Case, Inc.

National Labor Relations Board - Board Decisions

Aug 24, 1978

237 N.L.R.B. 798 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Case, Inc. and Upper South Department, International
Ladies' Garment Workers' Union, AFL-CIO
Gibraltar Industries, Inc. and International Ladies'
Garment Workers' Union, AFL-CIO and Upper
South Department, International Ladies' Garment
Workers' Union, AFL-CIO. Cases 9 CA 10829 1.
-2, 9-CA 10958 1, 9 RC 11709, 9 CA 10786 I.
9 CA 11028. and 9 CA 10786 2
August 24, 1978
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN FANNIN( AND MI NIBERS PENEI.I ()
AND TRUESI)AI. F
On November 30, 1977. Administrative Law Judge
Claude R. Wolfe issued the attached Decision in this
consolidated proceeding.' Thereafter, Respondents.
Charging Parties, and the General Counsel all filed
exceptions and supporting briefs.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and attached
Decision in light of the exceptions and briefs and has
decided to affirm the rulings, findings.2 and conclu-
sions of the Administrative Law Judge only to the
extent consistent herewith, and to adopt his recom-
mended Order as modified herein.
The Administrative Law Judge concluded that af-
ter the Union obtained authorization cards from a
majority of employees in the unit, Respondent Case,
Inc., committed numerous violations of Section
8(a)(1) of the Act and also discharged an employee in
violation of Section 8(a)(3). As part of this consoli-
dated proceeding, the Administrative Law Judge
overruled challenges to the ballots of four employees
and also found that Respondent Case interfered with
the election by engaging in certain objectionable
conduct.
In fashioning a remedy for Respondent Case's un-
fair labor practices, the Administrative Law Judge
'On November 16. 1976. an election was conducted anl..lng the emploi-
ees in the appropriate unit at Respondent Case. Inc The tall! of ballots
showed that 94 employees cast ballots for, and 97 cast ballots against. the
Petitioner. kUpper South Department. IL. GWL:. herein the tmlon l here
were nine challenged ballots, a number sufficient to affect the results of the
election.
2 Respondents have excepted to certain credibillt fiindintgs illide b h the
Administratie L aw Judge. It is the Board's eslablished plohc nol to over-
rule an Administratisve Law. Judge's resolutions vi.h 'epect it credibihllt
unless the clear preponderance of all of the releantli e.:dence colnince, us
that the resolutions are incorrect. Standard Drt Ifa/!l PItl (iti, i Ira 91
NLRB 544 (1950), enfd. 188 F2d 362 ((C.A 3. 1951 NWe ha.¢ eadrefulls
examined the record and find no basis for reversing his findinegs
recommended that the challenged ballots be opened
and counted and that a certification of representative
issue if the revised tally of ballots results in a union
majority. If, however, the Union does not receive a
majority of votes cast, the Administrative Law Judge
recommended that the election be set aside and that
Respondent Case be ordered to recognize and bar-
gain with the Union. Although the Administrative
Law Judge found that this Respondent's unfair labor
practices were sufficiently severe to warrant the is-
suance of a bargaining order, he nonetheless failed to
explicitly provide for both the certification of repre-
sentative if the Union prevails in the election and for
the imposition of a bargaining order.
The Board has held that in situations such as the
instant one the outcome of the election should not be
determinative of whether or not a bargaining order
should issue) The rationale underlying this result is
simply that a certification alone does not serve to
correct any unilateral changes which the employer
may have instituted between the time when it was
obligated to bargain and the time when a certifica-
tion is issued.4
The Administrative Law Judge found, and we
agree, that Respondent Case violated Section 8(a)(l)
of the Act by interrogating employees concerning
their union activities, by promising benefits to em-
plovees for the purpose of discouraging their union
activities, and by threatening employees with loss of
work for engaging in union activities. The Adminis-
trative Law Judge also found that Respondent Case
violated Section 8(a)(l) by directing other employees
to assist it in discouraging union activities. We also
adopt the Administrative Law Judge's finding that
Respondent Case violated Section 8(a)(3) of the Act
by discriminatorily discharging Anita Wilburn, a vo-
cal and active union adherent.
In these circumstances, we find that the unfair la-
bor practices committed by Respondent Case cer-
tainly had "the tendency to undermine majority
strength and impede the election process." 5 A bar-
gaining order is warranted here not only to protect
the right of employee free choice, but also to insure
that Respondent Case does not profit from its own
wrongdoing.6 Moreover, we shall date the bargaining
obligation as of September 15, 1976, the date on
which the Union first attained majority status in the
appropriate unit.'
i (,retli itlhnlit antd Paific Tea Cinitipail Inc. 230 NLRB 766 (19771.
4See Ppe iaientenanr ( irpororairn. 228 NLRB 326 (19771
1. R B. s (Gisse/ Pa Arng (' /. Inr'. 395 l .S 575, 614 (1969)
' See tlrinlg.lrl Wrif ar & ( , Imrror alead. 220 NLRB 373 (1975)
Iradlilt Parl, In., 219 NLRB 298 11975): Beastle Energt. In( d h a
PeaAlr Ran, (iii C( onpanr Ohio DOiiotll =1. 228 NL.RB 93 (1977). Chair-
man Fanning agrees with this date because it is also the date if Respondent
(as's relection of the tnlllt' demand for recognition
237 NLRB No. 60
798
CASE, INC
Accordingly, we shall adopt the Administrative
Law Judge's recommended Order as modified herein
and issue the Direction set below.
ORDER
Pursuant to Section 10(c) of the National l.ahor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative l aw Judge, as modified
below, and hereby orders that Respondent Gibraltar
Industries, Inc., and Respondent Case, Inc.. Olive
Hill, Kentucky, their officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order, as so modified:
I. Substitute the following for paragraph B. 2(a):
"(a) Recognize, effective from the date beginning
September 15, 1976. and, upon request. bargain col-
lectively and in good faith with Upper South Depart-
ment, International Ladies' Garment Workers'
Union, AFL-CIO, as the exclusive representative of
all employees in the appropriate unit with respect to
rates of pay, wages, hours, and other terms and con-
ditions of employment, and, if an understanding is
reached, embody such understanding in a signed
agreement. The appropriate bargaining unit is:
"All production and maintenance employees.
including shipping and receiving employees em-
ployed by the Employer at its Olive Hill, Ken-
tucky. location, but excluding all office clerical
employees, professional employees, and guards
and supervisors as defined in the Act."
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice marked "Appendix ('."
DIRECT ION
It is hereby directed that the Regional Director for
Region 9 shall, within 10 days from the date of this
Decision, open and count the ballots cast by Juliette
Haslebeck, Walter Sherman Butler, Woodrow Bur-
chett. and Elva Duncan in Case 9 RC 11709, and
prepare and serve on the parties a revised tally of
ballots. If the revised tally reveals that the Petitioner
has received a majority of the valid ballots case, the
Regional Director shall issue a Certification of Rep-
resentative. However, if the revised tall\ shows that
the Petitioner has not received a majority of the valid
ballots cast, the Regional Director shall set aside the
election results, dismiss the petition. and vacate the
proceedings.
APPENDIX C
Noric:( To EMPI.oY .ts
POSI iD n BY ORDE R OF Till
N \lin', i LABOR RI IAllO-,S BOARD
An Agency of the United States Government
Wi Vll.l. Nioi discourage membership in Up-
per South Department, International Ladies'
Garment Workers' Union, AFL-CIO, or an,,
other labor organization, by discharging any of
our employees or in any other manner discrimi-
nating against them in regard to their tenure of
employment or any term or condition of em-
pliot ment.
VWi \ III l(I interrogate our employees con-
cerning their or other employees' union activi-
ties, membership, or desires.
Wi va itl so)I promise benefits to our employ-
ees for the purpose of discouraging their union
activities.
\VI Al I N()i solicit our employees to assist us
in undermining and destroying union organiza-
tional efforts.
Wi xaiil -,ol threaten our employees with loss
of work or other reprisals for the purpose of dis-
couraging their union activities.
WI \si.iu sNi refuse to recognize or bargain
with Upper South Department, International
l.adies' Garment Workers' Union. AFL-CIO, as
the exclusive representative of all employees in
the bargaining unit described below.
Wi. Wii.i. sol in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed them by Section 7
of the Act.
Wi v\d ll recognize, effective from the date be-
ginning September 15. 1976, and, upon request.
bargain collectively and in good faith with Up-
per South Department, International Ladies'
Garment Workers' Union, AFL -CIO, as the ex-
clusive bargaining representative of all the em-
ployees in the bargaining unit described below
with respect to rates of pay., wages, hours of em-
plo)ment. and other terms and conditions of
employment and, if an understanding is
reached. embody such understanding in a signed
agreement. The appropriate bargaining unit is:
All production and maintenance employees,
including shipping and receiving employees
employed by Case. Inc., at its Olive Hill, Ken-
tucky. location, but excluding all office cleri-
cal employees, professional employees, and
guards and supervisors as defined in the Act.
Wit: v ii. offer to Anita Wilburn immediate
799
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and full reinstatement to her former job, or, if
that job no longer exists, to a substantially
equivalent position, without prejudice to her se-
niority or other rights and privileges, and we will
make her whole for any loss of earnings she may
have suffered as a result of her suspension and
discharge, with interest.
WE WILL expunge from our records the warn-
ings issued to Anita Wilburn on November 5, 9,
and 19, 1976, and advise her in writing that we
have done so.
All our employees are free to join, or to refrain
from joining, Upper South Department, Internation-
al Ladies' Garment Workers' Union. AFL-CIO. or
any other labor organization.
CAS:E. INC.
DECISION
STATEMEN1 OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge: The
above-styled cases were tried before me as a consolidated
proceeding at Morehead, Kentucky, on June 8, 9, 10, 14,
15, 16, 21, and 22, 1977.1
The pertinent docket entries are as follows, chronologically:
November 9, 1976 International Ladies' Garment Workers' Union,
AFL-CIO (herein called the International or the ILGWU) filed chalrges in
Case 9 CA 10786 alleging that Gibraltar Industries, Inc. (herein called (,i-
braltar). violated Sec. 8(aX(I), (3), and (5) of the Act.
November 19. 1976 Upper South Department. International Ladies'
Garment Workers' Union. AFL CIO therein called Upper South), filed
charges in Case 9-CA 10786 2 alleging Gibraltar violated Sec. 8a)(,) Iof
the Act.
November 19, 1976 Upper South filed charges in (Case 9 (CA 10829
alleging that Case. Inc., had violated Sec. 8(a}(Il of the Act
November 22, 1976 Uipper South filed charges in Case 9 CA 10829 2
alleging Case. Inc., had violated Sec.
8
(a)( I) and (51 of the Act.
December 22, 1976- Complaint and notice of hearing in ('ase 9 ('A
10829 I, 2.
December 22. 1976 Order directing hearing. order consolidating cases.
order transferring case to the Board, and notice of hearing in Cases 9 (CA
10829 1, -2. and 9-RC 11709 (which involves determinative challenges aind
objections to a National Labor Relations Board-conducted election ia (iCase,
Inc.
January 10. 1977 Upper South filed charges against Case. Inc. ( Case
9 CA 10958 alleging violations of Sec. 8(a)(1 ) and (3) of the Act
January 21. 1977 Upper South filed First Amended C(harge agaitnst
Case, Inc., in Case 9- CA 10958 alleging violations of Sec 8(a)( i). (3). and
(4) of the Act.
February 4, 1977 ILGWU filed charge against Gibraltair in (Caise 9 ('*
11028 alleging violations of Sec. 8(a)(1) and (5) ofi the Act
February 18, 1977 -Upper South filed second amended charges against
Case. Inc., in Case 9-CA 10958 alleging violations of Sec.
8
(a)( 1) (3). and
(4) of the Act
February 28, 1977 -Complaint and notice of hearing in (ase 9 ( A
10958 1. Order Consolidating Cases and Notice of Hearing in Cases 9 (CA
10829 1. -2. and 9-CA 10958 I.
March 28. 1977-First amended charge filed in (Case 9 (CA 10786 2 b)
Upper South alleging Gibraltar violated Sec. 8(a)(1) and (3) of the Act.
April 12. 1977 Order consolidating cases, consolidated complaint and
notice of hearing in Cases 9-CA 10786 I and 9 ('A 10786 2. Order conso-
lidating cases and notice of hearing in Cases 9 (A 10829 1. 2. 9 CA
10958 1, 9 RC- 1 1709. and 9 CA 10786 i. and -2.
April 15, 1977-Order consolidating cases. amended consolidated cornm-
The General Counsel alleges that Gibraltar violated Sec-
tion 8(a)(1), (3), and (5) of the Act in several respects, in-
cluding threats of loss of work and plant closure; the crea-
tion of an impression of surveillance of union activities of
its employees; the discriminatory layoff of its entire work
force: the transfer of its operations from Olive Hill, Ken-
tucky, to Brooklyn, New York, to avoid bargaining with
the ILGWU: refusal to meet at appropriate places and bar-
gain on the plant closure and its effects on employees; re-
fusal to furnish information necessary to meaningful col-
lective bargaining; and the utilization of the transfer of
operations as a device to chill the union activities of Case,
Inc., employees.
It is further alleged that Case, Inc., violated Section
8(a)(l), (3), (4), and (5) of the Act by coercively interrogat-
ing employees; threatening its employees with loss of jobs,
plant closure, and other unspecified reprisals; discrimina-
torily discharging Anita Wilburn: refusing to bargain with
Upper South as the designated representative of its em-
ployees: and, through its agents Gibraltar and Gibraltar's
president Wallace Forman, closing the Gibraltar plant in
order to chill employee union activity at Case, Inc. The
objections to election in Case 9-RC- 11709 parallel the
complaint allegations, in major part, and there are nine
determinative challenges to be resolved.
The allegation set forth above in rather general terms
will be dealt with in specific detail hereinafter. The Re-
spondents, Gibraltar and Case, Inc., deny the commission
of unfair labor practices.
Upon the entire record (certain errors in the transcript
herein have been noted and corrected), including my ob-
servation of the witnesses as they testified, and after due
consideration of the able post-trial briefs filed by all par-
ties. I make the following:
FINDINGS AND CON(CI USIONS
I. Bt SINESS Of GIBRALTAR AND CASE. INC
Gibraltar manufactures sleeping bags and other quilted
materials at its Brooklyn, New York, facility and formerly
operated a facility at Olive Hill, Kentucky, where it manu-
factured sleeping bags and other quilted materials. During
the 12-month period preceding the closing of its Olive Hill
facility, a representative period, Gibraltar purchased and
received goods and materials valued in excess of $50,000,
which were shipped directly to its Olive Hill facility from
points located outside the State of Kentucky. During the
12 months preceding the issuance of the amended consoli-
dated complaint in Cases 9-CA-10786-1, -2, and 9-CA-
11028, on April 15, 1977, Gibraltar purchased and received
goods and materials valued in excess of $50,000, which
were shipped directly to its Brooklyn, New York, facility
from points outside the State of New York.
Case, Inc., a Kentucky corporation, manufactures cloth-
ing at its Olive Hill, Kentucky, facility, from which it annu-
plaint. and notice of hearing in ( ases 9 ( A 10786 1: 9 ('A 10786 -2. and
9 ( A 11028. Order consolidating cases and notice of hearing in C ases 9
('A 10)958 I: 9 R( 117(9. 9 (A 10786 I, 9 ( CA 11028, and 9 CA
10786 2.
Ihere werc idditional aineldnlents to complaints permitted at hearing.
800
unit of production and maintenance and shipping and re-
ceiving employees of Gibraltar at its Olive Hill plant. Gi-
braltar operates a much larger plant at Brooklyn, New
York.
The Company and the Union held their first negotia-
tions meeting after certification on October 19, at Olive
Hill. Present for the Employer were the Company's presi-
dent. Forman. and its attorney. Stanley Israel. The Union
was represented by International Vice President Sam Janis.
organizer Pat Rains. and employees Ray Cox and Mary
Freize. The Union presented the Company with a written
proposal in the form of a proposed contract of some 37
articles. The Employer presented no written proposal and
did not present one during the course of negotiations. other
than a management rights clause proposal which was
handed to the Union at the following meeting. The Union's
proposals were not discussed at this first meeting because
the Company requested and received time to examine them
before discussing them. There was no real discussion of the
lUnion's proposals at this first meeting. Janis requested a
list of employees, their job classifications, and their rates of
paN. All of these were furnished to him prior to the second
meeting. Janis was also furnished with the written policies
of the Company relating to wages, holidays, and various
other items that were in effect at the time. Gibraltar's presi-
dent. Forman. told Janis that there was a major absentee
problem and other production problems at the Olive Hill
plant and that if this did not improve the plant would not
survive. He also told Janis that there was no point in his
maintaining his operations in Olive Hill, in view of the fact
he already had a plant in Brooklyn, unless the work could
be done more cheaply in Olive Hill. Forman further men-
tioned that Ben Maggio, the Olive Hill plant manager, was
leaving and it would be necessary to get a replacement for
him. The next negotiation meeting was held October 27.
Israel. speaking on behalf of the Company, stated the posi-
tion that the Employer had examined the contract pro-
posed by the Union, would not sign it as written, and was
taking the position that it did not want to increase the
existing monetary benefits then in effect, including wages,
vacations, and holidays.' Janis protested because the Em-
ployer would not offer any increases in economic benefits.
After this preliminary discussion regarding the Employer's
position on economics, the parties discussed the Union
proposals item by item. The parties reached an agreement
on about 30 of the articles in the Union's proposal, either
in whole or in part, but the Employer steadfastly declined
to offer anything more in the way of wages and other eco-
nomic benefits than what was then in existence. Part of the
Union's proposal was a request for a 3-year contract. The
position taken by the Employer at the end of this meeting,
after agreement had been reached on many items and
some others had been reserved for Israel to discuss with
Forman. was that although it would negotiate on and agree
to many of the other items in the Union's proposal, it
would not grant any additional monetary benefits than the
employees were currently enjoying, and the Company
Ihereaftei. thrtlughout the course of the events related herein, the (Coin-
pain did not change its ptosltlin that it would make no changes in , hat the
parlies referred Io cas conomic lenlms which enlcompassed wages. the selting
of piece o irk. ratcs. Xsicatlons. hihlidas. a ind tarious other monetars itemi
ally sells goods and materials valued in excess of $50,000,
which are shipped from its Olive Hill. Kentucky, facility
directly to points outside the State of Kentucky.
At all times material herein, Respondents Gibraltar and
Case, Inc., have each been and are now employers within
the meaning of Section 2(2) of the Act, engaged in com-
merce and operations affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
1I THE LABOR ORGANIZAI IONS
The ILGWU and the Upper South Department2 are,
and have been at all times material herein, labor organiza-
tions within the meaning of Section 2(5) of the Act.
111 THE AI E(i:D l NIFAIR LABOR PRA( CIII S
A. Introductort Remarks
The allegations of unfair labor practices in the various
complaints issued in this proceeding are based on events
occurring at the Olive Hill. Kentucky, plants of the two
Respondents. In addition to the actions of each Respon-
dent alleged to have been directed at its own employees.
and/or their respective unions, it is alleged the Gibraltar
and its president, Wallace Forman. acted as agents of
Case. Inc., in committing unfair labor practices designed to
chill the union activities of Case, Inc.. employees and to
dissuade them from selecting the Upper South Department
as their exclusive collective-bargaining representative. A
consideration of the allegations of the various complaints
and amendments thereto, as well as the evidence adduced
which is material to the allegations against both Respon-
dents, persuades me that the presentation of the facts in
this proceeding could be quite confusing if all the evidence
were presented in one continuous chronological review. I
shall, therefore, in the interests of clarity of exposition and
ease of understanding, first separately set forth the facts
found with respect to the happenings at each Respondent's
facility, and then relate the facts found bearing on the al-
leged interrelationship between the two Respondents.
B. The Facts 3
1. Gibraltar Industries, Inc.
On October 12, 1976, the ILGWU was certified, pur-
suant to a Board-conducted election on October 1. 1976, 4
as the exclusive collective-bargaining representative of a
2 'The case caption is hereby corrected to reflect that the L pper Siouth
Department filed the charges in Cases 9 ( A 10829 1 2. ;1a.i 9 ( A
10958 1 and the petition in Case 9-R( 11709
The facts set forth herein are based on a synthesis of the credited aspects
of the testimony of all witnesses. the exhibits. stipulations of fact. and care-
ful consideration of the logical consistency Iand inherent prohabhlits of the
facts found. Although I may not. in the course of this decisiun. advert to all
of the record testimons or documentar? evidence. it has been cairefull\
weighed and considered. and to the extent that tcstinlolns or other esidence
not mentioned herein might appear to contradict the findings of fact. that
evidence has not been disregarded hut has been rejected as incredibleh ;lck-
inm in probatise worth, surplusage, or irrelevant
All dates herein occurred in 1976 unless otherswise speifliedI
CASE. INC 801
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wanted a 2-year contract. This was unacceptable to Janis.
By letter of November 1, Israel advised Janis with regard
to matters he had promised to take up with President For-
man. The letter rejects the Union shop clause proposed by
the Union, accepts certain other provisions, offers some
suggestions with regard to a "leave of absence" clause, and
advises of the Company's willingness to open up a payroll
account in Olive Hill to insure a Friday pay date.
On November 3, Gibraltar's president, Forman, was in-
terviewed by a reporter, Dan Tracy, for the Olive Hill
Times. During this interview, which was published in the
Olive Hill Times dated November 8,6 Forman told Tracy
that the Gibraltar plant in Olive Hill had no future unless
the Union turned around and walked away. He also stated
that he did not see how the Union could be of any benefit
to this area and that he believed that the real reason that
the Union was at his plant was not for increased worker
benefits but for the foothold the Union could gain in orga-
nizing the bigger plants in Olive Hill. Tracy quotes Forman
as saying, with regard to negotiations, "Our offer cannot be
increased if we are to stay in the sleeping bag business, . . .
I produce sleeping bags elsewhere. If I am forced to, I'll
shut down." Forman also told Tracy that he would prob-
ably close the plant in the event of a strike, but he had
wanted to turn it into a very substantial plant. Forman
commented to Tracy that if the employees reconsidered
and voted not to have the ILGWU the Union might decide
to pull out.7 Forman told Tracy that the Union had re-
quested a 30-percent pay increase over the Ist year and 50
percent over the next 3 years, that his attorney had exam-
ined the proposal, and that the Company had accepted a
portion of the demands but rejected the majority of them.
Janet Baker credibly testified that 3 or 4 days before
employees stopped working at Gibraltar she saw a Telex
message received in the Gibraltar office from Sol Ludwig,
whom she refers to as a production manager for Gibraltar
in the New York office. The message was addressed to
plant manager Maggio and stated, "please return all com-
ponents in excess of current open cutting tickets as soon as
possible for reassignment." 8 About the same time Gibral-
tar stopped producing sleeping bags at Olive Hill for one of
its customers, Eastern Mountain Sports. The bags on hand
with the Eastern Mountain label in them were relabled
"Trail-Tech," a Gibraltar trade name.
On November 5, plant manager Maggio told employee
Ollie Ray Cox that he had received a telegram from Sol
Ludwig to close the plant down. Cox asked him if that
meant that the plant was closing down permanently. Mag-
gio replied that he did not know. The last two employees,
other than Maggio and Janet Baker, who continued to
work at the plant until the machinery was finally moved,
61 conclude that the interview with Forman occurred on Wednesdal.
November 3. because the article in the Monday. November 8. newspaper
states Ihat the interviews was held the previous Wednesdax
7Forman did not testify at the hearing. Tracy credibly testified that his
article in the newspaper reflects what he was told by Forman and that there
was never any demand for retraction of the article.
8 I conclude that the message from Ludwig was received either in Nol-
vember 5 or a day or two earlier, in view of the fact that lost employees
were laid off on November 5 and the document w.as seen in ihe (C ompan's
office by another employee on November 5
working at Gibraltar were Cox and Cooper who loaded the
materials from the plant onto a truck on November 8 for
shipment to Brooklyn. The machinery owned by Gibraltar
was not moved out of the plant until the first quarter of
1977, at which time it was transferred to the Brooklyn
plant. No employees were recalled to work at Olive Hill
after November 8.
During the period including October 1976 through
March 1977. the Brooklyn facility manufactured 450 sleep-
ing bags in January 1977, and then followed with 909 in
Februarv and 1,751 in March. They produced no sleeping
bags from October through December 1976. Gibraltar
shipped no sleeping bags from its Brooklyn facility from
the first of October until February 1977, during which
month it shipped 1.075 sleeping bags. In March 1977, it
shipped 1,751 bags.
The Company did not advise the Union prior to the lay-
off of its employees on November 5 and 8. The first knowl-
edge Janis received of the layoffs was through a call from
his attorney on November 8 to the effect that the plant had
been shut down. A meeting was thereafter arranged with
the Company for December 9. At the December 9 meeting.
Israel, Forman. and Maggio were present for the Employer
and Janis. Rains, and another union representative were
present for the Union. No employees were there. Israel
assured Janis that the plant was not closed down and that
no decision had been made as to whether or not to close it.
All the equipment was still in place at the time of this
meeting. Israel told Janis that the Company was prepared
to sign a contract of 2 year's duration incorporating the
items that had been agreed upon by the parties, but with
continuation of the existing economic benefits for the em-
ployees. Janis agrees with Israel that this was indeed the
Employer's proposal on December 9. After some prelimi-
nary conversation about the need for getting business to
get production, the need for a new plant manager, and a
plea by the Employer that the Union accept the contract
proposal, Janis rejected the proposal and insisted on in-
creases in monetary benefits. In response to that, Israel
told the Union that the Company had three alternatives.
The first alternative was to come back with a proposal in-
volving increased monetary benefits. The second was to let
the plant just sit the way it was and see what happens, and
the third was to just close the plant down. After further
discussion it was agreed that the Company only had two
realistic alternatives. The first was either to make a better
offer to the Union with respect to economic benefits, and
the second was to close the plant down. Israel agreed that
he would let Janis know what the Company's decision was
going to be. On December 17, Israel called Janis and told
him that the Company would not change its economic of-
fer, but would still sign the 2-year contract that it had pro-
posed. Janis rejected this, whereupon Israel told him that
Gibraltar was going to close the plant. By letter of Decem-
ber 20, Israel confirmed this conversation with Janis and
told him that if he desired to further discuss the termina-
tion of operations or the effects of it, "please do not hesi-
tate to call."
By letter of December 21. the Union demanded that Gi-
braltar meet and bargain over its stated intention to perma-
nently close the plant, contended that there had been no
802
tors. which is engaged in the greeting card business and,
insofar as the record shows, has no connection with Gi-
braltar or Case, Inc.. the other Respondent in this case.
There is no ev-idence that the Card Factory is anything
other than a bona fide company which will be in business
for the foreseeable future.
In addition to the foregoing evidence relating to the ne-
gotiations and the ensuing plant closure, the General
Counsel offered testimony from various witnesses to sup-
port the allegations of the complaint that Gibraltar vio-
lated Section 8(a)( I) of the Act by various actions of Ben
Maggio. Sol Ludwig, and Wallace Forman.9
On the morning of some unspecified date in July. Ben
Maggio walked up to Ollie Ray (ox where he was working
in the shipping department and asked him if he had heard
anything about the Union coming in. Cox replied that he
did not and asked Maggio how Maggio knew. Maggio re-
plied that he had ways of finding out. Sometime during this
conversation Maggio also told Cox it didn't matter to him
one was or another what Cox' feelings about the Union
were. Subsequently, Cox attended a meeting of the
ILGWU on August 5 at the Carter Cave Lodge, where
some employees signed union cards. The following morn-
ing. August 6. Ben Maggio spoke to Cox privately in the
morning and said that he had heard that the employees
had had a meeting at the Carter Cave Lodge and some had
signed cards. Maggio went on to ask Cox if he had signed
a card, but ( ox did not answer this question. Instead. Cox
asked Mlaggio how he knew about the meeting, whereupon
Maggio replied that he had ways of finding out.
On August 17. the Employer called a meeting of all em-
plosees. Company representatives present were Ben Mag-
gio and Sol Iludwig. ' AccordingI to Cox, whose version I
credit over that of Freize, who seemed to be somewhat
confused and whose testimons was contrary to her pretrial
statement in some respects. Maggio told the employees
that he had received a message from Forman that the fac-
torN was losing customers and that if they continued to lose
customers the factory could he forced to close. Maggio
"Rcpindicnll cncede, and I find. that Gibraltar's presideni. Wallace
Forman. and it O()ive Hill plant manager. Ben Maggio. were. at all times
material to the .lleication, in vhich the are Inol ied, supervisors within the
meaning of Sc.lin 2 1I of Ihe Act and agent, ilf Gilbraltar The Respon-
dent dlene', that Sol I ludl Ig i eithcr a uper' isor or an agent while the
ex denc , -inc, hat ur, le.ir a, toI his exact capacils with the (ompan5 . I
conclude lhti udIlg val. ai. t the times he engaged in the conduct com-
plained of and a. the time hle ent the Ielex to the Ohve Hill plant on or
a.hout Nixcrbher 5. an agent of (lihralatr In reaching this conciusion I am
persuaded that the Ielex me'.'lge sent b I udwig to Maggio as an Instruc-
tion extahlixhes thaii I uidv a,x im n agent if the Fmiploser empowered, at
the xer' leasl 1I, dire c Maggiia ta, Ike certain action I hake also noted that
L dw, ig's tateltlenls c.mpl;ned if were made at a meeting called hs M3g-
go [I aIit. cion,,der it igtificant that Janet Baker. the office secretar) for
(hbrahlar at Ils (Olie Iill paint, refer', t. I udwig a; the production manager
for Gihralt.r it the Ne,, 't oirk iffice, and that Ollie Ras Cox credibhl
re'tiftedi thai he w.ha, told ' M1iaggilo that I udwig was a foreman for Gibral-
tar from Briookli Neither I orman. Magglo. nor Ludwig testified before
ne. Accordilngl. the ctinmol, of the General ( ounsel's witnesses relating
t, the exent alleced In the o.itipl.iint iIlliing these three gentlemien i
.rediled except to If - el t C tli ii thit Mlgtl t lie ilterntilll inconsistent ir con-
triadlictor' of other mitre credible testrlins
FI cirtclude that the ireeting occurred on August 17 as Cox testified.
rather than ()tibher 17 as ltarm I retle testifies. hecause the content of
Magl,'t renitl k refleit Ih.t Ihe rmeeing <,curred prior to the election
opportunity to engage in meaningful negotiations regard-
ing the decision to close, stated that if Gibraltar did close
the plant for legitimate reasons the Union would demand
bargaining with respect to the effects of that decision on
the employees, and requested a negotiating session as soon
as possible. Israel responded to this letter by his own letter
of December 28, in which he advised the Union's attorney
that there had been discussions of a meaningful nature
prior to the closing of the plant and set forth the three
alternatives that had been discussed and then reduced to
two at the December 9 meeting. Israel emphasized that
inability to pay the money was not the Company's basis for
the refusal to better its economic offer. Israel further ad-
vised that the Company had made a final decision but was
prepared to meet further with the Union to discuss the
effects of the termination and the termination itself if the
Union desired, but requested that "in view of the fact that
the Company no longer has an operation in Kentucky'. any
future meeting be held in New York City where both the
Union and the Company have their main offices." Janis
then dispatched a letter dated January 6, 1977, in response
to Israel's letter, in which he requested that a meeting be
held in Kentucky or at a convenient location elsewhere to
discuss the termination of operations and the effects on
employees. Janis also requested the Employer to furnish
information to assist it in bargaining, including, inter alia.
the additional costs involved in obtaining additional sales
and the Company's economic cost in Kentucky and its fi-
nancial profit or loss for the past 2 nears. together with
documentation of this information with accounting state-
ments, tax returns, and other necessary documents. Janis
also requested a description, accompanied with supporting
company documents, of the production inefficiency at the
Kentucky operation during 1976 and the comparision of
efficiency between the Kentucky and Brooklyn operations.
Janis further requested that the Employer furnish the
names of customers who cancelled orders, the specific or-
ders cancelled, and the reason for such cancellations, as
well as lost reorders. Janis closed the letter with a request
that Israel advise him when he expected to have the mate-
rial prepared. so that they could arrange for a mutually
convenient time and location for a meeting. This exchange
of letters was terminated by Israel in his letter of January
17, 1977, in which he took issue with the statements of
Janis as to what had transpired during negotiations. re-
fused to meet in Kentucky, offered to meet in New York or
to accept proposals by way of conference telephone calls or
by mail, and refused to furnish the information requested
by the Union on the grounds that it was irrelevant inas-
much as the termination itself was a completed matter
and that, although prepared to discuss it, the Company did
not intend to reverse itself on the plant closure.
Gibraltar started moving its equipment from the plant in
Olive Hill to the Brooklyn plant in January 1977, at which
time it moved the sewing machines and tables. In the early
part of March 1977. the remainder of the machinery, pri-
marily quilting machines as well as the office furniture and
equipment, was removed and transported to the Brooklyn
plant. After March there was no Gibraltar equipment re-
maining in the plant. The premises formerly occupied by
Gibraltar at Olive Hill are now occupied by the Card Fac-
CASE. INC. 803
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then went on to say if the Union got in it would be used as
a "strike against us." I am persuaded that Maggio's state-
ment that the Union could be used as a strike against the
employees was an ad-lib on his part, and was not in the
document he received from Forman. Freize testifies that
Maggio said that if the Union came in, employees might
have work and they might not. Cox does not testify on this
point, and I credit Freize to this extent. According to both
Cox and Freize, Ludwig also spoke at the meeting and
asked employees what the chip was that they had on their
shoulders and why they had to go out and get strangers
and bring them in when they could have come to the Com-
pany and sat down and talked it over and worked some-
thing out.
On or about August 24, President Forman and Maggio
held another meeting of the employees." Forman stated
that the factory was losing customers and that they
couldn't continue to lose customers. He went on to say that
he could take the Gibraltar plant and move it into one
corner of his plant in New York and forget about it. I
credit Cox that Forman also stated that there was no one
going to put a gun to his head and force him to do some-
thing that he did not want to do. Cox further testifies to a
meeting of employees conducted by Forman on September
29, but all Cox recalls is that Forman said that if the facto-
ry closed down employees could feel responsible because
he intended to keep the factory open.
2. Case, Inc.
a. Upper South's campaign, the request for recognitiion, and
the election
Commencing about March 1976, Case's employees were
solicited by mail to sign authorization cards. As will be
related hereinafter in this decision, several did. Actual on-
the-spot organizational efforts of Upper South commenced
in July, when union representatives came to the area and
began conducting an active campaign during which several
meetings were held, commencing in July and running
through the election. By mailgram of September 13, Upper
South requested recognition as the collective-bargaining
representative of Case's employees. The Company re-
sponded by a letter of September 15 from its attorney, Is-
rael, wherein he requested that if the Union was claiming
representative status that it file a petition for an election.
Upper South filed a petition for an election in Case No.
9-RC-11709 on September 21. Thereafter Upper South
and Case entered into a Stipulation for Certification Upon
Consent Election Agreement, which was approved by the
Regional Director on October 19. An election was held on
November 16 in a collective-bargaining unit consisting of
"all production and maintenance employees including
shipping and receiving employees employed by the Em-
ployer at its Olive Hill, Kentucky location, but excluding
all office clerical employees, professional employees and
l I credit Israel's testimony that he was not present at this meeting and
conclude that Cox and Freize confused his presence at this meeting with his
presence at later negotiation meetings during which they were members of
the union committee.
guards and supervisors as defined in the Act." I find this
stipulated unit to be an appropriate unit for bargaining as
required by the National Labor Relations Act.
The employees cast 94 votes for Upper South and 97
against. However, there were 9 challenged ballots, which
are sufficient in number to affect the results of the election.
Louise Walker, Betty Goodan, Woodrow Burchett, and
Elva Duncan were challenged by the Union on the ground
that they are statutory supervisors. Beverly Pidgeon, Fran-
cis Webb, and Bernice Porter were challenged as office
clerical employees, and Juliette Haslebeck and Walter
Sherman Butler were challenged on the ground that they
were not employed in the appropriate unit. Subsequently,
at the hearing in the instant case, the parties stipulated that
Louise Walker was at all times material a supervisor within
the meaning of Section 2(11) of the Act and not an eligible
voter. Accordingly, the challenge to her ballot should be
sustained. The parties also agreed that Juliette Haslebeck
was an employee in the collective-bargaining unit on both
the eligibility date and the election date and, therefore, was
an eligible voter. Accordingly, the challenge to her ballot
should be overruled.
On November 22, Upper South filed objections to con-
duct affecting the results of the election which have been
consolidated with the unfair labor practice cases before me
for hearing and are discussed hereinafter.
b. The remaining challenged ballots
The General Counsel and the Charging Party contend
that Walter Sherman Butler does not share a community of
interest with other unit employees and is therefore not an
eligible voter. Additionally, the General Counsel asserts
that, at best, Butler is a casual employee who only worked
in a sporadic fashion doing nightwork after he returned
from sick leave. The Employer contends that he was an
eligible voter, who worked regularly after returning from
sick leave. The Employer's records and the composite testi-
mony in the record relating to Butler establishes that he
was employed in the cutting room, which is clearly within
the unit, prior to taking sick leave in early 1976. He re-
mained on sick leave until on or about October 9, when he
returned to work and thereafter worked nights doing build-
ing maintenance work after all the other employees had
gone for the day. He reported directly to Gene Case, the
Company's president. The General Counsel points to the
fact that Butler received no pay for the workweeks ending
July 31 through October 2. This is of no moment, because
Butler was on sick leave throughout that time and it is well
established that a unit employee on sick leave is entitled to
vote in a National Labor Relations Board election. Gener-
al Counsel also points to the amount of Butler's earnings
during the October 9, 16, 23, and 30 pay periods, which
were respectively $15.16, $38.09, $87.88, and $78.44. With
respect to the first pay period questioned by the General
Counsel, I am persuaded that Butler only worked I day
and therefore the fact that he only drew a pay amounting
to $15.16 is not at all surprising. I find no explanation in
the record for the fact that he earned only $38.09 during
the October 16 pay period, but note that his earnings dur-
ing the October 23 pay period were identical to those of
804
ties that the only control that Burchett may exercise over
other employees in the cutting room, if in fact he exercises
any. is that derived from his superior experience and not
from any supervisory status. 14 In my opinion he is not a
statutory supervisor. He is therefore appropriately included
in the unit, and the challenge to his ballot should not stand.
Betty Goodan did not testify. She commenced working
for Case during the payroll week ending September 25.
According to Production Supervisor Betty Wilburn, she
hired Goodan as floor help in training to learn how to
match bundles and to "more or less get the feel of the
floor" because Wilburn wanted to see how she would react
if Wilburn decided to make a supervisor out of her. Wil-
burn states that when Goodan was hired, she was told that
the job was a trainee position for a supervisor, to the extent
that if Wilburn thought that she was capable of being one
she might be made one. Wilburn asserts that about the first
of October she told Goodan that she was a trainee super-
visor in the cold-weather coat unit and placed her in that
position. Goodan was paid by the hour from the time that
she was hired, as opposed to other employees in the cold-
weather coat unit, who were paid on a piecework rate, ex-
cept for the bundle boys. Acknowledged supervisors Sable
Carroll. Edna Clark, and Velda Roe are paid by the hour.
According to Wilburn, after the first of October, Goodan
was in training to be a supervisor and performed duties
that Wilburn would expect her to do as a supervisor, in-
cluding checking to make sure that machines needed repair
before she wrote them up for mechanics to check out, giv-
ing instructions to the girls on how to perform the work,
and checking the quality of the girls' work. In summary,
Wilburn states that Goodan "did the jobs that any super-
visor would do provided she was qualified." The Company
concedes that Goodan became a supervisor in February of
1977, but contends that prior to that time she had none of
the supervisory authorities enumerated in Section 2(11) of
the Act. Throughout the time that Goodan was a "trainee
supervisor," the only persons with any supervisory authori-
ty having contact with the cold-weather coat department,
other than Goodan, were Wilburn and Quality Control
Supervisor Louise Walker. Walker is in charge of all the
quality control in the plant and Wilburn is the overall su-
pervisor of plant production. There are about 25 unit em-
ployees in the department, and Betty Goodan was the only
person with any indicia of supervisory authority who
worked in that area on a regular and continuous basis.
According to Anita Wilburn, whom I credit in this regard,
when she returned to work from pregnancy leave on Octo-
ber 5 she was assigned to work on a binder by Betty Goo-
dan, and thereafter Goodan told her what to do and trans-
ferred her from job to job. Furthermore, Anita Wilburn
credibly testified that Goodan did no manual work and
told Anita Wilburn that she was a supervisor. I further
credit Anita Wilburn's assertion that when she went to
work on the binder she was told by Betty Wilburn that if
she needed anything she should ask Goodan who was in
charge. Anita Wilburn was discharged on December 10,
1976; therefore her contact with Goodan ran from October
unit employees Rose, Boggs, and Carroll, and that more
than 50 other undisputed unit employees were paid less
wages. Similarly, more than 50 undisputed unit employees
received less wages during the payroll ending October 30
than Butler did. I am persuaded that Butler, after he re-
turned from sick leave, worked nights throughout the eligi-
bility period performing night maintenance work on the
plant; that such nightwork was more expeditious in that
the absence of employees made the various facilities which
he renovated and repaired far more easily accessible: and
that the postproduction hours constituted an appropriate
period to do such work in such a manner that it would not
interfere with production. The parties used the broad lan-
guage of "all production and maintenance employees in-
cluding shipping and receiving employees" when stipulat-
ing the unit involved herein. Absent evidence of any intent.
either testified to by the parties or shown by the specified
exclusions in the unit itself, to exclude the night mainte-
nance man, I must conclude that it was the intent of the
parties to include "all" maintenance men."2 Butler's wages
fall in the range of many of the employees in the bargain-
ing unit, and there is no evidence that his other benefits, if
any, are different from those of unit employees. The only
real difference is that he works nights under the direct su-
pervision of Gene Case. I do not believe that these circum-
stances are sufficient to warrant excluding him from the
collective-bargaining unit, nor do I believe that it is con-
trary to either the Act or any' established Board policy to
include him in the unit. For all the foregoing reasons. par-
ticularly the bargaining unit description, which has not
been contested by either party, I conclude that Walter
Sherman Butler was employed as a night maintenance man
throughout the period of eligibility for voting and was at
the time a member of the stipulated appropriate bargaining
unit and an eligible voter. I shall therefore recommend that
the challenge to his ballot be overruled."
Elva Duncan is a mechanic. The only difference between
his wages, hours, and working conditions and those of the
other mechanics is that he is salaried and does not punch a
timeclock, whereas they are both hourly paid and do
punch a timeclock. Neither of these circumstances is suffi-
cient to constitute him a supervisor, nor does the record
reflect any evidence whatsoever that establishes that he
does have or exercise any of the supervisory authorities set
forth in Section 2(11) of the Act. I therefore conclude and
find that Elva Duncan is not a supervisor and that the
challenge to his ballot should be overruled.
Woodrow Burchett is the most senior employee in the
cutting department. He performs the same duties as other
employees in the cutting room, but by virtue of his superior
experience he is capable of doing all the duties in the de-
partment. Burchett receives the highest hourly rate in the
cutting room, which is $3.25, as against the next lower rate.
which is $3.10. I found Burchett to be a thoroughly credi-
ble witness who was open and forthright throughout his
testimony with no hint of evasion or equivocation, and I
conclude from the composite testimony relating to his du-
12 Donald Carroll Metals, Inc., 185 Nl.RR 409 (1970): Pondc'rowl H,tel
Co. 172 NLRB 1440 (1968),
Sevens gan Lines O5,oda. Inc,. et al. 207 N.RB 383 (1973).
11 Bulgle (wt n. AIrlon & .irmn Se'rlle. In . et al. 132 NLRB 1098. I100
11961)
CASE, INC. 805
DECISIONS OF NATIONAL LABOR RELATIONS BOAR[)
5 to December 10. Dewey Wilson testified that Goodan
was Anita Wilburn's supervisor, who wrote up the defects
on the machine for repair. Quality Control Supervisor
Louise Walker testified that Anita Wilburn repaired re-
turned bundles of goods with the help of "supervisor" Bet-
ty Goodan. Similarly, employee Myrtle Sammons, an in-
spector in the cold-weather coat unit in October,
November, and December, refers to it as Betty Goodan's
unit. Likewise, Kathy Dunaway. who was employed from
August 1976 to January 1977 as a binder, testified that
Goodan told her what to do when she was working as a
binder and checked her work. Beverly Knipp states that
Goodan told her what to do each morning. Knipp was
employed from October to December.
That Goodan was the only person with any indicia of
supervisory status in the cold-weather coat unit on a regu-
lar basis, except for sporadic visits by3 Walker and/or Betty
Wilburn, and that she was paid on the same basis as the
other supervisors, was clearly considered by employees in
the unit to be their supervisor, and, as Betty Wilburn con-
cedes, did the jobs that any supervisor would do, combined
with the credible evidence that she directed employees in
the performance of their work, convinces me that Betty
Goodan has had and exercised the authority, in the interest
of Case, Inc., to responsibly assign and direct employees in
the cold-weather coat unit since about October 1, 1976, a
supervisor within the meaning of Section 2(1 1) of the Act.
Bernice Porter, Beverly Pidgeon, and Francis Webb
worked in an enclosed office away from the production
floor and adjacent to the office of Company President
Gene Case. Porter bears the title of office manager and
takes dictation and types correspondence for Gene Case.
Included in this correspondence have been letters from
Case to the Company's attorney concerning labor matters.
Porter maintains the personnel records, completes the pa-
pers related to workmen's compensation and files claims
thereon, and maintains the Company's Blue Cross and
Blue Shield records and the quarterly reports required by
the Department of Health, Education, and Welfare show-
ing the quarterly earnings of employees. Additionally, Por-
ter reviews and retains custody of the timecards and pre-
pares the payroll. She also prepares the various shipping
documents related to customer orders and corresponds
with customers of the Company with respect to their or-
ders. She has custody and control of the various invoices
that the Company prepares. Porter is the only one of the
three women who uses the Telex and Quip machines in the
office, whereby messages may be transmitted telephonical-
ly after they have been typed in an appropriate manner.
Bernice Porter is clearly an office clerical employee who
also has some duties which may render her a confidential
employee, inasmuch as she types letters concerning labor
matters on behalf of Gene Case and maintains the person-
nel records.
Beverly Pidgeon has sole custody and control of employ-
ees' production sheets, which reflect the amount and type
of work each employee is performing, and spends about 95
percent of her workday transferring this information from
production sheets to a ledger book which she keeps in her
custody in the office. Her contact with the people in the
bargaining unit consists of delivering messages to employ-
ees and contacting them to correct production sheets which
she finds to be erroneous. In addition, she takes inventory
every 3 or 4 months, as does Francis Webb, to ascertain
how much material the Company has on hand. This work
takes from I to 3 days. The records of the current invento-
ry are kept in the office where the three women work until
such time as new inventory is taken. The old records are
then filed by Bernice Porter in the shipping department.
There is no evidence that Pidgeon performs production or
production-related duties sufficiently extensive to qualify
her as a plant clerical employee. I find that she is, and has
been at all times material, an office clerical employee ex-
cluded from the agreed-upon bargaining unit.
Francis Webb clears any time that she wants to take off
with Bernice Porter, after first requesting it from Gene
Case. Similarly, she calls Bernice Porter and reports when
she is not going to be in to work. Webb's primary job
involves preparing job progress tickets to be distributed to
employees. She does this on the basis of orders received
from contractors specifying what the customer needs and
what result is wanted. She keeps records of how much ma-
terial the Company receives and how much is used in the
plant. and how many garments are cut therefrom. Further-
more, she records all the components that are produced for
each contract and keeps those records in a record ledger in
the office. Although Webb prepares the job tickets and
duplicates a sufficient quantity so that she may distribute
them to the girls in the cutting department for attachment
to each garment, it appears that her contract with the pro-
duction employees is otherwise limited to times when she
goes to the timeclock to record the number of hours
worked by each girl and the number of pieces each pro-
duces. This data is recorded on a sheet which Webb keeps
in her desk. Additionally, she goes into the plant frequently
to deliver messages or pass out insurance papers or similar
personnel-related documents. Webb asserts that Bernice
Porter is her supervisor as well as the supervisor of Beverly
Pidgeon. Inasmuch as Webb works under the supervision
of either Porter or Gene Case directly and does not appear
to report to any production or quality supervisors, and in
view of the fact that her duties are almost totally related to
office recordkeeping and scheduling, as opposed to plant
production work, I conclude that she is an office clerical
employee and an ineligible voter.
c. Thel' discharge of A4 nila W ilburn and alleged independent
violations of Section 8(a)(l) of the Act
The complaint alleges various conduct of Gene Case.
Betty Goodan. Louise Walker, and Wallace Forman to be
violative of Section 8(a)( 1) of the Act. Inasmuch as neither
Goodan nor Forman testified before me. I have credited
the testimony of witnesses relating to the incidents alleged
in which Forman or Goodan were involved, unless such
testimony is internally inconsistent or controverted by
other more credible evidence. Furthermore, I find Gene
Case's testimony to be unreliable in view of his repeated
failure to recall ans details of contested events which are of
considerable significance and his penchant for general de-
nials and conclusionary statements, as opposed to detailed
testimony. His recollection is so faulty that I do not credit
806
(ASI. IN(
it when controverted by credible testimonv from other wit-
nesses.
On or about October 14, Betty Goodan approached Ani-
ta Wilburn where she was working at her machine and
asked her if she had ever worked in a place with a union.
When she received the answer from Wilburn that she had
not. Goodan asked Wilburn if she knew that she was hurt-
ing Gene Case a lot and said that Case was disappointed in
Wilburn for wearing a union badge. The following day.
supervisor Louise Walker spoke to Wilburn. who was
wearing a union button. According to Wilburn, Walker
asked her if she knew what it meant to work in a place
where there was a union, and then said that she was hurt-
ing Gene Case's feelings because he thought a lot of Wil-
burn and had helped her a lot when she was pregnant,
Walker continued, testified Wilburn, that Wilburn should
be ashamed of herself for wearing the button. Walker de-
nies talking to Anita Wilburn about union buttons or tell-
ing her that she ought to be ashamed of herself for being
for the Union, or telling Wilburn that she had hurt Gene
Case's feelings because she was in favor of the Union.
Walker concedes that she and Anita Wilburn had a run-
ning conversation about the Union which carried over ses-
eral different times, and that Anita Wilburn had asked her
what a union would do for the employees and what it
would not do. Walker. who characterizes these conversa-
tions as similar to talks between a mother and a daughter,
relates that she told Wilburn that she had worked with a
union and, unless the union that thes were trying to get in
did more for them than the union that Walker had worked
for, then Walker saw no reason for it. In view of Walker's
acknowledgment that she and Anita Wilburn had a run-
ning colloquy about the Union, and inasmuch as her testi-
mony does not purport to cover all of the matters dis-
cussed, and because her statements reported by Wilburn
are of the same import as those of Goodan and Case wAith
respect to the personal feelings of Case. and for the further
reason that I detected nothing in Wilburn's derneanor that
would cause me to discredit her testimony, which is more
detailed and complete than that of W'alker. I credit
Wilburn's version of the October 15 conversation.
On or about October 22. Gene Case came to where Ani-
ta Wilburn was working and started talking to her. lie
asked her if she knew what it meant to be for the L nmon
and if she had ever worked anN place where there was a
union. After some discussion bs him of the bhills that he
had to pay and the contract that had to be signed. he said
that if the Company and the Union could not reach agree-
ment "they would have to pull the contract out." he fol-
lowing day, October 23, Case again talked to Wilburn at
her work station and told her that he had thought that she
was a friend of his. She replied that she thought she was.
Case went on to say that his wife thought a lot of Anita
Wilburn and that the, had talked things over and his wife
had said that Wilburn would make a good office girl. ( ase
continued that his wife was apparently a better friend to
Wilburn than Wilburn was to her, and that Anitl Wilburn
could not be a friend to him and to the l nion too. At this
juncture he pointed to the union badge xx hich she w as
wearing during the consversation.
On October 25, Case, in Anita Wilbur n's presence, asked
807
emplosee I helma Closer to tell W ilburn w hat it was like to
work in a place ,where there was a union. Case's commnent
was "You can tell her because she does not listen to me."
(iloser then told Wilburn about places where she had
workcd s heie there w.as a union, and said that there was a
lot more freedom at ('ase than at those places. Later on the
same da,. Gine ( ase called Anita Wilburn into his office
and talked to her in the presence of supervisor Betty Wil-
burn. (Case asked if Anita W'ilburn would gise her union
badge to hin min exchange for a company badge. She re-
sponded that she would rather not, and he asked if he
could doclor it up b) putting a piece of paper over it. She
said that he could not, and he then asked her to iele the
button to him. She asked him if he w,ould then thrki, it in
the trash can. and he rejoined. "Isn't that where it he-
longs?"
Prior to this last conversation with Aniia Wlilburn. Case
talked to emplo ee Brenda Goats on or about ()ctober 22
lie first came to her shortly before lunch, when Beit> Wil-
burn was present. Bett, Wilburn did not testify with regard
to this incident. Case stated that Goats would look better
without the union badge that she was wearing on her
blouse. and that then would get along a lot better without a
union. that the, didn't need a union, and that he would
prefer that she took the badge off. Later the same data
after the 2 o'clock break. (Case returned to her machine and
asked John [fall, mechanic, to tell Goats that it Vould be
better to vote against the Union. There is no esidence in
the record as to what Hall said to Goats, if anything.
On or about October 29."f Gene Case came to employee
Bohbb Mlorean's table and asked her w;hat had been said at
the union ncetiinL the day before. Morgan told hin. ''noth-
ing." to which he incredulously replied. "they did not say
anything." and. after she anssxered in the negatise. went on
to sas, "'You wasted sour time." '' er onlk rcpl was "yes."
Ah ut 3 or 4 weeks before the National laihNor Relations
Board conducted the election of Nosember 16. Betis Goo-
dan asked ermploee Kath' Dunawia, howe she was going to
vote. and if she was going to sote for G(enL, and if she
would wear one of Gene Case's badges. I)unawIa replied
that she wkas undecided. Dunawa¥s was not wearing a union
badge and had not signed a card for the t'nion at the time.
About 2 or 3 xkeeks before the election. (icne ( ase went to
the machine of emplloee Josephince hlolblook and said, "I
thought that , *e wkcre friends." to wAhich she rteplied that she
guessed that thee ecre. and thtat she w)as mnaking produc-
tlon)l. Case thlle said tlhat ('or dens Mlanufacturing Cotipa-
nit at Olise [ ill haid said that thtie,,s ou)l not haue hter. and
walked off. iolbrook ,as \wkearing a union hutton at the
tilme.
I or about 2 \Reeks befori the electiorn onl Noenmiher 16.
Anita 'lihurn ssorc a T-shirti that hald it unioln label on tilhe
front oif it alid was lettered on the hack to read "DI)ea
(Cinc: If ou hbu mei. ,le t Col eTimicnet will get thee ''" .bout
thie tiist lf NoXcliherl. IBcttx (iodliall a.ske'd %Vl bulil if she
tild put ] teC letteUinll on th(le back of fher 'I -shli t, and asked
' 41(. ,\ :lhtt I . ,. Hid I tm111\ ,',,q ! [ 1. ,'[/i
Xrt [a.1 ' t tI 11 .I 11 '' LI' . 'i. 1: 4- lI La Io i "I ' :k, )1't1 1 OIC
CJ~[I )k lkJl :I ~ L ~i;!i ll~~ 11. ~;;; k ~ lC t tll() l,!C[d
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who had done it when Wilburn said that she had not. Wil-
burn refused to tell her. Goodan then said that Gene Case
had thought that Wilburn had done the lettering.
Some time between November 3 and November 16,
Gene Case asked employee Sina Yonts what she thought
about Gibraltar. She asked him what he meant, and he
replied that it looked like the organizers had egg on their
face and had made a lot of promises that they were not
fulfilling. Case further commented that he thought that it
was all over at Gibraltar, that he knew it and that Yonts
knew it. Yonts replied that she did not know it. Case re-
joined, "Oh, come on, Sina," and walked off.
During the preelection period, Gibraltar's president,
Wallace Forman, talked to the employees of Case on sev-
eral occasions and transmitted various letters to them and
to Gene Case, which Case reproduced and distributed to
the employees. In early September, all the employees were
called together in the cutting department, where Wallace
Forman and Gene Case conducted a meeting. It appears
that Case said little and that Forman did most, if not all, of
the talking. He introduced himself as the president and
owner of Gibraltar Industries, and also told the employees
that he owned the building that Case was located in and
that Case received most of its work from Gibraltar. He
emphasized that the Union was not really interested in the
Gibraltar plant, but that its main objective was to organize
Case. He then made some references to a union boycott
against the Farah company and remarked that while Farah
could survive a union boycott a company as small as Case
would not. He continued that the plants doing civilian
work could survive under a union because they could raise
prices, but that plants doing Government work could not
survive because there were set bids under Government
contracts. In this connection, I note that Case has consid-
erable Government work. I credit Sina Yonts' recitation of
these events, inasmuch as Forman did not testify and Case
stated that he recalled but little of what went on at the
meetings where Forman spoke. On November 3. there was
another meeting of all employees called. Forman again
conducted this meeting. He again introduced himself as
president and owner of Gibraltar Industries and stated that
he and Gene Case had made a decision concerning the
cold-weather jackets that Case would be doing and that he
was going to let them go ahead and start working on them.
Forman continued that if the Union came in and an agree-
ment could not be reached between the Company and the
Union, and a strike resulted, and if Forman saw that they
could not complete the contract, then he could pull the
work out of Case and give it to someone else. He also said
that Gene Case had the same alternative if he saw that
Case was unable to meet the deadline, and that Case in
that event could ship the work back to Gibraltar for some-
one else to do. Some employees asked Forman what was
happening at the Gibraltar plant, and Forman told them
that the Union had won the election nine to eight and "it
seems there is one foolish person or the election could have
gone the other way." He then went on to discuss the nego-
tiations with the Union at Gibraltar and told the employ-
ees that Gibraltar had been presented with a 26-page de-
mand, including a 50-percent wage increase. He said that
he could not possibly meet the Union's demands and that
it looked like the Union had egg on their face because they
had promised the employees at Gibraltar benefits that they
could not fulfill. He elaborated that the only way that he
could see that a union could come out this looking good
would be either to pull the people out on strike, which in
turn would cause the plant to close, or blow it up. He then
said that either way it didn't matter because he was in-
sured.
Another meeting of all the employees was called on No-
vember 15. the day before the election, where Forman
again did the speaking with Gene Case present. The fol-
lowing recitation of what transpired during this meeting is
a composite of the testimony of the employees Yonts, Mor-
gan, Teresa Binion, and Anita Wilburn, all of whom ap-
peared to be testifying honestly to events as they recalled
them. Forman explained National Labor Relations Board
election procedures to the assembled employees and dis-
played a sample ballot to them. He advised the Case em-
ployees that the Gibraltar employees were not working,
that Gibraltar and the Union had not reached any agree-
ment in their negotiations at the time, and that, unless Gi-
braltar and the Union came to an agreement, the plant
would probably go out of existence. Some unnamed em-
ployee asked Forman what was happening at Gibraltar
and he stated that Gibraltar employees had changed their
minds about the Union. According to Yonts, he said that
these Gibraltar employees were trying to get rid of the
Union, and according to Morgan, Forman stated that all
the employees, except one, that had voted for the Union
had changed their minds. Whichever version is accepted,
Forman advised that employees at Gibraltar had changed
their minds about the Union. At this point in the meeting,
Yonts spoke up and said that she had a document from
nine employees at Gibraltar (apparently the nine who had
voted for the Union in the National Labor Relations Board
election) which said that the employees were not trying to
get rid of the Union. Forman countered that he had newer
information than hers. Forman read the employees a letter,
apparently addressed to a shop steward in one of his other
plants, that stated the union dues had been raised. Some-
one asked him what the shop stewards were earning in the
plant he was talking about. He replied that he could assure
the employees that the people in his union plant were prob-
ably making a lot less than some of the Case people were.
He also said that there had been a decision made by the
AFL-CIO that the ILGWU had been found guilty of raid-
ing and would have to cease organizing at Ralco Company.
Louise Binion spoke up and said that no decision had been
made on the matter yet, but Forman insisted that his infor-
mation was correct and that sooner or later it would be
found out by the employees.
Anita Wilburn began her employment with Case in mid-
March 1976, and continued working until she went on ma-
ternity leave in August. She signed a card for the Union on
September 20 and returned to work from maternity leave
on October 5. Prior to taking maternity leave she had re-
ceived no warnings about her work, and there is no evi-
dence that her work was other than satisfactory prior to her
taking leave.
Quality Control Supervisor Louis Walker gave Anita
Wilburn her first oral warning on November 5 for bad
808
( CASE. IN(
work and her second oral warning on No vember 9 for the
same reason. On November 19, l.ouise Walker and Pro-
duction Supervisor Betts Wilburn issued a written xarmine
to Anita Wilburn which indicates "bundle going hack 2nd
time-3rd warning-following procedure" Anita \' ilburn
was then suspended for 3 day's of the following woirkAeek.
She was ultimately discharged on December 10. 197h. and
Respondent admits a failure to since offer her reinstate-
ment. Each of the warnings, the suspension. and the ulti-
mate discharge were for the same asserted cause. On each
occasion. the discipline was imposed because a bundle of
garments had been returned to Anita Wilburn the second
time for repairs. The record is clear that Anita s\ ilburn did
receive a bundle of garments. on which she had been work-
ing, back from inspection twice on each occasion that she
was warned, suspended. and subsequentl\ discharged. \ll
of these defects were found by inspector MNrtle Sanimions.
a union employee. Wilburn concedes that when she got the
first oral warning L.ouise Walker told her to ',alch her
work. Myrtle Sammons crediblI testified that after Wil-
burn returned from her 3-day layoff she told her to look at
her work good. because if it did not pass inspection the
second time Sammons would have to return the bundle to
Louise Walker. Anita Wilburn also acknow ledges that. if-
ter she received her suspension. Louise Walker told her
that if a bundle came back for the third time the\s would
have to discharge her. I construe this comment of Walker
to mean, in the context of the practice regarding returned
bundles, that if the bundle did not pass inspection twice.
and was brought back to Wilburn after she had worked on
it twice, this last return would be the third time and this woultd
occasion her dismissal. The employer presented uncontro-
verted evidence that there had been a qualit) procedure.
providing for discipline and certain circumstances, in effect
since 1973. The written policy is set forth in its entirets below.
INSTRUCTIONS FOR ACCEPTANCE OR
REJECTION
A sample of five end items is drawn from each bundle
on a randombasis. If one defect is found the entire bundle
is given to the floor supervisor who will return it to the
responsible operator. The operator will screen the entire
bundle and make the necessary repairs. The bundle is
returned to the floor supervisor who hand carries the
corrected bundle back to the quality auditor. The quality
auditor draws another sample of five items from the
bundle, if found acceptable, the bundle is moved to the
packaging area. If one or more defects are found. the
rejected bundle is given to the Production Manager, who
will take the bundle back to the operator. The Production
Manager and Plant Manager review the defects with the
operator. If the cause of the defect is due to carelessness
or poor workmanship, the following action will be taken:
I. The supervisor of the component assembls is ad-
vised of poor quality of the operator. (First)
2. Operator is given oral warning. (Second)
3. Operator is given a written warning. (Third)
4. Three day la) off.
5. Dismissed.
Beserl K nipp ais dilsc haiitged for poor %ork on ahbout
December I after receilns a Ir . rittl ar-nlll .ine ndI .a 3-da\
slspenslHion. aind Kaths l)unlaias \ was tlired on .lanuars 14.
1977. aitter she hadl gotten a .irltten sarrilnm and a . -da\
suspensionl. I hils. tihere ais at least one disclharge belore
and onel alter \.lbih ln . uirLe u ller Lsltallil tahI e stilin pr Icc-
dUres. loulse ino 11111 testiftled that shle has\ recCil IssO or.il
warnnlllllgs iatlld onel s rltteln armni. and staite that she
kno1ss tlhtr thler-e is i pitcedil \r hercbs an operatorl gets a
certain;ll 1lntHIerl f \.r nll s, thenl a 3-da suspIension. aInd
then is sullect to ttermnllaltion ftor the next w;arilli.g I111-
plo cee Bohb\ .Jo Io{I-g.ilr acLknowledges that she has re-
ceed c \ i r ailin ulider the silne s' stemn of orail and \rmitten
arnirillg a.nld was told of thlis ss steml hen she first started
to work. abotut 3 s ears ;ago. includling the pro isions for
suspensoii n ald discharge. She understrands this sssteml to
be tha.t oral varnings come first. and th;it an operatlor gelt
one oral x.arlnllll before shre gets a w\ritten Shcarniln. C
believes thlat operator*s ale suspended after the? get three
rittllen arllnells. Alice J.ll S is ilot Wx aire of all tile LdetA;il
of the ;rrningr anld isciplilre s'stenm. but stales tlihat her
ullnderst;rllcir is Itlrlt there is Ia prcedtlurc llher eb l op-
elrato) gets all or.il \;atlrnirl. a1 ritticn w.irnin it. ird after
two or three \a llinrgs is disirlisscc.
Anita V ilbIuril contends th;at her difficult\ in producinTg
tgood \work akis a result of tihe fact that her nachinle needed
repair. and asserts that she haIl adsvised Bett \ \:ilburn.
(iene ( ase. Belltt (ioodaln. and l ouise Wailker thart she sas
havting problems ,Ath her machine. Anita Wilburn furlthe
testifies thait at one tine I ouise W alker told her tha;t If she
was ha\ing trouble t ih tier machtine. W'alker woulcd Ver
her anolther one. but thit she told Waliker that she pre-
ferred to stli, with her orwn mniachine. Aiddlilonrlll. she
cl;lilrs that tile da' before she s;as dischrIrged sIle coll-
plained to V alker about her maichine and tha;t Waliker told
her that tihe machine behilnd ilbhurln seemred to be in gtood
order aind .asked her if she wa;nted to go hack and tr' It.
Anita WVilburn wernt back and tried it out and. according to
her. told Walker that she did witant the other machine. and
contilued to work oni her o n machine the biggest part of
the day. She avers that. during that day, Betts Wilburn and
G(ene C(ase came to see her. and Case asked her if she
wanted the other miachine. Betty Wilburn assertedls told
her that the' s ould move it up there in the morninit for her
use. According to Anita W ilburn. her machine .as not
changed prior to her discharge. Bettv Wilburn testified that
she had spoken to Anita W ilburn about a month and a. half
before her discharg e because her work had been of po)or
quality. She further sa's that she offered Anita Wilburn
another machine at the time. but Anita stated that she
would rather stas on her own because she liked it better.
Betts Wilburin deenies that Anita had complainted to her
prior to that time that she was having machine troubles.
and says that she offered her the other machine because
she was having quality problems and thought perhaps she
would do better on another machine. She states that after
that time Anita Wilburn did not complain to her about the
machine. and that she did not thereafter offer the her aln-
other machine. Bert' Wilburn impressed me as more cer-
tain and sure of her testimons than Anita Wilburn. and I
credit her where their teslimons conflicts. Similarly. I
8(9
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
credit Betty Wilburn's testimony that after the 3-day lay-
off, on an occasion when Anita Wilburn got a bundle back
the first time, she approached her and told her that if it
took her a half day to go through the bundle not a word
would be said to her, but that Anita Wilburn should look
at every garment that she put out, and if it took her a half
a day to get it right, it was all right with Betty Wilburn. In
crediting this testimony of Betty Wilburn, I note that Anita
Wilburn testified that she does not remember whether
Louise Walker or Betty Wilburn talked to her when she got
the November 19 warning, which was practically simulta-
neous with her suspension, but concedes that they could
have talked to her.
Kathy Dunaway, who was fired for poor workmanship
on January 19, 1977, worked on some five different ma-
chines. including Wilburn's, according to her, and she
states that she had some trouble with the machine. How-
ever, although she first asserted on direct examination that
she saw the mechanic repairing the machine that had for-
merly been Anita Wilburn's more often than others, she
testified on cross-examination that she does not know how
many times any of the other operators' machines were re-
paired. She also concedes that she got her written warning
and her 3-day suspension after Wilburn was fired, and she
was not working on Wilburn's machine at the time. Me-
chanic Dewey Wilson testified that he made no more re-
pairs to Anita Wilburn's than to any other single-needle
binders that he worked on. He also recalls setting up a
machine for Anita Wilburn at her request, and that after
she used it for about an hour she went hack to her old
machine because she said that she liked it better. He does
not recall ever setting up another machine for her. Accord-
ing to Wilson, Anita Wilburn's machine has undergone no
major overhaul since she was discharged and was still in
operation undergoing normal repairs about as much as any
other machine. It is his belief that Janice ('lay has been on
the machine every day since Anita Wilburn left. Janice
Clay testifies that she worked on Wilburn's machine from
February 1977 until the time of the trial and had only one
bundle of clothing returned to her for the second time
someday approximately in March 1977, with a notation
attached which said, "Second time, Louise Walker." She
had not had any bundles returned to her twice since that
occasion in about March and continues to work on Anita
Wilburn's machine. Clay also states that this was the only
time a bundle was returned to her while she was working
on that machine, that the mechanics had been working on
it a couple of times a week, and that she did not have any
bundles returned twice during the time that the mechanics
were working on it during her Ist month on the machine.
Clay received no warning for this returned bundle in
March.
One of the warnings received by Louise Binion was a
written warning from Louise Walker dated June 11, 1976.
No evidence was proffered as to the dates of other warn-
ings issued to Binion or other employees.
d. Authorization cards and the question of union majoritY
status
During the course of this campaign, the Union secured a
total of 109 prima facie valid authorization cards, which
were introduced into evidence. The first one was dated
March 17, 1976. and the last November 1, 1 9 7 6 .i7 Two
types of cards were used during the campaign. The first
was a short form: 18 the second contains more language on
its face and lists the benefits to be gained from supporting
unions on the reverse."' Preliminarily, the Respondent con-
tends that the cards are invalid since they bear the heading
"International Ladies' Garment Workers' Union, AFL-
('10" and do not include the name of its division, Upper
South, which is the Petitioner and Charging Party claiming
the refusal to bargain. This contention is disposed of by the
simple fact that the Board has long held that authorization
cards are not invalid merely because the International
Union, rather than its subsidiary which seeks recognition,
is named as the bargaining representative on the card. 20
A hstI of Ihe enlplo yees sgiing cards. togelher with the dates thes
,itgrncd is ittached ilo this Detilsion as Appendix A. [Omittlled from publica-
tli n I
the card first used b tthe tnlon, primardi al mail solicilatian sot far
as the record shu- s reads ,is follo- s
II11 R I I NMl [ [ 11 AI ,I I'I , l k I (II , S I N- Is AlI ( Iit
Phone: (301) 685-0884 I North Howard Street Baltimore. Md. 21201
Authorizatiotn for ('ollecttie Bargailing
1. ol min oin free .ill. hereby authoriue the liternatinlil I adies'
(iarmllent Wrorkers
'
I ilion, ilts tgentls or reprcsenlt;latie to act for me as
:I cilectice hbargainling Igents in ;tll matters pertaining to ra;lts i(f pay.
vgies, hours of emplotmetit or in other conditions of emplo-nment
Signature I odas's D[)te
Add ess
( itN State Zip
Phone Job
inmplosed bh
Iow I ong iEmplot,ed'' Age:
t'I he frolnt. or authorization portion, of this card reads as follows
InlterCnafl nal l dies' (;arment Workers' inion, AFL (CIO
Authorizaiou,. Membership and (Check-Off Card
1, of nims trn free ill, hereb authorliz the International Ladies'
(irniltient l5Workers' L nlan. ils agenls or representlaties to act for me as
a coileitic bhargaining agcnt s in all matters pertaining to. rates of pat,
vae Is hours of ernploument. itr n other conditilon of emphlo)menl
I further herebs apply for membership in ihe i'ltlrc.lAt^i (AiDIr Gis.
ulsl . ,irirs INi rt and agree toi be bound bs its (Constitution and BN-
I ins I hereby designalte and authorize the isnR',,ATI0n. , It!oArO GAA.tt,
*rarnRs iNnOs' its affiliates and iis representanises. lt act exclusivel) as
my agent and representallie for the purpose of collectise bargaining
I herebh authorize and direct ms) Lrplonert or its successor. or ant
IEiltmploer for vwhich I work. Io deduct from my) ages membership
duti e, hich include periodic fixed dues. initiatiin fees and assess-
menrtsl which I am t obligated to pa;L to the tUnion or an,, of its affiliates
;nid Io par thCe sane 1o t he lnlon or its designee pursuant to the prosi-
is l(I of in' CLurrent or future collective bargaining agreement.
lthi, authorilzal, iil shall remain in effect until revoked by me and
sha ll be irresocaible for a peritod if ine ( I ) tear frilro the date hereof or
tIInlt the termninatlion date of an) applicable cullective bargaining agree-
nllcit, mhlthever occurs sooner: and unless I revsoke this authorizalion
bh senldiig sritten notices to tm) l ampl)ecr and the Ulnion not moire
than Iv ten! 1(11 dass and nol less than ten (10) dats prior to the
expiraitit of eaich periid of one (I) year. or of each applicable ciollec-
tive bargaining agreement between ms Emplover and the Union. hlch-
ever occurssooner. this authorization shall beautonmaticalls renewed frim
year to year
ii;NAL la 'l oda,,'s [)ate
Address
( it! State - Zip -
Phntie Job
l- mplos ed hb
[.n, I ong liplo)ied? Age:
I g nm(tAerbo(tkr Pl'ttU ( o , /t rii 14 NLRB 514, fn 3 19t
810
manner that she was given the card one day. read it. and
then turned it in the following day. She thus knew hwhat
was on the face of the card. which clearly designates the
lnion as her rcprescntati\ve, and her vague testimony that
somel \ orker in the plant who handed her the card told her
that there haid to he a certain number of cards signed in
order to have a . ote for the Union is not sufficient to de-
feat the clear designaition on the face of the card. I there-
fore conclude that her card is clearl 5 valid.
Although the testimon, of Diana Moreland is somewhat
confused because of the lapse of time, her somew hat faulty
recollection, and the nature of the leading questions pro-
pounded to her on cross-examination, I am convinced
from the whole of her testimony that she signed authoriza-
tion cards for the Union on both April 14, 1976. and Sep-
tember 3. 1976. ( onsequentlN, I will assign the earlier date,
April 14, as the date that she originally designated the
1Union, and I conclude. as she testified, that the later sign-
ing wvas mterel to corroborate that which she had earlier
done. I hus. both of her signed authorization cards in evi-
dence operate as aruthorizations to 1Upper South to repre-
sent her.
Rickie Barker testified that he signed an authorization
card on September 20. after he had had it in his possession
for a couple of days. and read it before he signed it. On
cross-examination he gave an affirmative answer to the fol-
lowing question: "D[idn't the union men tell you to sign the
card and the card would be used only for an election." He
then testified on redirect examination, that he was sure
somehod`. used the word "onl,." In the circumstances, al-
though Barker did read the card before signing it, and had
it in his possession a couple of days before returning it to
the I nion I cannot agree with the General Counsel that it
is obvious that a union representative would not make such
a statement to Barker. even though I do recognize from a
review of all the testimony regarding all of the cards that it
was not the practice of union organizers in this campaign
to make such statements. I therefore credit Barker and
conclude that his card is invalid because it was obtained on
the representation that it would be used only for an elec-
tlon.
I have considerable difficulty with Respondent's sugges-
tion that the card of Hazel Clark should be excluded on
grounds that onls a cop) of one portion of it was available
and Ms. ('lark was not available to explain it. because in
fact the original card of Hazel (lark was entered into evi-
dence after it was appropriately identified by union orga-
nizer David Nack. I find that it is a valid authorization card.
as it purports to be, because Nack credibly testified that Clark
completed the card and signed it in his presence.
With the appropriate inclusion and exclusion of various
challenged emplosees in the unit, as set forth hereinabove,
and with the exclusion of the authorization card of Rickie
Barker. the record shows the following number of employ-
ees in the bargaining unit during the appropriate workweek
ending dates and the number of valid authorization cards
extant at the close of the workweek.
Respondent contests the validity of the following 18 au-
thorization cards on the ground that the signers testified
upon cross-examination that they were told the onl, pur-
pose for them to sign the card was to get an election: Vicki
Brown, Patricia Carter, Kathy Conn. Peggy Felty. Pamela
Flanery, Mary Lou Fyfe, Delma Clover. Margaret Green.
Helen Griffey, Sheldia Jordon. Mary Newman, Elsie Par-
sons, Nora Porter, Glenna Sammons. Brenda Stevens.
Vicki Williams, Kathy Adkins, and Pamela Grills. I have
carefully examined the testimony of these 18 witnesses in
its entirety and conclude that their answers to confusing
leading questions, sometimes compounded by a question
within a question, and their inability to recall each and
every detail of the signing of the card, do not affect the
binding nature of the clearly worded documents that they
signed, because the evidence fails to show that the lan-
guage of the authorization card was "deliberately and
clearly canceled by a union adherent with words calculated
to direct the signer to disregard and forget the language
above his signature," N.L.R.B. v. (,iis.ec Placing ( o.. Inc..
et al., 395 U.S. 575, 606 (1969): A.4erican ( habh St'.r'cmn..
Inc., 161 NLRB 332, 333-334 (1966).
The Respondent contends that the card of Arlene Most-
er, which she signed on March 18. is no longer salid be-
cause she was terminated from employment on June 7 and
then returned to work as a new employee on June 14. I
know of no requirement that one who designates the
Union as her collective-bargaining representative. and has
not revoked it, need renew that authorization after a hiatus
in employment, particularly where the hiatus is onls 7 days
in duration. Therefore, I conclude that the card of Arlene
Mosier, like those of the 18 employees named abhove. is a
valid designation of Upper South as her collective-bargain-
ing representative.
Josephine Back properly identified a photocopy of the
authorization card she signed on August 25, 1976. and
credibly testified that the reverse was like that of the card
referred to above, which recites various union benefits.
There is nothing in her testimony. or other evidence. that
works to invalidate her designation of the Union as her
representative on August 25. and I find that she executed a
valid authorization card on that date.
Respondent contends that the copy of the front of the
authorization card signed by Penelope Keaton should be
excluded because only a copy of that portion of the card
was available and the signer was not called to testify. Or-
ganizer Robert Farber credibly testified that Miss Keaton
signed the original card in his presence and that the origi-
nal had the same information on the back as other cards
which had been received in evidence. I therefore conclude
that the photocopy constitutes a valid designation of Up-
per South as Miss Keaton's collective-bargaining represen-
tative. I disagree with Respondent that I should draw some
inference from the testimony of Mars Mabrs that she was
told that her union authorization card would he used only
to get an election. Mabry testified in a straightforward
CASE, IN(' 811
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Week Frnding rlo. In rlnit Vralid Cards
Sept. 1 1q2 n
.qept. 19 lqOf9
Se)t. 25 105 1O1
'bct. o ln7 103
Oct. q lo 1n02
Oct. 1f onn 103
Oct. ?3 ?r)0 ln2
Oct. 3n onl 1n1
It is readily apparent that Upper South had valid author-
ization cards from a majority of the employees in the ap-
propriate unit from September 18 through October 30. The
record does not contain any further payroll information
after that latter date. Because there were no more than 190
employees in the unit during the payroll period ending Sep-
tember 18, it is clear that Upper South obtained its majori-
ty in the unit on September 15 when it secured its 96th
authorization card from Ellen Hicks. The Union's majority
status in the appropriate unit thus commenced September
15, 1976, and continued through at least October 30, 1976,
in terms of actual numbers of valid authorization cards
outstanding. I also conclude and find that Upper South
was the duly designated majority representative of the em-
ployees in the appropriate unit on September 15, the date
that Case, Inc., by its attorney, refused to recognize Upper
South.
3. Relationship between Gibraltar and Case
The physical assets of Case, Inc., were first purchased
from Gibraltar in 1972. Case still owes in excess of $40.000
to Gibraltar as a result of this transaction. Case's business
is now carried on in a facility which it leases from Gibral-
tar at a rental exceeding $50,000 annually. The Gibraltar
home plant in Brooklyn handles the preparation of em-
ployees' paychecks and vacation checks for Case in ex-
change for a cash payment of $400 per week. This appears
to be an arms-length transaction entered into because Gi-
braltar has the better facilities for preparing checks and
related documents.
Case bids against Gibraltar for work, obtains work on its
own account, and has in the past refused to do work for
Gibraltar, even though it has for some period of time con-
tinuing to the present done more than half of its business
as a subcontractor for Gibraltar on Government contracts.
Both Gibraltar and Case retain the right to terminate any
contractual agreements they may have upon the failure of
either of the two to comply, or other supervening business
circumstance warranting such action. On the whole, I con-
clude that Case and Gibraltar are totally different entities
engaged in the same type of business, with Gibraltar being
one of Case's largest customers. Although the president of
Gibraltar was clearly acting as an agent of Case when he
participated in making speeches against the Union to Case
employees prior to the election, I do not believe that the
evidence adduced in this case warrants any conclusion that
Gibraltar is an agent of Case as the complaint alleges.
C. Concluding Findings
I. Unfair labor practices at Gibraltar
The General Counsel has shown by uncontroverted
credible evidence that Gibraltar's supervisor and agent Ben
Maggio did unlawfully interrogate Ollie Ray Cox in July
1976, and again on August 6, 1976, by asking him whether
he had heard anything about the Union coming in, by ask-
ing him whether or not he had signed a union card and by
the question implicit in his statement to Cox that he had
heard that some of the employees had signed union cards.
I construe the last comment by Maggio to be an inquiry of
Cox as to who these employees were. I further find that
Ben Maggio created an impression of surveillance when he
told Cox in July and again on August 6 that he had ways of
finding out what type of union activity the employees were
engaging in. Furthermore, I am convinced that Maggio's
statement at the August 17 meeting of the employees to the
effect that if the Union came in it would be a strike against
the employees, combined with his statement that if the
Union came in employees might or might not have work,
was an overt threat to retaliate against employees if they
selected the Union as their representative. I find that the
statement that employees might or might not have work,
uttered in the context of a statement recited by Maggio
that Forman had delivered a message to him that if they
continued to lose customers the factory could be forced to
close, was meant to emphasize to the employees that the
reason for such closure might well be their engagement in
protected union activities. I consider all of these statements
of Maggio recited above independently and collectively to
be violative of Section 8(a)(1) of the Act.
Contrary to the General Counsel, I find nothing unlaw-
ful in Ludwig's remarks to the employees at the August 17
meeting, and the General Counsel introduced no evidence
in support of the allegation that Ludwig threatened
Gibraltar's employees with loss of work or plant closure in
the event that they selected the International as their col-
lective-bargaining representative. An evaluation of Gibral-
tar President Forman's remarks to his employees at the
meeting called on August 24 persuades me that his com-
ments that he could take the plant and move it into one
corner of his New York plant was a threat to close the
plant because of the employees' union activities. I particu-
larly note that Forman told the employees that no one was
going to put a gun to his head and force him to do some-
thing that he did not want to do. I conclude that this state-
ment was in reference to the Union. Reading this together
with his other statements, including a statement made by
him to another meeting of employees, on September 29,
that if the factory closed down the employees could feel
responsible because he intended to keep the factory open, I
do not believe that in the context of all of Forman's efforts
to campaign against the Union his various statements can
be viewed in isolation from the entire course of conduct he
engaged in, which was clearly designed to defeat the
Union. Although it is, of course, not unlawful to be against
unions, it is certainly unlawful to either expressly or im-
pliedly threaten employees with plant closure or other ad-
verse consequences should they select a union to be their
812
published statements of November 3. 1 am persuaded that
the transfer of the materials on hand at the Olive Hill plant
to the Brooklyn plant. where sleeping bags were not then
being produced at the time of the layoff, gives rise to a
reasonable conclusion that the Respondent had already de-
termined at that time to shut down its Olive Hill facility
unless the II.GWU accepted its economic proposals or. al-
ternativels, the employees renounced the Union and
caused it to abandon its efforts to represent Gibraltar's
employees. neither of which appeared likely, and only
thereafter maintained an appearance of bargaining with
the Union on the matter. Production did not start at
Brooklyn until the machinery was transferred from Olive
Hill to BrooklNn. commencing in January and ending in
March of 1977. Inasmuch as the machinery was still in
place at Olive Hill and there appeared to be no urgency in
transferring it to Brooklyn. I see no reason for transferring
the materials to Brooklyn in November unless the Em-
ployer was then contemplating commencing production of
sleeping bags at its Brooklyn facility. It only took two men
to load the materials on November 5 and 8, and had the
Employer not alreadv decided to transfer its Olive Hill op-
eration bs that time it would have imposed no hardship on
the Employer, so far as the evidence shows, to leave the
material with the machines at Olive Hill where production
could be rapidly resumed if the Employer were honestly
leaving open the possibility of resuming production there. I
conclude that the Respondent. faced with a certified col-
lective-barganing representative with whom it was re-
quired to bargain. did lay off its employees as a tactic de-
signed to wrest concessions on economic items from the
Union. but also had determined conclusively that it was
going to produce the goods at Brooklyn which it had been
producing at Olive Hill because it was well aware that the
Union could not be reasonably expected to acquiesce to its
inflexible demands, nor to abandon its status as collective-
bargaining representative. To all intents and purposes, the
Olive Hill plant was closed on November 8, and the argu-
ment that it was not finally closed because machinery still
remained in the building is not at all convincing. Although
I am persuaded that had the ILGWU caved in and agreed
with all of the Company's demands Gibraltar would have
been willing to transport its materials back to Olive Hill for
production, I am also convinced that the Respondent real-
ized that the Union would not agree in the manner the
Respondent wished it to. The retention of the machinery in
the plant enabled it to maintain a facade of still being in
business in Olive Hill. and was a fact to which to point to
support its contention that it was still bargaining over the
closing of the plant. which had in fact already happened.
In sum. I consider all the bargaining by the Respondent
after November 8 to be nothing more than ritual in view of
the inflexible position it had taken, and from which it
showed no inclination at all to retreat.
I am persuaded that the timing of the layoff of the em-
ployees was determined by the impact on negotiations and
Gibraltar employees that the Employer could obtain from
it, occurring as it did immediately after the Employer had
unmistakably stated his position and the only conditions
upon which he would sign a contract, and solicited em-
ployees to renounce the IL.GWU.
representative. Accordingly, I find Forman's remarks of
August 24 to be in violation of Section 8(a) I ) of the Act.
I also view Forman's statement to reporter Dan Tracs
on November 3, reported in the November 8 issue of the
Olive Hill Times, to the effect that if the employees of
Gibraltar would reconsider and vote not to have the
ILGWU represent them the Union might decide to pull
out, to be a solicitation of Gibraltar employees to abandon
the Union which had been duly certified. This I consider to
be a violation of Section 8(a)(1) of the Act. inasmuch as it
is not only an attempt to undermine the Union. but also
carries with it an implied promise, when read in the context
of all of his remarks to Tracy, that the plant would not shut
down if employees abandoned the Union and caused it to
"pull out."
The subject of wages and other economic benefits is
clearly a mandatory subject of bargaining, and therefore a
matter upon which the Respondent was obligated to enter
into negotiations with an open mind. It is clear from the
assorted statements of Gibraltar's president and the consis-
tent position taken in negotiations by the Respondent that
it would not discuss these matters, other than to state that
it would not change existing benefits: that it entered nego-
tiations with a fixed, inflexible position whcih it main-
tained throughout the negotiations: and that it was rigidly
unwilling to even consider any possible alternatives to its
insistence on maintaining the status quo insofar as eco-
nomic matters were concerned. Such an attitude is con-
trary to the duty to bargain in good faith and, in and of
itself, constitutes a refusal to bargain within the meaning of
Section 8(a)(5) of the Act.2 ' I agree with the General Coun-
sel that the position of Gibraltar that it would be willing to
continue operations if the ILGWU would give in to this
demand defeats any contention by Gibraltar that its layoff.
commencing on November 5 and reaching completion on
November 8, was made for valid business considerations.
Apart from the fact that the Respondent proffered no pro-
bative evidence in support of any conclusion that the No-
vember 5 and 8 layoffs were caused by business considera-
tions, at a time when it was operating under the very
conditions which it sought to extract from the Union as a
matter of contract, an analysis of the negotiations, as well
as consideration of President Forman's various remarks re-
garding the Union and his intentions to cease operating in
the event no agreement acceptable to him was reached,
convinces me that the layoff was designed, as the General
Counsel urges, to wrest concessions from the Union and
force it to acquiesce to the Respondent's rigid demands.
Inability to pay the wages and other benefits that the
Union was seeking to secure in negotiations was not a fac-
tor in the layoff, as clearly evidenced by the letter of De-
cember 28 from the Respondent's attorney, wherein he ad-
vised that inability to pay the money was not the
Company's basis for the refusal to better its economic of-
fer.
In the light of the progress of negotiations and Forman's
i' local Union .o. 103, International A.4 ..iilation o,! B[rtdl. S Irm, nill , aoll
Ornamental Iron Workers. A FL CIO, and irt agent ('harhle 7'rnpe; (4 4,,,
ated General Contractors o(f .4nmrlla Eilaniille ('hlaplr. /m in. 190 NI.RB
741, 742 (1971)
813CASE, INC
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that there is a total lack of evidence of any legiti-
mate employer consideration which would require the lay-
off of Respondent's employees on November 5 and 8. I
further find that the layoff was motivated by antiunion
considerations, as exemplified by Forman's various state-
ments, and was a device to coerce the Union into accepting
the Respondent's adamant contract demands. Accord-
ingly, as more fully explicated below, I find the layoffs to
be in violation of Section 8(a)(l) and (3) of the Act. I fur-
ther find that the Respondent violated Section 8(a)(1) and
(5) of the Act by failing to notify and bargain with the
ILGWU concerning its decision to lay off and to transfer
work, which it implemented on November 5 and 8,22 and
by thereafter engaging in sham bargaining with the Union
over reopening the plant, having already reached a deci-
sion to keep the plant shut down unless the Union would
accept a contract agreement agreeable to the Respondent,
which necessarily means in this case an adoption of their
position predetermined prior to the start of negotiations. I
do not agree with the Respondent that the parties had
reached an impasse in bargaining at their October 27 meet-
ing. At the close of this meeting, there were items that had
been reserved for discussion by the Company's attorney
with its president, Wallace Forman, and the attorney ad-
vised Janis of the results of his discussion with Forman on
these matters by letter of November 1. Thus, the parties
were still discussing terms of the contract, and impasse had
certainly not been reached. Furthermore, assuming arguen-
do that impasse had been reached on October 27, it was not
occasioned by lawful insistence on a mandatory subject of
bargaining but rather was occasioned by the Respondent's
inflexible position and unwillingness to seriously consider
any alternatives to its economic proposals. Consequently,
the Employer cannot rely on impasse as a lawful reason for
laying off its employees or shutting down its plant. I regard
Respondent's advice to the Union of December 17 that it
was going to close the plant as nothing more than a confir-
mation of afait accompli. The period between November 8,
when the work at Olive Hill ceased, and December 17,
when the Company formally advised that the plant was to
be closed, was utilized by the Respondent solely to induce
the Union to surrender to the Respondent's unlawful bar-
gaining tactics in exchange for a reopening of the plant.
That failing, Respondent merely confirmed what had al-
ready happened when it announced a plant closure.
The Respondent's announcement on December 28 that
it was prepared to meet with the Union to discuss the ef-
fects of the termination and the termination itself cannot
be accepted as an expression of intent to bargain in good
faith in view of the fact that the Respondent, on January
17, 1977, announced that the termination was a completed
matter and that, although the Company would discuss it,
Gibraltar did not intend to reverse itself on the plant clo-
sure. Furthermore, the Respondent's insistence on bargain-
ing in New York City, as opposed to Kentucky., where the
plant is located, is not indicative of good-faith bargain-
22 Eagle Material Handling, In.., et al., 227 Nl.RB 174 (19761: P t,,,-
trie Motor Transporrarion, Inc., 226 NLRB 1325 ( 1976): Bruce . Kronenbehr-
ger and Herbert Schoenbrod d, b a American Needle ' :Noiel/ ( n/lpan,. e
at, 206 NLRB 534 (1973)
ing. 23 Similarly, the offer to bargain by conference call or
mail is not a reasonable substitute for face-to-face negotia-
tions. I regard this offer to bargain with the Union only in
New York City, or by way of the telephone or mail, to be
but another impediment placed in the path of good-faith
bargaining by the Respondent, and I believe that this is
indicative of the entire course of conduct Respondent has
engaged in in this case.
All parties argued ably and extensively regarding the ap-
plicability of Darlington.2 After a careful sifting of the evi-
dence in this case and consideration of the Darlington deci-
sion, I conclude that Darlinglon is not controlling because
the evidence does not warrant a conclusion that Gibraltar
acted to close its Olive Hill plant with the purpose of dis-
couraging union activity at Case, Inc. I have no doubt that
the transfer of the work at Olive Hill to Brooklyn could not
reasonably be expected to have escaped the notice of Case,
Inc., employees and had a probable inhibitory effect on
their union activities, but I am unable to conclude that the
purpose of the closure was to produce this effect. Further-
more, I am not at all convinced that the interest of Gibral-
tar in Case is of "sufficient substantiality to give promise of
their reaping of benefit" from a discouragment of union
activity at Case. The tests enumerated in Darlington are in
the conjunctive and require a finding that an employer's
act meet all the tests before a finding of closure to chill
union activity at another location is warranted. Those tests
have not herein been met. This case involves not a perma-
nent going out of business by an employer, but a transfer
of operations to another location to avoid bargaining with
the Union on terms other than those that the employer
himself set. Forman clearly invited the employees of Gi-
braltar to renounce the ILGWU as its collective-bargain-
ing agent as a condition of maintaining or resuming pro-
duction at Olive Hill in his newspaper interview with
reporter Tracy. This interview occurred 2 days before the
layoff commenced, and was published on the very day that
the layoff was completed. I do not believe that in a com-
munity of some 2,100 people this could have escaped the
notice of Gibraltar employees. This transfer of work to
another plant to defeat unionization and the conditioning
of continuation of production on employee renunciation of
the Union are both clearly in violation of Section 8(a)(3)
and (I) of the Act. I further conclude that Gibraltar, by
conditioning bargaining on the work transfer or its effects
on employees on meeting in New York or negotiating by,
mail or telephone. failed and refused to meet its obligation
to bargain at reasonable times and places on these matters
and thereby violated Section 8(a)(5) of the Act.
2. Unfair labor practices at Case, Inc.
The acts of Betty Goodan and Louise Walker on Octo-
ber 14 and 15, respectively, in inquiring into Anita
Wilburn's previous experience in unionized plants amounts
to interrogation in an attempt to ascertain her sympathies
with regard to the Union. Similarly, the additional com-
,(icner l ,lor', ,4 eplancc C'( orporatlotn 196 NLRB 137. 138. , (
(;'astial 1ror Incs. In, . 219 NLRB 1009. 1013 ( 1975).
24 T ,xle uror er, I neon o-f Am'eria i. Darlingtn Manuilatfuring ( o, el
at. 380 l S 263 191)
814
CASE. INC.
ments by both to the effect that Company President Case
was being hurt by Wilburn's union activities and was dis-
appointed in her because she wore a union badge are, in
my opinion, implied threats of unspecified retaliation if she
did not cease her union activities. In so concluding, I have
kept in mind that remarks attributed to the chief officer
and principal owner have considerably more impact than
statements made solely on the authority of a minor or in-
termediate supervisor. I therefore find these statements of
Goodan and Walker to be violative of Section 8(a)(1) of
the Act, because they interfered with, restrained, and
coerced Wilburn in the exercise of her Section 7 rights.
Gene Case's comments to Anita Wilburn on October 22
were of the same type, with the additional comment that if
the Company and Union could not reach agreement they
would have to pull the contract out. I conclude this latter
remark to mean that some work would be lost. Case's com-
ments are a mere extension of those of Goodan and Walk-
er, and lead me to believe that he in fact encouraged Goo-
dan and Walker to make those statements to Wilburn. I
find that Gene Case violated Section 8(a)( 1) of the Act on
October 22 by coercively interrogating Anita Wilburn.
Case's continued pressure on Wilburn on October 23 also
is violative of Section 8(a)(1) of the Act. His comment that
Wilburn could not be a friend to him and to the Union too,
accompanied by his pointing to the union badge she was
wearing, is plainly' coercive and a threat that Wilburn
would not be looked upon favorably by Case when it came
to granting benefits. I am compelled to this conclusion by
Case's comment that he had considered making Wilburn
an office girl. His message was clear. It was the carrot-and-
stick routine. If Wilburn restrained herself from engaging
in union activity, the promise of an office girl job was held
out to her. If, on the other hand, she persisted in her union
activities, she would fall from Case's good graces and be
subject to implied reprisals. Case continued to put pressure
on Anita Wilburn by asking employee Glover, on October
25, to tell Wilburn what it was like to work in a place where
there was a union because Wilburn would not listen to
Case. This was not only unlawful interference with
Wilburn's activities, but it was also an involvement of
Thelma Glover in the Employer's effort to defeat the
Union. Glover really had no alternative than to comply
with Case's wishes, and I conclude that his instruction to
her coerced her, as well as Wilburn, in the exercise of their
Section 7 rights and violated Section 8(a)(1). When, later
the same day, Case asked Anita Wilburn to give her union
badge to him in exchange for a company badge. or permit
him to change it. he was plainly testing her degree of union
support and coercing her into abandoning her protected
activities, including wearing a union button. Once again.
Case violated Section 8(a)(l) by his conduct.
Case did not confine his conversation about the Union
to Wilburn but talked to other employees. On October 22.
he violated Section 8(a)( I) by telling employee Goats that
she would look better without the union badge that she was
wearing, that he would perfer that she took it off and that
they, presumably Case and Goats, would get along a lot
better without a union and didn't need a union. Iater the
same day, Case once again involved an employee. John
Hall. in his antiunion activities b) directing him to tell
Goats that it would be better to vote against the Union.
Case, by his acts in this instance, clearly' interfered with
Hall's right to refrain from antiunion activity and coerced
him into interfering with the rights of another employee.
The instruction by Case in the presence of Goats and Hall
that it would be better to vote against the Union carries
with it an implied threat of retaliation if they do not do so,
and violates Section 8(a)(1) of the Act.
On October 29. Gene Case violated Section 8(a)(1) of the
Act by asking employee Bobby Jo Morgan what had been
said at a union meeting the day previously. I do not find.
however, that this unlawful interrogation by Case carries
with it anY impression of surveillance, inasmuch as it was
common knowledge that the Union was having meetings.
Sometime in late October, Betty Goodan violated Sec-
tion 8(a)( ) by asking employee Kathy Dunaway how she
was going to vote and if she would wear one of the
Company's badges. This is unlawful interrogation by any
test. Gene Case's statement to employee Josephine Hol-
brook, about 2 or 3 weeks before the election, at a time
when she was wearing a union button, to the effect that
another company in Olive Hill had reported that they
would not employ her violated Section 8(a)(1) because it
was clearly calculated, in my opinion, to impress upon
Holbrook that her possibilities of continued employment
rested solely with Case, since she could not obtain a job
elsewhere and. delivered in the midst of an antiunion cam-
paign, was also calculated to restrain her from supporting
the Union. Betty Goodan's interrogation of Anita Wilburn
in early November, regarding the lettering on the back of
her T-shirt, was unlawful interrogation regarding the activ-
ities of others, as well as Anita Wilburn, in view of the fact
that Goodan persisted in asking who had done the lettering
when Wilburn said that she had not. I consider it obvious
that Goodan was acting as an emissary of Gene Case when
she asked the questions, because she commented that Case
thought that Wilburn had done the lettering.
Although Sina Yonts was widely known to be a leading
union adherent at the plant, Gene Case's questions of her
regarding her impression of matters at Gibraltar, which
could only mean union matters, considering the context of
the entire conversation, were an unlawful solicitation of
her views regarding the Union and are violative of Section
8(a)( I). I further find that Case's remarks to Yonts that the
Union had got nothing at Gibraltar were designed to im-
press upon her the futility of selecting the Union as collec-
tive-bargaining representative and therefore violated Sec-
tion 8(a)( ). Gibraltar's president. Wallace Forman, spoke
to Case's employees in September and November at the
request of Gene Case. Case claims that he asked Forman
to talk to his employees because Forman was a better
speaker and could explain the election procedures to them.
Although I have no way of comparing the relative speech-
making abilities of Forman and Case, I cannot believe that
Case, who had gone through a National Labor Relations
Board election the vear before, was not perfectly compe-
tent to explain the procedures to his employees without
outside aid. I am persuaded that the real reason Case invit-
ed Forman to speak to his employees was that Forman was
both reads and willing to do so. and Forman. as president
of Case's chief customer, would impress the employees as
815
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one from whom their employer derived the work that sus-
tained their employment and as one speaking authorita-
tively of negotiations with the Union in view of the cam-
paign, certification, and negotiations with the II.GWU at
its Olive Hill facility, which was located but I mile from
Case. Forman's statements at the September meeting with
Case's employees were clearly calculated to impress upon
them not only that he owned the building that Case was
operating in, but that Case received most of its work from
Gibraltar. It is further found that Forman's claims that
Case could not survive a union boycott, and that em-
ployers doing Government work as Case does could not
survive with a union, were designed to impress upon the
employees the dangers to their continued employment if
they selected a union as their representative. The thrust of
Forman's remarks at his November 3 meeting with Case
employees was that he was going to permit Case to do
work for Gibraltar, but that he could pull the work out of
Case and give it to someone else if a union came in, a strike
resulted, and he concluded that Case could not complete
the contract. This, as well as his statement that Case had
the same alternative to ship work back to Gibraltar if he
was unable to complete it on time, was based on unwar-
ranted hypothetical assumptions conveyed to employees in
such a manner as to suggest a loss of work if the Union
were successful. I conclude that Forman's hypothetical syl-
logistic construction was an effort to convey to the employ-
ees that dire consequences were attendant on union organi-
zational success. I am of the opinion that Forman's
unwarranted construct conveyed a threat of economic loss
to Case's employees sufficient to constitute a violation of
Section 8(a)() of the Act. Forman was acting as an express
agent of Gene Case and Case, Inc., at the time that he
made these various speeches to employees at Case.
At the time that Forman made his speech to Case em-
ployees on November 15, it is fair to assume that his state-
ment to reporter Dan Tracy on November 3 was widely
known by Case's employees, because it appeared in the
Olive Hill Times, a newspaper of general circulation, on
November 8. The newspaper article made it abundantly
clear that Forman was opposed to unionization in Olive
Hill, whatever garment factory located there it might occur
in. His advice to Case's employees that Gibraltar's employ-
ees were not working, and that the Gibraltar plant would
probably go out of existence unless the Union and Gibral-
tar reached an agreement, was introduced into the speech
as an ominous portent of possible consequences at Case if
it selected a division of the same union to represent them.
This statement by Forman, taken in the context of the
other statements made by him during the campaign and
the events occurring at the Gibraltar plant, was reasonably
calculated to arouse fear in the minds of the Case elector-
ate that the fate of Gibraltar employees might be repeated
at Case. Although it is undoubtedly true that it is almost
impossible to accurately ascertain, absent some overt state-
ment of the hearer, the impact of statements of this type on
the audience to which they are delivered, I find that the
statements of Forman slipped over the narrow line of per-
missibility and had an inherent tendency to restrain and
coerce employees in the exercise of their franchise in the
upcoming election. I am somewhat doubtful that, standing
alone, his statements would be violative of Section 8(a)( I),
or even objectionable conduct, but viewed in the frame-
work of the continuous antiunion campaign by Forman at
both Gibraltar and Case, his statements take on additional
weight sufficient to warrant a finding that they are in viola-
tion of Section 8(a)(1) of the Act. In reaching this conclu-
sion, I have also considered that Gene Case's designation
of Wallace Forman as his spokesman in the preelection
campaign conveyed to Case's employees that he shared the
views of Forman and agreed with Forman's approach to
labor relations. Forman was known to Case's employees as
the executor, if not the architect, of Gibraltar labor rela-
tions policies, which were clearly antiunion and utilized
tactics of layoff and plant closure to stave off unionism. It
would be an unwary employee indeed who would not con-
strue Forman's predictions as promises of intent and evalu-
ate his statements in the light of his conduct at Gibraltar
and his publicly stated vehement opposition to the Union,
an approach which Case was implicitly adopting when he
selected Forman as his representative.
The various violations of Section 8(a)(1) of the Act di-
rected at Anita Wilburn commenced within 10 days of her
return to work from maternity leave and continued until
about the Ist of November. I am persuaded that Anita
Wilburn was singled out by the Respondent as an active
union adherent and made the focal point of an orchestrat-
ed series of unlawful statements. There appear to have
been no warnings of bad work made to Wilburn until after
she commenced wearing a T-shirt with a union label on the
front and the statement "Dear Gene: If you bug me, the
government will get thee" on the back. The questions di-
rected to Wilburn by Goodan with regard to this lettering
on the back of her T-shirt was at Gene Case's direction and
clearly evidenced his continuing hostility to her protected
union activities. Although I have found that the Respon-
dent does have a standing policy with regard to procedure
to be followed in discipline for poor work, and it appears
that the actual warnings, suspension, and discharge of Wil-
burn are not inconsistent with that policy, and two other
employees had also been discharged for poor work, I note
that the discharge of Kathy Dunaway followed that of Wil-
burn and therefore is unreliable as establishing a precedent
for the action against Wilburn. I further note that Beverly
Knipp's discharge for poor work about December 1, which
is not herein alleged nor found to be a violation of the Act,
was contemporaneous with the series of warnings being
given Wilburn and preceded Wilburn's discharge by only
about 9 days. There was no other evidence proffered or
adduced of any specifically named employee having been
discharged under the policy in the past. I find the question
of Wilburn's warnings, suspension, and discharge to be ex-
tremely difficult to resolve, inasmuch as it appears that her
work was indeed not up to standard, although it appears to
me that the Respondent's insistent illegal harassment could
reasonably be expected to disturb her concentration and
affect her work performance. The rapid succession of
warnings, suspension, and discharge, following as they did
the various expressions of disapproval of her union activi-
ties that were directed to her, leads me to conclude that the
warnings, suspension, and discharge were retaliatory mea-
sures taken by the Respondent because she did not bend to
816
leading and defamatory letter concerning the Peti-
tioner which was circulated inside the plant on the day
before the election.
Objections 2 and 3 are without merit, because I have
found that the evidence does not even support an allega-
tion of impression of surveillance. No evidence was prof-
fered or adduced in support of Objection 4. and it is like-
wise without merit. Objection 6 is without merit. because
neither Case. Inc., nor its agents closed the Gibraltar plant.
nor was it closed for the purpose of affecting the outcome
of the Case election, although that may have been one of
the resulting effects of the closure. The sole evidence devel-
oped regarding Objections 7 and 8 relate to a letter from
the United Brick and Clav Workers of America, which was
apparently written to Ralco employees. Ralco is another
Olive Hill firm. There were some copies of this letter in the
break room on the day before the election. There is no
evidence as to how the! got there or who put them there.
On its face. it appears to be a communication by the
I nited Brick and Clay Workers of America informing Ral-
co employees that the I1.GWU was misleading them. In
substance. the letter is of a propaganda nature, denouncing
the ILGWU and proclaiming the virtues of the United
Brick and Clay Workers in comparison with the ILGWU. I
have examined the document carefully and conclude that it
is a type of literature that employees would easily recognize
and evaluate. There is no showing that it was distributed
by Respondent. There is no obligation on the Employer to
disavow the letter of which it is not shown to have had any
knowledge. Furthermore. there is no showing that the letter
actually misrepresents the facts, because no evidence was
adduced to dispute the matters set forth in the letter.
Therefore. I cannot conclude that it is a misrepresentation
of fact. In any event, the Board has ruled that propaganda
of this nature is not objectionable conduct.26 Accordingly,
I will recommend that Objections 7 and 8 be overruled.
The conduct of Gene Case. Betty Goodan, and Louise
Walker which I have found to be violative of Section
8(a)(I ) of the Act, as well as Forman's unlawful statements
at the two meetings with employees of Case in November.
and the warnings issued to Anita Wilburn on November 5
and 9, which violate Section 8(a)(3) of the Act. are all suffi-
ciently related to Objections I and 5 to be considered as
objectionable conduct. Inasmuch as all of this conduct oc-
curred within the period between the filing of the petition
and the date of the election and is of sufficient gravity to
warrant setting the election aside, I shall recommend that
Objections I and 5 be sustained.
Having found that the election should be set aside, it is
now appropriate to consider the refusal-to-bargain allega-
tions. 2 I have previously found hereinabove that Upper
South represented a majority of the employees in the ap-
propriate unit on September 15. 1976. the date that Case
refused to recognize it as the collective-bargaining repre-
sentative of its employees. I further find that by the acts
herein found to be violative of Section 8(a)(1) and (3) of
the Act. including the suspension and discharge of Anita
-Shl,/ppl lln . krt ,,,d 'lei-afet . Ir,. 22 N.RB 111 (1t 977)
Iran -Ar (Chute ( ,,ipan,. In, Mfarathon l)liion. 149 NLRB 627
(1964)
the will of Gene Case and abandon her union activities. I
must assume from the evidence before me that \Vilburn's
work, which was satisfactory until she went on maternity
leave, continued to be satisfactory from the time she re-
turned to work on October 5 until she received her first
warning on November 5. During the time that the Respon-
dent was directing its various unlawful questions and com-
ments at Anita Wilburn, she received no warnings for poor
work, nor does the record indicate that her work was not
satisfactory at that time. It was only after it became appar-
ent to the Respondent, as particularly shown by the letter-
ing on the back of her T-shirt, that she could not be solic-
ited or coerced to abandon the Union that the Respondent
moved quickly through the warning, suspension. and dis-
charge procedure. Accordingly. I am persuaded, for the
various reasons set forth hereinabove, that the discharge of
Anita Wilburn, as well as the warnings and suspensions
leading up to it, were executed by the Respondent to rid
itself of an employee whom it knew to be an unconvertible
union adherent. I find the warnings of November 5. 9. and
19 and the 3-day suspension subsequent to November 19.
as well as the discharge of Anita Wilburn on December 10.
to be violative of Section 8(a)(3) and (1) of the Act. Al-
though the warnings of November 5. 9. and 19 are not
alleged in the complaint as violations, the warnings are
clearly related to the suspension and discharge alleged in
the complaint and have been fully litigated by the parties
without objections by the Respondent. Accordingly. I am
not precluded from deciding the issue of whether or not the
warnings were discriminatorily issued, even though not
specifically pleaded in the complaint.2 There is no evi-
dence to support the allegation that Section 8(a)(4) of the
Act has been violated. I therefore find that it has not.
The objections to conduct affecting the results of the
election in Case 9-RC- 11709 which are before me for
hearing read as follows:
1. The Employer interrogated employees concern-
ing their membership in and activities on behalf of the
Petitioner.
2. The Employer engaged in surveillance of em-
ployees' union activities.
3. The Employer created the impression of surveil-
lance of employees' union activities.
4. The Employer discriminatorily enforced a no-so-
litation [sic] rule against supporters of the Petitioner.
5. The Employer threatened employees with loss of
jobs to discourage their membership in and activities
on behalf of the Petitioner.
6. The Employer, through its agents, closed a neigh-
boring union plant in an effort to affect the outcome
of the election.
7. A false, misleading and defamatory letter con-
cerning the Petitioner was circulated inside the
Employer's plant on the day preceding the election
which interfered with the laboratory conditions neces-
sary for a valid election.
8. The Employer failed to disavow the false. mis-
2 Ku.r ManufacturingC (orporation and ( ontinental tlarlnr, (C'-rnrallt"n a
joint employer. 233 NI.RB 317 (1977)
CASE. INC. 817
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wilburn, Case, Inc., interfered with the election process
and prevented the holding of a fair election on November
16, and aimed at discouraging employees who supported
the Union and at undermining and destroying the majority
status that the Union had obtained. In addition to finding
that the Respondent. Case, Inc., violated Section 8(a)(5)
and (I) of the Act by refusing to bargain with Upper South
upon request at a time when Upper South represented a
majority of the union employees but instead embarked on
a campaign to destroy the union majority, I am further
persuaded that the Employer's unfair labor practices were
sufficiently severe as to render the possibility of holding a
fair election highly improbable, if not impossible. and
therefore I conclude that a bargaining order, effective Sep-
tember 15, 1976, is warranted to remedy the violations of
Section 8(a)(5) and protect the employees' statutory rights
to select their own collective-bargaining representative and
to be free from restraint or coercion in the exercise of that
right. 2s
Upon the foregoing findings of fact and conclusions
based thereon, and upon the entire record in this case, I
make the following:
CONC(I LSIONS O(F ILAW
A. Gibraltar Industries, Inc., Cases 9 -CA-1 0786- 1, 9 C,4
1102R, and 9--CA 10786--2
I. Gibraltar Industries, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The International Ladies' Garment Workers' Union.
AFL-CIO, and the Upper South Department, Interna-
tional Ladies' Garment Workers' Union, AFL-CIO, are.
and have been at all tinmes material herein, labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. The following employees of Gibraltar constitute a
unit appropriate for collective bargaining:
All production and maintenance employees and ship-
ping and receiving employees of Gibraltar Industries,
Inc., at its Olive Hill, Kentucky, location, but exclud-
ing all truckdrivers, all office clerical employees, and
all guards, professional employees, and supervisors as
defined in the Act.
4. At all times since October 12, 1976. and continuing to
date, the International Ladies' Garment Workers' Union,
AFL-CIO, has been the certified exclusive representative
of all the employees within said appropriate unit for pur-
poses of collective bargaining within the meaning of Sec-
tion 9(a) of the Act.
5. By interrogating Ollie Ray Cox in July 1976 and on
August 6, 1976, about his union activities and those of
others, Gibraltar Industries, Inc., has violated Section
8(a)(l) of the Act.
6. By informing employee Ollie Ray Cox in July and
again on August 6, 1976, that the Respondent had ways of
finding out what type of union activity employees were
8 N. L.R B. v. Gissel Packing ('o.. Inc., 395 L;.S 575 (1969': Iradztng P'r/i.
Inc.. 219 NLRB 298 11975).
engaging in, Gibraltar Industries. Inc.. created an impres-
sion of surveillance of the union activities of employees
and thereby violated Section 8(a)(1) of the Act.
7. By threatening its employees with loss of work or
other unspecified retaliation. on August 17, 1976, in repri-
sal for their union activities, Gibraltar Industries, Inc., vio-
lated Section 8(a)(1) of the Act.
8. Bv threatening employees, on August 24, 1976, with
plant closure should they select union representation, Gi-
braltar Industries, Inc., violated Section 8(a)(1) of the Act.
9. By soliciting its employees, on November 8, 1976, to
abandon the Union as a condition of keeping the plant
open, Gibraltar Industries. Inc., by its President Wallace
Forman, violated Section 8(a)(1) of the Act.
10. By laying off the entire employee unit and transfer-
ring their work to another location, as found herein, Gi-
braltar engaged in unfair labor practices in violation of
Section 8(a)(3) and (I) of the Act.
I11. By refusing to bargain with International Ladies'
Garment Workers' Union, AFL-CIO, on wages and other
economic benefits. Gibraltar Industries, Inc., has, since
October 27, 1976, engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) and
(I) of the Act.
12. By its unilateral actions in laying off its entire work
force at its Olive Hill plant, transferring unit work to its
Brooklyn, New York. facility, all without notification to
the Union or adequate opportunity to bargain with respect
to those actions before thev were effected; by refusing to
meet and bargain with the Union on the work transfer,
layoffs, and the effects of such actions on employees, at
any place other than New York: and by otherwise refusing
and failing to bargain with the Union in good faith with
respect to the terms and conditions of employment of unit
employees, as set forth herein, Gibraltar engaged in unfair
labor practices in violation of Section 8(a)(5) and (I) of the
Act.
B. Case, Inc.. Cases 9-CA-10829-2, 9 CA-10958, and 9--
RC 11709
1. Case, Inc., is an employer engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act.
2. The Union, Upper South Department, International
Ladies' Garment Workers' Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. The following unit constitutes a unit appropriate for
collective bargaining:
All production and maintenance employees, including
shipping and receiving employees, employed by Case,
Inc., at its Olive Hill, Kentucky, location, but exclud-
ing all office clerical employees, professional employ-
ees, and guards and supervisors as defined in the Act.
4. At all times since September 15, 1976, and continuing
to date, Upper South Department, International Ladies'
Garment Workers' U;nion. AFL CIO, herein referred to as
Upper South, has been the exclusive representative of all
the employees within said appropriate unit for purposes of
collective bargaining within the meaning of Section 9(a) of
the Act.
818
judge's recommended Order, stated "[r]estoration of the
status quo ante following an unfair labor practice is prima
facie appropriate." 29 1 have noted the ease with which Re-
spondent removed its materials and machinery from Olive
Hill and transported them to its Brooklyn facility. where I
have concluded that it then commenced production on the
same type of product formerly produced at Olive Hill. and
I further note that the Respondent presented no real eco-
nomic justification for moving the machinery and transfer-
ring operations. Indeed. I have found this action to be dis-
criinatorily motivated. There is no showing in the record
regarding the terms under which The Card Factory cur-
rently occupies the facility which was occupied by Gibral-
tar prior to its transfer of operations to its Brooklyn plant.
However, as the Charging Party points out, the evidence
before me indicates that Gibraltar is still primary lessee of
the building where The Card Factory is now located, and
the limited evidence on the matter indicates that The Card
Factor) operates a rather simplified process requiring only
work tables as operating equipment. Gibraltar made no
showing at the hearing that it had abandoned the lease on
the Olive Hill premises, and while I am reluctant to con-
clude that it is subleasing to The Card Factory'. inasmuch
as I have no evidence on that point, it would seem that
Gibraltar Industries. Inc., still has the primary claim on
that facility at Olive Ilill by virtue of its outstanding lease.
Upon consideration of all the foregoing factors relating to
the problems of retransfer and reoccupancy, including a
possible financial liability of Gibraltar Industries, Inc.. to
The Card Factory if it were to reoccupy the premises, I
have concluded that these problems were the result of se-
vere unfair labor practices of Gibraltar resulting in the ter-
mination of some 17 employees and the breach of an abso-
lute obligation to bargain in good faith after certification
by the Board of II.GWU as the employees' collective-bar-
gaining agent. The statements of Forman to the effect that
it would be a simple matter to move the Olive Hill opera-
tion into a small portion of the Brooklyn plant leads me to
conclude it would be relatively simple to move it back. I
am persuaded that a restoration of the status quo ante is
required to remedy the effects of the employer's unfair la-
bor practices. Accordingly, I shall order Gibraltar Indus-
tries. Inc.. to retransfer the machinery that it previously
moved to Brooklvn back to Olive Hill and resume opera-
tions at that location, taking whatever steps are necessary
to secure the premises now' occupied by The Card Factory.
I shall further order it to offer the employees it laid off on
November 5 and 8. 1976. reinstatement to the positions
they held prior to their unlawful severance and to make
them whole for wages lost as a result of the layoff. with
backpa? and interest thereon to be computed in the man-
ner prescribed in F W Woolworth Company, 90 NLRB
289 (1950) and Florida Steel Corporation, 231 NLRB 651
(1977).30 In the alternative, if it be determined by the Board
in subsequent compliance proceedings that Gibraltar no
longer holds the Olive Hill lease and no other suitable facil-
ities are available in or around Olive Hill, Kentucky, for
resumption of Gibraltar's former operations, I shall order
5. By coercively interrogating its employees about their
union activities and those of others. C'ase. Inc.. has violated
Section 8(a)(1) of the Act.
6. By threatening its employees with reprisals if they did
not abandon their union activities, Case, Inc.. has violated
Section 8(a)(1) of the Act.
7. By making implied promises of benefit, conditioned
on abandoning her union activity, to Anita Wilburn on
October 23, 1976, Case, Inc., violated Section 8(a)(l) of the
Act.
8. By directing its employees to tell other of its employ-
ees to vote against the Union, the Respondent violated
Section 8(a)(1) of the Act.
9. By warning, suspending, and discharging Anita Wil-
burn for engaging in union activities and thereafter failing
or refusing to reinstate her, the Respondent has violated
Section 8(a)(3) and (l) of the Act.
10. The Respondent engaged in objectionable conduct
requiring that the election conducted on November 16,
1976, in Case 9 RC-11709, be set aside.
II. By engaging in the above-described violations of
Section 8(a)(3) and (I) of the Act for the purpose of under-
mining and destroying Upper South's majority status, the
Respondent violated Section 8(a)(5) and ( 1) of the Act.
12. The violations of the Act found herein interfered
with the election process, had a tendency to undermine
Upper South's strength, prevented the holding of a fair
election, and warrant the issuance of a collective bargain-
ing order.
13. The unfair labor practices set forth above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
14. The challenges to the ballots of Louise Walker, Betty
Goodan, Beverly Pidgeon, Francis Webb. and Bernice Por-
ter should be sustained; the challenges to the ballots of
Woodrow Burchett, Elva Duncan, Juliette Haslebeck. and
Walter Sherman Butler should be overruled.
Tn}E RIMEDE
A. Gibraltar Industries, Inc.
Having found that Gibraltar Industries. Inc.. has en-
gaged in and is engaging in certain unfair labor practices. I
shall order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the poli-
cies of the Act. As a remedy for the transfer of work to
Brooklyn and the accompanying total layoff at Gibraltar's
Olive Hill facility, the General Counsel and the Charging
Party seek an order requiring Gibraltar Industries, Inc., to
transfer its machinery back to Olive Hill from Brooklyn
and resume the operations that it discontinued in Novem-
ber 1976. The Respondent contends that the Board has
never ordered retransfer of a plant without affording some
alternative remedy and that the reinstitution of the Gibral-
tar operation at Olive Hill is not possible in view of the fact
that the facility it formerly utilized is now occupied by
another employer. The problem of ordering the resumption
of discontinued operations was carefully discussed in
N. C. Coastal Motor Lines, Inc., 219 NLRB 1009, 1014
(1975). The Board, in adopting the administrative law
', 219 \I RB ., l011
' Scc. encrall,. 1, t.'.... , A i11 ,,,,c, ( , 138 NLRB 716 (1962)
CASE, INC. 819
DECISIONS OF NATION'AL LABOR RELATIONS BOARD
Gibraltar to make its former Olive Hill employees whole
for wages lost, computed in the manner set forth above,
from the date of their layoff until such time as they secure
substantially equivalent employment or permanently leave
the labor market.
I shall further order that Gibraltar Industries, Inc.. upon
request, meet and bargain with the Union, and that it cease
and desist from unilaterally transferring unit work to other
locations without consulting with the certified bargaining
representative, cease and desist from insisting on conduct-
ing any personal negotiations in New York, and meet and
bargain with the Union at reasonable times and places.
In order to insure that the employees will be accorded
the services of their selected bargaining agent for the pe-
riod provided by law, I shall order that the initial period of
certification will begin on the date that Gibraltar Indus-
tries, Inc., commences to bargain in good faith with the
International Ladies' Garment Workers' Union, AFL
CIO. See Mar-Jac Poultry Company, Inc., 136 NLRB 785
(1962); Commerce Company d/b/a Lamar Hotel, 140
NLRB 226, 229 (1962), enfd. 329 F.2d 600 (C.A. 5, 1964),
cert denied 379 U.S. 817; Burnett Construction Compan,.
149 NLRB 1419 1421 (1964), enfd. 350 F.2d 57 (C'.A. 10,
1965).
B. Case, Inc.
In order to remedy the unfair labor practices found
herein, my recommended order will require Case. Inc., to
cease and desist from further violations, to expunge the
November 5, 9, and 19 warnings to Anita Wilburn from its
records, and to offer unconditional reinstatement to Anita
Wilburn and make her whole for all wages lost by her as a
result of her unlawful suspension and discharge, such back-
pay and interest thereon to be computed in the manner
prescribed in F. W. Woolworth Company, supra, and Flor-
ida Steel Corporation, supra.31 I shall further recommend
that the challenges to the ballots of Louise Walker, Betty
Goodan, Bernice Porter, Beverly Pidgeon, and Francis
Webb be sustained and the challenges to the ballots of
Juliette Haslebeck, Walter Sherman Butler, Woodrow Bur-
chett, and Elva Duncan overruled. The ballots of Hasle-
beck, Butler, Duncan, and Burchett are determinative of
the results of the election. Accordingly, I shall recommend
that their ballots be opened and counted and that the Up-
per South Department, International Ladies' Garment
Workers' Ujnion, AFL-CIO, be certified by the Board as
the collective-bargaining representative of all the employ-
ees in the unit found appropriate herein at Case, Inc., if the
Upper South Department then obtains a majority of the
valid votes cast. If the Upper South Department does not
secure a majority of the valid votes cast after the count, I
shall recommend that the election be set aside and that
Case, Inc., be ordered to recognize and bargain with the
Upper South Department as the exclusive collective-bar-
gaining agent of the employees in the unit found appropri-
ate herein.
Pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
31 See In. 30.. sipr
ORDER 32
A. Respondent Gibraltar Industries, Inc., Olive Hill.
Kentucky, its officers, agents, successors, and assigns,
shall:
1. (Cease and desist from:
(a) Discouraging membership in the International La-
dies' Garment Workers' Union, herein called the ILGWU,
or any other labor organization. by laying off or discharg-
ing employees or otherwise discriminating in any manner
in respect to their tenure of employment or any term or
condition of employment.
(b) Coercively interrogating employees concerning their
and other employees' union activities and desires.
(c) Threatening employees with loss of work or plant
closure because they engage in protected union activities.
id) Refusing to bargain collectively with the ILGWU as
the exclusive collective-bargaining representative of the Gi-
braltar Industries. Inc., employees in the unit found appro-
priate herein, with respect to wages, hours, and other terms
and conditions of employment; and unilaterally transfer-
ring unit work or otherwise unilaterally changing wages,
hours, or other terms and conditions of employment of
unit employees without notice to and bargaining with the
ILGWU.
(e) Insisting on bargaining in New York.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act:
(a) Upon request, bargain with the ILGWU as the ex-
clusive representative of all employees in the aforesaid ap-
propriate unit and, if an understanding is reached, embody
such understanding in a written, signed agreement.
(b) Reestablish its facility at Olive Hill, Kentucky, and
retransfer thereto the machinery privously transferred from
Olive Hill. Kentucky, to Brooklyn, New York, if Gibraltar
is still the lessee of the Olive Hill facility or if other suitable
facilities are available in or around Olive Hill, Kentucky.
(c) Offer those unit employees laid off on November 5
and 8, 1976, immediate and full reinstatement to their for-
mer jobs without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of earn-
ings they may have suffered by reason of the discrimina-
tion against them in the manner set forth in the section of
this Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all pay-
roll records and reports and all other records required to
ascertain the amount, if any, of any backpay due under the
terms of the recommended Order.
(e) Post at its reinstituted Olive Hill, Kentucky, facility
and mail to each of its employees employed at its Olive
Hill facility on November 5 and 8, 1976, copies of the at-
: In Ihe event no exceptions are filed as provided by Sec 102.46 of the
RuleIs and Regulalt ins of the National L.abor Relations Board. the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
1(12.48 of the Rules and Regulations. be adopted by the Board and become
its tillditigs, conlclusiosns. and Order, and all objections thereto shall be
deemed waliscNl for a.i1 purposes
820
CASE, INC.
tached notice marked "Appendix B." '3 Copies of said no-
tice on forms provided by the Regional Director for Re-
gion 9, after being signed by Respondent's authorized
agent, shall be posted by it 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. Rea-
sonable steps shall be taken by the Respondent to insure
that these notices are not altered, defaced, or covered b\
other material.
(f) Notify the Regional Director for Region 9. in writ-
ing, within 20 days from the date of this Order. what steps
Respondent has taken to comply with this Order.
B. Respondent Case, Inc., Olive Hill, KentuckN. its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Upper South De-
partment, International Ladies' Garment Workers' Union,
AFL-CIO, herein called Upper South. or any other labor
organization. by discharging employees or otherwise dis-
criminating 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 Ulpper
South Department as the exclusive bargaining representa-
tive of all the employees in the above-described appropri-
ate unit.
(c) Coercively interrogating employees concerning their
and other employees' union activities and desires.
(d) Promising benefits to employees to induce them to
refrain from union activity.
(e) Expressly or impliedly threatening employees with
loss of work should they engage in union activity.
(f) Directing employees to assist it in discouraging union
activities among its other employees.
(g) In any other manner interfering with. restraining. or
coercing its employees in the exercise of rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act:
(a) Upon request, recognize and bargain with the Upper
South Department as the exclusive bargaining representa-
tive of all employees in the aforesaid appropriate unit and,
if an understanding is reached, embody such under-
standing in a written, signed agreement.
(b) Offer to Anita Wilburn immediate and full reinstate-
ment to her former job or. if that job no longer exists. to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges, and make Anita
Wilburn whole for any loss of earnings she may have suf-
fered by reason of the discrimination against her, in the
manner set forth in the section of this Decision entitled
"The Remedy."
(c) Expunge from its personnel records all references to
the warnings of November 5. 9, and 16 issued to Anita
Wilburn.
(d) Post at its Olive Hill, Kentucky. facility copies of the
attached notice marked "Appendix C." 34 Copies of the
Notice, on forms provided by the Regional Director for
Region 9. after being duly signed by Respondent's author-
ized representative, shall be posted by the Respondent im-
mediately upon receipt thereof and be maintained 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 the notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director, in writing, within 20
days from the date of this Order. what steps Respondent
has taken to comply herewith.
In Ihc ccilt thait thi, Order is enfoiced b, a .ludgmenl of a t nltcd
State, (t urt of Appea... the wsords im the nlotice reading "Posted hs (Irder
of tite \t.ltii.l .I Itbo RelitlonI I hlrd" s all read Por.led Iur'ullnin to).
tldliieril of te I I mcd S ette- ( oilt of -\ppcals t:nfrcrl .irln ()rdel of the
Nntll, 11l I abl.) Rclti)n, BoaI.rid
; See fn. 33. rinra
APPENDIX B
Noi I To Espt.os rEis
POSlI ) RY (O)RI)R ()IOf tl
N ,llo)Nt 1 LABOR REI AFIONS BOARD
An Agency of the United States Government
Wti , lll NO lay off employees or transfer work that
belongs in the appropriate unit set out below, or other-
wise discriminate against employees in order to dis-
courage membership in or support of International
L adies' Garment Workers' Union, AFL-CIO, or any
other union.
We wiii Nor warn or threaten employees that we
will close any part or all of our operations, or termi-
nate or deprive any employee of work for joining or
supporting the Union named above or any other
union.
Wfi ,il ,Nor interrogate our employees about their
union activities or those of other employees.
Wit i I Noli refuse to bargain in good faith with the
above-named union about the terms and conditions of
employment in the appropriate unit.
Wt w il Nol change any existing term or condition
or employment of employees in the appropriate unit
set forth below without first notifying the union
named above and giving it an adequate opportunity to
bargain about it.
WF a II N)T in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights under Section 7 of the National Labor Relations
Act.
Wt slll resume our operations at Olive Hill. Ken-
tuckN. unless it is determined by the National Labor
Relations Board that we are unable to secure suitable
facilities for such resumption in or about Olive Hill,
Kentuck, .
Wi will. upon reinstitution and restoration of the
operations previously performed at Olive Hill, Ken-
tucks. offer to the employees laid off by us on Novem-
ber 5 and 8. 1976, immediate and full reinstatement to
their former jobs. or, if those jobs no longer exists, to
substantially equivalent jobs, and wE WIL make each
of them whole for any loss of earnings or benefits suf-
fered by them by reason of the discrimination against
them.
821
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, if it be determined by the National Labor
Relations Board that there is no suitable facility for
our resumption of operations in or near Olive Hill.
Kentucky, make each of the employees referred to
above whole for any loss of earnings suffered by them
by reason of the discrimination against them, until
such time as they secure substantially equivalent em-
ployment elsewhere or permanently leave the labor
market.
WE WILL bargain in good faith with the above-
named Union about the terms and conditions of em-
ployment of employees in the appropriate unit, and if
an agreement is reached which is put in writing, we
will sign that agreement. The appropriate bargaining
unit is:
All production and maintenance employees and
shipping and receiving employees at Gibraltar In-
dustries. Inc., at its Olive Hill, Kentucky, location.
but excluding all truckdrivers, all office clerical em-
ployees. and all guards, professional employees, and
supervisors as defined in the Act.
(GIBRAI iAR INI)I SIRIIS. IN(
822