Buddy Schoellkopf Products, Inc.

National Labor Relations Board - Board Decisions

Dec 8, 1967

168 N.L.R.B. 794 (N.L.R.B. 1967)

794 DECISIONS OF'NATIONAL LABOR RELATIONS BOARD
Buddy Schoellkopf Products , Inc. and Southwest
Regional Joint Board , Amalgamated Clothing
Workers of America , AFL-CIO. Case
16-CA-2847
December 8,1967-
DECISION AND ORDER
By CHAIRMAN MCCULLOCH ANND MEMBERS
FANNING AND ZAGORIA
On August 21, 1967, Trial Examiner Robert L.
Piper issued his Decision in the above-entitled
proceeding, finding that Respondent had not en-
gaged in the unfair labor practice alleged in the com-
plaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, Southwest
Regional Joint Board, Amalgamated Clothing Work-
ers of America, AFL-CIO, filed exceptions to the
Decision and a supporting brief. The Respondent
filed a brief in reply to the exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner. I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the complaint herein be, and it hereby is,
dismissed in its entirety.
' Exceptions were filed to the Trial Examiner's credibility findings. The
Board does not overrule a Trial Examiner 's resolutions as to credibility
except where the clear preponderance of all the relevant evidence con-
vinces us that the Trial Examiner 's resolutions were incorrect . No such
conclusion is warranted in this case We therefore adopt the Trial Ex-
aminer's credibility findings , and his findings of facts based thereon.
Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362
(C A. 3).
1967, pursuant to due notice. The complaint, which was
issued on April 17, 1967, on a charge filed November 22,
1966,1 alleged in substance that Respondent engaged in
an unfair labor practice proscribed by Section 8(a)(3) and
(1) of the Act by constructively discharging Neva Nell
Pope, an employee, because of her union activities.
Respondent's answer denied the alleged unfair labor
practice. The General Counsel and Respondent filed
briefs.
Upon the entire record in the case and from my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent is a Texas corporation with its principal of-
fice and plant in Mineola, Texas, where it is engaged in
the manufacture and sale of sports goods and sportswear.
During the past year it sold and shipped more than
$50,000 worth of products directly to points outside the
State of Texas. Respondent admits and I find that it is en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Southwest Regional Joint Board , Amalgamated
Clothing Workers of America, AFL-CIO (hereinafter
called the Union), is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and Issues
Mrs. Neva Nell Pope was employed in Respondent's
sleeping bag department for approximately 7 years. Dur-
ing the last 2 years she was the leadwoman, assistant to
Mrs. Ruby Baldwin, the supervisor, or forelady, of the
sleeping bag department. In November 1965 Pope was
made a member of the Union's negotiating committee.
She attended all bargaining meetings between Respond-
ent and the Union until her resignation. At the bargain-
ing sessions of March 17 and 29, Respondent informed
the Union and Pope that her position as leadwoman was
being abolished for economic reasons, suggested her
transfer to any other available position, and offered the
job of inserting zippers in the sleeping bag department as
the best job available. On or about May 2, Respondent
transferred Pope to the insert zipper job. On or about
May 28 Pope quit her employment because of physical
difficulties encountered in connection with that job.
The single issue framed by the pleadings is whether
Respondent constructively discharged Pope, because of
her union membership and activities, by transferring her
to a position which was so physically difficult and
onerous as to cause her to quit. There are no allegations
of independent violations of Section 8(a)(1) of the Act.2
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT L. PIPER, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations Act,
as amended, was heard at Tyler, Texas, on May 17,
All dates hereinafter refer to 1966 unless otherwise indicated.
z Pursuant to motion, official notice was taken of the Board's Decision
(164 NLRB 660) in a prior proceeding between the same parties, in-
volving Respondent 's main plant at Dallas as well as the Mineola plant, in
which the Board found Respondent engaged in interference, restraint, and
coercion and discrimination.
168NLRB^,.. 104
BUDDY SCHOELLKOPF PRODUCTS, INC.
B. Chronology of Events
Respondent's Mineola plant is a sewing factory. Pope
was continuously employed in Respondent's sleeping bag
department since March 1959. She held various operator
jobs, including the bar tacking machine, the cutting table,
the loader, and the joining machine. For approximately 2
years prior to her transfer May 2, Pope was employed as
Baldwin's assistant, or leadwoman, in the sleeping bag de-
partment. Baldwin admittedly was the supervisor of that
department. Although Respondent did not allege or con-
tend that Pope was a supervisor, and the General Coun-
sel and the Union concede that Pope was an employee
and not a supervisor within the meaning of the Act, the
subject matter of her duties and status as an employee or
supervisor was thoroughly litigated. As leadwoman and
Baldwin's assistant Pope assisted Baldwin in scheduling
and maintaining production on the sleeping bag line.
Pope's duties were primarily clerical, plus the transmis-
sion of routine instructions, all under Baldwin's supervi-
sion and direction. Pope received no increase in pay when
appointed Baldwin's assistant. Pope had no authority to
hire, transfer, suspend, layoff, recall, promote, discharge,
assign , reward, discipline, responsibly direct, or adjust
the grievances of, any employees, or effectively recom-
mend such action. The record clearly establishes that
Pope was an employee and not a supervisor within the
meaning of the Act.
Pope joined the Union in August 1965 during its or-
ganizational campaign. She voted unchallenged in the
election October 22 which the Union won. On
November 4 Pope was elected to the Union's negotiating
committee. Negotiation meetings were held between the
Union and Respondent on November 5 and 12, 1965,
January 25, February 7 and 9, and March 2, 3, 16, 17,
and 29. Pope attended each of these. At several of the
negotiation meetings prior to March 17 Respondent was
represented by Mr. Dunlap, a predecessor to its present
counsel, Mr. Lyne. At several of these meetings Dunlap
questioned or objected to the presence of Pope as a
member of the Union's negotiating committee, apparently
contending that as a leadwoman she was a supervisor
within the meaning of the Act. There was no reply to or
disposition of his contentions. At the negotiation
meetings of March 17 and 29, at which Lyne replaced
Dunlap and represented Respondent, Respondent con-
ceded that Pope was an employee and not a supervisor
within the meaning of the Act. The pertinent portions of
the minutes of the March 17 and 29 meeting were stipu-
lated.
In addition to its sleeping bag line Respondent also
operated pants, jacket, and hunting cap lines. In early
March, because of the loss of contracts and lack of de-
mand, Respondent decided to discontinue its hunting cap
line. Modine Rohus was the supervisor of that line. All of
the employees were transferred to other operations.
Because the work of the sleeping bag line had grown ex-
tensively, the number of employees had increased ap-
proximately 20, and the work was too much for Baldwin,
Respondent decided to transfer Rohus to the sleeping bag
department and divide the operation into two lines, one
under the supervision of Baldwin and the other under the
supervision of Rohus. Rohus, an experienced operator
795
and supervisor for many years, was not specifically ex-
perienced in the sleeping bag operation. Respondent
transferred Rohus to the sleeping bag department on
March 14. At that time Respondent had no other vacancy
in a supervisory position.3 About a month prior, Respond-
ent had divided its pants and jacket line into two lines
and appointed an employee with 10 years' experience as
the supervisor of the pants line.
As a result of the division of the sleeping bag depart-
ment into two lines and the appointment of a second su-
pervisor, Respondent no longer needed the services of a
leadwoman in the sleeping bag department and hence de-
cided to abolish that position. At the negotiation meeting
on March 17, Respondent advised the Union and Pope,
who was present as a member of the negotiating commit-
tee, of Respondent's decision to abolish her position of
leadwoman and the economic reasons therefor, including
the elimination of the cap line and the transfer of Rohus
to the sleeping bag department as a second supervisor.
Respondent advised the Union that as a result Respond-
ent was in the position of either letting Pope go or find-
ing a new place for her, and that it wanted to work out a
new job for her. Respondent further advised the Union
that although Rohus had already been transferred, the
position of leadwoman would be maintained temporarily
until Rohus became familiar with the operation. There
was no further discussion of the matter at that meeting.
At the next negotiation meeting on March 29, Lyne
again brought up the abolishment of Pope's position, the
reasons therefor, and Respondent's proposal that she be
transferred to another job. Respondent stated that it was
willing to discuss any available job and was offering Pope
the job of inserting zippers because in Respondent's
opinion that was the best job available. Respondent
pointed out that the job offered Pope was one of the best
paying jobs in the plant and offered to give her a 120-day
breaking-in period. The Union asked if any steps would
be taken to protect Pope's pay rate. Respondent replied
that Pope's rate would be protected for 90 days although
the Union had only requested 30 days. The Union said
that it wanted time to think the matter over. Lyne advised
the Union that Respondent was not pressing but wanted
to make its change by the end of the week and again
stated that Respondent was willing to discuss any availa-
ble job in the plant. Pope of course was familiar with the
requisites of the job of inserting zippers in the sleeping
bag department, inasmuch as she had worked in that de-
partment for approximately 7 years. Pope was not in fact
transferred to the new job of inserting zippers until on or
about May 2. Pope, in addition to performing her regular
job of assisting Baldwin, spent much of the intervening
time instructing Rohus in her new duties.
The stipulated minutes of the meeting of March 29
establish that the Union and Pope did not object to the
proposed transfer and did not discuss the possibility of
Pope's transfer to any other job, although Respondent
was willing to discuss any available job. Although
Respondent requested the Union to reach a decision on
the matter by the end of the week, and in fact did not
transfer Pope until more than a month later, the Union
never objected to the transfer or requested any other
position for Pope. Contrary to such stipulated minutes,
Pope testified that at that meeting she and Mr. Lampert,
3 Throughout these findings, where the testimony is in conflict, I credit
Baldwin and Chandler, and do not credit Pope.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union' s attorney, asked Respondent to transfer Pope
to either the job of making hulls or the joining machine in-
stead of the job of inserting zippers. Her testimony was
not corroborated and I do not credit it.
Pope also testified that on March 29 shortly after the
meeting she asked Baldwin to transfer to the hull-making
job. A few days previously Baldwin had told Pope that
job would become a full-time job although it had previ-
ously been a part-time job. Baldwin denied that Pope
made such a request at that time . Baldwin , whom I credit,
testified that on March 29 after the meeting Pope told
Baldwin what had occurred and asked her if Pope was to
start working on the job of inserting zippers that day or
the next day. Baldwin replied that that was the first she
had heard of it and that she would check . Later the same
day Baldwin informed Pope that for the time being she
should continue to work as the leadwoman until further
notice . Baldwin further testified that shortly before Pope
was transferred to the job of inserting zippers on May 2,
Pope asked if she could have the job of sewing hulls in-
stead . Baldwin replied that she understood that the
transfer had been discussed at the negotiation meeting
and that the matter was settled . According to Pope, when
she asked Baldwin if Pope could transfer to the job of
making hulls Baldwin checked with Delbert Chandler,
Respondent 's executive vice president , who replied that
anyone could perform the job of making hulls, which
reply Baldwin relayed to Pope. This seems entirely
probable, inasmuch as the record establishes that the job
of making hulls was regularly assigned by Respondent to
new or inexperienced operators and did not require the
services of an operator of Pope 's skill and experience.
Baldwin recalled that she had advised Chandler and Dar-
rell Hosea, Respondent's plant manager , of Pope 's belated
request to be assigned the job of making hulls. Under
either version of Baldwin 's reply it is clear that neither
Pope nor the U nion for more than a month prior to Pope's
actual transfer to the job of inserting zippers requested
Respondent to transfer Pope to any other position in
reply to its suggestions and offer at the meeting of March
29.
On Monday, May 2, having received no reply from the
Union, Respondent transferred Pope to the job of insert-
ing zippers in the sleeping bag line. The record establishes
that the job was physically difficult and often caused
physical discomfort to employees when they began to
perform the operation . It required the expenditure of con-
siderable physical effort and the use of muscles not nor-
mally used in the other sewing operations . The sleeping
bags weighed from 3 to 5 pounds and some measured 90
by 90 inches . The operator was required during the
course of the operation to lift and handle these bags re-
peatedly. However, the record also establishes that the
job paid the 'operators considerably higher than regular
rates, on the average in excess of $2 an hour after the
operator became experienced and was able to exceed the
quota , because compensation was based on a piece rate.
Respondent's regular rate was $1.25 an hour . Pope's rate
was $1.35 an hour. Many operators requested transfers
to the job because of its higher rate of pay. Many opera-
tors who were transferred to the job voluntarily quit after
some time on it because of their inability to perform the
job without difficulty and physical discomfort . After a
few days on the job Pope's hands started swelling and
causing her pain and discomfort to the extent that she had
difficulty sleeping at night . Her experience of stiffness,
soreness , and hand swelling was not unusual for opera-
tors new on the job. Pope did not consult a doctor about
this condition and was never advised that she should
discontinue her employment for reasons of health. Pope
reached the conclusion that she could not do the job
physically. She continued on the job until she quit on or
about May 28.
Pope testified that about 2 weeks after she started on
the job and her hands had become very swollen she asked
Baldwin for a transfer to something else. According to
Pope, Baldwin replied that she would check but never re-
ported back to Pope . Pope also testified that approxi-
mately a week later she again asked Baldwin for a
transfer , this time specifically to the job of making hulls.
According to Pope, Baldwin asked Hosea and informed
Pope that he would think about it . Baldwin, whom I
credit , admitted that Pope experienced some physical dif-
ficulty with the job but denied that Pope ever asked for a
transfer to any other position after she had been trans-
ferred to the job of inserting zippers. The record
establishes that Baldwin was both friendly and sym-
pathetic to Pope. Both testified that they sat together at
Pope's machine and cried when Pope complained that she
couldn 't do the job because of her physical difficulties.
On or about May 23, Pope gave Rohus, her supervisor,
notice that Pope was quitting as of May 28 because she
could not physically perform the job. Rohus later in-
formed Baldwin and Baldwin discussed it with Pope,
which was the occasion when they sat at Pope 's machine
and cried together . After Rohus informed Hosea of
Pope's notice of quitting , Hosea checked with Pope who
confirmed the fact. At the time of her announced inten-
tion to quit , Pope did not request Rohus, Baldwin, or
Hosea to transfer her to any other position . Although
Respondent had offered to discuss any available job, and
the record establishes that throughout the period in
question numerous operators ' jobs were available, as
evidenced by Respondent ' s active solicitation of ex-
perienced and inexperienced operators , the Union or
Pope never requested Pope's transfer to any other posi-
tion , other than Pope's belated request , a few days before
her transfer to the zipper insert job , for the job of making
hulls, which did not require the services of an ex-
perienced operator.
C. Discrimination in Hire or Tenure, Terms, or Condi-
tions of Employment
The General Counsel contends that Respondent dis-
criminatorily transferred Pope to an onerous and difficult
position because of her union membership and activities,
with the intent and purpose of causing her to quit , thereby
constructively discharging her in violation of the Act. As
previously noted , there are no other alleged violations, in-
cluding independent violations of Section 8(a)(1) of the
Act. The record establishes , and Respondent concedes,
full knowledge of Pope's union membership and activities
from the time she was appointed a member of the Union's
negotiating committee in November 1965, including her
attendance at each of the negotiating meetings. The
record also establishes that the job of inserting zippers
was physically difficult and frequently resulted in physi-
cal discomfort. On the other hand, numerous operators
sought the job because of its high rate of pay and
thereafter many of them voluntarily quit because of its
physical difficulties . The record clearly establishes
Respondent 's valid economic reasons for transferring
Pope. Because of the loss of contracts and lack of de-
BUDDY SCHOELLKOPF PRODUCTS, INC. 797
mand , Respondent was compelled to discontinue its hunt-
ing cap line . As a result the supervisor of that line had to
be transferred to another position. At the same time,
because of the substantial increase of work in the sleeping
bag department , Baldwin was unable to handle the ex-
panded work load. As a result of both factors, Respond-
ent decided to divide that department into two lines,
each to be supervised, and transfer the cap line supervisor
to the sleeping bag department. This eliminated the need
for the position of leadwoman, or Baldwin's assistant.
Instead of arbitrarily terminating or transferring Pope
without consulting her or the Union, as Respondent had
both the right and reason to do under its management
prerogatives and the existing economic conditions,
Respondent notified the Union of its reasons and its
desire to transfer Pope, offered to consider any available
job, and proposed her transfer to the job of inserting zip-
pers as the best job available. In the light of Pope's ex-
perience, Respondent reasonably considered that she
would be able to fill the job. Respondent additionally of-
fered to give Pope a 120-day breaking-in period and to
protect her rate, $1.35 an hour, for 90 days, although the
guaranteed rate paid other operators on the same job was
$1.25 an hour unless they exceeded the quota. Although
more than a month expired between these offers of
Respondent and its actual transfer of Pope, Respondent
heard nothing from the Union concerning any other
available position or any objections to the proposed
transfer. Under the circumstances it seems clear, and I
find, that Respondent's transfer of Pope was not
motivated by a desire or purpose to get rid of her, because
of her union membership or activities, by causing her to
quit. Contradicting Pope, Baldwin, whom I credited,
testified that Pope never requested a transfer to another
job after her transfer to the job of inserting zippers. In
substance this was corroborated by Pope's admission at
the hearing herein. Pope admitted that at the time she quit
she was not seeking and would not accept any job in a
sewing factory. Of course every available job in Respond-
ent's plant was a job in a sewing factory.
A preponderance of the reliable, probative, and sub-
stantial evidence in the entire record convinces me, and
I find, that the General Counsel has failed to sustain his
burden of proving that Respondent transferred Pope to
the job of inserting zippers because of her union activities
or membership to cause or induce her to quit her employ-
ment, thereby constructively discharging her in violation
of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce,
and the Union is a labor organization, within the meaning
of the Act.
2. Respondent has not , as alleged in the complaint,
discriminated against its employee within the meaning of
Section 8(a)(3) and (1) of the Act.
Upon the foregoing findings of fact, conclusions of law
and the entire record, and pursuant to Section -10(c) of the
Act, I hereby issue the following:
RECOMMENDED ORDER
It is hereby ordered that the complaint herein be, and
it hereby is, dismissed.