Bates Nitewear Co.

National Labor Relations Board - Board Decisions

May 26, 1987

283 N.L.R.B. 1128 (N.L.R.B. 1987)

1128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Bates Nitewear Company and Central North Caroli-
na Joint Board, Affiliated with Amalgamated
Clothing and Textile Workers Union„ Cases 11-
CA-11785-1, 11-CA-11785-2, and 11-CA-
11800
26 May 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND CRACRAFT
On 13 August 1986 Administrative Law Judge
Robert. A. Gritta issued the attached decision. The
Respondent and the Charging Party filed excep-
tions and supporting briefs.
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, I and
conclusions2 and to adopt the recommended Order
as modified.3
We agree with the judge that, the Respondent
did not violate Section 8(a)(1) by unlawfully inter-
rogating employee Wise on 29 August 1985.4 Al-
though the judge failed to make-specific credibility
findings with respect to this incident, we find that
even crediting Wise's testimony that Supervisor
Hinson asked her "what we thought about the
Union," to which Wise replied that she knew noth-
ing about it, Hinson's inquiry did not violate Sec-
' The Respondent and the Charging Party have excepted to some of
the judge's credibility findings. 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
We also correct the following inadvertent errors of the judge (1) In
sec III,A, par 3, the sentence beginning "Pursuant to his authonty on 6
June 1984" 'is corrected to read "Pursuant to his authonty on 1 June
1984", (2) in sec 111,A, par 3, the sentence beginning "Ruth Ayers, as a
roving inspector, worked in Jean Hams' department" is corrected to re-
flect that Ayers worked in Jean Horne's department
These minor corrections do not affect our decision
2 We agree with the judge's finding that Respondent did not violate
Sec. 8(a)(1) by more closely watching employee Carolyn Johnson at
work following her return from an unlawful suspension In so doing, we
read the judge's decision as holding that, although Johnson perceived
that Supervisors Seals and Hinson more closely watched her following
her suspension, the evidence fails to establish that heightened surveillance
occurred. Absent such evidence, we agree with the judge that this 8(a)(1)
allegation should be dismissed
In adopting the judge's finding that the Respondent's discipline of em-
ployees pursuant to its unlawful "Statement on Unionism" violated Sec
8(a)(3), we also rely on Republic, Aviation, 324 U.S 793, 805-(1945)
6 We have modified pars. 1(b), (c), and (d) of the judges recommend-
ed Order to more closely reflect the violations found
4 Member Cracraft, noting that the administrative law judge failed to
resolve the credibility conflict as to the statement allegedly made by Su-
pervisor Hinson to employee Wise, would not pass on the 8(a)(1) allega-
tion regarding the 29 August 1985 conversation between Hinson and
Wise
tion 8(a)(1). Hinson's single question was unfo-
cused, unaccompanied by coercive statements and
was asked on the workroom floor instead of the
more coercive management office setting. More-
over, Hinson was merely a first-line , supervisor
with whom Wise admittedly got along well. In all
these circumstances, we find that Hinson's question
did not violate Section 8(a)(1). Rossmore House, 269
NLRB 1176 (1984); Sunnyvale Medical Clinic, 277
NLRB 1217 (1985).
We also agree with the judge that the Respond-
ent did not violate Section 8(a)(1) when Supervi-
sors Hinson and Seals and Vice President Thurman
Johnson questioned Wise about the Union in Octo-
ber or November 1985. Thus, following Wise's dis-
cipline for verbal altercations with other employ-
ees, she initiated the conversations with Hinson and
Seals, requested that the discussions not take place
on the workroom floor, and volunteered the infor-
mation that coworkers were harassing her about
the Union. After Wise told the supervisors ' that she
was concerned about her continued employment,
she willingly agreed to Seals' suggestion that she
discuss the matter with Thurman Johnson. Thereaf-
ter Johnson questioned Wise about the complaints
she raised and asked her to identify the employees
who were harassing her. Because this information
was within the scope of that which Wise freely dis-
closed, and was the type of information Respond-
ent`logically would seek in any disciplinary matter,
whether or not it related to the subject of unions,
we fmd that Johnson's questions did not violate the
Act. Accordingly, we dismiss this 8(a)(1) allega-
tion.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Bates Nitewear Company, Greensboro,
North Carolina, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Substitute the following for ' paragraphs 1(b),
(c),,and (d).
"(b) Instructing or encouraging employees to
report any efforts exerted on them to join a union
or to report to the Respondent the identity of
union supporters.
"(c) Promulgating a no-distribution rule for the
purpose of discouraging employees' lawful union
activities.
"(d) Suspending or otherwise discriminating
against its employees because they have joined,
supported, or assisted a union, or have engaged in
protected concerted activities."
283 NLRB No. 177
BATES NITEWEAR CO.
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT threaten employees with plant
closure or loss of jobs because they want to assist
the Union.
WE' WILL NOT instruct or encourage employees
to report any efforts exerted on them to join a
union or to report to us the identity of union sup-
porters.
WE', WILL NOT promulgate a no-distribution rule
for the purpose of discouraging employees' lawful
union activities.
WE, WILL NOT suspend or otherwise discriminate
against employees because, they have joined, sup-
ported, or assisted a union„ or have engaged in, pro-
tected concerted activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act. -
WE WILL make Ruth Ayers, Carolyn Johnson,
and Gladys Lambert whole for any loss of earnings
and other benefits, resulting from our discrimina-
tion, less any net interim earnings, plus interest.
WE! WILL notify, Ruth Ayers, Carolyn Johnson,
and Gladys Lambert that we have removed from
our filles any reference to their suspensions- and that
the suspensions will not be used against them in
any way.
BATES NITEWEAR COMPANY
Janet H. Branch, Esq.; for the General Counsel.
Robert A. Peartman, Esq., of Greensboro, North Caroli-
- na, for the Respondent.
Jonathan R. IHarkavy, Esq., of Greensboro, North Caroli-
na, for the Charging Party. .
DECISION
1129,
STATEMENT OF THE CAST,
ROBERT A. GRITTA, Administrative Law Judge. This
case was tried before me on 13 and 14 January 1986 in
Greensboro, North Carolina, based on charges filed by
Central North Carolina Joint Board, affiliated with
Amalgamated Clothing and Textile Workers Union (the
Union) on 12 and 30-September 1985, and a consolidated
complaint issued by the Regional Director for Region of
the National Labor Relations Board on 5 November
1985.1 The complaints allege that Bates Nitewear Com-
pany (Bates or Respondent) violated Section 8 (a)(1) and
(3) of the Act by unlawful threats , interrogations, sur-
veillance, imposition of new work rules and suspensions
of,its employees. Respondent's timely answer denied the
commission of any unfair labor practices.
All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, to introduce evi-
dence, and to argue orally. A brief was submitted by the
General Counsel on 10 March 1986. The brief 'was duly
considered.
On the entire record in this case and from my observa-
tion of the witnesses and their demeanor on the witness
stand, and on substantative, reliable evidence considered
along with the consistency and inherent probability of
testimony, I make the following
FINDINGS OF FACT
1. JURISDICTION AND STATUS-OF LABOR
ORGANIZATION--PRELIMINARY CONCLUSIONS OF
LAW
The complaints allege, Respondent admits, and I find
that Bates Nitewear Company is a North Carolina corpo-
ration engaged in the manufacturing of nightwear in
Greensboro, North Carolina. Jurisdiction is not in issue.
In the past 12 months Bates Nitewear Company, in the
course and conduct of its business operations, purchased
and received at its Greensboro facility goods and materi-
als valued in excess of $50,000 directly from points out-
side the State of North Carolina and shipped products
from its Greensboro facility valued in excess of, $50,000
to points located outside the State of North Carolina. I
conclude and find that Bates Nitewear - Company is an
employer engaged in commerce and in operations affect-
ing commerce within 'the meaning of Section 2(2), (6),
and (7) of the Act.
The complaints allege, Respondent admits, and I con-
dude and find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. BACKGROUND
Bates operates several plants in North Carolina includ-
ing the Bessemer Avenue plant in', Greensboro, the only
facility involved herein. The Bessemer plant houses of-
fices of,Robert Thurman Johnson, the vice president of
manufacturing, manufacturing staff offices, the trim
warehouse, the sewing and stitching department, and
' All dates are in 1985 unless otherwise specified.
1130 DECISIONS OF THE NATIONAL LABOR' RELATIONS BOARD
two sewing rooms. The trim warehouse is supervised by
Ron Gilbert. The sew and stitch department is super-
vised by Darryl Seals. One sewing room is supervised by
Henry Bowman; the other by Mike McCray.
On 29, August the Union began an organizational drive
'to represent the plant employees. -The first effort was a
union- leaflet distributed to employees as they left work
in the afternoon. A second leaflet was distributed to em-
ployees on 5 September. This distribution 'Was followed
by--the first organizational meeting of employees that
evening. -Union authorization cards were distributed at
the meeting. Extra -cards wei'e^ given to employees ' at-
' tending the meeting for -distribution to other employees.
Gerald Lambert was `the lead ,union supporter through-
out the campaign.2
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. R. Thurman Johnson
R. Thurman Johnson testified that, as vice president of
manufacturing , he is responsible for five plant operations.
Johnson became aware of the union activity ,the first day
the Union distributed leaflets ` to. employees at Bessemer.
Since the first distributions , the Union has handbilled em-
ployees just about every week. He has seen employees
and union representatives distributing the leaflets.
Johnson stated that the sewing rooms are noisy and
normal conversations' must be conducted within 2 feet in
order to hear.
Although the immediate supervisors are responsible to
maintain order in " their 'respective departments , Johnson
has the final authority on all discipline and company
policies. Pursuant to his authority on_ 6 June 1984 , he had
a "Statement on Unionism" posted on the bulletin board.
The posting followed his acquisition of the statement at a
trade , show and an incident involving a recalcitrant em-
ployee who, during a verbal altercation on the plant
floor, stated that the employees needed, a, union. The
poster embodied Johnson 's', feelings concerning unions
and after the, incident he had copies made and posted in
several of ., the plants, including Bessemer Avenue. With
the advent of, the Union's campaign in August 1985,
Johnson had additional copies of the statement made and
posted , in the Bessemer Avenue plant because the union
activity-among employees was on the increase.
In, early September , May, Richardson went to John-
son's office and reported that she was being harassed at
her work station by Ruth Ayers . Evelyn Overman also
.complained to Johnson that she ,was being, bothered at
her machine and harassed by Ayers. Overman stated that
Ayers kept talking to her about the Union and wanted to
know if there was anything that could be done to get her
to stops Olga Pepper also made a complaint to Johnson,
but he could not remember ' which employee was the'sub-
ject of the complaint. `Johnson said there were other 'e"m-
ployees who made ' domplaints but he could, not remem-
ber' who they were . He made no written record of the
complaints or the specifics' of the ' complaints . Johnson's
2 These facts are gleaned from uncontroverted testimony of several
witnesses.
reasons for making only mental notes was to preserve
the confidentiality of the complaints., - -
Based on the complaints he had received, Johnson sus-
pended Carolyn Johnson and Ruth Ayers on Friday, 6
September. Ayers was suspended early in the day and
Johnson at the end of her shift at 4 p.m. Johnson called
Ayers to his_ office and she was accompanied by Supervi-
sor Mike McCray. Johnson did not solicit Ayers' version
of the events nor` allow her to tell her side of the story.
He told Ayers that it had been reported to him that she
was bothering people at their work stations concerning
the Union and interfering-with their work. Johnson told
Ayers that she would be suspended for 3 days without
pay, Ayers responded, "Okay," and Johnson implement-
ed the discipline. Carolyn Johnson was suspended for
taking up production time of employees- and trying to
force her opinion about the-Union on other employees.
Johnson did not ask for the employees' versions of the
events nor did he allow them to ' give -their versions.
Johnson suspended Carolyn Johnson''for 3 days and she
responded by shrugging her shoulders and saying
"Okay:
The suspensions of Ayers and Carolyn Johnson were
pursuant to the "Statement on Unionism" that was
posted in the plant despite the fact that the statement had
not previously been enforced. , The reason Johnson en-
forced the statement at this time was that "the-Company
will, not allow some things. People have a right to be left
alone and perform their jobs. These people are paid by
production, and interference with their work takes
money out of their pockets." If employees were harassed
about Tupperware and half a dozen people complained
about the harassment; -Johnson would suspend the em-
ployees bothering people at their work station.! Without
regard for the posted "Statement on Unionism," there is
no- policy that -proscribes solicitations by employees -or
supervisors during working hours in ,the plant-for prod-
ucts such as Avon, Tupperware, peanuts, popcorn, PTA,
or tickets for musical bands. Johnson himself has en-
gaged in such retail solicitations-among employees. John-
son would, not consider such solicitations as -interference
with production or employees' worktime. Employees
would be allowed up to, 15 minutes to peruse catalogs or
in some fashion to develop a sale among coworkers.
Only if Johnson thought the selling approached harass-
ment would he put a stop to it and consider discipline.
On 26 September, 'Supervisor McCray reported to
Johnson that Geslia Garner, a sewing room supervisor,
had disciplined Daisy, a roving inspector, for,spending
too much time'at each machine. Daisy`,,was talking to the
operators rather than- inspecting' the product Garner
went to Daisy who was in the vicinity of Gladys Lam-
bert and told Daisy, "You need to spend more time
working and less time talking." Lambert; who was not
involved, turned to Garner and asked, "What are you
telling her that' for." Whereupon Garner reported the in-
cident to McCray. Both McCray and Johnson consid-
ered Lambert's conduct insubordination; Johnson called
Lambert to' his office` and, without affording Lambert
any chance to explain, suspended her' that day'' Johnson
BATES NITEWEAR CO.
stated that with insubordination there is no discussion.
Gladys Lambert is the spouse of Gerald Lambert.
The following day Johnson posted a memorandum
prohibiting distribution of written materials in working
areas of the plant. The posting was prompted by a rumor
that the prounion employees intended to handbill em-
ployees inside the plant rather than outside as in the past.
Johnson had observed Gerald Lambert, Helen May, and
Judy Cayton distributing union literature outside the
plant so he had additional copies of the memorandum
printed and instructed his supervisors to personally give
the memorandum to Lambert, May, and Cayton.
B. Helen May
Helen May testified that she has been a sewing ma-
chine operator for 8 years. May presently works in the
sewing room supervised by Henry Bowman and Hilda
Keiser. In late September while she was working, May
overheard a conversation between Supervisor Keiser and
the adjoining operator, Linda Cisson. Keiser told Cisson
that if the Union got in, the plant would close down and
the employees would have to look for other jobs. Some-
time later Keiser came to May's work station with a clip-
board containing the 27 , September memorandum. Keiser
gave the memo to May to read. After reading the memo,
May asked Keiser what that had to do with her. Keiser
replied that she was told that May had been passing out
literature in the parking lot. May denied passing out lit-
erature and Keiser said, "Well, I told Henry that I didn't
think you had." Later Keiser came to May's machine
and said that the operators supervised by Ella Faison
were the ones causing the trouble. Keiser said she did
not think that her operators wanted the Union. Keiser
told May that if the Union got in the plant would close
down and that she was going to see if she could find an-
other job. May did not reply and Keiser walked away.
During November, May had a telephone conversation
with her sister, Jean Horne, a supervisor in the other
sewing room. Horne told May that an operator had ac-
cused her of assigning the better production work to em-
ployees that were prounion and giving the nonunion em-
ployees work that was not productive of incentive pay.
Horne reported the incident to McCray and he told her
that she did not have to put up with that from the em-
ployees. The subject employee was not disciplined for
having questioned the judgment of her supervisor,
Home.
C. Judy Cayton
Judy Cayton testified she worked in the trim depart-
ment under the supervision of McCray and Home for 2
years. Cayton read the memorandum' prohibiting distri-
bution of written materials when it was posted. Later she
went to McCray for permission to use the phone and
before he responded to her request, he held up the
memorandum before her and told her she needed to read
it to stay out of trouble. Later Cayton, joined by Debo-
rah Turner, went to'McCray. Cayton asked McCray if
the working areas, included the canteen, bathrooms, and
parking lots. McCray told Cayton' she knew what it
meant and Cayton asked if it meant parking areas.
1131
McCray replied that was what it meant. Cayton was one
of the employees who handbilled for the Union in the
parking lot. She continued handbilling in the parking lot
after her conversation with McCray without incident.
D. Ruth Ayers
Ruth Ayers testified she has worked 12 years at Bates
and presently is a roving inspector under Supervisors
McCray and Joe Minette. She first became aware of the
union campaign when the employees were handbilled as
they left work. May Robbins rode with her and they
both got a leaflet as the organizers approached Ayers'
car. Ayers immediately read the opening statement on
the leaflet that said, "You need a union ." Ayers ex-
plained aloud, "Good Lord, yes, we need a union." She
then turned and saw Thurman Johnson standing 2 feet
behind her. Ayers got in her car and read the rest of the
leaflet. Johnson was policing the parking lot to keep the
handbillers from encroaching on company property.
The following week a second leaflet was distributed
and Ayers again got a leaflet. After receiving the leaflets
she spoke with her coworkers in the lunchroom before
work. Several employees told Ayers they wanted no' part
of a union. That same evening at lunchbreak she spoke
with other employees about the Union . She and the em-
ployees discussed the propriety of going to the union
meeting scheduled for that evening. The next day,
Friday, 6 September, Ayers discussed the Union with
Linda Robbins, a sewer, about II a.m. Robbins was
sewing and Ayers was inspecting her work. Robbins
brought up subject of the Union. Ayers asked Robbins if
she was trying to get her to talk union so Robbins could
go tell Thurman. Robbins said, "Ruth, I wouldn't do
that." Robbins, "added if you all, don't vote the union in,
you're crazy." Ayers asked her if she would and Robbins
said, "Yes." Robbins then asked Ayers if she would and
Ayers responded, "yes." Ayers then moved to the next
machine to inspect. The conversation with Robbins con-
sumed 2 to 3 minutes and took place while Ayers in-
spected the work. Ayers' shift ended that Friday at
noon.
At no time during the union campaign did Ayers dis-
tribute or solicit employee signatures on union cards. She
did not possess any union cards at any time. Ayers at-
tended the union meeting that evening and signed an au-
thorization card for the Union. The following Monday,
Ayers reported for work. At 7:15 a.m., McCray sum-
moned Ayers to report to Johnson's office. In McCray's
presence Johnson told Ayers she was suspended ' for 3
days for soliciting for the Union. Ayers was' shocked at
the suspension and said nothing. She just got up and
walked out. This suspension was the first discipline
Ayers had ever received. Ayers denied that she con-
versed about the Union with May Richardson, Evelyn
Overman, or Olga Pepper during working hours. None
of the three ladies work in Ayers' department nor has
Ayers worked in their departments within the last year.
E. Deborah Turner
Deborah Turner testified she has worked at Bates for
2 years and works beside Judy Cayton. Turner was
1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
asked by Cayton to accompany her to McCray's office
for a_ clarification of the 27'September memo on distribu-
tion of- written materials in the plant. Turner accompa-
nied- Cayton to McCray. Cayton asked McCray does the
memo mean the canteen, the bathroom, and the parking
lot. McCray said she knew what it meant. Cayton asked
again and received the same reply from McCray. Cayton
asked a third time and McCray replied, "That's what it
means." The conversation then ended.
F. Carolyn Johnson
Carolyn Johnson testified that she has been employed
for 3 years and works as a recutter under supervisors
Darryl Seals and Clara Hinson . Carolyn first became
aware of the union campaign on 30 August when she re-
ported for work . Several employees in the cafeteria
before work asked her if she had gotten the union leaflet
the day before. She had not seen the handbilling when
she left work . At this time, she .and the other employees
discussed the Union . The next Tuesday at lunchtime in
the cafeteria Carolyn joined her usual group and during
lunch they again discussed the Union . On Thursday,, as
she was leaving after her shift, Carolyn, Johnson did re-
ceive a union leaflet . She was seen by Thurman Johnson
and Bill Hemphill getting the leaflet . In the cafeteria the
following morning before work, Carolyn had a discus-
sion about the Union with her coworkers . She was asked
why she had not gone to the union meeting the night
before. Carolyn explained that her car was not running
so she had no way to go. Sue Wise, one of the employ-
ees, told Carolyn she had a union card for her and
would give it to her later . When the employees met in
the cafeteria on break, Sue said that she had the union
card at her work table . Carolyn followed Sue to the
work table, got the -card , signed it, and returned it to
Sue. Sue also gave Carolyn some additional cards that
Carolyn put in her purse under her table. Although she
had the, extra cards, Carolyn did not solicit any employ-
ees to sign . She later threw the cards into her trash at
home.
With the exception of the several union conversations
in the cafeteria, Carolyn did, ,not discuss the Union with
other employees in the plant . That afternoon Hinson
summoned Carolyn to Seals' office who in turn took her
to Johnson 's office. Johnson told Carolyn he was giving
her oral notice of a 3 -clay suspension for soliciting for the
Union on company time and company property . Carolyn
said she did not understand and asked Johnson to explain
the situation to her. Johnson said he did not have to ex-
plain anything to her and told, her to leave his office.
Carolyn said , "Fine," and left Johnson 's office and re-
turned to work . Seals then came to her and informed her
she had to leave the plant right away and escorted Caro-
lyn from the plant . Monday, the next workday , Carolyn
called Seals at the plant . She asked for a written explana-
tion of her suspension . Seals , said he would talk to Thur-
man Johnson and told Carolyn to call him back. The
next day Carolyn called Seals and he told her that Thur-
man said the suspension was,oral and could not be put in
writing. Seals then asked Carolyn if she would be report-
ing ' for work on Thursday . She said she would ' and the
conversation ended.
When Carolyn returned to work, she was consciously
aware that Seals and Hinson were watching her. Carolyn
stated that it was obvious after her suspension compared
with the conduct of Seals and Hinson before her suspen-
sion. Seals and/or Hinson would frequently appear
behind Carolyn and stay in that position. Whenever Car-
olyn's eyes met those of Seals or Hinson, the supervisors
would turn away. This situation lasted for a period of 2
weeks after Carolyn returned from her suspension.
Carolyn could not recall any past incidents when
either Seals oT Hinson had to verbally reprimand her for
being out of her own work area or being in a work area
where she did not belong. With the exception of an
aborted no-talking rule of which the supervisors tried to
impose departmentwide, Carolyn could not remember
being reprimanded for talking to coworkers at her table.
G. Gladys Lambert
Gladys Lambert testified that she has worked at Bates
for 1-1/2 years. She sews shoulders and is supervised by
Geslia Garner and Mike McCray. Lambert was present
when the first union leaflets were passed out. She joined
the Union and passed out union leaflets and cards both
inside the plant and in the parking lot. Inside the plant
she distributed 'the, union cards and leaflets in The cafete-
ria or restroom during her breaktime. She did this about
a week before her suspension. Outside the plant she dis-
tributed 'union cards and leaflets for about an hour after
her shift. Both Thurman Johnson and Mike McCray had
observed her distributing the union handouts in the park-
ing lot about 2 weeks before her suspension.
On 25 September about 2:40 p.m. Lambert was talking
to Daisy Howe who was inspecting the work of the
sewer behind Lambert. The two were talking about
Pennsylvania, their home State. Lambert noticed that
Garner and McCray were watching she and Daisy.
Howe spent about 5 minutes inspecting the work and the
two talked that period of time. As Howe moved to the
next machine behind Lambert, "Garner came to her, and
talked to her. After Garner left, Lambert asked Howe
what Garner had said. Howe told Lambert that Garner
told her to do a little more work and less talking. Lam-
bert then got up from her machine and went to Garner.
Lambert asked Garner why Howe could not talk' to her
when they both were doing their work. Garner replied
that it was not just her, Howe had to stop talking to ev-
eryone. Lambert said, "Okay" and went back to work.
The incident was not mentioned by Lambert or Garner
again.
The next day Lambert noticed that Garner was watch-
ing her more closely than before. About midmorning
Garner asked Lambert to accompany her to Thurman
Johnson's office. Bill Hemphill `and Mike McCray were
also present. Johnson told Lambert that she was suspend-
ed for 3 days for insubordination to her supervisor. Lam-
bert asked Johnson if she could tell her husband and give
him his lunch before she left. Johnson said, "she could
not." Lambert asked for her timesheet and was given a
photocopy of the sheet. McCray then escorted Lambert
out of the, plant. Lambert went to the union hall and
called her husband at the plant telling him she would
BATES NITEWEAR CO. 1133
meet him outside at lunchtime. Lambert did meet her
husband at lunchtime and, while both were on the out-
side steps to the plant, Thurman Johnson and Mike
McCray appeared and told Lambert she was suspended
and would have to get off company property. Lambert's
suspension of 26 September was the first discipline she
had received during her employment.
H. Brenda Reed
Brenda Reed testified that she has worked at Bates for
5 years, Her mother, Helen May, and aunt, Jean Horne,
also work at Bates. Reed became aware of the union ac-
tivity at the plant when the Union distributed literature
to employees. In mid-October, Reed was working at her
machine and her supervisor, ' Hilda Keiser, spoke to her.
Keiser asked Reed if she had found another job. Reed
asked why. Keiser replied, "Because if the union got in,
they would close the doors." Reed did not' respond and
Keiser said nothing more.
1. Daisy Howe
Daisy Howe testified that she has been a quality con-
trol inspector at Bates since September 1985. She is su-
pervised by Geslia Garner and Mike McCray. Howe re-
called a conversation with Gladys Lambert in late Sep-
tember while she was inspecting the work of the sewer
behind Lambert. The two talked about Pennsylvania and
the family both still have there, The conversation lasted
between 5 and 10 minutes. During the conversation,
Howe noticed first Garner watching her and Lambert
then McCray joined Garner and both watched the two
talk. After Howe finished inspecting, Garner came to her
and told her to do -less talking and more work. Howe
told Gladys what Garner had said to her. Howe went
about her work and did not see what Gladys `did next.
The following morning Howe told Lambert that Garner
and McCray probably thought the two were talking
union the ' day before. Garner had never admonished
Howe for talking while inspecting before, however,
Lambert was a more active union supporter than other
employees. Lambert's union activity was known to man-
agement because they saw her distributing union cards to
employees.
J. Carla Susan Wise
Carla Susan Wise testified that she has worked at
Bates for 2 years under Supervisors, Clara Hinson and
Darryl Seals. Wise learned of the union campaign when
handbilling of-employees began. Less than a month later
and following a company meeting in the cafeteria, Wise
was working when Hinson came to the work area and
asked the employees what they felt about the Union.
Wise replied that' she did not know anything about it.
Sometime later, a group of employees were discussing
the Union on the plant floor. Wise was in the group and
felt the thrust from both prounion and antiunion employ-
ees. During the discussion, HHinson's name came up.
Hinson overheard her name used and ' asked Wise how
her name came into the discussion. Hinson and Wise had
difficulty hearing. each other so Hinson suggested that
Wise call her on the phone. Wise did so and told Hinson
that her name came up in the discussion because of her
relation to Thurman Johnson. Shortly thereafter, Wise
was walking through the plant and heard Seals talking to
two bundle boys. Seals told the two bundle boys that if
the Union got in, the plant would be closed. Wise later
asked one of the bundle boys what Seals had said. He
told Wise that Seals said that if the Union came in the
plant would close.
Wise became troubled with her involvement in the
union discussions and spoke to Hinson and Seals. She
told them she did not want to quit nor did she want to
be fired, and something had to be done about her prob-
lem. Without recalling how she got there she ended up
in Thurman Johnson's office. Johnson asked her what
the problem was and Wise said she was getting it from
both sides. Thurman Johnson asked Wise if Carolyn
Johnson was the employee harassing her. Several em-
ployees were mad because they thought she was giving
their names to the Union. Wise told Johnson that it all
started with a paper given her by the union representa-
tive. Johnson asked to see the paper and Wise retrieved
the paper from her car and gave it to Johnson. The
paper, was the General Counsel's complaint. Johnson
asked Wise for the names of any employees causing her
trouble and Wise named Bertha Winstead and Jaynell
Moore.
K. Gerald Lambert
Gerald Lambert testified that he had worked at Bates
as a bundle boy under supervisor Jonell Minette and
Mike McCray until the month of October. Lambert
became active in the Union following the first union
handout in the parking lot. He attended all the meetings,
handbilled employees in the parking lot, distributed
union authorization cards to employees, and -engaged in
discussions about the Union with employees. Three or 4
weeks after' the first union distribution, Lambert and his
wife Gladys passed out union authorization cards to em-
ployees-in the parking lot. Several employees signed the
cards on the spot and returned them to Lambert. While
he and Gladys were distributing the cards, Thurman
Johnson and Mike McCray came outside to observe
them.
As a bundle boy, it was Lambert's job to pick up gar-
ments and move them from one department to another.
He also distributed rework items mong several depart-
ments. On all occasions, his pickups and deliveries were
made directly to the machine operators. Lambert was
never told he could not talk to the operators while
working, in fact, McCray told him to do whatever it
took to keep the girls happy. Lambert stated that each
time he was at a work station he engaged in conversa-
tion with the operator for 1 to 5 minutes. On only one
occasion in September after the union campaign started,
while he was talking to an operator in Garner's depart-
ment, she came'over to him and told him to move on out
of her department. Lambert was not actually making a
pickup or a delivery but was only passing through. That
was the only time Lambert was told by a supervisor to
leave any department.
1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
When the distribution memo was about to be posted in
the plant, Lambert was approached by McCray. Lambert
testified:
Q. Mr. Lambert, I will show you what has been
marked and received into evidence as General
Counsel's Exhibit No. 2. Have you ever seen that
document,General Counsel's Exhibit 2 before?
A. Yes, I have.
Q. Would you tell the Court how this document,
General Counsel's Two, first came to your atten-
tion?
A. Yes, I was working in the side closing depart-
ment and Mike McCray and JoNell Minette came
up to me. Mike had it in his hand and said, "Gerry,
read this and it'll save you some trouble later on."
He held it up in front of me. I wanted to reach it
and hold it in my hand and he wouldn't let me take
it. So, I read it. He said, "Did you read it?" I said
yes, and he proceeded to put it up on the bulletin
board.
L. Geslia Garner
Geslia Garner testified that she has been a supervisor
15 years and supervises Daisy Howe, Gladys Lambert,
and, until recently, Ruth Ayers. On 24 September
Garner was watching Howe as she inspected the opera-
tors' work. Howe was doing too much talking to the op-
erators. On several occasions she stayed at an operator's
machine for 30 minutes. The usual time to spend inspect-
ing each operator is about 10 minutes.
The following day Howe was still talking so Garner
reported it to McCray and told him to watch it for him-
self. After lunch that day, Garner observed' Howe con-
tinuing to, talk excessively and reported it to McCray. He
told Garner to tell Howe to do more work and less talk-
ing. Garner continued to watch Howe and, after the
afternoon break, Howe was standing behind Gladys
Lambert's machine for 30 , minutes. Garner went to
Howe and told her she had to do a little bit more work
and a little less talking. Howe said, "Okay," and Garner
went,back to her desk., Within a short while Gladys
Lambert came to Garner and asked, "Why did you tell
Daisy not to talk to me?" in a harsh and, loud voice.
Garner replied that she had not told Howe not to talk to
Lambert. She just told her she had a job to do and could
not do that much talking. As Garner was responding to
Lambert, 'she was returning to her work station walking
in an angry way. Lambert just turned away real quick
and,walked out.
Garner reported the incident with Lambert to McCray
who decided to suspend Lambert. Garner did not recom-
mend suspension, although the incident with Lambert
was, the first time an , employee questioned Garner's deci-
sion about anything. Garner stated then she was offended
by Lambert's conduct. Operators have in the past
become upset over something and raised their voices to
Garner and she immediately took them to McCray. He
would tell the employees that it should not happen again
and, that ended it. No employee' before has been suspend-
ed for becoming upset and raising their voice to Garner.
Garner recalled the incident when she asked Gerald
Lambert to leave her 'section. Lambert was standing and
talking to one of the machine operators. After he had
been there for a few minutes, Garner went to him and
asked him to leave her section. Lambert was not a
bundle boy for Garner's section.
M. David Michael McCray
David Michael McCray testified that he is a depart-
mental supervisor and has several section supervisors
who report to him. Among those reporting to him are
Geslia' Garner, JoNell Minette, and Jean Horne. McCray
previously worked for Blue Bell and while there learned
a technique known as delay study to evaluate employees'
performances. Simply put, the technique involves obser-
vation of certain employees at different times of the
workday from different vantage points. McCray used
this technique to observe Daisy Howe on 25 September
after Garner had reported Howe's excessive talking.
McCray observed that Howe was talking to operators
rather than inspecting the work. McCray stated even
though Howe picked up garments in her hands, she was
not looking at them, but did go through the motions of
turning the garments over in her hands. McCray later
told Garner to instruct Howe to do a little more work
and a little less talking . Garner did so and that afternoon
reported to McCray that Lambert had come to her desk
and asked, in a rather upset fashion, why Howe could
not talk to Lambert. McCray asked Garner what answer
she gave to Lambert. Garner said she told Lambert it
was not just her, that Howe was to limit her talking to
everybody. McCray said Garner was upset that Lambert
had questioned a decision not directly related to Lambert
but to another employee. McCray told Garner he would
take it up with Thurman Johnson the next morning.
McCray did go to Johnson and in spite of the fact that
Lambert was a good employee with a good work histo-
ry, he recommended Lambert be suspended for insubor-
dination. Johnson told McCray to summon Lambert to
the office, which he did, and Johnson suspended her, a
notation of "suspension" was placed in Lambert's person-
nel file.
McCray received the distribution memo of 27 Septem-
ber to take to the production floor. He sought out Judy
Cayton. McCray held the notice up in front of her and
said , "Judy, I would like for you to read this. I think it
would help keep you out of trouble." Cayton looked at
it, shook her head, and walked off. McCray had seen
Cayton handbilling in the parking lot but only heard that
she would handbill inside the plant. McCray also heard
that handbilling had actually taken place inside the plant
and stated that the distribution memo was shown to the
employees that we knew were involved in handbilling.
Later Cayton asked McCray what the notice meant.
McCray told her she knew what it meant. Cayton asked,
"Does that mean cafeteria, bathrooms, and parking lot?"
McCray replied, "No ma'am. In all areas in which work
is done." McCray then walked off. McCray stated the
roving inspector worked in all departments with the ex-
ception of Daisy Howe who was hired for the one de-
partment. Ruth Ayers, as a roving inspector, worked in
BATES NITEWEAR CO.
Jean Harris' department where Evelyn Overman and
Olga Peppers worked.
McCray acknowledged that in the past when employ-
ees became upset, disrespectful, or raised their voices to
Gamer or, other supervisors,- he would discuss the situa-
tion with the employee and admonish them not to let it
happen again. Previously only one employee had been
disciplined for insubordination and that'-employee was
terminated for refusing to do any assigned task. McCray
reported the incident to Johnson who told him ` to do
what he had to do. McCray then told the employee to
perform the task and although the employee started the
task he did not finish it, McCray then terminated him.
McCray was aware of the -circumstance couched in,a
rumor that Jean Horne was favoring prounion employees
over antiunion employees by _assigning the best work to
the prounion employees. Olga Peppers had questioned
Horne, about the favoritism and Home reported the inci-
dent to McCray. McCray treated Peppers' objections as
a question and explained the procedure he had outlined
for the department's production to Peppers. He did not
discipline or reprimand Peppers for questioning her su-
pervisor's job assignments, McCray 'stated, "Because it
was placed as ,a question, I answered it as a question."
An additional employee, Edward Smith, was disregard-
ing Garner's instructions on delivery of bundles to be
worked and was delivering bundles in the area with the'
expressed desires of the operators.' Garner reported the
incident to McCray and- he simply told Smith that he
should do what his supervisor tells him to do and 'not
what the operators ask him to do otherwise he would
get into trouble.
N. Hilda Keiser
Hilda Keiser testified that she supervises Helen May,
Carol Reed, and Linda Cisson. Keiser, denied that she
had a conversation involving the Union with Reed or
May. She further denied that May could have overheard
a union conversation between Cisson and herself because
May wears earplugs and listens to,the radio all day like
most of the other employees. Keiser did acknowledge
that May, who normally sits' six machines away from
Cisson, was sitting directly across from Cisson because
May's machine was broken and off the line. Reed and
May have both- worked for Keiser for 4 or 5 years. In
September or October, Keiser' did talk to May about' the
pay and benefits available at the Colosseum ' and May
told her that Reed was going to apply. Keiser laughed
and said she thought she might go too since they are
paying that much. Keiser, .was then prompted to talk to
Reed about the Colosseum employment. ' Keiser did
admit to a conversation with Reed about applying for
work at the Colosseum, but states that the conversation
was limited to an inquiry whether Reed was - going to
apply for work with no mention of the Union,. Keiser of-
fered no suggestions to Reed in the conversation.
Keiser received a copy of the 27 September distribu-
tion memo from her'boss; Henry Bowman. Bowman in-
structed Keiser to give it to Helen May because he had
been told that May was distributing union literature in
the parking lot and was going to start distribution inside
the plant. Keiser, as' instructed, presented the memo to
1135
May and told her what Bowman had said . May denied
any distribution and asked , "Who told you that?" Keiser
said she did not know who but it was one of Ella Fai-
son's girls.
Keiser had seen Judy Cayton . with union literature in
the parking lot and reported it-to Thurman Johnson sev-
eral weeks after the union campaign" vvas underway.
Keiser had also received a handbill from a union organiz-
er who was distributing them in the parking lot.
0. Clara, Hinson,
Clara Hinson testified that she has been a supervisor
for 5 years. Carolyn Johnson and SueWise work in Hin-
son's department, -Hinson had never disciplined Carolyn
for talking, although she had told bundle boys and some
operators to leave Carolyn's table. Carolyn's worktable is
in the center of the department and she does recutting
for any operator that needs the product recut. Hinson
was not aware of any harassment in her department nor
Was she -aware that Carolyn was soliciting for the Union.
Hinson daily roams through the department checking the
work of all the operators. Hinson did not know Carolyn
was suspended until after, it happened.' Darryl Seals told
Hinson-'that Carolyn had been suspended for 3 days' for
soliciting for the Union, Hinson has never suspended any
employee, and Carolyn is the first employee to be sus-
pended in her department. Carolyn has been a reliable
employee and has not caused any problems.
Hinson recalled that she has had about four or five
conversations with Sue Wise. The first conversation oc-
curred the morning after the first union handbilling in
the parking lot. Sue asked, Hinson how she felt about the
Union. Hinson replied, "Well, in my opinion, it's trash.
I'm for Bates Nitewear, myself" That was all that was
said.' Hinson denied that she asked Wise how she felt
about the Union. The second conversation occurred after
the second union meeting about mid-September. Wise
started the conversation by telling Hinson `she had some-
thing to tell her but people were watching. Hinson sug-
gested to Wise that the next time she goes to the bath-
room to call her on the phone. Wise called Hinson on
the phone. She told Hinson that she would not believe
the things being said about her at the union hall. Hinson
asked, "What things?" Wise said, "People are saying that
because Hinson is Thurman' Johnson's mot tier-in-law that
she has no business being in management," Wise added
that Hinson needed to watch 'herself because people
were `watching her. Hinson responded, "So what.?" 'and
the conversation ended.
Hinson testified about another conversation with Wise
that same day:
A. I think it was the same day she called me on
the phone' she told me ,that I wouldn't believe what
,one of the union men was trying to get her to do. I
said, "What's he trying to get you to do?"
She said, "Oh, well-," I said, "Well, what is it,
Sue?" She said, he was trying to get her to get him
some drugs. I said, "*Well, did you?" She said no.
She said that they was trying to get her to sign a
paper saying that she would testify on Carolyn's
1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
behalf and she didn't want to do it, and that herand
her,mother'had already seeked a lawyer.
'Q. Was there anything else said in that conversa-,
tion?
A. Then, a couple of days later, I asked her, I
said, "Has your friend called you any more?" And
she said, "Oh, yes. He calls quite often."
She said that she had got a letter and some things
that she needed to memorize to say when they had
the hearing and that she didn't want to do it.
She also asked me if I could get her out of
having to come up here and appear at the hearing.
Q. Any other conversations that you had?
A. Well, she had been into two run in's out on
the floor. One was her and some girls had got into
it over some Work out there, which we had to call
to the office.
Q. When you were calling Sue into the office,
what was going on that you had to call her into the
office?
A. Well, her and this other girl had got into it
over the work or something and there was some
cussin' going on out on the floor, I mean, it was out
there.
Q. Did you hear her doing this?
A. Yes.'
Q. Did she say anything ugly to you?
A. She did not.
,Q. Did she raise her voice to you?
A. No, she didn't.
Q. You took her and the other girl into the
office?
A. Yes, I did.
Q. Who was the other girl?
A. Bonita Winstead.
Q. Who did the talking to them?
A. Darryl Seals.
Q. Did Darryl tell them that it had better not
happen again?
A. Yes, ma'am.
Q. Then, he sent them back to work?
A. Yes, ma'am.
Q. He told them that he was not going to put up
with hollering and cussing out on the floor?
A. Right.
Q: He told them that he didn't do like that and
he wasn't going to put up with them doing like that.
Isn't that right?
A. He just said that he wasn't going to put up
with it, out on the' floor.
Q. (by Mr . Pearlman) Were you involved in any
other discussions Mr. Seals had with Ms., Wise?
A. Yes, I did. At one time, Sue and the bundle
boy got into it. I heard it. They were discussing it,
and I went to Darryl and told him that Sue and
Roy Smith had got into it out on the floor, so he
told me to go get- them ' and bring them to the
office, which I did. And, Sue was upset because she
said that some of the union people was harassing
her.
Q. Who did she tell that to?
A. To me, and Darryl.
Q. They were, taken to the office?
A. Yes, ma'am. We took them to the office.
Q. Did she cuss and holler that time?
A. They were having words.
Q. Did you hear the words, they were having?
Was she cussing?
A. Yes, ma'am.
Q. Was he cussing?
A. Yes, ma'am.
Q. You described a conversation where Sue said
the union people were harassing her. Is that right?
A. That's what she said.
Q. When did that happen?
A. It'was whenever there was a hearing coming
up. I don't know whether it was to this one or an-
other hearing they had.
Q. Do you remember the circumstances of Sue
complaining to you that people were harassing her?
Where were you when she did that?
A. At her machine.
Q. What were you doing at her machine?
A. I check, I browse through the room all day
long, checking the work. -
Q. How did it come up that Sue was being har-
assed?
A. Well, she just told me.
Q. What did she say?
A. She just told me that a lot of people was-
that she, had been called up to the-union hall, and I
believe she said Bethel Winstead and Jaynell Moore
was up there and they was wanting her to sign a
paper saying that , she would testify on Carolyn's
behalf.
Q. You said she said she could not tell you who
was harassing her. Isn't that your testimony?
A. Well, that one time, she told me that, but this
was at another time.
Q. Well, let's go back to the time she told you
she couldn't tell you who it was.
A. Well, she didn't want to tell me, but, she did.
Q. So, we are talking about one conversation
where she said that people were harassing her. She
did not want to tell you, but then she did?
Q. Did you ask her who was, giving her a hard
time?
A. Yes, I did,
Q. Is that when she told you, who it was?
A. Yes, she did.
Q. But, she did not want to tell you at first? But,
you asked her to go ahead and tell you?
A. I asked her, I said, Well,'who is it?
Q. How long ago has that been?
A. Oh, I imagine about three or four Weeks ago.
Q. For what purpose did you want to know who
was harassing her?
BATES NITEWEAR CO. 1137
A. I just wanted to know who was harassing her
because I didn't know nothing about harassing
nobody.
Q. To your knowledge, there was no harassing
going on?
A. I didn't know nothing about it, no.
Q. As far as you know, there was not any harass-
ing going on. Nobody was harassing anyone else
out there?
A. That's right.
Q. You were not aware of any problems that
Carolyn was causing-prior to being suspended, were
you?
A. No, I wasn't aware of any.
Q. Who told you that she had been suspended?
A. Darryl Seals.
Q. What did Darryl tell you?
A. He told me - that she had been suspended for
three days.
Q. For, what?
A. For soliciting for the union.
Q. You were not aware of that, were you?
A: No, I wasn't aware of it.
(. Is there a great deal of foul language used out
on the floor?
A. No, just once in a while. There might be an
outburst.
Q. Do people sometimes use cuss words in their
conversations out on the floor to your knowledge?
A. I'm sure, sometimes.
Q. Most people do it, don't they?
A. Yes.
Q: You have done it, have you not?
A. Haven't you?
Q. You' have to answer my questions.
A., Yes, I've done it before, yes.
Hinson denied that she began watching Carolyn when
she returned to work from her suspension. Hinson did
not know that union solicitation had occurred and she
was not curious as to how she could have missed it oc-
curring.
P. Darryl Seals
Darryl Seals testified that he supervises Clara Hinson's
department. Seals stated that Carolyn Johnson had been
disciplined several times for talking too much. He has
told Hinson to discipline Carolyn for talking and Hinson
has also done so on her own. This discipline occurred in
late September. Seals has also told employees Bertha
Winstead, Bonita Winstead, Sue Wise, and Frank Price
to leave Carolyn's work station and get back to their
own station: Seals did not know that Carolyn was going
to be suspended. Thurman Johnson called him and told
him to bring Carolyn up to the office. Thurman, Johnson
told Carolyn she was being suspended for 3 days for
bothering people about the Union at their work station
on the job. He did not say anything else. Carolyn said
she did not understand and Thurman said that was all he
had to say . Thurman told her to get out of his office and
she turned around and left . After Carolyn left the office,
Thurman Johnson and Seals discussed the suspension,
but Seals denied that he was told to keep an eye on
Carolyn when she returned to work.
Seals testified to several conversations with Sue wise
as follows:
Q. Have you ever had any conversations with
Sue Wise?
A. Yes, sir.
Q. How many did you have?
A. Three that I can recall.
Q. Can you tell us about them, starting with the
first one, and where was it?
A. The first conversation, I went to her depart-
ment. Upon entering,, I heard an outburst. I heard
cussing. I saw arms up in the air. It was coming
from her machine.
Q. Who?
A. Her machine , Sue wise and Bonita Winstead. I
at that time, told the supervisor, Clara, to bring
them to my, office.
Q. What did you say?
A. I told Sue and Bonita both, that cussing, abu-
sive language at the work stations would not be tol-
erated. They both agreed and they left, went back
to work. -
Q. Was there any mention of the union during
that one?
A. No.
Q. What about the second discussion you had?
A. The second discussion was brought about by a
complaint from Clara to me that Sue and Roy
Smith, one of the bundle boys, had had an argument
and created an outburst and obstruction in the work
place.
At that time, I told Clara to bring them to my
office. The problem at hand was that Roy sup-
posedly told Sue to put her pictures on the buggy.
Sue told him that that was his job and she didn't
have to do that. In an effort to clarify things, I told
both of them what their jobs were and that creating
an outburst in the work place would not be tolerat-
ed. Shortly after that, about 20 minutes went by and
Sue asked to speak with me in private, so I said,
"Okay, fine."_ She came to my office. She said that
she was afraid that her job was in jeopardy because
of the union.
She said that she was being harassed by employ-
ees. She was getting phone calls from the union rep-
resentative and she had a lot of people against her,
and she did not want,to lose her job over that.
Q. Did she say what the phone calls were about?
A. She said that there was, a union representative
that called her numerous times at home, wanted to
take her out and buy her a drink, and wanted her to
buy him drugs and that he called her while she was
not at home and talked to her mother and bothered
her mother, and that her and her mother both, were
going to seek counseling from an attorney. They
1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
were tired and they didn't want to be bothered any
more.
Q. Did you say anything to that?
A. I suggested to Sue that we sit down and talk
to Thurman Johnson. She agreed. At that time,
Thurman was out of town. I told her that I would
speak to Thurman the next morning and we all
three would sit down and talk about the problem,
and of course, we did that.
Q. You had a meeting the following morning.
A. Yes, there was.
Q. Who was there?
A. Thurman, Sue Wise and myself.
Q. To the best of your recollection, tell us what
happened in the meeting.
A. I tried to leave the talking up to Sue, but she
was speechless. "I told Thurman that Sue had come
to me the previous day and that she was concerned
about losing her job. I told him exactly what' she
had told me.
Q. What did you tell him?
A. I told him that she had a union representative
following her, wanting her to buy drugs, wanting to
take her out and buy her a drink, trying to get her
to testify on Carolyn's behalf. I also told him that
she had been counseled twice for discipline prob-
lems, that she was very simply scared °of losing her
job. Thurman, then, asked her if this was correct
and she said yes. She reiterated basically, what I
had said about a union representative calling her nu-
merous times at home.
She ventured on to say that she had been har-
assed by employees in the plant and Thurman told
her that that would not be tolerated. She was look-
ing for some type of relief, either from me or Thur-
man or someone.
Q. (by Mr. Pearlman) Was there any mention in
this conversation of a complaint? Or about some
papers in her car?
A. She told Thurman that she had some-papers in
her car.
Q. What did Thurman say?
A. He asked her to go get them.
Q. Did she?
A. She did.
Q. Did she bring them back in?
A. She brought them back and I made a copy of
them and gave them to Thurman.
Q. Did she give it to Thurman?
A. No.
Q. Can you think of anything else in that conver-
sation?
A. Thurman left it with Sue that he would not
tolerate anyone being harassed in the plant.
Seals keeps his own,personal record of employee disci-
pline that he attaches to absentee records in his office.
He records the circumstances and the date of the inci-
dent for future reference. Seals has seen one of the Com-
pany's disciplinary action forms before, but he does not
use them.
Q. Analysis and Conclusions
The General Counsel has alleged several independent
counts of violations of Section 8(a)(1) including interro-
gation of employees, threats to close the plant, surveil-
lance of employees' union activity, changing of work
rules, and suspension of employees' abilities to carry on
their union activity, Generally, an employer's conduct al-
leged to be violative of the Act is subjected to the.test of
reasonableness (i.e., does the employer's conduct tend to
interfere with the free exercise of employee rights under
the Act). If so, the conduct constitutes interference, re-
straint, or coercion of employees' rights. Several Board
cases deal with specific conduct and when applicable the
law of the case will determine the proper test to deter-
mine whether a violation has occurred or not.
The General Counsel has alleged coercive interroga-
tion by two supervisors on three occasions. All the inter-
rogations arise from a single episode with; employee
Wise. The employee initiated the conversations, first
with her immediate supervisor, Hinson; second with her
department head, Seals; and third with the vice president
of manufacturing, Johnson. Wise broached the subject of
union activity freely speaking of her involvement and
complaining of harassment from other employees linked
to her union sympathy. Wise also expressed a fear of re-
taliation from employees and sought some relief from su-
pervision before the incidents became protracted requir-
ing discipline in some form.
A companion allegation of "promise of benefits" to
Wise for disclosure of employees' union activity in the
plant arises from the same conversations, Wise was less
than specific and on several occasions she had no recall
but it was clear from her testimony that she was attempt-
ing to extract herself from what she perceived as a bad
situation on the work floor. Applying the "under all of
the circumstances test," of Rossmore House to the con-
versations under scrutiny leads me to conclude that no
violations occurred. The factors to consider are back-
ground, nature of information sought, identity of ques-
tioner, and place and manner of interrogation. Wise's tes-
timony shows that the background is a figment of her
imagination (whether real or not is irrelevant)' Wise
sought out Hinson and Seals disclosing to them what she
thought was a problem. Wise actually provoked the in-
terrogation with her rendition of the various disturbances
on the work floor, coupled with her expressed fear of re-
taliation from coworkers. Thus, the nature of the infor-
mation sought by management was directly related to
discipline of the work area, Had'Wise's problems been
unrelated to union activity, the inquiry by management
would have been the same. The identity of the question-
er and the place of interrogation further supports the
conclusion that no violations occurred, in that the uncon-
troverted testimony shows that Wise asked for each au-
dience with the three supervisors and specified that she
did not want to discuss her problem on the work floor.
There is no evidence to show that Johnson, Seals, or
Hinson sought any information outside of what Wise
freely disclosed nor is there affirmative evidence that
Johnson promised any benefit to Wise for further disclo-
sures. Wise was seeking some relief and what Johnson
BATES NITEWEAR CO.
offered to Wise was freedom from further harassment
based on Wise's perceptions assayed with the usual toler-
ances allowed on the work floor between workers
during working time. I therefore conclude and find that
Respondent did not coercively interrogate employee
Wise nor did Respondent unlawfully promise a benefit to
Wise. Accordingly, I shall dismiss paragraphs 8(a), (i),
and (j) of the complaint.3
The General Counsel offered several witnesses to sus-
tain her allegation that Respondent promulgated, main-
tained, and enforced a no-talking rule among employees
to stiffle employees' union activity. The evidence shows
that when Garner asked Gerald Lambert to leave her de-
partment he was talking with an operator supervised by
Garner and Lambert was not in his working area. Gar-
ner's department is not on Lambert's delivery schedule.
Therefore, Garner was simply clearing her department
of nonworking personnel. Had Lambert been assigned to
Garner's department, it may have been a different
matter. The other witnesses, Howe and Gladys Lambert,
recalled an incident in which Howe was inspecting an
operator's work in the proximity of Gladys Lambert's
machine. Garner, after observing Howe, told her to do a
little more work and a little less talking. Howe did not
question the admonition by Garner but Lambert did.
Garner told Lambert that Howe was talking too much to
all the operators. Not only does the evidence fall short
of showing the establishment of a "no-talking" rule but
there is no evidence to show an unlawful purpose for
Garner's remark.
Rather, the evidence shows that Garner observed
Howe for more than a day spending too much time in-
specting at each operator's station. Howe and Lambert
were engaged in idle conversation at the time that was
the thrust of Garner's statement to Howe. Obviously,
Garner was not attempting to proscribe talking among
employees because she did not say anything to Lambert
about her talking. In addition, the record evidence shows
that a year before management attempted, but failed, to
invoke a "no talking" while, working rule among em-
ployees. As a result, employees were allowed to talk
among themselves while working and within reason. I
conclude and find that the General Counsel' s allegation
is not supported by the record evidence and shall there-
fore dismiss paragraph 8(b) of her complaint.
On 27 September Thurman Johnson authored and
posted a no-distribution rule' -because of a 'rumor that
prounion employees were about to begin handbilling em-
ployees inside the plant. Such a rule had not been posted
in the plant before notwithstanding the printed rule's ref-
erence to a longstanding policy: Additionally, Johnson
had the rule specifically brought,to the attention of sev-
eral employees known to have -distrtibuted union litera-
ture in the past. One such employee was Helen May
who, when confronted by her supervisor, Keiser, pursu-
ant to Johnson's 'specific instructions, denied any prior
involvement with the union literature.
The General Counsel contends that Keiser's confronta-
tion with May constitutes surveillance of employees
3 Rossmore House, 269 NLRB 1176 (1984), see Sunnyvale Medical
Clinic, 277 NLRB 1217 ( 1985)
1139
union activity and that the rule was unlawfully promul-
gated. The accuracy of Johnson's information concerning
May is irrelevant to the surveillance allegation. Several
employees had been observed in the plant parking lot
distributing union handouts to employees after the shift.
The distribution was openly engaged in -for ' all to see.
Management's use of what it observed in its parking lot
under these circumstances can hardly constitute unlawful
surveillance of employees. The employees did not at-
tempt to conceal the distribution nor should they. The
employees have the statutory right to make such distri-
butions to show their allegiance for the Union and the
Company made no effort to stop employees from doing
so in the parking lot. The subsequent printed rule was an
attempt to stop distribution ' of union literature in the
plant. Contrary to the express wording of the posted rule
against distributions in the plant, there is no company
policy proscribing the continued sales , campaigns of em-
ployees including the use of catalogs of wares or price
lists for Avon, Tupperware, peanuts, popcorn, PTA
functions, or tickets for musical bands. As Johnson
stated, he has engaged in- such retail sales himself and
does not consider such nonunion solicitations as interfer-
ence with production or employees' worktime., Thus,
Johnson's promulgation of the 27 September rule prohib-
iting distribution of written materials or handouts of any
type was aimed specifically at the prounion employees
and their efforts to publicize' the organizational efforts of
their Union.' Such a purpose, particularly in view of the
fact that all other distributions of a nonunion nature were
unaffected, is unlawful, and constitutes a violation of em-
ployees' protected Section 7 rights. ,
Accordingly, I conclude and find that Respondent vio-
lated Section 8(a)(1) of the Act by instituting the no-dis-
tribution rule on 27 September as alleged in paragraph
8(e) of the complaint. I further conclude and find that
Respondent did not create the impression of surveillance
by specifically calling certain prounion employees' atten-
tion to the unlawful distribution rule in addition to its
being posted in the plant, albeit, the Respondent thereby
unequivocally evinced a design to attack only union' lit-
erature. I shall therefore dismiss the complaint allegation
of paragraph 8(f).
During the union organizational campaign, several
statements were made by supervisors. The General
Counsel contends that on at least two occasions the
statements amount to unlawful threats. May credibly tes-
tified that she overheard Supervisor Keiser tell' a co-
worker, Linda, that if the Union got in the plant, it
would close and employees would have to look for an-
other job. Keiser did not deny that she made such a
statement to Linda Cisson, but she did deny that May
could have heard any such conversation because of her
radio earplugs. Keiser later learned,from May that Reed
(May's 'kinswoman) had applied for employment at the
new Colosseum in town and asked Reed if' she bad found
another job because if the Union gets in they will close
the doors. Keiser admitted a conversation with Reed
about the Colosseum employment, but denied any state-
ment to Reed concerning the Union. I do not credit
Keiser's terse denial of union statements to Reed, nor her
1140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ability to ascertain May's capability of overhearing proxi-
mal conversations. I do credit the testimony of May and
Reed who both appeared single of heart and intent on re-
calling the facts as they occurred. I conclude and find
that Keiser threatened employees that the plant would
close,if the Union came-in and that employees would
lose their jobs if the Union was selected to represent
them.
An additional statement made by Seals was overheard
by witness Wise. Wise's testimony of this incident was
specific and included her confirmation of Seals' state-
ment by her inquiry of the bundle boys that Seals spoke
to. I credit Wise's uncontroverted version of the conver-
sation she overheard and conclude and find that Seals
threatened employees with closure of the plant if the
Union came in.
The General Counsel has thus supported, by credible
record evidence, that Respondent . violated Section'
8(a)(1) Of the Act by unlawful threats to employees as al-
leged in, paragraph 8(g) and (h) of her complaint.
The General Counsel contends that the suspensions of
Ruth Ayers, Carolyn Johnson, and Gladys Lambert are
discriminatorily motivated and therefore violate the Act.
Respondent argues that the suspensions arise from iii-
fractions of the posted "Statement on' Unionism" that'
Thurman Johnson` proclaimed to be Bates' policy on
union solicitations originally prompted by one employ-
ee's assessment that Bates needed a union .' As Thurman
Johnson explained, the Company will not allow some
things, however, other solicitations do not interfere with
employees' worktime. Not only is the "Statement on Un-
ionism" directed specifically to union solicitations, but
Johnson's 'enforcement of the statement was limited to
union solicitations and enforcement proceedings occur-
ring after the Union began its organizational efforts. The
operative portion of this statement,
Also if anybody should at any time cause any of
our employees any trouble at their work or put then
under any sort of pressure to join a Union; our em-
ployees should let the company know about it and
we will see that this 'is stopped. Everyone should
also know that no person will be allowed to carry
on Union organizing activities on the job and that
anybody who does so andthereby neglects his or
her own work or interferes with the work of others
will be subject to serious disciplinary action.
makes it abundantly clear that Bates' objectives were to
stiffle lawful union activity of its employees and to learn
the identity of those employees engaged in union activi-
ty. The recent efforts to increase publication of the state-
ment coinciding with the organizational efforts of the
union establish a discriminatory timing and purpose for
the promulgation of the rule . Thurman Johnson's en-
forcement of the rule against prounion employees for
their union solicitations or union activity in the plant, as
reported by antiunion employees pursuant to the state-
ment, shows discrimination in the enforcement of the
rule. Moreover, the failure to discipline employees or
even consider discipline of employees for other solicita-
tions is further evidence of discriminatory motivation in
enforcement. -
Additionally, the record evidence shows that the first
and only disciplines under the rule were meted out to
Ruth Ayers and Carolyn Johnson resulting in a 3-day-
suspension for each. It follows that- any disciplines under
a work rule that are discriminatorily promulgated and
for a discriminatory purpose are themselves discriminato-
ry and cannot be allowed' to stand. Thurman Johnson's
testimony clearly shows-that the only motivation for the
suspensions was the - infractions of the "Statement" rule.
His testimony further shows that he was more concerned
with identifying a prounion employee for discipline
rather than-protecting the work place from interference
with production. Indeed, in the case of Ayers, he relied
on the unsubstantiated report of three employees that she
was bothering them at their work stations concerning the
Union. In Carolyn Johnson's circumstance, Thurman
Johnson could not recall the name of any employee who
reported-her union activities to him. Thurman Johnson's
recall was somewhat hampered by the fact that he pur-
posely did not record the events to protect the confiden-
tiality of the reporting employees. I presume he extended
this confidentiality by failing to investigate the reports or
allow either Ayers of Carolyn Johnson to tell her side of
the story.
Even without the discriminatory statement as the basis
for the discipline, Thurman Johnson's failure to investi-
gate the events 'before disciplining the employees would
support a discriminatory motivation for the discipline.
More particularly in view of the fact that neither the
first line supervisor or the departmental supervisor had
knowledge -that Johnson was engaging in union activity
while working. Thus, I conclude and find that Respond-
ent discriminatorily promulgated its "Statement on Un-
ionism" that encouraged its employees to- report to Re-
spondent the identity of employees engaged Sin union ac-
tivity in violation of Section 8(a)(1) of the Act as alleged
in paragraph 8(d) of the complaint. Further, I conclude
and find that the suspensions of Ruth Ayers and Carolyn
Johnson were discriminatorily motivated and in violation
of Section 8(a)(1) and (3)' of the Act as alleged in para-
graph 0 of the complaint. '
The General Counsel's contention that Carolyn John-
son was watched more closely because she was engaged
in union activity is not supported by affirmative evidence
in this record. The record evidence does show that John-
son was more aware -of supervision's surveillance of the
production lines for a 2-week period following her return
from the suspension but there is no evidence to link the
surveillance of the supervisors to Johnson's or any other
employee's union activity. Accordingly, I shall dismiss
the General Counsel's allegations in paragraph 8(c), of
her complaint.
Gladys Lambert, an employee known to be engaged in
union activity and the wife of the leading union adher-
ent, was suspended by ' her departmental supervisor,
McCray, for insubordination. The factual events on
which the suspension is based are uncontroverted. Lam-
bert simply questioned her supervisor, Garner, about
why inspector Howe had to limit her talking. Garner re-
BATES NITEWEAR CO.
sponded that Howe talked too much to all the operators.
Albeit, Garner took no umbrage when Lambert asked
the question she did testify that she was unnerved that an
employee would question her instructions to another em-
ployee. She bolstered her testimony of the otherwise
peaceful incident by characterizing Lambert's tone as
"harsh and loud" and her walk as "angry." However,
Garner did not report "insubordination" to McCray.
Rather, Garner reported only that Lambert had asked a
question relating to Howe. Garner, in fact, did-not'know
Lambert was to be disciplined for the incident until she
was suspended and even then was surprised that the inci-
dent constituted "insubordination."
In the past Garner had been cursed by an employee,
but all McCray did was orally counsel the employee not
to repeat the conduct. Thurman Johnson and McCray,
without Garner's input, made the determination that
Lambert's question of Garner was insubordinate. Their
determination did not include giving Lambert an oppor-
tunity to offer any defense. But, as Johnson stated, "With
insubordination there is no discussion." Such a procedure
predetermines the result every time and because the
predicate is lacking the legitimacy of the underlying fac-
tual determination is not established. Moreover, McCray
in recalling a similar incident in which another employee
questioned a supervisor's instructions defined the incident
as "not insubordinate" because the employee only put
her remarks in the form of a question. This prior incident
is not unlike that between Lambert and Garner. In my
view, Johnson and McCray were searching for a reason
to discipline a prounion employee, Lambert, and seized
on the event reported by Garner. In addition, Lambert's
suspension was the first emanating from a verbal alterca-
tion with a line supervisor such as Garner.
I therefore conclude and find that the General Counsel
has presented a prima facie case of discrimination in
Lambert's suspension and that Respondent has failed to
present evidence to show that the suspension would have
been ordered in the absence of Respondent's knowledge
that Lambert was an employee engaged in union uctivi-
ty.4 Thus, Respondent by suspending Lambert for 3 days
over the incident with Garner ' has violated Section
8(a)(1) and (3) of the Act as alleged in the complaint.
CONCLUSIONS OF LAW
1. Respondent, by making threats to close the plant if
the Union comes- in, has violated Section 8(a)(1) of the
Act.
2. Respondent, by threatening employees with loss of
employment if the Union comes in, has violated Section
8(a)(1) of the Act.
3. Respondent, by posting and enforcing its "Statement
on Unionism" at a time coincident with the Union's or-
ganizational drive among the employees, has violated
Section 8(a)(1) of the Act.
4. Respondent, by posting its rule against distribution
of literature in the plant at a time coincident with the
Union's organizational drive, has violated' Section 8(a)(l)
of the Act.
4 Wright Line, 251 NLRB,1083 (1980)
1141
5. Respondent, by suspending its employees Ruth
Ayers, Carolyn Johnson, and Gladys Lambert for dis-
criminatory reasons, has violated Section 8(a)(1) and (3)
of the Act.
6. The General Counsel has not sustained her burden
of proof for any other allegations in her complaint.
7. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Respondent having discriminatorily suspended employ-
ees Ruth Ayers, Carolyn Johnson, and Gladys Lambert
must pay them backpay for the days of suspension with
interest thereon to be computed in the manner prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), and Flori-
da Steel Corp., 231 NLRB 651 (1977),5 from the date of
suspension to the date the employee returned to work.
The General Counsel in her brief moved for a visita-
torial provision as part of the remedy but, based on this
record, I shall deny her motion.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, Bates Nitewear Company, Greens-
boro, North Carolina, its officers, agents, successors, and
assigns, shall
I. Cease and desist from
(a) ' Threatening employees with plant closure or loss
of jobs if the Union comes in.
(b) Implementing its "Statement on Unionism" and dis-
ciplining employees for infractions related to their union
activity.
(c) Implementing its rule prohibiting distribution of lit-
erature in the working areas of the plant.
(d) Suspending employees for engaging in union activi-
ty or for questioning instructions of supervisors.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make Ruth Ayers, Carolyn Johnson, and Gladys
Lambert whole for any earnings they lost, plus interest,
as outlined in the remedy section of this decision.
(b) Expunge from its files any references to the suspen-
sions of Ruth Ayers, Carolyn Johnson, and Gladys Lam-
bert and notify them, in writing that this has been done
5 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
6 If no exceptions are filed as provided by Sec 10? 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec , 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived tot all pur-
poses
1142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and that evidence of this unlawful suspension will not be
used as a basis for future personnel action against them.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Greensboro, North Carolina facility
copies of the attached notice marked "Appendix."7
Copies of the notice, on forms provided by the Regional
7 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 "
Director for Region 11, after being signed- by the' Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted.- Reasonable steps shall be taken by the Respond-
ent 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 . Re-
spondent has taken to comply.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.