Colonial Corp. of America

National Labor Relations Board - Board Decisions

Feb 21, 1967

163 N.L.R.B. 51 (N.L.R.B. 1967)

BARNWELL GARMENT CO., INC. 51
work previously performed by the Assistant
Pressmen.
CONCLUSION
Upon consideration of all pertinent factors, we
shall assign the work in dispute to the employees
represented by Local 1.19. They have performed
almost identical work on the Weiss press, for which
the Cadet press is a substitute, for a number of
years. Removing them from this work would cause a
loss of their jobs, whereas the Assistant Pressmen
would not be so affected by an assignment of the
disputed work to the Local 119 flyboys. The
Assistant Pressmen's reliance upon its contract with
the Employer is not persuasive in light of its
continued acquiescence to the work complement on
the Weiss press and the Board's acceptance of the
correctness of that assignment in 146 NLRB 1101. In
addition, we find the Employer's assignment of the
work in dispute to the Local 119 flyboys to be more
economical and more efficient. We therefore assign
the job of assisting the pressmen in the operation of
the Cadet Rotogravure Press, located in the
Employer's printing plant, to those employees
represented by Local 119, but not to that Union or its
members. This determination is limited to the
particular controversy giving rise to this dispute.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the Act and upon the
basis of the foregoing findings and the entire record
in this proceeding, the National Labor Relations
Board makes the following determination of the
dispute.
1. Employees who are represented by New York
Paper Cutters' & Bookbinders' Union No. 119,
International Brotherhood of Bookbinders,
AFL-CIO, are entitled to perform the job of
assisting the pressmen in the operation of the Cadet
Rotogravure Press, which prints can and glass goods
labels at the Employer's Brooklyn, New York, plant.
2. Neither New York Printing Pressmen's Union
No. 51, International Printing Pressmen and
Assistants Union of North America, AFL-CIO, nor
New York Press Assistants' Union No. 23,
International Printing Pressmen and Assistants
Union of North America, AFL. CIO, are entitled, by
means proscribed by Section 8(b)(4)(D) of the Act, to
force or require the Employer to assign the work
described above to members of New York Press
Assistants' Union No. 23 , International Printing
Pressmen and Assistants Union of North America,
AFL-CIO.
3. Within 10 days from the date of this Decision
and Determination of Dispute, New York Printing
Pressmen's Union No . 51, International Printing
Pressmen and Assistants Union of North America,
AFL-CIO, and New York Press Assistants' Union
No. 23, International Printing Pressmen and
Assistants Union of North America, AFL-CIO, shall
notify the Regional Director for Region 29, in
writing, whether or not it will refrain from forcing or
requiring the Employer, by means proscribed by
Section 8 (b)(4)(D), to assign the work in dispute to
members of New York Press Assistants' Union
No. 23, International Printing Pressmen and
Assistants Union of North America , AFL-CIO,
rather than to employees represented by New York
Paper Cutters ' & Bookbinders ' Union No. 119,
International Brotherhood of Bookbinders,
AFL-CIO.
Barnwell Garment Company, Inc., a
Subsidiary of Colonial Corporation of
America and International Ladies' Garment
Workers' Union , AFL-CIO and Elizabeth
Sine, an Individual . Case 26-CA-1941-1,-2.
February 21, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On March 16, 1966, Trial Examiner Thomas F.
Maher issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices
alleged in the complaint and dismissed the
complaint with respect to these allegations.
Thereafter, the Respondent and the General
Counsel filed timely exceptions to the Trial
Examiner's Decision, with supporting briefs. The
General Counsel also filed a motion to reopen the
record for the receipt of additional evidence and
moved that the Board remand the cases to the Trial
Examiner for the purpose of receiving additional
evidence pertaining to the alleged unfair labor
practices which were dismissed by the Trial
Examiner. The Respondent filed an answering brief
and a brief in opposition to the motion. The Board
granted the motion to reopen the hearing and upon
the completion of the reopened hearing, the Trial
Examiner issued a supplemental decision on
September 29, 1966, reaffirming the
recommendations contained in his original
decision,' as set forth in the attached Trial
Examiner's Supplemental Decision. Thereafter, the
General Counsel and Charging Parties filed
exceptions to the Trial Examiner's Supplemental
' Although the evidence obtained in the reopened hearing may
in our opinion be relevant to the issues involved in this case the
findings and conclusions herein are not based upon the evidence
obtained in that hearing , because of the Trial Examiner 's failure
to make credibility determinations as to the testimony.
295-269 0-69- 5 163 NLRB No. 8
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Decision and supporting briefs, and the Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent
herewith.
In 1962 Respondent established its plant in Erin,
Tennessee, after a substantial loan and certain tax
and other advantages were given to it by the County
Quarterly Court, the governing body of Houston
County, Tennessee. At this plant, Respondent
intended to manufacture women's dusters, including
dusters which would retail for $1. It was anticipated
at the time of the initial arrangement that at some
future time larger facilities and an additional loan
would be necessary to permit expanded operations.
In the fall of 1963 the Respondent's officials
requested of the County Court the necessary funds
to build an extension to the plant. However, the
court rejected this request. Following such rejection,
the Respondent advised the court that it had made
arrangements to transfer certain operations
performed in the Erin, Tennessee, plant to another
community, but that it contemplated additional
expansion of the Erin plant in 1964.2 The record also
indicates that at some time in late 1963 the
Respondent put the Erin plant up for sale.
On January 28, 1964, several employees in the
Respondent's Erin plant met with a union
representative at the home of one of them, and, at
this meeting, all of the employees present signed
union authorization cards. Subsequently, several
union meetings were held and a substantial majority
of the employees joined the Union. On February 24 a
representation petition was filed with the Board; on
March 3 and 9, respectively, the Respondent and the
Union executed a stipulation for certification upon
consent election; and on March 20 the election was
held pursuant thereto and the Union won by a vote of
108 to 46. On March 30 the Regional Director
certified the Union as the employees' bargaining
representative at the Erin, Tennessee, plant.
Three days after the Union's first meeting, the
Respondent's Vice President Friedman assembled
the employees at the plant and made a speech in
which he advised the employees that the plant had
been put up for sale because the Company's request
for a loan for additional expansion had been refused
by the Court.
During the organizing campaign, the plant
manager interrogated one of the employees at the
plant about the "union mess." Also, one of the
foremen asked an employee if he had signed a union
card and advised the employee that the Company
had a list of the employees who signed union cards
and a list of the leaders of the Union and that they
were "all going out the door and would not be
coming back." The same foreman also informed
another employee that if the Union were to organize
the plant, there was a likelihood that the employees
would "lose their jobs" and that the Company could
hold on to the building for 10 years or more.
Similarly, a supervisor told an employee that if the
Union were successful, the employees would be
cutting their own throats.
Several days before the election the plant
manager asked an employee if she had made up her
mind about the Union. When she replied that she
was in favor of it, he told her that if he could get her
to change her mind, he believed he could "save" 20
to 25 more girls by getting them to vote against the
Union.
In addition, the record indicates that one of the
Respondent's supervisors spied on a union meeting
held at one of the employee's homes during the
organizing campaign, and during the meeting a
supervisor's wife, who was also the plant manager's
secretary, telephoned the home of the employee
where the meeting was held and inquired who was
present at the meeting at that time.
During this period, on a day that most of the
employees wore union buttons to work, the plant
manager and company engineer walked up and
down the aisles of the plant with clipboards
containing a list of all employees in the plant,) and
stopped at each of the employees who was wearing a
union button and placed a check after his name.
Similarly, in the cutting room a foreman walked from
worker to worker checking off the names of
employees wearing such buttons. On the basis of all
this evidence, the Trial Examiner found that "no
sooner had the Union begun its organizing campaign
... than Respondent's supervisors and its plant
manager commenced a campaign ... to deter the
unionization of the plant."3 We agree with this
finding.
Shortly after the Union's election victory, the
Company advised the Union that it intended to lay
2 The Respondent 's Vice President Friedman advised the
Chairman of the County Court by letter in December 1963 that the
Company had "concluded negotiations with another community
where training operations will shortly be established while the
building is being constructed as in the case of Erin. Considering
the pace of our growth it is entirely likely, however, that another
request for additional space in Erin may be submitted to the court
sometime in mid 1964."
3 However, the Trial Examiner considered evidence of the
Respondent's conduct during this period only as background
evidence of Respondent' s union animus in assessing the nature of
the alleged unlawful conduct, since it occurred poor to the 6-
month period immediately preceding the date of the filing of the
first charge
BARNWELL GARMENT CO., INC.
off a large number of the employees in the Erin
plant, and after meeting on several occasions with
the union representative about the method of
implementing the layoff, the Company laid off
approximately one-half of the plant employees on the
day after the Union was certified.
The Trial Examiner found that this layoff was
dictated by economic considerations and dismissed
the allegations of the complaint alleging that the
layoff constituted unlawful discrimination.
Essentially, the Trial Examiner found that in
December 1963, before any organizational activity
occurred, the Respondent made a decision to sell its
plant and to reduce its operations because its
request for funds to expand the plant had been
rejected by the County Quarterly Court, and that the
layoff was a direct consequence of the December
1963 decision and was not connected with the union
organizational activities of the employees in the
plant. Although the Respondent introduced
substantial evidence pertaining to the economic
justification for the layoff, the Trial Examiner did not
consider this evidence, because of his view that the
layoff was caused by the Respondent's "final
decision to sell the plant," which occurred prior to
the union activity. However, contrary to the
conclusions of the Trial Examiner, the Respondent
contended that the layoff resulted from several
economic factors; namely, the large inventories
which had accumulated early in 1964, the failure of
the plant to produce a profit, and the County Court's
refusal to grant the expansion loan.
In our opinion, the record does not contain
substantial support for the Trial Examiner's
conclusion that Respondent made a final decision to
sell its plant after the court's rejection of its request
for further loan assistance, and that the layoff was
the direct consequence of such decision. Vice
President Friedman testified that the plant was
offered for sale sometime late in 1963; he could not,
however, recall whether this action was taken prior
to or after the court's rejection of his request.
Friedman's testimony was the only evidence offered
on this point, and, despite efforts by counsel for the
General Counsel to have Friedman set the date of
the initial offering of the plant for sale with more
exactitude, Friedman did not do so. In view of the
importance of the date of this action in determining
whether the curtailment of operations involved
herein resulted from the court's decision and the
failure of the Respondent to introduce records to
support Friedman's testimony, we find that the
record does not permit a finding that the plant was
offered for sale as a result of the court's rejection of
the Respondent's request for additional loans.
We find further that the fact that the plant was
offered for sale does not support a conclusion that
Respondent had decided, prior to the union
organizational campaign, to cease, or curtail, its
operations in Erin. Indeed other evidence in the
record demonstrates that this was not so. In Vice
President Friedman's letter in December 1963 to
53
Judge Knott of the County Quarterly Court advising
the court that Respondent had arranged to transfer
certain of the plant's duster production to another
community, Friedman stated that it was "entirely
likely" that "another request for additional space in
Erin may be submitted to the Court sometime in mid
1964." This statement, together with the fact that
the plant has not been sold and is still in operation,
refutes the Trial Examiner's finding that a final
decision to sell the plant was made in late 1963 and
that the layoff which followed several months
thereafter was the result of such a decision.
The Trial Examiner also found that after the
expansion loan was denied by the court, the
Company curtailed production by terminating the
dollar-duster operation at the Erin plant and
substituting the production of intermediate priced
dusters. However, the record indicates, and the
Respondent admits, that this production change
occurred before the court's denial of additional loans
to the Respondent. If fact, the plant began producing
intermediate priced quilted dusters early in 1963,
and the dollar-duster operation was terminated in
November 1963, before the court even considered
the request for the expansion loan. Thus, there does
not appear to be any record support for the Trial
Examiner's finding that the decision to curtail the
dollar-duster operations was caused by the court's
rejection of the expansion loan request.
As indicated, Respondent has not relied solely on
the contention that the reduction in operations was
the direct result of a decision to sell the plant made
as the result of the court's rejection of its request for
an expansion loan. It relies on two additional
economic grounds, increase of inventories and
general unprofitability of its operations, due in part
to the fact that its efforts to expand were seemingly
frustrated.
Although the record indicates that the inventory at
the Respondent's plant did increase during the first
quarter of 1964, the record indicates that surpluses
in the Respondent's inventories were not uncommon
and there is no evidence that similar inventory
increases which occurred prior to the advent of the
Union required substantial curtailment of
production and the layoff of substantial numbers of
employees. Also, at the same time that the Erin
plant's inventory was alleged to have reached a
critical stage occasioning the mass layoff, the duster
inventory at another of the Respondent's plants, the
Davan plant, had increased even more substantially
than the inventory at the Erin plant without a layoff.
Not only were there inventory increases at the
Respondent's other plants, but, in addition, the
Respondent contemporaneously began to increase
the contracting out of duster production and the
number of dusters imported from foreign countries
to meet its sales demands. The record indicates that
the number of dusters thus contracted out and
imported in effect compensated for the curtailed
production at the Erin plant after the layoff. These
factors, in our opinion, refute the Respondent's
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
argument that the immediate cause of the layoff was
the "crisis situation" caused by the inventory
surplus.
With respect to the Respondent's second
contention that the plant was not producing a profit,
the Respondent's own books and records clearly
refute this contention, since they indicate that the
plant was making a profit at all times during the
period in question. To explain away the inferences
naturally reached from a review of the Respondent's
records, the Respondent's accounting officer
testified that he manipulated the books in order for
them to show a profit. However, no evidence was
ever introduced showing the amount of loss actually
suffered by the Respondent, and there is no
indication in the record that such records are
available, or that such losses in fact occurred.
Additionally, the Respondent's Federal income tax
returns showed similar profits and support the
conclusion that the Erin plant was making a profit
during this period. Also, contrary to the
Respondent's contention at the hearing, Vice
President Friedman indicated to the County Court,
when requesting the expansion loan in late 1963, that
the plant had been "very profitable." Shortly
thereafter, the plant manager in a speech to the
assembled employees at the plant stated that the
Company had made a profit in 1963, and that it
expected larger profits in 1964.
Although it may be true that the Erin plant would
have been more profitable had it been permitted to
expand, in our opinion, the evidence in the record
contradicts the conclusion that because the
expansion loan was refused, the plant was unable to
make a profit, and that its inventories had reached
such a critical stage that it became necessary to lay
off half of the employees at the plant.
Similarly, although the record does indicate that
dollar dusters were produced at the Erin plant in
1963 and that the operation was terminated in
November 1963, the evidence does not support the
Respondent's contention that the dollar-duster
operation was unprofitable. In any event, it appears
that the plant was a profitable operation,
manufacturing a variety of ladies housecoats
(dusters) during that year.
In view of the foregoing, in our opinion, the
Respondent has failed to substantiate its claim that
the layoff was based upon economic considerations.
Absent such economic considerations and in view of
the Respondent's coercive and antiunion conduct
during the organizational campaign, including
threats of job loss and the timing of the layoff
immediately after the certification of the Union, we
find that the Respondent's decision to lay off the
employees employed at its Erin, Tennessee, plant,
and listed in the Appendix, was motivated by the
In addition, we affirm the Trial Examiner 's conclusion that
the Respondent, by interrogating employee Rushing, assuring him
of continual employment if he forsook the Union, and terminating
union activity of the employees and thereby violated
Section 8(a)(3) and (1) of the Act.4
THE REMEDY
Having found that the Respondent had engaged in
and is engaging in unfair labor practices in violation
of Section 8(a)(3) and (1), we shall order the
Respondent to cease and desist therefrom and take
affirmative action necessary to effectuate the
policies of the Act.
Unlike the Trial Examiner, we have found that the
layoff on April 1, 1964, at the Respondent's Erin,
Tennessee, plant was discriminatorily motivated,
and, therefore, we shall order the Respondent to
offer all of the employees laid off on that date
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice
to their seniority and other rights and privileges, and
we shall order the Respondent to make whole these
employees for any loss of earnings they may have
suffered by reason of the discrimination against
them, with interest at 6 percent, computed in the
manner and amount prescribed in Isis Plumbing &
Heating Co., 138 NLRB 716, 717-721.
In view of the nature of the unfair labor practices
committed, and in view of the substantial
background evidence of the Respondent 's animus
towards the union, in order to prevent the
commission of other unfair labor practices, we shall
order that the Respondent cease and desist from
infringing in any manner upon the rights guaranteed
in Section 7 of the Act.
CONCLUSION OF LAW
Upon the basis of the foregoing findings of fact
and the entire record in this case, we hereby amend
the Trial Examiner's conclusions concerning the
discriminatory layoffs, and make the following
Conclusion of Law:
By laying off half of the employees at its Erin,
Tennessee, plant immediately after the certification
of the employees' representative, and following a
substantial antiunion campaign including threats of
job loss, surveillance of union meetings, and other
coercive conduct, the Respondent has discriminated
with respect to the hire and tenure of employment of
these employees to discourage membership in the
Union in violation of the provisions of Section 8(a)(3)
and (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Barnwell Garment Company, Inc., a subsidiary of
him when he failed to do so, interfered with Rushing 's exercise of
his statutory rights as well as the exercise of such rights by other
employees.
BARNWELL GARMENT CO., INC.
Colonial Corporation of America , its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Discriminating against any employee in regard
to his or her hire or other tenure and condition of
employment to discourage membership in the
International Ladies' Garment Workers ' Union,
AFL-CIO, or any other labor organization , by laying
off, discharging , or otherwise terminating or
interrupting his or her employment.
(b) Unlawfully interrogating employees
concerning their union membership , activities, or
desires.
(c) Promising employees continued employment
provided they resign their membership from the
International Ladies' Garment Workers ' Union,
AFL-CIO, or any other labor organization.
(d) In any other manner interfering with,
restraining , or coercing its employees in the exercise
of rights guaranteed them by Section 7 of the
National Labor Relations Act.
2. Take the following affirmative action, which
the Board finds will effectuate the policies of the
Act:
(a) Offer to the employees laid off on April 1,
1964 ,5 and those additional employees similarly laid
off on April 1 or 10 , 1964 , whose names will be
determined during the compliance proceedings in
this case , immediate and full reinstatement to their
former or substantially equivalent positions , without
prejudice to their seniority or other rights and
privileges previously enjoyed , and make them whole
for any loss of earnings they may have suffered by
reason of the discriminations against them, in the
manner set forth in the section of this Decision
herein entitled "The Remedy."
(b) Preserve and, upon request , make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports , and all
other records necessary to determine the amount of
backpay due under the terms of this Order.
(c) Notify the employees laid off on April 1, 1964,
if any are presently serving in the Armed Forces of
the United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended , after discharge from the
Armed Forces.
(d) Post at its plant in Erin, Tennessee, copies of
the attached notice marked "Appendix ." Copies of
said notice , to be furnished by the Regional Director
for Region 26, after having been duly signed by
Respondent 's representative , 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.
Reasonalble steps shall be taken by Respondent to
insure that said notices are not altered , defaced, or
covered by any other material.
55
(e) Notify the Regional Director for Region 26, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
5 See Appendix
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT discriminate against employees
in regard to their hire or other tenure and
condition of employment to discourage
membership in the International Ladies'
Garment Workers' Union, AFL-CIO, or any
other labor organization, by laying off,
discharging, or otherwise terminating or
interrupting their employment.
WE WILL NOT unlawfully interrogate
employees concerning their union membership,
activities, or desires.
WE WILL NOT promise employees continued
employment provided they resign their
membership from the International Ladies'
Garment Workers' Union, AFL-CIO, or any
other labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce any of our employees in
the exercise of rights guaranteed them by
Section 7 of the National Labor Relations Act,
as amended.
WE WILL offer to the following employees,
who were laid off on April 1, 1964, immediate
and full reinstatement to their former or
substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges previously enjoyed, and make them
whole for any loss of earnings they may have
suffered by reason of the discrimination against
them:
Lois Agy
Relda Adkins
Bobby Alsobrooks
Mai Belle Alsobrooks
Dorothy Barnes
Mary Lou Bratschi
Ronnie Bratschi
Frances Brewer
Mary Alice Brooks
Joe Butler
Maxine Cable
Bettye Cathey
Judy Childress
Bonnie Jean Clark
J.C. Clark
Rosie Claxton
Myra Coakley
Orville Dennis
Anne Ferrell
Nora Garrett
Norma Gentry
Dorothy Hamilton
Shirley Haneline
Mary Jo Harper
Frances Harvey
Gladys Hearndon
Steward Larry Hearndon
Ethel Mae Hegler
Helen Hodges
Bonnie Howell
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Georgia Howell
Elizabeth Sine
Jean Sterling
Shelia Westerman
Joe Butler
Mennie Hutton
Cairllon Moore Kilgore
Helen Knight
Thelma Largent
Bettye Jo Lewis
Jane Lewis
Glenda Loerch
Jean Manners
Lecil Markins
Alfred Mathis
Bettye Lou McClain
Bernice Moore
Juanita Moore
Bruce Musser
Audrey Naylor
Elizabeth Newman
Wilma Nichols
Irene Parchman
Esther Pernell
Mary Paulene Phillips
Virginia Phillips
Bettye Jo Pulley
Ethleen Rainwaters
Ed Reynolds
Rita Ross
Barbara Rushing
Marvin Rushing
Ray Rushing
Beatrice Satterfield
Terry Scholes
Ruby Simmons
Diana Stringfield
Rosa Tanner
Watson Thomas
Nancy Coakley
and those additional employees laid off on April 1 or
10, 1964, whose names will be determined during the
compliance proceedings in this case.
BARNWELL GARMENT
COMPANY, INC., A
SUBSIDIARY OF COLONIAL
CORPORATION OF
AMERICA
(Employer)
Dated By
(Representative) (Title)
Note: We will notify the above-named employees
if presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 746 Federal Office Building, 167 North Main
Street, Memphis, Tennessee 38103, Telephone
534-3161.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER , Trial Examiner: Upon charges and
amendments thereto filed on September 28 and
November 24 and 25, 1964, by International Ladies'
Garment Workers ' Union , AFL-CIO , herein referred to as
the Union , and by Elizabeth Sine, Charging Parties herein,
the Regional Director for Region 26 of the National Labor
Relations Board , herein called the Board, issued a
complaint on behalf of the General Counsel of the Board
on November 25, 1964, alleging violations of Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended
(29 U.S.C. Sec. 151, et seq. ), herein called the Act. In its
duly filed answer Respondent, while ajmitting certain
allegations of the complaint, denied the commission of any
unfair labor practices. Pursuant to appropriate notice,
hearings were held before me on February 1, 1965, in Erin,
Tennessee; on March 24, 1965, in Clarksville, Tennessee;
and on September 21, 1965, in Washington, D.C. All
parties were represented by counsel and afforded full
opportunity to be heard, to present oral argument, and to
file briefs with me. Briefs were filed on November 1, 1965.
Upon consideration of the entire record, including the
briefs filed with me, and upon my own observation of each
witness appearing before me, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
Respondent is a wholly owned subsidiary of Colonial
Corporation of America, a holding company incorporated
in the State of New York and owning 36 subsidiary
companies which operate plants located in Tennessee,
South Carolina, North Carolina, and the West Indies,
including Respondent's plant at Erin, Tennessee, a plant
operated by Allendale Garment Company and another by
the Davan Company, both at Allendale, South Carolina.
Respondent annually, in the course and conduct of its
business, purchased and received at its Erin, Tennessee,
plant materials and products valued in excess of $50,000
directly from points outside the State of Tennessee, and
during the same annual period manufactured, sold, and
shipped from its Erin, Tennessee, plant products valued in
excess of $50,000 directly to points outside the State of
Tennessee. It is admitted and upon the foregoing I
conclude and find that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
It. THE LABOR ORGANIZATION INVOLVED
It is admitted and I conclude and find that International
Ladies' Garment Workers' Union, AFL-CIO , is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ISSUES
1. Absence of evidence of antiunion motivation for
economic decisions.
2. Interrogation and subsequent termination as
interference, restraint, and coercion.
3. Preferential hiring list to insure proper future
rehiring.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Plant's Economic Situation
The Respondent established its plant in Erin,
Tennessee, in 1962 on the basis of financial arrangements
made with the local community whereby a substantial loan
was given to the Company and certain tax and other
advantages made available to it in exchange, as it were, for
the opportunity provided for expanding the local economy.
In this instance the agreement was made with the County
BARNWELL GARMENT CO., INC.
Quarterly Court, the governing body of Houston County,
Tennessee. When made it was Respondent's plan,
according to its Vice President Leonard Friedman, to
utilize the newly established facilities to manufacture a
woman's outer garment known as a duster' that would sell
at retail for $1.2 Expansion of the plant was anticipated at
the time of the original agreement, having in mind that
initially only a limited number of employees would be
available for training and useful production, approximately
250 to 300. But in keeping with the volume necessary to
profitably manufacture the cheap item planned, it was
anticipated and appears to have been understood at the
time that larger facilities and a further loan would be
necessary. Accordingly, in the fall of 1963 Respondent's
officials returned to the County Court and requested the
necessary funds to build an extension to the plant. The
court rejected the Company's request.
There is some question in the record and the briefs as to
exactly when in the fall of 1963 this meeting and the
court's rejection took place. Thus, Vice President
Fnedman testified that the meeting took place sometime
in October or November 1963, and Arlie Sine, a member of
the court itself, testified when called as a witness by the
General Counsel that the meeting was on December 13. A
letter dated December 10, 1963, addressed to Judge
William Knott from Vice President Friedman, offered in
evidence by General Counsel, serves only to complicate
the fixing of the meeting date, for in this letter Friedman
expressed to Judge Knott his feelings with respect to
the unfavorable decision of • the court taken "on
December 14th," a date 4 days later than the letter itself.
Obviously, if the letter is dated correctly, and the General
Counsel in offering it suggested nothing to the contrary,
then the meeting occurred at least before its date,
December 10. To the same point Judge Sine would appear
to be in error in fixing the date as December 13. Suffice it
to say, the meeting with the court can unquestionably be
fixed in late November or early December 1963, well in
advance, incidentally, of the Union's first appearance in
late January 1964.
Following the court's refusal to accommodate
Respondent's expansion plans, arrangements were made
to expand elsewhere. Thus in the same letter referred to
above (General Counsel's Exhibit 3) Friedman informed
Judge Knott of the County Court that "we have concluded
negotiations with another community where training
operations will shortly be established while the building is
being constructed as in the case of Erin." In this context,
then, Respondent determined to relocate its manufacture
of low priced dusters and to curtail its operations at Erin.
Accordingly, by December 18, 1963, it had determined to
dispose of the Erin plant and had already engaged a broker
who reported progress to Friedman on December 18. Thus
a Mr. Gerald Hoffman of The Manufacturers and
Contractors Service, Incorporated, wrote:
I am advising you that we are, negotiating with Louis
Hand, Incorporated, of New York-and Fall River,
Massachusetts, in connection with your plant in Erin.
We will be in touch with you further on this.
Also referred to as a housecoat or muu-muu.
i The undemed testimony of Vice President Fnedman.
3 Cf. Angwell Curtain Company, Inc. v. N.L.R.B , 192 F 2d 899,
903 (C.A 7), Texas Industries, Inc., 156 NLRB 423, Wiese Plow
WeldingCo, Inc., 123 NLRB 616.
57
There is no direct evidence in the record to the effect
that Respondent's employees became immediately aware
of the decision affecting their plant. Certain
circumstances would suggest, however, that this
information was known. Thus it happens Arlie Sine, a
witness called by the General Counsel, was a member of
the County Court which refused the Respondent's
expansion request and was also the husband of Elizabeth
Sine, a Charging Party in this proceeding and the leader
among the Respondent's employees in bringing in the
Union. Under such circumstances, it is reasonable to
conclude that after early December 1963 the information
concerning Respondent's misfortunes, never claimed to
have been concealed or confidential, was conveyed by
Sine to his wife and ultimately to the other employees.
Moreover, the Respondent's plant is a small one,
employing approximately 200 at that time, and Erin,
Tennessee, is a rural community and county seat with a
total population of less than 1,000. It is not unreasonable to
infer, and I do infer, that in a relatively small plant in small
community news of such economic significance would
come quickly to the attention of the people most directly
concerned-Respondent's employees.3
At the time, however, Respondent does not appear to
have been completely frank with its employees concerning
the future. Thus following the completion of a large order
around Christmastime 1963 the then plant manager,
Milledge Herlong, called the cutting department
employees together, complimented them on the fine job
they had just turned in, and, according to employee
Virginia Phillips, told them that they "had made a profit,
that business conditions were better and that it was hoped
they would even improve during the next year." Herlong's
account of this speech indicates that it was in the nature of
a "pep talk" resulting from a good job recently completed,
with no reference to profits, but rather to "progress." I
find it unnecessary to resolve which word was used,
finding merely that this was a pep talk, and, however ill
timed in view of pending economics, it had no relation to
company plans to curtail its operations in Erin."
On January 31, 1964, Respondent through its Vice
President Friedman made its first official announcement
of the community's loan refusal and the Company's
retrenchment plans. Thus employee Relda Adkins
credibly described the speech:
He said that there were outsiders who were not
satisfied with this company and that with the
conditions, and if the people were not satisfied with
the company they were not satisfied with him, and he
said the community of Houston County had not lived
up to their contract on the plant, and he gave statistics
of other plants that were opened about the time of
Barnwell and how they got their extensions, and he
said that Houston County was not going to let them
have the $95,000 extention that they asked for. He
said they didn't have enough room and that they had
to have more room, and they were not making a profit
in this company, or in this plant, and they had to make
a profit, and he said that if we were not satisfied with
' "There no doubt are many reasons why an employer might
delay giving notice to his employees of a foreseeable reduction in
force-one that comes readily to mind being the fact that such
information might cause his employees to seek jobs elsewhere
before the employer was ready to give up their services."
Ltndsey's, 156 NLRB 1114, fn. 1
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him that they were not satisfied with us, and if we
were not satisfied with them they would leave.
And in corroboration, employee Virginia Phillips credibly
stated,
Well, he brought the mayor of Erin with him and he
was telling how they had asked for an extension on the
building and didn't get it and that Houston County
hadn't lived up to their contract, or to their promises
and that they could not operate under a loss, and said
that if Houston County didn't want them that they
didn't want Houston County, and said that they had
put the factory up for auction to sell. He even read
some of the advertisements, I guess, that they had put
in the trade paper.
Thus, employee Phillips also corroborates Friedman's
testimony quoted above to the effect that the Company not
only was refused its request for more funds but that it had
already put the plant up for sale.
B. The Advent of the Union
Shortly before Friedman's January 31 speech
employees, under the leadership of Elizabeth Sine,
displayed their first interest in bringing in a union . To this
end employee Sine, in the company of her husband, met
with Union Representative Richard Niermann in
Nashville, and several days thereafter on the evening of
January 28, a meeting , attended by Niermann, was held
with a number of the employees at the Sine home.
Employee Adkins, who testified credibly as to the contents
of Friedman's first speech, as well as to other incidents,
was not among this original group. Indeed she stated that
as of then not only had she not become interested in the
Union but had not even heard of it.
As a consequence of the initial union meeting and the
considerable subsequent meetings held thereafter, a
substantial, majority of the employees joined the Union. A
general organizing meeting of employees was held by the
Union on February 24 at the Houston County Courthouse.
Union buttons were distributed to those attending the
meeting and were prominently displayed by them on their
persons when they appeared at work on the following day
and thereafter. Indeed, it is undisputed that a considerable
majority of the employees wore these buttons.
Meanwhile the organizing campaign had progressed to
the filing of a representation petition with the Board in
Case 26-RC-2134, on February 24. Thereafter
Respondent and the Union, on March 3 and 9, respectively,
executed a stipulation for certification upon consent
election, and in the election held pursuant thereto on
March 20 the Union won by a vote of 108 to 46. It was
thereafter certified by the Regional Director as the
employees' bargaining representative on March 30.
C. Work Curtailment Program
Following Respondent's decision in December 1963 to
put the Erin plant on the market, steps were taken to
revise the Company's production schedules. Because it
was determined that the dollar duster could only be
manufactured profitably on a volume basis, and this was
made impossible by the Company's inability to expand its
'More expensive dusters were produced at Respondent's
Davan plant in Allendale, South Carolina.
8 Employee Phillips credibly testified that the first of
Friedman's three speeches, the one on January 31, contained no
facilities, production of this item was abandoned and the
production of an intermediate priced duster ($1.85) was
commenced.5 Thus, in this late 1963-early 1964 period
when the decision to curtail had been made, dollar dusters
continued in production only while the material was still
available from stock on hand, and they have not since
been produced either at Erin or elsewhere.
There appears to be some discrepancy between the
testimony of Vice President Friedman concerning the
foregoing facts and the production records in evidence.
Thus it would appear that during the period in question a
duster was also being produced of quilted material at Erin
to sell in a higher price range. The schedule of duster
production discloses that this quilted material was
introduced in June 1963 and was substantially abandoned
at the year's end. During the intervening period, in relation
to dollar dusters the quilted items appear to have been
produced at a maximum monthly ratio of 3 to 4 in August
1963 to a minimum of 1 to 50 in January 1964. Be this as it
may I am not disposed to speculate upon the inner
workings of Respondent's production plans at a time when
union considerations were nonexistent. Suffice it to say
the dollar duster has been shown by both records and
testimony to have been the principal production item of
the plant at all of the critical times herein and that the
testimony is undisputed that it could not have been
produced profitably except on a larger volume basis.
It was in this posture of operations that Respondent
learned of the Union's interest in its employees. At this
time Vice President Friedman did two things of
significance to issues present here. He gave speeches to
his employees, one on March 13 and the other on
March 19, in which he admittedly alluded to the
unionization of the plant (infra, IV, D, 2);6 and he
consulted with his attorney, Harwood, concerning the
Union's arrival and its effect upon the Company's plans to
curtail the Erin operations. As a result of this conference
and to avoid any suggestion that curtailment was related to
the Union's presence Friedman, upon Harwood's
instructions, refrained from putting into effect any of the
employee layoffs that the lessened production would
normally have required and which initially had been
planned. Instead, and again at Harwood's suggestion, he
instituted a 3-day workweek beginning late in February
1964.7
Having thus adjusted its retrenchment program to avoid
any appearance of reprisal during the Union's organizing
campaign the Respondent continued the 3-day workweek
until the election was over. At that time Friedman
reviewed the situation with his attorney and it was then
decided that a meeting be sought with representatives of
the newly elected Union. Such a meeting was held at
Respondent's request at the Anchor Motel in Nashville, on
or about March 27 or 28, with Union Representative
Niermann and another unidentified union representative
present together with Friedman, Stringer, Blatteis, and
Attorney Harwood representing the Company. At this
meeting Friedman explained to Niermann that the
Company had been affected by the economic problems
discussed above and that as a result it had been " limping
along" on a 3-day week. He suggested to Niermann that
they continue the same amount of working hours but
reference to the Union and occurred before she had heard of any
union activity.
' The foregoing is a synthesis of the credited and undenied
testimony of Vice President Friedman and Attorney Harwood.
BARNWELL GARMENT CO., INC.
reduce the work force to provide full employment for those
whom they would retain. In this way, it was believed, the
plant could be run more efficiently and there would be less
likelihood of losing employees. Niermann at that time
agreed with the general premise advanced by Friedman
and the meeting ended on a note of exploring possible
layoff formulas that could be agreed upon at a future
meeting.' The next meeting was held at the same place on
March 31, with employees J.C. Clark, Riley, and Musser
accompanying Union Representative Niermann.
According to eml;loyee Clark, whom I credit, Harwood,
speaking for the Company, opened the meeting by asking
Niermann if the Union had any counterproposals with
reference to the selection of employees for layoff.
Niermann's reply was that inasmuch as the Union had no
contract with the Company he would not agree or disagree
with anything having to do with the layoff. Attorney
Harwood credibly testified in corroboration of Clark's
account of this meeting. Thus when Niermann was asked
"if he had any alternative suggestions or any other ideas to
put forth with reference to selecting these employee," he
was quoted as replying: "I don't think that's our business.
I think that's your business and we are not going to
participate in it."9 Whereupon Harwood advised
Friedman, who was present, to proceed with the layoff in
accordance with the layoff formula he had previously
submitted to the Union. On the following day, April 1,
layoff slips, stating as the reason therefore "Lack of
Work," were given to approximately 70 of Respondent's
employees, as well as to an unidentified number of its
supervisors, including Robert Turner. None of these have
since been reemployed except, in the case of one
employee, Rushing, as a subsequent replacement for one
of the employees who had survived the layoff and
thereafter took leave.
D. Background of A((egec( ITmp(oyer Animus Towards the
Union
In support of his contention that the April 1 layoff was
discriminatorily motivated counsel for the General
Counsel adduced considerable testimony relating to
conduct of Respondent's officials and supervisors between
mid-February and the date of the layoff. Occurring as it
did during a period prior to the 6-month period
immediately preceding September 28, 1965, the date of
the filing of the first charge in this proceeding, this
conduct is clearly not to be deemed evidence of any
misconduct under the Act,10 and counsel made no
suggestion that it was so intended. The evidence is of
59
significance , therefore , only as background in assessing
the nature of allegedly unlawful conduct which occurred
after March 28 . 11 Such findings as I make with respect to
this pre-March 28 evidence will be made, therefore, with
this limitation in mind. But so that the proper perspective
be maintained it should be noted at this point that the
background evidence presented herein relates to incidents
which occurred after Respondent had been refused funds
to expand its plant facilities and had placed the plant on
the market for sale; which events, it has already been
found , occurred prior to the advent of the Union.
1. Activities of supervisors
No sooner had the Union begun its organizing campaign
in early February 1964 than Respondent's supervisors and
its plant manager commenced a campaign to their own
calculated to deter the unionization of the plant.
On the evening of February 19, a union meeting was
held at the home of employee Adkins and a considerable
number of cars were parked on the adjoining street. As the
meeting progressed, but while Adkins was awaiting the
arrival of several latecomers, she observed Supervisor
Robert Turner, who has since been laid off (supra) , drive
up the street and back again at least three times, each time
slowly passing the Adkins' home. Turner resides on the
opposite side of town. Thereafter, and while the meeting
was still in progress, Turner's wife, who was then Plant
Manager Herlong's secretary, telephoned the Adkins'
home six or more times, each time inquiring who was
present at the meeting then in session.
Following a general meeting of union members at the
courthouse on February 25, union buttons were
distributed and were first worn by employees at work on
the next day, February 26. On this occasion Plant Manager
Herlong and James McNeely, a production engineer and
presently Herlong's successor as plant manager, went
about the plant with clipboards in hand, and stopping close
by employees who were wearing union buttons would
make notations on their record sheets.12 Shortly thereafter
Herlong walked up to Cutting Room Foreman Crews and
was heard by employee Rushing to ask him "how many in
your department are wearing buttons," to which Crews
replied, "99 percent." Thereafter Crews told Rushing he
thought the employees "looked rather ignorant, foolish, to
have such a thing on. "13
During this same period Crews, Herlong, and Head
Mechanic Richardson 14 indulged in activities and
conversations of like character.
8 The details of this first meeting is a synthesis of the credited,
undemed, and mutually corroborative testimony of Fnedman and
Attorney Harwood . Union Representative Niermann was not
called as a witness and the statements attributed to him stand
undemed
0 Vice President Fnedman also testified without contradiciton
that at one of the two meetings , in the course of discussing the
Company's economic situation at the Erin plant, he invited the
union representatives to seek out contract work and bung it into
the plant.
10 Section 10(b)
ii Local Lodge No 1424 , International Association of
Machinists, AFL-CIO (Bryan Mfg. Co) v N.L.R.B., 362 U.S. 411.
iz The testimony of employees Phillips and Rushing, which I
credit. I do not rely on employee Sine's testimony to the same
effect Plant Manager Herlong was not questioned concerning
these incidents involving union buttons and I do not credit
McNeely's explanation to the effect that he was merely making
his routine timestudies.
13 Crews was not questioned concerning this incident , but was
asked if he knew who or how many employees had worn buttons,
to which he denied any knowledge For reasons discussed in
detail hereafter (infra, fn 15), 1 do not credit Crews' testimony.
14 There is some question whether McNeely, when employed as
engineer, and Head Mechanic Richardson were supervisors As it
has been established by documentary evidence that McNeely was
empowered to issue and sign as "Foreman or Supervisor" a slip
known as an "Employee Warning Notice" whereupon possible
disciplinary action was recorded , albeit such slip was shown to
have been initialed by the plant superintendent , I would conclude
and find that insofar as his relations with employees are
concerned he was held out as a supervisor or representative of
management , and was so considered by the employees
As the credible testimony of employee Clark establishes,
contrary to Vice President Friedman's explanations which I do
not accept, that Richardson , although hourly paid and performing
like work, assigned jobs to the other two mechanics , and granted
them permission to take time off, I would find him to be a
supervisor within the meaning of the Act Cf. Brimingham
Fabricating Company, 140 NLRB 640
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Previously on or about February 1 Herlong had called
employee Clark to his office and in the course of the
conversation which followed asked him "what about this
union mess ." When Clark said that he "wasn't talking,"
Herlong replied that if he did say anything "it had better
be the right thing."15 Shortly thereafter Foreman Crews
asked employee Rushing if he had signed a union card.
When Rushing refused to discuss the subject with him
Crews told him he had a list of those who had signed cards
and that the leaders were "all going out the door and
wouldn't be coming back."
Crews had a similar conversation with employee
Phillips a month later, asking her what she "thought of this
mess that was going on." When Phillips said she did not
know what to think, he replied that if the Union were to
organize all the Company's factories something might be
gained but this would not be so "on this little factory," and
there was a likelihood that employees would lose their jobs
and the Company could hold on to the building for 10 or
more years. Shortly before the election was held on
March 20, Crews, in the process of directing the
employees to go to the polling place, called them together
in a, group and, according to employee Rushing, stated,
"We know we have lost the election, but what we can do
now is stall . You all may have a union ,-but a union won't
save all of you all after the election." Then when an
employee suggested that he would have to have a good
reason "to throw a man out because he was a union
member," Crews replied he could find a reason any time
he wanted to get rid of any employee he wanted to,
regardless of the Union.16
Meanwhile, in mid-March Head Mechanic Richardson
stated to employee Clark with whom he worked that if the
Union came in the employees would be cutting their
throats, the Company having moved from Barnwell, South
Carolina, to Erin because of the Union. 17
Finally several days before the election, as Herlong was
helping employee Phillips who was then engaged in a
packaging operation, he asked her if she had made up her
mind regarding "the situation" referring to the Union.
When Phillips explained her position in favor of the Union,
Herlong replied that if he could persuade her to vote
against it then 20 or 25 girls would follow her lead.
2. Vice President Friedman's speeches
In addition to the speech which Friedman made in late
January and which contained no reference to the Union
(supra), he made two speeches thereafter which did
contain such references. The first of the latter two was
delivered on March 13. It was tape recorded and
thereafter transcribed, a copy appearing in the record. The
following is the March 13 speech based upon the
transcription which I credit:
'S Relying as I do on Clark's credited testimony, I accordingly
reject Herlong's denial of this statement attributed to him.
16 The foregoing is the credited testimony of employees Phillips
and Rushing. I do not credit Crews' denial of the statements
attributed to him I have observed him as a witness and
considered his testimony to the effect that he had little if any
personal contact or connection with the employees. The
improbability of such a situation is a factor in persuading me not
to rely upon his testimony generally. Nor do I rely on any of the
prognostications or production and operational facts allegedly
ADDRESS TO ERIN WORK FORCE
Good afternoon ... I'm sure that you are all aware
that since I came down to this plant to speak with you
last, in , I think it was late January of this year, several
things have been happening that are most important
to Company employees and the community. ...
Rumors are flying around,-A great deal of talk is
being made-and generally I believe a state of
confusion exists which requires an expression from
management . . . . And this is the purpose for my visit
here today ... to give you the position and feeling of
the Company so that we can clarify in your mind, and
I hope in the minds of everyone in this area who are
either directly or indirectly concerned with the
operation of the factory. And up-to-date, honest,
factual picture.-In this way, I hope to remove, wipe
away, and end all sorts of silly and unfounded stories.
Now, first of all, it's important that all of you
understand that there are two issues which have
nothing to do with each other but which somehow
seem to have become tangled up and intermingled in
the minds of many of you. It's therefore very
important to all of us that you not only understand
these two separate points but also recognize how they
have been misinterpreted and garbled through the
rumors and perhaps false and misleading information
given out by irresponsible elements who in my opinion
are not nearly so interested in the welfare of the
people who work here as they pretend to be.
The first issue is the subject of profit and loss and
deals exclusively with the economic story of this
factory and has nothing whatsoever to do with
anything else. . . . Now, I told you in January and I
repeat here again today that the Company has
invested a great deal of money in this factory... .
That the Company has not made a profit from the
investment.... That the Company is operating at a
loss.
This is a very, very serious subject and, if you are
interested in your jobs as I am sure you are, it is
worthy of your complete understanding since no
company can continue to operate indefinitely at a
loss. . . . So, please put everything else out of your
minds so far as this subject is concerned and
understand that first and foremost it is our job, yours
and mine, to help develop a profitable operation out of
this plant.
When I talked with you in January shortly after the
Houston County Court rejected the Company's
request for an addition to this building, I explained
the difficulties with which the Company was faced
with after that request was denied: I also told you that
before the negotiations were completed with the
County officials the Company had gone on record to
supplied by him to the employees with whom he spoke. There is
nothing in the record to suggest that Crews is anything but a
minor supervisor whose vaunted knowledge of the Company's
internal operations and plans is born of speculation and what I
find to be his own antiunion predilections
if In accepting employee Clark's credited , undenied testimony
that Richardson made the statement attributed to him, no
judgment is intended to be made with respect to the accuracy of
Richardson 's otherwise unsubstantiated statement
BARNWELL GARMENT CO., INC.
point out that we operated with very small markups of
profit on large volume production and that we had to
employ not less than 400 in order to develop the
productivity needed to provide our sales department
with a competitive product.... In effect we explained
to the county officials that we would require a larger
area to operate in than the initial building would
contain and that when we had trained the first group
of workers we would expect the county to provide the
additional area to expand our operations in Erin to the
size required to produce our product here
competitively.
Well, when faced with what appeared to be a
restricted operation and continuing losses it was felt
that the best way to resolve the problem in the
interest of our workers and the stockholders of the
Company, a decision was made to attempt to sell the
factory to a company who operated on a higher profit
per unit basis and who could operate economically in
this size building.-To implement that decision I
personally advertised and listed this factory for sale.
... Now, I am sorry to have to explain this to you, but
these are the facts and you are all entitled to know.
. In early January, long before the Company had
knowledge of an effort on the part of a labor union to
organize our workers, advertisements were run in
several trade journals, The Daily News Record and
The Womens Wear Daily are just two of them....
And, we received some replies. Let me read you a few
of them.
This is a letter from The Work Wear Corporation, I
don't know who these people are, I've never met
them.... This is to Box MH-50 7 East 12th Street,
New York, New York, which was the box number of
our ad-They said, "Gentlemen, please give us
complete details of your plant in the south that was
advertised for sale in a recent issue of The Daily News
Record."-This is dated January 9, this letter. .. .
"Include in this information where it is and if it is
unionized or not." . . . The man wanted to know ... I
wrote back to him and said, "No, this plant is not
organized, and we have a fine plant here and we
would like you to come down and see it. "-We had
an exchange of correspondence. On February 6th,
Mr. Rosenthal, who is the President of this Company
wrote me again . He said, "Thank you for your letter of
February 4th. Very frankly, when an operation of your
size continually building new plants, and wishes to
sell one gives rise to a large question." -In other
words, this man figures, will, this plant must be a
lemon, else why would the Company want to dump it.
. And, he went on to say, "We have heard rumors
(This is on February 6th) we have heard rumors of
union activity in your area which frankly gave us
reason to feel that this community might be one to
stay away from. Our deduction might be completely
wrong." -I wrote him back and I said, "To the best
of my knowledge, there is not now, nor have there
been any problems connected with labor or attempts
to organize the workers at this plant." . . . I explained
that the principal and only reason for our offering this
plant for sale was due to the size restriction... In
short, the plant was too small for us. ... On
February 12th of this year, I wrote that back.
So again, I want to make this emphatic and
perfectly clear to everyone just as I attempted to do
61
way back in January when I asked your County Judge
and the President of the Erin Chamber of Commerce
to be present when I addressed the plant. The
Company felt that the issue was of such importance
that the County and community leaders should be
apprised of the situation along with our workers.
Now, let me talk with you about the second issue
which I assure you is not related in any way to the
subject I have just discussed. This is the new issue
with which the Company has only recently become
aware of. I refer, of course, to the efforts which are
now underway by a labor organization to influence the
workers at this factory to represent you. Now, this is
all right and although I have my own personal views,
in all fairness, you should be told that the Company
has no objection. Very frankly, we are far too
concerned with the first subject, that of profit and
loss, which far transcends importance whether or not
you wish to become members of a union . Please don't
mistake what I am saying. It is, of course, an
important subject and I don't mean to minimize it but
only to say that from a relative standpoint it is not
nearly so important to you and the Company as is the
problem of making an efficient and profitable
operation out of this plant.
The main point and the reason I am here today is to
stress the separation of both of these issues to you.
Union or no union , this factory either must generate
profits or else it cannot continue to operate.
I do feel that the game should be played fairly
however and because some of the statements which
have been attributed to those people who are
interested in organizing this factory which have
reached my ears are so wild and irresponsible, you
should be told the honest and undiluted truth. . .
Now, this subject of unions is a very touchy one and I
am sure that the Company will be accused of all sorts
of intimidation and threats because of the fact that I
have dared to discuss this taboo subject today.
Therefore, for two reason, I have made a record of my
statements to you. The first, because our Company is
a responsible Company, we are willing to place
ourselves on the record so that at any later date what I
say to you today will be available for anyone who
wishes to see if the Company will stand behind what it
says, and the second reason, is so that if and when we
are accused of threatening and brow-beating our
workers we can let the record prove who did the
threatening and who did the brow-beating.
Let me tell you now about some of the ridiculous
statements which I understand have been told to you
by people who are more interested in taking money
out of the Erin community than investing into the Erin
community. If you have been told these fairly tales
then they will be familiar to you and my information
will have been correct. If not, then obviously, I don't
know what I am talking about. However, having some
knowledge of how these things are done, I am quite
certain that the former is true.
Fairy tale number one is the story which I
understand have been told to many of you, namely,
that the Union wants to force the Company out of the
Erin factory. The story goes, that the Union has a
company standing by that will pay much larger wages
and offer great benefits to all of you. If this has been
told to you, then I say, let's have the Union disclose
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who this company is. Why be mysterious and
secretive. The Company stands ready to offer this
plant to any legitimate company, to even the Union
itself at a very, very realistic price. Again, I point out
to you that long before any knowledge of union
activity existed, the Company was faced with a major
problem and substantial losses in the operation of this
factory consistent with our obligations towards our
workers we offered our plant for sale then and that
offer still holds true. Quite honestly, I don't [think]
the mythical company to which the Union refers to
exists. I leave it to you to decide for yourselves.
Fairy tale number two is another wild tale that the
Company will "walk out" if our workers decide to
have a union represent them. Also another part of this
same fairy tale is the opposite statements which have
been made to the effect that "The union will force the
Company to keep operating" . . . From what I've
heard it's no wonder that everyone in this community
is confused. Here again, let me set the facts straight.
The Company has executed a lease for this
building and we intend to honor that lease which is for
a period of ten years. No one is going to "Force us to
stay," nor "Force us to go." Pure economics and
nothing else will decide the future operation of this
factory under the present management is concerned.
Fairy tale number three is the button button game.
This is a very interesting game as it may have a
familiar ring to a number of you. It goes like this,-A
worker who is trying to decide in his own mind what is
to his best interest is accosted by one or two other
people and is told, "Look, you've got to choose your
side, if you don't wear this button and join with us, we
will see that you lose your job after the factory has
become unionized." . . . Now, if you are someone who
has been either on the giving or receiving end of
something like I have just described, then my words
should make sense to you.
Now, I am going to be accused of intimidating you
with this talk and I give you my word, that is no my
intent. Let's all take a step back and look objectively
at this whole thing. You people are intelligent , mature
people. Be fair. Try to think of one single instance
when any member of the management staff of this
Company has intimidated or inferred in any way that
punitive or disciplinary action will be instituted
against a worker for union activity. This has not
happened, not will it happen.... We are not going to
discriminate. You want to wear a button, wear it. But
whatever you do it is my sincere advice that you forget
fairy tales and examine the picture honestly and
fairly.
The last fairy tale I am going to talk to you is the
one about the promises that I understand have been
made by the Union. I have been told that great
increases in earnings are being guaranteed if you
elect to have the Union represent you to the
Company. Several people have sent me information
indicating that the Union has promised increases from
thirty cents to as much as seventy-five cents per hour.
Well that is great, that is fine, ... that is, if you like
fairy tales. The plain unvarnished truth is that
increases in earnings along with any other benefits
can only come from profits and from no where else
and I've already told you the story on that, so you can
make up your own minds as to the veracity of the
stories which you have been told.
I want to thank you all of you for giving me your
attention. I have tried as honestly and fairly as
possible to present the Company's position and I hope
that we can now end the confusion and rumors which
have been flying about hot and heavy.... I am proud
of this Company and what we stand for and I hope you
join with me in that pride. You may all return to work.
Thereafter on March 19 Friedman gave a third speech to
the employees. This speech was not recorded. According
to Friedman, whom I credit on this subject, it was a short
one and was prompted by rumors which had come to his
attention from the local community to the effect that in the
event the Union won the forthcoming election Respondent
would hire or would be required to hire large numbers of
Negroes. Replying to this rumor by his March 19 speech
Friedman assured the employees that it was not the
Company's intention to indulge in discriminatory hiring
practices should the Union be elected. In an effort to
defend the Company in this matter Friedman held up for
the listeners to see a copy of a union publication in which
Negro union members were prominently identified in the
accompanying illustrations . Thus, according to Friedman,
he sought to establish the fact that any changes in the
racial structure of the plant was to be viewed not as
company discrimination but as a manifestation of union
policy. Parenthetically, it would be appropriate for me to
note here that far from being discriminatory, as suggested,
such a policy would also appear to constitute a
manifestation of national policy in the matter of racial
equality. i a
E. The Subsequent Interrogation of Employee Rushing
Employee Rushing, who had been laid off with the other
employees on April 1, was recalled on May 14 to take the
place of an employee who had survived the layoff but who
had just hurt his leg and would be away from work for
several weeks. Rushing worked for 3 weeks. Shortly
before his termination his foreman, Crews, came to him
and asked him if he had dropped his union membership.
When Rushing told him that he had not, Crews replied
that he had hoped that he had dropped it. Rushing was laid
off on the following day.
The nature of this layoff, although not alleged as a
violation of the Act, was fully litigated and obviously bears
significance to Crews' previous conduct. Rushing, it will
be recalled, was rehired merely to fill in for a temporarily
absent employee. He testified without subsequent
contradiction by Foreman Crews that "the third week the
boy came back on Monday and I asked Mr. Crews would it
be steady for me, you know, regularly, and he said `Yes,'
said, `It's going to be regular. We have got plenty of
work."'is
19 Employee Phillips testified concerning this speech , but was
obscure in details She did, however, corroborate Freedman's
rumors of racial discrimination by quoting his conversations with
local businessmen who, according to Friedman , had first
acquainted him with these rumors, and by describing his
discussion of the union publication.
19 Crews denied ever having told Rushing that there was plenty
of work He did not deny, nor was he confronted with the
statement concerning the possibility of a steady job for Rushing.
In any event I do not credit any of Crews' testimony (supra, fn
15)
BARNWELL GARMENT CO., INC. 63
F. The Parties' Contentions
It should be noted at the outset that there is no
contention here that Respondent has either refused to
bargain with the Union in violation of Section 8(a)(5) or that
its selection of employees for layoff was an element of the
discrimination alleged. Furthermore, it should be repeated
that, excepting only the June 1 incident involving Rushing
and Crews, none of the statements or activities described
in detail herein are contended, because of their age, to
constitute evidence of unfair labor practices. They were
presented as background evidence of Respondent's
alleged attitude and motivation in opposition to the Union,
explaining what is claimed to be the underlying purpose of
the layoff.
General Counsel's basic position is stated thus in his
brief:
The central issue in this case is simply whether
Respondent had a valid economic reason for
drastically reducing its operations in February 1964
and laying off approximately half its working force the
day after the Union was certified. If Respondent's
economic defense falls, there will remain in the
record here no available explanation for Respondent's
action except the explanation which is supplied by the
timing of the layoff and Respondent's antiunion
activities.
Thus it would appear that General Counsel has placed the
burden of justifying the layoff as an economic one upon the
Respondent, and its failure to establish this would be held
to warrant the conclusion that the economic reasons were
a pretext. Elsewhere in the record counsel for the General
Counsel contends that even if it cannot be established that
the layoff was discriminatorily motivated the record would
support the allegation that the failure to recall was.
In support of the economic situation at Respondent's
plant, and elsewhere in the Colonial complex of which it
was a part, considerable testimony was adduced and
exhibits supplied to support the contending points of view
that business at Erin and elsewhere was good, or bad,
depending upon the party contending, and that dusters,
and other articles of clothing were or were not
manufactured at Erin or elsewhere in varying styles, at
profits, or losses. In arriving at my conclusion here I have
studied this testimony and the supporting documents most
carefully, particularly with a view to assessing their
relevance to the issues presented.
G. Analysis and Conclusions
1. The alleged discriminatory layoff
This case presents the converse of the usual format of
alleged discrimination where a discharge or layoff is the
result of union membership or activity, or where it has
been founded upon pretextual excuses contrived to
disguise such reasons. Here it was the union membership
and activity which was generated by the prospects of
economic layoff.
What occurred is quite apparent from evidence adduced
by counsel for the General Counsel. In December the
Company was refused an expansion loan and took steps to
dispose of its plant property and to curtail its production of
the principal item being manufactured at Erin, the dollar
duster. In late January an employee, Elizabeth Sine,
sought out the Union at its Nashville headquarters with a
view to organizing the Company's employees at Erin.
Thus, as the facts detailed earlier clearly disclose, the
economic and operational decisions which controlled the
subsequent April 1 layoff were made and became public20
a month before the Union came into the picture. In such a
context it is difficult to understand how support can be
given to the allegation of the complaint that Respondent
laid off its employees because they had joined or assisted
the Union, selected it as their collective-bargaining
representative, and had otherwise engaged in union
activity or concerted activity. Indeed if the Union had not
appeared on the scene shortly after the Respondent's
plans had become known, the curtailment of operations
would have occurred earlier, for Respondent, in an
abundance of caution and in an effort not to have its
actions misunderstood, deferred the layoff and "limped
along" on a short workweek. And the layoff which is
claimed to have been a discrimination took place only after
consultation with the Union and Respondent's undenied
efforts to obtain the Union's assistance in locating work or,
as the final resort, its cooperation in effecting layoff. Thus
the timing which General Counsel would consider the
essential of the discrimination here, namely laying off the
employees on the day following the Union's certification,
may well be viewed as evidence of the Company's
undenied good-faith effort to avoid even the appearance of
discrimination by waiting until after the election was
over.2 i
In the Darlington case before the United States
Supreme Court22 presented here. Thus, restating the
extablished principle of Section 8(a)(3), the Court noted
that "an employer has the right to terminate his business,
whatever the impact of such action on concerted activities,
if the decision to close is motivated by other than
discriminatory reasons." And in footnote language
(footnote 10) particularly significant to the situation stated:
It is also clear that the ambiguous act of closing a
plant following the election of a union is not, absent an
inquiry into the employer's motive, inherently
discriminatory.
Under this view of the facts which I must necessarily
take, therefore, it is obvious that the layoff which occurred
on April 1 was but a natural consequence of the firm plans
I find to have been initiated in December.23 Such being the
case, I would conclude and find that two separate
elements of proof contained in the record bear no
relevance to the alleged discriminatory layoff: (1) the
economic, fiscal, and operational considerations presented
by both sides and (2) the evidence of Respondent's
antiunion conduct and statements after the Union had
arrived to establish union animus and motivation on
Respondent's part well in advance of the Union's arrival.
20 Elizabeth Sine , the prime mover in bringing in the Union,
was the wife of Arlie Sine, one of the county judges who in
December 1963 passed upon Respondent 's request for a loan and
who were advised by the Company that it was going to dispose of
the plant property
2i Cumberland Shoe Corp., 156 NLRB 1130 Compare Telecom,
inc., 153 NLRB 830, and Valley Forge Flag Co , 152 NLRB 1550,
where the respective decisions to transfer work occurred after the
union activity had commenced , not in advance of it, as here
22 Textile Workers Union v Darlington Mfg Co , 380 U S 263,
269.
23 Pert Pillow Co., 152 NLRB 332
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the considerable testimony, documents,
and charts submitted, suffice it to say that my function is a
limited one. I do not presume to assess the correct manner
in which a corporation's books are to be kept or audited, or
how its product can be best fabricated and marketed, nor
am I equipped to pass final judgment upon policy matters
affecting the profitable operation of a complex garment
combine such as is Respondent's. My function in this area
is simply to determine whether or not Respondent kept its
books or operated its business with a policy of defeating
the Union's activities. Having found that the Union was not
even contemplated when these operational, fiscal, and
policy considerations were in the making and were being
executed, it is of no consequence to me how well or how
poorly they were executed, or how well or how poorly the
books were kept so long as I am persuaded as I am, that
union considerations were not also involved. Moreover, as
the substance of my finding with respect to the layoff
would support a conclusion that General Counsel has
failed to establish a prima facie case in this particular, the
same or similar evidence supplied by Respondent as an
element of its affirmative defense need not be considered
at all.24
With respect to the conduct and statements which I
have set forth above, it is to be noted at the outset that
Section 10(b) of the Act precludes me from finding them to
constitute violations of the Act. That is not to say that they
need be ignored. In the proper context it would provide
most significant background of motivation. But here it
would be appropriate to ask: "Motivation for what?" Here,
I have already concluded that the motivation for the layoff
occurred in December, when the loan was refused, the
buildings put up for sale, and the dollar-duster production
program scuttled. As union or antiunion considerations did
not commence to evolve until late January they obviously
could have no relevance to what preceded, and I
accordingly reject the evidence, even as appropriate
background for this phase of the subject matter.
Having concluded, and I do, that the April 1 layoff was
dictated solely by the economic considerations detailed
herein, however misguided or inaccurate they may have
proven to be, I shall recommend that so much of the
complaint as alleges the layoff to be an unlawful
discrimination under the Act be dismissed.
2. The alleged discriminatory failure to recall
It is the substance of my finding above that if the
economic layoff was proper and devoid of union
considerations when it was initially determined no amount
of union animus that may have thereafter been generated
could discolor the original determination. Indeed that is
the very essence of the application of the concept of ex
post facto law.
Having said this much, can it nevertheless be said that
proper action, properly taken at the proper time can
thereafter be used for grosser, here antiunion , purposes?
Clearly this is possible.
In the instant case once the Union appeared
Respondent's officials and supervisors made their
opposition to it quite evident. Thus Supervisor Turner
engaged in surveillance of the meeting at Adkins' home
and his wife thereafter engaged in a form of telephone
harassment. Plant Manager Herlong, Production Engineer
24 Strydel Incorporated , 156 NLRB 1185.
McNeely, and Foreman Crews were seen to be checking
on those who wore union buttons, with Crews making a
disparaging remark about those who wore them. Similarly
Herlong and Crews questioned the employees concerning
the Union, their membership in it and its activities, and
they implied that the Company would not bargain with it
and that it could not be to their best advantage to belong.
However grievous these statements and acts may be, I
perceive nothing in them that would give the lie to
economic and operational decisions made during the
month before the Union arrived, and perhaps 2 months
before the statements and acts were committed. Nor am I
persuaded that changes favorable to the employees had
been contemplated for that period between February 1
and April 1 during which the offense conduct occurred.
And finally, I must note that there is nothing in the record
to suggest that new employees have since been hired in
preference to those who had been laid off. Indeed
employee Rushing, one of those laid off for allegedly
discriminatory reasons, was recalled as a replacement
when one of the retained employees was absent (supra, IV,
E).
Nonetheless, and even if there were evidence of
changed or changing conditions, and I find none, the fact
still remains that Respondent' s animus towards the Union
did exist immediately before and after these people were
laid off. To the extent that it did exist, I can properly
conclude that this attitude towards the Union and its
adherents would persist and would affect their recall
prospects, if such ever developed. Indeed Crews'
assertion to employee Rushing, as late as June 1 (supra,
IV, E) that he would have had full employment if he were
out of the Union illustrates this very likelihood.
Accordingly, while there is no basis on this record to
conclude that anyone's recall has been impeded or
prevented by Respondent's antipathy towards the Union it
would be reasonable to infer, and I do so from the
background evidence supplied, that if reemployment were
ever available then considerations of union membership
and activity would be a significant determinative.
I shall recommend that the allegation of discriminatory
failure to recall be dismissed, for reason of an absence of
any evidence that jobs or work were withheld for any
reason other than the economic ones which I have found
existed at the outset. But in keeping with my findings with
respect to Rushing hereafter (infra, G, 3), and with my
view of the significance of the background evidence
adduced, I shall recommend that there be established a
preferential hiring list consisting of the names of those
employees who were laid off and who will have requested,
within a month of the Board's Order in this proceeding,
that they be included thereon.
3. Interference, restraint, and coercion with respect to
employee Rushing
It is clear that Foreman Crews' interrogation of Rushing
concerning the currency of his union membership (supra,
IV, E) was something more than idle curiosity. It was
Crews, it will be recalled, who on several previous
occasions had threatened dire results to those who would
sign union cards or would continue their union
membership. This time he not only inquired of Rushing as
to his union membership, but coupled his remarks with an
assurance of continued employment if it were forsaken,
and followed it up by terminating Rushing upon learning of
his continuing membership. Citation of authority is hardly
BARNWELL GARMENT CO., INC.
necessary to conclude that such conduct would not only
interfere with, restrain, and coerce Rushing in the exercise
of his statutory rights but it would do likewise to any
employee who becomes aware of it. I accordingly conclude
and find that by Crews' conduct Respondent has thereby
violated Section 8(a)(1) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section IV,
above, occurring in connection with the operations of the
Company described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
VI. THE REMEDY
I have found and conclude that Respondent, by
interrogating employee Rushing, assuring him of
continued employment if he forsook the Union, and
terminating him when he failed to do so, interfered with
Rushing and Respondent's employees generally and
restrained and coerced them in the exercise of their
statutory rights. Accordingly, I shall not only recommend
that it cease and desist therefrom but affirmatively I shall
recommend that the Board impose its customary remedy
in instances of unlawful discharge by reinstating Marvin
Rushing to the position which he held when last
terminated.25
As previously noted I shall recommend that the
complaint herein be dismissed as to those paragraphs
alleging Respondent's discriminatory layoff of certain of
its employees on April 1, 1964, and its failure thereafter to
rehire them. With particular respect to the refusal to
rehire I am aware that the statements and conduct of
certain of Respondent's officials and supervisors cannot,
by Section 10(b) of the Act, constitute evidence of unfair
labor practices. Realities dictate, however, that should
Respondent be in an economic position to rehire
employees at some future date its attitudes and intentions,
as expressed by this precluded evidence, would
nevertheless constitute significant background that might
reasonably be considered to affect its future conduct.26
Accordingly, and to safeguard the employees from
consequences such as has already befallen employee
Rushing whose reinstatement I have recommended, I shall
recommend that further affirmative action be taken.27 It
is recommended, therefore, that a preferential hiring list
be established and that listed thereon be such of
Respondent's employees laid off on April 1, 1964, as
specifically request that their names be so included, such
request to be made within 30 days of the Board's final
order in this matter.28
In all other respects, except as noted in this section, I
shall recommend that the complaint be dismissed.
[Recommended Order omitted from publication.]
25 Latex Industries , Inc , 132 NLRB 1
26 Local Lodge No. 1424, International Association of
Machinists, AFL-CIO (Bryan Manufacturing Co.) v. N.L.R B., 362
U.S. 411.
27 Lundy Manufacturing Corporation, 136 NLRB 1230.
28 Cf A. C. Rochat Corporation, 150 NLRB 1402
65
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER, Trial Examiner: On March 16,
1966, a Decision was issued by me in this proceeding
finding and concluding that Respondent herein, Barnwell
Garment Company, Inc., a subsidiary of Colonial
Corporation of America, had engaged in certain unfair
labor practices, and recommending that it cease and desist
therefrom and take certain affirmative action to remedy
such unfair labor practices. I likewise found and
concluded that Respondent's layoff of certain employees
on April 1, 1964, and its failure thereafter to recall them
was dictated solely by economic considerations and it was
further recommended that so much of the consolidated
complaint as alleged the discriminatory layoff and failure
to recall employees be dismissed. However, in view of
subsequent conduct which I found to constitute violations
of the Act it was recommended that a preferential hiring
list be created containing the names of all such laid-off
employees who, within 30 days of the Board's Order,
requested that their names be included. The case was
transferred to the National Labor Relations Board, herein
called the Board, on the same day.
Concurrently with the filing with the Board of
exceptions to my Decision the General Counsel of the
Board filed a motion to reopen the record for the receipt of
additional evidence, moving that the proceeding be
remanded to me for the purpose of receiving additional
evidence bearing directly upon the reasons for curtailment
of Respondent's operations in April 1964. In due course
the Board issued its order granting motion and remanding
proceeding to the Regional Director for further hearing
wherein it was ordered that a further hearing be held
before me for the aforementioned purpose and that I
prepare and serve on the parties, upon the conclusion of
the hearing, a Supplemental Decision containing findings,
conclusions, and recommendations to the Board, based
upon evidence received pursuant to the Board's remand
order.
Pursuant to notice a hearing was held before me in
Nashville, Tennessee. All parties appeared and were
afforded full opportunity to be heard, to adduce relevant
evidence, to examine and cross-examine witnesses, to
present oral argument, and to file briefs. Briefs were filed
with me on August 29 by counsel for Respondent and the
General Counsel.
At the hearing before me it was developed that the
additional evidence referred to in the Board's Order
consisted of testimony adduced in a hearing before Trial
Examiner Sidney Sherman at Woodbury, Tennessee, in
Colonial Corporation ofAmenca, Case 26-CA-2256-1,-2,
-3 and 2282, which hearing has not yet concluded. Upon
motion of counsel relevant portions of the transcript of this
hearing were incorporated by reference into the record of
the instant proceeding and have been considered fully
herein. Because it is my ultimate conclusion herein that
none of the facts sought to be adduced at the further
hearing before me are material to the conduct at Erin,
Tennessee, previously considered, I am disposed to accept
and consider all testimony in both the Colonial record and
in the further hearing before me as if true. Upon the entire
record as thus considered, therefore, I make the following:
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Summary of Earlier Findings
In December 1963 Respondent was refused an
expansion loan for its Erin, Tennessee, plant by the
Houston County Court, the body charged with the
responsibility of administering such matters. Respondent
thereupon took steps to curtail its production of the
principal item being manufactured at Erin, a duster or
housecoat which it wholesaled for a dollar. In late January
1964 employee Elizabeth Sine, the wife of one of the
county judges, sought out a representative of International
Ladies' Garment Workers' Union, AFL-CIO, herein
referred to as the Union, at its Nashville headquarters with
a view to organizing the Company's employees at Erin.
Upon facts more fully detailed in my original Decision it
was concluded that the economic and operational
decisions which controlled the subsequent April 1, 1964,
layoff were made and publicized a month before the Union
entered the picture. Accordingly, after consideration of
this and the applicable precedents it was further
concluded that the layoff was but a natural consequence of
firm plans that had been initiated in December 1963.
Furthermore, because I had concluded that the
Respondent's determinations were made in point of time
before any union animus was shown to have existed I
concluded that evidence of an economic, fiscal, or
operational nature relating to Respondent's decision to
curtail was not relevant, nor could any more relevance be
attached to evidence of the union animus which developed
in point of time after the determination had been made.
Quite apart from the foregoing conclusions with respect
to the economic nature of the curtailment of work which
necessitated the layoff and subsequent failure to recall
those laid off, it was found that Respondent, after the
advent of the Union, indulged in conduct which
constituted interference, restraint, and coercion in
violation of Section 8(a)(1) of the Act, and that the layoff
and subsequent refusal to recall employee Rushing in June
1964 constituted discrimination against him in violation of
Section 8(a)(3).
It was nevertheless concluded that the economic
considerations which provided the initial justification for
the disputed layoff had not thereafter changed; there being
no evidence of such change. Hence it could not be
suggested that the intervening union animus on
Respondent's part was the cause of its continuing failure
to recall those whom it had legitimately laid off. It was
recognized, however, that quite apart from any relevance
that the union animus might bear to the economic situation
as it existed in the winter and spring of 1964, union animus
had in fact developed as evidenced by the unfair labor
practices found by me. Certain remedial steps were
accordingly recommended to protect the legitimately laid-
off employees from future discrimination in the event the
economic situation improved and their jobs became
available. To this end it was recommended that a
preferential hiring list be established.
B. Additional Evidence of Respondent's Union Animus
Implicit in General Counsel's motion to reopen the
record for the receipt of additional evidence is the
' Woodbury is the location of a plant of Colonial Corporation of
America, the Respondent ip Case 26-CA-2256, et al. It is
approximately 115 miles from Erin.
2 General Counsel' s brief quotes Melton as testifying before me
discovery of further evidence of Respondent' s union
animus. Thus I am referred to testimony in an unrelated
proceeding, Colonial Corporation of America (Case
26-CA-2256, et al.), dealing with allegations of unfair labor
practices by the Colonial Corporation of America, the
parent corporation of Respondent. This testimony
consisted of statements relating to the Respondent's
activities in Erin , Tennessee, the subject matter of the
instant case, and is attributed to Leonard Friedman, an
officer in both Respondent and the parent corporation, and
a witness in the initital hearing before me. A presentation
of this evidence relied on by General Counsel follows:
Charles Edward Melton, a retired businessman residing
in Woodbury, Tennesses,' testified in the Colonial hearing
that in the summer of 1964 he was approached by a
Woodbury County judge who asked him if he would rent a
building to a manufacturer seeking to locate in the area,
Anderson Window Company. Melton thereafter received a
telephone call from President Adams of the Woodbury
Bank of Commerce who told him he did not think Melton
should rent to Anderson, "that they were having union
trouble." Melton agreed and Adams continued the
conversation, directing it to the Colonial Corporation.
Thus, according to Melton, Adams said:
So we-I talked about this, and he told me how the
situation was there and what they had reduced down
to. And any way, back to Colonial : going to Colonial, I
in turn called on Mr. Friedman, and he came over,
practically the same thing Adams had told me about
Colonial having-that some Company had moved into
Erin, Tennessee and brought a union with them, that
it got into-made trouble with their plant there and
they had shut down from maybe three hundred, or
350, whatever the figure was, down to about 40 or 50,
and he didn 't want me to do that here , to bring it in,
afraid that it would get into the factory here and cause
it-the union to get into the factory here, and, so
however we lost our industry. Colonial.
Q. Did he specifically use Erin, Tennessee?
A. He used Erin, Tennessee, and some other city. I
don't know the other plant that they had a little
trouble with he used the example of what had
happened.
TRIAL EXAMINER: He had to cut the employment
at Erin, he had to cut the employment to 40 or 50?
THE WITNESS: That's what he told me.
Q. Did he give you the reason?
A. The Union had come into there and was trying
to unionize the factory there. Now, whether he said it
got into it or was trying to get into it, I don't know. I
don't remember that part. It has been a couple of
years and I don't remember.
Q. And this occurred, you say, in 1964?
A. In 64.
At the hearing before me in July 1966 Melton was not
queried either on direct or cross-examination concerning
these summer 1964 conversations with Adams or
Friedman, but only with respect to conversations in
October and November 1965.2
with respect to the 1964 conversation A reading of the record
discloses that Melton in his testimony before me was referring to a
conversation with Friedman over a year later, in October or
November 1965.
BARNWELL GARMENT CO., INC.
A review of the Colonial Corporation record discloses
that nothing relating to the Respondent's Erin plant
occurred in Woodbury between Melton's summer 1964
conversation and November 1965. Arnold Cook, a
Woodbury furniture merchant, testified in the Colonial
Corporation hearing and again before me that on
November 19, 1965, Bank President Adams called him
and invited him to attend a meeting of local merchants at
the bank. Adams told him "there had to be something
done about the situation in Woodbury, and if we lost the
payroll we would all be ruined," referring to the current
union activity at that plant.
Cook testified at both hearings that he arrived at the
meeting before it started. Forty to fifty merchants were
present, including Friedman who was introduced to the
group and addressed them. Thus, Cook testified before me
concerning Friedman's remarks:
He started out by saying that the merger, or the deal
with Puritan was off, and he said that because it was
off that they did not want to change the name of the
plant in Woodbury because the people had
established the plant, and therefore, the deal was off.
Q. What did he say after that?
A. After that he said that he wanted to talk to us
about the situation that everyone knew about in
Woodbury.
Q. Alright. Continue.
A. He talked, and he began with-he didn't say
what the situation was at that time, but he began with
saying that everyone knew about the situation, and he
said-I may not get these things in order, but I
remember he said that it was company policy that
they would not work under a unionized labor. He went
on to say that on one occasion that even the President
of the United States couldn't force him to work under
a union . He also made the statement that he had
closed two company plants because the Union had
been going in, because of union activity.
Q. Did he say where these plants were?
A. He gave the names of two plants, but I cannot
recall the names of these plants.
Friedman's testimony before me concerning this
meeting, while denying a number of statements attributed
to him by Cook, included the following colloquy:
A. A question was raised about the Erin plant.
Q. A question was raised. Who raised the
question?
A. I do not know. I'll keep repeating it to you, if you
want me to.
I was asked whether there was a union at the Erin
plant and I answered yes there was. That same
person, I believe, then asked me how many people do
you have working there. I answered the question.
Q. What was your answer?
A. Fifty or sixty. I know that was my answer
without having to recall it, because that's the group
and that's what I told them.
Q. Did he ask you a second question , how many
people were there and how many people were there
before the Union?
A. Yes, sir.
Q. Did you tell him then?
A. I said several times that number.
67
A. When I was asked how many people we were
employing at Erin, Tennessee I said about fifty or
sixty. I did not go into further detail on that.
Q. And then the next question about how many you
once employed?
A. I explained that it was considerable times that
number. I did not go into detail.
Q. Did anyone ask you any other question about
Erin?
A. I do not think so. I don't recall any, anyway.
Q. And you spoke about Erin, nothing about Erin
aside from those two questions?
A. I was asked did we have a union in Erin. That's
the way the whole Erin situation came up in that
meeting in the first place.
Upon the conclusion of his speech which, it must be
remembered, concerned Colonial Corporation's
Woodbury plant, Friedman asked for questions from the
group and, according to Cook, after telling the group to
"band together, talk to your neighbors and friends and any
one you can come in contact,"3 departed.
Following Friedman's departure from the meeting the
merchants discussed and agreed upon the publication of a
fact sheet dealing with the current Woodbury labor
situation. The sheet was entitled "Fairy tales Or Facts."
Included in it was the following:
It is common knowledge that since the beginning of
Colonial that this is a nonunion company and they
would not attempt to operate under a union. This
policy has been tested at Spring City, Altamont in
Erin. At Spring City in Altamont, the plants were
closed and remained closed for several months and
were reopened only after demonstrations in force of
the earnest desire on the part of the community to go
back to work on the basis of Colonial policy. At Erin,
where in excess of 360 were working, an election was
held and after seventeen months no contract has been
signed-employment is now fifty-four.
It is General Counsel's contention that while this
document quoted above is the handiwork of local
merchants in Woodbury, Tennessee, in connection with
the current labor situation there, the title and contents of
the fact sheet distributed by them contains words such as
"fairy tales," and certain information peculiarly within the
knowledge of and attributable to Friedman, both from his
personal knowledge of company affairs and the fact that
similar words appeared to have been used in his speech at
Erin.4 Thus, states General Counsel's brief, corroboration
is provided to the statements reportedly made by
Friedman to the merchants at the meeting, as quoted
above.
C. Conclusions
There can be no doubt but that Respondent bore animus
towards the Union. That indeed was the substance of the
conclusions in my earlier Decision in this matter, wherein
I found that by interrogation, promises of benefit, and the
3 In the hearing before me Friedman denied having made this
statement . Two witnesses for the Respondent , Stringer and
Jennings, corroborate Friedman in this respect
* See Trial Examiner's Decision in this case , Friedman's
speech of March 13.
295-269 0-69-6
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminatory discharge of an employee, Respondent had
interfered with, restrained, and coerced its employees
specifically because of this Union, and the employee
membership in it , and where still other conduct might well
have been viewed as further evidence of union animus and
as equally unlawful conduct had it occurred within the
permissive statutory period.5 Accordingly, therefore, with
respect to the animus which I have already found, the
additional testimony of what occurred sometime after the
events in Erin, to wit the incidents at Woodbury in the
summer of 1964 and in November 1965, serves only to
confirm and fortify my finding of company animus.
Because of its make-weight nature, however, I am
disposed to withhold credibility determinations as to these
matters, leaving to the Trial Examiner in the Colonial
Corporation case the assessment of statements and
conduct introduced into the record in his case.
The extent and limitations of the union animus which I
found are evident. Thus it should be recalled that the
animus which formed the basis of the unlawful conduct
found by me was only disclosed after March 28, 1964. And
indeed among those incidents which I could not consider
because of age (supra, fn. 5), nothing that could have
qualified as misconduct or evidence of animus was shown
to have occurred prior to the interrogation of employee
Clark by Plant Manager Herlong on February 1, 1964;6
President Friedman's earlier speech to the employees on
January 31, having been found to contain no reference
whatever to the Union. Respondent's union animus has
been established, therefore, at a point of time after, but not
during or before, the period when the December 1963
decision to curtail work was made and being put into
effect, without evidence of intervening or a subsequent
economic improvement.
It must be recognized, that the most recently adduced
evidence of animus, after the fact though it may be, does
refer back specifically to Respondent's operations which I
have found, for lack of evidence to the contrary, to have
been economically motivated-the curtailment of
production. This is not to say, however, that what was said
in the summer of 1964 and November 1965 in Woodbury,
Tennessee, may now be used as the sole substitute for
contemporaneous evidence. There is nothing in any record
to suggest that in December 1963, or indeed at any time
before Herlong questioned Clark in February 1964,
Respondent or any of its officers had knowledge of the
Union, little less bore animus towards it. What I am asked
to do here is to accept as such a substitute for this void of
knowledge something that was said far removed from the
site of the dispute at a much later time, in a different
context for a different and possibly unlawful motive.
Colonial Corporation and its president, Friedman, or the
local merchants, may well have viewed a story about Erin,
be the story true or false, to be of assistance to them in
their Woodbury problems. And indeed whether the story
be true or false such statements about Erin, when made in
Woodbury, may well be found to constitute unlawful
conduct in the Woodbury context. That would be a matter
to be determined by the Trial Examiner hearing the
Woodbury case. But to take what was said in Woodbury
about something which occurred in a different context a
hundred miles away as long ago as a year and a half
' Local Lodge No. 1424, International Association of
Machinists, AFL-CIO (Bryan Mfg. Co.) v N.L.R.B., 362 U.S 411.
6 TXD, section IV, D, 1.
earlier, and use it as the only proof of what did occur, or
the reason for the occurrence, streteches the processes of
reasoning to the breaking point. The proffered evidence of
what was said about Respondent's activities at Erin in the
instant case is after the fact in every respect. I accordingly
reject it as not material to the issue of this case which is
the credibly established economic determination made in
December 1963 by Respondent to curtail the work at its
Erin plant. Instead, I would conclude and find that the
testimony adduced before me constitutes, if believed, a
fortuitous use by Colonial Corporation, by Friedman, and
by the local merchants of a past event, taken out of
context, in a subsequent unrelated situation for a possibly
unlawful purpose.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon consideration of the entire record in this
case and those portions of the record in Case 26-CA-2256,
included herein by stipulation, I reaffirm the
recommendations contained in my original Decision.
Nalco Chemical Company and International
Union of Operating Engineers, Local
No. 564, AFL-CIO
Nalco Chemical Company and International
Union of Operating Engineers, Local
No. 564, AFL-CIO. Cases 23-CA-2172 and
23-RC-2515.
February 21, 1967
DECISION, ORDER , AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
On July 22, 1966, Trial Examiner Horace A.
Ruckel issued his Decision in the above-entitled
proceeding, finding that Respondent had not
engaged in certain unfair labor practices alleged in
the complaint and recommending dismissal of the
complaint in its entirety, as set forth in the attached
Trial Examiner's Decision. He also recommended
that Petitioner's Objection 1 to the election be
dismissed. Thereafter, the General Counsel filed
exceptions to the Decision and a supporting brief,
and Respondent filed a brief in support of the Trial
Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
163 NLRB No. 19