Chalet, Inc.

CHALET, INC. 109 to abandon group bargaining . Accordingly, fQr the reasons stated in my dissent in Bearing & Rim Supply Co. 107 NLRB 101, 1 would dismiss the petition. CHALET, INC. and INTERNATIONAL LADIES' GARMENT WORKERS' UNION, AFL, CUTTERS LOCAL NO. 387. Case No. 16-CA-596. November 19, 1953 DECISION AND ORDER On July 21, 1953, Trial Examiner Herbert Silberman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the intermediate Report attached hereto. There- after, the General Counsel, the Union, and the Respondent filed exceptions to the Intermediate Report; the General Counsel and the Union filed supporting briefs. 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 Intermediate Report, the General Counsel's, the Union's, and the Respondent's exceptions, and the General Counsel's and the Union's supporting briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board dismissed the complaint.] Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge duly filed by International Ladies' Garment Workers' Union, AFL, Cutters Local No 387, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued his complaint on May 15, 1953, against the Respondent, Chalet, Inc , alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the charge, complaint, and notice of hearing thereon were duly served upon the parties. With respect to the unfair labor practices, the complaint, as enlarged by several amend- ments made during the hearing, alleges in substance that (1) Although requested to do so, since January 13, 1953, the Respondent has refused to bargain collectively with the Union as the exclusive representative of the employees in an appropriate unit, in violation of Section 8 (a) (5) of the Act; (2) by reason of such refusal and by other conduct described in the complaint, the Respondent has interfered with, restrained, and coerced its employees, in violation of Section 8 (a) (1) of the Act, (3) a strike by employees of Respondent, which was begun on January 14, 1953, was caused by the unfair labor practices of the Respondent, and (4) by refusing to reinstate the striking employees following their offer to return to work made on May 29, 1953, the Respondent has discriminated against these employees, in viola- tion of Section 8 (a) (3) of the Act The Respondent denied the commission of the alleged unfair labor practices. 107 NLRB No. 42. 337593 0 - 55 - 9 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice, 4 hearing was held on June 5, 1953, at Dallas, Texas, before Herbert Silberman, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. All parties were represented at the hearing by counsel Full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to present oral argument, and to file briefs with the undersigned was afforded all parties. The Respondent's motion made at the opening of the hearing to dismiss the complaint and to dismiss or strike from the complaint the paragraphs therein numbered 5 through 15, in- clusive, was denied. At the conclusion of the case, the Respondent renewed its motion to dismiss the complaint Decision was reserved and is disposed of in accordance with this Intermediate Report and Recommended Order The General Counsel and the charging Union have filed briefs with the undersigned Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT L THE BUSINESS OF THE RESPONDENT Chalet, Inc., a Texas corporation , is engaged in the manufacture , sale, and distribution of ladies ' apparel for sportswear and other purposes at its plant in Dallas , Texas. During the 12-month period ending April 30, 1953, which period is representative of all times material herein, it purchased raw materials consisting principally of cloth and clothing accessories valued in excess of $100,000, of which more than 90 percent was shipped to Respondent's Dallas plant from points outside the State of Texas. During the same period, Respondent sold products consisting principally of ladies' apparel valued in excess of $ 500,000, of which more than 90 percent was shipped from its Dallas plant to points outside the State of Texas The Respondent admits that it is engaged in commerce within the meaning of the Act. IL THE LABOR ORGANIZATIONS INVOLVED International Ladies' Garment Workers' Uniop , AFL, Cutters Local No. 387, is an organi- zation in which employees participate and which exists for the purpose of dealing with em- ployers concerning grievances, labor disputes, wages, rates of pay, hours of employment and conditions of work, and admits to membership employees of the Respondent. Ill. THE UNFAIR LABOR PRACTICES The principal issue in this case is whether the Respondent committed an unfair labor practice by refusing to recognize and bargain with the Union as the representative of the cutters employed at Respondent's Dallas plant. In the afternoon of January 13, 1953, Robert B. Glatter and Marvin Menaker, representatives of the Union, visited the plant and spoke with Abraham Zapruder, an officer and general manager of Respondent. Glatter advised Zapruder that the Union represented the three cutters employed by Respondent at its Dallas plant and was seeking recognition and ultimately to bargain with Respondent for the cutters. Zapruder replied that he wasn't prepared to make a decision on such short notice and that he wanted to discuss the matter with others Glatter, after pressing Zapruder to specify when his decision would be forthcoming, advised Zapruder that he would return the next day at 2:30 in the afternoon. The following day Zapruder advised Glatter that the Respondent would not recognize the Union because it did not represent a majority of the whole shop.i Thereupon, Respondent's three cutters walked out of the plant. A picket line was established the next day. At its Dallas plant, Respondent manufactures women's apparel. Its operations are generally similar to those in other garment factories and involve cutting, sewing, pressing, and finishing. All production operations are conducted on one floor, which is not partitioned. Cutting fabric is the initial step in the sequence of successive operations involved in the manufacture of the finished garments The cutting operation includes preparation of markers, which requires the greatest amount of skill, spreading fabric along the cutting tables, and iZapruder testified that an additional reason he gave Glatter was that the Respondent employed only one cutter. CHALET, INC. 111 finally cutting the fabric . On January 13, 1953, the only employees doing cutting work were Isadore Jacobs, Rudy C. Ochoa, and Corrine Harrison. These three employees did no other work. Jacobs , who was the most skilled , did marking principally and, occasionally , spreading and cutting Ochoa principally did cutting and, on occasion , spreading. Harrison devoted most of her time to spreading and was learning to cut . Despite the fact that Ochoa and Harrison did not possess the skill and experience that Jacobs had and were not qualified to make markers , I find that these three employees composed a homogeneous and functionally coherent group of skilled employees with employment interests separate and apart from those of the other employees in the plant . Accordingly , and for the reasons set forth in the Inter- mediate Report in the matter of Page Boy Company, Inc., 107 NLRB 126 , I find that all cutters, including spreaders , cutters, and markers, but excluding supervisors and all other employees , at Respondent's Dallas plant, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. The Union represented all the employees in the unit found to be appropriate when, on January 13 , 1953, it requested recognition as their representative and ultimately to bargain with the Respondent for them. The Respondent's refusal to recognize the Union on the ground that a separate unit of cutters was inappropriate was not patently unreasonable in view of the fact that in the area the Union represented no separate unit of cutters and the National Labor Relations Board in its only decisions involving clothing factories in the Dallas area found that cutters did not constitute separate appropriate units.2 The General Counsel and the charging Union impugn the Respondent's good faith in taking this position and argue that certain remarks made by Zapruder to the three cutters during the late afternoon of January 13, 1953, show that Respondent's refusal to recognize the Union was not because of any good- faith doubt that the cutters constituted an appropriate bargaining unit but because the Re- spondent refused to recognize its obligation to engage in collective bargaining with the Union and sought to undermine the Union. About 4 p. m., on January 13 , Zapruder spoke to Jacobs concerning the request of the Union for recognition and asked Jacobs if it would be a good idea to have a meeting with the cutters after working hours . Jacobs said he thought it would be a good idea . At 4:30 p. in., which was quitting time, Zapruder spoke to the three cutters. Zapruder did not remember in detail what he had said to the cutters . He testified that he told them he had had a con- versation with the union representative , that the Respondent would not recognize the Union because it did not represent a majority of the whole shop and that there was only one cutter employed by the Respondent Jacobs testified that Zapruder said the Union wasn't the best thing for the employees , that if they went on strike they could strike until doomsday, and something to the effect that if the employees would pay their union dues to him he would take care of burying them when they died. Jacobs further testified that the next day Zapruder said to him that , if possible , the Respondent would do all the work at its plant in Mesquite, Texas , and would replace all the cutters ° On cross-examination , Jacobs testified that, in the conversation with the employees on January 13, Zapruder was giving his opinion of why it would be better for them not to go on strike and Zapruder told them that they could do what they pleased. Relative to the meeting of January 31, Ochoa testified that Zapruder said, "Of course, I will not join the Union and it will never be a union shop . It is unlawful to try to make a union shop of just the cutters. It has to be the whole shop. And in the first place, he doesn't have the majority of the workers signed up.... If it did come a union shop, I could fire you legally because I could cut into any cut you have been cutting during the day." Ochoa also testified Zapruder said that, if necessary, he would do the cutting himself, or would have it done out of town, or he would hire a new crew and train them himself as the present cutters were not too good anyway , and something about Miss Frankfurt of Page Boy having offered Respondent some cutters, and that he had been a member of the Union and the Union 2 Kohen-Ligon-Foltz, Inc., 36 NLRB 808; Morton-Davis Company, 36 NLRB 804; Justin McCarty, Inc., 36 NLRB 800. 9Relative to the statements Jacobs testified were made by Zapruder on January 14, both Ochoa and Harrison testified to similar statements having been made by Zapruder at the January 12 meeting, Jacobs ' recollection of the events material herein was poor . There is no other testimony indicating that any conversation concerning the Union was had between Zapruder and any of the three cutters on January 14. Accordingly , I find that these remarks attributed to Zapruder by Jacobs were made at the January 13 meeting and were not made the following day. 1 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD big shots didn't care about the employees down here. On cross-examination Ochoa testified that Zapruder told the employees it was entirely up to them what they did one way or the other Concerning the remarks made by Zapruder at the January 13 meeting with the cutters, Harrison testified that he said the Union was no good and "that we would be used for guinea pigs by the union, and he said it was a very illegal matter, the union was illegal." She further testified that Zapruder said V would get the cutting done at the Respondent's Mesquite, Texas, plant or would hire others and trainthem to take their place; also, that Miss Frankfurt offered him some cutters. No witness was able to recapitulate fully and in sequence the statements made by Zapruder at the January 13 meeting. Therefore, although there was no direct conflict in the testimony of the various witnesses, contradictory conclusions as to the tenor and general import of what Zapruder said can be drawn from the separate testimony of the four persons who mere present In these circumstances, any judgment as to whether the remarks of Zapruder were coercive should be based upon the collective testimony of all the witnesses who attended the meeting, rather than upon an appraisal, out of context, of each separate statement attributed to Zapruder by the individual witnesses. Viewed thusly, the testimony concerning the January 13 meeting is susceptible to various constructions. One possible construction of the testi- mony is that Zapruder advised the employees that the Union was not good for them; that because the cutters did not represent an appropriate unit, the Respondent would not recognize the Union; that a union-shop arrangement for the cutters would be unlawful; and that if the cutters went out on strike the Respondent would either replace them or have its cutting done at its plant in Mesquite, Texas. Another possible construction that can be given the testimony is Zapruder said, in effect, that the Respondent in no circumstances would recognize the Union and rather than deal with the Union it would replace the union cutters or have its cutting done at its Mesquite, Texas, plant. However, findings of unfair labor practices cannot be based upon inferences drawn from inconclusive testimony. I am not convinced by the evidence that Zapruder's remarks amounted to anything more than advice to the employees that he considered the Union would not be good for them, that he would not recognize the Union as the representative of the cutters because the unit was inappropriate and that, in the event of a strike by the cutters, the Respondent would take whatever steps were necessary to continue operations.4 I do not find that a preponderance of the testimony supports a conclusion that Zapruder's remarks contained any threat of reprisal directed to the em- ployees because of their membership in or activities on behalf of the Union or any promise of benefit if they were to discontinue their union activities Accordingly, I do not find that the Respondent violated Section 8(a) (1) of the Act by reason of the remarks made by Zapruder at the January 13 meeting with the cutters The Union called the cutters out on strike within 24 hours after its request for recognition. During this 24-hour period, the only alleged incriminatory conduct on the part of the Re- spondent were the remarks made by Zapruder to the cutters on January 13. It is not dis- puted that Zapruder told the employees he considered a separate unit of cutters to be in- appropriate. I do not find that the evidence relating to his other remarks made on that occasion persuasively indicates an attitude of hostility towards the principles of collective bargaining or an intention to undermine the Union There is no testimony that after the strike begain the Respondent engaged in any conduct hostile towards the Union or the cutters. On the other hand, that Zapruder had no deep-seated antagonism towards the employees because of their membership in the Union or activities on behalf of the Union is indicated by the testimony of Jacobs that while he was on strike he received a request from Zapruder to return to work. I find, therefore, that the Respondent's refusal to recognize the Union was motivated by a bona fide doubt that the cutters constituted an appropriate bargaining unit. I do not find that the Respondent refused to bargain within the meaning of Section 8 (a) (5) of the Act. 6 4In evaluating the testimony relating to the January 13 meeting, I have given less weight to remarks attributed to Zapruder by only a single witness than to remarks attributed to Zapruder by more than one witness. The fact that several statements attributed to Zapruder were each remembered by only 1 of the 3 cutters who heard them indicates that, in the context of all the remarks made by Zapruder at the meeting, these statements were not understood by the cutters to represent any significant threats, or carried any especially intimidatory connotations. 5 Daniel Aminoff et al., 104 NLRB 985; Buzza-Cardoza et al., 97 NLRB 1342. SHERRY & GORDON COMPANY, INC. 113 Having found that the Respondent did not engage in unfair labor practices by reason of its refusal to bargain with the Union and by the remarks made by Zapruder to the cutters, I find that the strike which began on January 14, 1953, was not an unfair labor practice strike. The testimony shows that the three cutters who went on strike have been replaced . Accord- ingly, I find that the Respondent has not committed any unfair labor practice by failing to reinstate the strikers on or after May 29, 1953, when the Union made such request on their behalf. CONCLUSIONS OF LAW 1. Chalet, Inc., is, and at all times relevant herein was, engaged in commerce within the the meaning of Section 2 (6) and (7) of the Act. 2. International Ladies' Garment Workers' Union, AFL, Cutters Local No. 387, is a labor organization within the meaning of Section 2 (5) of the Act. 3. Respondent has not engaged in any unfair labor practices within the meaning of the Act. 4. The strike, begun on or about January 14, 1953, by employees of Respondent at its Dallas plant was not caused by unfair labor practices of the Respondent. [Recommendations omitted from publication.] SHERRY & GORDON COMPANY, INC. and WILLIAM F. DEALEY LOCAL 282, BUILDING MATERIAL DRIVERS & CHAUF- FEURS, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMER- ICA, AFL and WILLIAM F. DEALEY. Cases Nos. 2-CA- 2506 and 2-CB-798. November 20, 1953 DECISION AND ORDER On June 30, 1953, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in certain unfair labor practices in violation of the Act and recommending that the Board dismiss the complaint against them, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, exceptions and a brief were filed by the General Counsel, and a reply brief was filed by the Respondent Union. The Board has reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial error was com- mitted. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings , conclusions , recommendations of the Trial Examiner. We agree with the Trial Examiner that the complaint in this case must be dismissed because of the improper proce- dure involved in its issuance. Here charges were filed in May 1952. Shortly thereafter the charging party requested that they be withdrawn. At that time the Board's field examiner informed the Respondent Union's counsel that the Regional Director had approved the withdrawal of charges, which, had it been so, would have closed the case. In fact, the Regional 107 NLRB No. 50.