C & D Sportswear Corp.

National Labor Relations Board - Board Decisions

Mar 18, 1971

189 N.L.R.B. 24 (N.L.R.B. 1971)

24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C & D Sportswear Corporation and International
Ladies ' Garment Workers ' Union, AFL-CIO. Case
10-CA-8378
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
March 18, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On November 25, 1970, Trial Examiner Robert E.
Mullin issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's 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,,ember
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 brief, and
the entire record in the case, and hereby adopts the
findings, conclusions,' and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, C & D Sportswear Corporation,
Adel, Georgia, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's recommended Order.2
i These findings and conclusions are based, in part, upon the credibility
determinations of the Trial Examiner, to which the Respondent excepts
On the basis of our own 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 disturbing those findings Standard Dry Wail Products, Inc, 91 NLRB
544, enfd 188 F 2d 362 (C A 3)
2 In footnote I I of the Trial Examiner's Decision substitute °20" for
"10" days
189 NLRB No. 5
ROBERT E MULLIN, Trial Examiner: This case was heard
at Adel, Georgia, on August 27, 1970, pursuant to a charge
duly filed and served,' and a complaint issued on July 6,
1970. The complaint presents questions as to whether the
Respondent violated Section 8(a)(3) and (I) of the National
Labor Relations Act, as amended. In its answer, duly filed,
the Respondent conceded certain facts with respect to its
business operations, but it denied all allegations that it had
committed any unfair labor practices.
All parties appeared at the hearing and were given full
opportunity to examine and cross-examine witnesses, to
introduce relevant evidence, to argue orally at the close of
the hearing, and to file briefs. Oral argument was waived.
On October 5, 1970, able briefs were submitted by the
General Counsel and the Respondent.
Upon the entire record in the case, including the briefs of
counsel, and from his observation of the demeanor of the
witnesses when they appeared and testified, the Trial
Examiner makes the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Georgia corporation, with its
principal office and place of business located at Adel,
Georgia, is engaged there in the manufacture and sale of
men's and women's clothing. During the calendar year
prior to the issuance of the complaint, a representative
period, the Respondent sold and shipped finished products
valued in excess of 50,000 directly to customers located
outside the State of Georgia Upon the foregoing facts, the
Respondent concedes, and the Trial Examiner finds, that
the C & D Sportswear Corporation is engaged in commerce
within the meaning of the Act.
11 THE LABOR ORGANIZATION INVOLVED
International Ladies' Garment Workers' Union,
AFL-CIO , herein called ILGWU or Union, is a labor
organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Prior Board Decision
On January 12, 1970, the Board issued its Decision and
Order in C & D Sportswear Corporation, 180 NLRB No. 99,
wherein the Board found that in 1969, during the course of
an organizational campaign sponsored by the ILGWU at
the Respondent's factory, the Respondent unlawfully
threatened employees that it would close Its plant rather
than deal with a union, coercively interrogated employees
as to their union activities, and unlawfully created the
impression of surveillance. The Board further found that
i The charge was filed on May 28 1970
C & D SPORTSWEAR CORPORATION 25
the Respondent had discriminatorily discharged three of its
employees, including one Margaret McDaniel. The Board
issued a broad order requiring that the Respondent
reinstate with backpay those whom it had unlawfully
discharged and that it cease and desist in the future from
the unfair labor practices found as well as from violating
the Act in any other manner.
B. The Reinstatement and Subsequent Discharge of
Margaret McDaniel,- Contentions of the Parties,
Findings and Conclusions With Respect Thereto
On April 1, 1970, and in compliance with the Board's
Order in the aforementioned case, the Respondent
reinstated Margaret McDaniel and assigned her to making
cuffs. She remained at work for approximately 5 weeks
when, on May 8, 1970, the Respondent discharged her for a
second time, according to the General Counsel because of
her union affiliation. This allegation is denied by the
Respondent in its entirety and, affirmatively, the latter
asserts that McDaniel was discharged for making threats to
a fellow employee and to the plant manager.
Irving Dinnerman has been a principal officer of the
Respondent and its plant manager for many years. Next to
him in the supervisory hierarchy is Irene Hajjar who, for a
substantial period, has been the head floorlady and
supervisor of the sewing department. This is the department
where most, if not all, of the production employees work.
McDaniel was first hired in June 1967 and worked under
Hajjar until her original discharge on May 7, 1969
The initial union organizational campaign among the
Respondent's employees took place during the late winter
and the spring of 1969. In the aforementioned Decision, the
Board found that on April 15, 1969, McDaniel signed a
card in the ILGWU and thereafter actively solicited on its
behalf among her coworkers; on the evening of April 27,
McDaniel accompanied a union organizer to the home of
an employee, and on the morning of April 28, Dinnerman
offered her a promotion to supervisor which she declined
and in so doing told Dinnerman that she would not accept
the promotion because to do so would make it impossible
for her to work on behalf of the Union among her fellow
employees. The Board further found that, during this same
conversation with the plant manager, McDaniel told him of
various grievances which she and her coworkers had as to
the methods of supervision used by him and Mrs. Hajjar,
and that during the discussion Dinnerman told her that he
was aware of her union activities and warned her that he
would close the plant rather than compromise with the
Union On May 7, 1969, the Respondent terminated
McDaniel, as the Board found, for her union activity.
After McDaniel's reinstatement on April 1, 1970, in
conformity with the Board's Order, she apparently worked
several weeks without incident. On May 8,2 she was
discharged for a second time under the circumstances that
are set forth below
McDaniel testified at the hearing that on May 7, another
employee, one Velora Shaw, told her that Dinnerman
wanted the names of all girls who talked to those who had
been reinstated pursuant to the Board's Order and that
Betty Baldree, an employee in the sewing department, was
compiling a list of such names for the plant manager. On
that same day McDaniel observed Plant Manager Dinner-
man engaged in a conversation with Mrs. Baldree at her
work station. At the end of the shift that afternoon, as
McDaniel and two of her coworkers, Carrie McGee and
Dene Rowan, were leaving the building, McDaniel stopped
Baldree and questioned her as to her conversation with
Dinnerman. Baldree gave the following testimony as to this
exchange:
Margaret [McDaniel] stopped me and says, "Betty,
what is this I hear about you takin' names of people that
we talk to and givin 'em to Mr. Irving?" 3 And, she says,
"Are you dour' it? And, I says, "No, Margaret, I'm not
doing it." I says, "Mr. Irving and I talked about a
private matter this morning." And, she says, "Well, I
dust heard you were." And, she mentioned that Carrie
[McGee] had been embarassed about some insurance
matter at the hospital. And, I told her that what Mr.
Irvin' and I had talked about was a bill that I owed the
hospital, and he ast me to see about gittin it paid, and
that was all.
Both McDaniel and McGee also testified as to what was
said during the course of this conversation. Their testimony
was in substantial accord with the foregoing account which
Baldree gave. All were in agreement that McDaniel did no
more than ask the questions of Baldree as the latter quoted
them in the testimony set forth above, and that, after this
brief conversation was concluded, the participants proceed-
ed to their respective homes. Although Baldree testified
that at the time McDaniel had an "evil look in her face,"
she conceded that, during the conversation, McDaniel did
not raise her voice, or speak in an aggressive or threatening
manner.
McDaniel and Baldree had known each other for several
years and lived within a block of one another in the town of
Adel. They described their relationship at one point as
having been that of "friends," or "friendly." During the
union campaign the preceding year, Baldree had been
opposed to the Union, and when McDaniel brought a
union organizer to Baldree's home in April 1969, the latter
had asked her and her companion to leave the house.
Baldree conceded that this incident had caused a change in
her attitude toward McDaniel.
Upon arrival at the plant on the morning of May 8,
Baldree reported her conversation with McDaniel to Head
Floorlady Hajjar and to Plant Manager Dinnerman
According to the latter, almost immediately after getting
Baldree's account of the conversation, he noticed McDan-
iel near the timeclock about 75 feet away Dmnerman
called out to McDaniel and directed that she report to him
at once. McDaniel and McGee testified that Dinnerman
"screamed out" this summons. Baldree testified that the
plant manager spoke in a manner that he never used in
conversing with her and that he was "real loud."
Dinnerman conceded that on this occasion "I . . talked
loud " McDaniel testified credibly that, when she respond-
ed to his order and was proceeding toward him, the plant
2 All dates referred to hereinafter are for the year 1970, unless otherwise
specifically noted
Throughout the course of the hearing, the employee witnesses referred
to Plant Manager Irving Dinnerman as "Mr Irving"
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manager shouted out that she was to "Leave my girls
alone" and thereupon lectured her for having bothered
Baldree. Dinnerman himself testified that when McDaniel
was within about 15 feet of him he delivered the following
admonition:
"Margaret, I wish you'd do me a favor and stop
pestering these people and botherin' them and threaten-
ing them" She [McDaniel] said "I'm not bothering
anybody" . . I said, "Margaret, you bothered Betty;
now, leave her alone. Just sit at your machine and do
your work and don't bother anybody "
According to Dinnerman, at that time there were about 45
to 50 employees in the area.
At the hearing, Dinnerman testified that he had assumed,
solely on the basis of what Baldree told him, that McDaniel
had pestered, bothered, and threatened Baldree. He
conceded, however, that he did not accord McDaniel an
opportunity to give her version of the conversation in
question, notwithstanding the fact that prior to this
occasion, McDaniel had never, so far as he knew,
threatened, bothered, or pestered anyone at the plant.
The next incident in the sequence of events which
preceded McDaniel's termination occurred during the
break period at 10 a.m that day. McDaniel testified that
after the public admonition with which Dinnerman had
chastised her that morning she determined to tell Baldree
that thereafter the employees at the plant would have no
use for her. When the bell rang at 10 o'clock, as McDaniel,
McGee, and Rowan walked past Baldree's machine on the
way to take their break, McDaniel called out to her "You
have just cut your own throat." Baldree made no rejoinder
and McDaniel said nothing else as she and her coworkers
proceeded down the aisle.
It is apparent that, notwithstanding the celerity with
which the management thereafter concluded that this
remark constituted a threat of violence, Baldree herself did
not immediately so construe McDaniel's comment. Ac-
cording to Baldree, she told Lois Folsom, her assistant
floorlady, who was nearby, what had been said and then
asked Folsom "what could Margaret have meant by her
remark?" She testified that later she asked Mary Odom, a
coworker at the machine next to hers, " . what in the
world could Margaret have meant by such a remark?"
Folsom testified that when Baldree came to her and
reported McDaniel's comment, the employee stated, "I
don't know how to take it . . . I don't know what she meant
by it . how do you think she meant it." 4
After her conversation with Folsom, Baldree reported
McDaniel's comment to Hajjar. Soon thereafter, Dinner-
man came to the scene. According to Baldree, she told him
what McDaniel had said and that she was upset about the
matter. She testified that his only question to her was
whether she would swear to what she had told him and that
when she assured him that she would, he left
Dinnerman testified that when he saw Baldree on this
occasion, the employee told him "Margaret threatened to
cut my throat " None of the other witnesses, however,
+ Folsom did not testify as to what, if any, analysis she offered
employee Baldree as to the construction that should be placed upon
McDaniel's remark Some indication as to Folsom's attitude, however, may
be gathered from Dinnerman's testimony According to the plant manager,
a short while later when he arrived in the area, Folsom told him that "some
including Baldree, had so reported McDaniel's remark.
Baldree testified that McDaniel told her "You've cut your
own throat," and that she had reported precisely this
language to the plant manager.5 Dinnerman testified that
shortly before noon that day he told McDaniel that "some
serious accusations" had been made against her and that
she was to leave the plant at noon and stay home until he
contacted her.
It appears that after the plant manager ordered McDaniel
to go home at 12 o'clock, she at first turned to go to her
machine, but then came back to the head floorlady's table
where Dinnerman was talking with Hajjar. In the initial
conversation Dinnerman had not described or specified
any of the alleged accusations that had been made against
her. When McDaniel came back to the floorlady's station
she asked the plant manager why he was sending her home.
Dinnerman repeated his earlier statement that
"accusations" had been made against her. McDaniel
testified that she then told him that she had already given
him an account of her conversation with Baldree the day
before and that at 10 o'clock that morning, and after his
verbal strictures at the beginning of the shift, she had told
Baldree that "she had just cut her own throat." According
to McDaniel, she told the plant manager that by that
statement she meant "that all of the girls in the plant that
had heard him gettin' onto me won't have any use for her
any more." McDaniel testified that Dinnerman refused to
be drawn into any discussion of the matter, reiterated his
earlier statement that accusations had been made against
her and repeated his order that she go home and stay there.
Dinnerman's version of the exchange with McDaniel was
in substantial accord with her testimony up to this point.
However, after the plant manager endeavored to cut off
further discussion and again ordered her to go home, he
and McDaniel engaged in a heated exchange, about which
there is a sharp conflict.
According to McDaniel, in concluding the conversation,
she stated that she would follow his orders and leave the
plant, but that, in the meantime, she wanted to tell him:
.. I came back to work here willingly and let
bygones be bygones, and I've worked hard and give
Miss Irene [Haajar] a good day's . . work, and have
pleased her . . . . How you and your daddy have
operated a business in this town this many years and
treated the women the way you have without some man
in the county coming down here and pulling your hair
out and beatin' you down, I don't know. And he said,
"Are you threatenin' me?" I said, "No, sir, I'm not. I'm
dust tellin' you that you don't respect the women of this
plant, or anybody else." He said "You had better go
befoie I slap some charges against you." I said, "All
right, I will." And I left.
Dmnerman testified that during the latter part of this
exchange he again suggested that McDaniel go home and
that she then used the language which he thereupon
described in his testimony as follows:
[She said ] "You're still looking to have your throat cut."
of the women in here are pretty mad at Margaret and they wanta beat on
her and throw her outta here "
Hayzr testified that Baldree told her "Margaret McDaniel said I've
dust cut my own throat "
C & D SPORTSWEAR CORPORATION 27
I said , " Margaret , I'm gonna take that as a threat " She
said , "No, I didn't mean that , I meant that it's a wonder
that you and your father haven't had your throats cut."
And, at that time, I said, "Margaret, you'd better go
home before I bring charges against you on something
. She said , "It's a wonder that you and your father
haven't had your throats cut and your head crushed "
Hajjar , the only other witness who testified about this
incident , stated that she heard McDaniel say "Your father
and you are lookin' to havin' your throats cut," but that she
did not hear any of the conversation thereafter.
During the noon hour, McDaniel telephoned Baldree at
her home to remonstrate with her for having reported an
alleged threat to Dinnerman and to dispute the claim that
what she had said to Baldree had any sinister connotations
Baldree testified that McDaniel told her that-
. . what she meant by the fact that she said I had just
cut my own throat was that the girls at the plant had lost
all use for me , whatsoever , that they would not have
anything else to do with me.
Baldree testified that McDaniel was crying at the time and
that during the course of their conversation she emphasized
that she felt Baldree had caused her to lose her job.
McDaniel 's testimony was in substantial accord with that
of Baldree According to McDaniel , the conversation was
concluded with a plea on her part that Baldree help her get
her job back by telling Dinnerman that she had made no
threats 6
When Baldree returned to the plant after the noon lunch
hour , she did , in fact , report to Dinnerman on the telephone
conversation with McDaniel She testified that she told the
plant manager that McDaniel said that by her remark "You
have just cut your own throat ," she meant that "the girls in
the plant had lost all use of me, and that she hoped that my
conscience really bothered me and [that] I had many
sleepless nights " She also told Dinnerman that McDaniel
contended that Baldree was responsible for her discharge
and that if the matter went to court she had the best lawyer
in the State and that it would cost Baldree and Dinnerman
a considerable amount of money According to Baldree, all
that Dinnerman said to her on this occasion was "Calm
down, Betty "7
May 8 was a Friday. As was apparent from her
conversation with Baldree during the noon hour, when
McDaniel left the plant in compliance with Dinnerman's
order that she go home , she assumed that she was being
discharged In this she was correct , and on the following
Monday, Dinnerman sent her a letter which stated,
according to her testimony , that she was being terminated
for making threats "against employees of C & D
Sportswear and [Irving Dfnnerman ] and his father."8
At the hearing, Dinnerman conceded that prior to her
termination he had no complaints about Mc Daniel's work
a Baldree also testified that McDaniel asked whether she (Baldree) was
going to take the matter , to court ," and that when she responded that that
decision was up to Dmnerman , McDaniel told her that if the matter went
to court that she could fight it as long as Baldree and the Company wanted
to that she had the best lawyer in the State and that "she hoped my
conscience really bothered me "
I When on the stand , Dinnerman acknowledged that Baldree reported
to him about her conversation with McDaniel immediately after she
returned to the plant but he testified that he could not recall her having
According to Dinnerman, he discharged her because of the
statement made to Baldree and "because of .. . the way
she spoke to me, the way she had threatened me."
Although at noon on May 8, Dinnerman ordered
McDaniel to go home and stay there until he contacted her,
presumptively while he investigated the matter , no such
investigation was ever conducted . Dinnerman conceded
that he never talked with either McGee or Rowan, the two
employees who were present with McDaniel on May 7 and
8, when both conversations with Baldree occurred
Assistant Floorlady Folsom testified that aside from her
one conversation with Dinnerman on the morning of May
8, and prior to the employee 's dismissal , she was not asked
any questions about what had taken place. Employee
Odom , who was present on May 8 when McDaniel made
the remark in question to Baldree , testified that the
management made no inquiry of her as to the statement
and the circumstances of its utterance , and Floorlady
Hajjar testified that she was not asked to send anyone to the
plant office in connection with any such investigation.
Dinnerman did, however , discuss the matter with Baldree
on three different occasions on May 8 The first time was
when Baldree came to him before the shift began work and
reported the conversation of the prior afternoon , as a result
of which Dinnerman immediately thereafter loudly admon-
ished McDaniel before her coworkers to "leave my girls
alone" and to "stop pestering .. . bothering . . and
threatening" them. Later that morning when Baldree
reported to him that McDaniel had called out that she had
just "cut her own throat ," Dinnerman inquired whether
Baldree would give a sworn statement to that effect and,
when assured that she would , solicited no further
information . After the noon hour recess Baldree reported to
him again , this time on her telephone call from McDaniel
and, in so doing , told him that the latter employee had
endeavored to explain what she had meant by her remark
to Baldree earlier in the day It is significant that,
notwithstanding his willingness to accept Baldree's version
of events and to accord her a hearing , Dinnerman conceded
that he never asked McDaniel to give her account of what
had occurred on the afternoon of May 7 or on the following
morning.
Dinnerman testified that it was his practice, when
differences arose among the female employees in the plant,
to smooth over such matters as they developed According
to the plant manager, on an earlier occasion when two of
the female employees were involved in a dispute , one of the
disputants voluntarily quit after he spoke to her so that it
was unnecessary for him to take any disciplinary action.
Apart from Mc Daniel's case, he could recall only one other
situation where he ever sent an employee home pending an
investigation, and, in that instance, the individual in
question had assaulted a coworker with a knife
told him that McDaniel had explained what she had meant by the
statement made to Baldree earlier that day Baldree's testimony to the
effect that she had so informed Dinnerman was credible and the Trial
Examiner concludes that she reported the conversation to Dinnerman
substantially as she testified
" This letter was never offered However . there appears to be no dispute
as to its contents The testimony of Dinnerman is in substantial accord
with the foregoing description of the letter to which McDaniel testified
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Dinnerman, in his final verbal exchange
with McDaniel, she told him "You're still lookin' to have
your throat cut" and "It's a wonder that you and your
father haven't had your throats cut and your head
crushed." Hajjar testified that she heard McDaniel say to
the plant manager "Your father and you are lookin' to
havin' your throats cut." Although she was present in the
area throughout the conversation between McDaniel and
Dinnerman, she testified that she could recall no more of
the conversation after having heard the last alleged remark.
McDaniel conceded that she told Dinnerman that she
could not understand how he and his father could treat the
women in the plant the way they had "without some men in
the county coming down here and pulling your hair out and
beatin' you down . " and that when Dinnerman
immediately asked whether she was threatening him, she
denied that she meant this comment as a threat. At the
hearing she also denied that on this occasion she told
Dinnerman "It's a wonder that some men. . haven't . .
bashed you and your father's head in." Hagar professed to
have a fear of physical harm if she herself ordered
McDaniel to go home. She testified that, for this reason, she
requested that Dinnerman himself give this order to
McDaniel Hajjar's subjective testimony as to her fears and
apprehensions about violence on the part of McDaniel had
no ring of conviction and neither she nor Dinnerman was a
convincing or persuasive witness as to the events of May 8.
On the basis of his observation of the witnesses at the
hearing, the Trial Examiner has reached the same
conclusion as to Baldree and the testimony she gave on her
encounters with McDaniel Whereas Baldree testified that
McDaniel had an "evil look in her face," she conceded that
McDaniel never raised her voice in any of their conversa-
tions and that the latter had never acted toward her in a
threatening or aggressive manner Throughout the time that
Baldree was on the stand she gave the appearance of a very
nervous, excitable type of person who had developed an
abiding animosity toward McDaniel In contrast, McDan-
iel impressed the Trial Examiner as a frank and honest
witness throughout the course of her testimony and, most
particularly, when, after her direct examination, she was
subjected to an extended cross-examination. She was
articulate and completely candid at all times Consequent-
ly, it is the conclusion of the Trial Examiner that her
account of her final conversation with Dinnerman is more
accurate than that of either the plant manager or the head
floorlady
Concluding Findings
McDaniel was an employee of several years' experience
at the plant who had been proficient to the point where
Dinnerman had promptly offered her a supervisory post
when he first learned of her interest in the Union. As the
Board found in its decision, she declined this offer for the
stated reason that its acceptance would prevent her from
working for the unionization of her coworkers. Shortly
thereafter, as the Board further found, she was discrimina-
torily discharged The Respondent offered no criticism of
her work record subsequent to April 1, 1970, when she was
reinstated, pursuant to the Board's Order in the earlier case
The Board's order of reinstatement did not give
McDaniel a license to avoid any of the duties and
obligations of an employee in the plant and certainly
accorded her no right to engage in verbal abuse or make
threats upon the plant manager. Here, however, it is the
conclusion of the Trial Examiner that, on the facts found
above, McDaniel did not threaten Baldree, her coworker,
or Dinnerman, the plant manager.
On the morning of May 8, after Baldree reported her
conversation with McDaniel the evening before and
without making any effort to discuss the matter with
McDaniel, Dinnerman promptly chose to treat the latter as
if she had threatened Baldree. Thereafter, and notwith-
standing the fact that at the hearing he conceded that
McDaniel had never been a disciplinary problem, he loudly
denounced her before a large number of other employees
for "pestering ... bothering ... and threatening my
girls " In midmorning, after McDaniel expressed her
indignation over Baldree's reporting their earlier conversa-
tion to the management by telling Baldree she had cut her
own throat, and whereas Baldree herself initially was
puzzled as to how to construe this comment, Dinnerman
elected to consider the remark as a threat and sought from
Baldree a commitment as to whether she would give a
sworn statement in connection with the incident. At noon,
when Dinnerman told McDaniel to go home and await a
call from him, the employee knew that her fate was sealed.
When McDaniel requested an explanation as to why she
was being sent home, the plant manager would only say
that "accusations" had been made against her. Since up to
that point McDaniel had neither been asked, nor given an
opportunity, to relate her version of any of the events in
question, it was not surprising that McDaniel, a person not
lacking in self-respect, thereafter vented her indignation to
the plant manager.
The Act accords employees no freedom to make threats
to their supervisors or to engage in verbal abuse of the plant
officials. Neither, however, does it accord any freedom to
an employer to engage in disparate treatment of an
employee when such action is discriminatorily motivated.
In the earlier case involving the Respondent, the Board
found, as noted earlier, that the plant management, as
represented primarily by Dinnerman, had committed
extensive unfair labor practices and that one of the
principal targets of this discriminatory course of action had
been McDaniel In the instant case, after McDaniel had
been reinstated for less than 6 weeks, in compliance with a
Board Order, Dinnerman discharged her again, allegedly
for threats to him and Baldree On the basis of the findings
set forth above, it is the conclusion of the Trial Examiner
that this explanation was a pretext and that the primary
motive for McDaniel's second termination was discrimina-
tory Accordingly, it is further found that by this conduct
the Respondent violated Section 8(a)(3) and (1) of the Act
CONCLUSIONS OF LAW
1 The Respondent is engaged in commerce and the
Union is a labor organization , all within the meaning of the
Act
2 By discriminating in regard to the hire and tenure of
Margaret McDaniel, thereby discouraging membership in
the Union, the Respondent has engaged in, and is engaging
C & D SPORTSWEAR CORPORATION 29
in unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, the Trial Examiner will
recommend that the Respondent be ordered to cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act
Having found that the Respondent discriminatorily
terminated Margaret McDaniel on May 8, 1970, the Trial
Examiner will recommend that the Respondent be ordered
to offer McDaniel immediate and full reinstatement
without prejudice to her seniority or other rights and
privileges, and make her whole for any loss of earnings she
may have suffered from the time of her discharge to the
date of the Respondent's offer of reinstatement The
backpay for the foregoing employee shall be computed in
accordance with the formula approved in F. W Woolworth
Company, 90 NLRB 289, with interest computed in the
manner and amount prescribed in Isis Plumbing & Heating
Co, 138 NLRB 716, 717-721 It will also be recommended
that the said Respondent be required to preserve and make
available to the Board, or its agents, upon request, payroll
and other records to facilitate the computation of backpay
due.
As the unfair practices committed by the Respondent are
of a character striking at the root of employee rights
safeguarded by the Act, it will be recommended that the
said Respondent be ordered to cease and desist from
infringing in any manner upon the rights guaranteed in
Section 7 of the Act. N L R B v Entwistle Mfg Co., 120
F.2d 532, 536 (C.A. 4).
Upon the basis of 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 Act, the Trial
Examiner hereby issues the following recommended
ORDERS
or substantially equivalent position, without prejudice to
her seniority or other rights and privileges.
(b) Make Margaret McDaniel whole for any loss of
earnings suffered by reason of the discrimination against
her, in the manner set forth in the section above entitled
"The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due and the
right of reinstatement.
(d) Notify the above-named employee if presently
serving in the Armed Forces of the United States of her
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.
(e) Post at its place of business in Adel, Georgia, copies of
the attached notice marked "Appendix " 30 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by Respondent's
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing 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.
(f) Notify the Regional Director for Region 10, in writing
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith I'
v In the event no exceptions are filed, as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations and recommended Order herein
shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted
by the Board and become its findings, conclusions, and order, and all
objections thereto shall be deemed waived for all purposes
10 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a judgment of the United States Court of Appeals
enforcing an order of the National Labor Relations Board "
11 In the event that this recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 10 in writing, within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith "
C & D Sportswear Corporation, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in a labor organization by
discriminating in regard to hire, tenure, or other conditions
of employment
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to
self-organization, to form labor organizations, to join or
assist any labor organization, to bargain collectively
through representatives of their own choosing, to engage in
concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and to refrain from any
and all such activities
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Margaret McDaniel reinstatement to her former
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in
INTERNATIONAL LADIES' GARMENT WORKERS' UNION,
AFL-CIO, or in any other labor organization of our
employees, by discharging any of our employees, or by
discriminating against them in regard to their hire or
tenure, or any other term or condition of their
employment.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
rights to self-organization, to form labor organizations,
to join or assist the above-named Union, or any other
labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
WE WILLoffer Margaret McDaniel immediate and full
reinstatement to her former or substantially equivalent
position, without prejudice to her seniority or other
rights and privileges, and make her whole for any loss of
pay suffered as a result of discrimination against her.
Dated By
C & D SPORTSWEAR
CORPORATION
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Peachtree Building, Room 701, 730 Peachtree Street, NE.,
Atlanta, Georgia 30308, Telephone 404-526-5760.