Page Boy Co., Inc.

126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD PAGE BOY COMPANY, INC. and CUTTERS LOCAL NO. 387, INTERNATIONAL LADIES' GARMENT WORKERS' UNION, AFL. Case No. 16-CA-594. November 20, 1953 DECISION AND ORDER On July 16, 1953, Trial Examiner Herbert Silberman issued his Intermediate Report in the above-entitled proceeding, find- ing 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. Thereafter, the General Counsel, the Union, and the Respondent filed exceptions to the Intermediate Report; the General Counsel and Union filed supporting briefs. The Board has reviewed the rulings made by the Trial Ex- aminer 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 petition.] i We note that the Trial Examiner excluded Ravkind from the unit. Under International Metal Products Company, 107 NLRB No. 23, as Ravkind did not enjoy any special status which would ally his interests with management, we find that he is properly included in the unit. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge duly filed by Cutters Local No. 387, International Ladies' Garment Workers' Union, AFL, 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 April 24, 1953, against the Respondent, Page Boy Company, Inc., i alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) 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 alleges in substance that: (1) Al- though requested to do so, since January 8, 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 con- duct described in the complaint, the Respondent has interfered with, restrained, and coerced its employees, in violation of Section 8 (a) (1) of the Act; and (3) a strike by employees of Respondent at its Dallas plant, which was begun on January 12, 1953, was caused by the unfair labor practices of the Respondent. The Respondent, in its answer, denied the commission of the alleged unfair labor practices. Pursuant to notice, a hearing was held on June 4 and 5, 1953, at Dallas, Texas, before Herbert Silberman, the undersigned Trial Examiner, duly designated by the Chief Trial Ex- IThe pleadings were amended at the hearing to reflect the correct name of the Respondent. 107 NLRB No. 46. PAGE BOY COMPANY, INC. 127 aminer. All parties were represented at the hearing by counsel . Full opportunity to be heard, to examine and corss -examine witnesses , to introduce evidence pertinent to the issues, and to present oral argument 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 para- graphs therein numbered 5 through 15, inclusive, was denied. At the conclusion of the case the Respondent renewed its motion to dismiss the complaint. Decision was reserved and is dis- posed of in accordance with this Intermediate Report and Recommended Order. The parties waived their right to file 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 1. THE BUSINESS OF THE RESPONDENT Page Boy Company , Inc., a Texas corporation , is engaged in the manufacture, sale, and dis- tribution of women's maternity clothing at its plant in Dallas, Texas, and various other cities in the United States. During a representative 12-month period ending March 30, 1953, it pur- chased materials consisting principally of cloth, buttons, hooks, and clothing accessories valued in excess of $100,000, of which more than 95 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 women's clothing valued in excess of $500,000, of which more than 75 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 ORGANIZATION INVOLVED Cutters Local No. 387, International Ladies'GarmentWorkers'Union, AFL, is an organiza- tion in which employees participate and which exists for the purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, and condi- tions of work , and admits to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Sequence of events On January 3, 1953, James E. Trent and Juan H. Alvarado, who were employed as cutters at Respondent's Dallas plant, applied for membership in and designated the Union as their representative. Thereafter, on January 7, 1953, the Union mailed a letter to the Respondent requesting recognition as the collective -bargaining agent of the cutters at the Dallas plant and a meeting to negotiate an immediate wage increase and other matters . The next morning Robert B. Clatter and Marvin Menaker, representatives of the Union, visited the plant and spoke with Mr. Moser, Respondent's sales manager. Glatter showed Moser the authorization cards signed by Trent and Alvarado and renewed the Union's request for recognition and to bargain for the cutters. Mr. Moser replied that he was not authorized to speak for the Re- spondent but he did not believe the Union represented a majority because the plant employed four cutters. Moser agreed to advise Elsie Frankfurt , Respondent's president, concerning the Union's demands. The following morning Clatter and Menaker again called at the plant and spoke to Moser. Moser said that he had spoken with Miss Frankfurt and the decision of the Respondent was that it would not recognize the Union because it did nor represent a majority of the cutters. In the afternoon of the same day Glatter had a further conversation with Moser. Clatter stated, in substance, that only the two cutters represented by the Union compose the appropriate unit and the other two cutters, James S. Williams and Abe Ravkind are excluded from the unit because Williams is a supervisor and Ravkind is a close relative of officers of the Respondent. Moser agreed to transmit this information to Miss Frankfurt. The next day, January 10, Clatter had a telephone conversation with Miss Frankfurt. She advised Clatter that the Respondent would not recognize the Union because it did not represent a majority. In this conversation Clatter repeated the Union's position that Williams and Ravkind should not be counted in determining the Union's majority among the cutters. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trent and Alvarado reported for work on Monday, January 12. About 8:05 a. M. they ad- vised Williams that they were leaving because the Respondent had refused to recognize the Union. The next day the Union began picketing the Respondent's plant. The strike is still in progress B. The appropriate unit Respondent at its Dallas plant is engaged in the manufacture of maternity clothes for outer wear Its manufacturing operations are generally the same as in other garment factories and involve cutting, sewing, pressing, and finishing All production operations are conducted on the second floor of Respondent's plant The space is not partitioned except for some bins. The cutters work together in one area . There is no interchange of duties between the cutters and the other production employees in the plant. 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 of amount of skill, spreading fabric along the cutting tables and finally cutting the fabric. Markers serve as guides for cutting the cloth In preparing and laying markers, consideration must be given to minimizing waste of cloth while taking into account that stripes, plaids, and other dis- tinctive characteristics of the fabric must properly match when the pieces are sewn together. Spreading consists of stretching the fabric along the cutting tables in layers and in the appropriate number of colors for each size of the style of garment being cut. Cutting, which is done by means of an electrically operated reciprocating or rotary type knife, consists of cutting the cloth by directing the cutting machine along the lines of the marker It requires approximately 4 years for a cutter to acquire the skill of his trade. The Board has never ruled that cutters are true craftsmen within the traditional sense of the term However, the Board has found that cutters compose homogeneous and functionally coherent groups of highly skilled employees with employment interests sufficiently different from those of other employees in garment factories to constitute separate appropriate units for the purposes of collective bargaining 2 The Respondent argues that three companion cases, 3decided by the Board on November 10, 1941, and involving plants in Dallas, Texas, compel a finding that the cutters in Respondent's Dallas plant do not constitute a separate appropriate unit In each of the three cases the Board found that the cutters did not con- stitute a separate appropriate bargaining unit because the International Ladies' Garment Workers' Union, the parent organization of Local No 387, the petitioner in the three aforesaid cases and the charging party in the instant proceeding, had been actively engaged in organi- zing the production employees of the employer on an industrial basis, considered an industrial unit ultimately appropriate for bargaining and had organized other plants in the locality on an industrial basis Without deciding whether there has been a change in the organizational objectives of the International Ladies' Garment Workers' Union in the Dallas area, as to which some testimony was adduced at the hearing herein, I find that the three cases cited by the Respondent are no longer applicable precedent. The hypothesis expressed in these three cases, and in some other early Board decisions, that an attempt to organize employees of an employer on a broader basis will defeat the union's petition for certification as the representative of a smaller unit of employees, con- stituting only part of the optimum or ultimate unit, was specifically repudiated in Standard Overall Company, 53 NLRB 960, 963 Furthermore, thehypothesis reflected a converse appli- cation of the principle that an appropriate unit may be determined by the extent to which the employees have organized This principle, since the 1947 amendments of the Act, can no longer control unit determinations 4 The additional basis for the three 1941 Board de- cisions, namely, the existence of a plantwide pattern of bargaining for the industry in the Dallas area likewise is no longer controlling. The record shows that of approximately 90 garment factories in the area, since 1948, only 2 have had contractual relations with the 2 Daniel Aminoff et aL, 104 NLRB 985; Rothschild- Kaufman Co., Inc., 98 NLRB 353; Sir James, Inc., 97 NLRB 1572; Norton Brothers and Morris, 64 NLRB 710; Lettie Lee, Inc., 45 NLRB 448, enfd. 140 F. 2d 243 (C. A. 9); Max Ulman, Inc., and Country Club Frocks, Inc., 45 NLRB 836; Crescent Dress Co., 29 NLRB 351. 3 Kohen- Ligon- Folz, Inc., 36 NLRB 808; Morton-Davis Company, 36 NLRB 804; Justin McCarty, Inc , 36 NLRB 800. 4Section 9 (c) (5) of the Act; cf., Rothschild-Kaufman Co., Inc., supra, at 354. PAGE BOY COMPANY, INC. 129 Union. Such insubstantial record of collective bargaining cannot be accorded any significant weight in determining the appropriate unit herein Moreover, the Board, in recent years, consistently has found that a homogeneous and functionally coherent group of skilled em- ployees are entitled to separate representation despite the existence of a pattern of bargaining on a broader basis in the industry in the area.5 I find, therefore, that all cutters, including spreaders, cutters, and markers, but excluding supervisors and all other employees, at Respondent's Dallas plant, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. C. The Union's majority; the refusal to bargain On January 8, 1953, when the Union made its initial request for recognition, it represented Trent and Alvarado, 2 of Respondent's 4 cutters. Its status as majority representative there- fore depended upon whether Williams and Abe Ravkind, the other 2 cutters, were included in the appropriate unit of cutters. The General Counsel contends that Williams was and is a supervisor. On this issue, the record shows that Trent was hired by Moser who introduced him to Williams and told him he would work under Williams. Williams, at first, showed Trent how cutting was done at Respondent' s plant. After a short time there was no further need for Williams to give Trent general instruction. Williams, who made most of the markers, told Trent and the other cutters what material to use for each cut and gave them such special instructions as was required for the particular job This appears to be a normal function for markers to discharge. On several occasions, according to Trent's testimony, Williams gave him permission to come to the plant late or leave early. Williams also told the cutters when to work overtime. On three occasions Trent spoke to Williams with respect to a raise in wage rate. Each time Williams replied that he would have to check and later Williams advised Trent that the raise would be forthcoming. In this regard, Williams testified that he had no authority to grant any employee an increase in his wage rate and that he merely ad- vised Miss Elsie Frankfurt whenever anyone spoke to him about a raise. His opinion was never requested as to the progress any cutter was making or whether any cutter was doing a good job. Miss Frankfurt testified that all raises are authorized by herself or Mrs. Edna Ravkind, vice president of the Respondent, and that they are personally acquainted with the abilities of the cutters in the performance of their jobs. Williams is hourly paid as are the other cutters. He is more skilled and experienced than Trent and Alvarado The direction and instruction given Trent and Alvarado by Williams involved no greater responsibility or supervision than is usually exercised by skilled em- ployees over those who are less skilled Williams never was authorized by any officer of the Respondent to assign overtime work or to permit cutters to report late for work or leave early. According to Miss Frankfurt's testimony, the plant is loosely run and there is no fixed procedure which employees observe in obtaining permission to report late or leave early. This appears to have been a matter the employees arranged among themselves taking into account the press of work on the particular day Likewise, it appears that arrangements for working overtime were made by the employees themselves. Williams testified that, "If we was behind on the work, if I seen I was going to work, I would ask them to help me." There is no evidence that Williams had authority to compel any employee to work overtime if the employee did not wish to or to adjust disputes among employees concerning the allot- ment of overtime work. The evidence that Williams had authority in the interest of the Re- spondent to take action, or effectively to recommend action, affecting the conditions of employment of the other cutters is not sufficient upon which to base a finding that Williams was and is a supervisor. Accordingly, I find that Williams was included in the cutter's unit on January 8 and at all times material herein 6 On the other hand, Abe Ravkind, who is the husband of the vice president of the Respondent and brother- in-law of the president, is excluded fromthe unit, in accordance with the Board's long-standing policy of excluding from an appropriate unit employees who hp e a close familial relationship with officers of a corporate employer.? Thus, on January 8, 1953, the 5Flintkote Company, Pioneer Division, 105 NLRB 816; Pacific Coast Association of Pulp and Paper Manufacturers, 94 NLRB 477. 480. 6J. B. Wood et al., 95 NLRB 633, 636-637; Southern Industries Company, 92 NLRB 998. 7P. A. Mueller and Sons, Inc., 105 NLRB 552. 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union represented 2 of the 3 employees composing the unit found to be appropriate and therefore was the representative of all the employees in the unit within the meaning of Section 9 (a) of the Act. Although the Respondent refused to recognize and bargain with the Union it does not follow that the Respondent has violated Section 8 (a) (5) of the Act. Between January 8 and 10, 1953, the Union made several requests upon the Respondent for recognition as the bargaining representative of the cutters The Respondent disputed the Union's majority and refused to recognize the Union. There is no substantial evidence that the Respondent's refusal to recognize the Union was motivated by a rejection of its statutory duty to engage in collective bargaining or a desire to gain time in which to undermine the Union's majority among the cutters 8 A contrary inference cannot be drawn from the fact that the Respondent did not accept the Union's arguments concerning the scope of the unit Glatter advised Moser and Miss Frankfurt that both Williams and Abe Ravkind should not be counted in determining the Union's majority. However, Williams was not a supervisor and was therefore included in the unit and the Respondent's position that Ravkind was also included was not patently unreason- able.9 I, therefore, find that the Respondent's refusal to recognize and bargain with the Union was motivated by a bona fide doubt of the Union's majority status and, accordingly, was not a violation of Section 8 (a) (5) of the Act '10 D. The alleged interference and coercion The complaint herein alleges that by reason of various remarks and promises made by Williams and Abe Ravkind, the Respondent has violated Section 8 (a) (1) of the Act. There is no basis, upon the record herein, for attributing these remarks to the Re- spondent. Williams was not a supervisor and Abe Ravkind, although a close relative of officers of the Respondent, was not a supervisor and was not authorized to act or speak for management. There is no evidence that the alleged remarks and promises were authorized or ratified by the Respondent, that Williams and Ravkind were regarded by other employees as spokesmen for the Respondent, or that the remarks were made in pursuance of a plan by the Respondent to undermine the Union. Although the status of Williams and Ravkind, the former a relatively old employee unsympathetic with the Union and the latter a close relative of Respondent's officers, and the fact that each promised Trent a raise in pay if he would abandon the Union, give rise to the suspicion that their remarks were more than mere gratuitous expressions of personal opinions, nevertheless, such suspicion cannot be substituted for probative evidence 11 Accordingly, I do not find any violation of Section 8 (a) (1) of the Act. CONCLUSIONS OF LAW 1 Page Boy Company, Inc., is, and at all times relevant herein was, engaged in commerce within the meaning of Section 2 (6) and h of the Act. 2. Cutters Local No. 387, International Ladies' Garment Workers' Union, AFL, 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 12, 1953, by employees of Respondent at its Dallas plant was not caused by unfair labor practices of Respondent. [Recommendations omitted from publication.] 8 For the reasons discussed below, I do not find that the statements alleged to have been made by Williams and Abe Ravkind can be attributed to the Respondent . Therefore, these statements cannot be used as the base from which to draw an inference that the Respondent did not in good faith question the Union 's majority. 9 See N L. R. B. v. Sexton Welding Company, Inc., 203 F. 2d 940 (C. A. 6). 10 New Jersey Carpet Mills , Inc., 92 NLRB 604, 607. _ ii Western Lace and Line Co., 105 NLRB 749; Punch and Judy Togs, Inc , of California, 85 NLRB 499.