideration of the Union's printed standard
form contract on July 7. However, it also contained provisions des-
ignated as articles 11 and 12 1 which the record does not indicate were
ever agreed to by Janis and Milton Goldstein.
'The parties ' contractual relations commenced with a letter of agreement to a vacation
schedule , dated October 28, 1953, and thereafter included a formal agreement and supple-
mentary letter , both dated January 29 , 1954 , a supplementary memorandum dated
September 11, 1956, and supplementary agreements dated April 1, 1955, and Septem-
ber 18, 1957, respectively. All these documents constituted the agreement between the
parties, which terminated on December 31, 1959.
6 The 5-percent wage increase was put into effect by the Respondent in accordance with
this understanding.
v It is not clear whether this supplement was to be a redraft of General Counsel's Ex-
hibit No. 8 or a written embodiment of the tentative agreements which Janis and Milton
Goldstein had reached prior to their consideration of the Union's printed standard form
contract on July 7
s Articles 11 and 12 provide as follows:
Article 11
In order to safeguard working standards and employment opportunities of the
workers covered by this and other agreements in the garment industry, it is agreed
that all garments or parts thereof handled by the Employer during the teim of this
agreement, whether finished or partly finished, shall be manufactured exclusively
either in its own shop or, as parts of an integrated process of production under the
jobber-contractor system of production, in a shop under contract with it unit of the
International Ladies' Garment Workers' Union, and accordingly the Employer shall
649856-63-v oI. 137-20
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 7, 1961, Janis forwarded two copies of this "Mem-
orandum of Understanding" to Attorney Goldstein with a covering
letter referring to the enclosed "proposed agreement," and requesting
that Goldstein "look these over and when we meet on Thursday at 3
p.m. which is the time of our appointment with the firm and yourselves
at my office, we can finish this matter up." Goldstein made no re-
sponse to this letter and no such meeting was held. About 3 weeks
after the Union's submission of this "Memorandum of Understand-
ing," Schlesinger telephoned Goldstein. According to the credited
testimony of Schlesinger, Goldstein said that "there was still some
question about the Southern Shop Clause that had not been re-
solved." 9 Schlesinger testified further that, 3 weeks later, he again
telephoned Goldstein, who stated that "his efforts had been unavailing
in getting the company to sign the agreement," whereupon Schlesinger
requested its return so that the Union could attempt to secure its
execution.
On April 20, 1961, at Berkley's request, a luncheon meeting was held
between Berkley and Kramer, an ILGWU official who was Janis'
superior. Kramer offered to waive article 12 of the "Memorandum
of Understanding," but Berkley refused to sign such an agreement.
Berkley offered to sign an agreement if the 5-percent wage increase
provision were deleted and if the Respondent's contributions to the
health and welfare fund were suspended for a year. Kramer refused
this offer.
Although Kramer testified that he did not have a copy of the "Mem-
orandum of Understanding" at this luncheon meeting, Schlesinger, on
April 24, 1961, sent a letter to the Respondent asserting that Kramer
had presented Berkley with the "Memorandum of Understanding" at
that meeting, that Berkley had objected only to article 12 thereof,
"claiming that the same had not been agreed upon," that Berkley re-
not handle , purchase , import, or otherwise obtain , directly or indirectly , any other
wholly or partly finished garments whatsoever during the term of this agreement
Article 12
In order to safeguard further the working standards and employment opportunities
of workers covered by this agreement , the Employer hereby agrees that any and all
work heretofore performed in the Employer ' s shop in Waterbury including but not
limited to slips, gowns, shortie pajamas, including also, but not limited to , trimming,
applique and the like, shall not be performed for the Employer by any other firm,
corporation or partnership by whomever owned or wherever located as long as the
Union is the exclusive bargaining agent for the workers covered by this agreement,
provided , however, that such work may be performed outside the shop of the Em-
ployer, with the Union's consent, for so long as the workers covered by this agree-
ment are fully supplied with work and no loss of employment of earning results
from such a diversion of the work
Schlesinger testified that article 11 was "a standard boilerplate provision which appears
in our contracts now," and that article 12 was drafted in his own language "completely
from top to bottom "
9It appears that the term " Southern Shop Clause" was used by the parties to refer
both to article XXVII of General Counsel's Exhibit No 8 and to article 12 of the
"Memorandum of Understanding " The latter provision was involved in the above
conversation.
WATERTOWN UNDERGARMENT CORPORATION 291
fused to sign the agreement even when Kramer offered to delete this
article, and that the Union was therefore filing charges against the
Respondent.
Thereafter, on May 6, 1961, at the request of Larkin, who was then
the Respondents' attorney, the parties met in an attempt to reach a
settlement. At this meeting, the Union presented the Respondent with
a document, in evidence as Respondent's Exhibit No. 2 and referred
to herein as Respondent's Exhibit No. 2, which was identical to the
"Memorandum of Understanding" except for the deletion of article
12.10 The Union requested that the Respondent execute it, but the Re-
spondent refused to do so on the ground that it had never agreed to
Respondent's Exhibit No. 2; moreover, it questioned the Union's ma-
jority status. A second settlement meeting was held on June 26, at
which the Union presented the Respondent with a new contract, not in
evidence. It was Berkley's testimony that although this contract was
"satisfactory," no agreement was reached at the meeting because (1)
he refused to pay several thousand dollars which the Union claimed
was owed for health and welfare fund contributions; and (2) Produc-
tion Manager Pomerantz, who had replaced Ludwig, told him not to
sign any agreement with the Union before checking employee senti-
ment. On the following day, the Respondent held an election, prior
to which Production Manager Pomerantz told the employees, among
other things, that if the majority of them voted "yes," the Respondent
would negotiate a contract with the Union; but, if they voted "no,"
the Respondent would "fight the Union." A majority of the employees
voted "no."
B. Concluding findings
We are convinced, from the all the facts of this case, that the Re-
spondent and the Union never reached final agreement on all the
contract terms in issue between them or on a particular document.
While Milton Goldstein and Janis, prior to July 7, 1960, reached
tentative agreements on various matters, these agreements were super-
seded by General Counsel's Exhibit No. 8, which was subject to final
approval by Berkley and the Respondent's attorneys. Such approval
was never granted. Instead, the parties agreed on October 10 that
the Union was to prepare another document in the form of a supple-
ment. Inasmuch as this document, as submitted on February 7, 1961,
contained terms never previously agreed to by the parties, it constituted
a new proposal. We do not find that the Respondent ever agreed to
this new proposal, either in its original form as the "Memorandum of
Understanding," or in its amended form as Respondent's Exhibit
1O Berkley testified that he received Respondent 's Exhibit No 2 from Janis sometime
after April 20, 1961, that, after Janis departed, he reviewed it with his son, Herbert,
and that he objected to many of its provisions It is not clear whether this occurred
before or after the May 6 settlement meeting.
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No. 2. At no time subsequent to the Respondent's receipt of the "Mem-
orandum of Understanding" did the Respondent or its attorney signify
approval of it. Instead, that document was ultimately returned to
the Union at the Union's request. When the Union subsequently
offered to delete article 12 thereof, a subject of dissension between the
parties, the Respondent again refused to execute such a document, but
offered to reach agreement upon certain conditions. These conditions
the Union refused to accept. When Respondent's Exhibit No. 2 was
later presented to the Respondent, it, too, was rejected. Nor was agree-
ment reached with respect to the proposed contract, not in evidence,
which the Union presented at the second settlement meeting.
Accordingly, while we find that the record clearly establishes that
the Respondent failed in its duty to bargain in good faith with the
Union, we are not convinced that all the terms of the collective bargain-
ing were ever finalized between the parties and, accordingly, we do not
find that the Respondent violated the Act by refusing to execute an
agreement incorporating the terms of Respondent's Exhibit No. 2, or
any specific terms." Under these circumstances, we shall not order
the Respondent to execute a particular document, but shall order it to
cease and desist from its refusal to bargain collectively with the
Union, and, upon request, to bargain collectively with the Union as
the exclusive representative of its employees in the appropriate unit,
and, if an understanding is reached, to embody such understanding
in a signed contract.12
ORDER
The Board adopts the Recommended Order of the Trial Examiner
with the following modifications :
1. Paragraphs numbered 1(c) and 2 (a) are deleted.
2. Paragraph numbered 2(b) is modified by deleting the introduc-
tory phrase:
"If no such demand is made, then."
3. Paragraph numbered 2(d) is modified to read: "Notify the Re-
gional Director for the First Region, in writing, within 10 days from
"See Crown Drug Company , 136 NLRB 865 ; Ridge Citrus Concentrate, Inc, et al.,.
133 NLRB 1778; Shreveport Garment Manufacturers, supra; Feed and Supply Center,
Inc, 127 NLRB 276, enfd . 294 F 2d 650 ( CA 9) , and North Carolina Furniture, Inc.,
121 NLRB 41, 42.
Member Brown would find that a complete agreement resulted on April 20, 1961, when
the Union withdrew its demand for a "Southern Shop" clause , which was the only issue
outstanding from October 10, 1960, to April 20 , 1961. Member Brown would affirm the
Trial Examiner and require Respondent to sign the agreement which is fairly embodied
in Respondent's Exhibit No 2.
12 As we are finding contrary to the Trial Examiner that an agreement was not reached'
with the Union which the Respondent could be ordered to sign, we find it unnecessary to
adopt or pass upon the Trial Examiner 's holding that the Union's demands were not un-
lawful under the Act. The alleged illegality of the Union ' s demands was raised by the-
Respondent for the first time in its brief to the Trial Examiner , and was never adverted
to in its negotiations with the Union. Accordingly, we find that it was not an operative
factor in the negotiations and is no defense to the Employer 's failure to, bargain in good
faith
WATERTOWN UNDERGARMENT CORPORATION 293
the date of this Order, what steps the Respondent has taken to com-
ply herewith." 13
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it
alleges that the Respondent violated Section 8(a) (5) and (1) of the
Act by refusing to execute "an entire contract reached on or about
April 20, 19 61."
ii The notice attached to the Intermediate Report is hereby modified as follows* (1) The
words "A Decision and Order" are substituted for the words "The Recommendations of
a Trial Examiner" , (2) in the event that this Order is enforced by a decree of a United
States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision
and Order" the words "Pursuant to a Decree of the United States Court of Appeals,
Enforcing an Order" ; (3) the first paragraph is deleted , (4) the introductory phrase of
the second paragraph, "if no such request is made," is deleted, (5) in the third para-
graph, the phrase, "or by refusing to sign or execute collective-bargaining contracts on
which agreement has been reached," is deleted, (6) the following is added as the last
paragraph following the paragraph beginning: "This notice must remain posted for 60
days . . • "Employees may communicate directly with the Board's Regional Office,
24 School Street, Boston 8, Massachusetts, Telephone Number, LAfayette 3-8100, if they
have any questions concerning this notice or compliance with its provisions "
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, in which the General Counsel of the Board alleged that the
Respondent had violated Section 8(a) (1) and (5) of the National Labor Relations
Act (73 Stat. 519, 29 U.S.C.A. 141, et seq.), was heard before Charles W. Schneider,
the duly designated Trial Examiner, on June 28, 29, and 30, July 31, and August 1,
1961, at Waterbury, Connecticut, and at New York, New York, on August 2 and 3,
1961. Upon motion an Employees' Committee, representing a group of employees
who had filed a petition with the Board, pursuant to Section 9 (c) (1) of the Act, to
decertify the Charging Union, Local 223, was permitted to intervene to the extent of
its interest. On September 28, 1961, the General Counsel, and on October 2, 1961,
the Respondent and the Intervenor, filed briefs, which have been considered.
Upon the entire record in the case, including my evaluation of the credibility of
the witnesses based upon the evidence and observation of their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Connecticut corporation maintaining its principal office and plant
in the city of Waterbury, Connecticut, where at all material times it has been en-
gaged in the manufacture, sale, and distribution of women's undergarments. In
connection therewith Respondent receives directly from sources outside the State
of Connecticut cotton and synthetic products valued in excess of $50,000 per annum,
and ships directly to States outside the State of Connecticut finished products valued
in excess of $50,000 per annum. It is admitted that the Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 223 of the International Ladies' Garment Workers' Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issue
Briefly stated the issue is whether the Respondent refused to bargain with the
Union, and engaged in other restraintful and coercive conduct by the actions, here-
inafter described, of certain supervisors and officials of the Respondent.
At the time the instant controversy arose the Union had been the contractually
recognized bargaining representative of the Respondent's employees since 1954. The
last contract expired on December 31, 1959. Negotiations for renewal were initiated
in January 1960. The contention of the General Counsel and the Union, denied by
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent , is that by the latter part of 1960 the parties had reached agreement
on all outstanding issues, with the exception of a so-called "Southern Shop " clause.
More specifically, the General Counsel and the Union contend that the differences in
this respect involved only language, that the issue was deferred by mutual consent
at the request of the Respondent , that thereafter the Union deleted its demand for
the clause , and that the Respondent then repudiated the agreement and made uni-
lateral changes in employment conditions. Additionally it is contended that begin-
ning in the fall of 1960 and continuing into the spring and early summer of 1961 rep-
resentatives of the Respondent engaged in various coercive acts , namely, threatening
employees with reprisals in employment unless they got rid of the Union, threatening
to close and to move the plant, threatening to move out machines , promising em-
ployees benefits for getting rid of the Union , circulating a petition seeking the ouster
of the Union , and interrogating employees about their union and concerted activities.
The Respondent denies these allegations . It contends that it at all times bargained in
good faith with the Union, denies that it ever reached a definitive agreement with the
Union. The Respondent further asserts that as a consequence of dissatisfaction with
the Union on the part of a large number of employees which resulted in the filing
of a decertification peition ( subsequently dismissed ) with the Board in March 1961,
the Union no longer represents a majority of the employees.
We turn now to the narrative of these events as I find them to have occurred.
Insofar as the findings involve matters which are the subject of dispute the findings
reflect what I have concluded , after careful consideration , to be the creditable and the
preponderant evidence and testimony.
B. The negotiations
Negotiations began, and most sessions were held , in New York City. The first
meeting was on January 26, 19 -60. Representing the Respondent at this meeting
were Lou Berkley , its president , and Milton Goldstein , an industrial engineer and
management consultant ; representing the Union were Sam Janis , assistant general
manager of the Union 's eastern region , several local union officials , and a Shop Com-
mittee composed of employees . President Berkley designated Milton Goldstein as
the Company's negotiator , authorized to negotiate an agreement subject to approval
by the Respondent . Janis was designated by the Union as its representative in the
negotiations . It was mutually understood that legal aspects of any agreement
reached were subject to review by the Respondent 's attorneys.
At the first meeting the Union presented its demands , several of which were then
and there agreed to. The Union's proposals were used as the basis of the subsequent
negotiations . The record does not disclose that the Respondent ever submitted
formal written counterproposals . Thereafter , Negotiators Milton Goldstein and Sam
Janis held a series of bargaining meetings, attended at times by other representatives
of the parties. The details of these meetings need not be reviewed. Suffice to say
that the evidence establishes that , by July 1960 , except for the "Southern Shop"
clause, the negotiators had reached agreement , and the Respondent 's approval had
been secured , on all stated outstanding issues. Among the approved agreements was
a 5-percent wage increase payable July 1, 1960-a compromise of an original union
demand for 15 percent and initial company offer of 2 percent.' At a meeting on
July 7, 1960, attended by Milton Goldstein, Janis, and Solomon Ludwig, then the
Respondent 's production manager, the parties, using the Union 's standard form con-
tract as reference , reviewed the terms of agreement clause by clause , and reached
accord as to substance and form with regard to all issues other than the "Southern
Shop" clause. With respect to that provision Milton Goldstein told Janis that as now
worded the clause-which had been the subject of substantial discussion and revision
1 The "Southern Shop" clause imposed restrictions upon the diversion to other plants
or employers of work normally done at the Respondent's plant-if such diversion would
result in a reduction of employment by the Respondent
The Union's particular object in pressing this clanse was Beauty Maid Mills, a plant at
Statesville, North Carolina The Respondent and Beauty Maid Mills are contract shops
The sole customer of each is Berkliff Undergarment Corporation, with offices in New York
City. The Respondent and Beauty Maid Mills supply only labor on the garments--the
goods being provided by and being the property of Berkliff Undergarment Corporation
Lou Berkley is the president and directing head of Berkliff and the Respondent controls
both those corporations and owns all the stock in Beauty Maid Mills The Union con-
sidered the three companies to be affiliated, the Respondent contending that they are
unrelated The issue need not be decided
WATERTOWN UNDERGARMENT CORPORATION 295
during the negotiations-appeared satisfactory to him, but that he would have to get
clearance on it from his principal, President Lou Berkley.2
Before the close of .the July 7 meeting Union Representative Janis agreed to pre-
pare a new draft contract incorporating the agreements reached and to forward it to
Milton Goldstein. Ultimately Janis forwarded such a document to Goldstein, includ-
ing the "Southern Shop" clause. Goldstein transmitted the agreement to the Re-
spondent's president, Lou Berkley, telling Berkley that he thought that the parties
had reached substantial agreement and that this was the best contract he could
negotiate. Subsequently Berkliff Undergarment Corporation sent the draft to
Attorney Arnold Goldstein (not to be confused with Milton Goldstein) of the firm
of Conrad and Smith, for review. Thereafter, having had no response, Janis made
inquiries of the Respondent as to the delay. Under date of September 12, 1960,
Production Manager Ludwig wrote Janis to the effect that the document had been
forwarded to Attorney Goldstein and that the matter was in abeyance because of a
death in Attorney Goldstein's family. Ludwig assured Janis that the Respondent
would take all possible steps to expedite the conclusion of the matter. However,
attempts by Janis to secure conclusion of the agreement were unsuccessful. For at
this point, to use his own words, President Berkley began to "stall." 3
In early September 1960, Union Representative Janis threatened a strike unless
the 5-percent wage increase was put into effect. President Barkley promised to grant
it, and the Union announced it to the employees on September 16. But in October
the increase still had not been paid, and Janis again had to threaten to strike.
In September or October 1960 President Berkley and other officials and super-
visors at the Waterbury plant began to make statements to employees indicating
that the plant would be closed or moved to Statesville, and suggesting abandonment
of the Union. These are detailed later.
Unlike the contracts for prior years, which had been in the form of supplements,
generally annually, to the original agreement of 1954, the contract submitted by Janis
after the July 7, 1960, meeting, incorporating the agreements reached at that meeting,
was an integrated contract. It was basically a printed form, and it contained some
new language.
After President Berkley's tactics in stalling Janis and in sending him to talk with
other company officials, Janis met with these officials in a meeting which Alan Berkley,
vice president of the Respondent and son of Lou Berkley, placed at sometime in Sep-
tember. The credited testimony does not disclose any apparent matter in controversy
at this meeting. Alan Berkley's testimony is that "through the discussion there was
a general area or feeling of agreement."
The next meeting was held on October 7, 1960. Vice President Alan Berkley who,
up to September 1960 had had no part in the negotiations, was the apparent spokes-
man for the Respondent. Other participants were Milton Goldstein and officials of
Berkliff Undergarment Corporation and of the Respondent. The parties discussed
the Union's draft contract. The credited testimony is that Vice President Alan
Berkley questioned two provisions in the draft. The 5-percent wage increase, and the
"Southern Shop" clause. With respect to the wage increase, Janis and Milton Gold-
stein told Alan Berkley that it had been agreed upon, Janis adding that he would not
renegotiate at this stage. As to the "Southern Shop" clause, Janis suggested an
immediate consultation with the Respondent's attorneys, Conrad and Smith, to resolve
any issue. Attempts to secure such a consultation on that day were unsuccessful, but
a meeting was arranged in the office of Conrad and Smith for October 10, 1960. No
3 As Production Manager Ludwig testified, "An area of agreement had been reached
subject to proper language and . . approval " Milton Goldstein's testimony was that
except for the "Southern Shop" clause, "every demand made by the Union was disposed
of either by complete agreement, by agreement after modification, or by withdrawal of
the demand " Janis' testimony, in sum , is that after the July 7 meeting the parties were
in agreement
3 \Vhile the negotiations were going on, President Berkley had purchased the interest
of his associate in the Respondent, Philip Lipton, assuming additional financial burdens
At the same time sales volume was falling off President Berkley's testimony amply sup-
ports his admission of desire to avoid executing an agreement, to wit. Throughout the
period of late summer and fall 1960 Union Representative Janis besought him to sign an
agreement , finally with "a certain amount of impatience", he (Berkley) "had been stall-
ing" and "wanted to continue stalling" ; in September he told Janis on one of these occa-
sions "Don't rush me, I never do anything without my lawyers" ; on another occasion, in
September or October, when Janis inquired of him whether he wanted an agreement and
Berkley wished to "continue stalling," Berkley sent Janis "downstairs" to talk to other
company officials. Lou Berkley never read the Union's contract proposals
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
objection was raised to any other provision of the draft and, other than as stated, the
parties were in apparent agreement.4
The October 10 meeting was held as arranged. Present were Attorney William
Conrad, Milton Goldstein, San Janis, and-for some of the time-Attorney Arnold
Goldstein. Attorneys Goldstein and Conrad indicated their dislike of the format of
the draft contract and suggested that the agreemnet should be in the form of a supple-
ment to the existing contract-a suggestion to which Janis acceded. The Respondent's
representatives again objected to the "Southern Shop" clause. Conrad, who was not
in good health and about to leave for Florida, asked Janis whether the matter had to
be settled immediately. Janis said that it did, "today." He alluded to the long months
of negotiation, stated that the parties were in agreement on all other matters, and that
he wanted the contract signed Conrad thereupon telephoned Janis' superior, Edward
Kramer, vice president of the Union and general manager of its eastern region, with
whom Conrad was acquainted. Conrad explained the situation to Kramer and asked
that the matter be held in abeyance until his return from Florida in 6 to 8 weeks.
When Kramer suggested to the reluctant Janis that they accommodate Conrad, Janis
raised an additional objection: The wage increase which had been promised, and
which the Union had announced to the employees on September 16, had not yet been
paid, and if something were not done there would be a strike. Janis reiterated that
everything else had been negotiated. Conrad then turned to Milton Goldstein and
asked if everything else had been settled. Milton Goldstein replied to the effect that it
had, that the parties were in essential agreement. Union Representative Kramer,
who had confidence in Conrad's word, then agreed to defer the matter if the wage
increase were immediately paid, and persuaded Janis to that understanding. Attorney
Conrad then telephoned President Lou Berkley and told him that the Union was will-
ing to defer the "Southern Shop" clause but that it insisted that the 5-percent wage
increase be put into effect. Berkley agreed, Conrad so informed the union repre-
sentatives, and the meeting broke up with the understanding that the wage increase
would be put into effect and that the parties would dispose of the "Southern Shop"
clause upon Conrad's return from Florida. The Union also assented, at the Re-
spondent's insistence, that the agreement be put in the form of a supplement to the
old contracts, rather than a completely integrated new document
After this meeting Milton Goldstein concluded that negotiations were completed
as far as he was concerned. Later in October the wage increase was put into effect
i etroactive to July 1, 1960 5
In late October or November 1960 and twice in the month of January or February
1961, company and union officials met to discuss local plant problems and layoffs.
There was no discussion of the contract at any of these meetings. There were, in
fact, no further meetings to discuss the contract until April 1961, under circumstances
to be disclosed.
Attorney Conrad's condition did not improve to the point where he was able to
conclude the matter. In the latter part of 1960 Union Representative Janis began to
call the office of Conrad and Smith as to when Attorney Conrad would return from
Florida. Eventually-apparently early in 1961-Attorney Arnold Goldstein reported
to Janis that Conrad had become seriously ill. At the time of hearing Attorney
Conrad had not resumed practice.
After this conversation with Arnold Goldstein, Janis had his attorney, Peter
Schlesinger, draft the contract in the form of a supplement to the existing agreement,
in accordance with the request of Conrad and Smith at the October 10 meeting, and,
under date of Tuesday, February 7, 1961, Janis forwarded this document to Attorney
Arnold Goldstein, with an accompanying letter expressing the hope that at a meeting
scheduled for the following Thursday, "we can finish this matter up " The record
does not reveal that any such meeting was held. Though this contract had been
drafted to meet the Respondent's objections to an integrated instrument, and its
stated preference for a supplement, when a document identical thereto, except for
the deletion of paragraph 12 (the "Southern Shop" clause), was later presented to
the Respondent for signature, President Berkley objected to it, according to his testi-
mony, because it was a supplement and not an integrated instrument: "It was getting
too complicated."
4 Though Alan Berkley's testimony suggests that he had "personal" reservations as to
certain of the items of agreement, he indicated no official objection Testimony to the
effect that Alan Berkley also questioned the form of the contract at this meeting is not
credited, though in the light of subsequent events the issue does not appear to be critical
5 There is no explanation in the record as to why the remaining issue was not referred
for disposition to Attorney Arnold Goldstein, to whom the Union's original draft had been
sent for clearance, rather than await the return of Attorney Conrad from Florida
WATERTOWN UNDERGARMENT CORPORATION 297
In the meantime dissatisfaction, some endemic and some an obvious consequence
of the Union's inability to conclude an agreement with the Respondent, and stimu-
lated by suggestions and other conduct of the Respondent, was developing among the
employees. These occurrences are discussed infra.
The Union received no response to Janis' letter of February 7, 1961. Twice there-
after, at intervals of about 3 weeks, Attorney Schlesinger telephoned Attorney Arnold
Goldstein about the matter, and was told, in effect, that the question of the "South-
ern Shop" clause was still unresolved. On the second of these occasions, in late
March or early April, Schlesinger asked Goldstein to return the document, saying that
the Union would handle the matter directly. The record does not reveal any state-
ment of position, proposal, or suggestion by the Respondent during this period of
time concerning the "Southern Shop" clause or any other matter involved in the
contract negotiations
Upon the advice of Attorney Schlesinger, the Union then decided to withdraw its
demand for the "Southern Shop" clause. Schlesinger thereupon redrafted the con-
tract to delete that clause and, as thus revised, transmitted the agreement to the
Respondent. This is the document, previously referred to, which President Berkley
found objectionable for, among other reasons, that it was not an integrated instrument.
In the meantime a petition for decertification of the Union had been filed by em-
ployees on March 15, 1961, followed 5 days later by union charges of unfair labor
practices against the Respondent. On April 17, 1961, the Acting Regional Director
dismissed the decertification petition on the ground that no question concerning rep-
resentation existed. No appeal was taken from this action.
On the day following this dismissal, April 18, 1961, President Lou Berkley tele-
phoned the Union's vice president and region manager, Edward Kramer, Janis'
superior, and asked Kramer to meet him for lunch, alone. Kramer accused Berkley
of seeking to decertify the Union, which Berkley did not directly deny, but an appoint-
ment was made, and Kramer and Berkley met on April 20. At this time, and for
some time past, most employees had not been working full time.
At the April 20 meeting, Kramer told President Berkley that the Union was
withdrawing its request for the "Southern Shop" clause and asked Berkley to sign
the contract without that clause. Berkley, alluding to financial difficulties, said
that to sign the contract would put him out of business, and asked Kramer to give
him "a break." Berkley then stated that he would sign the agreement on certain
conditions, namely: (1) That the 5-percent wage increase be withdrawn, (2) that
payments by the Respondent to the welfare fund be suspended for a period of a
year, and (3) that the provisions for severance pay and for a minimum pay scale
15 cents above the Federal minimum wage be deleted.6 Kramer replied that this
was impossible, but offered to make an investigation of the circumstances, including
inspection of the Respondent's financial records, and if warrant for modification
were disclosed, to attempt to secure employee consent. Berkley told Kramer that
the employees were willing to waive the 5 percent. In consideration of these
concessions, President Berkley told Kramer that he would bring machines back
from the South and thus increase the Union's dues income from the shop?
The net result of the April 20 meeting was that Lou Berkley refused to sign the
contract proposed by Kramer, and Kramer refused to accept the modifications pro-
posed by Berkley. Within the week the Union filed a new unfair labor practice
alleging that the Respondent refused to bargain collectively by, inter alia, refusing
to execute the contract.
On May 6, 1961, a meeting was held at the office of the Respondent's Waterbury
counsel, Mr. Larkin, attended by representatives of the Union and of the Respond-
ent. So far as here material, the sum of this meeting was as follows The Union
presented a written draft of the terms previously agreed to or found unobjectionable
by the Respondent, but without the "Southern Shop" clause, and demanded that
the Respondent sign it. This document, Respondent's Exhibit No. 2, in the form
of a supplement to the existing contract, is-save for the deletion of the "Southern
Shop" clause-the same as the draft submitted to Conrad and Smith after the
October 10, 1960, meeting. The Respondent's representatives refused to execute the
contract, stating that none of the items, other than the 5-percent wage increase, had
been agreed to. As to the 5-percent provision, the Respondent said that that would
have to be withdrawn. The Respondent's representatives further said that they
wished to negotiate an agreement, urging as justification certain economic and
operational problems. The Union refused to renegotiate the settled matters, on
e President Berkley testified that he also objected to other items, which he did not,
however, identify in his testimony
7 For an explanation of President Berkley's references to the attitude of the employees
and to moving the machines back, see section III, C, 1, infra
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the ground that they had been bargained to mutual conclusion. However, the Union
offered to seek solutions to the Respondent's stated problems once the agreement
was signed. The meeting ended without change in position by either side.
At a subsequent meeting of the parties about June 26, 1961, the Union proposed
an adjustment, the terms of which are not disclosed, which President Berkley ac-
cording to his testimony deemed favorable, and on the following day the Respondent
held an election, described hereinafter, among the employees as to whether the
Respondent should make a contract with the Union. The vote was against
acceptance.
C. Interference, restraint, and coercion
While the above events were taking place, officials and supervisors of the Re-
spondent were engaging in conduct at the Waterbury plant alleged to constitute
unfair labor practices, or to be illuminative of the Respondent's animus or opposi-
tion to the Union and its bargaining positions. These will be treated chrono-
logically. Some of the incidents are undenied. Where the facts are disputed the
findings hereinafter are based on testimony which, after evaluation, and from ob-
servation of the demeanor of the witnesses, I deem most credible. Some incidents
concerning which the General Counsel adduced evidence are not adverted to. I
find that these do not reflect unfair labor practices, either because I have not
found probative the General Counsel's testimony concerning them, or have found
more credible the Respondent's opposing testimony, or because, accepting either
version, the occurrences do not constitute substantial evidence.
(1) Statements of President Berkley and Production Manager Ludwig: About
late September or October 1960, President Lou Berkley, on a visit to the plant,
spoke to employees Virginia Costa and Mamie Ogletree, union committeewomen,
and told them that if the Union was kept in he would move machines to Statesville
(the location of Beauty Maid Mills). Costa and Ogletree told President Berkley
that they had no authority to break up the Union. Several weeks later some machines
were moved out of the plant. In this conversation President Berkley also told the
employees that business was bad and there was no work and that because of the 5-
percent wage increase the Respondent could not compete. The girls' spokesman
asked what the situation would be if they would "forget about the five percent."
President Berkley responded that the girls should do "whatever your heart dictates." 8
In October 1960, Solomon Ludwig, then the Respondent's production manager,
told employee Antoinette D'Amico, chairman of the Union, that if the Union pushed
the Company too far it would move out.9
(2) Herbert Berkley's statement to D'Amico: About the early part of December
1960, Herbert Berkley, son of President Lou Berkeley, and a supervisor and repre-
sentative of management, came to Union Chairlady D'Amico at her place of work
and asked D'Amico to arrange a meeting with him of the union committee. D'Amico
asked the reason Berkley said that the Union was making trouble and that if the
Union wanted the shop to move out to let him know so that he would not fix his
offices. He further told D'Amico that a nonunion shop in Waterbury was expanding,
whereas the Respondent was getting smaller and smaller because the Union was
pushing it too far.
(3) Herbert Berkley's statement to the group in the lunchroom: At lunchtime
on the day of the incident just described, Herbert Berkley spoke to employees Vir-
ginia Costa and Mamie Ogletree in the lunchroom. Herbert Berkley said that if
the Union stayed his father would move the plant to the South. Employees D'Amico
and Mira Squillacioti joined the group. Herbert Berkley asked whether they would
go on strike if the southern shop struck. D'Amico, speaking for the group, re-
sponded to the effect that she could not answer.
s The record indicates that a reduction in piece rates, following the 5-percent increase.
resulted in an actual diminution in pay for some pieceworkers in the sewing room, and
was a source of dissatisfaction However, most employees benefited from the increase
There is no explanation for this reduction
'No finding of unfair labor practices is made on either of these incidents The evi-
dence does not clearly establish that the occurrences involving President Berkley occurred
during the period 6 months prior to the filing of the charge-a requisite under Section
10(b) of the Act for a finding of unfair labor practices The incident involving Solomon
Ludwig is not alleged in the complaint However, the evidence of both occurrences is
relevant to evaluation of the Respondent's other conduct Arelson Manufacturing Com-
pany, 88 NLRB 761 ; Edwards Brothers, Inc., 95 NLRB 1451 , Coppus Engineering Corpo-
ration v N L R B, 240 F 2d 564 (C.A 1) ; Superior Engraving Company v N L R B,
183 F 2d 783 (CA 7), cert denied 340 US 930.
WATERTOWN UNDERGARMENT CORPORATION 299
In the same conversation Herbert Berkley asked the employees how much dues
they were paying. Squillacioti said $4 a month. Herbert Berkley commented that
$48 a year was a lot of money for the benefits, and said they could be getting the
same benefits without the payments. He told the employees to think the matter
over, and to come to talk to him about it, because he knew that they were not
looking for any trouble.
(4) Production Manager Pomerantz' statements to Costa: About December 15,
1960, Production Manager Eli Pomerantz came to employee Virginia Costa's place
of work in the plant and suggested to Costa that the Union was no good and
should be gotten rid of, and that since Costa was on the union committee she
should get the employees to break up the Union. Pomerantz went on to say that
if Costa did so she would have steady work and all the benefits, but that if the
Union stayed the plant would move. Costa replied to Pomerantz, as she had to
President Berkley, that she had no authority to break up the Union.
(5) Supervisor Conte's statement to employee Alcorace: About January 15,
1961, employee Grace Alcorace, who was on sick leave, spoke to her supervisor,
Caroline Conte, on the telephone. During this conversation Alcorace asked Conte
about a rumor to the effect that the employees had been given 3 weeks to make up
their mind as to whether they wanted a union. Conte told Alcorace that the
rumor was true and that the girls had been notified that if the Union stayed in, the
shop would be closed, but that if the Union got out there would be plenty of work.
(6) The circulation of the petition for the ouster of the Union: On February 22,
1961, several rank-and-file employees began to solicit signatures of employees to
a document or petition bearing the heading "Out With The Union." This action
took place in the plant, partially on working time. Other employees donned signs
to the same effect which they carried on their backs. One sign was posted in the
lunchroom. Union demands for removal of the signs were refused by Herbert
Berkley and Production Manager Pomerantz, Berkley not wanting it to appear
that they were "going against the girls."
Some of the employees in the plant spoke Italian but could not speak English.
Although some of the solicitors for signatures could speak Italian, Supervisors Be-
atrice Bounacassio, Josephine Catalino, and Nicholas DeZinno, at the request of
solicitors, spoke to employees in Italian and explained that the purpose of the
activity was to get the Union out of the plant. Supervisor Catalino told employees
to do what they "thought right" about it.
The Respondent made no attempt to regulate this activity. More than a majority
of the employees signed this document.
(7) Statements of Supervisors Bounacassio and Conte to employees: On the day
the circulation of the antiunion petition began, February 22, 1961, Supervisor Bouna-
cassio spoke to a group of girls in the finishing department and told them that Mr.
Berkley had said that if the girls got rid of the Union there would plenty of work
in the shop and that they would need to pay only $2 a month (insurance premiums)
to get the same benefits.
Later in the same day Supervisor Bounacassio came to employee Isabel Simmons,
a member of the union committee, and told Simmons that the plant would be closed
in 3 weeks because of the Union.
Sometime prior to the distribution of the petition, Supervisor Caroline Conte
also told a group of girls that the plant was going to close.
(8) The document against union dues: In the latter part of April 1961 another
document appeared in the plant bearing the heading "We The Undersigned Refuse
To Pay Our Union Dues." This document was circulated among the employees for
signatures. In the cutting room Foreman DeZinno explained it to Carmena Fonzo,
though there is no indication in DeZinno's testimony that the solicitor asked for
assistance or that it was required. As with the petition to oust the Union the
Respondent made no attempt to interfere with or to question his activity. A sub-
stantial number, but less than a majority of the employees, signed this document.
(8) Squillacioti and the collection of union dues: Though the activities of em-
ployees in promoting the two petitions opposing the Union were unimpeded, Herbert
Berkley and Production Manager Pomerantz called in employee Mira Squillacioti
in early June 1961 and told her they had information that she was collecting union
dues on worktime, which Squillacioti denied. Pomerantz suggested that Squillacioti
secure from employees desiring to have their dues paid to the Union signed authoriza-
tions to be deposited with the Respondent. Squillacioti did not assent to this
proposal.
(10) The election: During the week prior to the hearing, the Union offered
the Resnondent an adjustment which the Respondent -assertedly contemplated favor-
ably On June 27, 1961, informed that some employees would quit if the Company
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed with the Union, the Respondent assembled all the employees in the plant
on Company time and Production Manager Pomerantz and Herbert Berkley ad-
dressed them, following which a vote was taken as to whether the Respondent should
sign a contract with the Union.
In his statements Pomerantz denied promising the employees better jobs and
more money, but he said that he had told girls that the Company would pay half of
the cost of an insurance program (more specifically detailed infra). He then said
that they were going to have an election and if the employees voted "yes" the
Company would negotiate the contract with the Union; but if they voted "no" the
Company would fight the Union. One of the employees asked what would happen
to their benefits if the Union were voted out. Herbert Berkley answered that the
benefits would continue as before.
The election was by secret ballot under the supervision of the supervisor L,, two of
whom stood at the door of the voting room and another at the ballot box itself. A
union committeewoman assisted in the counting of the ballots. The vote was 74 "no"
and 34 "yes." Two ballots were blank.
(11) The unilateral negotiation of an insurance program: Employees who ceased
to pay dues to the Union during the period of the defections ceased to receive certain
union insurance benefits. Shortly before the election just described, the attorney for
the Intervenor, on behalf of his clients, requested the Respondent to establish an
insurance program for them. Production Manager Pomerantz negotiated such a
program with Nationwide Insurance Company, providing for life insurance and a
weekly indemnity for illness. Pomerantz committed the Respondent to defray $3.78
per employee per month for this program, with the employee paying $3. The in-
surance company representative then came into the plant, interviewed employees,
and registered those expressing desire for the policies. The arrangements have not
as yet been finally accepted by the Respondent, according to Pomerantz. The
Respondent did not consult the Union with respect to the negotiation of this
program.
Concluding Findings as to Interference, Restraint, and Coercion
The conduct described in paragraphs numbered (2) to (11) inclusive, supra, was
coercive of employee rights guaranteed in Section 7.
In the context here, the statements and suggestions of the Respondent's repre-
sentatives to the effect that the plant would close or move to the south constituted
threats of reprisal for union adherence. Interrogation of the employees in such an
atmosphere as to their union activities and attempts to secure their abandonment
of the Union were equally repressive. Under the circumstances, the declarations
to employees to the effect that they could secure the same benefits as provided by
the Union without the payment of union dues constituted promises of benefit calcu-
lated and likely to procure abandonment of the Union.
It is elsewhere found that the Respondent refused to bargain with the Union
Against the background of that action, maintained for a sustained period of time,
and accompanied by the coercive measures described, the disaffiliation movement
is to be attributed to the Respondent's unfair labor practices 'and not to free and
uncoerced dissatisfaction with the Union, though no doubt some latent disapproval
existed. When the employer makes it plain to employees that they must choose
between the union and employment, the selection can scarcely be characterized as
voluntary. The Respondent's toleration of and encouragement and supervisory
assistance in the circulation of the antiunion petitions and action, while discouraging
union activity on ,the premises, is indicative of discriminatory application of restric-
tions upon concerted activity within the plant.
The election of June 27, 1961, was violative of the Act. The Board has recently
held that such a poll of employees after the commission of substantial unfair labor
practices designed to secure abandonment of a union is coercive Standard Rate
and Data Service, Inc., 133 NLRB 337 And see Frank .Sullivan & Co., 133 NLRB
726. Cf. Blue Flash Express, Inc., 109 NLRB 591; N.L.R B. v. Protein Blenders,
Inc., 215 F. 2d 749 (C.A. 8); and N.L.R.B. v. Russell Kingston, 172 F. 2d 771
(C A. 6), which involve distinguishable situations from that here.
The assurances given to employees prior to the election to the affect that benefits
would continue as before if they voted against the Union, and that the Respondent
would pay half the cost of an insurance program, constitute promises of substantial
economic benefit inducive of abandonment of the Union. That the Respondent
may be the time of the election have actually desired employee acceptance of a
contract, if true, would not be a defense. The legality of the Respondent's conduct
must be evaluated upon the basis of its reasonable and probable effect in the
context of coercion in which it occurred. By this time the Respondent's unfair labor
WATERTOWN UNDERGARMENT CORPORATION 301
practices had made any result but rejection unlikely. The tally is probably most
probative of the success of the Respondent's efforts at securing repudiation of the
Union. In any event, as the Supreme Court said in the Case of Medo Photo Supply
Corporation v. N.L.R.B., 321 U.S. 678, 687, the respondent ". . . was not relieved
from its obligations because the employees asked that they be disregarded. The
statute was enacted in the public interest for the protection of the employees' right
to collective bargaining and it may not be ignored by the employer, even though
the employees consent. . . .
In view of their widespread nature the Respondent's contention that the inci-
dents are isolated is without merit. The assertion that the supervisors' actions in
connection with explaining the petitions were only an "accommodation" because of
language difficulties is belied by the circumstances of the conduct. Whether the
sentiments expressed by the supervisors and officials actually represented company
policy, or the genuine intention, attitude, or views of the spokesmen, or were spe-
cifically authorized, is not material in the light of their context. All the declarations
were apparently seriously expressed, the spokesmen were agents of the Respondent
and purported to state its views. Whatever their basis in fact, the statements were
such as in the circumstances would tend reasonably to coerce employees in the
exercise of their statutory right to free choice as to bargaining representation. They
are therefore violative of Section 8(a)(1).
D. The refusal to bargain
In the recent case of WATE, Inc., 132 NLRB 1338, a case in essential particulars
much like the instant one, the Board restated principles of good-faith bargaining
dispositive here.iO The duty to bargain collectively is defined in Section 8(d) as:
. the performance of the mutual obligation of the employer and the repre-
sentative of the employees to meet at reasonable times and confer in good faith
with respect to wages, hours, and other terms and conditions of employment,
or the negotiation of an agreement, or any question arising thereunder, and
the execution of a written contract incorporating any agreement reached if
requested by either party, but such obligation does not compel either party to
agree to a proposal or require the making of a concession: . . . .
In the case of Globe Cotton Mills v. N.L.R.B., 103 F 2d 91, 94 (C.A. 5), the
court said: " . . there is a duty on both sides, though difficult of legal enforcement,
to enter into discussion with an open and fair mind, in a sincere purpose to find a
basis of agreement. .
It is to be expected of a party to collective bargaining that he display therein a
degree of diligence comparable to that which he may be expected to display in the
dispatch of his other business affairs of importance. J. H. Rutter-Rex Manufactur-
ing Company, Inc., 86 NLRB 470. Failure to cooperate in the making of expeditious
arrangements for resolution of differences in bargaining may be evidence of bad faith.
J. H. Rutter-Rex Manufacturing Company, Inc., supra; N.L.R.B. v. Harold Hibbard,
et al., d/b/a Hibbard Dowel Co., 273 F. 2d 565 (C.A. 7). Delay, stalling, or
sophisticated evasion rebut inference of good faith. N.L R.B. v. Herman Sausage
Company, Inc., 275 F. 2d 229 (C.A. 5); N.L.R.B. v. Stanislaus Implement and Hard-
ware Company, Ltd., 226 F. 2d 377 (C.A. 9). To this may be added delay secured
through imposition upon the patience, good nature, or confidence of the other party.
J. H. Rutter-Rex Manufacturing Company, Inc., supra; WATE, Inc., supra; N.L.R.B.
v. A. E. Nettleton Co., et al., 241 F. 2d 130 (C.A. 2).
The determination as to whether the bargaining reflects good faith must be made
upon the basis of the Respondent's whole course of conduct and not on the negotia-
tions alone. N.L.R.B. v. Insurance Agents' Union, 361 U.S. 477, 501. Hostility or
contemporaneous unfair labor practices provide reliable evidence of deceptive deal-
ing. Equally probative, in appropriate context of facts, is a failure to make reason-
able effort to adjust differences, or the presentation of obviously unacceptable
proposals. Good faith does not, of course, require the yielding of position fairly
maintained: N.L.R.B. v. Herman Sausage Company, Inc., supra. However, as the
10 In the WATE case, after reaching substantial agreement, except for several changes
desired by the employer in the union's draft contract, the employer delayed completion
of the contract, ostensibly because of illness of counsel In the meantime the employer
committed unfair labor practices eventuating in defections from the union and the filing
of a decertification petition When the union thereafter accepted the changes proposed
by the employer, the employer withdrew Its proposals The Board held that the union's
acceptance of the employer's changes constituted an agreement which the employer was
obligated to sign
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
court said in the case of N.L.R B. v. Reed & Prince Manufacturing Company, 205 F.
2d 131, 134-135 (C.A. 1), cert denied 346 U.S 887: ". . while the Board cannot-
force an employer to make a `concession' on any specific issue or to adopt any par-
ticular position, the employer is obliged to make some reasonable effort in some di-
rection to compose his differences with the union. " See also Wheatland Electric-
Cooperative, Inc. v. N.L.R.B., 208 F. 2d 878 (C.A. 10), cert. denied 347 U.S. 966.
So is refusal to sign an agreed upon contract evidence of bad faith: H. J. Heinz
Company v. N.L.R.B.., 311 U.S. 514; WATE, Inc., supra; N.L.R.B. v. New England-
Die Casting Company, 116 NLRB enfd. 242 F. 2d 759 (C.A. 2); or one agreed-
to by one's representatives, even though including objectionable provisions accept-
able to a majority of one's group : Anderson Lithograph Company, Inc., et al., 124
NLRB 920; changes in and dealing with others concerning conditions of employ-
ment while negotiating with a bargaining representative, WATE, Inc., supra; shifting
of position, repudiation of agreements previously reached, or reopening settled issues:
N.L.R.B. v. National Shoes, Inc., et al., 208 F. 2d 688 (C.A. 2); Winchester Elec-
tronics, Incorporated, et al., 128 NLRB 1292, enfd., 295 F. 2d 288 (C.A. 2); N.L.R.B._
v. International Furniture Company, 212 F. 2d 431 (C.A. 5); Stanislaus Implement-
and Hardware Company, Ltd., supra; and failure to study proposals, Wheatland Elec-,
tric Cooperative, supra, and to present written counterproposals, Globe Cotton Mills,
supra.
When ,the Respondent's conduct here is measured against these requirements it is,
seen to meet none of them, and thus falls short of compliance with the statutory-
obligation to bargain in good faith.
The facts establish that by July 7, 1960, the Respondent and the Union were in,
agreement on all bargaining matters at issue between them with the sole exception-
of the "Southern Shop" clause. Thereafter, for reasons best known to himself,
but perhaps attributable to financial problems arising from purchase of his associate's.
interest and leveling off of sales, President Berkley, in his own words, began to
"stall" the matter of signing the contract. Though the 5-percent wage increase had
been agreed to and announced to the employees, he did not put it into effect until
threatened with a strike. Despite the fact that Union Representative Janis desired
completion of the contract and pressed for it, President Berkley put him off by one
device or another. At the same time the Respondent began the course of coercive
action at the Waterbury plant-ultimately successful-designed to secure repudia-
tion of the Union by the employees. From July 7, 1960, onward there was no
substantial issue between the parties not susceptible of prompt resolution by good-
faith bargaining.
In September and October 1960 discussions-unproductive, and in the context of is-
sue presented, quite pointless and merely a pursuance of President Berkley's policy
of "stalling"-took place in "a general area or feeling of agreement." At no time
did the Respondent's representative suggest any means , reasonable or otherwise, of
resolution of the asserted differences over the "Southern Shop" clause. Referral of
the matter to the Respondent's attorneys for legal opinion did not advance a solution.
The attorneys did not pass upon the substantive terms of agreement and President
Berkley, who alone assertedly could, did not read the Union's proposed contract.
When the Respondent's attorneys objected to the format of the contract on the
ground that it should be a supplement rather than an integrated instrument, the
Union obliged by drafting the agreement in the form of a supplement. President
Berkley then objected to that because it was in the form of a supplement, and not an
integrated document.
It is found by July 7, 1960, there were no unresolved issues between the parties
other than the "Southern Shop" clause." And even if there were other differences,
the record does not reflect that the Respondent made any good-faith effort after
July 1960 to secure resolution of them. In ,this connection it seems significant that at
no time, so far as the record reveals, did the Respondent ever present written counter-
proposals to the Union containing the terms of an agreement which it was prepared
to sign.
Ultimately, as might be expected, dissatisfaction was nurtured among the em-
ployees. Under the circumstances the resulting defections must be attributed to
the Respondent's unfair labor practices. See cases cited infra, subsection F. Testi-
11 There is testimony by President Berkley to the effect that at the time he granted the
wage increase, the Union had abandoned its insistence on the "Southern Shop" clause.
I have concluded that this testimony is inadvertent and mistaken. If it is not, there was
plainly no issue of any kind outstanding and unresolved after early September 1960, and
no shadow of reason thereafter for the Respondent to have refused, declined, or failed to
sign the collective=bargaining agreement.
WATERTOWN UNDERGARMENT CORPORATION 303
mony of leaders of the defection movement to the effect that their dissatisfaction with
the Union had other causes does not overcome this conclusion.12
Finally in April 1961, unable to secure either the execution of a contract or a
definitive statement from the Respondent as to a "Southern Shop" clause, the Union
withdrew the "Southern Shop" clause entirely. The defection movement now being
underway, the Respondent demanded the renegotiation of the entire contract. It re-
fused to sign the contract containing only terms on which the Respondent had
previously agreed. Specific illustration of the Respondent's bad faith at this time,
and its contemporaneous assistance of the defection movement, is found in President
Berkley's demand in the April meeting with Kramer for elimination of payments to
the union welfare fund, at the same time that the Respondent was promising em-
ployees, concerned over the loss of union benefit payments, to defer half the cost of an
insuraiace program.
• in the light of these circumstances it follows that the Respondent did not bargain
in goy aith with the Union. The defense that agreement had not been reached
on the "Southern Shop" clause, and that therefore the Respondent was free because
of changing economic conditions to ask renegotiation of any prior agreement is in-
applicable in the present context of fact. Such a contention, perhaps valid where a
party has bargained in good faith, has no application where the bargaining has been
carried on in bad faith. In view of the above findings, other contentions of the
Respondent now raised for the first time, such as that the Union's demands were
unlawful under Section 8, do not require discussion. I perceive no illegality in
the proposals. Minnesota Milk Company, 133 NLRB 1344.
E. The appropriate unit and the Union's majority
It is not disputed and it is found that the following employees constitute an ap-
propriate bargaining unit within the meaning of Section 9 of the Act:
All production employees of Respondent employed at its Waterbury plant, exclusive
of office-clerical employees, maintenance employees professional, employees, shipping
employees, order pickers, factory-clerical employees, guards, and all supervisors as
defined in Section 2(1(1) of the Act.
The Respondent asserts that the Union does not represent a majority of the
employees. A refusal to bargain based on good-faith doubt as to a union's ma-
jority may, in an appropriate circumstance, constitute a valid defense to a refusal-to-
bargain charge. Here there was no refusal to bargain based on asserted doubt as
to the Union's majority. The Union had been the contractually recognized bargain-
ing agent since 1954. In the absence of evidence of initial irregular recognition or
of uncoerced loss of representative status, there is a presumption of regularity in
the recognition of and of continuing majority status in a contractually recognized
union . Shamrock Dairy, Inc., et al., 124 NLRB 494. There is no evidence of
any defection until February 1961. This was more than a year after the bargaining
negotiations had begun, and months after the Respondent had commenced its dilatory
bargaining tactics and the coercive practices designed to secure repudiation of the
Union. The defections, as has been indicated, are to be attributed to the unfair
labor practices, and consequently do not affect the Union's majority status. Medo
Photo Supply Corporation, 321 U.S. 678, 687; Parma Water Lifter Company, 102
NLRB 198, enfd. 211 F. 2d 258 (C.A. 9), cert. denied 348 U.S. 829; Charles C.
Cathey, etc., d/bla Cathey Lumber Company, 86 NLRB 157, 168, enfd. 185 F. 2d
1021 (C.A. 5). What the Supreme Court said in Medo Photo Supply Corporation is
applicable here:
[The Respondent] cannot, as justification for its refusal to bargain with
the Union, set up the defection of union members which it had induced by
unfair labor practices, even though the result was that the union no longer had
the support of a majority. It cannot thus, by its own action, disestablish the
union as the bargaining representative of the employees, previously designated
as such of their own free will. . . . [The Respondent's] refusal to bargain
under those circumstances was but an aggravation of its unfair labor practice
'= In this connection it is of interest to note that some of the reasons cited by the
Respondent for the disaffection related to action or positions of the Respondent itself
the "unconscionable procrastination of the Union in getting a contract signed," inade-
quacy of the Union's hospitalization program, inadequacy of the wage increases secured by
the Union from the Respondent, and the Union's "Failure to object to unilateral cutting
of piece rates by the Company " These observations are to be compared with the Re-,
spondent's admitted efforts to dilute even such benefits as the Union had secured.
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in destroying the majority's support of the union, and was a violation of [Section
8(a)(1) and (5) of] theAct.13
In any event, the situation is such that effectuation of the policies of the Act requires
an order to bargain, whether the loss of majority is attributable to the unfair labor
practices or to other causes. Franks Bros. Company, 321 U.S. 702.
The decertification petition did not cause the Respondent to doubt the Union's
continued majority since it met with the Union thereafter without indicating it
doubted the Union's representative status. The Perry Rubber Co., 133 NLRB 225.
Not until late spring 1961, is there any suggestion that the Respondent questioned
the Union's majority. By that time the Respondent's unfair labor practices had
made the issue inadmissible. Nor, under the circumstances, would the filing .
the decertification petition have excused refusal to bargain even if urged as ground,
which it was not. An employer may lawfully bargain with a union during the
pendency of a decertification petition. Perry Rubber Co., supra. The petition here
was dismissed by the Regional Director. There could therefore be no claim of
good-faith doubt by reason of the pendency of such a petition. The asserted willing-
ness to contract in June does not excuse the prior refusal to bargain. Perry Rubber
Co., supra.
It is found that at all times material the Union was and is now the exclusive col-
lective-bargaining representative of all employees in the appropriate unit within
the meaning of Section 9(a) of the Act.
F. General conclusions
Upon the basis of the foregoing findings, it is not concluded that the Respondent
did not bargain in good faith with the Union, repudiated agreements made with the
Union, refused to sign a contract containing the terms agreed upon between the
parties, and negotiated an employee insurance program without notification to the
Union, thus refusing to bargain collectively, and by those actions and by the conduct
described in subsection C, paragraphs numbered (2) to (11), inclusive, supra, inter-
fered with, restrained, and coerced employees in the exercise of rights guaranteed
in Section 7 of the Act. The Respondent was thus in violation of Section 8(a) (5)
and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with its operations set forth in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, it will
be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It having been found that the Respondent refused to bargain collecitvely with the
Union it will be recommended that the Respondent so bargain. In addition, it hav-
ing been found that on April 20, 1961, the Union withdrew its demand on the
only remaining issue between the parties, the "Southern Shop" clause, the Respond-
ent, by refusing, then and thereafter, to execute such agreement, refused to sign
a contract upon agreed terms. It will therefore be recommended that the Respond-
ent, upon the Union's request, sign a collective-bargaining agreement with the
Union incorporating the terms of Respondent's Exhibit No. 2. If no such request is
made it is recommended that the Respondent, upon request, bargain collectively
with the Union as the exclusive representative of the employees in the appropriate
unit, and, if an understanding is reached, embody such understanding in a signed
contract. WATE, Inc., 132 NLRB 1338; Winchester Electronics, Inc., et al., 128
NLRB 1292, enfd. 295 F. 2d 288 (C.A. 2); cf. Shreveport Garment Manufacturers,
133 NLRB 117; Ridge Citrus Concentrate, Inc., 133 NLRB 1178.
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. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
13 The probative value of repudiations secured under circumstances such as these may
be gauged from the action of one employee, Carmena Fonzo, whose signature appears on
WATERTOWN UNDERGARMENT CORPORATION 305
2. All production employees of Respondent employed at its Waterbury plant,
exclusive of office clerical employees, maintenance employees, professional em-
ployees, shipping employees, order pickers, factory clerical employees, guards, and
all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9(b) of
the Act.
3. The Union at all times material herein has been, and is now, the exclusive repre-
sentative of all employees in the appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
4. By refusing to bargain collectively, and by interfering with, restraining, and
coercing employees in the exercise of their rights under Section 7 of the Act, Respond-
ent has engaged in and is engaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)^(5) and (1) and Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon the
entire record in the case, it is recommended that the Respondent, Watertown Under-
garment Corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local 223 of the International Ladies'
Garment Workers' Union as the exclusive bargaining representative of all its employ-
ees in the appropriate unit.
(b) Repudiating collective-bargaining agreements reached with the bargaining
representative of its employees.
(c) Refusing to sign or execute collective-bargaining agreements reached with the
collective-bargaining representative of its employees.
(d) Threatening employees with reprisals in employment, or threatening to close
or to move the plant, or promising employees economic benefits in connection with
their union membership or designation or their union or concerted activity.
(e) Making unilateral changes in employment conditions without consultation
with the collective-bargaining representative.
(f) In any other manner refusing to bargain with the collective-bargaining repre-
sentative, or interfering with, restraining, or coercing employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of
the Act.
(a) If requested to do so by Local 223 of the International Ladies' Garment
Workers' Union, sign forthwith a collective-bargaining agreement with such union
incorporating the terms of Respondent's Exhibit No. 2.
(b) If no such demand is made, then, upon request, bargain collectively with
Local 223 of the International Ladies' Garment Workers' Union, as the exclusive
representative of the employees in the appropriate unit, and, if an understanding is
reached, embody such understanding in a signed contract.
(c) Post at its plant in Waterbury, Connecticut, copies of the notice attached
hereto marked "Appendix." 14 Copies of said notice, to be furnished by the Regional
Director for the First Region, shall, after being duly signed by the Respondent's
representative, be posted by it immediately upon receipt thereof, and be maintained
by it for at least 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered, defaced or
covered by any other material.
(d) Notify the Regional Director for the First Region, in writing, within 20
days from the receipt of this Intermediate Report, what steps the Respondent has
taken to comply herewith.15
the "Out With The Union" petition. Fonzo thereafter refused to sign the declaration
of refusal to pay union dues
14In the event that these recommendations be adopted by the Board, the words "Deci-
sion and Order" shall be substituted for the words "Recommendations of a Trial Ex-
aminer" 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 "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
is in the event that these recommendations be adopted by the Board, this provision shall
be modified to read: "Notify the Regional Director for the First Region, in writing,
within 10 days from the date of this Order, what steps the Respondent has taken to
comply herewith."
649856-63-vol. 187-21
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL, if requested to do so by Local 223, of the International Ladies'
Garment Workers ' Union, sign and execute forthwith a collective -bargaining
contract with Local 223 incorporating the terms of our previous agreement.
If no such request is made, WE WILL , upon request ,, bargain collectively
with Local 223 of the International Ladies' Garment Workers' Union, as the
exclusive representative of our employees in the following appropriate unit with
respect to rates of pay , wages, hours of employment , and other terms and
conditions of employment , and, if an agreement is reached , embody such
agreement in a signed contract . The appropriate unit is:
All production employees at the Waterbury plant, exclusive of office
clerical employees , maintenance employees , professional employees, ship-
ping employees , order pickers , factory clerical employees , guards, and all
supervisors as defined in Section 2(11) of the Act.
WE WILL NOT by refusing to bargain with the collective -bargaining repre-
sentative of our employees , by repudiating agreements reached in collective
bargaining , or by refusing to sign or execute collective -bargaining contracts on
which agreement has been reached , by engaging in threats of reprisal in em-
ployment, or threats to close or to move the plant , or promises of benefit, or
by making unilateral changes in employment conditions without consulting the
collective -bargaining representative , or 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 Local 223 of the International
Ladies' Garment Workers' Union , or any other labor organization , to bargain
collectively through representatives of their own choosing , and to engage in
other concerted activities for the purposes of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the Act , or to refrain
from any and all such activities.
All our employees are free to become or remain , or to refrain from becoming
or remaining , members of Local 223 of the International Ladies' Garment Workers'
Union, or any labor organization of their own choice, or to designate such labor
organization as their collective -bargaining representative.
WATERTOWN UNDERGARMENT CORPORATION,
Employer
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced , or covered by any other material.
Savoy Laundry, Inc. and Food, Beverage and Express Drivers
Local Union No. 145, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America . Case No.
2-CA-8082. May 24, 1962
DECISION AND ORDER
On February 7, 1962, Trial Examiner Ramey Donovan issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and is engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
137 NLRB No. 21.