Betty Brooks Co.

National Labor Relations Board - Board Decisions

Jun 30, 1952

99 N.L.R.B. 1237 (N.L.R.B. 1952)

BETTY BROOKS COMPANY 1237
BETTY BROOKS COMPANY and INTERNATIONAL LADIES' GARMENT
WORKERS' UNION, A. F. OF L.
BETTY BROOKS COMPANY and INTERNATIONAL LADIES' GARMENT WORK-
ERS' UNION, A. F. OF L. Cases Nos. 21-CA-942 and 21-CA-1065.
June 30, 1952
Decision and Order
On November 19, 1951, Trial Examiner James R. Hemingway
issued his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondent had engaged in and was engaging in certain
unfair labor practices within the meaning of Section 8 (a) (1) of the
Act; and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. The Trial Examiner also found that the
Respondent had not engaged in certain other unfair labor practices.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and an exhaustive supporting 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 brief, and the entire record in this
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.,
Order
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Betty Brooks Company,
its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) In any manner interfering with, restraining, or coercing its
employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist International Ladies' Garment
Workers' Union, A. F. of L., or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or all
such activities requiring membership in a labor organization as a
i The Intermediate Report contains some minor inaccuracies, none of which affects our
ultimate conclusions For example , the Respondent gave a wage increase effective on
December 18, and not on December 6. Similar insubstantial inaccuracies in the Inter-
mediate Report require no further comment herein.
99 NLRB No. 160.
215233-53-79
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
condition of employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant in Huntington Park, California, copies of
the notice attached hereto and marked "Appendix A." 2 Copies of
said notice, to be furnished by the Regional Director for the Twenty-
first Region, shall, after being duly signed by the Respondent, be
posted by it immediately upon receipt thereof, and maintained by it
for sixty (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.
(b) Notify the, Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, except with respect
to the allegations concerning an assault on Union Representative Levy
in the presence of employees, be, and it hereby is, dismissed.
MEMBERS STYLES and PETERSON took no part in the consideration
of the above Decision and Order.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT in any 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 INTERNATIONAL
LADIES' GARMENT WORKERS' UNION, A. F. OF L., or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities except
to the extent that such right may be affected by an agreement
2 In the event that this Order is enforced by 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."
BETTY BROOKS COMPANY 1239
requiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act.
Dated--------------------
BETTY BROOKS COMPANY,
Employer.
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.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
An original charge in Case Number 942 was filed on November 3, 1950, by
the above-named Union, hereinafter called the Union, alleging that Betty Brooks
Company, hereinafter called the Respondent, by first laying off and later, on Octo-
ber 20, 1950, by discharging Lois Tyer, because of her union activity, had discrimi-
nated against her. Oil this charge and oil an original and amended charge in
Case Number 1065, dated respectively March 16, 1951, and March 20, 1951, the
Acting Regional Director, on behalf of the General Counsel1 for the National
Labor Relations Board, herein called the Board, on July 31, 1951, issued a
consolidated complaint alleging violations of Section 8 (a) (1), (3), and (5)
of the National Labor Relations Act as amended, 61 Stat. 136, herein called the
Act.
In substance the complaint alleged that on and at diverse times after September
22, 1950, the Respondent refused upon request to bargain collectively with the
Union, previously certified by the Board; that on and after May 3, 1950, the
Respondent discriminatorily made changes in the work assignments of employees
Lois Tyer, Georgianna Jensen, and Frances Gerling ; and on October 20, 1950,
discharged said Tyer to discourage membership in the Union; and that on and
after April 10, 1951, the Respondent had interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in Section 7 of the Act by
assaulting a union representive in the presence of employees and by various
statements to employees.
On August 15, 1950, the Respondent filed an answer in which it admitted
but justified the discharge of Tyer, denied the commission of all the alleged
unfair labor practices, and alleged that on and after September 22, 1950, the
Union refused to bargain with the Respondent.
On September 6, 1950, the Regional Director issued on behalf of the General
Counsel an amendment to the complaint alleging that the Respondent, at all
time material therein, questioned employees and prospective employees con-
cerning their union interest, affiliation, and membership in derogation to their
rights guaranteed in Section 7 of the Act. The Respondent filed an answer
to said amendment on September 14, 1951, denying the allegations thereof.
Pursuant to notice, a hearing was held at Los Angeles, California, on various
days between September 17 and October 4, 1951 During the course of the
t Both the General Counsel and his counsel at the hearing will he herein called General
Counsel
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing, the General Counsel moved to amend the complaint to allege that on
and after May 3, 1951, the Respondent discriminatorily reduced the rate of pay
of Lee Deakin because of his union activities. The motion was granted. Fol-
lowing the testimony of Georgianna Jensen, on September 21, the General
Counsel moved to dismiss the complaint as to her The motion was granted.
On the next day of the hearing, September 24, the General Counsel moved to
dismiss as to said Deakin. This motion was granted. On September 27, the
General Counsel moved to dismiss the complaint as to its reference to Case
Number 942 after it had been brought out that the charge in this case had been
dismissed by the Regional Director on December 29, 1950, and that the Union
had not appealed the action. The motion was granted. The Respondent there-
upon moved to dismiss paragraph 10 of the complaint which alleged the dis-
criminatory discharge of Lois Tyer, on the ground that no charge had been
filed upon which such discharge could be based. Although the charge in Case
Number 1065 did not mention '.Dyer, I denied the motion on the ground that the
charge did not have to contain all that was alleged in the complaint and that the
charge was filed within 6 months after the discharge of Tyer. But on the next
day of the hearing, September 28, the General Counsel moved to dismiss the
complaint as to the discharge of Tyer and the motion was granted. At the
close of the Respondent's case, the General Counsel moved to dismiss as to
paragraph 9 of the complaint, which alleged discriminatory changes in work
assignments of Tyer and Frances (this paragraph having already been dis-
missed as to Jensen) on the ground that these assignments occurred more than
6 months before the filing of the charge in Case Number 1065. The motion was
granted.
At the conclusion of the Respondent's case, the General Counsel and counsel
for the Respondent argued orally before the undersigned. They waived the filing
of briefs. At the close of the hearing, the Respondent moved to dismiss the
entire complaint. Ruling was reserved thereon and is now granted in part
and denied in part as set forth hereinafter.
Upon the entire record and from my observation of the witnesses, I make the
following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a California corporation, is engaged in the manufacture of
uniforms , gymnasium wear, and denim wear. Purchases by the Respondent,
consisting principally of fabrics, machinery, and related items for the period of
1 year before December 21, 1950, exceeded $750,000 in value. During the same
period the Respondent's sales were in amount of approximately $1,000,000, of
which about 30 percent in value was shipped to points outside the State of
California. The Respondent does not deny, and I find, that it is engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Ladies' Garment Workers' Union, affiliated with the American
Federation of Labor, is a labor organization admitting to membership employees
of the Respondent.
BETTY BROOKS COMPANY
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The appropriate unit and the Union's majority therein
1241
As a result of a Board-conducted election on May 3, 1950, which the Union won,
the Board on May 17, 1950, certified the Union as the exclusive representative
of all the employees in a unit previously found appropriate, consisting of all pro-
duction and maintenance employees in the Respondent's Huntington Park plant,
excluding shipping and receiving employees, office employees, guards, and super-
visors as defined in the Act. No issue was taken on these facts and I find that
said unit is appropriate within the meaning of Section 9 (b) of the Act and that
on and at all times material after May 17, 1950, the Union was the exclusive
representative of all the employees in such unit within the meaning of Section
9 (a) of the Act.
2. The bargaining negotiations
Pursuant to request by the Union, the Respondent, represented by its vice
president, Philip Brooks, and its labor relations counselor, Biddle Trade Bureau,
hereinafter called Biddle, in the person of Jack Hubbard, met with representa-
tives of the Union at Biddle's offices in Los Angeles on various dates fixed by
mutual agreement. These dates were May 12, June 22, July 10, July 18, July
27, August 14, August 24, September 6, September 22, October 16, October 25,
November 29, all in the year 1950, and January 31, 1951. No complaint was
made that meetings were not held often enough. At each of these meetings the
Union had present a committee of the Respondent's employees as well as two
or more representatives of the International. Before November 29 these were
Abe Levy, director of organization and attorney for the Union's Pacific Coast
office, and Abe Pincus, a staff member. On the latter date William Ross, who
became director of organization succeeding Levy, and Hayman Langer, the
Union's Pacific Coast director, became the principal negotiators for the Union.
Just before the first meeting the Union presented its proposed contract to
Hubbard. This contract contained 31 clauses. Among other things, the Union
asked a union shop and checkoff ; a flat increase of 20 cents an hour ; 371/2-hour
week for day workers and 35-hour week for night workers with bonus ; establish-
ment of minimum rates ; flixing of piece rates by agreement between the Re-
spondent and an employees' price committee ; grievance procedure ; limitations on
subcontracting; contribution by Employer to the Union's vacation, health, and
welfare fund ; arbitration of disputes by an arbitrator named in the agreement
by the Union ; and a provision for a conference on an upward revision of wages
whenever the Consumer's Price Index of the Bureau of Labor Statistics should
rise 5 or more points.
In the meetings, the dates of which have already been given, the parties dis-
cussed the provisions of the proposed contract. The Respondent had various
degrees of objections to most of the clauses. Some the Respondent flatly rejected,
such as a reduction in hours below the 40-hour week in force, but the Respondent
offered a modification in the provision for overtime work and for bonus pay to
night shift employees. The Respondent rejected the 20-cent general wage increase
but agreed to future increases whenever the Bureau of Labor Statistics cost-of-
living index rose five points, as proposed by the Union. At first, the Respondent
wanted to wait until the index had stayed up the five points for a full 6 months
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before the increase would be given but it later abandoned this limitation. It
agreed in principle to the proposed grievance procedure but refused to pay for
time lost to more than one employee representative. Although it rejected a union
shop, it offered maintenance of membership.
Much time was spent on the arbitration provision. The Respondent was
agreeable to an appropriate arbitration clause but rejected the Union's proposal
for its named contract arbitrator. The Respondent made counterproposals for
selection of an arbitrator by the naming of a panel or arbitrators and alternately
striking names therefrom until only one was left, or in the alternative, it sug-
gested the selection by each party of an arbitrator who would in turn name a
third. The Union, although indicating that it might agree on a clause along
the line of Respondent's proposal, preferred to leave the matter open, pending
agreement on other subjects, and it remained open to the end. Although the
Union at one point seemed agreeable to the Respondent's proposal, it later
reverted to its demand for its named arbitrator.
The parties reached a substantial understanding on a provision for division
of work and order of layoffs or advancements, although details remained to be
worked out.
The Respondent preferred its own vacation, health, and welfare plan to that
of the Union. The Union argued strenuously for its plan, which required
employer contribution, but the Respondent had objections which had some
foundation. No suggestions were made which brought the parties near to any
agreement and an impasse was reached thereon.
The principal issue involved increased pay. The Union was asking for an
across-the-board increase (which the Respondent consistently rejected), an
increase in minimum rates, and a clause providing for its participation in the
setting of piece rates. The Respondent objected to the Union's participation in
the setting of piece rates before putting a garment into work because it felt that
the setting of piece rates was an engineering matter to be worked out through
time studies and the use of base rates set in the collective bargaining agreement.
It looked upon a program of union participation in the setting of piece rates as
one designed to lead to endless haggling which would delay production. The
Respondent proposed that if rates set by its method were not satisfactory to the
Union, such rates be taken up as grievances, and if the result of the grievance
should be a change of rate, the change would be made retroactively to the time
the rate was put into effect. No agreement was reached on this.
Most of the Respondent's employees were on a piece-rate basis, but some were
on a time basis. For the latter, the Union wanted progress raises based on length
of service, while the Respondent wished to continue making raises based on its
merit system. The Union indicated a desire to study the merit system, and the
subject was left open. It did not receive attention thereafter in the conferences
The Union was not opposed to an incentive pay plan if a satisfactory one could
be agreed on. One of the Union's objections to the Respondent's system, and
therefore one of its reasons for wishing to participate in the fixing of piece
rates, was that the piece-rate fixing involved an exercise of judgment on the
part of the Respondent in determining the ability of the operator who was
the subject of a time study as compared to that of an average operator. The Re-
spondent offered to eliminate the judgment from the time-study man's operation,
limiting his function to the actual timing. Thereafter the rate could be fixed,
according to the Respondent's scheme, by standard allowances and by reference
to base rates agreed upon in the contract. Before base rates could be set, it was
necessary for the parties to agree on classifications of workers. The Respond-
ent's method of classifying workers appeared unorthodox and impractical to the
BETTY BROOKS COMPANY 1243
Union Its classes were broken down into grades A, B, and C, depending on the
degree of skill required. Although 'the Respondent was willing to eliminate
the exercise of judgment from the time-study operation, it apparently would
still exercise judgment in determining who would fall into the various grades
within a classification. The Respondent wished to handle complaints on classifi-
cation as grievances . The Union wanted to eliminate these grades and have a
single base rate for each class of worker. At the Union's request, the Respondent
attempted to furnish job descriptions which would give more meaning to its
classifications. The Union rejected the first set of descriptions offered as too
complicated and too "unnatural." Later prepared descriptions were no more
satisfactory to the Union. To the end, the parties„ failed to reach agreement
thereon. It is true that from the standpoint of the Union the Respondent's
proposal of different base rates for different categories of employees, especially
in view of the inability of the parties to agree upon job descriptions, was not
satisfactory. But it is not my function to arbitrate the terms of the contract.
The sole question for me to determine is whether or not the Respondent was
engaging merely in surface bargaining or whether it genuinely sought to reach
agreement. Refusal to yield to the Union's proposals or to depart from its
basic wage plan to any radical degree, could be said to be evidence of bad faith
only if the Respondent's reasons for refusing to change were specious, inconsist-
ent with its own practice, or arbitrary. Philip Brooks, before joining the business
of his father, took a number of college courses in industrial engineering. Al-
though his technical approach may be the subject of criticism by those holding
different economic views, he appeared to be honestly of the opinion that an in-
centive system was the only satisfactory method of determining wage rates. I am
not persuaded that his refusal to depart from his general aim of maintaining an
incentive system was evidence of bad faith.
The parties discussed minimum rates. The Respondent at first refused more
than 75 cents as a shop-wide minimum, but later it offered an 85-cent minimum
rate for experienced operators. However, the parties never reached agreement
on a definition of "experienced." The Respondent wanted to define an experi-
enced worker as one who had been employed for a definite period of either
6 months or a year, or one who sooner earned above the minimum for two con-
secutive months. The General Counsel urged a finding that the 6-month
period was proposed by the Respondent first, that it receded to the 1-year period
later, and that this was evidence of bad faith. This was denied by the Respond-
ent, but I find that it is not necessary to resolve the issue, because in the first place
both periods of time were mentioned by Brooks in one discussion of the topic
and with no expression of assent by the Union to either, and in the second
place, it was only on the accelerated period that the Union made its counter-
proposal. The Union offered to define a worker as experienced when she had
earned above the average base rate for six consecutive weeks. Although they
were not far apart, neither the Respondent nor the Union would yield further.
At the October 16 meeting, the Union proposed an immediate 5-point cost-of-
living increase. Hubbard said that as of August 15, the BLS cost-of-living
index showed only a 2.2-point increase and the Respondent rejected the increase,
but Brooks said he would discuss it with his father. On October 25, Brooks
reported that his father had said there could be no raise unless the cost of
living rose further or unless business conditions warranted it.
At the meeting of November 29, 1950, the Respondent announced that as the
BLS cost-of-living index figures had risen close to five points since the last
wage increase, and as employees were asking about such an increase, it would
give a raise of that amount. The Union told the Respondent not to expect it to
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
settle the wage question on the basis of a five-point increase . The Respondent
replied that it would not expect the Union to do so, but it was going to put
the increase into effect. The increase was given, effective on December 6. The
Union made no other objection thereto, but it asked to be supplied with figures
showing actual earnings of piece-rate workers. These were furnished at the
next meeting.2
At one of the negotiation conferences toward the end of the series, Pincus,
for the Union, asked to be furnished with a set of piece rates and work cards on
which rates were printed. Brooks said that that information could easily be
obtained by any of the employees on the committee, apparently having in mind
that the employees could take the data off the piecework tickets then in produc-
tion. Pincus, however, understood that the information would be furnished
from the Company's files, and at the close of the meeting he told Committee
Member Gerling to ask Superintendent Roy Fisher for the information. Gerling
went to Fisher, who refused to give Gerling access to the files without Brooks'
permission. Fisher later told Philip Brooks about Gerling's request and Brooks
said that he would take it up at one of the conferences. However, the matter
slipped Brooks' mind and the Union did not, at succeeding meetings, mention
the subject again The Respondent had no duplicate set of piecework rates and
therefore had nothing that could be allowed to go out of the plant. The records
were so voluminous that it would have required many days' work to copy all of
the records. The rates of items then in production were. not separated from
the other rates in the files and the evidence does not disclose that Gerling limited
her request to any portion of the records. In view of the Union' s failure to
follow up its request or to indicate more specifically the information it sought, I
find the evidence insufficient to indicate that the Respondent acted in bad faith
or deliberately sought to deprive the Union of information which was necessary
to carry on bargaining negotiations.
It was the practice of the Respondent to fix piece rates on the basis of the
1942 dollar value, the date the Respondent set up its present practice, and then
to indicate that the rate carried a bonus of a certain percentage which depended
upon the extent to which the Respondent had increased rates to keep in line
with the increase of cost of living. For example, before April 18, 1950, the
piece-rate ticket would indicate a rate plus a 70 percent bonus ; after the April 17
raise, it would have shown an 80 percent bonus. The Union wanted to eliminate
the double calculation by using a piece rate based upon the 1950 dollar. Although
the Union proposed use of the 1950 dollar to make it easier for the worker to
determine the piece rate, it no doubt had in mind that a cost-of-living increase
based on a 1950 dollar would be greater percentagewise than it would on a 1942
dollar. The Respondent objected to this proposal on the ground that it would
be an overburdensome task to go through its files and change each piece rate
to a single figure based on the 1950 dollar when the next cost-of-living increase
would again result in a double figure. And if the double figure were to be avoided,
it meant constant revision of piecework figures--not merely the current ones
but all figures, since old figures are often used as a starting point for fixing
rates in new work. This appeared to the Respondent to be unnecessary in view
of the fact that the end result would have been the same as if the sum of the
piece rate plus the bonus were used. On the evidence here, I do not find bad
faith in the Respondent's rejection on the Union's request to use a 1950 figure.
2 Evidence was adduced that the earnings of about 8 out of about 80 piece-rate workers
were omitted from the list. The Respondent explained the omission in a way which indi-
cates that no deceit was intended.
BETTY BROOKS COMPANY 1245
3 Collateral facts and arguments
The General Counsel contends that the question of the Respondent's good
faith cannot be determined without taking into account certain additional facts
by way of. background. For example, the Respondent's refusal to give any
increase in wages except on a cost-of-living basis, he says, must be considered
in the light of the following facts :
For some years before 1950 the Respondent had followed a practice of granting,
intermittently, general wage increases to its pieceworkers to keep their pay
substantially in line with the increase in the cost of living as shown by the
Bureau of Labor Statistics index. A comparison of the Respondent's increases
in wage rates and the rise in the cost of living in the Los Angeles area is shown
in the following figures :
Respondent's wage rates in percentage above base of 100 before November 1942
BLS cost-of-
living index on
same date 8
Nov 2,1942----------------------------------------------------------- 120 122 7
Nov 15,1945-------------------------------------------------------- 135 133 0
Dec 2,1946------------------------------------------------------------ 140 154.5
Oct.20, 1947------------------------------------------------------ 160 161.3
Nov 15,1948--------------------------------------------------------- 170 172.2
Apr.17,1950----------------------------------------------------------- 180 166.9
Dec.18,1950--------------------------------------------------- ------- 185 175.8
It will be observed that with the exception of the April 1950 raise, the increases
were all given toward the end of the year. This practice might be explained by
the fact that the Respondent's fiscal year began on November 1, and the increases
were given at about that period of time. The April 1950 increase, therefore,
appears to have been a departure from the Respondent's past practice in two
respects : It was not given at the end of the fiscal year, and it was not based on
the BLS index, which retreated instead of advancing after the 1948 pay increase.
In view of the fact that the April 1950 increase was announced on April 20,
just 2 weeks before the union election, the Respondent's motives may be ques-
tioned. The announcement of the increase explained, that it was granted
because, before January 25, 1950, the State minimum wage law was 25 cents per
hour higher than the national minimum and therefore eastern competitors had
been able to undersell the Respondent, but that on January 25 the national
minimum was increased to the same figure as the State minimum, and that,
since January, the Respondent had observed a "stiffening" in the price of gar-
ments, that in studying rates since January, with a view to equalizing rates, the
Respondent had observed that earnings of pieceworkers had not been up to
expectations, probably due to the fact that the Respondent had been unable to
keep workers on the same operation long,enough ; so the Respondent had decided
to increase its sales force to widen its market outlets and to increase the rate
of the pieceworkers from 70 percent bonus to 80 percent bonus.
On its face the Respondent's explanation of its April increase might sound
plausible. But in view of the timing (months after the increase in the national
8 As this index is published on the 15th of each month, I have taken the figures for the
15th preceding the date of the Respondent's increase, except where the latter was given
on the 15th.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
minimum wage and shortly before the election) and of the departure from its
consistent past practice, the increase appears to have been an effort to affect
the result of the impending election. The Union won the election, however, and
it made no complaint of the granting of the April increase. As more than 6
months elapsed after the granting of the increase before any charge was filed,
the complaint does not allege the granting of this increase to be an unfair labor
practice.
In March 1950 the Respondent added a night shift. Within 3 weeks after the
election in May, it abolished it. From a high of 191 in the number of employees
on the payroll in March, the number in June after the layoff of the night shift
was 151, and the number continued to drop to 104 in September. However, in
July 1950, the Respondent contracted out the making of certain items rather
than manufacture them in its own factory. During July, of the Respondent's
total net sales, 17 percent was produced for it by outside contractors and, in
August, 16.3 percent was so produced. In September, the amount dropped to
10.6 percent. Between July 1949 and July 1950, the Respondent had not sub-
contracted any work except in May and June 1950, when it contracted out the
manufacture of a few hats which it was not equipped to make. The Respondent
explained the subcontracting by asserting that the items subcontracted could be
made more cheaply outside than by the Respondent. But President Lester
Brooks admitted that he had told the Board's field examiner that the Respond-
ent started contracting out work in May 1950 and had not done so an such a
scale before, and he also admitted that he might have told the field examiner
that he decided to contract out work after he saw the Union's contract. It is
fairly deducible that the Respondent contracted out work because it feared
that an increase in labor costs would result if the Union forced the issue of a
general wage raise. In the light of this, the elimination of the night shift only
about 2 months after it was started, without consultation with the Union, appears
to evidence bad faith. The two appear to merge as part of a plan to undermine
the Union. But the General Counsel stated that he did not contend that the
subcontracting in itself was an unfair labor practice and Section 10 (b) bars any
finding that the Respondent's unilateral action in eliminating the night shift
and in making a layoff constituted an unfair labor practice.
Although the Union, on learning of the layoff of employees because of abolition
of the night shift, raised a question, it appeared to be satisfied when the Re-
spondent explained that layoffs were made on a seniority basis. The matter
was not alluded to again until the hearing, and during the negotiations the
parties bargained about the Union's proposed clause concerning subcontracting.
The Respondent refused to accede to the Union's proposal that no work should
be contracted out except to a manufacturer with whom the Union had contractual
relations, principally on the ground that the clause was in restraint of trade,
but it made a concession in language, agreeing not to subcontract items that it
could make cheaper in the plant. The Union countered with a proposal that no
item should be contracted out if it could be made profitably in the plant. The
Respondent made one more proposed change in language, but no agreement
resulted. The Union asked the Respondent to furnish it with a list of names
and manufacturers to whom it subcontracted work, but the Respondent refused.
The General Counsel contends that this was an unfair labor practice. At the
hearing, Levy admitted that knowledge of the names would not have assisted in
negotiation of an agreement with the Respondent but would have resulted only
in the Union's use of economic force against such third parties. Under the cir-
cumstances, I find no unfair labor practice in the Respondent's refusal to give
the information.
BETTY BROOKS COMPANY 1247
Following the union election, the Respondent, on advice of Hubbard, inau-
gurated a system of giving employes written, instead of verbal, criticisms and
warnings. The General Counsel calls attention to this as one of the items of
background evidence to be considered as demonstrating an antiunion attitude.
It seems to be intimated that such written warnings could serve only one pur-
pose-that of building up a case for discharge of active union members. Al-
though a change in practice at the time the Union comes into the plant, resulting
in a stricter or harsher treatment, may be evidence of antiunion attitude, the
only difference effected in the Respondent's practice here was the change from
verbal to written criticisms or warnings. An inference of antiunion motive
should not be drawn from the Respondent's conduct where it is just as logical
to infer that the conduct was the result of a legitimate motive. It is commonly
known that unions, having the machinery to do so, are expected to, and often do,
press grievances when their members feel, whether with or without good grounds,
that they have been discriminated against. For the purpose of avoiding ap-
pearances of discrimination, as well as putting the Respondent in a position to
prove lack of discrimination, the use of written records is plain common sense.
The General Counsel attempted to show that the Respondent used these written
warnings for the purpose of building up a case against Lois Tyler and Frances
Gerling, both of whom were on the Union's negotiating committee. The com-
plaint originally alleged discrimination against them but it was dismissed as to
them on procedural grounds. But on the evidence offered, even if the General
Counsel had not dismissed such portions of his complaint, I would be unable to
find any discrimination, in view of the lack of proof of disparity of treatment
between union and nonunion employees.
The General Counsel charges bad faith is shown, if not in the bargaining
negotiations as such, at least in the conduct of the Respondent during the period
covered by the negotiations. For example, during negotiations, the parties con-
sidered the Union's proposal to agree on a definite payday. The Respondent
stated that difficulties in bookkeeping might require it to have a later payday,
and the parties tentatively changed Tuesday to Wednesday in the proposed con-
tract. On September 15, 1950, the Respondent gave notice to the employees by
bulletin and by notices in their pay envelopes, that the following two Tuesdays
would be paydays, but that after the second Tuesday, the payday would be the
Thursday of the week following that in which the work had been performed. Ap-
parently the Respondent did not consult with the Union before fixing Thursday in-
stead of Wednesday as the new payday. For this the Respondent is to be criti-
cized. However, it is to be noted that at the time the payday clause was being dis-
cussed, the Respondent informed the Union that it was going to have to postpone
the payday in view of bookkeeping difficulties, and the Union appeared to have no
serious objection thereto. Its interest appeared to be in having a day certain
fixed by the contract. Although tentative agreement was reached on Wednesday
as the payday, the parties had at the first meeting agreed that no provision
should be binding until the contract was agreed to as a whole. Despite this,
however, it would appear to have been a matter of common courtesy, even an
absolute duty, to call the Union's attention to the necessity of making a change
after the topic had already been discussed as a subject of the contract. But the
Union made no protest of this change, of which all members of the committee
must have been aware, and it must be assumed, therefore, that the matter was
of such small importance to the Union as to merit no protest. For this reason,
I find that, as an isolated incident, it should not be found to be an unfair labor
practice.
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel also contends that the Respondent was guilty of bad
faith bargaining because it continued to make changes in its piece rates as a
result of time studies and continued to give merit increases in accordance with
its usual practice. The Union never requested individual bargaining on merit
increases .' It did advocate bargaining on each piece rate before it was put into
operation. But this appears to have been a practice that the Union contem-
plated to be put into effect after a signed agreement was reached that bar-
gaining should be conducted on each new piece rate before work on a new item
was started. It does not seem to me that'the Union was asking for bargaining
on individual piece rates while a contract was still being negotiated and that
term was not settled, but rather it was attempting to work out a general plan
for the determination of the method of setting piece rates. In my opinion, it was
not required of the Respondent to adopt the method proposed by the Union for
setting each piece rate and to abandon its existing practice, even before nego-
tiations had been completed. Even assuming , for the sake of argument, that
negotiation of each piece rate before work on a new style commences is a common
and workable procedure in the garment industry, I am not persuaded that the
Respondent 's refusal to accept the Union's proposal that it participate before
rather than after the rates were fixed was evidence of bad faith It may be
argued that it is incumbent upon an employer to bargain about piece rates before
they go into operation just as an employer who already has an agreement with a
union might be obliged to bargain about rates for the operation of newly in-
stalled mechanisms not covered by the contract. But if the obligation exists
in the latter instance , it is because, when the parties negotiated their contract,
they did not anticipate the change that was later instituted. In the type of busi-
ness involved here, the introduction of new goods, styles, and operations is an
almost daily occurrence. It was necessarily to be anticipated. So the parties
were seeking to determine the method of fixing piece rates by contract. The
Union's proposal, if adopted would have left the matter open for further bar-
gaining even after a contract was made, whereas the Respondent sought a
formula which could be applied mechanically by reference to the terms of the
contract. I find that it was not an unfair labor practice for the Respondent to
attempt to reach a final agreement which would render further bargaining un-
necessary for the term of the contract if possible.
The General Counsel suggests that a comparison between the Respondent's
refusal to agree to pay each member of the Union's grievance committee for time
spent on committee business and its previous practice of paying certain employees
on an advisory committee for their time so spent shows bad faith. The Re-
spondent explained that it had been willing to pay the latter employees for their
time spent on such committee because they were called on by the Respondent
to leave their work, whereas the members of the grievance committee would be
acting voluntarily on behalf of the Union, but the Respondent did agree with the
Union to pay for the time of the chairman of its grievance committee. It may
be pointed out that, under the former practice, the Respondent was in a position
to determine unilaterally the frequency of such conferences while in the latter
case it could not. I find in the foregoing conduct no such indication of bad
faith on the part of the Respondent as the General Counsel contends.
At one point in his oral argument the General Counsel, alluding to the testi-
mony of Abe Levy, contends that the Respondent increased its base rates without
consultation with the Union. As quoted by Levy, whose testimony I find was not
always accurate , Brooks said , ". . . we have been restudying our time
4 It took up one decrease as a grievance , but it made no objection *o increases.
BETTY BROOKS COMPANY 1249
studies and using our revised scales in figuring the new prices." Levy under-
stood "revised scales" to mean the base rates which had been proposed by the
Respondent . Brooks was not questioned about the language of this quotation,
but he testified that the Union did not object to what was done by the Respondent
in changing piece rates based on the restudied time studies . If Brooks did refer
to the proposed base rates, and I am not convinced that he did, the Union cer-
tainly offered no objection to their use. There is no evidence that the Union, as
a result of Brooks' statement, sought to examine the time studies changed or to
determine to what extent the changes affected the entire wage pictures Inas-
much as the Respondent had offered to allow the Union to go over its time studies.
and was willing to make a new time study in the presence of a union repre-
sentative if it desired , I can find no indication of a purpose to undermine the-
Union by the Respondent's revision of its time studies and its application of such
change to the piece rates.
The General Counsel argues that the Respondent failed to bargain in good
faith, first , by unreasonably refusing any kind of general wage increase before
November 29, and second, by actually giving a general wage increase , not ac-
ceptable to the Union, in December 1950. Before November 29, the Respondent
had consistently taken the position that it could not accede to the Union' s request
for a 20-cent general increase, or foi that matter any increase, because its costs
could not bear the increase and because the increase was not justified by any
increase in the cost of living. The General Counsel points to the fact that if
the Respondent could not afford the increase before December , it could not
afford it then , when it was claiming that business was poor,e and that therefore
it must have been asserting in bad faith that it could not have afforded to give
the increase previously. In determining the Respondent's good faith or lack of
it, the General Counsel calls attention to the background evidence. With re-
spect to the Respondent 's constant assertion during negotiations that it could
not afford an increase , I find insufficient evidence that the Respondent could in
fact have been assured a fair profit if it had given an increase before December
The Respondent 's offer of a five-point increase in November came after the end
of its fiscal year when it would have had profit and loss figures.
As previously found, the Respondent granted a 10-point increase in April 1950,
although the BLS figures had receded rather than advanced since the last pre-
ceding change in Respondent 's rates. The April increase has every appearance
of being an attempt to influence the election which was soon to follow . Because
of the limitation imposed by Section 10 (b) of the Act, this increase cannot be
found to constitute an unfair labor practice . Assuming then that the Respon-
dent's costs actually were such as to restrain it from giving any further increases
before December 1, 1950, should the Respondent be held to have acted in bad
faith in refusing a further increase on the ground that, by granting the April
increase for an impure motive, it had put itself in the position of being unable to
afford an increase after the Union was elected? I do not believe that it should.
Actually, the refusal during negotiations was based upon economic grounds.
True, the economic grounds were induced by the Respondent 's own prior act.
But if the April increase cannot be found now to be an unfair labor practice, the
Respondent cannot be denied the privilege of pointing to current economic condi-
tions existing thereafter as a justification for refusing to grant an increase.
° The request by the Union made at the November 29 meeting to be supplied with earnings
of piece-rate workers was prompted by discussion of Respondent ' s offer of a five-point
increase made at that meeting. (The requested information was supplied at the next
meeting.
6I do not know on what testimony the General Counsel was basing this statement
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to the General Counsel's contention that the December 6 increase was in
itself an unfair labor practice, it will he remembered that when the Respondent
stated that it intended to give the raise the Union did not object to its being
given'-it refused only to accept it as a final settlement of the wage question.
The Respondent did not thereafter refuse to treat the wage question as a bar-
gainable issue. I find that the Respondent did not commit an unfair labor prac-
tice by putting the December increase into effect.
The General Counsel contends that the Respondent demonstrated a failure
and refusal to bargain in good faith in appointing Philip Brooks, its vice president,
as its bargaining agent instead of his father, Lester Brooks, the Respondent's
president. In support of his argument he points to the fact that in several
instances, Philip Brooks deferred giving a final answer on negotiated subjects
until after he had talked with his father. The result was always a reply
unsatisfactory to the Union. In most instances, these involved major questions
of policy such as a general wage increase or a union shop and after Philip Brooks
had rejected the Union's demands. But although rejecting the union-shop
demand , the Respondent made a counteroffer of maintenance of membership.
This was not acceptable to the Union. Toward the end of negotiations the
Union requested a meeting with Lester Brooks. This was at first refused.
Later Philip Brooks said he would try to arrange a meeting, but none took place.
The Respondent laid the blame on the Union for failing to make contact with
Hubbard. The Union claimed that it telephoned Hubbard's office and left word
for him. Hubbard denied that he had received any messages from the Union
and I credit his testimony. Whether or not the Union's call was made and the
message was not recorded for Hubbard by the office help, I am of the opinion
that the Union was not making very strenuous efforts toward further meetings
because it had reached the conclusion that further meetings would have been
profitless.
There is some reason to suspect that if Philip Brooks had been accountable
to no one but himself , the Union and the Respondent might have reached agree-
ment on one or two more subjects of bargaining. However, the fact that Philip
Brooks chose to defer decision on some issues until he had discussed the matter
with his father does not in itself prove that he was without authority to make
commitments on important issues. When Lester Brooks was on the stand he
was not questioned about the extent of Philip Brooks' authority. He testified
that he delegated the bargaining to Philip because the latter was in charge of
production and knew more about what was going on than he did ; that he, himself,
had been out of production for 18 years, devoting himself to selling, merchandis-
ing, buying, and styling. However, he testified that he was the one who decided
to subcontract work. Although such testimony leads me to suspect Lester
Brooks was in full command of production and was restraining Philip Brooks
in the scope of his bargaining authority, I find the evidence as a whole insufficient
to prove that Philip Brooks was without authority to commit the Respondent.
B. Interference, restraint, and coercion
' Following the Union's unsuccessful effort to get the concessions it desired at
the informal meeting on February 7, 1951, the Union called a strike. During the
strike some of the nonstriking employees were roughly treated by persons who
the Respondent suspected were connected with the Union. At a later date,
during the strike, Levy was in front of the plant when Philip Brooks drove his
T I do not credit any contrary testimony.
BETTY BROOKS COMPANY 1251
car into the parking space near the street . When Brooks got out of his car,
Levy approached him with a salutation and with his right hand extended as
though to shake hands. Brooks brushed Levy's hand away with a backward and
forward movement of his own right hand . A short distance away Superintendent
Fisher, witnessing the above incident , raced over and struck Levy in the face,
knocking his glasses to the ground . Almost simultaneously a plant guard
seized Levy from behind. The Respondent called the police, but did not further
physically restrain Levy. The foregoing incident occurred within the view of
striking employees . It is contended that the assault upon Levy constituted inter-
ference, restraint , and coercion , and on all the circumstances of the case I find
that it was a violation of Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The unfair labor practice set forth in Section III, above, occurring in con-
nection with the operations of the Respondent described in Section I, above, has
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tends to lead to and aggravate labor disputes burdening
and obstructing commerce and the free flow of commerce.
V THE REMEDY
Since I have found that the Respondent did not refuse to bargain with the
Union, I shall recommend that the complaint be dismissed as to that portion.
Although the assault upon Levy was a single, isolated act, I believe that,
because of its aggravated nature, the Respondent should be enjoined against a
repetition thereof. I shall therefore recommend that the Respondent cease and
desist therefrom and take certain affirmative action.
Upon the basis of the foregoing findings of fact and the entire record in the
case, I make the following :
CONOLUsIONs or LAw
1. International Ladies' Garment Workers' Union, A. F. of L., is a labor
organization within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees in the Respondent's Huntington
Park plant, excluding shipping and receiving employees, office employees, guards,
and supervisors, as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining, within the meaning of Section 9 (b) of the Act.
3. At all times material herein the Union was the exclusive bargaining repre-
sentative of all employees in the aforesaid unit for the purposes of collective
bargaining, within the meaning of Section 9 (a) of the Act.
4. The Respondent did not fail or refuse to bargain upon request with the
Union within the meaning of Section 8 (a) (5) of the Act.
5. By assaulting a union representative in the presence of striking employees,
the Respondent has interfered with, restrained , and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act and has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
6. The aforesaid unfair labor practice is an unfair labor practice within the
meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]