Dadco Fashions, Inc.

National Labor Relations Board - Board Decisions

Aug 8, 1979

243 N.L.R.B. 1193 (N.L.R.B. 1979)

DADCO FASHIONS. INC.
Dadco Fashions, Inc. and International Ladies' Gar-
ment Workers' Union, AFL-CIO. Cases 15-CA-
6232, 15-CA-6232-2, and 15-CA 6232 3
August 8, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On March 30, 1979, Administrative Law Judge
Bruce C. Nasdor issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief. The General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, as
modified herein, and to adopt his recommended Or-
der, as modified herein.
The Administrative Law Judge found, and we
agree, that Respondent violated Section 8(a)( ) of the
Act from August 26 to September 2, 1976.' during
which time President David Dorskey, Plant Manager
Melvin Cauthen, and Alta Mae Allen, a supervisor.
threatened employees with plant closure if they chose
to be represented by the Union; Dorothy Longino. a
supervisor, permitted employee David Randy Tisdale
to address assembled employees and did not disavow
his threats of plant closure; Cauthen, Allen, and San-
dra Matthews, a supervisor, solicited employees to
withdraw their authorization cards; Dorskey, Cau-
then, and Allen created the impression of surveil-
lance; Longino, Allen, and Matthews engaged in sur-
veillance; and Longino interrogated an employee
with respect to her union sympathies. The Adminis-
trative Law Judge also properly found that the Union
represented a majority of the employees in the pro-
duction and maintenance unit on August 30;2 Re-
spondent violated Section 8(a)(5) of the Act by refus-
ing to bargain with the Union when it requested
recognition on September 16; and a bargaining order
I All dates below refer to 1976.
2 The Administrative Law Judge found that on that date where were 81
unit employees, 46 of whom had signed valid authorization cards Respon-
dent concedes the Union's majority status at that time but, as indicated
below. excepts to three unit exclusions and the counting of one of the cards
as of the latter date3 is warranted because Respon-
dent's unfair labor practices were sufficiently serious.
pervasive, egregious, and substantial to prevent the
holding of a fair election.
Respondent contends, inter alia, that the Adminis-
trative Law Judge erred by the following: ( I) exclud-
ing William Ezernack, a janitor, from the unit: (2)
counting the authorization card of Patricia Ann
Thomas: (3) finding that Allen and Matthews were
supervisors within the meaning of the Act; and (4)
finding that a bargaining order is warranted.
As to contention (I), the basis tfr the Administra-
tive Law Judge's exclusion of Ezernack from the pro-
duction and maintenance unit is that his cleaning du-
ties at the plant are performed when no production
employees are present. The record shows that Ezer-
nack. who is 75 years old, reports for work each da!
at 4 p.m. when the production and maintenance em-
ployees are still on duty. He works 6 hours daily and.
except for health insurance, receives the same benefits
as the production and maintenance employees. We
conclude that Ezernack should be included in the unit
because it is evident that he has a sufficient commu-
nitv of interest with the production and maintenance
employees, and he would be otherwise unrepresent-
ed.4
As to contention (2). Respondent asserts that
Thomas' card, dated August 19, should not be
counted on the ground that her name was not listed
on Respondent's payroll during the time pertinent
herein. The record shows that a handwriting expert
found her signature genuine after comparing it with
those on her application tbr employment and her
withholding allowance certificate. In addition. em-
ployee Edna Demery (Webb) testified without contra-
diction that she gave Thomas a card on August 19.
Nevertheless, in the absence of her name from the
payroll. we shall not count her card which, in an
event, does not determinativel affect the Union's
majority status.
As to contention (3), the record shows, inter alia.
that Allen and Matthews as well as Longino (an ad-
mitted supervisor), attended a meeting at Plant Man-
ager Cauthen's office: Cauthen relayed orders
through Allen and Matthews, who did little produc-
tion work: employees were instructed by Cauthen to
obey them without question: they told employees
See 4/bertqln .Manufactruring C(rnmpnv, 236 NI RB t3 1978). and the
cases cited therein
Member Jenkins would find that the bargaining blgalhtion came into exi,-
tence on August 30. the date Respondent began is tensie and unlawuli
efforts to undermine the Union.
I Georuia-Pacific Corporation, et a/. 181 NRB 377 170). whlch i cited
by the Administrative I.aw Judge. is inapposite as the janitorial emplosee
therein worked only in the emploser's office huilding where no production
employees were stationed at any time and did not receise the benefit, en-
)oyed b the latter
243 NLRB No. 170
1193
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what cuts and colors to work on and what shirts had
to be boxed and shipped; they gave employees new
assignments when the employees ran out of work;
they pulled timecards of tardy employees; and they
signed or initialed production sheets. However, there
is no evidence that Allen or Matthews had the au-
thority to hire, discharge, suspend, recall, or promote
employees or to make effective recommendations for
such action.
Finally, the record shows that Allen was paid $2.90
per hour as compared to $2.65 per hour for the em-
ployees in her department; Matthews was paid $2.75
per hour while the employees in her department re-
ceived an hourly rate of $2.65.
Notwithstanding their lack of authority to hire, dis-
charge, suspend, recall, or promote employees or to
make effective recommendations for such action, it is
clear from the foregoing that Allen and Matthews re-
sponsibly directed the employees in their departments
and were therefore supervisors as defined in the Act.
Moreover, if they were not held to be supervisors
there would be a gross disproportion between the two
admitted supervisors; namely, Cauthen and Longino,
and the more than 80 employees in the unit.5
As to contention (4), Respondent asserts that its
unfair labor practices were not sufficiently serious to
justify a bargaining order, and that any coercive ef-
fect thereof has been dissipated by the passage of
time-about 2 years-since their occurrence and by
the high turnover of its employees during that period.
As the Supreme Court made clear in N.L.R.B. v.
Gissel Packing Co., Inc., 395 U.S. 575 (1979), unfair
labor practices of the number and severity of those
herein have a negative impact on the free choice of
employees. We therefore conclude, in agreement with
the Administrative Law Judge, that a bargaining or-
der is appropriate under the circumstances in the in-
stant proceeding.
It is also well settled that the Board is not pre-
cluded from issuing a bargaining order where, as
here, there has been a considerable length of time and
a substantial amount of turnover since the commis-
sion of the unfair labor practices. 6 In this connection
the Board recently held with respect to the signif-
icance of the passage of time that the impact of a
respondent's serious and flagrant misconduct remains
long after it occurs.7 Accordingly, we find, in agree-
ment with the Administrative Law Judge, that the
'See P. E. Van Pelt, Inc. d/b/a Van Pelt Fire Trucks, 238 NLRB 794
(1978); and William O. Hayes, d/bl/a Superior Casting Company, 230 NLRB
1179, 1189 (1977).
'See New Alaska Development Corp., et al., 180 NLRB 971 (1970). and the
cases cited therein.
7 See Chez Monez Ford, 241 NLRB 349 (1979); and Richard Tsschler, et al
d/b/a Devon Gables Nursing Home, 237 NLRB 775 (1978).
policies of the Act are best effectuated by a bargain-
ing order herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Dadco
Fashions, Inc., Coushatta, Louisiana, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied:
I. Substitute the following for paragraph 2(a):
"(a) Recognize and bargain upon request with the
Union, as of September 16, 1976, as the exclusive rep-
resentative of the employees in the following appro-
priate unit and, if an understanding is reached, em-
body such agreement in a written signed contract.
All production and maintenance employees and
the janitorial employee at the Coushatta, Louisi-
ana, plants; excluding office clerical employees,
professional employees, guards. and supervisors
as defined in the Act.
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL. NO] threaten employees that we will
close the plant if they engage in union activities
or select the Union to represent them.
WE WILL NOT ask employees to withdraw the
cards which they signed for the Union.
WE WILL NOT keep watch over employees'
union meetings or activities.
WE WILL NOT act like we are keeping watch
over employees' union meetings or activities.
WE WILL NOT threaten employees that we will
affect their jobs or salaries if they refuse to ask
the Union to return the card they signed.
WE WILL NOT ask employees how they feel
about the Union.
WE WILL NOT allow employees to make
speeches in the presence of our supervisors where
they threaten that we will close the plant if you
join the Union or participate in union activities.
WE WIL.L NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
1194
I)ADCO FASHIO()NS. IN(.
cise of the rights guaranteed them by Section 7 of'
the National Labor Relations Act.
Wt wtl.l recognize and, upon request, bargain
collectively with the International Ladies' Gar-
ment Workers' Union. AFL-CIO, as of Septem-
ber 16, 1976, as the exclusive representative of
the employees found herein to constitute an ap-
propriate unit and, if an understanding is
reached, embody any such agreement in a writ-
ten signed contract. The bargaining unit is:
All production and maintenance employees
and the janitorial employee at the Employer's
Coushatta, Louisiana, plants; excluding office
clerical employees, professional employees,
guards, and supervisors as defined in the Act.
DADCO FASHIONS, INC.
DECISION
STATEMENI ()F HE CASt
BRUC(F C. NASDOR, Administrative Law Judge: This case
was heard in Natchitoches. Louisiana. on July 24. 25. and
26. 1978. The charge in Case 15-CA-6232 was filed by the
International Ladies' Garment Workers Union. AFL-CIO
(herein called the Union). on October 4. 1976.' On Novem-
ber 22. 1976, the Union filed a charge in Case 15-CA-
6232-2 and on December 2, 1976, filed the 8(a)(l) and (5)
charges in Case 15-CA-6232-3 seeking a bargaining order.
An order consolidating cases, consolidated complaint. and
notice of hearing issued on November I 1. 1977. The com-
plaint alleges violations of Section 8(a)(1) and (5) of the
National Labor Relations Act. as amended (herein called
the Act).
At the hearing counsel for the General Counsel made a
motion to amend the complaint in certain respects. The
motion was granted; paragraph 7(c) is an additional allega-
tion that during late August 1976 Dorothy Langino permit-
ted an employee to address an assembled employee comple-
ment at the plant and in her presence and with her
aquiescence to threaten plant closure if the employees chose
to be represented by the Union. Another addition is para-
graph 7(d) alleging that during late August 1976 Dorothy
Langino interrogated an employee at the plant about the
employees' union sympathies and desires. An allegation
was added that Respondent created the impression of sur-
veillance of union activities with respect to David Dor-
skey's speech of August 30, 1976. The last amendment to
the complaint is with respect to Mel Cauthen's speech on
the same date which created the impression of surveillance
and the solicitation of employee grievances.
In its answer Respondent denies the commission of any
unfair labor practices and further denies the supervisory
status of Alta Mae Allen2 and Sandra Matthews.
I All dates are in 1976 unless otherwise indicated.
2 Her married name is Alta Mae Thomas.
Upon the entire record. including m ohsernation of the
demeanor of the witnesses and after due conisideratllonl of
the briefs filed hb the parties. I make the ollo ilng:
FINDIN;S (- A( I
I. Jt RISI)I( II()N
Respondent is and has been at all times material herein a
corporation located at C'oushatta. Louisiana. where It main-
tains two plants engaged in the manufacture of children's
clothes. During the preceding 12 months. a representative
period. Respondent purchased and received at its Cou-
shatta. Louisiana. plants goods and materials alued in e-
cess of $50.000 directly from points located outside the
State of Louisiana. During the same period Respondent
manufactured at its Coushatta. Louisiana. plants and
shipped to points located outside the State of louisiana
products valued in excess of $50.000.
Respondent is an employer engaged in commerce within
the meaning of Section 22). (6). and (7) of the Act.
II. ilt tABOR (R(iANIZ/AiOt)N
International Ladies' Garment Workers Union, Al:l
(C10. herein called the Union, is labor organization within
the meaning of Section 2(5) of the Act.
111. TIlE Al.IF(;il) I NI-AIR L.ABOR PRA( I( -S
President and Owner David Dorske's' Speech
David Dorskey did not testify. but the parties stipulated
that if called he would testify that he read a speech which is
in evidence as Respondent Fxhibit 15. attached hereto as
Appendix A [Appendix A has been omitted from publica-
tion.] The parties further testified that DorskeN read the
speech verbatim to assembled employees on compan_ time.
Employees testified that he was referring to notes while
speaking, and that Dorskey was angry when he delivered
the speech. Melvin Cauthen testified that on August 30 the,
were engaged in recruiting employees for the purpose of
expanding the employee complement to 100 in anlicipation
of increased production.
Plant Manager Melvin Cauthen's Speech of August 30
The parties stipulated that the second portion of the
speech which is captioned "Cauthen." was the speech Cau-
then made immediately following Dorskey's speech. The
parties stipulated that if called Cauthen would testify that
he read the contents of the speech verbatim and did not
depart from the text, although Cauthen admitted that he
did depart from the text when he invited employees to come
to his office and read the editorial which was attached to
the text of his speech. Margaret Egans. Edna Mae Webb
(nee Demery), Elizabeth Pierot (nee Lebrun). Genevia
Murphy. and Johnnie R. Tookes, employees of Respon-
3 Throughout the record his name s spelled "Dorskes' and ")orsk " I
have followed the spelling in the complaint.
I s
I)lDECISIONS OF() INA ()NAL ABOR RELATIONS BOARD
dent. testified that ('authen stated they should come to the
office and he would aid them in getting their cards back,
they could sign a paper indicating their desire to get their
union authori,ation cards hack, and that he would aid them
in writing letters to the Union. if necessary utilizing Re-
spondent's attorney in efforts to get their cards hack. lHe
promised to keep the information and the identities of the
individuals confidential, and he threatened that the plant
would close if it became unionized.
The August 25 Meeting at St. Savior Baptist Church
Employee Margaret Egans testified that sometime during
the day of August 26 prior to quitting time in the plant she
was told by Alta Mae Allen, floorlady, that the supervisors
were going to the church after work and she was going to
stall them so that the employees could get to the church
first. As a result of this discussion Margaret Egans and
other employees went to the roadside park because, in
Egans' words, she knew that the supervisors were going to
be at the church and she did not want to be there. Mason
London, the union representative, arrived and told the em-
ployees to go back to the church for the meeting. At the
church John C(urtis. another union representative, was
standing against the wall talking to Randy Tisdale. Alta
Mae Allen, Dorothy Longino. Carrie Byrd, Else Patrick,
and Sandra Matthews. Approximately 36 employees at-
tended the meeting at the church, and Allen remained
throughout the meeting. Matthews did not remain through-
out the meeting but left at the same time as did Tisdale,
Byrd, and Patrick. According to Egan's testimony, Allen
called her aside and told her that she and Tisdale were
going to Cauthen's house to call merchants with whom em-
ployees had credit to pressure employees not to engage in
union activities.'
John Curtis, the Union's International representative,
testified that Longino was quite vocal and loud at the union
meeting and raised questions about a number of plants in
Louisiana and elsewhere that had closed because of the
Union. According to Curtis, 45 to 60 employees attended
the meeting. but some of them did not sign the meeting
roster. At some point in the meeting Curtis announced that
he had 46 union authorization cards in his possession. Ac-
cording to Curtis, Dorothy Longino was still present at the
meeting when he made this announcement.
After the meeting Curtis and some of the employees
walked outside and were standing in front of the church
talking when Alta Allen approached them. Curtis asked her
if she wanted to answer some questions. He asked her if she
was a supervisor or did she admit to being a supervisor. She
responded. according to his testimony. "Well, it could not
be proved in writing." Curtis then asked her if she came
there on her own or if she was sent there by high officials.
She said that she was sent there to see who was there and
what was said. She was being truthful, she said, because she
was on "church ground."
Longino admitted that the following day she went to see
Cauthen and told him that some people from the plant were
4This was not alleged as a violation, and no reference is made in the
General Counsel's bnef I therefore make no finding.
present at the union meeting. Cauthen corroborated that
Longino had told him that. He further admitted that he
asked Longino how many employees attended.
Longino and Cauthen testified that subsequent to August
26, Longino was instructed not to attend union meetings
and was given other details as to the role of a supervisor
during a union campaign. Matthews and Allen were also
present for these instructions.
The Union Meeting at Roadside Park Highwa 71
Union representative Curtis and employees Egans.
Webb, Pierot, Murphy, Tookes, and Gosey testified with
respect to this incident. In essence they testified that Mat-
thews accompanied by an employee Dwyane Gus in a
green car: and Longino, accompanied by secretary Pam
Howe. drove back and forth at a slow rate of speed observ-
ing the meeting which was taking place. Longino admitted
driving by four times in a blue van because she was "curi-
ous" and wanted to see what was going on. Neither Mat-
thews nor Guy was called by Respondent to testify regard-
ing this incident. The speed limit at that point on Highway
71 is 55 mph.
David Randy Tisdale's August 26 Speech
Respondent called Tisdale as its witness. He is the son of
the president of the Bank of Coushatta, Louisiana. and is
presently a supervisor. At the time of this incident he was a
cutter, spreader. and marker but not a supervisor within the
meaning of the Act. Prior to noon on August 26 Tisdale left
his job at the old plant and went to the main plant to pub-
licize a meeting he wanted to hold at noon. The meeting
was held, and it lasted from between 5 and 15 minutes with
varying estimates as to the number of employees in attend-
ance. Tisdale estimated that there were 10 to 15, Allen
stated 10 or so. and three employees testified that most of
the operators were present. Alta Mae Allen and Dorothy
Longino were present for the meeting and both had encour-
aged employees on their way to lunch to attend the meet-
ing. Employees testified that Tisdale discussed a recent fire,
stated that this was the wrong time for a union, that the
plant would close if the Union came in, and that they
would all be out of work. Counsel for Respondent asked
Tisdale on direct examination if he told employees that the
plant would close if they chose to be represented by a
union. Tisdale responded, "No, not in that manner." On
cross-examination Tisdale testified that he did not recall
either saying or not saying anything about plant closure.
Dorothy Longino's Interrogation of Employee Ida Nell
Norton
Prior to one of the meetings at St. Savior Baptist Church,
i.e., on August 25 or 26, Longino approached Norton in the
sewing building at the plant. Norton testified that Longino
stated that she wanted to ask Norton something and
wanted her to tell the truth. She proceeded to ask Norton
whether she was for the Union or against it. Norton re-
sponded that she was for the Union 100 percent. Longino
advised her to weigh both sides.
1196
I>ADCO() FASHIONS. IN(C.
Alta Mae Allen's Threat to Employee Edna Demerx
(Webb)
Demery, one of the individuals who had solicited signa-
tures on the union authorization cards, testified that she
had a conversation with Allen sometime during the Union's
organizational campaign. According to Demery. the con-
versation took place in the bathroom in the plant. and Alta
Mae Allen informed her that if the Union was to come into
the plant the plant would be closed down. According to
Allen, she stated that the plant had caught fire, all the ma-
terial was gone, that they were asking for a union, and the
plant could be closed down.
Solicitation of Card Withdrawal
In her testimony Alta Allen admitted that sometime dur-
ing the union campaign she told Edna Mae Demery that
she had helped her to get her job. and Allen asked her if she
would mind asking for her card back. According to Dem-
ery, Allen told her that Cauthen's child had been sent out
town because of a threat. Allen referred to Demery's low
seniority and how she would be the first to be fired. Allen
asked her why she did not get her union card back. That
evening Allen dictated the text of the letter to Demery who
brought it to work the next day'. The text of the letter.
which is in evidence. reads:
Dear sir.
I am write [sic] this letter to let you know that I am
not no longer interested in union and I would like to
have my card back and I am a employee of Dadco
Fashions.
THANK YOU,
EDNA MAE DEMERY
Genevia Murphy testified that on the day that the
speeches were made at the Company she was asked by San-
dra Matthews if she would like to get her card back, that if
she wanted if back she could go to the office and sign a
piece of paper and get it back, and that it would be confi-
dential and she would not be fired if she was to get her card
back. Matthews guaranteed her that she would not be fired.
The Supervisory Status of Alta Allen and Sandra
Matthews
Respondent denied the supervisory status of the above-
named individuals and litigated the issue. In October 1976
Respondent changed Matthews' and Allen's job titles to
"supervisor." Cauthen testified that the only change in their
duties after this date was that they received the power from
him to give directions and make decisions. According to the
testimony of employees, there was no ostensible change in
their duties. The parties stipulated that the employees in the
unit were paid a base of $2.65 per hour. Allen's rate was
$2.90 per hour, Matthews' rate was $2.75 per hour, and
Longino's, rate was $3.05 per hour. Longino is an admitted
supervisor. The parties stipulated further that all employees
in the unit had $3,000 in life insurance except Tisdale. Guy.
and Longino who had $5,000 policies. All of the employees
including the two individuals at issue punched timeclocks.
'he only individual who did not punch a clock is Cauthen.
Plant Manager Cauthen testified that Matthews and Al-
len had daily access to him or the purpose of rela, ing or-
ders and grievances. According to him. their main function
was to physically move bundles among employees and ob-
tain supplies for them. Any overtime decisions were made
by Cauthen and communicated to unit employees b Mat-
thews. Respondent takes the position that both Allen and
Matthews were conduits to Cauthen and nothing more. Re-
spondent contends that the only basis upon which it could
be held liable for the acts of Allen and Matthews would be
if they were agents of Respondent. In this regard Respon-
dent points out that the only evidence of agency on the
record is that Allen acted as an agent in her testimony con-
cerning admissions she made to union representative John
('urtis. which should not he credited.
Allen does not do any sewing but does tell operators
what cuts to sew. According to Demery. Allen trained her
in a shoulder operation, and she called Allen when she had
problems. Edna Mae Webb Demers testified that it was her
understanding from ('authen that she had to obey Allen's
orders, and that Allen pulled the timecards of' tardv em-
ployees. Furthermore. Allen signed or initialed production
sheets.
Pierot (Lebrun) testified that she was introduced to Allen
as her supervisor by Cauthen. Employee Tookes testified
that she and other employees were told b Cauthen that if
Allen instructed employees to do something they were to do
it and not talk back to her because she got all of her instruc-
tions from Cauthen. and when she told them something it
was just like Cauthen stating it.
Testimonies of other employees reveal that Allen told
them to assemble when Dorskey and Cauthen addressed
them on August 30, and Tisdale had Allen stop employees
coming out of work at lunchtime so that he could talk to
them.
Employee Murphy testified similarly to Tookes regarding
Matthews. Cauthen told employees that Matthews was
"over the back department." He stated that it was just as if
he was speaking to the employees when Matthews gave
them orders.
The Appropriate Unit
The parties agreed that all production and maintenance
employees employed by Respondent at its Coushatta. Lou-
isiana, plants, excluding office clerical employees. profes-
sional employees. guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act.
Majority Representative Status
The Union demanded recognition and bargaining rights
in the appropriate unit on September 16. Forty-six union
authorization cards were admitted into evidence through
the testimonies of a handwriting expert and witnesses.
Counsel for the Employer states in his brief that the total
cards signed never exceeded 45 and characterizes them as
I 197
DECISIONS OF NATIONAL LABOR RATIONS BOARI)
General Counsel Exhibits 2 46. The record reflects that the
union cards are General Counsel Exhibits 3(1 )(46).
Analysis and Conclusions
Dorskey's Speech
The Employer contends that Dorskey's speech was pro-
tected by Section 8(c) because it was delivered in the con-
text of an emotionally charged atmosphere. Moreover, the
Employer characterizes the speech as an emotional out-
burst rather than a threat and avers that the speech would
be interpreted by the employees as such. Perhaps as con-
tended, Dorskey was weary and felt that he had been sub-
jected to personal attacks. This does not negate the coercive
effects of the threats contained therein. The Employer
would have me subjectively assess how employees would
interpret the speech, which is contrary to Board law.'
Without repeating the text of the speech which is at-
tached hereto as Appendix A [omitted from publication], a
fair reading of same clearly reveals to me that Dorskey, in
no uncertain terms communicated to his employees that
union representation would be followed by plant closure.
The entire speech lacked finesse, and Dorskey bluntly told
the employees that his family had union plants at other
locations that had to close. He equated "good people" with
nonunion people.
Early in his speech Dorskey stated, "I highly resent the
personal attacks made on me and the personal remarks that
have been made in union meetings. You may think that all
those folks sitting in those union meetings are agreeing with
the rabble-rousing talk of those outsiders who are preaching
dissension and dissatisfaction and making personal attacks
on me. But, I can tell you, that we've heard from any num-
ber of people who didn't like what they heard there at all:
and I didn't like it either."
I find and conclude that the speech made by Dorskey on
August 30 threatened employees with plant closure if they
chose to be represented by a union, clearly in violation of
Section 8(a)(1) of the Act. I granted General Counsel's mo-
tion to amend the complaint incorporating a separate alle-
gation that Dorskey, in the context of his speech, created an
impression of surveillance. Based on the language quoted
immediately hereto I find and conclude that Dorskey cre-
ated, in the minds of employees, the impression that he was
engaging in surveillance of their union activities. My con-
clusion herein is further buttressed by the presence of su-
pervisors at union meetings, which I will address and detail,
infra.
Cauthen's Speech
At the hearing counsel for the General Counsel moved to
amend the complaint to include the allegations that Cau-
then, during his speech, solicited employee grievances and
created the impression of surveillance. The motion, over the
objections of counsel for the Employer, was granted.
5 In my view, an employee would indeed feel threatened by Dorskey's
remarks.
Basically ('authen reemphasized the remarks that [)or-
skey had made in his speech. Cauthen departed from the
text when he invited employees to come to his office and
read the editorial which was attached to his speech. The
editorial told of strikes, violence, and plant closure at an-
other location involving another employer. Several employ-
ees stated that Cauthen said they should come to the office.
and that he would aid them in getting their union cards
back. Furthermore. Cauthen told them that they could sign
a document indicating a desire to get their union authoriza-
tion cards returned, and he would aid them in writing such
letters or documents including, if necessary, utilizing Re-
spondent's attorney to aid their efforts. I credit the testimo-
nies of these employees. and I credit the testimony that
Cauthen said the plant would close if the Union was suc-
cessful.
Cauthen stated that he thought it was obvious that some
of the employees had already signed union cards. He also
showed the employees a copy of one of' the cards and told
them if they signed it it would be a serious step toward
union control. A little further in his speech Cauthen stated
that the Union only needed a 30 percent showing of inter-
est, and he was sure that they had that already.
Based on the foregoing I find and conclude that Respon-
dent, by and through Plant Manager Cauthen, engaged in
activity which violates Section 8(a)(I) of the Act by solicit-
ing employees to withdraw their union authorization cards.
by creating the impression of surveillance, and by threaten-
ing employees with plant closure if they chose a union or
engaged in union activities.
It is not clear what evidence the General Counsel is de-
pending upon to prove the allegation dealing with solicita-
tion of employees' grievances I can only guess that it is the
statement in Cauthen's speech, "So if you have any ques-
tions, if you are concerned about anything, please do your-
selves a favor of coming and talking to us first." This may
or may not be the evidence that the General Counsel is
depending on. If it is. I think it falls short, in the context of
this speech, of proving that Respondent solicited employ-
ees' grievances. Accordingly, I will recommend dismissal of
this allegation.
The Meeting at St. Savior Baptist Church
According to Longino. an admitted supervisor, she went
to the meeting at the St. Savior Baptist Church but did not
enter the church because the union representative Curtis
stated that if anyone there was a supervisor, he was not
invited to attend the meeting. Based on the weight of the
credible testimony. Longino did enter the church and
stayed for at least part of the meeting. Even if she had not
actually entered the church, I would find this to be engag-
ing in surveillance in violation of Section 8(a)(1) of the Act
because the large group of employees entered the church in
her presence. Accordingly. I conclude that this is a violation
of Section 8(a)(1 ) of the Act.
The Meeting at Roadside Park Highway 71
Longino admitted driving by this meeting four times be-
cause she was curious and wanted to see what was going
1198
DADCO FASHIONS. INC
on. Respondent concedes that this is technically surveil-
lance, and I agree. This is not to say that in the context of
this case, the action is of a technical nature.
Accordingly, I find that the conduct of Dorothy Longino
described above is surveillance in violation of Section
8(a)( 1 ) of the Act.
Tisdale's August 26 Speech
Tisdale is the son of the bank president of the bank of
Coushatta, Louisiana. He is presently a supervisor, al-
though he was not at the time of his speech.
It is undisputed that on August 26 prior to noon Tisdale
left his job at the old plant and went to the main plant to
present a speech. I find, on the basis of the credible evi-
dence and testimony, that, among other things. he stated
that the present was the wrong time for a union, and that
the plant would close if the Union came in and they would
all be out of work. This statement followed Tisdale's discus-
sion of a recent fire at the plant. Both Longino and Allen
were present at this address and took no action to disavow
Tisdale's statements. As a matter of fact, they both encour-
aged employees on their way to lunch to attend the meet-
ing.
Accordingly, I find and conclude that Respondent is re-
sponsible for Tisdale's statements in view of the fact that
admitted Supervisor Longino was present and did not dis-
avow said statements. I conclude that this is another in-
dependent violation of Section 8(a)( I ) of the Act. Allen's
status is discussed, infra.
Longino's Interrogation of Ida Nell Norton
Norton testified that she was approached by Longino in
the sewing building on August 25 or 26. It is clear that
Norton's version of the interrogation, if credited, would be
violative of Section 8(a)(1) of the Act. Having had the op-
portunity to observe Norton and Longino. who were in-
volved in various other allegations. I give complete cre-
dence to Norton's version and find that Longino
interrogated Norton with respect to her union sympathies
in violation of Section 8(a)(1) of the Act.
Alta Mae Allen at the August 25 meeting at St. Savior
Baptist Church
I am convinced by the evidence relating to supervisory
indicia and the testimony regarding Allen's conversation
with union representative Curtis after the meeting at the
church that Allen is a supervisor within the meaning of the
Act. She perceived herself as a supervisor, and the employ-
ees who testified perceived her as their supervisor. I fully
credit these employees and union representative Curtis and
specifically discredit Allen. Respondent contends that I
should discredit the union adherents, who testified because
each provided factual twists ad variations which. Respon-
dent argues, demonstrate that they were testifying to a com-
mon fabricated event rather than to an event which actu-
ally took place. I do not agree with this analysis. Rather, it
6 Witnesses were sequestered.
is these variations which persuade me that the General
Counsel's witnesses were telling the truth and lends cre-
dence to the rationale that they had not rehearsed prefabri-
cated testimony.
Accordingly. I find and conclude that Allen engaged in
surveillance and created the impression of surveillance of
the employees' union activities in violation of Section
8(a)( I) of the Act.
Based on the testimony of Demery, whom I fully credit I
find and conclude that Allen threatened her with plant clo-
sure should the Union be successful and, furthermore,
threatened that employees would suffer economic reprisals
if they did not request the return of their union cards in
violation of Section 8(a) ) of the Act. Furthermore. I find
that Allen solicited this employee to withdraw her union
authorization card in violation of Section 8(a)( I) of the Act.
Based on the facts which have been discussed earlier re-
lating to Tisdale's speech I find and conclude that Allen
acquiesced in Tisdale's threats of plant closure and did not
disavow same in violation of Section 8(a)(1) of the Act.
I find and conclude that Allen further violated Section 8
(a)( 1) of the Act by threatening Demery with plant closure
if employees chose to be represented by the Union.
Sandra Matthews
Based on the totality of the evidence. I conclude that
Sandra Matthews is a supervisor within the meaning of the
Act. Although Respondent concedes that she was formally
made a supervisor in October 1976, there is no record evi-
dence of any change in her duties or functions. One month
later Matthews was transferred to a job as a samplemaker
and, according to the testimony of Cauthen. he convinced
her to take the job because she was "getting a lot of' hassle
in the back" from employees talking hack to her.
Based on Matthews' attendance at the union meeting at
St. Savior Baptist Church, I find that she engaged in sur-
veillance of the union activities of Respondent's employees
in violation of Section 8(a)(I ) of the Act. Several employees
testified that Matthews, in the company of employee
Dwayne Guy. drove back and forth at a slow rate of speed
at a point on Highway 71 where a union meeting was in
progress. Neither Matthews nor Guy testified regarding this
allegation. Accordingly, I conclude that Matthews engaged
in surveillance of the union activities of its employees who
were in attendance at a union meeting on Highway 71 in
violation of Section 8(a)( I ) of the Act.
Employee Murphy's testimony, detailed earlier, reflects
that Matthews solicited her to withdraw her union authori-
zation card. This stands unrefuted in the record. Accord-
ingly, I find and conclude that Matthews. by soliciting an
employee to withdraw said employee's union authorization
card, engaged in a violation of Section 8(a)( I) of the Act.
Majority Status and the Appropriate Remedy
The unit is reduced, according to the Employer's inter-
pretation. from 88 employees (the payroll period ending
September 4. 1976). to 85 employees per stipulations, to 83
employees as of August 26 the last union meeting' and the
'Most cards were signed between August 19 and 26.
1199
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date employees Patricia Williams and Stephen Smith were
no longer employed). Counsel for the Employer contends
that there was no majority as of September 16. Apparently
he deems this the critical date. This date is the date of the
demand and the date which I believe fixes the bargaining
obligation. In Bandag Incorporated, 228 NLRB 1045 (1977),
enfd. 583 F.2d 765 (5th Cir. 1978), the Board speaks of an
"ascertainable date" when it is shown the union represented
a majority of the employees in an appropriate unit and said
date being the date the Board required respondent to bar-
gain with the union.
The crucial date in determining the union's majority sta-
tus is the date when respondent "embarks on a clear course
of unlawful conduct which reasonably could be deemed to
have undermined the Union's majority status," and render
the holding of a fair election unlikely or impossible. See
Beasley Energy', Inc., dh/la Peaker River Run Coal Coit-
pany, 228 NLRB 93 (1977); Trading Port. Inc., 219 NLRB
298 (1975). In this case August 30 is the date when top level
management officials made speeches containing serious
threats. Thus, August 30 is the date I look to in determining
majority status.
In his brief counsel for the Employer names four employ-
ees who were terminated between August 26 and Septem-
ber 16. They are Amie Butler, Genevia Pennington. Ethel
L. Mobley, and Shirley Banks. Exhibits reveal that Butler
was terminated September 2; Pennington, September 10:
Mobley, September 8, and Banks, September 10. Although
it is true that all four of these employees signed union au-
thorization cards their terminations are not relevant to ma-
jority status because they were employed at the time and on
the date that Respondent first undertook to engage in un-
lawful conduct.
It is clear that the Union held a majority status on Au-
gust 30. The 46 union authorization cards introduced into
this record are all valid and properly executed. Respondent
is in agreement that the four clerical employees should be
omitted from the unit. Accordingly, there were no more
than 85 employees in the unit. In view of the fact that I
have concluded that Sandra Matthews and Alta Mae Allen
are supervisory employees, they would be eliminated from
the unit leaving a total of 83 employees. I would also elimi-
nate from the unit Patricia Williams, who was a student,
worked for the Employer during the summer, and for
whom the Employer had made no definite commitment to
rehire. See Fisher Controls Company, 192 NLRB 514 (1971).
I would also exclude from the unit William Ezernack, who,
although he is a janitor, works cleaning the plant from 5
p.m. until his duties are concluded. Although I regret disen-
franchising this individual, the record reflects that he works
at a time when there is no production and when no produc-
tion employees are present. As a basis for this finding I rely
on Georgia-Pacific Corporation, Crosset Division- El Dorado.
181 NLRB 377 (1970).
Based on the foregoing credible evidence, I find and con-
clude that Respondent's unlawful conduct (unfair labor
practices) was serious, pervasive, egregious, and substantial
enough to prevent the holding of a free election. The unfair
labor practices, in my opinion, warrant the issuance of a
bargaining order. N.L.R.B. v. Gissel Packing Co.. Inc., 395
U.S. 575 (1969).
In its brief Respondent states that the General Counsel
would seek to exclude an employee named Coleman from
the unit. I can find no reference to this employee in the
General Counsel's brief or in the transcript of this case. I
therefore will make no finding with respect to said em-
ployee.
Paragraphs 8(c) and (d) of the complaint alleged that
Alta Mae Allen solicited an employee to withdraw said em-
ployee's union card and created the impression of surveil-
lance of union activities by orally informing an employee
that Respondent was aware that said employee had signed
a union card. No evidence having been presented regarding
either allegation. I will recommend that both of these alle-
gations be dismissed.
CON('I.iSlUONS Of LAWV
I. Dadco Fashions. Inc.. is an Employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. International Ladies' Garment Workers Union, AFL.
C10, is a labor organization within the meaning of Section
2(5) of the Act.
3. By threatening employees with plant closure if they
engaged in union activities Respondent violated Section
8(a( I) of the Act.
4. By soliciting employees to withdraw their union au-
thorization cards Respondent violated Section 8(a)( I of the
Act.
5. By creating the impression of surveillance and by en-
gaging in surveillance Respondent violated Section 8(a( 1)
of the Act.
6. By threatening an employee with economic reprisals if
said employee refused to request the return of his or her
authorization card Respondent violated Section 8(a)(1) of
the Act.
7. By interrogating an employee about her union senti-
ments Respondent violated Section 8(a)( 1) of the Act.
8. By permitting an employee to address assembled em-
ployees and condoning threats of plant closure by said em-
ployees Respondent violated Section 8(a)( I) of the Act.
9(a) These unfair labor practices are so serious, perva-
sive, egregious, and substantial that they preclude the hold-
ing of a fair election and warrant an order to bargain.
(b) By refusing to bargain with the Union on and after
September 16, 1976, Respondent has engaged in unfair la-
bor practices within the meaning of Section 8(a)(5) and ( I
of the Act.
10. There is no evidence to support the allegations of
paragraphs 8(c) and (d) of the complaint.
II11. Alta Mae Allen and Sandra Matthews are supervi-
sors within the meaning of the Act.
12. All production and maintenance employees em-
ployed by Respondent at its Coushatta. Louisiana, plants,
excluding office clerical employees, professional employees.
guards, and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
13. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
1200
DADCO FASHIONS, IN('.
TtiE REMtD)Y
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and take affirmative action
designed to effectuate the policies of the Act.
I find that the unfair labor practices engaged in hby Re-
spondent were serious, pervasive, egregious, and substantial
enough to undermine the Union and destroy its majority
status making the conduct of a free election impossible. Ac-
cordingly. under the criteria set forth in Gissel, Respondent
has violated Section 8(a)(5) of the Act. and a bargaining
order is warranted.
In Beaslev Energy. supra, the union did not make a bar-
gaining demand. The Board ordered that respondent be re-
quired to bargain as of the date it unlawfully interrogated
an employee and thereby embarked on its course of unlaw-
ful conduct. In this case there was a clear demand made on
September 16, 1976. and I will recommend that Respon-
dent be required to recognize and bargain upon request
with the Union as of that date.
In view of the nature of the unfair labor practices herein
found, which clearly demonstrate a proclivity to violate the
Act, Respondent shall be further ordered to cease and de-
sist from "in any other manner" infringing upon the rights
guaranteed to its employees by Section 7 of the Act.
Upon the foregoing findings of fact, conclusions of law.
and the entire record, and pursuant to Section 10(c) of the
Act. I issue the following recommended:
ORDERS
The Respondent. Dadco Fashion. Inc.. Coushatta. Lou-
isiana. its officers, agents. successors, and assigns, shall:
I. Cease and desist from:
In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102 48
of the Rules and Regulations, be adopted by the Board and become its
findings. conclusions, and Order. and all objections thereto shall bedeemed
waived for all purposes.
(a) Threatening employees with plant closure f the em-
ployees chose to be represented by a union.
bh) Soliciting employees to writhdraw their 1111on 1 Ilthlri-
zation cards.
(c) ngaging in surveillance and creating the impression
of surveillance.
Id) Threatening emploces ith economic reprisals it
the' refuse to request the return of their union authoriza-
tion cards.
(e) ('oercivel interrogating employees about their union
sentiments.
(f) Permitting an, employee to address issembled em-
ployees and make threats of plant closure if the employees
engage in protected concerted activity or union actiit.
(g) In an' other manner interfering with. restraining. or
coercing employees in the exercise of rights giranteed
them in Section 7 of the Act.
2. Take the following affirmative action which will effec-
tuate the policies of the Act:
(a) Recognize and. upon request. bargain with the Union
as of September 16. 1976. as the exclusive representative of
the employees found herein to constitute an appropriate
unit and. if an understanding is reached, emhodx such
agreement in a written signed contract.
(b) Post at Respondent's plants at Coushatta. ouisiana.
copies of the attached notice marked "Appendix." Copies
of said notice, on forms provided b the Regional Director
for Region 15. after being duly signed by Respondent's rep-
resentatives, shall be posted by it immediately upon receipt
thereof, and be maintained by Respondent for 60 consecu-
tive days thereafter. in conspicuous places. including all
places where nottces to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered. defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 15, in wxrit-
ing, within 20 days from the date of this Order. what steps
Respondent has taken to comply herewith.
I Is ltI'RTIIlR O()RDiRED) that the complaint be dismissed
insofar as it alleges violations of the Act not found herein.
1201