Peerless Sportswear Co.

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 719 (N.L.R.B. 1986)

DONNA-LEE SPORTSWEAR CO.
Donna-Lee Sportswear Co., Inc . and Donna-Lee
Sportswear Co., Inc. d/b/a Classic of Boston
and Donna-Lee Sportswear Co., Inc. d/b/a
Peerless Sportswear Company and International
Ladies' Garment Workers' Union, AFL-CIO.
Case 1-CA-22684
30 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 11 March 1986 Administrative Law Judge
George F. Mclnerny issued the attached decision.
The Respondent and the General Counsel filed ex-
ceptions and supporting briefs,' as well as briefs in
opposition to the other's exception.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings,2 and
i The Charging Party , International Ladies' Garment Workers ' Union,
AFL-CIO, and Local 229, International Ladies' Garment Workers'
Union, also filed joint exceptions seeking to have the Board clarify the
judge's decision by substituting "Local 229" for the word "Union" in
par. 3 of the remedy portion of the judge 's decision , in his Conclusion of
Law 4, in pars. 1(b) and 2(b) of his recommended Order , and in the
second , third , and fifth pars. of the notice . The Charging Party's and
Local 229's request to have the judge 's decision modified in this respect
is not opposed by any of the other parties to this proceeding According-
ly, their request to have the judge's decision clarified in the above
manner is granted.
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F . 2d 362 (3d Cir . 1951).
We have carefully examined the record and find no basis for reversing
the findings. Further , contrary to the Respondent 's claim , our examina-
tion of the record revealed no real inconsistencies between Union District
Manager Gold 's testimony in this case regarding his July 1982 meeting
with the Respondent 's owner, Fisher , and statements made by Gold in a
deposition in the district court proceeding relating to this meeting. Al-
though the deposition was not introduced as evidence in this proceeding,
a review of the limited portions of the deposition , read into the record by
both the Respondent's attorney and the General Counsel, revealed that
Gold's testimony here was substantially in accord with his deposed testi-
mony.
In adopting the ,fudge's findings , we note , contrary to the Respondent's
assertion, that the district court 's ruling on the question whether a collec-
tive-bargaining agreement existed between the Respondent and Local
229, does not preclude the Board , which was not a party to those pro-
ceedings, from litigating and ruling on the same and other related issues.
See Allbritton Communications, 271 NLRB 201, 202 at fn . 4 (1984).
8 The date after which the Respondent unlawfully failed and refused to
make any further contributions to the employees ' benefit funds , and repu-
diated its collective-bargaining agreement with Local 229, is 5 August
1984, not 5 August 1985 , as inadvertently stated by the judge in sec. III,E
of his decision . Further, the Respondent 's contract with Local 229 ex-
pired on 15 June 1985 not on 31 August 1985, as the judge inadvertently
states in the remedy portion of the decision.
719
conclusions3 and to adopt the recommended Order
as modified and. set forth in full below.4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and set forth in full below and
orders that the Respondent , Donna-Lee Sportswear
Co., Inc., and Donna-Lee Sportswear Co., Inc.,
d/b/a Classic of Boston and Donna-Lee Sports-
wear Co., Inc. d/b/a Peerless Sportswear Compa-
ny, Boston , Massachusetts, its officers, agents, suc-
cessors , and assigns, shall
1. Cease and desist from
(a) Unilaterally ceasing contributions to funds es-
tablished by contract for employees in the bargain-
ing unit , and for employees on whose behalf the
contract requires that such payments be made, and
from telling its contractors that Peerless Sports-
wear Company is nonunion.
(b) Repudiating any collective-bargaining agree-
ment it may have with Local 229, International
Ladies' Garment Workers' Union, and from unilat-
erally withdrawing recognition of that labor orga-
nization.
(c) Prohibiting Local 229's representatives,
during the term of the contract , from entering its
premises.
(d) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Make whole employees for whom payments
have been made to the benefit funds in the manner
set forth in the remedy section of the judge's deci-
sion.
(b) On request, meet at reasonable times and
places with Local 229 to discuss terms and condi-
tions of employment for the employees in question
and, on reaching agreement , incorporate such
agreement into a written contract.
(c) Restore and put into effect all terms and con-
ditions of employment provided by the contract ef-
fective until 15 June 1985 , including those provi-
sions which were unilaterally changed by the Re-
spondent, until such time as the parties have bar-
gained in good faith for a reasonable time and have
reached an agreement or, in the alternative, an im-
passe.
4 The judge's recommended Order fails to provide a remedy for cer-
tain of the violations found. Accordingly , the recommended Order shall
be modified to include such remedial language.
281 NLRB No. 106
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its place of business in Boston, Massa-
chusetts, copies of the attached notice marked
"Appendix."5 Copies of the notice, on forms pro-
vided by the Regional Director for Region 1, after
being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consec-
utive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL restore and put into effect all terms
and conditions of employment provided by the
contract effective until 15 June 1985, including
those provisions which were unilaterally changed
by us, until such time as the parties have bargained
in good faith for a reasonable time and have
reached an agreement or, in the alternative,
reached impasse.
WE WILL make whole all employees who lost
benefits as a result of our unilateral and unlawful
actions.
DONNA-LEE SPORTSWEAR CO., INC.
AND DONNA-LEE SPORTSWEAR CO.,
INC. D/B/A CLASSIC OF BOSTON AND
DONNA-LEE SPORTSWEAR CO., INC.
D/B/A PEERLESS SPORTSWEAR COM-
PANY
Robert P. Redbord Esq., for the General Counsel.
Michael DeFanti & Robert P. Weintraub, Esgs (Hinckley,
Allen, Tobin and Silverstein), of Boston, Massachusetts,
for the Respondents.
Donald J. Siegal, Esq. (Segal, Roitman and Coleman), of
Boston, Massachusetts , for the Charging Party.
John McMahon, Esq. (Angoff, Goldman, Manning Pyle,
Wanger & Hiatt, P.C.), of Boston, Massachusetts, for
the Party to the Contract.
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT unilaterally and without bargain-
ing with Local 229, International Ladies' Garment
Workers' Union, discontinue payments to the
Union's health and welfare funds, and WE WILL
NOT tell contractors that Peerless Sportswear Com-
pany is nonunion.
WE WILL NOT repudiate any collective-bargain-
ing agreement that we may have with Local 229
and WE WILL NOT unilaterally withdraw our rec-
ognition of that labor organization.
WE WILL NOT during the term of a collective-
bargaining agreement with Local 229 prohibit
Local 229's representatives from entering our
premises.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed by Section 7 of the
Act.
WE WILL, on request, bargain with Local 229 as
the exclusive representative of all employees in the
appropriate unit regarding rates of pay, hours of
employment, and other terms and conditions of em-
ployment and, if an understanding is reached,
embody such understanding in a signed agreement.
DECISION
GEORGE F. MCINERNY, Administrative Law Judge.
Based on a charge filed on 5 February 1985 by the Inter-
national Ladies' Garment Workers' Union (the Union),
the Regional Director for Region 1 of the National
Labor Relations Board (the Board) issued a complaint on
20 March 1985, alleging that Donna-Lee Sportswear Co.,
Inc., both in its own name and doing business as Classic
of Boston and Peerless Sportswear Company (collective-
ly the Company or Respondent), had violated and was
continuing to violate Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act (the Act). Respondent filed a
timely answer to the complaint, denying the commission
of any unfair labor practices.
Pursuant to a notice contained in the complaint a hear-
ing was held before me in Boston, Massachusetts, on 19
and 20 June and 16 July 1985 at which hearing all parties
were represented by counsel and had the opportunity to
present testimony and documentary evidence, to examine
and cross-examine witnesses, and to argue orally.'
After the hearing Respondent and the General Coun-
sel filed briefs, which have been carefully considered.2
' Respondent has filed a motion to correct the transcript of the hear-
ing. The General Counsel , in turn, filed an opposition to three of the
items in Respondent's motion The amendments in Respondent 's motion
comport to my memory of what was said at the hearing and the motion
to amend is allowed in its entirety
2 The Union filed a statement in which it adopted the General Coun-
sel's brief.
DONNA-LEE SPORTSWEAR CO.
Based on the entire record , including my observations of
the witnesses and their demeanor , I make the following
FINDINGS OF FACT
1. JURISDICTION
The parties herein entered into stipulations concerning
the corporate relationships between the several named
Respondents . These stipulations provide, and I find, that
Donna-Lee Sportswear Co., Inc. is a Massachusetts cor-
poration which from 1946 to 20 May 1983 operated a
garment contracting business at 10 West Street in the
city of Boston . About 1 September 1981 the Company
purchased the assets of Classic of Boston, Inc., a jobber
(manufacturer) located at 205 A Street in the South
Boston section of the city of Boston, and has continued
to operate as a jobber at that location . On 12 December
1984 Ilan Fisher ,s the sole owner of the Company, ac-
quired the right to use the name "Peerless" from Peerless
Sportswear, Inc., and thenceforth commenced using that
name at its A Street location.
The principal place of business of the Company at all
times material has been the A Street location where it is
engaged in the business of manufacturing and distributing
articles of clothing . During the calendar year ending 31
December 1984 , in the course and conduct of its busi-
ness, it sold and shipped directly to points outside the
Commonwealth of Massachusetts goods and materials
valued in excess of $50,000. I find that the Company is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated and I find that the Union and its
Local 229 are each labor organizations within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In order properly to understand the positions of the
parties relative to the issues of this case , it seems appro-
priate to take a brief look at the nature of the industry
and at the several points of contact between the employ-
ers and unions involved.
There are two different types of employers in the gar-
ment industry.' Employees described as "manufactures"
or "jobbers," design garments, buy the cloth, and send
designs and materials to other employers, described as
"contractors," whose employees sew the garments and
return the finished products to the manufacturers. 5 The
° Fisher is also referred to in the record as "Alan ." He expressed no
preference , but he does, however, use Ilan as his signature . He will be
known as Ilan here.
* There are no issues of fact regarding this background . I have relied
in this section primarily on the credible and undenied testimony of
Harvey Gold. The bifurcation of the industry was recognized in the lan-
guage of the second proviso to Sec . 8(e) of the Act.
° This is the way things generally work. There are a number of vari-
ations, none of which is really material here.
721
evidence here shows that about 1970 to 1983 , Ilan Fisher
was the owner of Donna-Lee Sportswear Co., Inc. at 10
West Street , which was a contractor performing work
mainly for a manufacturer named Colonial . The West
Street operation was a member of the Association of
Garment Contractors (AGC). The AGC negotiated suc-
cessive collective-bargaining agreements on behalf of its
members with an affiliate of the International Union
known as the Joint Board of Cloak, Skirt and Dressmak-
ers Union (the Joint Board), which in turn is composed
of a number of locals of the International Union. These
contracts were also negotiated by the Joint Board on
behalf of certain other local unions not affiliated with the
Joint Board, but with the International Union 's Northern
New England District Council (the District Council).°
Classic of Boston , Inc., before it was acquired by
Donna-Lee, had a collective-bargaining agreement with
Local 2297 effective from 1979 until 31 May 1982. When
Donna-Lee acquired Classic on 1 September 1981,
Harvey Gold, district manager of the District Council
and supervisor of a number of local unions, including
Local 229, told Business Agent Bernard George to get
the new owner to sign a copy of the contract . Fisher
then executed a copy of the 1979-1982 contract with
Local 229.°
Independently of Fisher's activities as the owner of
Donna-Lee, the West Street contractor, the Joint Board
also contracted with a group of manufacturers known as
the New England Sportswear Manufacturers' Associa-
tion (NESMA).
All these agreements , the Donna-Lee West Street con-
tract with the Joint Board, the Donna-Lee A Street con-
tract with Local 229, and the NESMA agreement with
the Joint Board expired in late May or mid-June 1982. I
think an inference may be properly drawn" that negotia-
tions for basic economic issues such as wages, fringe ben-
efits, holidays, and sick leave were conducted between
the Union's people and employers located in New York
City. These provisions, as agreed on there, would then
be applied to the Boston area agreements , with discus-
sions on the local level confined to local issues.
B. The July 1982 Events
The New York negotiations for a 1982-1985 eccono-
mic package apparently wound up in June or July 1982.
Sometime in July, Harvey Gold contacted Ilan Fisher to
inform him that the economics had been agreed on.
Fisher agreed to meet and a meeting was held . Up to this
point the testimony of Fisher and Gold is in agreement,
° Local 229 , the Party to the Contract, was a member of the District
Council , but Donna-Lee of West Street never had a contract with Local
229
7 Classic also had a contract with Local 301, another ILG affiliate,
covering a single employee, a designer, who is not involved in this case.
° Fisher first executed the contract as president of Classic of Boston,
but in November 1981, after checks to the Union's health and welfare
and pension funds were issued under the name and style of Donna-Lee
Sportswear Co., Inc . d/b/a Classic of Boston, the Union asked, and
Fisher did , execute a contract under the name of Donna-Lee Sportswear
Co., Inc d/b/a Classic of Boston.
9 From Gold 's testimony.
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but from here on there are wide variances in the version
of events given by each.
Gold testified that, following the initial contact, he
prepared a printed form contract by changing the eco-
nomic provisions to these agreed to for the industry.
This contract was referred to as the "Standard Northeast
Agreement" and was prepared for use by independent
manufacturers and Local 229. Gold then went to see
Fisher, either at A Street or West Street, and showed
him the agreement. Fisher said that he was not an inde-
pendent, but was a member of the New England Sports-
wear Manufacturers Association. Gold replied that the
standard agreement would not be applicable and that he
would prepare a document indicating Fisher's member-
ship in NESMA and that he would agree to be bound by
the terms of the agreement between NESMA and the
Union.
Gold did not recall how long it took him to prepare
the document and return, but he did meet with Fisher
again at West Street on 22 July. He recalled that the
meeting took place during the workday in Fisher's
office. No one else was present. Gold presented Fisher
with a one-page document on a plain sheet of paper with
no letterhead, stating, in its entirety, as follows:
Donna-Lee Sportswear Co., Inc., is a member of
new England Sportswear Manufacturers Associa-
tion and agrees to be bound by all terms, conditions
and covenants of the contract negotiated by and be-
tween New England Sportswear Manufacturers As-
sociation and the International Ladies Garment
Workers Union dated June 15, 1982, and for a
period of three years thereafte [sic].
Gold stated that he showed the document to Fisher and
that they chatted about it. Among other things Gold re-
marked that it was good that a young man was taking
over an old, established business. Fisher read the docu-
ment (or appeared to Gold as if he were reading it),
signed , and dated it. They "chatted back and forth"
about the industry and about business, and Gold left.
According to Fisher, Gold called him in mid-July and
asked if they could get together to negotiate a Local 229
contract. Fisher responded that there were some changes
he wanted, and that they would have to talk. He men-
tioned particularly the use of the American Arbitration
Association, contingent liability under the Employee Re-
tirement Income Security Act (ERISA), and elimination
of job categories not used in his Company. Gold replied
to this that he was busy, but when his schedule freed up
they would get together.
The next thing Fisher heard from Gold was when the
latter called him at West Street and asked if Donna-Lee
was "a member of the Association." Fisher, thinking that
Gold was referring to the contracting operation based at
West Street, replied that it was. Gold then asked if he
could bring up a document, an interim agreement . Fisher
said that was no problem. Gold then came to West
Street, according to Fisher, after business hours, because
he had to be admitted through a gate . Fisher was doing
repair work under a machine in the shop. Someone
named Roy Wiseman, not otherwise identified, had been
working on the machine with Fisher. When Gold came
in Wiseman apparently conducted him over to where
Fisher was working. According to Fisher there was no
discussion. Gold handed the document to Fisher. He in
turn handed it to Wiseman while he got out from under
the machine. Fisher then took the paper from Wiseman
and signed it.1 ° Gold then left. Fisher claimed that he
had not read the document before signing, and he was
under the impression that the document he signed was a
memorandum between himself, as president of Donna-
Lee, the contractor on West Street, a member of the
AGC, and the Joint Board.
On the basis of all the circumstances of this case I
credit Gold's version of these events over that of Fisher.
Both of these men are veterans in the garment industry.
Gold had served for 32 years as a union representative at
the time of the hearing. Fisher had run Donna-Lee at
West Street from 1970 until that operation closed in
1983, then continued to run Donna-Lee d/b/a Classic at
A Street down to the time of this hearing. Fisher's oper-
ations at both locations had always been union. His own
testimony shows that West Street was a member of
AGC; had a contract with the Joint Board, but that
Gold had never been at the West Street location to serv-
ice a contract or to discuss any problems before July
1982.
Moreover, Fisher's interest in collective bargaining
was not confined merely to ceremonially signing agree-
ments over the years. He testified that he had participat-
ed in the formulation of bargaining positions for the
AGC, noting at one point that he had threatened to have
the AGC attorney fired if he did not go along with Fish-
er's views. He also displayed a vigorous and precise in-
terest in a proposed contract covering the designer at A
Street sent him by the Joint Board in June 1983.
These factors show that Fisher was neither naive nor
inexperienced. His demeanor, as I observed it while he
was on the witness stand, showed that he is intelligent,
observant, and careful. Therefore, Fisher's statements
that not only did he not read the document that Gold
presented to him on 22 July, but that this was the ordi-
nary and normal way he did business are incredible and,
indeed, preposterous. I find that Fisher had read the doc-
ument, and I cannot believe that, having read it, a person
of his intelligence could believe it was something else,
namely, a contract between the AGC which is not men-
tioned on the document and the Joint Board, which I
find that Fisher must have known was not Gold's organi-
zation.
If all this were not enough to convince me that Fisher
lied when he said he did not read the document, I note
that, according to his testimony, he had a witness, Wise-
man, who was right there when the signing took place,
and who was neither brought forward to testify nor de-
scribed as not available to do so. While I will not go so
far as to infer that Wiseman's testimony would have been
10 There is no reason to doubt that smudges appearing on the original
document could have been put on there at this puncture, but this does not
corroborate or verify either Gold's or Fisher's version of the incident
Anyone working on or under a machine is likely to have grease on his
hands and the grease would remain either at the machine or in the office
DONNA-LEE SPORTSWEAR CO.
adverse to Respondent's interests, I feel strongly that the
lack of ostensibly available corroboration seriously im-
pairs Fisher's own credibility.
Finally, on demeanor, I have noted that Fisher is intel-
ligent, observant , quick-minded, and careful. He was
also, as I observed him while he was testifying , sly, fur-
tive, and defensive , with a tendency to be irreverent to
the point of flippancy in dealing with counsel and with
me. His responses on direct examination were derived by
long series of leading questions that , while not objected
to, nonetheless leave the answers less probative and un-
convincing . When pressed , on cross-examination , Fisher
frequently took refuge in ambiguous phrases like "I
think," "I believe," and "I imagine ." Thus, based on his
demeanor as well as the more objective factors noted
above, I do not credit his testimony on disputed issues
here.
Gold was not a particularly good witness . He was for-
getful, particularly about the details of the past about
events that he considered unremarkable ." I found his
demeanor to be open and candid , even under the most
searching cross-examination . I therefore credit his ver-
sion of the 22 July encounter and I find that Fisher in
fact told Gold that Donna-Lee was a member of
NESMA and that he read and signed the 22 July docu-
ment.
I do not believe that it is necessary that I speculate
about the motives of either Fisher or Gold in this situa-
tion . By telling Gold that he could not sign a renewal of
his Local 229 agreement because he was a member of
NESMA, and by later signing on agreement as a member
of NESMA , Fisher indicated an unequivocal intention to
be bound by the agreement between NESMA and the
Union. Fisher's alleged motivation that he thought he
was signing an agreement between the West Street oper-
ation and AGC is, as I have found , not credible . His real
motivation is not important here because there was no
fraud or concealment on the part of the Union, Fisher
read and approved the 22 July document and thus there
was a meeting of the minds on what was being signed.' 2
C. Events after July 1982
There is no question but that the Company observed
the terms of the NESMA contract between July 1982
and January 1984 making proper wage payments and
contributions to the pension and health and welfare funds
on behalf of its own employees and its contractors' em-
ployees . Further, it was not disputed that in the summer
of 1984 Gold and Business Agent George visited the
Company at A Street and worked out an agreement with
Fisher on a new contractual holiday . As I have noted
above, Fisher continued regularly to transmit dues pay-
11 The instances cited to me in Respondent 's brief are carefully re-
searched and artfully presented , but ultimately not persuasive that Gold
fabricated his testimony on the 22 July document. When measured
against Fisher's testimony that he never read the document and customar-
ily did business that way , Gold's lapses were really inconsequential.
' a Fisher knew that his agreement at A Street was with Local 229.
The contract he signed in 1981 named Local 229 as the contracting
party. Local 229 is a part of the International, and I find that the 22 July
document was actually with the International and its Local 229. The con-
tinued transmission of union dues to Local 229 up to at least the time of
the hearing shows that Fisher recognized this fact.
723
ments on behalf of its employees to Local 229. All of this
indicates without question that the Company was stick-
ing to the terms of the NESMA contract ' s at least
through 1983.
Early that year the Donna-Lee contracting operation
at West Street was closed . This took place amicably
enough between the Company and the Union, but a dis-
pute arose about payments made by the Donna-Lee A
Street operation to the Union 's pension and health and
welfare funds on account of work performed by the
West street contracting operation for the A Street manu-
facturing operation . The matter was scheduled for arbi-
tration, but was eventually settled through the mediation
efforts of Harvey Gold and a man named Arthur Levine
in New York. After this was concluded the Company
continued the payments to the funds and on account of
dues.
Fisher testfied that he had not heard from the Union
regarding the 22 July agreement between that date and
the successful resolution of the West Street matter. At
that time he said that he thanked Gold for getting the
problem settled and said that they ought to get together
and "get a contract signed for Classic." According to
Fisher, he continued to press Gold until he stopped
making payments in what he variously described as June
or July 1983 or May 1984 . In testimony that was ex-
tremely vague and indefinite, even though elicited by a
series of leading questions , and interspersed with remarks
about the Union trying to steal from him, threats to take
the Union into court for "trying to pull any funnies" and
"being jerked around" by the Union, Fisher finally stated
that Gold was first getting a monthly payment and had
no intention of negotiating a contract in good faith so
Fisher stopped making payments to the funds.
Gold testified that so far as he knew the Company
lived up to the contract at A Street until early in 1984.
The Union's records show that the last payments to the
funds by Donna-Lee were in January of that year. Busi-
ness Agent Bernard George told Gold that he could not
get anywhere with Fisher on these payments and Gold
made several visits to the A Street location during 1984,
but was unable to arrange for collection of the payments.
Gold did not report any discussions about negotiating a
contract between Local 229 and Donna -Lee at A Street.
Bernard George testified that he last went to the Com-
pany 's shop at A Street at the end of January or in the
first part of February 1985, 14 in a normal shop visit, and
is Gold noted that the economic terms of the NESMA and the Inde-
pendent group contracts were the same.
1* The trustee of the union funds had filed a complaint in the United
States District Court for the District of Massachusetts in October 1984 on
account of nonpayment by Donna-Lee to the funds. That case, 84-3348-
MA, was heard before Judge A. David Mazzone on 22 January 1985. On
23 January 1985 the judge issued his opinion that the 22 July document
was not proven to be an enforceable contract between Local 229 and
Classic. Accordingly, Judge Mazzone entered judgment for the defendant
(Respondent here). I regret that my findings and conclusions differ from
those of Judge Mazzone , for whom I have the greatest respect, but I
must decide the matter on the evidence as it was presented to me in the
record of this case , and based my findings that Gold was a credible wit-
ness and Fisher was not . In such an area reasonable people , even reasona-
ble judges, may differ . In this regard , see California Laborers Health &
Welfare Trust Fund v. Advanced Lightweight Concrete Co., 121 LRRM
2276 (9th Cir. 1985), and cases cited therein.
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to collect funds for Ethiopian relief. While he was in the
shop, Fisher called him on the telephone and told him
that they did not allow collections in the shop. Fisher
then said that George was not an honorable man, that
neither he nor any other representative of the Union
came to his father's funeral . George asked what that had
to do with a shop visit, and Fisher replied that he had
"no contract and I would like you to leave the shop."
Both Gold and George testified that Fisher had never
told either of them before that time that he had no con-
tract.
Based on these facts, and consistent with my previous
credibility resolutions, I credit the testimony of Gold and
that of George (the latter's largely uncontradicted) espe-
cially the testimony concerning his last visit to the A
Street shop. I do not credit Fisher's rambling, confused,
and emotional recollections of events in 1983 and 1984 as
well as the testimony I have previously rejected. In so
doing, I find that the Company ceased making contribu-
tions to the Union's funds after January 1984, and that
the Company, by Ilan Fisher, repudiated a collective-bar-
gaining agreement and ordered the Union' s business
agent off the Company's premises.
The parties stipulated that on 12 December 1984, Ilan
Fisher purchased the name "Peerless" and that thereafter
the Company, Donna-Lee Sportswear, Inc., used the
Peerless name and label on garments sold from its A
Street location.
On 1 January 1985 the Company sent letters to con-
tractors which had done work for Peerless and informed
them that as of that date "garments made for Peerless
Sportswear are non-union" and requested that those gar-
ments be priced accordingly.
D. The Bargaining Unit
Respondent, by its answer, denies allegations in the
complaint that the Union is the bargaining representative
for its employees in the following unit:
All production employees, including cutters and
sample makers, but excluding all guards and super-
visors as defined in the Act.
However, Respondent's counsel stated on the record that
Respondent never withdrew recognition from the Union,
and repeated that Respondent was ready and willing,
then and there, to continue to bargain with the Union.
Indeed, at my suggestion, the parties did engage in dis-
cussions off the record, while the hearing was continu-
ing, but with no success in resolving the issues.
In addition, Gold testified that Local 229 had repre-
sented the employees of Classic as long as he could re-
member. There is no question that Fisher signed a con-
tract with Local 229 on behalf of Donna-Lee in Septem-
ber and December 1981 concerning this same unit. Re-
spondent offered no evidence that the historical unit was
inappropriate.
Accordingly, I find the unit as alleged in the com-
plaint to be an appropriate unit. Fraser & Johnston Co.,
198 NLRB 142 (1971), and there is no question that Re-
spondent recognized Local 229 as the representative of
those employees both traditionally and by contract right
down to early 1985. Laystrom Mfg. Co., 151 NLRB 1482
(1985).
E. Conclusions
Since I have found that Respondent was bound by the
22 July document to the agreement between the Union
and NESMA, I conclude that Respondent' s actions: (1)
in failing and refusing to make contributions to employee
benefit funds after 5 August 1985 under the provision of
that contract; (2) in notifying contractor employers that
it would not be responsible for payments to the funds on
behalf of Peerless; (3) by Fisher' s statement to George in
January or February 1985 that there was no contract be-
tween Donna-Lee and the Union, and his requiring
George to leave the Company's premises; and (4) by re-
pudiating its agreement with the Union from and after 5
August 1985 all are unlawful refusals-to-bargain viola-
tions of Section 8(a)(1) and (5) of the Act.
These violations continued despite the expiration of
the collective-bargaining agreement . There is no indica-
tion of a legitimate impasse here. I did not credit Fisher's
testimony that he attempted to engage in bargaining with
Gold, and, even if I did credit that testimony, I do not
think that Fisher's feelings that he was "being jerked
around" by the Union are sufficient to establish a conclu-
sion that the parties had bargained to impasse. The pro-
visions of the collective-bargaining agreement previously
agreed to would, then, continue until modified by agree-
ment of the parties. NLRB v. Katz, 369 U.S. 736 (1962).
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) and
(5) of the Act, I will recommend that it cease and desist
therefrom and that it take certain affirmative action de-
signed to affectuate the policies of the Act.
It will be recommended that the terms of the collec-
tive-bargaining agreement and trust fund provisions
therefore, which expired on 31 August 1985, be reinstat-
ed forthwith and continued in effect until after the terms
of a new agreement are agreed on or until impasse is
reached.15
It will further be recommended that Respondent, on
request, meet and negotiate with the Union in good faith
concerning the terms of a new collective-bargaining
agreement and, when the agreement is reached, reduce it
terms to writing and sign the new agreement.
Finally, I will recommend that Respondent be re-
quired to make payments to the funds here on behalf of
its employees, and the employees of contractors under
the terms of the collective-bargaining agreement, wheth-
er those contractors are working for Donna-Lee, Classic,
or Peerless from and after 5 August 1984.16
1-1 It is noted that these provisions cover not only bargaining unit em-
ployees, but also contractors' employees under the terms of the contract
16 I will recommend that questions of interest , and additional amounts,
depending on the circumstances of each case, be determined by reference
to the documents governing the funds and, where there are no governing
provisions, to evidence of any loss attributable to Respondent's unlawful
actions, Turnbull Enterprises, 259 NLRB 934 (1982)
DONNA-LEE SPORTSWEAR CO. 725
CONCLUSIONS OF LAW
1. Donna-Lee Sportswear Co., Inc., in its own name,
and doing business as Classic of Boston , and Peerless
Sportswear Company , is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. International Ladies' Garment Workers' Union,
AFL-CIO and its Local 229 are labor organizations
within the meaning of Section 2(5) of the Act.
3. The following unit is appropriate for purposes of
collective bargaining within the meaning of Section 9(b)
of the Act:
All production employees , including cutters and
sample makers , but excluding all guards and super-
visors as defined in the Act.
4. At all times material the Union has been the exclu-
sive bargaining representative of all employees in the ap-
propriate unit described above.
5. Respondent has violated and continues to violate
Section 8(a)(1) and (5) of the Act by discontinuing pay-
ments to employee benefit funds required by contract,
and by withdrawing recognition of the Union.
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2 (6) and (7) of
the Act.
[Recommended Order omitted from publication.]