Ann Lee Sportswear, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1975

220 N.L.R.B. 982 (N.L.R.B. 1975)

982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ann Lee Sportswear, Inc. and Midwest Regional Joint
Board, Amalgamated Clothing Workers of America,
AFL-CIO. Cases 27-CA-4206 and 27-RC-4838
September 30, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On June 2 , 1975, Administrative Law Judge Earl-
dean V . S. Robbins issued the attached Decision in
this proceeding . Thereafter , the General Counsel
filed exceptions and a supporting brief , and the Re-
spondent filed an answering brief in response to the
General Counsel's exceptions and cross -exceptions
and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three -member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
On June 7, 1974,2 the Midwest Regional Joint
Board, Amalgamated Clothing Workers of America,
AFL-CIO, the Union, sent a telegram to the
Respondent 's owner, Duane Miller, requesting rec-
ognition in an appropriate unit of the Respondent's
production and maintenance employees . As of that
date, the record shows that 13 of the 20 employees in
the unit had authorized the Union to represent them
in collective bargaining . The Respondent declined to
recognize the Union and on June 11 the Union filed
a petition for an election in Case 27-RC-4838.
Pursuant to a Stipulation for Certification Upon
Consent Election an election was held on July 12,
which resulted in 5 ballots cast for, and 12 against,
the Union . The Union thereafter filed timely objec-
tions to the election , all of which the Regional Direc-
tor recommended be overruled . The Union filed
timely exceptions to the Regional Director's recom-
mendations with respect only to the overruling of
Objections 1 through 4. The Board on January 17,
1 The Respondent and the General Counsel have excepted to certain
credibility findings made by the Administrative Law Judge . It is the Board's
established policy not to overrule an Administrative Law Judge 's resolu-
tions with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect . Standard
Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3,
1951). We have carefully examined the record and find no basis for revers-
mg her findings.
Unless otherwise indicated all dates hereinafter refer to the year 1974.
1975, determined that material issues had been raised
by Objection 4 and ordered that a hearing be held on
the issues. The Regional Director ordered that the
hearing be consolidated with the unfair labor prac-
tice proceeding in Case 27-CA-4206 for the purpose
of hearing, ruling, and decision.
The Administrative Law Judge found that the ob-
jection had merit and recommended that the results
of the election be set aside and that a second election
be held.' For the reasons discussed below, while we
agree the election should be set aside we do not agree
that a second election should be held and conclude
that majority employee sentiment, once expressed
through valid authorization cards, would in the cir-
cumstances of this case be better protected by the
issuance of a bargaining order.
The record shows that almost immediately upon
receiving the Union's demand for recognition on
June 7 the Respondent began a campaign to interfere
with and coerce the employees regarding their desire
for a union. Thus, the same day after receiving the
Union's demand both Respondent's owner, Miller,
and Supervisor Keifer had meetings with the employ-
ees. The Administrative Law Judge found, and we
agree, that at these meetings and other times the Re-
spondent violated Section 8(a)(1) of the Act by: (1)
discussing and promising increased insurance bene-
fits in order to influence the employees' selection of a
collective-bargaining representative; (2) forcing the
immediate resignation of Supervisor Keifer concern-
ing whom the employees had expressed dissatisfac-
tion for the calculated purpose of influencing the
outcome of the election; (3) interrogating employees
regarding their union activities and sentiments; (4)
polling the employees by asking for a showing of
hands whether or not they favored the Union; and
(5) threatening employees with economic reprisals if
the Union were selected. In addition, the Adminis-
trative Law Judge found that the Respondent refused
to promote Janet Daugherty for discriminatory rea-
sons around June 10 and thereby violated Section
8(a)(1) and (3) of the Act.
Contrary to the Administrative Law Judge, we
find that the following conduct of the Respondent
alleged in the complaint also violated the Act.
It is undisputed that on June 7, after the Respon-
dent had received the Union's demand for recogni-
tion, Supervisor Keifer called a meeting and told em-
3 The Board, in its order directing a hearing on the Union 's Objection 4,
did not pass on the Regional Director 's recommendations, to which the
Union filed timely exceptions, that Objections 1, 2, and 3 be overruled.
Objections 1, 2, and 3 admittedly referred to conduct occurring before the
date the representation petition was filed, and were properly not considered
by the Regional Director. We therefore adopt his recommendations that
they be overruled . In any event, conduct alleged in the objections was also
alleged in the complaint and was litigated in the instant proceeding and
fully considered by the Board.
220 NLRB No. 153
ANN LEE SPORTSWEAR, INC.
ployees that if the Union came in the business might
close . He reminded the employees that they had re-
ceived a wage increase , that they were given time off
without question , and that medical bills had been
paid for them . He stressed that the Respondent was
not running on a profit basis and could not stand
more financial pressure . Keifer presented no facts
and figures to substantiate his statements. In our
opinion his statements would reasonably be inter-
preted by the employees as a threat of reprisal and an
implied promise of benefit intended to discourage
their interest in the Union. We disagree with the Ad-
ministrative Law Judge that such remarks were privi-
leged , and find that by these statements Respondent
violated Section 8(a)(1) of the Act .4
On June 11 Connie Garcia asked Respondent's
owner, Miller , if she could transfer from the floor to
a machine , a more desirable job. Miller refused and
in essence told her that he could not promote or
transfer any employee as long as the Union was in
the picture , since it might appear that he was at-
tempting to influence the employees as to union rep-
resentation , and was also prohibited from doing so
during a union campaign by the National Labor Re-
lations Act. This, of course, is not Board policy, and
it is well settled that during a union organizational
campaign an employer has the obligation to grant
benefits in the same manner as it would absent the
union .5 Since it is clear that the only reason Miller
refused to transfer Garcia was because of the pres-
ence of the Union, we find that such conduct was
discriminatory and was violative of Section 8(a)(1)
and (3) of the Act.
That the above unfair labor practices of Respon-
dent had an irremediable effect on free expression
appears plain. On June 7 the Union had obtained
valid authorization cards from 13 of the 20 employ-
ees in the appropriate unit. Yet, when the election
was conducted a month later , only 5 employees vot-
ed for, and 13 voted against, the Union. The majority
support once established by the Union was dissipat-
ed as a result of Respondent's numerous violations of
the Act which began immediately after the Union
made its demand for recognition on June 7. The
threats , the promise of benefits , the granting of bene-
fits, the polling of employees , the interrogation of
employees regarding their union interest , and the dis-
criminatory refusal to promote and transfer employ-
ees because of the presence of the Union directly
threatened the employment status of employees.
4 See , e.g., Jimmy-Richard Co., Inc ., 210 NLRB 802 (1974); Marathon Le-
Tourneau Company, Gulf Marine Division of Marathon Manufacturing Com-
pa7, 208 NLRB 213 (1974).
See, e.g., General Motors Acceptance Corporation , 196 NLRB 137 (1972);
the Gates Rubber Company , 182 NLRB 95 (1970).
983
Conduct of this nature cannot easily be erased from
the minds of employees and its impact is lingering.
We find that the unfair labor practices engaged in
by the Respondent are so coercive and pervasive that
they not only undermined the Union's majority but
also precluded a fair election from being conducted
on July 12. Furthermore, we find that because of
such conduct the Respondent has made slight the
possibility of erasing the effects of these past practic-
es, and of insuring a fair election in the near future,
by the use of traditional remedies. For these reasons,
we conclude that the desires of the employees, once
expressed through cards, would, on balance, be bet-
ter protected by the issuance of a bargaining order.
As the Union's recognition and the Respondent's
embarkation on a clear course of unlawful conduct
both occurred on the same day, June 7, we shall re-
quire the Respondent to recognize and bargain, upon
request, with the Union as of June 7 for the employ-
ees in the unit found appropriate .6
AMENDED CONCLUSIONS OF LAW
The Administrative Law Judge's Conclusions of
Law are hereby amended by substituting the follow-
ing for paragraphs 3 and 4:
"3. Respondent has discriminated against Janet
Daugherty by postponing her promotion to a super-
visory position and against Connie Garcia by refus-
ing to transfer her to a more desirable job, thereby
discouraging its employees' membership in and ac-
tivities on behalf of the Union.
"4. Respondent has interfered with, restrained,
and coerced employees in violation of Section 8(a)(1)
of the Act by interrogating employees regarding their
union activities and sentiments; by threatening em-
ployees with economic reprisals if the Union were
selected as their collective-bargaining representative;
6 Trading Port, Inc., 219 NLRB No. 76 (1975), substantially modified the
view adopted in Steel-Fab, Inc., 212 NLRB 363 (1974), that it was unneces-
sary to find a violation of Sec. 8 (a)(5) as a predicate to ordering bargaining
to remedy violations of the Act. The complaint here was issued before the
modification of Steel-Fab, supra, and did not allege a violation of Sec.
8(a)(5) in accord with the policy at that time . Nonetheless , the issues relating
to the propriety of a bargaining order were fully litigated , as was contemp-
lated even under Steel-Fab, and the omission of any allegation of a violation
of Sec 8(a)(5) in the complaint does not affect the propriety of the bargain-
ing order we find necessary here in any event , without regard to the philos-
ophy underlying Steel-Fab, the Board and the courts have held that serious
and pervasive 8(a)(l) and (3) conduct , as here, makes that remedy appropri-
ate. Justus Company, Inc., 199 NLRB 422, In. 3 (1972), see Kirvan Truck
Line, Inc., 207 NLRB 225, In. 2 (1973), and cases cited therein
Member Fanning concurs in finding that the Respondent had a lawful
obligation to bargain on the date of the demand, but emphasizes that his
finding is based upon his view that under N L R B v Gissel Packing Co.,
Inc, 395 U.S. 575 ( 1969), an employer violates Sec. 8 (a)(5) of the Act when
in those circumstances it refuses to recognize and bargain with a union
whose majority status is established by cards, whether or not the unfair
labor practices triggering the finding that the employer was under an obliga-
tion to bargain occur before, at the same time , or after the actual refusal to
bargain.
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by discussing and promising employees increased
benefits in order to influence their selection of a col-
lective-bargaining representative ; and by timing the
procuring of the resignation of a supervisor so em-
ployees would reject the Union as their collective-
bargaining representative."
THE REMEDY
In order to effectuate the policies of the Act, we
find that it is necessary that Respondent be ordered
to cease and desist from the unfair labor practices
found and to take certain affirmative action, includ-
ing making Daugherty and Garcia whole for any loss
they may have suffered by reason of the failure of
Respondent to promote Daugherty and to transfer
Garcia to a more desirable job. The amount of back-
pay to be due them is to be determined in the compli-
ance stage of this proceeding. Backpay shall be com-
puted on a quarterly basis, plus interest at 6 percent
per annum, as prescribed in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
We shall also order Respondent, upon request, to
bargain with the Union in good faith as of June 7,
1974, and to post the appropriate notice.
Moreover as we find that the unfair labor practices
committed by Respondent were serious in nature
and struck at the very heart of rights intended to be
protected by the Act, we shall issue a "broad" cease-
and-desist order requiring Respondent to cease and
desist from infringing upon employee rights in any
manner?
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Ann Lee Sportswear, Inc., Colorado Springs, Colora-
do, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees regarding their
union activities and sympathies.
(b) Discussing and making promises of increased
health benefits and timing and procuring the resigna-
tion of a supervisor, in order to induce employees to
reject the Union as their collective-bargaining repre-
sentative.
(c) Threatening employees with economic reprisal
if they select the Union as their collective-bargaining
representative.
(d) Delaying the promotion of employees and re-
fusing the transfer of employees because of their
membership in or activities on behalf of Midwest Re-
gional Joint Board, Amalgamated Clothing Workers
of America, AFL-CIO.
(e) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed in the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Upon request, recognize and bargain with the
Union as the exclusive representative of all employ-
ees in the unit which the parties have previously stip-
ulated to be appropriate with respect to rates of
pay, wages, hours, and other terms and conditions of
employment and, if an understanding is reached, em-
body such understanding in a written, signed agree-
ment.
(b) Make Janet Daugherty and Connie Garcia
whole for any loss of pay they may have suffered by
reason of its discrimination against them, as provid-
ed in The Remedy.
(c) Post at its place of business in Colorado
Springs, Colorado, copies of the attached notice
marked "Appendix." 8 Copies of said notice, on
forms provided by the Regional Director for Region
27, after being duly signed by the Respondent's rep-
resentative, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other materi-
al.
(d) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that all allegations of the
complaint which have not been sustained be dis-
missed.
IT IS FURTHER ORDERED that the election held on
July 12, 1974, in Case 27-RC-4838 be, and it hereby
is, set aside , and that Case 27-RC-4838 be, and it
hereby is, dismissed.
r N.L.R. B. v. Entwistle Mfg. Co., 120 F.2d 532, 536-537 (C.A. 4, 1941),
California Lingerie Inc., 129 NLRB 912, 915 ( 1960).
e In the event that 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 National 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
ANN LEE SPORTSWEAR, INC. 985
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employ-
ees these rights:
To engage in 'self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with,
restrains, or coerces employees with respect to
these rights. More specifically,
WE WILL NOT interrogate you concerning your
union membership, activities, sympathies, or de-
sires.
WE WILL NOT threaten you with economic re-
prisals if you select Midwest Regional Joint
Board, Amalgamated Clothing Workers of
America, AFL-CIO, or any other labor organi-
zation as your collective-bargaining representa-
tive.
WE WILL NOT discuss with you or promise you
increased health insurance benefits in order to
induce you to reject the above-named Union, or
any other labor organization, as your collective-
bargaining representative.
WE WILL NOT procure the resignation of a su-
pervisor at a time calculated to induce you to
reject the above-named Union, or any other la-
bor organization, as your collective-bargaining
representative.
WE WILL NOT delay the promotion of employ-
ees or refuse the transfer of employees because
of their membership in or activities on behalf of
the Union.
WE WILL make Janet Daugherty and Connie
Garcia whole for any loss of pay they may have
suffered by reason of the discrimination against
them, with interest.
WE WILL, upon request, bargain collectively
with Midwest Regibnal Joint Board, Amalga-
mated Clothing Workers of America, AFL-
CIO, as the exclusive bargaining representative
of all the employees in tho6 unit described below
with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and,
if an agreement is reached , embody such under-
standing- in a, written, signed agreement. The
bargaining unit is:
All production and maintenance employees
employed by Respondent at 4930 North Park,
Colorado Springs, Colorado, plant, but ex-
cluding all confidential employees, shipping
and receiving employees, office clerical em-
ployees, and all guards, professional employ-
ees and supervisors as defined in the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the National Labor Relations Act.
ANN LEE SPORTSWEAR, INC.
DECISION
STATEMENT OF THE CASE
EARLDEAN V.S. ROBBINS, Administrative Law Judge: This
case was heard before me in Colorado Springs, Colorado,
on April 3 and 4, 1975. The charge was filed by Midwest
Regional Joint Board, Amalgamated Clothing Workers of
America, AFL-CIO, herein called the Union, and served
on Respondent on July 19, 1974. The original complaint
issued on September 30, 1974, and an amended complaint
issued on February 25, 1975, alleging that Respondent had
violated Section 8(a)(1), (3), and (4) of the National Labor
Relations Act. The petition in Case 27-RC-4838 was filed
by the Union on June 11, 1974. Pursuant to a Stipulation
for Certification Upon Consent Election approved on June
19, 1974, an election by secret ballot was conducted on
July 12, 1974, which resulted in 5 ballots cast for and 12
against the Union, with no void or challenged ballots.
Thereafter, the Union filed timely objections to the elec-
tion, a copy of which was served on Respondent. On Octo-
ber 10, 1974, the Regional Director for Region 27 of the
National Labor Relations Board issued his Report on Ob-
jections recommending that said objections be overruled.
On October 23, 1974, the Union filed timely exceptions to
the Regional Director's report with respect to Objections 1
through 4. The Board determined that issues had been
raised with respect to Objection 4 which could best be re-
solved by a hearing. Accordingly, on.January 17, 1975, the
Board ordered that a hearing be held for the purpose of
receiving evidence with respect to said objection and re-
manded the matter to the Regional Director for the pur-
pose of conducting such hearing. On February 25, 1975,
the Regional Director ordered that Case 27-RC-4838 be
consolidated with Case 27-CA-4206 for the purpose of
hearing, ruling, and decision by an Administrative Law
Judge.
The sole objection to the election which is at issue here
is:
4. On or about June 11, 1974, and thereafter Employ-
er withheld improvements in benefits including pro-
motions and transfers because of the pending election.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Specifically, the issue is whether Respondent refused to
give Connie Garcia a transfer and delayed giving Janet
Daugherty a promotion and if so, whether this conduct is
sufficient to warrant setting aside the election.
The basic issues in Case 27-CA-4206 are:
1. Whether Loretta Sandoval was discharged in violation
of Section 8(a)(1), (3), and (4) of the Act.
2. Whether Connie Garcia was refused a transfer and
Janet Daugherty's promised promotion was delayed be-
cause they engaged in union activities.
3. Whether Respondent engaged in certain other con-
duct in violation of Section 8(a)(1) of the Act.
4. If it is found that Respondent engaged in conduct
sufficient to warrant setting aside the election, whether Re-
spondent engaged in acts of interference, restraint, and
coercion of such serious and substantial character and ef-
fect as to render the conduct of a free, fair, rerun represen-
tation election doubtful or impossible, requiring the is-
suance of a bargaining order.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the posthearing briefs filed by the parties, I make the fol-
lowing:
Findings of Fact
1. JURISDICTION
Respondent , a Colorado Corporation with its principal
office and place of business in Colorado Springs , Colora-
do, is engaged in the manufacture and sale of clothing.
Respondent in the course and conduct of its business oper-
ations annually sells and ships goods and materials valued
in excess of $50,000, directly to customers located outside
the State of Colorado.
The complaint alleges, the answer admits , and I find,
that Respondent is, and at all times material herein has
been , an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
11. LABOR ORGANIZATION
The complaint alleges, Respondent admits , and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Respondent, owned by Duane Miller and his wife Bar-
bara, began operations in May 1973. It manufactures
clothing for two principal customers-D. L. Miller, a cor-
poration in which the Millers have an interest, which oper-
ates three retail stores in Texas, and another business
owned by the Millers which operates retail stores in Colo-
rado.
B. The Demand for Recognition and the June 7, 1974,1
Meetings
The record does not indicate exactly when the Union
began its organizational campaign among Respondent's
employees . However , employees Connie Garcia and Vicie
Hayden met with union representatives on May 28 and an
organizational meeting was held on May 30 at the home of
Vicie Hayden and Connie Garcia, at which time a number
of Respondent's employees signed cards which authorized
the Union to represent them for collective-bargaining pur-
poses and applied for membership in the Union . On June
7, by telegram , the Union demanded recognition as the
collective-bargaining representative of Respondent's em-
ployees.
1. The first Miller meeting-June 7
Miller received the demand telegram about mid -morning
on June 7, discussed it with his wife, and then at or about
2 p.m., during the afternoon break, held a meeting with the
employees. Garcia testified that Miller said they had a tele-
gram from the Union, he read the telegram and said he
didn't know why the employees wanted the Union, he felt
he had been a fair employer. He stated that he couldn't
afford the higher wages which the Union would want, that
he would lose his business. He said if the employees want-
ed it, they could get hospital benefits through an insurance
company, through group insurance, that he could talk to
his insurance company and see what he could do about
getting group insurance. He further stated that if the Union
came in, he would go broke . Miller became upset and left
the room crying.
Employees Vicie Hayden and Loretta Sandoval testified
in substantial agreement with Garcia except that Sandoval
did not mention wages in her account and Hayden testified
that in addition to the reference to inability to pay higher
wages and the promise to look into the possibility of ob-
taining hospitalization insurance, Miller also said if they all
stuck together they could work it out and have profit-shar-
ing.
Employee Judith Magee , one of Respondent 's witnesses,
testified , "[b]asically he [Miller] gave us facts and figures,
more or less , telling, showing us that the company was not
making a profit at this time and he said that we could call
collect any of his businesses , his stores,2 and ask them
about the profit-sharing plan and how they were treated
and that kind of thing."
Miller denies making any statement regarding insurance
at this meeting, but admits that he discussed the
Company's financial situation and that he mentioned prof-
it-sharing . The latter was only brought out in cross -exami-
nation . Thus on direct examination , Miller testified , "Brief-
ly, I read the wire, indicated that it was a surprise. I
indicated what the brief thumbnail sketch of the financial
situation was, and we really hadn't had a year in business,
and we were trying to get on top of the situation and this
1 All dates hereinafter will be 1974 unless otherwise indicated.
2 Miller denies having made any arrangement for anyone to accept these
collect calls . According to him, he felt the calls would be accepted out of
curiosity.
ANN LEE SPORTSWEAR, INC.
now, certainly wasn't going to help pursue the matter." At
this point "I just broke up emotionally and couldn 't finish
the statement . I left the room and went back to my office."
However, on cross-examination his account was not
quite so sketchy . Thus on cross-examination , he testified
that he told the employees he had just received a telegram
from the Union and read it to them. He said that telegram
came as a shock . He emphasized that Respondent was less
than a year old, a young company with growing pains.
Miller further stated that they were involved in other com-
panies that had been in existence longer . He invited them
to telephone these companies collect and see what the em-
ployees there thought about the benefits derived from prof-
its and get employee opinion of what their working rela-
tionship was. He said a profit-sharing plan was being
considered in the Texas stores,3 and that this was an exam-
ple of the type of benefits which result once a company
obtains profits. He mentioned that he had borrowed mon-
ey from the other stores to continue Ann Lee 's operations.
He said he would rather see profits going to employee ben-
efits when available rather than to taxes . Miller does not
recall his exact words but admits that he was attempting to
convey to employees that once Respondent became a prof-
itable concern, profit-sharing might flow to Respondent's
employees.
2. The Keifer meeting-June 7
The testimony is confused as to whether the employees
returned to work after Miller left or whether they remained
in the meeting room . In any event , within a matter of only
a few minutes , Gregory Keifer , the employees ' immediate
supervisor,4 held a meeting of employees . According to
Garcia, Keifer said he didn't know why the employees
wanted a union , that the Millers had been fair employers
and if the Union came in Mr. Miller would go bankrupt,
"the doors would shut down on Ann Lee and all of us
would be looking for a job and we would have a hard time
finding a job in Colorado Springs, and he also stated that if
we got the Union he would quit."
Loretta Sandoval testified in substantial agreement ex-
cept that she further testified that Keifer said he didn't like
the Union and everything the Union was saying was a lie,
that he had tried to go union and it just didn't work.
Respondent's witnesses testified much the same S except
that they emphasized that Keifer related possible plant clo-
sure due to the pressure of expenses . Thus Magee testified,
"he [Keifer] said that the Millers didn 't know anything
about this . He was doing it on his own and he more or less
repeated that the business was barely a year old and could
not afford , you know , a lot of expenses and such . . . [He
further stated] something to the effect that he was afraid
3 According to Miller, the D . L. Miller stores were at that time actively
involved in considering the possibility of a profit-sharing plan-no actual
decision had been made.
The parties stipulated that Keifer was , at all times material herein, a
supervisor within the meaning of the Act.
All employee Gail Demers recalls of the Keifer meeting is she got the
impression that he called it on his own . The only thing she remembers is one
employee asked if she would be discharged if she signed a union card and
Keifer said no.
987
that too much pressure of expense without the company
having a profit would cause closure of the factory. Ida 6
asked, `does that mean we are fired if we go union,' and he
said, no. He says, it just means it might not be here for
anybody. He says, well, why don't you girls talk it over and
think about it."
Employee Claudia Payne testified that Keifer said
"something to the effect that Ann Lee was just a young
company and he wanted us to know there was a possibility
that if the Union was forced to Ann Lee that they might
have to shut down because of financial difficulties by being
with a young company starting out." One of the girls asked
if they would be fired if they voted for the Union. Keifer
answered, "No, that is not what I mean, we have no way to
know which way you are going to vote and that is not what
I meant. I meant that the company could possibly be
forced to close down and not be able to stay open and
continue to operate."
Keifer testified that he reminded the employees that they
had received a wage increase, that they were given time off
without question, and that medical bills had been paid for
them? He further said that he had found that a union was
good in some respects and in others was not good. On
direct examination he testified that there would be more
financial pressure and the business might close. However,
on cross-examination, he testified that he said because Re-
spondent was not running on a profit basis at this time,
more financial pressure might cause the business to close.
Armenta asked if this meant that if the Union was voted in,
she would lose her job and the plant would close down.
Keifer replied no.
3. The second Miller meeting-June 7
Directly following the Keifer meeting the employees dis-
cussed the situation. Some said they couldn't afford to lose
their jobs because they were single and for various reasons.
The majority decided to forget about obtaining union rep-
resentation and Vicie Hayden so notified Miller. Accord-
ing to her, she also told Miller that the reason probably
that they had resorted to a union was because they didn't
like Keifer and wanted him out of there.
Miller returned with Hayden to the lunchroom and had
another meeting with employees. According to Garcia,
Miller said he was glad they had decided to drop the
Union, and he would try and do everything he could to
obtain insurance benefits. Mr. Miller asked for a show of
hands of the employees who wanted to forget the Union.
The majority, including Garcia, raised their hands. Ac-
cording to Vicie Hayden, he also said he would rather give
the employees profit-sharing than give it to the Govern-
ment.
Sandoval testified:
Duane called us in the lunchroom and he told us that
he was glad that we were going to drop it and ev-
erything. That we could go to him, to his office and
6 Employee Ida Armenta.
The previous week , one employee had told Miller that she was being
hospitalized and needed time off and money. Miller told her Respondent
would pay $20 a day for hospitalization.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
explain to him what we wanted to, like you know, get
things, the insurance and stuff like that . If we had any
problems-and there is a mailbag on top of the refri-
gerator that we could put our comments in there and
he asked , like for a vote or something , kind of, for he
was glad that we dropped the Union and that, and
there was a lot of them that raised their hands.
Q. What question was asked for the vote?
A. For example , how many would like or how many
wanted to drop the Union or something like that. I
can't really say the exact words he said.
Sandoval and Ida Armenta were the only ones who did not
raise their hands.
Respondent's witness employee Gail Demers has a
slightly different version . She testified , as to this meeting,
that one of the employees went to see Miller to see if they
could drop the Union. He returned to the lunchroom and
one of the employees proceeded to tell him how to drop the
Union . Miller said it was too late , that it had already been
done and the employees would have to rectify the situation
themselves . Insurance was brought up by an employee at
either this or another meeting . She said all the employees
wanted was "more insurance , you know benefits and
things like this ." Since one of the girls was in the insurance
business , he asked if she would look into it . Eventually
Miller placed some insurance pamphlets on the table for
the employees to peruse. She does not remember Miller
ever asking for a show of hands to indicate support for the
Union or for any other reason.
Magee testified that Anne Hayden said that until her
sister-in-law had gotten sick , she did not realize that there
was any coverage at all. Miller apologized for the lack of
communication and said he would look into it. She does
not recall Miller asking for a show of hands.
Payne testified that at the second June 7 meeting, some
of the employees asked Miller about dropping the Union.
Miller replied that if that was what they wanted, they
would have to do it. He said he didn't know what proce-
dure they would have to follow. One of the girls said one of
the reasons they wanted a union was for insurance . Miller
apologized for the lack of communication in not informing
the employees that they already had insurance coverage.
He said he would inquire as to the kind of insurance ob-
tainable , that "the company would go ahead and stand the
expenses that we were paying them for insurance, but if
there was an increase in rates they would probably have to
bear the expense of the increased insurance rates."
Miller testified that Vicie Hayden said the employees
had decided to call the whole thing off and that he said
something indicating relief ., Anne Hayden said some of the
girls were interested in an insurance plan, health insurance
primarily. Miller said he had been in error, that they hadn't
been in business long enough to really develop full policies
of everything and he had neglected to tell them what bene-
fits they actually had. Anne Hayden said they didn't un-
derstand what the existing insurance policy was. Miller re-
plied that at present Respondent pays a set amount per day
for hospitalization-20 dollars, that they had paid a claim
the preceding week. Some of the employees said they
didn't need insurance, they were military dependents, or
were covered by their husband 's insurance . Miller inquired
if anyone was interested in pursuing it further as to obtain-
ing more insurance . He asked for a show of hands of those
interested in insurance . Some employees indicated interest
and Miller said he would contact an insurance company as
to available plans.
4. The Events of June 10 and 11
According to Miller, after receiving the Union's demand,
he telephoned the NLRB Regional Office in Denver and
requested some information . On June 10, he received a
pocket-size pamphlet 8 and a notice suitable for posting
from the Regional Office. He also telephoned the Moun-
tain States Employers Council and on June 13 visited its
Denver office where he received some guidelines.
According to Miller, on the morning of June 11 he
showed Keifer the NLRB pamphlet and asked him to re-
view the pamphlet in light of any comments he made dur-
ing his speech on June 7 or any other discussion Keifer
might have had with employees. A little later Keifer re-
turned, said he had reviewed the pamphlet and didn't feel
that any of his statements or actions were in conflict with
the pamphlet. Miller asked him to refrain from any future
comments, that he and Mrs. Miller would make any state-
ments.
Miller was insistent that the pamphlet to which he re-
ferred was sent to him by the National Labor Relations
Board and that it was received before he received notice of
the filing of the petition . However, in a prehearing affida-
vit, Miller states only that the week following June 7 he
had Keifer look at guidelines he received from the Moun-
tain States Employers Council.
There is no dispute that on June 10 or 11, Miller placed
Blue Cross-Blue Shield brochures on tables in the lunch-
room and asked the employees to look them over. Garcia
testified also that Miller said if the majority wanted that
group plan, he could get it. Sandoval said he said he would
discuss it with them after they looked it over.
Miller testified that he told the employees to look over
the plans described, told them that Respondent's cost was
presently in the neighborhood of $8 per employee per
month and that that amount could be paid 9 by Respon-
dent and the employees would have to pay the balance.
Keifer corroborates Miller's testimony that he said he
would still pay the amount of money he was presently pay-
ing for insurance and that anything in excess of that would
have to be paid by the employee. Some employees inquired
why they had no previous knowledge of this insurance cov-
erage.
s The NLRB pamphlet entitled "Your Government Conducts an Elec-
tion" which is prepared as information for voters in Labor Board elections.
9 Although there were frequent references to insurance coverage presently
in effect, Miller admits that he was referring to Respondent 's unannounced
policy of paying $20 a day in hospitalization benefits. The $8 per month per
employee refers to the premium paid for some D L. Miller employees. For a
period of time D .L Miller has enrolled no new employees in this plan but,
according to Miller , does pay out of its own funds benefits of $20 daily.
Miller claims that Respondent had previously made a conscious decision to
use this same self -insuring plan but does not explain why this benefit was
never announced to employees.
ANN LEE SPORTSWEAR, INC. 989
Vicie Hayden testified that on June 11 she was called
into Keifer's office . He asked her what happened at the
union meeting at her house the night before . Hayden re-
plied, "if you want to know anything ask Gail,10 she was
there ." Keifer then said that if Respondent went union,
Miller could require all employees to buy their own scis-
sors , tools for their machines , and parts . Keifer also asked
if, as a supervisor , he could attend the union meetings.
Keifer does not relate any discussion regarding scissors
or equipment during that conversation . His testimony is
that he made a general statement at breaktime in the con-
text of a discussion regarding the maintenance of scissors.
According to him, he said that some plants in the area had
the employees buy their scissors and needles . He does re-
call a conversation with Vicie Hayden, which he places on
June 10 . His description of the events leading to that dis-
cussion is that employees Judy Magee , Donna Caldwell,
and Gail Demers told him the girls had decided to try to
get out of the Union and asked if he would attend a union
meeting that night . Keifer said he didn 't know whether he
could . Keifer asked Miller whether it would be logical to
attend the meeting . Miller said he didn't know . Keifer then
asked Vicie Hayden if he could help by going to the meet-
ing. She said no . Keifer asked if there were any questions
he could answer for her. He does not specifically deny
making the statement to Hayden described in her testimo-
ny.
Magee denies asking Keifer for help to get out of the
Union . She did ask him to come to a union meeting and he
said he couldn't. Demers was not questioned in this regard.
5. The alleged discrimination against Garcia and
Daugherty
According to Garcia , on the morning of June 11, she
asked Miller if she could transfer from the floor to a ma-
chine . " He said he would see what he could do about it.
Later, during the afternoon of that same day, Miller called
Garcia into his office , told her that he had received notice
from the National Labor Relations Board that he could
not transfer anyone for fear that would be influencing em-
ployees to forget the Union, sort of a bribe. Thereafter
Garcia told Vicie and Anne Hayden what Miller had said.
According to Miller, on June 11 Garcia asked if she
could transfer to machine operator . He said he would look
into it and get back to her. Thereafter he reviewed a pam-
phlet he had received from the National Labor Relations
Board and noted that one paragraph prohibited promo-
tions or transfers. Whereupon he told Garcia that under
the circumstances , the way he interpreted the law, he
would have to delay any consideration of a transfer.12
0 Employee Gail Demers.
1 Garcia's job was to carry bundles of material to machine operators.
Miller admits that machine operator is the more desirable job.
12 One paragraph in this pamphlet states:
The following are examples of conduct which interferes with the rights
of employees and may result in the setting aside of the election:
Promising or granting promotions , pay raises , or other benefits, to in-
fluence an employee's vote by a party capable of carrying out such
promise.
On the following Monday, June 17, Garcia did not show
up for work and her roommate, Vicie Hayden, informed
Miller that Garcia had quit."
According to employee Janet Daugherty, around the
first of June, Miller asked if she would be interested in the
position of supervisor in the sewing room and that Keifer
would be in the cutting room. Daugherty said she would
think it over. Miller said Daugherty would visit some Dal-
las factories before assuming the position. About 2 days
later, Daugherty told Miller she had thought the offer over
and would take the job. Miller said he wouldn't make an
announcement then, that Daugherty would go to Dallas
factories and get experience there.
Miller testified that around the third week in May he
discussed with Daugherty her assuming the position of
floorlady. Daugherty was reluctant and said she would like
to give it a try. Miller testified, "Well-she had some hesi-
tancy in the thing and I said, when we get a chance we will
probably need to go look at some other plants to convince
you in your mind of what the job really entails ." According
to him, they were letting it lay dormant and then they re-
ceived the NLRB pamphlet and following a discussion
with Keifer, decided that making Daugherty a floorlady
would be a prohibited grant of a promotion. Miller further
testified that on the day he received the pamphlet, he told
Daugherty they would just have to hold off for a period of
time because it was their interpretation that granting her
the promotion would be improper conduct.
Daugherty corroborates that several days after June 7,
Miller told her he would have to delay the promotion be-
cause it was against the law to give any promotion during
the period prior to an election.
After the election, according to Daugherty, Miller told
her they had reassessed the situation and had decided to
advertise in Dallas for a supervisor.
Miller's account of this conversation is different. Ac-
cording to him, he asked, "What do you think about the
whole thing now?" Daugherty replied, "there are so many
wounds in the back room and so many bitter feelings" that
she felt that it would probably be 2 to 3 years before this
thing would heal over and that she wasn't interested in the
job at this time, and felt that she ought to back out and
that an outsider should be brought in. Miller said Respon-
dent had run an advertisement in the Dallas paper for a
production manager,14 a position different and superior to
that of floorlady, which was the position discussed with
Daugherty.
Sue Daniels was hired as production manager and in
October, another employee was promoted to floorlady.
Daugherty left Respondent's employ in November.
6. The June 28 meeting
On Wednesday, June 12, Respondent joined the Moun-
tain States Employers Council. On June 19, Respondent
and the Union executed a Stipulation for Certification
13 Garcia is presently in the military service.
14 Respondent did run an advertisement in a Dallas paper. Although the
record does not contain the text of the advertisement, the responses indicate
that it was for a production manager.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon Consent Election providing for an election by secret
ballot on July 12.
On June 28, Respondent held a meeting of employees at
which Miller read a prepared statement in response to a
union handout . There is no contention or evidence that the
speech was violative of the Act. At the conclusion of the
speech , Miller invited questions and a spate of complaints
and comments regarding Keifer ensued . Daugherty testi-
fied that Anne Hayden and employee Joyce DeVeaux said
they were dissatisfied with Keifer. Magee stated that De-
Veaux and employee Laura McMillan made some com-
ments regarding Keifer . Most of the employee witnesses
were not questioned regarding this meeting and those that
were , recalled very little details.
The Millers recall more detail and recall the atmosphere
most vividly. Thus, according to Miller , DeVeaux said
Keifer was unfair , that he wouldn't fix her machine. She
said when she had machine malfunctions , Keifer would say
it was operator error. Then other comments were made by
employees concerning favoritism by Keifer, their feeling
that he shouldn ' t take coffeebreaks in the lunchroom with
the employees , that he was showing favoritism by having
lunch with certain employees and not with others. Miller
described the meeting as an explosive , bitter kind of com-
plete chaos.
Mrs. Miller similarly describes the meeting as degenerat-
ing into a rather acrimonious situation . According to her,
they had previously received occasional complaints regard-
ing Keifer but they appeared to be the normal type of com-
plaint arising in a normal manufacturing business situation
where everyone is not going to like the supervisor and there
was nothing about which to be seriously concerned.
However, at the June 28 meeting it became obvious that
the problem was serious . Following Miller's speech, em-
ployee Joyce DeVeaux said Keifer was unfair and biased,
that he favored some girls more than others and did not
give her the attention she needed , when she needed it.
From there , according to Mrs. Miller, "it was like a snow-
ball and one more entered and one more and one more
until the majority of the girls were talking among them-
selves to us. It was a very strange situation , it was a lot of
women together at each other 's throats with us as the lis-
tening party. They were arguing among themselves, but
also to try to make some point with us too." Some were
vocal in support of Keifer, some against him. "It was get-
ting so out of control in the meeting . It seemed the tensions
could be cut with a knife, it was so heavy with animosity
and the dissention and it was out of control . The lid had
blown off, they had all expressed these things and then all
of a sudden , somebody cracked the door and they sure
expressed how they felt. So, we tried to calm it down, I
can't remember exactly what we said , something ridiculous
like let 's reason together or think, girls, we are doing more
damage than harm with this kind of a reaction , it isn't
constructive ." One of the Millers said the meeting was at
an end.
Then, within a very short period of time , various em-
ployees began coming into the office to continue a recital
of their complaints against Keifer . Later that evening, the
Millers discussed the situation . According to Mrs. Miller,
the discussion followed these lines:
A. (The Witness) It was said by me, I didn't see
how we could continue operating with Greg in the
plant because the girls, obviously , couldn ' t stand him
and it wasn ' t a new thing, it was a very old thing. It
just happened to blow up at that time , and Greg, and
Duane agreed and said he didn't see any way that it
could be any different and we played these words re-
peatedly in different ways back and forth for a couple
of hours. Duane liked Greg and he didn ' t want to do
any sort of an injustice to Greg, he said , and I repeat-
ed that obviously , the girls would not work for him
and we discussed these two things through the course
of the dinner , and then , Duane finally said , no matter
what, I don't see how the back room can run under
the present conditions with Greg at the head, and I
don't see what 's going to change the condition. And
by conditions , I mean the dissention and the bitter-
ness.
According to Miller, they decided this was a crisis situa-
tion , that Keifer had lost complete control, that it was an
immediate , irreversible problem and Keifer should be
asked to resign.
The following morning, Miller told Keifer he had lost
the respect and control of the employees-his capability to
supervise-and asked for his resignation. Keifer said, "I
realize I have lost control and I will offer my resignation."
About 2 hours later Keifer submitted a letter of resigna-
tion.
Keifer testified that Miller asked him to resign because
of a personality conflict between him and the employees.
Keifer said that for the betterment of the Company he
would resign.
On July 1, Miller assembled the employees and read to
them Keifer 's letter of resignation , which was later posted
on the bulletin board.
7. The discharge of Loretta Sandoval
Loretta Sandoval was hired as a presser on April 23.
During the Union 's organizational campaign, she signed a
union authorization and membership application card,
gave the Union the names of all Respondent 's employees,
held a union organizational meeting at her house 2 days
before the election, attended two other organizational
meetings, and was the union observer at the election.
Work as a presser requires use of the foot to operate the
press. During the first part of September , Sandoval com-
plained that pressing was painful to her knee and asked to
be assigned to another job. In accordance with instruc-
tions, she furnished Production Manager Daniels a
doctor 's excuse dated September 19 which states: "Patient
has early signs of arthritis and should not put pressure on
the knee."
On September 20, she was transferred to packing, which
was not a full-time job . According to Mrs. Miller , she was
told at the time that she was being moved to packing be-
cause of her leg, that they would try to leave her in other
positions whenever possible, but that she was hired as a
presser.
As a packer , Sandoval loaded boxes with pants and
ANN LEE SPORTSWEAR, INC.
tops 15 sealed the boxes , wrote the count on the boxes, and
then helped to move the boxes to the dock . She also did
janitorial work, helped to lay fabric, and helped to bundle.
Mrs. Miller testified that on October 9, after Sandoval
completed all the packing and other jobs available that
day, Daniels told Mrs . Miller that she asked Sandoval to
press and Sandoval refused . Mrs. Miller told Daniels to go
back to Sandoval and ask her to please use her other leg
because they needed the pressing . Daniels went over to
Sandoval and then returned and told Mrs . Miller Sandoval
refused to press . At this time Sandoval was within ear
range but did not deny this statement . Mrs. Miller told
Daniels that "if Loretta was going to be that uncoopera-
tive , if we tried to meet her halfway , then she shouldn't
work there anymore ." She told Daniels to send Sandoval
home. Daniels went back to Sandoval , then returned and
told Mrs. Miller she had told Sandoval she would call her
when the hangers came in. This was on October 9 and
Sandoval had previously informed Respondent that she
would be out of town deer-hunting on October 14 and 15.
On rebuttal, Sandoval testified that on October 9 after
lunch , she told Daniels she was running out of hangers.
Daniels said she was in a hurry to go to the sewing room.
When she returned , she said, "Loretta , I am going to have
to lay you off for a couple of days." Sandoval asked why.
Daniels said because she didn 't have enough hangers. San-
doval asked what about other girls, that when they had
nothing to do, Daniels put them to work-checking. Sando-
val said she had to sweep the floor and clean the kitchen.
Daniels said she would get someone else to do that . Sando-
val asked if she would work the next day. Daniels said no,
that she should leave as soon as she finished cleaning the
kitchen. Sandoval denies being asked to press or that she
refused to press.
On October 11, the Millers visited their Texas stores and
discovered what they describe as major shipping problems,
including misdistribution of shipments as well as inaccu-
rate counts. For example , one store had less than 10 size-
10's when they ordinarily operate with around 10 dozen.
There were inaccuracies in the total count in a box-the
count of items shipped differed from what the stores actu-
ally received . Some stores received double allotment of a
size and another store would receive none.16
According to Mrs. Miller, after discovering these prob-
lems, she telephoned their Colorado stores and discovered
they had received the same type of unbalanced shipments,
but in different sizes . Through telephone calls, they made a
determination as to where the overages and shortages were
among the stores . On October 15, upon their return to Col-
orado Springs, the Millers and Daniels discussed the ship-
t! Sandoval described the packing process as follows: As the presser fin-
ishes a bundle , she ties it and places it on a table When the table is full,
Sandoval unties the bundles and moves them from the table to the bin for
the particular size. She then waits until Mrs. Miller gives her a list of the
names of the stores to which the product will be shipped . She lines the
shipping boxes up according to instructions based on the sales at the various
stores so that packing starts with the store with the strongest sales. Then,
starting with the first box, she places the garments , one each, in all the
boxes , repeating the process until all garments are transferred from bin to
shiiping box.
This is from the testimony of Duane and Barbara Miller.
991
ping problem and decided that they could not afford to
keep Sandoval in packing since the discrepancies could
add up to thousands of dollars in a year' s time . Specifical-
ly, Sandoval's errors would adversely affect cash flow and
create a significant financial problem since billings are tak-
en directly from the count. The packers would write the
number of items on the box and one of the Millers would
take the number written on the box by the packer and
make the billing for the shipment. Thus, the cash flow was
directly connected with the packer's count. They also dis-
cussed offering her a transfer back to pressing.
On October 15, according to Miller, Sandoval called him
at home and inquired whether she would get her job back.
Miller referred her to Production Manager Sue Daniels.17
On the morning of October 16, Daniels told Miller to
expect a call from Sandoval, that she was not going to take
Sandoval back into the shipping area.
According to Duane Miller, "[Sandoval] asked if she
could have her job and I said, you were originally hired to
do pressing and we still need a presser and the job was
open as far as pressing was concerned. But, as far as ship-
ping is concerned, we couldn't tolerate the inaccuracy that
we had and that job was not open, but pressing would be
... she said we'll see about that." He further stated that
Sandoval said she wouldn't press. Mrs. Miller testified that
Miller reported to her essentially the same version of the
conversation.
Mrs. Miller also testified that Daniels told her that San-
doval had called and asked for her job back. Daniels said
there wasn't a job for her but Mrs. Miller does not know
whether Daniels specifically said no job in packing.
Sandoval testified that on the evening of October 15, she
called Miller at home and asked for Daniels' telephone
number. He said he didn't have it, to call her in the morn-
ing. Sandoval telephoned Daniels the next morning. Dan-
iels said "she just didn't need me anymore." Sandoval
asked why. Daniels told her to call Miller, which she did.
According to Sandoval, "I asked him why he didn't need
me anymore and he told me that I had made a mistake,
that I sent size 10 pairs of pants to two stores in Texas and
I replied, is that the only reason you have, and he said yes.
And, I kept asking him if that was the only reason and he
said yes, so I responded to him, I will see what I can do."
Mrs. Miller claims that during the 3 weeks Sandoval was
packing, she had noted various errors and discussed them
with Sandoval but had not considered them as being way
out of line. For example, one day after the shift ended, she
decided to check the accuracy of the count in boxes packed
by Sandoval. One or two off is normal. However, the boxes
averaged 20 off. Mrs. Miller corrected the shipment herself
and spoke to Sandoval about it the next day.
On the other hand, Sandoval testified that Mrs. Miller
only spoke to her concerning a mistake once. She does not
recall whether it was before or after the Millers' trip to
Texas. According to her, the only criticism Daniels had of
her work was that she worked too fast and should slow
down and states that Mrs. Miller never told her she had
discovered miscounts in several boxes.
17 Daniels, an admitted supervisor, did not testify . She left Respondent's
employ on February 28, 1975, and is no longer in the Colorado Springs
area
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. The Union 's Majority Status
The parties stipulated , and I find that the appropriate
unit is:
All production and maintenance employees employed
by Respondent at 4930 North Park, Colorado Springs,
Colorado, plant, but excluding all confidential em-
ployees, shipping and receiving employees , office cler-
ical employees and all guards, professional employees
and supervisors as defined in the Act.
Twenty persons were employed by Respondent in the ap-
propriate unit on June 7, the date of the union demand for
recognition . As of that same date , 13 of these 20 employees
had authorized the Union to represent them in collective
bargaining.
Respondent attacks the Union 's majority status on the
grounds that Vicie Hayden and Garcia left Respondent's
employ prior to the election and Hi Soon Guillette re-
nounced her authorization card . This argument lacks merit
since it is the Union 's majority status on the date of the
demand that is controlling . As of June 7, Hayden , Garcia,
and Guillette properly constituted a part of the Union's
majority.
Respondent also contends that the authorization cards
signed by Gail Demers and Norma Hinshaw should not be
counted because they were improperly solicited on the
ground that a majority had already signed the cards. In
support of this proposition Respondent cites I.T.T. Semi-
Conductors, Inc., 165 NLRB 716 (1967 ). That reliance is
misplaced . In that case and others , the Board held that
even if at the time of such solicitation , the Union did not
represent a majority , a card so obtained can be rendered
invalid only upon proof that it would not have been sub-
scribed but for the erroneous representation or that the
misrepresentation operated coercively by putting signers in
fear of majority reprisal . Such is not the case here. A ma-
jority had in fact signed when Hinshaw's signature was
solicited . Moreover , she testified:
Q. Would you have signed that card, if she hadn't
said the majority had already signed?
A. I don't know if I would or not.
As to Demers , she testified that the union representative
told her everyone else was signing so she should sign too,
that if it didn ' t benefit her, it would benefit the other em-
ployees.
Respondent 's final argument as to majority is that Mc-
Quiston's card should not be counted because it was solic-
ited in violation of the Savair doctrine . 16 The record does
not support this contention . In this regard McQuiston testi-
fied that she was not told that initiation fees would be
waived if she signed the card before the election, or if she
voted for the Union . She testified that she believed she
remembered hearing a union representative say something
to the effect that initiation fees would be waived for those
signing cards before a contract was signed but that those
who signed later would pay an initiation fee. However, she
states she does not recall exactly what was said. Union
18 N.L.R.B. v. Savair Mfg. Co., 414 U.S. 270 (1973).
Representative Richard Rothstein testified that he ex-
plained to employees that a local would be chartered only
after a collective-bargaining agreement was negotiated and
that the local would set the dues and no dues or initiation
fee would be collected prior to that and the initiation fee
would apply only to new employees who started their em-
ploy after the initiation fee was established. Since McQui-
ston does not actually recall what was said , no reliance can
be placed on her later testimony and I do credit
Rothstein's account of the Union's practice and what was
told to employees . As the Union's offer to waive initiation
fees was for all employees of the Employer employed at the
time the contract was signed , it did not interfere with the
employees' free choice in the signing of the authorization
cards . See N.L.RB. v. Savair Mfg. Co., supra,• Gibson's Dis-
count Center, Div. of Scrivner-Bogaart, Inc., 214 NLRB No.
22 (1974).
Accordingly , I find that the 13 cards are all valid and
that as of June 7, and continuing thereafter , the Union
represented a majority of Respondent's employees in a unit
appropriate for purposes of collective bargaining.
D. Discussion
1. The 8(a)(1) allegations
Paragraph V(a) of the complaint alleges that Keifer
threatened employees with closure of Respondent's plant if
they chose the Union to represent them . It is undisputed
that on June 7, Keifer mentioned plant closure in the con-
text of union representation . General Counsel and Charg-
ing Party contend that the only possible meaning of
Keifer's remark was that if the Union came in, the plant
would close . Respondent , on the other hand , contends that
the remark was protected by Section 8(c) of the Act as a
prediction of the possible economic effect of increased
costs.
Thus General Counsel's witnesses Garcia, Sandoval, and
Hayden testified that Keifer said flat out that if the Union
came in Respondent would close . However, on cross-ex-
amination Garcia testified that he said Respondent would
go bankrupt and close , which is substantially similar to the
testimony of Respondent's employee witnesses . Payne and
Magee state that he said Respondent was a young compa-
ny and could not afford a lot of expense, that if the Union
was forced on Respondent, it might have to close because
of financial difficulties. Armenta asked if that meant they
would be fired if they selected the Union . Keifer said no, it
just meant Respondent might be forced to close . Keifer
admitted on direct examination that he said there would be
more financial pressure and the business might close. On
cross-examination he testified that he said Respondent was
not presently a profitable operation and more financial
pressure might cause the plant to close.
I credit the accounts of Garcia, Payne, and Magee, and
accordingly find that Respondent did not violate Section
8(a)(1) of the Act as alleged in subparagraph V(a) of the
complaint . An employer is not precluded from conveying
to its employees in a noncoercive manner the possible ad-
verse economic consequences that might be expected if its
business costs are increased . B. F. Goodrich Footwear Com-
ANN LEE SPORTSWEAR, INC. 993
pany, 201 NLRB 353 (1973).
In support of subparagraph V(b) of the complaint, Vicie
Hayden . testified that on June 11 Keifer asked what oc-
curred at the June 10 union meeting and said if Respon-
dent went union , Miller could require employees to buy
their own equipment . Keifer states that several employees
asked him to attend the June 10 meeting and after Miller
was unable to give him advice as to whether he should
attend the meeting, he asked Vicie Hayden if he could help
by going to the meeting . I credit Hayden 's account of this
conversation . She impressed me as a forthright witness and
there are no inconsistencies in her testimony . 19 On the
other hand , Keifer states that Donna Caldwell , Magee, and
Demers asked him to attend the meeting . Magee flatly de-
nies this, and although Demers testified , she was not ques-
tioned in this regard . Caldwell did not testify . Keifer does
not specifically deny either the interrogation or the alleged
threat, he merely describes an incident which could be a
completely separate incident . Thus he relates a general
conversation during break where he mentionted the prac-
tice of some employers having employees furnish their own
equipment.
Since I have credited Hayden 's testimony , I find that
Respondent violated Section 8(a)(1) of the Act as alleged
in subparagraph V(b) by interrogating Hayden and by
threatening economic reprisals if the employees selected
the Union as their collective-bargaining representative.
However, I find that General Counsel has not made out
a prima facie case as to the allegation that on or about June
7 Keifer promised employees increased vacation pay in or-
der to influence the employees' selection of a collective-
bargaining representative . There is no testimony that Re-
spondent made promises of increased vacation benefits af-
ter receipt of the Union's demand.
Both Keifer and Miller testified that there was some dis-
cussion of vacations prior to June 7. This arose in the con-
text of scheduling vacations . Under Respondent 's vacation
policy, an employee is entitled to a vacation after 1 year.
However , some employees wished to have their vacations
coincide with their husbands '. Since Respondent did not
begin operations until the fall of 1973, this posed a problem
for some employees as the summer vacation season ap-
proached . Respondent decided , and notified at least some
employees , that it intended to be flexible in this regard.
However, there is no evidence to refute the testimony that
this occurred prior to June 7. Accordingly , I find that Re-
spondent did not violate Section 8(a)(1) of the Act as al-
leged in subparagraph V(c) of the complaint.
I further find that Respondent violated Section 8(a)(1) of
the Act by discussing and promising increased insurance
benefits in order to influence the employees ' selection of a
collective-bargaining representative . The context of the dis-
cussion , immediately following the Union's demand and
employee indication of concern regarding insurance,
makes the motivation readily apparent.
Respondent argues that this was merely a promise to
19 Respondent argued that Hayden's version is inherently inconsistent
since she admits that Keifer inquired if he could attend a union meeting
Respondent's argument assumes that there was only one union meeting and
neglects to take into consideration possible future meetings.
change insurance plans without increasing Respondent's
cost . Without accepting Respondent 's assumption that
such a change would not constitute a violation of the Act,
I find that the facts do not support Respondent's position.
Respondent never had a binding insurance plan. A "plan"
unprotected by an insurance policy or even contributions
to a trust fund is not a plan upon which employees can
rely. It is left to , if not the whim , at least the financial
status of the Respondent at the time of the claim. In my
opinion , any plan underwritten by an insurance carrier, in
these circumstances , constituted an improvement in bene-
fits 20
The complaint alleges that Respondent violated Section
8(a)(1) of the Act by procuring Keifer's resignation. I find
that the events of the June 28 meeting revealed a serious
management problem which would reasonably necessitate
a resolution, and I make no attempt to substitute my judg-
ment for that of the Millers that the problem could only be
resolved by Keifer's resignation . However, against the
background of employee expressions that insurance and
Keifer were their reasons for resorting to the Union and
Respondent 's swift reaction to the expression of dissatis-
faction as to insurance, I find that Respondent 's response
was precipitous and calculated to influence the outcome of
the election . Respondent does not explain why Keifer's res-
ignation was procured prior to securing a replacement or
without any sort of notice . In these circumstances, I find
that Keifer's resignation was procured in violation of Sec-
tion 8(a)(1) of the Act.
Though not specifically alleged in the complaint, the
polling of employees as to whether they wished to drop the
Union was fully litigated . I credit the employees who testi-
fied that such polling occurred and find that it was viola-
tive of Section 8(a)(1) of the Act.
2. The alleged discrimination against Garcia and
Daugherty
It is well settled that during a union organizational cam-
paign, an employer has the obligation to grant benefits in
the same manner as it would absent the Union. McCormick
Longmeadow Stone Co., Inc., 158 NLRB 1237 (1966); Gen-
eral Motors Acceptance Corp., 196 NLRB 137 (1972); Dia-
mond Motors, Inc., 212 NLRB 820 (1974); Keller Columbus,
Inc., 215 NLRB No. 124 (1974). However, it is equally well
established that a strong presumption arises from the tim-
ing of such grants that the benefits were given in order to
influence the employees in the selection of a bargaining
representative. The Singer Company, Friden Division, 199
NLRB 1195 (1972). Thus, an employer who had no regular
policy for the granting of specific benefits or who has made
no definite preunion activity promise to grant a benefit
finds it difficult, or impossible, to establish legitimate justi-
fication for the timing of such a grant. Thus the Board had,
in some instances, held legitimate the withholding of bene-
fits where the benefit was solicited by the employee and the
grant was withheld to avoid the appearance of attempting
to interfere with employee rights. The Singer Company, su-
pra.
20 An insurance plan was actually put into effect on December 31.
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Here Garcia requested a transfer after the Union's de-
mand. There is no evidence as to Respondent's policy, if
any, as to transfers. Miller told her he would think about it
and returned later that same day and told her he had
received a notice from the Board and he couldn't transfer
her because it might appear he was attempting to influence
the employees as to union representation. In these circum-
stances, I find that the failure to transfer Garcia from the
floor to a machine was not violative of Section 8(a)(1) and
(3) of the Act.
Daugherty's promotion is something different. I credit
her testimony that she had definitely accepted the job prior
to the advent of the Union. Miller contends that Daugher-
ty was reluctant and the matter was never definitely settled
but he admits that he told Daugherty that the promotion
would have to be delayed because of the Union. It is im-
material whether Miller honestly thought that the law pro-
hibited him from pomoting Daugherty. In fact, as to the
Daugherty promotion, his interpretation of the law was in-
correct. She had been promised a major promotion prior to
the advent of the Union and Respondent was obligated to
grant it just as he would have absent any union campaign.
Accordingly, I find that Respondent violated Section
8(a)(1) and (3) of the Act by postponing Daugherty's pro-
motion.
The complaint alleged that the Garcia and Daugherty
discriminations were also violative of Section 8(a)(4) of the
Act but no evidence was adduced in proof thereof. I there-
fore find that Respondent did not violate Section 8(a)(4) by
the alleged discriminations against Garcia and Daugherty.
3. The alleged discrimination against Sandoval
Sandoval is an employee with 5-1/2-months seniority
and 3 weeks in the packers classification. The Millers cite
reasons which, if believed, constitute valid reasons for re-
moving her from the job as packer. I find insufficient evi-
dence on the record to discredit these reasons. I found Mrs.
Miller to be an honest and reliable witness whose testimo-
ny is essentially consistent. I credit her testimony that on
October 9 Daniels told her, in Sandoval's hearing range,
that Sandoval had refused to press and that Sandoval did
not deny it. I therefore find that Sandoval refused to press
on October 9. 1 further credit Mr. Miller's contention that
when he offered to return her to the pressing job she re-
fused. This refusal is consistent with her earlier refusal to
press and with her physical reasons for seeking a transfer
from pressing in the first place. I also find incredible
Sandoval's contention that she was told of only one error
and that Daniels' only complaint was that she worked too
fast. It seems incredible that a novice at packing would
make almost no mistakes and that the mistakes made
would not be brought to her attention. Also, in the absence
of some other reason appearing on the record, the only
logical reason I can find for telling a packer to slow down
is because her speed was causing errors. I also find incredi-
ble Sandoval's contention that she couldn't have made mis-
takes because she was watched all the time. Without sup-
porting evidence, I find it difficult to accept a bald
statement that the packer was watched all the time when
there were so many other operations to oversee. Mrs. Mill-
er, whom I credit, testified that Sandoval did make mis-
takes but she did not consider them as decisive until she
learned of the extent of the errors on her Texas trip.
Buttressing Respondent's claim that Sandoval's termina-
tion was not illegally motivated is the fact that she was
transferred to packing, at her request and for physical rea-
sons. This is not the action of an employer bent on punish-
ing, or ridding itself of, a union activist. If illegally motivat-
ed, it would have been much simpler to initially refuse to
transfer her. I do not find persuasive General Counsel's
argument that the issuance of the original complaint herein
constituted an intervening circumstance which negates the
transfer as an indicia of legal motivation. The charge was
pending at the time of the transfer and there is no evidence
to indicate that Sandoval figured more actively in the in-
vestigation of the charge than any other employee, or that
Respondent had any reason to believe so, except to the
extent her role as election observer for the Union may be
so construed.
In all the circumstances, I find that General Counsel has
failed to establish that Sandoval was discharged in viola-
tion of Section 8(a)(1), (3), and (4) of the Act.
The Objections to the Election
With respect to the Union's Objection 4, I have found
hereinabove that the failure to promote Daugherty consti-
tutes an unfair labor practice. Inasmuch as I also find that
it was reasonably calculated to undermine the employees'
adherence to the Union, I find that the objection is merito-
rious. Contrary to Respondent's contention, I find that this
conduct occurred within the critical period.21 Miller testi-
fied that it occurred on June 10, the day before the critical
period began. However, he also testified that prior to
speaking to Daugherty, he and Keifer discussed her pro-
motion in light of the information contained in the NLRB
pamphlet. He further testified that Keifer was shown the
pamphlet on June 11. 1 therefore find that the crucial con-
versation with Daugherty occurred on June 11 or a day or
two afterward. In view of these findings, I conclude that
the Employer's conduct must have reasonably affected the
results of the election.22 I therefore recommend that the
results of the election held on July 12, 1974, be set aside.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has discriminated against Janet Daugh-
21 Respondent's argument that the Regional Director's determination
should be final is without merit since a Stipulation for Certification Upon
Consent Election provides for exceptions to the Regional Director's deter-
minations.
22 Although not specifically set forth in the objections and not specifically
referred to me in the representation matter, I have found that Respondent's
conduct in procuring Keifer's resignation constitutes an unfair labor prac-
tice and was reasonably calculated to undermine the employees ' adherence
to the Union. Based on these findings that conduct is also sufficient to
affect the result of the election.
ANN LEE SPORTSWEAR, INC. 995
erty by postponing her promotion to a supervisory posi-
tion , thereby discouraging its employees ' membership in
and activities on behalf of the Union.
4. Respondent has interfered with , restrained, and
coerced employees in violation of Section 8(a)(1) of the Act
by interrogating employees regarding their union activities
and sentiments ; by threatening employees with economic
reprisals if the Union was selected as their collective-bar-
gaining representative ; by discussing and promising em-
ployees increased insurance benefits in order to influence
their selection of a collective -bargaining representative;
and by timing the procuring of the resignation of a supervi-
sor so employees would reject the Union as their collective-
bargaining representative.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The unfair labor practices found to have been com-
mitted are insufficient to impair the likelihood of the pre-
sent conduct of a free and fair rerun representation elec-
tion.
7. Respondent has not violated the Act in certain re-
spects as set forth above.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that Respondent
cease and desist therefrom and take certain affirmative ac-
tion in order to effectuate the policies of the Act. I have
also found that Respondent delayed the promotion of Jan-
et Daugherty in violation of Section 8(a)(3) of the Act.
Since Daugherty has left Respondent's employ and there is
no contention or evidence that her departure was attribut-
able to Respondent's conduct, I shall order only that
Daugherty be made whole for any loss she may have suf-
fered by reason of the failure to promote her.
General Counsel and Charging Party have requested
that a bargaining order remedy be granted. However, I
conclude that any residual effect stemming from
Respondent's conduct found herein to be violative of the
Act can be dispelled by the Board's traditional remedies
for such unfair labor practices. Accordingly, I conclude
that Respondent's conduct is not sufficient to render
doubtful or impossible the holding of a free, fair rerun elec-
tion. Accordingly, a bargaining order remedy would be in-
appropriate in these circumstances. N.L.R.B. v. Gissel
Packing Co., Inc., 395 U.S. 575 (1969); Ring Metal Compa-
ny, 198 NLRB 1020 (1972); Franklin Park Mall Inc., 212
NLRB 21 (1974). In so concluding, I have fully considered
the argument of General Counsel and Charging Party that
the speed with which the employees renounced the Union
indicates the impact of Respondent's conduct. However, I
conclude from the employees' testimony that the first Mill-
er speech and his tearful reaction were what swayed the
employees, neither of which is alleged or found to be viola-
tive of the Act.
[Recommended Order omitted from publication.]