Brownsville Garment Co.,Inc.

National Labor Relations Board - Board Decisions

May 16, 1990

298 N.L.R.B. 507 (N.L.R.B. 1990)

BROWNSVILLE GARMENT CO. 507
Brownsville Garment Company, Inc. and Local 203,
International Ladies Garment Workers Union,
AFL-CIO. Cases 26-CA-12970, 26-CA-12990,
and 26-CA-13028
May 16, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On November 2, 1989, Administrative Law
Judge Claude R. Wolfe issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed excep-
tions and a supporting brief. The Respondent and
the General Counsel also filed answering 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
conclusions as modified, and to adopt the recom-
mended Order as modified.
The judge found, and we agree, that the Re-
spondent violated Section 8(a)(3) and (1) of the Act
by refusing to hire Virgil Manco, Linda Manco,
and Odeline Van Meter. With respect to these al-
leged discriminatees, the judge found that the Gen-
eral Counsel established a prima facie case that
union activity was a motivating factor in the Re-
spondent's decision not to hire them, and that the
Respondent did not meet its burden of demonstrat-
ing that it would not have hired them even in the
absence of the protected conduct. The judge
found, however, that the General Counsel did not
establish a prima facie case of unlawful motivation
with respect to alleged discriminatees Angela
Webb and Pearl Webb and, therefore, that the Re-
spondent did not violate Section 8(a)(3) and (1) by
refusing to hire them.2 For the reasons- set forth
below, we find merit in the General Counsel's con-
tention that under Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), the Re-
spondent's refusal to hire Angela Webb and Pearl
Webb was violative of the Act,
1 Regarding the judge's factual findings in sec . III of his decision, we
note that when the Respondent commenced operations in July 1988,
Porter was chairman of the board; Goad was president and plant manag-
er, and Bryant was vice president and personnel manager. Additionally,
the Respondent is owned by Porter, Goad , Bryant, and Bouvette. Final-
ly, we note that in sec. IV,A of his decision the judge inadvertently
stated that on July 8, 1982, the Union was certified as the exclusive bar-
gaining representative of the unit employees of the Respondent , rather
than of the employees of Brownsville Manufacturing Company.
2 Regarding Angela Webb , the judge further found that even if the
General Counsel established a prima facie case of a violation, it was re-
butted by the Respondent
1. We fmd initially that the evidence presented
by the General Counsel is sufficient to establish a
prima facie case of unlawful conduct that is appli-
cable to all the discriminatees alleged in the com-
plaint, including Angela Webb and Pearl Webb. As
found by the judge, the Respondent is a legal suc-
cessor of Brownsville Manufacturing Company
(BMC).3 The Union was the certified bargaining
representative of BMC's production and mainte-
nance employees. The Union's officers met regular-
ly with BMC's plant manager, Lamar Goad. Goad
is the only one of the Respondent's owners with
experience in the garment industry, and was the
Respondent's president and plant manager when
the Respondent commenced operations in July
1988. At the hearing, Goad admitted that he was
aware that the alleged discriminatees were all
union officers at the time of BMC's closing in Feb-
ruary 1988.
Based on our adoption of the judge's findings of
violations of Section 8(a)(1) of the Act, we fmd
that the Respondent demonstrated its animus
toward the Union and its supporters. Thus, con-
cerning employment with the Respondent, Goad
interrogated former BMC employees about their
union sympathies and threatened plant closure if
the Union "came in." In addition, Supervisor Ellen
Priddy repeated the threats of plant closure and
unlawfully solicited employees to sign an antiunion
statement. Although Goad testified that he did not
have any input in the hiring decisions and that
hiring was done solely by Joseph Bryant, the Re-
spondent's personnel manager, it is undisputed that
Bryant, a newcomer to the garment industry,
called Goad for references about former BMC em-
ployees. In this regard, Goad admitted that he told
Bryant not to hire certain BMC employees and
Bryant could not recall hiring any BMC, employees
who had been given bad references by Goad. In
fmding a prima facie case with respect to all the al-
leged discriminatees, we also rely on the fact that
although Bryant testified that Goad told him the
'Respondent was looking for experienced employees
and the alleged discriminatees clearly had lengthy
experience in the garment industry, the Respondent
hired a large number of inexperienced' employees
to fill positions for which the'alleged discriminatees
were qualified.
2. Angela Webb had been a machine operator at
BMC for 14 years. She maintained a higher-than-
average rate of production at BMC, was chosen as
the employee who was timed to set the "piece
2 Based on his finding of successorship , the judge further found that
the Respondent violated Sec. 8(a)(5) and (1) by refusing to bargain with
the Union and by implementing unilateral changes in wages.
298 NLRB No. 66
508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rate," and had no warnings in her record. Webb
had served on the Union's executive board for 9 or
10 years, a position she held at the time of BMC's
closure, and had also been shop steward for 6 or 7
years. Webb applied for employment with the Re-
spondent in July 1988 and was interviewed by
Bryant, but was not hired.
Goad and Bryant testified that Webb was not
hired because of a "personality conflict" with
Goad based on remarks she had made at a meeting
in February 1988 that was held to discuss BMC's
announced closure. The meeting, which was called
by an employee, was attended by employees, com-
pany representatives, and union officials. Accord-
ing to Webb's uncontradicted testimony, there
were about 100-150 people at the meeting, includ-
ing 15-20 people who were not union members.
The latter group included members of the local
chamber of commerce (one of whom made a
speech), BMC's attorney, and BMC supervisors
and managers. Goad was not, however, present at
the meeting. Webb testified, regarding the subject
of the meeting, that BMC representatives told the
employees that if they would "take certain cuts like
our retirement" BMC could afford "to put more
work in the factory." Webb-further testified that
after someone expressed the view that BMC was
closing because it was losing money, she responded
by stating:
Well, if the company was losing money .. .
[h]ow can they afford to furnish a car for
Lamar [Goad] to take his son to school and his
wife to drive around if they were losing
money one way, why couldn't they be losing
it another way.
Goad testified that he did not want to hire Webb
based on a report that
[S]he made a statement in front of a group of
people, Union people, some people from
downtown and everything else that it was my
fault that Brownsville Manufacturing Compa-
ny closed, that I was driving a company car,
me and my wife drove a company car.. . .
Based on Goad's testimony, the judge found that
Goad did not perceive Webb's remarks as union
activities or cause her not to be hired because he
believed her conduct to be union activity. Rather,
the judge found that Goad caused Webb not to be
hired because he resented her charge that his use of
company resources was a causal factor in the clo-
sure of BMC. Finding that Webb's comments about
Goad were "an exercise of free speech under the
constitution but not activity protected by the Act,"
the judge concluded that the Respondent's failure
to hire Webb was not unlawful.
We find, contrary to the judge, that the General
Counsel has established a prima facie case of un-
lawful motivation that the Respondent has not re-
butted. Even accepting the judge's finding that
Goad did not perceive Webb's remarks as union
activities but interpreted them as a personal and
unjust charge, we find that her remarks were
within the scope of activities protected by Section
7 of the Act. Thus, Webb, a union officer, made
the remarks at a group meeting that was called by
an employee and was attended primarily by union
members. The meeting was held to discuss BMC's
closure and included discussion of whether em-
ployee concessions could enable BMC to remain
open. Webb's remarks arguably concerned her
views on the fairness of employees agreeing to
such concessions when the sacrifices were not
being shared by management. In this context, we
find that Webb's remarks publicizing her view
about BMC's plant closure concerned a labor dis-
pute over terms and conditions of employment and
therefore constituted protected activity. See Cincin-
nati Suburban Press, 289 NLRB 966 (1988).4
Moreover, we find that Webb's remarks were
not so abusive as to lose the Act's protection. In
NLRB v. Electrical Workers IBEW Local 1229, 346
U.S. 464 (1953), the Supreme Court held that em-
ployees may communicate with third parties in cir-
cumstances where the communication is related to
an ongoing labor dispute and where the communi-
cation is not so disloyal, reckless, or maliciously
untrue as to lose the Act's protection. The Su-
preme Court further held that employee conduct
involving a disparagement of an employer's prod-
uct, rather than publicizing a labor dispute, is not
protected. Here, Webb's remarks did not seek to
disparage BMC's product, but arose as part of a
discussion regarding prevention of BMC's closure.
Similarly, Webb's remarks did not disparage
Goad's personal integrity with respect to BMC's
production of garments. See Sierra Publishing Co. v.
NLRB, 889 F.2d 210 (9th Cir. 1989), enfg. 291
NLRB 540 (1988); El San Juan Hotel, 289 NLRB
1453 (1988); Cincinnati Suburban Press, above. Fur-
ther, in finding that the remarks were not reckless
or maliciously untrue, we note that there is no evi-
dence to contradict Webb's factual assertion that
' The definition of "labor dispute" under Sec. 2(9) of the Act includes
"any controversy concerning terms, tenure or conditions of employ-
ment "
The Respondent contends that Webb's remarks were not protected
concerted activity because she was not speaking on behalf of any other
BMC employee. However, because her remarks, considered in context,
constituted umon-related activity it matters not that Webb acted alone.
See Spartan Equipment Co, 297 NLRB 19 (1989) (citing Carpenters Local
925, 279 NLRB 1051, 1059 fn 40 (1986))
BROWNSVILLE GARMENT CO. 509
Goad had the use of a company car. See Cincinnati
Suburban Press, above.
Accordingly, we reverse the judge and find that
the Respondent violated Section 8(a)(3) and (1) by
refusing to hire Angela Webb because she engaged
in activity that is protected[ by Section 7 of the
Act.
3. Pearl Webb had been a machine operator at
BMC for 14 years. She had served as shop steward
and was chief union steward for 6 or 7 years prior
to BMC's closure. Webb had also served on the
Union's executive board and negotiating commit-
tee. Webb applied for employment with the Re-
spondent in July 1988 and was interviewed by
Bryant, but was not hired.
Bryant testified that Webb was not hired because
Jessie Miller, who had been a supervisor at BMC,
told him that Webb was a slow operator and had
trouble being trained for different jobs. Webb ad-
mitted on cross-examination that she had twice
been warned about low productivity during the 5
or 6 years before BMC closed.5Webb further testi-
fied, however, that Edna Denham, who worked on
the same facing line as Webb at BMC and had been
warned about low production at the same time as
Webb, was hired by the Respondent. Denham,
who was not a union officer at the time of BMC's
closure, was hired by the Respondent on Novem-
ber 17, 1988.
The judge found that the Respondent's failure to
call Miller to testify gave rise to "some suspicion"
that she may not have corroborated Bryant's testi-
mony. Recognizing that there was evidence of
knowledge of Webb's union activities and union
animus, the judge nevertheless concluded that,
absent a "demonstrably false" reason for failing to
hire Webb, he could not make a "positive finding"
of unlawful motivation.
We find, contrary to the judge, that the General
Counsel has established a prima facie case of un-
lawful motivation that the Respondent has failed to
rebut. In addition to the elements of the prima facie
case, set forth above, which we have found appli-
cable to all the alleged discriminatees, the General
Counsel has presented evidence of disparate treat-
ment. Thus, Webb testified that Denham, who per-
formed the same work at BMC as Webb and was
warned about production at the same time as Webb
5 In view of Webb's admission that she was warned about low produc-
tivity at BMC, we find no merit in the General Counsel 's contention that
an adverse inference should be drawn based on the Respondent 's failure
to call Miller as a witness to corroborate Bryant's testimony.
Regarding Webb's testimony that she was not making production when
BMC closed, the record indicates that there was less work in the plant
during the last few months of BMC's operations and that most of the
former BMC employees who applied for work with the Respondent indi-
cated that they had been making less than the production rate at BMC
prior to closure
but was not a union officer, was subsequently hired
by the Respondent. The Respondent has not rebut-
ted or explained this apparent disparity in its reli-
ance on "slowness" as a reason for refusing to hire
former BMC employees. For example, the Re-
spondent has not demonstrated that Denham's rate
of production thereafter improved and exceeded
Webb's rate of production or that other experi-
enced machine operators were not hired because of
low production. See Philips Industries, 295 NLRB
717 (1989). Therefore, we find that the Respondent
has not met its burden of demonstrating that Pearl
Webb would not have been hired in the absence of
her union activity. Accordingly, we reverse the
judge and conclude that the Respondent violated
Section 8(a)(3) and (1) by refusing to hire Pearl
Webb.6
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of
Law 7.
"7. By failing and refusing to hire Virgil Manco,
Linda Manco, Odeline Van Meter, Angela Webb,
and Pearl Webb since on or about August 12, 1988,
in order to discourage union membership and ac-
tivity, the Respondent violated Section 8(a)(3) and
(1) of the Act."
2. Delete Conclusion of Law 12.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Brownsville Garment Company, Inc.,
Brownsville, Kentucky, its officers, agents , succes-
sors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 2(d).
"(d) Offer to hire Virgil Manco, Linda Manco,
Odeline Van Meter, Angela Webb, and Pearl Webb
for the jobs for which they applied or, if those jobs
no longer exist, to substantially equivalent posi-
tions, and make them whole for any loss of earn-
ings suffered by reason of the Respondent's unfair
labor practices, in the manner set forth in the
remedy section of the judge's decision."
2. Substitute the following for paragraph 2(f).
"(f) Post at its Brownsville, Kentucky facility
copies of the attached notice marked "Appen-
6 We shall modify the judge's recommended Order and provide a new
notice in accordance with our findings.
Contrary to his colleagues , Member Devaney would adopt the judge's
dismissal of the allegation that the Respondent's refusal to hire Pearl
Webb violated the Act. In so doing, Member Devaney, although finding
that the refusal to hire Pearl Webb raises some suspicions, concludes that
the General Counsel has not established a violation by the preponderance
of the evidence.
510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dix."22 Copies of the notice, on forms provided by
the Regional Director for Region 26, after being
signed by the Respondent 's authorized representa-
tive, shall be posted by the Respondent immediate-
ly 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 Respondent
to ensure that the notices are not altered , defaced,
or covered by any other material."
3. Substitute the attached notice for that of the
administrative law judge.
22 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discourage membership in Local
203, International Ladies Garment Workers Union,
AFL-CIO, or any other labor organization, by fail-
ing or refusing to hire employees, or otherwise dis-
criminating against them in regard to their tenure
of employment or any term or condition of em-
ployment.
WE WILL NOT coercively question you about
your union support or activities.
WE WILL NOT Solicit you to sign antiunion state-
ments.
WE WILL NOT threaten to close or move our
business operations if employees select a union to
represent them.
WE WILL NOT refuse to recognize and bargain
collectively with the Union concerning terms and
conditions of employment in the bargaining unit.
WE WILL NOT change employee wage rates or
methods of wage computation without giving the
Union timely notice and an opportunity to bargain.
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, on request, bargain collectively with
Local 203, International Ladies Garment Workers
Union, AFL-CIO as the exclusive bargaining rep-
resentative of all the employees in the bargaining
unit described below with respect to rates of pay,
wages, hours of employment, and other conditions
of employment and, if an understanding is reached,
embody that understanding in a written, signed
agreement. The bargaining unit is:
All production and maintenance employees of
Respondent, including shipping employees, ex-
pediters, repair employees, cutters, spreaders,
mechanics, bundlers, and piece workers; ex-
cluding office clerical employees, guards, and
supervisors as defined in the Act.
WE WILL offer Virgil Manco, Linda Manco,
Odeline Van Meter, Angela Webb, and Pearl Webb
immediate employment in the jobs for which they
applied or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to
their seniority or other rights and privileges, and
make them whole for any loss of earnings suffered
by reason of our discrimination against them, with
interest thereon.
WE WILL make bargaining unit employees whole
for any loss of wages suffered by reason of our
change from an hourly rate to a piece rate on or
about January 16, 1989, with interest thereon, and
WE- WILL rescind the change on request by the
Union.
BROWNSVILLE GARMENT COMPANY,
INC.
Jane Vandeventer, Esq., for the General Counsel.
James C Hickey, Esq., for the Respondent.
Bernard W. Rubenstein, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This
proceeding was litigated before me at Bowling Green,
Kentucky, on June 19 and 20, 1989, pursuant to charges
filed and a second consolidated complaint issued March
23, 1989. The complaint alleges that Brownsville Gar-
ment Company, Inc. (Respondent or BGC) has violated
Section 8(a)(5), (3), and (1) of the National Labor Rela-
tions Act (the Act) by refusing to bargain with Local
203, International Ladies Garment Workers Union,
AFL-CIO (the Union); refusing to hire Virgil Manco,
Odeline Van Meter, Pearl Webb, Angela Webb, and
Linda Manco; and by the conduct of its supervisors and
agents, Lamar Goad and Ellen Priddy, in making several
statements which interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed them
by Section 7 of the Act. Respondent denies the commis-
sion of unfair labor practices.
On the entire record, and after considering the testi-
monial demeanor of the witnesses and the posttrial briefs
BROWNSVILLE GARMENT CO. 511
of the parties, I make the following findings and conclu-
sions.
1. RESPONDENT'S BUSINESS
At all times material herein, Respondent has been a
corporation with an office and place of business in
Brownsville, Kentucky, where it has been engaged in the
manufacture of apparel. Since commencing operations on
or about July 8, 1988, Respondent, in the course and
conduct of these business operations, sold and shipped
from the above described facility products, goods, and
materials valued in excess of $50,000 directly to points
outside the State of Kentucky. Respondent is now, and
has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The Union is now, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. SUPERVISORS AND AGENTS
The following named persons occupy the positions set
forth after their respective names, and were at all times
relevant to this proceeding supervisors and agents of Re-
spondent within the meaning of Section 2(11) and (13) of
the Act.
Jack Chester Porter-Chairman of the Board
Lamar Goad-President and Personnel Manager
Joseph Bryant-President and Personnel Manager
Ellen Priddy-Supervisor
Jessie Miller-Supervisor
Sonnie Ashley-Office Manager
Porter, Goad, and Bryant are owners of Respondent.
Goad is the only one of the three with experience in the
garment industry. Porter is an attorney and banker who
appears at the garment factory rarely and briefly. Bryant
is not involved in the supervision of production employ-
ees. These employees are under the general supervision
of Goad who essentially functions as the plant manager,
which his pretrial affidavit conceded he was responsible
for and in charge of production including the supervision
of employees so engaged. Priddy and Miller directly su-
pervise employees working on production lines, and they
and Ashley were supervisors at BMC performing the
same duties as they now do for BGC.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Findings of Fact, Successorship, and the Duty
to Bargain
The facilities where Respondent now carries on its
business were occupied by Brownsville Manufacturing
Company, Inc. (BMC) from 1972 until February 3, 1988,
when it closed down . BMC had actually ceased active
production and laid off its employees in October 1987.
Lamar Goad was the plant manager at BMC from No-
vember 1972 until it closed . BMC's production employ-
ees were represented by the International Ladies Gar-
ment Workers Union for many years. On July 8, 1982, as
the result of a decertification election conducted by the
Board in Case 9-RD-181, the International Ladies Gar-
ment Workers Union was certified as the exclusive repre-
sentative of Respondent's employees in the following ap-
propriate unit for purposes of collective bargaining:
All nonsupervisory production, maintenance, pack-
ing, shipping, outlet store and trucking employees,
employed in the Employer-owned plant, excluding
all officers, executives, designers, supervisors,
guards and office clerical workers.
The last collective-bargaining agreement between BMC
and the Union covering the wages, hours, and working
conditions of the unit employees had an effective date of
June 30, 1985, and an expiration date of June 30, 1988,
and contained a provision requiring union membership as
a condition of employment after 30 days of employment.
BGC was issued a certificate of incorporation by the
Commonwealth of Kentucky on April 1, 1988. Its initial
board of directors was composed of Maria L. Bouvette,
J. Chester Porter, Lamar Goad, and Joseph B. Bryant.
Lamar Goad is the only one of the four who had any
previous connection with BMC, and that was limited to
his employment as plant manager.
BMC leased the premises on which it conducted its
garment manufacturing business from the city of
Brownsville, Kentucky. On April 29, 1988, BMC as-
signed that lease to BGC who now operates its garment
manufacturing business on the premises previously occu-
pied by BMC. On the same date BMC and BGC execut-
ed a purchase contract whereby the latter purchased "all
of the goods including equipment, inventory, fixtures, a
1984 Oldsmobile Regency automobile and a 1978 Chev-
rolet Blazer , and any and all other goods not mentioned
herein located on the premises of the Brownsville Manu-
facturing Company, Inc. on Ferguson Street, Browns-
ville, Kentucky, except piecegoods inventory, fusible and
non-fusible linings, and the personal property stored in
the outlet storeroom and specifically identified as the
Elder Manufacturing Company's equipment." BGC
agreed to pay $145,000 for the, items included in the sale.
In July 1988, BGC commenced ' manufacturing ladies'
bathrobes in the facility previously occupied by BMC,
utilizing machinery and other equipment purchased from
BMC.
By letter of August 24, 1988, the Union advised Re-
spondent it represented a majority of Respondent's em-
ployees, and requested a meeting to negotiate a collec-
tive-bargaining agreement. Respondent, by J. Chester
Porter, replied via letter of September 19, 1988, that it
was of the opinion the Union did not represent its em-
ployees for purposes of collective bargaining . In response
to Porter, Bernard Rubenstein, the Union's attorney, ex-
plained by letter of September 30, 1988, that the Union's
demand for recognition was based on the fact BGC is a
successor to BMC under the decision in Fall River
Dyeing Corp., 482 U.S. 27 (1987), and repeated the
Union's demand for recognition, and prompt negotiations.
Fall River Dyeing is'clearly the, controlling precedent in
this case, and the conclusions reached herein on succes-
512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sorship and the duty to bargain are in accord with the
teachings of the Court in that decision.
Joint exhibits proffered by the parties show that at all
times on and after July 11, 1988, the first date of hire of
unit employees, a large majority of those hired by BGC
were employees of BMC when it laid all of its employees
off in October 1987 and ceased production. This reading
of the exhibits is confirmed by Joseph Bryant, Respond-
ent's corporate president and personnel manager, who
testified that of 154 employees hired by BGC since its in-
ception, including those who have left employment, 110
were previously employed at BMC, that of the 118 em-
ployees working at the time of the hearing 88 had been
BMC employees, and that from 70 to 80 percent of all
the employees working for BGC throughout its existence
were previously BMC employees.
The record reflects little real difference between the
manufacturing process of BGC and BMC. Both have
been engaged in the manufacture of women's garments.
BMC, as a manufacturing arm of Lloyd Williams Inter-
national, Inc., produced women's skirts, pants, jackets,
and knit tops for the parent corporation or its subsidiar-
ies who then further processed and merchandised the
product. BMC produced for no other companies. BGC
has only produced for companies with which it has no
corporate ties or business dealings other than producing
items on order in exchange for an agreed-upon price.
The first items produced by BGC were women's chenille
bathrobes pursuant to an arrangement with Heflin Manu-
facturing Company, Heflin , Alabama, whereby Heflin
furnished BGC with a quantity of white cloth from
which BGC cut and sewed the robes for an agreed-upon
price. The robes were then returned to Heflin who dyed
and otherwise prepared them for sale. BGC and Heflin
have no other business relationship. The bathrobe work
was not profitable for BGC, and it created a dust prob-
lem in the facility due to the lint in the air produced by
the processing of chenille. Accordingly, BGC ceased the
production of chenille bathrobes for Heflin in October or
November 1988. BGC contracted with Jones of New
York to cut and sew women's suits from cloth furnished
by Jones, and shifted to that from chenille. BGC had no
customers other than Heflin and, later, Jones prior to the
proceeding before me.
BGC's production is performed with machinery pur-
chased from BMC. The only probative evidence addi-
tional new machinery was obtained and utilized is Lamar
Goad's reference to a Reece Pocket Welt machine that
automatically sets pockets. It also appears from the vari-
ous exhibits and the testimony of Goad and employee
witnesses that the job classifications and duties are sub-
stantially the same at BGC as they were at BMC. More-
over, BGC adopt the BMC plant rules in toto. Although
bearing the heading "Brownsville Garment Co., Inc.,"
the rules' very first statement is, "It is necessary that the
following plant rules be observed by all employees of the
Brownsville Manufacturing Company . . . ."
The foregoing evidence persuades me that Respondent
is indeed a successor to BMC, and therefore must bar-
gain with the Union. Initially, I note that neither the
change in ownership' nor the hiatus between the closure
of BMC and the opening of BGC2 will defeat a finding
of successorship. BGC uses the same production facilities
and equipment utilized by BMC; is engaged in the same
garment industry producing women' wear of a similar
nature; has a production force of which approximately
75 percent previously worked for BMC in similar job
classifications with similar duties; and has a plant super-
visory force composed of four former BMC supervisors
who continue to supervise the same employees in the
same way at BGC,3 and one personnel manager (Bryant)
who did not work for BMC. BGC has not had the same
customers as did BMC. The record affords no basis on
which to conclude the production process at BGC sig-
nificantly differs from that at BMC. The facts before me
indicate substantial continuity between the enterprises,
and warrant a conclusion which I make, that BGC is the
successor to BMC.
The complaint alleges, Respondent admits, and I find
that the following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees of Re-
spondent, including shipping employees, expediters,
repair employees, cutters, spreaders, mechanics,
bundlers, and piece workers; excluding office cleri-
cal employees, guards, and supervisors as defined in
the Act.
This unit description fairly encompasses the BMC unit of
covered employees set forth in its last collective-bargain-
ing agreement with the Union. The Union was certified
as the exclusive collective-bargaining representative of
the BMC unit employees in 1982. It is well settled that a
certified union, on expiration of the first year after its
certi ication, enjoys a rebuttable presumption its majority
representative status continues.4 Respondent has neither
rebutted that presumption nor shown a "good faith and
reasonably grounded doubt of the union's majority
status."5 The Union has from the very beginning of
BGC's work force represented a majority of that work
force. Respondent, as the successor to BMC, is therefore
obligated to bargain with the Union on request.
By the time of the Union's August 24, 1988 request for
negotiations, BGC had 65 employees in classifications
covered by the collective-bargaining agreement. This is
more than half the size of the 118 person work force it
would ultimately employ, enabled Respondent to com-
mence normal production, and is sufficient to constitute a
"substantial and representative complement."s As previ-
i See, e.g., NLRB v. Burns Security Services, 406 U.S 272 (1972);
Golden State Bottling Co. v. NLRB, 414 U S. 168 (1973)
2 Fall River Dyeing, supra
s Lamar Goad, notwithstanding his new title, functions as the plant
manager of BGC just as he did for BMC
4 Terrell Machine Co., 173 NLRB 1480 (1969), cited with approval by
the Supreme Court in Fall River Dyeing and see Robinson Bus Service,
292 NLRB 70 (1988).
5 Terrell Machine, supra at 1481.
6 Lamar Goad's testimony Respondent would "like to maybe go three
or four hundred" employees which it is not now able to do has no proba-
tive weight on the issue of substantial and representative complement
BROWNSVILLE GARMENT CO. 513
ously noted, at all times since BGC began hiring a ma-
jority of its employees had been employees of BMC
when it shut down and were represented by the Union.
Respondent therefore had an obligation to bargain with
the Union as it requested by letters of August 24 and
September 30, 1988. When Respondent declined to rec-
ognize the Union by its letter of September 19, 1988, it
violated Section 8(a)(5) and (1) of the Act by refusing to
recognize and bargain with the Union as the exclusive
collective-bargaining representative of Respondent's em-
ployees in the unit found appropriate hereinabove. Re-
spondent continues to unlawfully refuse to bargain, and
therefore continues to be in violation of Section 8(a)(5)
and (1) of the Act.
At trial, General Counsel moved to amend the com-
plaint to allege Respondent has refused to bargain with
the Union by unilaterally, without notice to or opportu-
nity to bargain given to the Union, changing employee
wages since on or about January 16, 1989. The amend-
ment was granted.7 Lamar Goad testified that on or
about January 16, 1989, Respondent replaced an hourly
wage with a piece-work rate system for production em-
ployees including sewing machine operators, pressers,
hand ironer, and all sewing operations. It is not clear
whether this caused any affected employees to suffer a
loss of earnings. Occurring as it did during a time Re-
spondent was unlawfully refusing to recognize and nego-
tiate with the Union, the unilateral change in wages was
in contravention of Respondent's duty to timely notify
the Union and give it a reasonable opportunity to bar-
gain on such a change before it is implemented. I there-
fore fmd the unilateral change of wage system for certain
unit employees violated Section 8(a)(5) and (1) of the
Act.
B. Conduct of.L.amar Goad
Linda Manco credibly testified that in late August
1988, when she was discussing the possibilities of em-
ployment with Goad, he asked her if her ex-husband
Virgil Manco would be an influence on her if she went
to work for BGC.8 Virgil Manco has been employed by
the International Union since February 22, 1988, when
BMC closed. He was the president of Local 203 for
about 13 years until he was employed by the Internation-
al Union. Since the closure of BMC, he has been the
union contact man for former employees of BMC, and
has monitored the progress of BGC by personal observa-
tion from in front of the plant and contacts with BGC
employees.
According to Ronnie Decker, he visited Goad in Sep-
tember or October 1988 seeking employment. Decker
volunteered to Goad that he knew there was no union
and he could work with or without it. Goad replied that
Decker had to work without it because Goad could not
work with it, and would have to close the doors if it
came back in. Goad added that things would go a lot
7 A general allegation of refusal to bargain since August 24, 1988, in
violation of Sec. 8(a)(5) of the Act is set forth in the original charge in
Case 26-CA-12970, filed December 27, 1988, and is sufficient to cover
smoother if Virgil would not keep stirring things up.
Goad's only response to this testimony is that the Union
was not mentioned in his discussions with Decker, and
he did not tell Decker he would have to close the doors
if the Union came in. This does not rebut Decker's
report that Virgil Manco was discussed. I have taken
into account Decker's prior service as a member of the
Union's district council for 6 years and as a steward at
BMC in assessing credibility. Considering the opposing
interests of the witnesses, their comparative testimonial
demeanor,9 and Goad's denial of only a portion of a not
improbable detailed narrative, I am persuaded Decker's
testimony is more credit worthy than that of Goad. Ac-
cordingly, I fmd the conversation proceeded as ]Decker
reports.
Jeffrey Lashley, who had worked for BMC as a
spreader, testifies that while discussing employment at
BGC with Goad on October 20, 1988, Goad remarked
that he knew Lashley was easygoing and Virgil Manco
was a big influence on him and would probably be
coming around asking Lashley a lot of questions. Goad
then advised that if this was going to bother him Lashley
did not need to take the job. Goad also asked hove Lash-
ley felt about the Union. When Lashley replied that he
could work with or without a union, Goad said that if
the Union came in he would have to move out and could
not afford to work with the Union. In response to this
testimony, Goad only testified he had no conversation
with Lashley about the Union, and the Union was not
mentioned during the job interview with Lashley.
Goad's bare denials do not rebut the detailed testimony
of Lashley who impressed me as a sincere and candid
witness conscientiously relating what occurred. Lashley's
testimony on the October 20 meeting is therefore cred-
ited.
Lorene Jaggers, a current employee of BGC, asserts
that when Goad interviewed her for employment on
August 11, 1988, the day before she reported to work, he
asked her, "Well, what about the Union?" to which she
replied that she could work without a union and would
not walk another picket line. Goad then told her that if
anyone asked her to sign a card to just say no. Jaggers'
testimony is undenied, and it is not likely she would de-
liberately fabricate false testimony against Goad who in a
very real sense controls her employment future. 10 Her
testimony is therefore credited.
Goad's comments to Linda Manco, Ronnie Decker,
and Jeffrey Lashley regarding the influence exerted on
employees by Virgil Manco and his "stirring things up"
show that Goad was aware Virgil Manco, whom he well
knew and had dealt with as a longtime union president,
had the ability to influence employees and was, in
Goad's opinion, actively causing Respondent a problem.
In the absence of any showing Virgil Manco was stirring
anything up but prounion sympathies, which it appears
he was indeed engaged in doing via his contacts with
employees near the plant and elsewhere, I conclude from
Goad's remarks he was disturbed at Virgil Manco's con-
the amendment . Roslyn Garden Tenants Corp, 294 NLRB 506 (1989) 9 Decker was the more self-possessed and believable of the two
8 Goad did not address this testimony. 10 See, e .g., Unarco Industries, 197 NLRB 489, 491 (1972)
514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tinned efforts on behalf of the Union among BGC em-
ployees and apprehensive that they might prove success-
ful. When Goad made Linda Manco, Decker, and Lash-
ley aware of his concern that Virgil Manco might influ-
ence them he conveyed a rather obvious message that
Respondent would not approve if they succumbed to
that influence . This message had a reasonable tendency
to restrain and coerce these employees in the exercise of
rights guaranteed by Section 7 of the Act, and thus vio-
lated Section 8(a)(1) of the Act. The same tendency was
present in Goad's questioning of Lashley and daggers re-
garding their union sympathies, and similarly violated
Section 8(a)(1) of the Act. When Goad told Decker that
he would close the doors, and told Lashley he would
move out, both in the event the Union succeeded in se-
curing exclusive representation status at BGC, he issued
threats of closure violative of Section 8(a)(1) of the Act.
General Counsel suggests that by telling Lashley he
did not have to accept employment if the probability
Virgil Manco would ask him a lot of questions would
bother him, Goad "covertly suggested . . . that if Vir-
gil's influence was too strong , that Lashley should not
accept the job Goad was offering him." I do not agree.
Asking a lot of questions does not equate with exerting
influence . It is more nearly akin to creating a nuisance.
What Goad was just as likely suggesting was that being
subject to a nuisance might well be the result of accept-
ing employment with BGC, and it was up to Lashley if
he wanted to risk being the target of Manco 's questions.
Lashley was offered the job, and his testimony indicates
Goad was eager to hire him. Contrary to General Coun-
sel, I fmd nothing in Goad 's statement discussed in this
paragraph which would reasonably tend to interfere
with, coerce, or restrain Lashley in the exercise of his
statutory rights.
Goad's instruction to Jaggers to refuse to sign a card
was, I find, in reference to a union authorization card.
Such an instruction certainly coerces and restrains an
employee, and violates Section 8(a)(1) of the Act if so al-
leged. It is not so alleged in the complaint, and Respond-
ent was not put on notice General Counsel intended to
seek a finding the statement violated the Act and/or was
being litigated as such . For these reasons, I do not fmd
this statement is a violation of Section 8(a)(1). I do, how-
ever, fmd it evidences hostility toward employee support
of the Union.
C. Conduct of Ellen Priddy
Ellen Priddy is an admitted supervisor within the
meaning of Section 2(11) of the Act, and her conduct is
therefore imputable to Respondent.' 1 Her husband
Tommy is a mechanic and a member of the bargaining
unit. On about January 10 or 11, 1989, Priddy prepared a
document reading, "We do not belong to a union and are
not represented by a union. We do not want to belong to
a union or be represented by a union." There is no evi-
dence this document was inspired by Respondent or its
agents . Ellen Priddy credibly testified she had nothing to
do with its preparation. It appears distribution of the
11 See, e.g., NLRB v. Elliot-Williams Co., 345 F.2d 460 (7th Cir. 1965),
enfg 143 NLRB 811 (1963)
statement and solicitation of signatures thereto was un-
dertaken by unit employees. Priddy concedes, however,
that she was present when five or six employees, includ-
ing Lorene Jaggers, were solicited, and told at least three
of these employees that signing the paper would not en-
danger their job. She further concedes that she probably
told all of them that Goad would shut the doors of the
plant if the Union came in. Lorene Jaggers testified that
she was approached by Ellen Priddy and nonsupervisory
employee Judy Renfro at about 1 p.m. on January 11,
1989, at which time Priddy asked if she had seen the
paper. According to Jaggers, when she said she had not
Renfro handed it to her. She read it and handed it back.
Priddy then stated that, if everybody did not sign it,
Goad would shut the factory if a union came back in.
Jaggers recalls that Priddy also said Goad would shut
the doors because he was working on borrowed money,
and that Priddy asked her to sign. Jaggers did not sign it
until the next day. She says that Priddy never had physi-
cal possession of the paper in her presence.
Both Priddy and Jaggers appeared to be testifying as
best they recalled in response to the questions asked
them. Their testimony is complementary rather than con-
tradictory. Jaggers merely fleshes out the details of what
was said to her, and I credit her elaboration which is
consistent with Priddy's general admissions . I therefore
fmd, as the complaint alleges , that Respondent , by its su-
pervisor and agent, Ellen Priddy, did on or about Janu-
ary 11, 1989, violate Section 8(a)(1) of the Act both by
soliciting Jaggers, as well as the other employees to
whom Priddy refers, to sign the antiunion statement, and
by threatening employees with plant closure if the Union
were successful in its effort to become the exclusive bar-
gaining representative of unit employees . Such conduct
by Respondent 's agent has a reasonable tendency to re-
strain and coerce employees in the exercise of their Sec-
tion 7 rights.
D. Failures to Hire
1. Virgil Manco
According to Manco, he visited Goad's home about
the first of June 1988, and asked if Goad thought the fac-
tory would reopen . To which Goad replied that was a
possibility. In response to another question from Manco,
Goad opined that anyone who wanted to return to work
would have that opportunity. Manco then filed an em-
ployment application with BGC on July 8, 1988, request-
ing work as a spreader or cutter. He had performed both
types of work at BMC for seven and a 7-1/2 years until
the plant closed. There is no evidence to rebut his claim
his work was satisfactory and that he performed as a
cutter half of his working time during his last year and a
half at BMC and trained spreaders Lashley, Meredith,
and DeWeese. Manco testified that he called Goad on
September 26, 1988, after hearing a rumor BGC was
starting a night shift and the sewing of jackets, and asked
if Goad was going to start hiring and told Goad he
needed a job. Goad replied "we" would know something
within 2 or 3 weeks. Manco denies that Goad ever asked
him to come in for an interview or to call Joseph Bryant.
BROWNSVILLE GARMENT CO. 515
Goad remembers Virgil Manco 's visit to his house, and
that he asked for a job . Goad says he told Manco to go
see Bryant about a job , and that he later told Bryant of
Manco's visit and that Manco would be in to see Bryant.
Goad recalls no phone call from Manco . According to
Goad, Virgil Manco was a cutter and spreader at BMC
from July 4, 1980, to October 26, 1987 , but was primarily
a spreader.
Joseph Bryant confirms that Goad told him Virgil
Manco had visited his home, and that Goad had instruct-
ed Manco to contact Bryant if he wanted a job . Bryant
testifies that he unsuccessfully tried to phone Virgil
Manco twice because Goad asked him to, but that Goad
gave no advise on whether to hire him.
Virgil Manco has never contacted Bryant , and con-
cedes he has never gone to the plant and asked to be
interviewed nor has he called BGC and requested an
interview . He states that he knew Bryant and Goad were
both interviewing job applicants.
Of the three , Bryant, Manco, and Goad , I observed
Bryant to be the witness more open and less guarded in
his testimony . Manco was not particularly impressive in
terms of demeanor, nor was Goad. Considering the com-
parative testimonial demeanor of the three , together with
failures to deny , lack of certainty, and impressiveness of
detail or the lack of it in their various testimonies, I
credit Goad that Manco asked him for a job in June, and
he told Manco to go see Bryant about it. Bryant is cred-
ited that Goad told him Manco had been instructed to
contact Bryant if he wanted a job , and that he tried to
call Manco . I do not credit Manco that he was not told
to contact Bryant about a job. As Manco concedes, he
was aware employees were being interviewed, but he
made no effort to secure an interview . I do credit Manco
that he called Goad in September 1988 and had the con-
versation he testified to. Two spreaders and a cutter
were hired in October 1988 . When Manco called Goad,
Respondent had two cutters and a cutter/spreader. Both
cutters , had been employed at BMC . One had been a su-
pervisor there . The cutter/spreader was terminated prior
to the October hires. One of the spreaders hired in Octo-
ber was Kenneth Meredith who had worked for BMC.
Goad knew Manco was an influential union officer.
This made Goad apprehensive that Manco might be able
to influence BGC' employees to support the Union. That
Goad tried to assure that those ' he' hired would not be
influenced by Virgil Manco to support the Union is clear
from his comments to Linda Manco , Jeffrey Lashley,
and Ronnie Decker. The interrogations and threats found
violative of Section 8(a)(1) of the Act support a conclu-
sion Goad was fiercely opposed to unionization of the
new company . When one combines Respondent 's knowl-
edge of Virgil Manco 's union activities, and a failure to
offer Manco a job in October , although it then offered
one to Lashley as a spreader, when it knew Manco had
earlier expressed a need for a job , the combination is suf-
ficient to prima facie support an inference Virgil Manco's
protected conduct was a motivating factor in Respond-
ent's failure to hire him . In arriving at this conclusion; I
have considered ' General Counsel 's suggestion that the
fact only 1 of 11 former union officers who were in
office when BMC closed was hired is probative evidence
of discrimination . This suggestion has little weight when
one considers that the charge in Case 26-CA-13028 ini-
tially alleged nine former union officers were denied em-
ployment, the complaint alleges five of the nine, and
General Counsel argues in her posttrial brief that:
The fact that several other applicants who were
Union officers at BMC have not been alleged in the
Complaint herein as discriminatees should neither
reflect on the General Counsel's case nor aid Re-
spondent 's. It is well known that even if there exists
a prima facie case with respect to an individual,
where a respondent has a valid Wright Ling [251
NLRB 1083 (1980] defense, the General Counsel
will not allege a violation.
In short , General Counsel , by this latter argument, im-
plies, indeed almost boldly states, an opinion that four of
the nine employees originally alleged were not discrimi-
nated against because Respondent had valid reasons for
its actions vis-a-vis the four . Add these 4 employees who
have been lawfully treated by Respondent so far as this
record shows, to the 1 employee who was hired , and the
1 out of 11 statistic is meaningless.
Respondent asserts (1) in its posttrial brief that James
Dickson, cutter supervisor at BMC, and Arnold Duvall,
cutter at BMC, who were hired on July 11, 1988, as the
cutters at BGC were more versatile and more qualified
than Virgil Manco, (2) Virgil Manco lived outside Ed-
monson County, Kentucky, and (3) he never came to the
plant nor called for an interview . With respect to item
(1), in its answer to the second consolidated complaint
Respondent raised the affirmative defense that the failure
to hire certain individuals on or about July 1988 alleged
in the complaint occurred more than 6 months before the
charge on which the allegation is based was filed, and
the period of limitation set forth in Section 10(b) of the
Act governs. At hearing, General Counsel amended the
complaint without objection to read the alleged refusals
to hire took place since on or about August 10, 1988.
The applicable charge in Case 26-CA-13028 was filed on
February 10, 1989, but not served until February 13,
1989. Section 10(b) of the Act provides that no com-
plaint shall issue based on an unfair labor practice occur-
ring more than 6 months prior to the filing and service
of the charge. 12 The day of the alleged unfair labor
practice is not counted in computing the 6-month
period.13 The limitations period in the instant case ex-
tends to August 12, 1988. I therefore find the hiring of
Dickson and Duvall as cutters on July 11, 1988, did not
unlawfully exclude Virgil Manco from employment.
Moreover, the failure to hire Virgil Manco prior to
August 12, 1988, may not be, found an unfair labor prac-
tice.
Two spreaders and a cutter were hired in October
1988. These hires were the result of a switch from the
production of chenille robes to women 's' suits at about
that time . I am -persuaded these were the job openings
12 Teamsters Local 174, 226 NLRB 690, 701 (1976).
11 MacDonald's Industries Products, 281 NLRB 377 (1986).
516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
about which Manco inquired on September 26,14 and the
issue is the failure to hire Virgil Manco in October after
he had just repeated his interest in employment. Kenneth
Meredith, whom Manco had trained, was hired as a
spreader on October 26. John K. Decker was hired as a
bundle boy on October 5 and then became a spreader
with no prior experience. Stacy Vincent, who had no
prior experience, was hired on October 9 as a cutter
trainee. None of these employees hired to cut and/or
spread in October 1988 had as much experience as
Manco, and the record does not show their qualifications
were otherwise superior to his in any particular. Nor
does Respondent explain why it tried to hire Timmy
Vincent and Lashley as spreaders, but did not contact
Manco even after Vincent and Lashley had rejected em-
ployment. Manco trained Lashley, and it would seem
that Manco had better qualifications than he.
Turning to item (2), Jack Chester Porter testified that
he owns six banks in five different counties, and the
greatest percentage of depositors reside in the county
where the bank is located. He therefore told Goad and
Bryant that his main interest was to employ as many Ed-
monson County, Kentucky residents as possible in order
to develop extra customers for the Brownsville Deposit
Bank owned by him, his brother, and Bryant's wife.
Porter also set up a direct payroll system so BGC em-
ployees were paid by direct deposits in that bank in
order to encourage them to bank there. Virgil Manco
lives in Leitchfield, Grayson County, Kentucky. Exclud-
ing Joseph Bryant, who does not live in Edmonson
County, Respondent has hired at least I 1 employees who
reside outside Edmonson County. I therefore conclude
the contention that a reason for not hiring Virgil Manco
was his failure to reside in Edmonson County is a weak
reed upon which to lean and is an attempted excuse
rather than a valid reason.
It is true, as Respondent contends in item (3), that
Manco did not visit Bryant or request an interview even
though he knew interviews were being conducted.
Bryant testified, however, that it was he who initiated
interviews by calling applicants. He testified he made
two unsuccessful calls in an effort to contact Manco.
This is not particularly impressive because, as Bryant tes-
tified, on those occasions he could not use a phone to
contact applicants he would try to find some employee
who knew or lived by the applicant to relay his message
to the applicant. On one occasion he notified an appli-
cant by mail of a scheduled interview. That person was
later hired. All the former employees of BMC would
have known who Manco was by virtue of his long
tenure as union president and his continued active role
contacting employees, some of whom, he talked to out-
side Respondent's facility. The failure to utilize other
employees and/or the mail service to notify Manco he
could have a job interview persuades me, in the light of
Goad's expressed hostility toward union activities, that
Respondent did not want to hire Virgil Manco even
though spreaders and cutters were needed, and the
reason was his continued union activity which threat-
14 Respondent also hired Carlton Skaggs as a cutter and spreader from
September 19 to 27 It does not appear he had worked for BMC.
ened BGC with the possibility of union representation of
its employees. The effort to shift the burden of securing
a job interview to Virgil Manco, in contrast to Bryant's
stated policy of informing those he wished to interview,
is rejected as incredible.
The reasons asserted by Respondent have been found
without substance and fall far short of showing Manco
would not have been hired in the absence of his union
office and activities. Accordingly, I conclude and find
General Counsel has shown by a preponderance of the
credible evidence that Respondent failed and refused to
hire Virgil Manco in order to discourage union member-
ship and activity, and by so doing violated Section
8(a)(3) and (1) of the Act. In arriving at this conclusion
and my conclusions regarding other failures to hire dis-
cussed below, I have considered that Respondent has in
fact hired several persons who occupied union offices at
BMC at various times.
2. Linda Manco
Linda Manco is Virgil Manco's ex-wife. She worked
for BMC as a machine operator from 1973 to 1987 when
it closed. She was a union steward for the last year she
worked at BMC. On July 8, 1988, she filed an applica-
tion for employment with BGC. Bryant called her into
the plant for an interview on July 18, 1988. He made no
commitment whether or not she would be employed.
Some time in late July, Linda Manco called Goad and
asked if it were true Respondent would not hire shop
stewards. Goad replied it was not true.
According to Linda Manco, in response to word sent
her by Goad in late August, she went to see him in his
office. There he asked if Virgil Manco would be an in-
fluence on her if she went to work there. She replied
that she did not think so, but would not say for sure.
Goad remarked that it was a close community, and he
knew how close she and Virgil had been when they
were married, and he thought Virgil Manco would be an
influence on her. Linda Manco replied she did not think
he would. Goad asked if she ever saw Virgil Manco. She
replied they did see each other because they have a
daughter with crippling arthritis. They then discussed
her breathing problem, which is a chronic lung infection
that caused her to be hospitalized in 1986 and 1987. She
told him she wanted to work, would try to work,, and
thought she could work, but was not sure. BGC was
manufacturing the chenille robes at the time, but Goad
said there would be a jacket line coming in later on. She
and Goad walked out to her car where her daughter was
waiting . There, as she and her daughter prepared to
leave, Goad said, "We'll be calling you in two or three
days." Her daughter, Debbie Manco, recalls Goad saying
"I'll be calling you in two or three days." A week or
two later, recalls Linda Manco, she saw Goad in front of
the bank and asked why she' had not heard from him. He
said there was trouble with the hemmers, work was
backed up, and they could not call anyone in until that
was straightened. As they parted, Linda Manco said,
"You won't forget me, will you." Goad said "No."
Debbie Manco was again present. She recalls Goad
saying some machines were down and he, would be get-
BROWNSVILLE GARMENT CO. 517
ting in touch with her mother . Linda Manco's testimony
regarding Goad's statements to her outside the plant and
at the bank are corroborated by Debbie Manco, unden-
ied by Goad, and credited . She has never been called in
to work even though BGC has employed over 50 ma-
chine operators since her discussions with Goad.
Joseph Bryant testifies that when he interviewed
Linda Manco she said she had a breathing problem and a
screw in her foot, and could not stand for long periods
of time. He therefore asked Ellen Priddy or Jesse Miller
about Linda Manco, and was told she did have a breath-
ing problem . Priddy confirms that Bryant did ask her,
Miller , and Shirley James about applicants, and did ask
her about Linda Manco , whereupon she relayed the
opinion of Shirley James, Linda Linda Manco's supervi-
sor at BMC but now an operator for BGC. According to
Priddy, James told her and she reported to Bryant that
Linda Manco had a problem with her lungs, and it
would not be wise to put her on the robe line due to the
considerable problem Respondent had with chenille lint.
Bryant says that he determined it made no sense to hire
someone with a breathing problem in Respondent's work
environment . Employees were wearing masks while
making the robes. Linda Manco credibly testified that
there was a similar lint problem with velvet at BMC in
1987, but she worked in it a lot while wearing a mask,
had no trouble breathing, and missed no time from work
while working with velvet . Goad would have known
this because he was plant manager at BMC ' at the time.
Respondent takes the unusual posture in its posttrial
brief that Linda Manco has been neither hired nor reject-
ed, but then points to her breathing problem , the screw
in her foot which she has had for 22 years, a report she
was slow , and a report she had trouble threading a
sewing machine as reasons for not hiring her. It is clear
from a careful reading of Bryant 's testimony that his real
concern was Linda Manco's past history of breathing
problems. The others were clearly afterthoughts. More-
over, her successful employment as a machine operator
for 14 years despite the screw in her ankle and the other
matters referred to should have given Bryant some
reason to believe her work had been satisfactory.
Respondent's argument in its posttrial brief that Linda
Manco has neither been hired nor rejected is directly
contrary to Bryant's testimony that he determined not to
employ her because of her breathing problem, and
Goad's failure to deliver on his promises to Linda
Manco . A refusal to hire is patently a rejection and
leaves no room for an argument on semantics . Neverthe-
less, I do not credit Bryant 's testimony that he made his
decision soon after the July 18 interview . Goad would
have had no reason to interview Linda Manco or fear
Virgil Manco's influence over her in late August if the
final decision had already been made not to hire her.
Moreover, assuming arguendo Bryant had made a deci-
sion not to hire her in July , which could not be found an
unfair labor practice due to the strictures of Section
10(b) of the Act, the chenille work was about to run out
when Goad informed her in late August that work on
jackets would be coming available , and promised to call
her, and verified that promise in about early September.
When the chenille work vanished , Ms. Manco's history
of breathing difficulties ceased to be a determinative
factor, if it ever was. Goad led her to believe , and she
had reason to believe, she would have a job when the
new work commenced , but she was not hired even
though some 50 or so others were. It is beyond the realm
of probability that there was no job for which she was
suited.
It is obvious from Goad 's questions during the late
August interview of Linda Manco , as well as his state-
ments to others reported hereinabove , that he feared
Virgil Manco's influence over other employees would
spark unionization of those employees . There is no evi-
dence of any things Virgil Manco was stirring up other
than a continued presence to which Goad remained unal-
terably opposed . That Goad did not really believe Linda
Manco could resist her ex-husband 's influence is made
clear by the extent of his interrogation into the frequen-
cy of their contacts with each other . I am persuaded
Goad determined not to hire Linda Manco after he as-
certained there was some doubt she would resist Virgil
Manco's efforts to sustain continued union support and
therefore could not be trusted in that respect. Accord-
ingly , as part of his effort to thwart the Union's efforts
to retain or regain its representative status, he decided to
fend her off with false promises while failing to employ
her. General Counsel had made out a prima facie case
Linda Manco was denied employment as a machine op-
erator in order to discourage union membership. Re-
spondent 's rebuttal does not convince that she would not
have been hired in the absence of union activity . General
Counsel has therefore shown by a preponderance of the
evidence the failure and refusal to employ Linda Manco
after her August interview with Goad violated Section
8(a)(3) and (1) of the Act.
3. Odeline Van Meter
Van Meter worked for BMC from 1973 until it closed.
For the final 3 or 4 years she was a machine operator.
Before that she was a utility person capable of perform-
ing every job in her department . She had earlier worked
for Kellwood Co., a predecessor to BMC, as a utility
person . Her supervisor at BMC was Jesse Miller. When
BMC closed she had been Local 203 recording secretary
and an executive board member for 1-1/2 to 2 years. She
filed an employment application ' at BGC on July 8, 1988,
seeking work as a machine operator , but not showing her
experience as a utility person . She, like Virgil Manco,
lives in Grayson County. She has never been inter-
viewed, hired , or contacted for interview.
After testifying that he had received 501 applications,
of which 180 were former BMC employees , Joseph
Bryant gave the following testimony regarding the fail-
ure to hire Van Meter:
Q. How did it happen that Odeline Van Meter
was not hired?
A. I just never got their application, I never re-
viewed it . There was a lot of applications, 500
that-her's just never did show up. I looked at all
of them, but there were other people that were
more qualified or available that were calling me or
518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
coming in every time we needed somebody, we just
employed these other people. I just never-
Q. Do you have any recollection or record of
Odeline Van Meter having called and asked to
come in for an interview?
A. No, I don't.
Q. Do you have any recollection of ever having
heard from Odeline Van Meter?
A. No.
Q. You just know that there is an application in
your stack of 501 from her?
A. We had one from her, that is correct, yes.
This confused testimony explains nothing. Bryant says he
looked at all the applications, but never reviewed hers,
but employed other people who were more qualified or
available. According to Respondent's posttrial brief, Van
Meter has not been rejected for employment and BGC
has not expressly rejected any applicant except Angela
Webb. If that is the case, Van Meter's application is
being treated as a continuing application by Respondent.
The issue therefore would be whether the selection of
others for jobs which Van Meter is qualified to perform
on and after August 12, 1988, was legitimate or designed
to deny Van Meter employment for unlawful reasons.
Respondent's records show more than 50 employees
hired on the sewing lines; from August 12, 1988, to the
time of the hearing. Most of them are machine operators.
Respondent has hired 44 inexperienced employees.
Van Meter's position as recording secretary of the
Union, and thus close association with Virgil Manco in
the conduct of union affairs; Respondent's obsessive fear
that association with Manco will cause prounion activ-
ism; the failure to give any believable reason why Van
Meter was not hired but forty-four inexperienced em-
ployees were; the absence of any other evidence to sup-
port Bryant's confused claim there were others hired
who were more qualified or available than Van Meter;'5
the discredited claim in Respondent's posttrial brief that
a reason to pass over Van Meter was her out of county
residence; and the effort to pin responsibility on her to
arrange an interview even though the practice was for
Bryant to initiate such arrangements, combined with
Goad's unlawful threats and interrogations and the un-
lawful refusal to hire the Mancos are sufficient to estab-
lish a prima facie case that the desire to discourage union
membership and activity was a motivating factor for the
failure to hire Van Meter. The reasons proffered by Re-
spondent for this failure to hire are exposed as pretext
when closely examined . It has long been held that the
presentation of false reasons in circumstances like those
here present gives rise to an inference of unlawful moti-
vation which is part of General Counsel's prima facie
case.'6 Moreover, my finding of pretext leaves Respond-
ent without an acceptable explanation of its actions,17
15 Van Meter's application bears the notation she is immediately avail-
able for work
16 Shattuck Denn Mining Corp . v. NLRB, 362 F.2d 466, 470 (9th Cir.
1966)
17 Limestone Apparel Corp.., 255 NLRB 722 (1981 ), enfd. 705 F 2d 799
(6th Or 1982).
and General Counsel 's case has not been rebutted. The
failure to hire Van Meter violated 8 (a)(3) and (1) of the
Act.
4. Angela Webb
Angela Webb was a serger operator at BMC for 14
years. She served on the Union's executive board for 9
years and was a shop steward for 9 or 10 years. Like
other applicants, she filed for employment with BGC on
July 8, 1988, the first day applications were received.
She was interviewed by Bryant in mid-August. In Octo-
ber she visited Goad's office and told him she had heard
he was giving her bad references. He denied this, but her
suspicion was accurate. Goad admits he told Bryant
there was a personality conflict between him and Angela
Webb and he therefore did not feel she should be hired.
She was not hired. Bryant confirms Goad told him he
had a personality conflict with Angela Webb.
Goad testified that his opposition to Angela Webb's
employment was caused by a report he had received
that:
She made a statement in front of a group of people,
Union people, some people from downtown and ev-
erything else that it was my fault that Brownsville
Manufacturing Company closed, that I was driving
a company car, me and my wife drove a company
car, and that was one of the things. But there's
other things said also.
Angela Webb recalls the meeting in question was held
in a school cafeteria shortly after BMC closure. Present
were BMC employees, union officers, supervisors and
management people, members of the local chamber of
commerce, and a local attorney. It was not a union meet-
ing, but appears to have been an open meeting for all
those concerned about BMC's closure to voice their con-
cerns and suggestion. Goad was not present. Angela
Webb testified as follows regarding what she said at this
meeting relating to Goad:
Well, they were going about how the company
was losing money and I said "Well, if the company
was losing money," I said "How can they afford to
furnish a car for Lamar to take his son to school
and his wife to drive around if they were losing
money one way, why couldn't they be losing it an-
other way."
I do not agree with General Counsel that Goad per-
ceived Angela Webb's remarks as union activities, nor do
I agree he caused her not to be hired because he be-
lieved her conduct to be union activities, or that his in-
struction to Bryant is evidence of antiunion hostility.
When Goad testified it was clear from his demeanor and
delivery, which manifested genuine outrage at the ver-
sion of Angela Webb's remarks communicated to him,
that he considered her comments an unjust and uncalled
for charge that his use of company resources was a
causal factor in the closure of BMC. Goad caused
Angela Webb not to be hired because he strongly resent-
ed her remarks as reported to him, and not because of
BROWNSVILLE GARMENT CO. 519
any union office she may have held or any other protect-
ed activity she may have engaged in . Her comments
about Goad were an exercise of free speech under the
constitution , but not activity protected by the Act. Ac-
cordingly , I find General Counsel has not made out a
prima facie case that the refusal to hire Angela Webb
was in part or whole unlawfully motivated . I further find
that, even if it be concluded the failure to hire was prima
facie caused by Respondent's resentment of her previous
positions in the Union or other union related activity,
Respondent has shown she would not have been hired
because of the remarks reported to Goad even if there
had been no protected activity.
5. Pearl Webb
Pearl Webb had 14 years as a machine operator. She
was the chief union steward at BMC the last 5 or 6 years
until it closed. Shop stewards would bring unresolved
problems to her. She would then try to settle the matter
with Goad who was the plant manager at BMC or, on
occasion, with the production manager. She was also on
the Union's executive board and its negotiating commit-
tee dealing with Goad.
She filed an application with BGC on July 8, 1988,
and was called in and interviewed by Bryant about 2
weeks later. She had no further contact with BGC, and
was not offered employment.
Bryant asked Jessie Miller, who had been a supervisor
at BMC, about Pearl Webb. Miller told him Webb was a
slow operator and had trouble being trained for different
jobs.18 Bryant says he did not employ Pearl Webb be-
cause she was a slow operator. Pearl Webb concedes she
was twice warned about her production in early 1980,
and was not making production when BMC shut down.
Webb testifies that Edna Denham, who was hired by
BGC on November 17, 1988, to set facing to lining, the
same job Webb performed at BMC, was also called in re-
garding low production when Webb was some 4 or 5
years before BMC closed. Webb and Denham were both
on the facing line at the time.
The failure to call Jessie Miller to testify in support of
Bryant gives rise to some suspicion that she may not
have corroborated his testimony. Respondent certainly
knew of Pearl Webb's union activities at BMC, and Re-
spondent opposed union organization of its employees.
Respondent has also been found in violation of Section
8(a)(3) and (1) in other instances. Nevertheless, these fac-
tors together with a merely, suspicious rather than de-
monstrably false reason for failing to hire Pearl Webb do
not warrant a positive finding her union activity or sym-
pathy was a consideration in the failure to hire her.19
General Counsel has not established the failure to hire
her was unlawfully motivated.
CONCLUSIONS OF LAW
1. The Respondent, Brownsville Garment Company,
Inc., is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
18 Miller, currently a supervisor at BLOC, was not called to testify,
19 Briarwood Hilton, 222 NLRB 986, 991 (1976).
2. The Union, Local 203, International Ladies Gar-
ment Workers Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The following unit of employees is appropriate for
collective bargaining:
All production and maintenance employees of Re-
spondent, including shipping employees, expediters,
repair employees, cutters, spreaders, mechanics,
bundlers, and piece workers; excluding office cleri-
cal employees, guards, and supervisors as defined in
the Act.
4. The Union has been and is the exclusive representa-
tive of all the employees within the appropriate unit for
purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
5. By refusing on or about September 19, 1988, and at
all times thereafter, to recognize and bargain collectively
with the Union as the exclusive collective-bargaining
representative of all its employees in the appropriate
unit, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
6. By unilaterally, without giving the Union timely
notice or opportunity to bargain -thereon, changing unit
employee wages from hourly to piece rate on or about
January 16, 1989, Respondent violated Section 8(a)(5)
and (1) of the Act.
7. By failing and refusing to hire Virgil Manco, Linda
Manco , and Odeline Van Meter since on or about
August 12, 1988, in order to discourage union member-
ship and activity, Respondent violated Section 8(a)(3)
and (1) of the Act.
8. By coercively interrogating its employees regarding
their union sympathies and those of others, Respondent
violated Section 8(a)(1) of the Act.
9. By threatening to close its plant and/or move it if
the Union succeeded in securing exclusive representation
status on behalf of its employees, Respondent violated
Section 8(a)(1) of the Act.
10. By soliciting its employees to sign an antiunion
statement, Respondent violated' Section 8(a)(1) of the
Act.
11. The violations of the Act set forth above are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
12. Respondent did not violate Section 8(a)(3) or (1) of
the Act by failing or refusing to hire Pearl Webb and
Angela Webb.
THE REMEDY
In addition to the usual cease-and-desist order and
notice posting requirements, my recommended Order
will require Respondent to recognize and bargain with
the Union on request, and to offer Virgil Manco, Linda
Manco, and Odeline Van Meter employment in the posi-
tions for which they applied, or substantially equivalent
positions if those for which they applied no longer exist,
and make them whole for all wages lost by them as a
result of Respondent's unlawful failure and refusal to hire
them, backpay to be computed in the manner prescribed
520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in F. W. Woolworth Co., 90 NLRB 289 (1950), with in-
terest as computed in New Horizons for the Retarded.20
Respondent shall also be required, on request by the
Union, to rescind any unilateral changes it made in
wages; however, this Order should not be construed as
requiring Respondent to cancel any wage increase or
other improvement in wages without a request from the
Union. Respondent is also ordered to make unit employ-
ees whole by reimbursing them for any wages they may
have lost as a result of its unlawful unilateral changes,
with interest computed in accord with New Horizons for
the Retarded as set forth above.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed21
ORDER
The Respondent, Brownsville Garment Company,
Inc., Brownville, Kentucky, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in the Union, or any
other labor organization, by failing or refusing to hire
employees or otherwise discriminating in any manner in
respect to their tenure of employment or any term or
condition of employment.
(b) Refusing to recognize and bargain with the Union
as the exclusive bargaining representative of all the em-
ployees in the above-described appropriate unit.
(c) Coercively interrogating employees about their
union sympathies.
(d) Threatening to close or move its business operation
if employees select a union to represent them.
(e) Soliciting its employees to sign antiunion state-
ments.
(f) Unilaterally, without giving the Union timely
notice or opportunity to bargain thereon, changing em-
ployee wage rates or method of wage computation.
(g) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act.
20 In accordance with the decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U.S.C. § 6621.
21 If no exceptions are filed as provided by Sec. 102 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 for all pur-
poses
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request , bargain collectively
with the Union as the exclusive collective -bargaining
representative of the employees of Respondent in the ap-
propriate bargaining unit described below:
All production and maintenance employees of Re-
spondent , including shipping employees , expediters,
repair employees, cutters, spreaders , mechanics,
bundlers, and piece workers ; excluding office cleri-
cal employees , guards, and supervisors as defined in
the Act.
(b) Rescind the unilateral changes it made in wages on
or about January 16, 1989, if the Union requests such re-
scission.
(c) Make employees whole for any loss of wages they
may have suffered as a result of Respondent's January
16, 1989 change from an hourly wage to a piece rate in
the manner set forth in the remedy section of this deci-
sion.
(d) Offer to hire Virgil Manco, Linda Manco, and
Odeline Van Meter to the jobs for which they applied,
or if those jobs no longer exist, to substantially equiva-
lent positions, and make them whole for any loss of earn-
ings suffered by reason of Respondent's unfair labor
practices in the manner set forth in the remedy section of
this decision.
(e) 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.
(f) Post at its Brownsville, Kentucky facility, copies of
the attached notice marked "Appendix."22
(g) Notify the Regional Director for Region 26 in
writing within 20 days from the date of this Order what
steps Respondent has taken to comply.
IT IS FURTHER ORDEREDthat the complaint be dis-
missed insofar as it alleges violations not specifically
found herein.
22 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."