B.V.D. Co., Inc.

National Labor Relations Board - Board Decisions

Mar 22, 1966

157 N.L.R.B. 978 (N.L.R.B. 1966)

978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B.V.D. Company, Inc. and International Ladies' Garment Work-
ers' Union , AFL-CIO. Case No. 8-CA-3977. March 22, 1966
ORDER AND DECISION
On December 17,1965, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Decision and
a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The-Board has reviewed the rulings made by the Trial Examiner 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, the brief, and the entire record
in this case, and hereby adopts the findings, conclusions,' and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
1 These findings and conclusions are based , in part, on credibility determinations of the
Trial Examiner , to which the Respondent has excepted. After a careful review of the
record , we conclude that the Trial Examiner's credibility findings are not contrary to the
clear preponderance of all the relevant evidence. Accordingly, we find no basis for dis-
tturbing those findings. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d
262 (C.A. 3).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case, heard before Trial Examiner Frederick U. Reel at Piqua, Ohio, on
November 9, 1965 ,1 pursuant to a charge filed the preceding August 11 and a com-
plaint issued September 1, presents questions as to whether Respondent , herein called
The Company , discharged two employees , Sherry Adams and Alma Cruikshank,2 for
activity on behalf of the Charging Party, herein called the Union , and in other
respects infringed on employee rights guaranteed in Section 7 of the Act. Upon the
.entire record , including my observation of the witnesses , and upon consideration
,of the briefs filed by General Counsel and by the Company , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMANY AND THE LABOR ORGANIZATION INVOLVED
The pleadings establish , and I find, that the Company, a Delaware corporation,
.operates a plant at Piqua, Ohio, where it manufactures underwear , and from which
it annually ships products valued in excess of $50,000 to points outside Ohio. The
1 All dates herein refer to the year 1965.
The latter 's name is misspelled Crinkshank throughout the transcript, which is hereby
corrected accordingly.
157 NLRB No. 83.
B.V.D. COMPANY, INC. 979
Company is therefore engaged in commerce within the meaning of Section 2(6) and
(7) of the Act. The pleadings further establish, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Early events in the Union's organizing campaign
Union efforts to organize the plant began early in June. The first ,employee with
whom Union Organizer Litell spoke concerning the matter was Sherry Adams, who
showed interest in helping Litell and gave him the names of several other employees,
including that of Alma Cruikshank. Cruikshank proved similarly helpful to Litell
in the course of the organizing campaign.
Early in June, Adams asked a fellow employee, Carolyn Stambaugh, to see the
union organizer. Stambaugh inquired of her supervisor, Vera Bryant, for the latter's
opinion as to whether Stambaugh should meet with the organizer. According to
Stambaugh, Bryant replied that she was not allowed to give any information, "but if
it was her, she would just ask him to leave." About 2 weeks later, Bryant asked
Stambaugh if the union man had spoken to her and Stambaugh replied in the affirma-
tive. About the same time, according to Cruikshank's testimony, Floorlady Thomas
asked a group of employees, "did you girls talk to the Union man yet," and, receiv-
ing no reply, went on to state that she had shut the door in his face.
. On June 25 the Union sent a campaign letter to all the employees , in the course of
which it mentioned certain working conditions at the plant which, the letter implied,
the Union would seek to alleviate if it became the bargaining representative. The
first such condition mentioned (on page 2 of the letter, the first page is devoted to
other matters) is holiday pay; the letter states: "You get no holiday pay whatsoever!
In 1965 this is disgraceful,"
During the week commencing July 4 the plant shut down for vacation. (Many
employees took an additional week's vacation at this time or at some other time.)
The Monday the plant reopened, July 12, Plant Manager Phil Strauss called a meet-
ing of the employees in the course of which he stated that during his visit to the New
York headquarters of the Company the preceding week, he was successful in arrang-
ing for the employees thereafter to enjoy six paid holidays per year. In a statement
posted on the plant bulletin boards, Strauss repeated this announcement, and also
stated that with this added benefit "we believe that our employment conditions will
be better than those in any sewing plant in our area."
B. The union meeting of July 14, and the subsequent discharges
On July 14 the Union scheduled an evening dinner meeting for employees at
Scot's Inn, located just outside Piqua. According to Floorlady Hazel Thomas, every-
body in the shop was talking about it that afternoon. During the afternoon Super-
visor Bryant, who had also heard a "rumor" of the proposed meeting, asked employee
Helen Miller, within the hearing of employee Stambaugh, whether Miller had "heard
anything yet." Miller replied in the negative, and Bryant continued: "When we find
out who they are, somebody is going to be in a lot of trouble."
That evening Adams and Cruikshank drove to the meeting in a car driven by
Adams' husband. On their way they passed the house of Floorlady Hazel Thomas.
Thomas, who had heard that a union meeting was scheduled for Scot's Inn that eve-
ning, saw the car go by, recognized Cruikshank, and saw the car turn at the place
where cars turn in to Scot's Inn. Thomas also saw Stambaugh on the latter's way to
the meeting. The next morning, July 15, Thomas reported what she had seen to
Supervisor Bryant and Bryant relayed the report to Plant Manager Strauss.
On the morning of July 15, according to Adams' testimony, Thomas asked her if
she had gone to the union meeting at Scot's Inn, adding that Thomas had seen Cruik-
shank going there but had not been able to see who else was in the car. Adams
denied being present. Later that day Bryant and Thomas, on two separate occasions,
stood at Adams' work table exchanging information concerning the number who had
attended the meeting and what food and beverages had been served. On the first
such occasion Bryant said to Thomas, "There was 21, the one you saw and this one."
On the second occasion Bryant said she knew "for certain there was only 6 girls
instead of 21." That afternoon, Plant Manager Strauss stopped at Adams' work
station but, according to her, did not display his customary, pleasant manner.3
8 Strauss, who was at counsel table during the testimony of all General Counsel's wit-
nesses, was not called as a witness.
221-374-66-vol. 157-63
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Strauss and Bryant then conversed at the doorway, looking from time to time at
Cruikshank and Adams. According to Adams, Bryant then returned to Adams'
workplace, asked her what she had had to drink the night before at the union meet-
ing, and , when Adams denied being present, told her not to deny it or lie about it.
Adams testified that when she continued to deny being present, Bryant said, "There's
going to be trouble for the ones at that meeting."
Cruikshank testified that on July 15, the day after the meeting, Floorlady Thomas
asked her if she "had been at the meeting," adding that she had seen Cruikshank go
by. Cruikshank also testified that Bryant and Strauss came to her workroom together
that day and stared at her.
On July 16, the second day after the union meeting, the Company laid off Adams,
Cruikshank, and a third employee, Diana Erwin. According to Cruikshank, Bryant
told her of her layoff that noon, giving the reason as lack of work. Adams testified
that Bryant told her about 3 p.m. that a girl was returning from vacation the next
day, so Adams would have to leave. Erwin was not called as a witness. Adams was
the most recently hired employee at the plant, Erwin was next to her, and Cruikshank
third for the bottom in terms of seniority. Erwin was called back to work after
missing only 1 day; Adams and Cruikshank were not, and the latter, at least, secured
employment elsewhere about a week later.
Stambaugh, the other employee identified as attending the July 14 meeting, was
not discharged. According to her testimony, Bryant asked her some Friday in
August whether there had been a union meeting the night before, and Stambaugh
replied that so far as she knew there had not. Bryant continued (according to
Stambaugh), "Why is this man, the Union man being so sneaky about this. Why
don't he come out with the whole thing." Stambaugh further testified that the fol-
lowing Monday, Bryant asked her to "please forget everything."
Thomas denied talking to Adams or Cruikshank about union activity on July 15.
She further testified that she first learned of the layoff of Cruikshank when Bryant
mentioned it to her on Friday morning, and that she learned of Adams' layoff from
Bryant that afternoon, after Bryant told Adams. Bryant also denied the statements
attributed to her by Adams and Stambaugh on July 15 and in August, respectively.
According to Bryant, the girls were laid off because several employees farther up the
production line were on vacation, thus causing a diminution of productive work
farther down the line. Bryant's testimony is somewhat confusing; within the space
of a few moments she said that she had, and that she had not, told Strauss on July 15
about the "rumor" of a union meeting the night before. She also testified that until
she told Strauss on Thursday, July 15, of the union meeting the night before they
had not discussed laying off Adams or Cruikshank, but she later testified that this
had been discussed early in the week.
Of the employee witnesses called by the Company in addition to Thomas and
Bryant, one, Janet Angle, corroborated Cruikshank's testimony that Thomas asked
if she "had a nice time," or "had fun" referring to Scot's Inn. Two of the witnesses,
Souders and Murphy, testified that they were returning from vacation the following
Monday, July 19.
Concluding Findings
On the facts set forth above, I find that the Company discharged Adams and
Cruikshank for their union activity, including their attendance at the dinner 2 nights
before their discharge. Insofar as their testimony is in conflict with that of Thomas
and Bryant, I discredit the latter two. Thomas' testimony that she did not discuss
union activity with Cruikshank the morning after the meeting is contradicted by that
of Angle, a witness called by the Company. Bryant's testimony, as noted above, is
noteworthy for its vagueness and its inconsistencies. Moreover, Bryant was not
asked to, and did not, deny that after asking employee Miller (not called as a wit-
ness) on the afternoon preceding the meeting whether Miller "had heard anything
yet," she continued: "When we find out who they are, somebody is going to be in a
lot of trouble." Inasmuch as by Byant's own testimony the "rumor" of the meeting
was widespread at that time, and Thomas testified that "everybody [in the shop] was
talking about it," it seems reasonable to infer, and I do, that Bryant's threat to Miller
concerned that subject. I also credit Adams' testimony that Bryant said to her,
"There's going to be trouble for the ones at that meeting." The record is clear that
Thomas saw Cruikshank going to the meeting, and so reported to Bryant; I credit
Adams' testimony as to her conversations with Bryant, in which Bryant indicated
knowledge of Adams' presence at the meeting, and I also credit Adams' testimony
that Bryant, in talking to Thomas, identified Adams as among those present.
The Company's explanation for the discharge of the two employees in question is
that a lack of work, caused by vacations by other workers, led to the action in ques-
tion . In this connection , I note that the explanation given to Adams at the time was
B.V.D. COMPANY, INC. 981
quite inconsistent with that advanced at the hearing, for Adams was told she was
being let go because of a girl's returning from vacation. While the attendance and
vacation records were not placed in evidence (of itself a circumstance tending to
cast doubt on the Company's explanation, see e.g., N.L.R.B. v. Melrose Processing
Co., 351 F. 2d 693 (C.A. 8); N.L.R.B. v Sam Wallick and Sam K. Schwalm d/b/a
Wallick and Schwalm Company, et al., 198 F. 2d 477,483 (C A. 3), citing 2 Wigmore,
Evidence § 285; 0. F. Shearer & Sons v. Cincinnati Marine Service, Inc., 279 F. 2d
68, 73-74 (C.A. 6)), the testimony produced by the Company establishes that sev-
eral employees were returning from vacation immediately after the discharges, thus
casting further doubt on the validity of the defense now urged.
To be sure, Bryant testified that Strauss told her earlier that week to let three of the
employees go at the end of the week. But Bryant's testimony on the subject was far
from clear, and Strauss was not called as a witness (cf. Wigmore, cited supra).
Also it should be noted that Floorlady Thomas was not apprised of the discharges
until the Friday they occurred, and then learned first of Cruikshank's and hours later
of Adams', a situation difficult to reconcile with Bryant's testimony that the action
with regard to all had been decided early in the week. Adams and Cruikshank were
two of the most junior employees in point of service, and Erwin, who was likewise
a newly hired employee, was laid off with them. But this circumstance which might
have furnished some support, though by no means proof, for the theory of economic
layoff (cf. Wi/lard's Shop-Rite Markets, Inc., 132 NLRB 1146, 1149) is transformed
into further proof of discrimination by the recall of Erwin 2 days later .4
With respect to the various allegations of other interference, restraint, and coer-
cion, it is clear, and I find, that Thomas and Bryant coercively interrogated Adams,
and that Thomas coercively interrogated Cruikshank concerning attendance at the
union meeting, and that Bryant threatened reprisals against employees who attended.
Bryant's questioning of Stambaugh in mid-June as to whether Stambaugh had seen
the union man might be characterized as mere casual conversation, as Stambaugh
had opened the subject herself in asking Bryant's advice shortly before. However,
I credit Stambaugh's disinterested testimony that Bryant asked her early in August
whether the union meeting had occurred the night before, and this, particularly in
the light of the unlawful discharges only 3 weeks prior thereto, constituted addi-
tional unlawful interrogation.5
There remains for discussion only the question whether the Company's announce-
ment during the course of the union campaign that thenceforward the Company
would pay for holidays not worked was violative of the Act under N.L.R.B. v.
Exchange Parts Company, 375 U.S. 405. Although the General Counsel presented
no evidence that the union literature, which emphasized paid holidays as one of the
Union's aims, had reached company hands, the timing of the announcement sug-
gests that the current union activity motivated the Company's action, and that the
purpose of the move was to undermine union activity. Under all the circumstances,
I believe that General Counsel established a prima facie case, which could have been
rebutted had Strauss or some other official testified that the paid holiday project had
been in view prior to the Union's drive. Cf. Divco-Wayne Industries, Inc., 154
NLRB 974 (TXD); T. L. Lay Packing Company, 152 NLRB 342 (TXD). But no
such testimony was produced, and the prima facie case (that changes in working
* The Company points out that it knew of Stambaugh's union activity and did not dis-
charge her. This fact will not rebut the case established by General Counsel. See
N.L.R.B. v. W. C. Nabors, d/b/a W. C. Nabors Company, 196 F. 2d 272, 276 (C.A. 5),
cert. denied 344 U.S. 865; Nachman Corp. v. N L.R.B., 337 F. 2d 421, 424 (C A. 7).
6Bryant's and Thomas' status as supervisors is placed in issue in the pleadings.
Bryant's power to recommend discharges is established by her own testimony. Thomas,
floorlady over 30 employees, was so much a part of management that she and Bryant dis-
cussed together which employees went to the union meeting, and the employees would
stop discussing union matters when she appeared. Company counsel repeatedly asked
one of his own witnesses in whose department they worked, and made it clear that he
referred to working "under hazel Thomas." On another occasion he referred to "all the
other girls that worked in Miss Thomas' department." Under these circumstances I find
that Bryant was a supervisor within the meaning of Section 2(11) of the Act, and that
the Company was also responsible for antiunion conduct by Thomas, who was clearly a
management spokesman if not a supervisor. N.L.R.B. v. Solo Cup Company, 237 F. 2d
521, 523-524 (C.A. 8) ; N.LR.B. v. Des Moines Foods, Inc., 296 F. 2d 285, 286 (CA. 8) ;
N.L.R B. v. Howell Chevrolet Company, 204 F. 2d 79, 84 (CA. 9), affd. 346 U S. 482
The Company, in its brief, does not discuss its liability for the conduct of Thomas and
Bryant.
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditions inaugurated during a union campaign are in response thereto) stands
unrebutted. I therefore find the announcement of paid holidays on July 12 to be
an additional violation of Section 8(a) (1).
CONCLUSIONS OF LAW
1. By discharging Sherry Adams and Alma Cruikshank because of their union
activities, the Company engaged in unfair labor practices affecting commerce within
the meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act.
2. By interrogating and threatening employees as to their union activities, and by
granting benefits for the purpose of discouraging union activity, the Company engaged
in further unfair labor practices affecting commerce within the meaning of Sections
8(a)(1) and 2(6) and (7) of the Act.
III. THE REMEDY
I shall recommend that the Company cease and desist from its unfair labor prac-
tices and from violating its employees ' Section 7 rights in any other manner. N.L.R.B.
v. Bailey Company (East Side Branch ), 180 F . 2d 278 (C.A. 6); N.L.R.B. v. Entwistle
Mfg. Co., 120 F . 2d 532 , 536 (C.A. 4). Affirmatively , I shall recommend that the
Company reinstate Adams and Cruikshank with backpay computed in accordance
with the formula set forth in F. W. Woolworth Company , 90 NLRB 289 , and Isis
Plumbing & Heating Co., 138 NLRB 716, and that it post appropriate notices.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and upon the entire
record in this case, and pursuant to Section 10(c) of the National Labor Relations
Act, as amended, I recommend that Respondent, B.V.D. Company, Inc., its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any employee because of
membership or activity in International Ladies' Garment Workers' Union, AFL-
CIO, or any other labor organization.
(b) Interrogating employees as to their union activity or that of other employees,
threatening reprisals against employees for union activity, and promising or grant-
ing benefits to employees for the purpose of dissuading them from supporting a union.
(c) In any other manner interfering with, restraining, or coercing any employee
in the exercise of his right to join or assist the above-named or any other labor
organization.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Offer to reinstate Sherry Adams and Alma Cruikshank to their former or
substantially equivalent positions, without prejudice to their seniority or other rights
and privileges, and make them whole in the manner described in the portion of the
Trial Examiner's Decision entitled "The Remedy" for any loss of earnings suffered
by reason of the discrimination against them. - -
(b) Notify Sherry Adams and Alma Cruikshank if they are presently serving in
the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from the Armed Forces.6
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
8I am omitting this provision from the notice I recommend. The record discloses that
Adams is the mother of a young child, and as such her eligibility for service in the Armed
Forces is questionable. See 10 U.S C. sec. 3818 and Executive Order No. 10240. To
explain in a notice why such a provision is applicable to 'Cruikshank and not to Adams
would be only slightly more absurd than to include it as to both when one is ineligible
There is a possibility that this case will not be appealed to the Board, in which case the
notice posted would be pursuant to my recommendation. I prefer not to appear ridiculous,
and also wish, as far as is within my power, to preserve a Federal agency from a similar
fate. In the unlikely event that either of these young women enter the Armed Forces,
the Order, as recommended, reinforces their rights. If the Board desires to put this
"protection" into the notice, it will have the opportunity if the case is reviewed. For
further comment see Melrose Processing Company, 146 NLRB 979, 985-986, and the quota-
tion from Judge Hand there advisedly included.
HONEY FARM DAIRY STORES, INC. 983
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Recommended Order.
(d) Post at its plant at Piqua, Ohio, copies of the attached notice marked "Appen-
dix." 7 Copies of said notice, to be furnished by the Regional Director for Region 8,
shall, after being duly signed by an authorized representative of the Respondent, be
posted by the Respondent immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for Region 8, in writing, within 20 days from
the receipt of this Decision, what steps the Respondent has taken to comply
herewith .8
7In the event that this Recommended Order is adopted by the Board, the words, "a
Decision and Order" shall be substituted for "a Recommended Order of a Trial Examiner"
in the notice. In the further event that the Board's Order is enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order."
8In the event that this Order Is adopted by the Board, this provision shall be modified
to read: "Notify said Regional Director, in writing, within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL offer Sherry Adams and Alma Cruikshank their former jobs and
pay them for wages they lost since July 16, 1965.
All our employees have the right to join or assist International Ladies' Gar-
ment Workers' Union, AFL-CIO, or any other union. They also have the
right not to join or assist any union.
WE WILL NOT take, or threaten to take, any action against them for engaging
in union activity, question them as to their union activity or that of their
fellow employees, grant benefits to them in any other manner interfere with,
restrain, or coerce them in their exercise of those rights.
B.V.D. COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 720
Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. 621-4465.
Honey Farm Dairy Stores , Inc. and Amalgamated Meat Cutters,
Butchers, Food Store, Seafood , Allied Workers of North Amer-
ica, District Union Local 2, AFL-CIO. Case No. 1-CA-4923.
March 22, 1966
DECISION AND ORDER
On November 19, 1965, Trial Examiner William J. Brown issued his
Decision in the above-entitled proceeding, finding that the Respond-
157 NLRB No. 78.