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Kaynard v. Palby Lingerie Inc.

decided: July 7, 1980.

SAMUEL M. KAYNARD, REGIONAL DIRECTOR OF THE TWENTY-NINTH REGION OF THE NATIONAL LABOR RELATIONS BOARD, FOR AND ON BEHALF OF THE NATIONAL LABOR RELATIONS BOARD, PETITIONER-APPELLEE,
v.
PALBY LINGERIE, INC., ELMONT UNDERWEAR CORP., ARGUS LINGERIE CORP., AND RICHWEAR SPORTSWEAR, INC., RESPONDENTS-APPELLANTS



Appeal from an order of the United States District Court for the Eastern District of New York (Mark A. Costantino, Judge), requiring an employer to reinstate two employees and bargain with a union, pending the National Labor Relations Board's disposition of charges of unfair labor practices. Affirmed.

Before Newman and Kearse, Circuit Judges, and Sifton,*fn* District Judge.

Author: Newman

This is an appeal from a temporary injunction issued pursuant to § 10(j) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(j) (1970), pending the National Labor Relations Board's disposition of charges of unfair labor practices. The Regional Director of the Board's Region 29 sought the injunction against four small corporations, all owned and operated by one or more members of the Isaac Israel family. The injunction was issued by the United States District Court for the Eastern District of New York (Mark A. Costantino, Judge). The four companies ("the employer") appeal, challenging the injunction insofar as it requires the reinstatement of two employees and obliges the employer to recognize and bargain with Local 57, Nassau-Suffolk District Council, International Ladies Garment Workers Union, AFL-CIO.*fn1 We affirm.

Background

The four companies are engaged in the manufacture, sale, and distribution of women's lingerie. Palby Lingerie, Inc. ("Palby"), the sales arm of the operation, is responsible for purchasing the materials used in the manufacturing process as well as packing and shipping the finished garments to Palby's customers. The other three companies Richwear Sportswear, Inc. ("Richwear"), Elmont Underwear Corp. ("Elmont") and Argus Lingerie Corp. ("Argus") function as the production arms of the business and perform services exclusively for Palby. Richwear does all of Palby's cutting and trimming work, while Elmont and Argus do the sewing and finishing work. The business offices of Palby and the production facilities of Elmont and Richwear are all located in the same building in Elmont, New York. The Argus plant is located about 20 miles away in Brooklyn, New York.

Local 57 began its organizing efforts in late January, 1979. By February 21, 1979, the union, having obtained 27 signed authorization cards, demanded recognition as the bargaining representative of the 50 production, maintenance, shipping, and receiving employees at the employer's two locations. These cards were signed by 19 of the 30 production, maintenance, shipping, and receiving employees employed by Elmont, 7 of the 14 employed by Argus, and 1 of the 6 employed at Richwear.*fn2 No cards were obtained from Palby personnel, all of whom are supervisors.

The Regional Director, responding to charges filed by Local 57, issued his first complaint against the employer on April 30, 1979. The complaint alleged as a preliminary matter that the group of employees that Local 57 had sought to represent constituted an appropriate bargaining unit under the NLRA:

All production, maintenance, shipping and receiving employees of the Respondent employed at its Elmont factory and its Brooklyn factory combined, exclusive of all other employes, guards and supervisors as defined by Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act.

It also alleged that Local 57 was the exclusive bargaining representative of employees in the unit by virtue of its designation as of February 21, 1979 by a majority of employees, and that the employer had violated § 8(a)(5) by refusing to bargain with Local 57. The complaint also alleged that the employer, by engaging in various enumerated acts constituting "unfair labor practices serious and substantial in character and effect," had "prevented the holding of a fair election among its employees, thereby requiring the issuance of a bargaining order as an appropriate remedy."

In addition, the employer was alleged to have violated §§ 8(a)(1) and 8(a)(3) by laying off two employees, Sharon Hunter and Maria Ferrante, in February, 1979 and refusing to recall them until late April, 1979; discharging a third employee, Rosetta Lyons, and refusing to reinstate her; and assigning its employees at the Elmont factory to "less agreeable job tasks" and subjecting them to "closer supervision and increased criticism," all because of their union activity. Finally, the employer's agents were alleged to have violated § 8(a)(1) by interrogating employees in both plants concerning their union involvement; giving employees at the Elmont factory the impression that their union activities were under surveillance; and threatening employees with the closing of the plants and other reprisals if they supported Local 57.

The Regional Director's § 10(j) petition asserted the existence of "reasonable cause to believe" the allegations of the complaint were true and that unless the employer's "flagrant unfair labor practices are immediately enjoined, . . . enforcement of important provisions of the Act and of public policy will be thwarted before the (employer) can be placed under legal restraint through the regular procedure of a Board order and enforcement decree." As relief, the petition sought an order enjoining repetition by the employer of the acts alleged to violate the Act and compelling the employer to recognize and bargain with Local 57 and offer reinstatement to Rosetta Lyons. The § 10(j) petition was later amended to allege that the employer had also violated §§ 8(a)(1) and 8(a)(3) by constructively discharging Sharon Hunter on May 1, 1979, about a week after her recall. Hunter's reinstatement was sought in the revised prayer for relief.

Judge Costantino postponed consideration of the petition pending completion of the Board's administrative hearing on the complaint. The parties later stipulated that the transcript of testimony and the exhibits introduced in the administrative hearing would constitute the record in the § 10(j) proceeding. On January 18, 1980, Judge Costantino granted the Regional Director's petition for a temporary injunction and remedial bargaining order pending the Board's final disposition of the case. In its oral opinion granting the petition, the District Court explicitly found "reasonable cause to believe that unfair labor practices have occurred" and observed that:

The threats, both express and implied, alone are sufficient to demonstrate the existence of labor violations. Indeed, the record is replete with instances of attempts to hinder, if not completely defeat, the efforts of the Union to organize. The questioning of employees, the threat to terminate the employment of Union organizers, sympathizers or joiners, and the open hostility of the owners toward the Union, lead the Court to believe that there is reasonable cause for issuing the temporary injunction.

In addition, Judge Costantino found a "sufficient basis in the record" to support a finding of an appropriate bargaining unit. This finding was based on subsidiary findings that Local 57 had successfully obtained authorization cards from a majority of the employees in "the corporate structure as a whole, and from the larger units individually" and that but for the possible ...


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