Dk Management Corp.

National Labor Relations Board - Board Decisions

Oct 16, 1985

276 N.L.R.B. 1481 (N.L.R.B. 1985)

COEBURN GARMENT CO.
Coeburn Garment Company (Division of DK Man-
agement Corp.) and International Ladies Gar-
ment Workers Union, AFL-CIO. Case 5-CA-
16863
16 October 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 29 July 1985 Administrative Law Judge
James T. Youngblood issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in re-
sponse to the Respondent's exceptions and brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended
Order. I
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Coeburn
Garment Company (Division of DID Management
Corp.), Coeburn, Virginia, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Order.
i The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an, administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings.
We further reject as unsupported the charges of bias alleged by the Re-
spondent. There is no basis for finding that bias and partiality existed
merely because the judge resolved important factual conflicts in favor of
the General Counsel's witnesses. As the Supreme Court stated in NLRB
v Pittsburgh Steamship Co., 337 U.S. 656, 659 (1949), "[Tlotal rejection of
an opposed view cannot of itself impugn the integrity or competence of a
trier of fact."
Thomas M. Lucas, Esq., of Baltimore, Maryland, for the
General Counsel.
William W. Sturges, Esq., of Charlotte, North Carolina,
for the Respondent.
Victoria Hedian, Esq., of Lutherville, Maryland, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES T. YOUNGBLOOD, Administrative Law Judge.
This matter was tried before me on 10 April 1985 in
Norton , Virginia . The original charge was filed by the
1481
International Ladies' Garment Workers' Union, AFL-
CIO (Union) on 10 December 1984 and amended on 2
January 1985 . The complaint was issued on 24 January
1985. The principal issues are whether the Respondent
selectively and disparately restricted employees from dis-
tributing union literature in a nonworking area during a
nonworking time, and whether the Respondent threat-
ened employees with loss of work in the event they se-
lected the Union as their collective-bargaining represent-
ative, in violation of Section 8(a)(1) of the Act.
On the entire record , including my observations of the
witnesses and their demeanor while testifying , and after
due consideration of the briefs filed by the General
Counsel and the Respondent , I make the following
FINDINGS OF FACT'
1. JURISDICTION
The Respondent, a Virginia corporation, with an office
and place of business in Coeburn, Virginia, is engaged in
the manufacture of women's clothing. The Respondent
admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The record reflects that the Respondent maintains a
rule prohibiting any solicitation or distribution on com-
pany premises during worktime. The rule also prohibits
union organizing during worktime. The rule specifically
does not apply to periods during the workday when em-
ployees are properly not engaged in performing their
work tasks. Violators are subject to discipline up to and
including discharge.
In its answer, the Respondent admitted that on one oc-
casion it erroneously restricted employees from distribut-
ing union literature in a nonworking area during non-
working time. In view of this admission, I find that on 6
November 1984 the Respondent, acting through Dan
Vipperman, maintained and enforced its no-distribution,
no-solicitation rule, selectively and disparately by re-
stricting employees from distributing union literature in a
nonworking area during nonworking time in violation of
Section 8(a)(1) of the Act.
Paragraph 7 of the complaint alleges that about 9 No-
vember 1984 the Respondent threatened employees that
work be transferred elsewhere in the event they selected
the Union as their collective-bargaining representative.
In October 1984 employees of the Respondent at its
Coeburn, Virginia facility became involved in an organi-
zational campaign with the Union. On 6 November 1984,
I The facts found herein are a compilation of the credited testimony,
the exhibits, and stipulations of fact, viewed in light of logical consisten-
cy and inherent probability. Although these findings may not contain or
refer to all of the evidence, all has been weighed and considered. To the
extent that any testimony or other evidence not mentioned in this deci-
sion may appear to contradict my findings of fact, I have not disregarded
that evidence but have rejected it as incredible, lacking in probative
weight, surplusage, or irrelevant Credibility resolutions have been made
on the basis of the whole record, including the inherent probabilities of
the testimony and the demeanor of the witnesses. Where it may be re-
quired I will set forth specific credibility findings
276 NLRB No. 168
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
around 6:30 a.m., five of Respondent's employees gath-
ered on the sidewalk leading between the Employer's
parking lot and plant facility for the purpose of distribut-
ing organizational leaflets and union authorization cards.
Respondent's facility works during the day from 7 a.m.
to 4 p.m. Almost immediately after the commencement
of this activity, Plant Manager Vipperman confronted
the five employees and informed them that without per-
mission from the Respondent, they were not permitted to
pass out literature on the sidewalk leading to the Em-
ployer's facility, and that if they continued to do so, he
would call the authorities and have them removed. Vip-
perman further informed the employees that if they
wished to continue their activity, that they would have
to go to the end of the parking lot, completely off the
Employer's premises . After this threat by Vipperman,
three of the employees removed themselves to the end of
the Employer 's parking lot and continued distributing
union literature and soliciting employees , and soon there-
after they were joined by the remaining two employees.
Although these employees were on company property,
they were not working at the time. All five of the em-
ployees clocked in on their regular shift at 7 a.m., after
the above incident. The employees involved in this inci-
dent thereafter informed their fellow employees about
the statements made by Vipperman that morning. There
is no doubt that the Respondent violated Section 8(a)(1)
of the Act by its selective and disparate enforcement of
its no-solicitation, no-distribution rule on 6 November
and I so find , as indicated above.
On 9 November 1984, shortly before noon , Acting
Plant Manager Sult assembled all of the production em-
ployees of the Respondent's Coeburn plant facility in the
middle of the sewing floor . When the assembled employ-
ees were gathered around Sult, he, being in the center of
the circle of employees , delivered an antiunion speech.
The General Counsel offered four employee-witnesses
who testified essentially that Sult read from a prepared
speech. That is, he had a piece of paper in his hand and,
from what they observed, he was for the most part read-
ing from this paper. They testified that Sult discussed a
number of issues during this speech , including the fact
that the Respondent was opposed to the employees'
union organizational campaign and, in fact, applauded
the efforts of the employees who were engaged in an-
tiunion organizational efforts. Suit further attempted to
explain to the employees why they were having an engi-
neering program and that this engineering program had
enabled the Respondent to more closely compete with
foreign and domestic manufacturers within the industry.
Suit further informed the employees that labor organiza-
tions generally had not faired too well in the southwest
Virginia area and gave specific instances where union or-
ganization had resulted in decreases of work specifically
with regard to a nearby plant in Clintwood, Virginia.
Suit further advised the employees that the Union was
only interested in collecting their monthly dues. All four
of the General Counsel's witnesses testified that at the
end of the speech Sult told the employees that if the
Union was successful and got in at the plant, the work of
the employees would be shipped elsewhere and it would
mean his job as well as their job . Suit also informed the
employees that as of noon that day he was replacing
Vipperman as plant manager.
Frank W. Sult testified on behalf of the Respondent
that he was currently the general manager of sewing and
finishing of the Respondent's facility at Coeburn, Virgin-
ia. He testified that at the time of the 9 November
speech, he was the acting plant manager. He further tes-
tified that on 9 November 1984 he assembled all of the
production employees at the Coeburn facility in the
middle of the sewing room, and read them a prepared
speech which had been given to him over the telephone
by his boss, Raymond Mayberry, the president of Don
Kinney. Suit testified that he was instructed to read the
text of the prepared speech and nothing more. He testi-
fied that he read the text of the printed speech only and
that when he finished the speech, he stood up on a table
and informed all of the employees that he had let go the
previous plant manager, Vipperman, and that he was in
charge until further notice. Suit's testimony indicates that
he did not deviate from the speech except that he made
the comment at the end that he had let Vipperman go
and that he was taking over. Suit read the speech into
the record and it took approximately 2-1/2 to 3 minutes
to read the speech. The record reflects that this entire
occurrence took approximately 6 to 8 minutes and that
towards the end of the incident, the noon bell rang. Ob-
viously, the printed text did not contain the alleged
threat.
Conclusions
The four witnesses called by the General Counsel tes-
tified straightforward and their testimony had an obvious
ring of truth. All of these employees testified that Sult
had a paper in his hand and from what they could see,
he generally was reading from that paper. However,
they all testified that Sult stated that, if the Union were
to get in, their work would be transferred elsewhere and
that this could mean his job as well as their job. They all
testified as did Sult that he explained to them that he had
taken over for Vipperman. Sult testified that he read
from the prepared text only and did not deviate except
for the comments relating to his replacing Vipperman.
Under the circumstances, I credit the testimony of the
General Counsel's witnesses and conclude that the Gen-
eral Counsel has sustained its burden of establishing that
the Respondent did in fact threaten its employees that
work would be transferred elsewhere in the event they
selected the Union as their collective-bargaining repre-
sentative. Thus, the Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the
Act.
CONCLUSIONS OF LAW
1. By selectively and disparately restricting employees
from distributing union literature in a nonworking area
during nonworking time, the Respondent engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of
the Act.
2. By threatening employees that work would be trans-
ferred elsewhere in the event they selected the Union as
COEBURN GARMENT CO.
their collective-bargaining representative, the Respond-
ent has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed
ORDER
The Respondent, Coeburn Garment Company (Divi-
sion of DK Management Corp.), Coeburn, Virginia, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Selectively and disparately restricting its employees
from distributing union literature in nonworking areas
during nonworking times.
(b) Threatening its employees that work would be
transferred elsewhere in the event they selected the
Union as their collective-bargaining representative.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its facility in Coeburn, Virginia, copies of
the attached notice marked "Appendix."3 Copies of the
2 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
3 If this Order is enforced by a Judgment of a United States Court of
Appeals, the, words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board " shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
1483
notice, on forms provided by the Regional Director for
Region 5, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT selectively or disparately restrict our
employees from distributing union literature in nonwork-
ing areas during nonworking times.
WE WILL NOT threaten our employees that their work
will be transferred elsewhere in the event they select the
Union as their collective-bargaining representative.
WE WILL NOT in any- like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed them by Section 7 of the Act.
COEBURN GARMENT COMPANY (DIVISION
OF DK MANAGEMENT CORPORATION)