Manchester Modes, Inc.

MANCHESTER MODES, INC. 755 peculiarly within the knowledge of" the contracting parties. The Board did not permit the new contract negotiated in the interim to be a bar for the reason, as I view it, that to do so would permit parties to benefit from the nondisclosure of evidence peculiarly within their knowledge, which, if disclosed, would negate the position ad- vanced before and adopted by the Board. Here, the Petitioner originally sought severance on the theory that the employees were a craft. The Board, on the record, found they did not constitute a true craft or a proper departmental group and dismissed the petition on the basis of the American Potash decision? Petitioner's motion to reopen did not allege that the Board, on the record before it, erred in dismissing the petition. Rather Petitioner urged that the record be reopened "to take further evidence concern- ing the positive true craft identity of the unit herein sought," excus- ing its failure to do so at the original hearing only on the ground that in a proceeding 2 years earlier an election had been ordered in an identical unit. In these circumstances, I think the contract executed by the Em- ployer and Intervenor while the motion to reopen was pending should be held a bar to a present election. To do otherwise, it seems to me, places a premium on piecemeal presentation of cases, and makes for uncertainty and instability in collective-bargaining relationships. I think it is most inequitable to penalize the Intervenor for the Peti- tioner's failure to persuade the Board of the appropriateness of the unit sought by evidence of which it was at all times cognizant. I be- lieve the proper rule would be to hold that a petitioner in these cir- cumstances must bear the risk of being denied an election by reason of an intervening contract. A contrary rule will encourage motions to reconsider and reopen, thereby unnecessarily prolonging the reso- lution of representation proceedings. 7107 NLRB 1418 , issued March 1, 1954 . The original hearing in the present case was held on March 24, 1954. The Petitioner , therefore , cannot complain that it was then unaware of the necessity for producing evidence meeting the requirements for severance set forth in Amerscan Potash MANCHESTER MODES, INC., AND BRITAIN HALL, INC. and LOCAL 141, INTERNATIONAL LADIES' GARMENT WORKERS UNION, AFL, PETI- TIONER. Case No. 1-RC-3071. February 18, 1955 Second Supplemental Decision and Direction On October 3, 1953, pursuant to a Supplemental Decision, Order, and Direction of Second Election,' an election by secret ballot was conducted under the direction and supervision of the Regional Direc- I Not reported in printed volume of Board Decisions and Orders 111 NLRB No. 113. 344056-55-vol 111 49 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tor for the First Region, among the employees in the unit found ap- propriate. Upon the completion of the election, a tally of ballots was furnished the parties. The tally reveals that of approximately 640 eligible voters, 629 cast ballots, of which 239 were cast for the Peti- tioner, 248 were against the Petitioner, 139 were challenged,2 and 2 were void. The Regional Director investigated the challenges and, on Novem- ber 9, 1953, issued and served upon the parties a report on challenged ballots. In his report, the Regional Director recommended that the challenges to 43 of the ballots be sustained, challenges to 21 of the ballots be overruled, opened, and counted, but that such opening and counting be deferred until the Board determined the voting eligibility of those persons listed in category E and sick leave (B) as set forth in the report, and that a hearing be held concerning the eligibility status of the latter voters. The Petitioner filed timely exceptions to certain portions of the Regional Director's report, but concurred in his recommendation that a hearing be held. On December 21, 1953, the Board adopted the Regional Director's recommendations, sustain- ing 43 challenges, overruling 21, and deferred directing that the latter be opened and counted until the Board passed upon the eligibility of the voters listed in category E and sick leave (B). The Board also ordered that a hearing be held as to the status of the 75 voters in these two categories. The Board in its Order directed the hearing officer to resolve credibility issues and to make findings of fact and recom- mendations to the Board as to the disposition of the challenges. On January 6, 1954, the Petitioner filed a motion requesting partial recon- sideration of the aforesaid Order. Having further considered the matter,,the Board, on January 21, 1954, decided to broaden the scope of the hearing on challenges directed in its Order of December 28, 1953, to include the taking of evidence concerning the 26 challenged voters as to whom issues were raised by Petitioner's exceptions.' Thereafter, a hearing was held commencing on February 8, 1954, and ending on March 25, 1954, before Robert S. Fuchs, hearing officer. The Employer and the Petitioner appeared and participated. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues, was afforded the parties. The hearing officer's rulings made at the hearing are free from preju- dicial error and are hereby affirmed. On June 16, 1954, the hearing officer issued his report in which he recommended that the challenges to 79 ballots be sustained and 11 be 2 Because of a duplication of one name , the tally incorrectly indicated the number of challenged ballots as 140 3 These consisted of 19 of the ballots as to which the Regional Director had recom- mended that the challenges be sustained, and 7 of the ballots as to which he had recom- mended that the challenges be overruled. MANCHESTER MODES, INC. 757 overruled.' On July 27, 1954, the Petitioner filed timely exceptions to certain portions of the hearing officer's report, and, on August 13, 1954, by special leave of the Board, the Employer filed a reply brief. The Board has considered the hearing officer's report, the exceptions and briefs, and the entire record in this case and hereby adopts the findings, conclusions, and recommendations of the hearing officer. In the absence of any exceptions, we hereby adopt the hearing officer's findings and recommendations and sustain the challenges to the ballots of Margaret Hawkins, Rose Bironi, Anna Zanishka, Peter Olivia, Georgianna Scudder, Mildred Grigas, and Madeline Poppel. For the same reason, we likewise adopt his findings and recommenda- tions and overrule the challenges to the ballots of Marion Wright, Michael Angel, Donald Tryon, Angelina Di Thomas, Panfilo Berardi- nelli, Helen Badrigian, Rose Ann Hawrylik, Jennie Liss, Marion Frangione, Susie Manduke, and Anna Buccheri. As to the 72 remaining challenged ballots, all cast by laid-off voters, the hearing officer found, inter alga, that because of the economic, situa- tion then existing at the New Britain plant where the layoffs occurred, none of the laid-off workers had a reasonable expectation of reemploy- ment within the foreseeable future. The Petitioner in its exceptions does not dispute the hearing officer's factual findings but contends that the Board should not follow his conclusions and recommendations as to these voters,' urging that the evidence concerning the Employer's economic situation should be evaluated in the light of several acts by the Employer through which, Petitioner alleges, the Employer has sought to deceive the Board by creating the appearance that the laid- off voters had no reasonable expectancy of reemployment. In sup- port of this contention, Petitioner asserts that the Employer: (a) On September 18, 1953, the last workday before the eligibility period, sent letters to each of the laid-off employees advising each that no work was available and suggesting that the workers seek employment else- where; (b) prepared an eligibility list including thereon only the names of employees who actually worked during the eligibility period, contrary to the Board's Decision and Direction of Election provision that temporarily laid-off employees were eligible; and (c) "dated- back" group insurance cancellations to show that the laid-off voters 4 At the hearing and in its brief to the hearing officer the Petitioner withdrew its excep- tions to the Regional Director 's recommendations concerning 11 of the challenged ballots. Accordingly, in the absence of any exceptions, we shall adopt the Regional Director's find- ings and recommendations , and sustain the challenges to the ballots cast by Roger Negro, Michelina Naples, Edmund Tarcini, Gregory Listini, Josephine Ruggeri, Lena Listini, Frances Gagne , Susan Montione , Frank Rock, and Gertrude Abrams , and overrule the challenge to the ballot of Clara Stowell 5 The Petitioner , however, concedes , and we agree, that the eligibility of all these voters may be resolved solely by a determination of the broader question of whether or not the laid-off employees had a reasonable expectancy of reemployment at the time of the election. 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were permanently terminated prior to the eligibility period. The Petitioner specifically contends that the hearing officer erred by not according any weight whatever to evidence concerning the "wholesale" letter and the back-dated insurance cancellations while on the other hand basing his findings and recommendations primarily upon the testimony of Miller, the Employer's vice president. The Petitioner requests that the Board reverse the hearing officer's finding that Miller was a credible witness, because of the alleged deceptive acts set forth above. Miller was in charge of coordination of production, purchases, and sales at the New Britain women's suit manufacturing plant where the layoffs occurred.' Normally, spring seasons were the heavi- est in the women's suit manufacturing industry. Spring season pro- duction at New Britain commenced around October or November and continued until February. Spring sales began in November, reach- ing a peak several weeks before Easter. During the 1952 spring season, the Employer had gambled concerning its production. It produced on an inventory basis with the expectation that future sales would warrant the quantity made. This expectation was only partly realized as the Employer assumed a loss on some items which were sold as low as 50 percent below the cost of manufacture. In the fol- lowing 1953 spring season the Employer also had "over-manu- factured" with serious economic consequences. About 3 weeks before Easter-usually the peak of the season-the women' s suit market col- lapsed. During March, April, May, and June of that year, the Em- ployer lost money on its operations. In line with his past practice, Miller visited the major cities of the South during the summer of 1953 for the purpose of obtaining infor- mation that would assist the Employer in improving its merchan- dise and evaluating its sales prospects for the approaching season. He learned from the southern buyers that retail outlets were attempt- ing to dispose of their stocks, and were not interested in purchasing new lines of garments. His inquiry disclosed that the economic situation in the women's suit industry was "very disastrous." There- after, Miller visited New York City where his appraisal of market conditions was confirmed. Upon his return about the first of Sep- tember, Miller told Production Manager Valente to start "curtailing right down the list because . . . it will have to be from day to day." He testified that the Employer was utilizing too many employees for the quantity of merchandise produced, and was "consistently in the red." As a consequence, most of the 72 challenged voters in issue, along with some others, were laid off during the first several weeks in September. About September 17 or 18, Miller again instructed e Manchester Modes, Inc , the other plant included in the two -plant unit, is engaged in the manufacture of women 's coats and is not involved in this aspect of the proceeding. MANCHESTER MODES, INC. 759 his subordinates to reduce production. In an effort to keep the plant operating, the Employer began manufacturing a new line of leather jackets and goods. As its basic crew had no knowledge or skills related to the manufacture of the new line, the Employer discon- tinued this production when the resulting loss became too great. Miller further testified that, as of the early part of September 1953, he could not foresee when the plant would resume quantity produc- tion. On October 1, 1953, a few days before the election, the plant was still operating on a "day-to-day" basis. Because of the outlook then, the Employer did not expect to have satisfactory sales during the normally good spring production months of January, February, and March, and believed that it had an adequate work force to take care of its existing and future requirements. After the unprofitable spring 1953 experience, the Employer en- deavored to utilize its stockpile of piece goods before purchasing any new materials. Late in December 1953 or early in January 1954, the Britain Hall, Inc., stockholders decided to liquidate the corpora- tion because of the acute financial situation.' On January 8, 1954, the necessary legal steps were taken to dissolve the corporation effec- tive February 28, 1954. At the time of the hearing, the Employer was selling out the remainder of its piece goods in the course of liquidating its stock. It is clear from the foregoing, and we find in agreement with the hearing officer, that the 72 laid-off voters had no reasonable expect- ancy of recall on the eligibility date.' The Petitioner urges that as these voters in past years had been recalled after between season lay- offs, they consequently had a reasonable expectation of recall for the following 1954 spring season. We disagree with the logic of this rea- soning. Although production requirements during past spring sea- sons may have necessitated the recall of all laid-off employees, it does not necessarily follow that all such workers would be recalled for sub- sequent seasons. It is evident that the serious economic plight begin- ning at the height of the 1953 spring season, coupled with the unusu- ally bleak outlook as to future sales prevailing at the time of the elec- tion, removed whatever expectancy of reemployment within the fore- seeable future these voters might have had. We shall now consider the other issues raised by the Petitioner's exceptions. Concerning the "wholesale" dispatch of letters inform- ing employees, in effect, that they were permanently laid off, the hearing officer refused to credit Bruno, the junior executive who sent the letters, a finding with which we agree. He concluded that the letters were not sent with the knowledge and consent of the proper management authorities, and assigned no evidentiary weight to them. '' Sales had dropped from 50 to 70 percent of the volume of the last peak year. 8 Gerber Plastic Company, 110 NLRB 269. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As to the cancelled group insurance policies, the hearing officer like- wise accorded no probative weight to testimony concerning the can- cellations either in establishing the permanency of the layoffs, or supporting a finding that the cancelled policies were deliberately back- dated. In this connection, he relied upon evidence that (a) the group policy provides that a temporarily laid-off employee may be carried on the active rolls at the Employer's option, but not beyond the end of the month following the month of layoff ; and (b) the insurance records were loosely handled by Guyette, the personnel clerk. With respect to the contention that the Employer, contrary to the Board's decision, supplied an eligibility list composed only of employees actu- ally working during the eligibility period, the hearing officer found that Guyette, upon instructions of Mosler, secretary-comptroller, had prepared such a list and that Mosler did not discuss with her the inclusion of laid-off employees or those on sick leave. We have carefully considered the evidence relating to the dispatch of the letters, the group insurance cancellations, and the preparation of the eligibility list, and conclude that any inferences adverse to the Employer's contention which might be drawn from such evidence are not sufficient to overcome the uncontroverted testimony of Miller, a major official of the Employer who had no personal connection with the aforementioned matters, that the Employer's business outlook on the critical date was very poor. We also ,find no merit in Petitioner's contention that the Board should reject the hearing officer's finding that Miller was a credible witness. A hearing officer, like a Trial Examiner, has the advantage of seeing and hearing the witnesses and we attach great weight to his credibility findings. We do not overrule them except where the preponderance of all the relevant evidence convinces us that he is incorrect.' Accordingly, we shall sustain the challenges to the ballots cast by the 72 employees whose names appear on Appendix A. As the 12 ballots as to which the challenges are overruled herein and the 14 ballots as to which the challenges are overruled in the Board's Order of December 21, 1953, as modified by its Order of Jan- uary 21, 1954, are determinative as to the outcome of the election, we shall direct that these ballots be opened and counted. [The Board directed that the Regional Director for the First Region shall, pursuant to the Rules and Regulations of the Board, open and count the ballots cast by Clara Stowell, Marion Wright, Michael Angel, Donald Tryon, Angelina Di Thomas, Panfilo Berardinelli, Helen Badrigian, Rose Ann Hawrylik, Jennie Liss, Marion Frangione, Susie Manduke, Anna Buccheri, Vaildis Aldins, John Corbett, Charles Harmin, Jack Hallam, Mary Caramia, Rose Faccinti, Marie Martel, s Semet-Solvay Division, Alltied Chemical & Dye Corporation, 96 NLRB 1374 , 1375. See, also, Whiting Corporation, 99 NLRB 117, 120, and cases cited therein. MARTINOLICH SHIP REPAIR CO. 761 C. Mazzarella, Connie Palozzalo, Jennie Palys, Eva Pedersen, Alice Silva, Ethel Silva, and Concetta Vassallo in the election held herein, and serve upon the parties to this proceeding a supplemental tally of ballots, including therein the count of said ballots.] Appendix A Josephine Bellotti Louis J. Rio manna Elsaser Julia Barone Margaret Russo Anna Kucharski Rose Giattino Concertina Sales Satenig Garabedian Erma Scarpa Michelina Szdlowski Monroe Frascona Loretta Berard Mary Syzmanowski Mary Gionfriddo Mary Cianci Pasqualina Smith Mary Anginito Catherine Marijosius Angelo Veneziano Jennie Kayko Vera Symolon Constance S. Veneziano Mary Kalinowski Josephine Amenta Pauline Zisk Yvonne Moore Joseph Borselle John Verillo Lillian Motto Anna Bystry Anna Atkinson Pauline Majka Connie Cappello Salvatore Annino Jessie Niedziwicki Annamaria D'Agata Angelina Agnello Lucy Negrini Laura Forgione Albert Baruffi Ann Pandolfi Julia Ingenito Tinino Bissoni Angelina Orticari Angelo Mendolfo Carmeline Berritta Jennie Rio Carmela Mazzarella Josephine Bissone James Rio Julia Mariotti Jianine Bianco Edmund Sargis Anthony Manduke Maria Catala Cinda Russo Patsy Motto Mary Caristia Lucy Suprynowicz Francisco Moreno Rose Caldarone Anna Taricani Dorothy Muraca Florence Diminno Lillian Volonino Marie Pawlicki Angelina Di Luzio Enrico Vitelli Francis A. Parise Ann Dorbuck Frances Vaccariello MARTINOLICH SHIP REPAIR Co. and INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL, PETITIONER. Case No. 2O-RC-1610. February 101,1955 Supplemental Decision and Direction Pursuant to a Decision and Direction of Election issued by the Board herein on October 5, 1954,1 an election by secret ballot was conducted on October 27, 1954, under the direction and supervision of the Regional Director for the Twentieth Region, among the employees in the ap- propriate unit. Upon the conclusion of the election, the parties were furnished a tally of ballots which showed that of 21 votes cast in the 1 Not reported in printed volumes of Board Decisions and Orders. 111 NLRB No. 120.