Engineered Apparel, Inc.Download PDFNational Labor Relations Board - Board DecisionsJun 26, 1979243 N.L.R.B. 66 (N.L.R.B. 1979) Copy Citation I)6l('lSIONS (1: NATIONAI. LABOR REL.ATIONS BOARI Engineered Apparel, Incorporated and Amalgamated Clothing & Textile Workers Union, AFL-CIO. Case 17-CA 8381 June 26, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On March 12, 1979. Administrative Law Judge Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel filed cross-exceptions and a supporting brief and a brief in support of the 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 and to adopt his recommended Order. 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 and hereby or- ders that Respondent, Engineered Apparel, Incorporated, Monett, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE HENRY L. JALETE, Administrative Law Judge: This pro- ceeding involves allegations that Respondent Engineered Apparel, Incorporated, engaged in independent conduct violative of Section 8(aXI) and discharged four employees in violation of Section 8(a)(1) and (3) of the Act. The pro- ceeding was intitiated by a charge filed by the above-named Union on June 28, 1978.' Pursuant thereto, complaint is- sued on July 28. On August 24 an amended charge was filed to conform the charge to the matters discovered in the in- vestigation and alleged in the complaint. On December 20 and 21 a hearing was held before me in Joplin. Missouri.' I Unless otherwise indicated, all dates are in 1978. 2 After the close of hearing, Respondent's attorney, Holland. withdrew from the case, and Ellis & King entered an appearance and filed a brief. Upon the entire record.' including m observation of the witnesses, and atter due consideration of' the briels of the parties. I hereby make the fillowing: FINI)IN(iS OF A( I I. Ill I A('ILAI SI IING Respondent is a New Jersey corporation engaged in the manufacture of wearing apparel at facility at Monett. Missouri.4 At the times relevant herein, it employed ap- proximately 65 employees, and Robert Kalb was plant manager. On June 8 employees Diane Stockton. Jean Smith. and Ann Cullers attended a meeting at the city park, where they met with an official of the Union, discussed organizing em- ployees of Respondent. and signed union cards and re- ceived authorization cards for distribution to other employ- ees. Thereafter, they solicited employees to sign cards at the factory and the factory parking lot. On June 14 the three employees and Alba Butler.5 who had signed a card on June 12. were discharged. Those dis- charges. and conduct hereinafter described. are alleged to have been violative of the Act. II. 1Ht1 Al.l E(;fDi) UNFAIR ABOR PRA( I fIS A. 77The Alleged Inlerf'rence. Rslraint, (land Cocrcion The complaint alleges that on June 14 and 16, plant man- ager Kalb interrogated employees about their own and other employees' union activities. In support of this allega- tion, General Counsel adduced testimony from Evelyn Gif- ford, an employee of Respondent. that on June 14. at about 2:30 p.m.. she was summoned to Kalb's office and was asked if she had been solicited to join the Union. She re- plied that she had been solicited by Ann Cullers. He asked her if Alba Butler. Janice Brown, or Trish Nolan had talked to her, and she said "No." She told him, however, that Jean Smith and Diane Stockton had talked about the Union. Gifford's testimony was uncontradicted and is credited. Gifford gave an extremely favorable impression lor candor and truth. The allegation relative to interrogation on June 16 is based on uncontradicted testimony of Carolyn O'Dean, which I credit. that she was summoned on that date to Kalb's office, where Kalb told her he heard there had been a union meeting the night before, and he asked her w hether a lot of people had been there and whether there had been anybody from the press area. O'Dean refused to tell him. and Kalb mentioned a few names. O'Dean still would not answer, and he said, "What in the hell is going on?" After close of hearing. General Counsel offered as G.C. Exh. 17 an evalu- ation form of alleged discriminatee Ann ullers which attorney Holland had inadvertently failed to produce at the hearing and which was discovered later. General Counsel gave notice of the offer to all counsel. There being no objection. G.C. Exh. 17 is received in evidence I Jurisdiction is not in issue. Respondent admits that II meets the Board's direct inflow standard for the assertion o jurisdiction. 'Subsequent to her discharge. Alba Butler married and became Alba But- ler Williams. Except in the remedy section, she will be referred to herein as Alba Butler. 243 NLRB No. 11 66 ENGINEEREDI APPAREl.. IN(CORPORATFI) O'Dean then told him the employees were dissatisfied with a rating system that had been instituted and were tired of being run over. Respondent's only defense to the foregoing is that the conversations were of a friendly and noncoercive character and de minimis. The defense has no merit. The interrogation had no legitimate purpose. the employees received no assur- ances against reprisal, and, as shown below, they occurred in the context of four unlawful discharges. Whether Gifford and O'Dean felt threatened is immaterial (although O'Dean significantly refused to name employees): the test is whether the interrogations tended to coerce. They clearly did. General Counsel contends that Kalb's remark to O'Dean on June 16 that he heard there had been a union meeting the night before created the impression of surveillance of the union activities of the employees. I agree. There is no showing that the matter of a union meeting was common knowledge, nor did Kalb tell O'Dean how he had acquired his information. In the circumstances, including the fact that the remark occurred in the course of an unlawful inter- rogation, I find that the remark created the impression of surveillance and was violative of Section 8(aX I) of the Act. The complaint alleges that on June 14 Kalb threatened to close the facility if the employees selected the Union as their collective-bargaining representative. This allegation is based on the uncontradicted and credited testimony of Gif- ford that in her conversation with Kalb on that date as described above, Kalb stated that where unions have come in, plants have closed down. I find that this remark by Kalb. wholly gratuitous, in the context of unlawful interrogation, and not predicated on the financial circumstances of Respondent, constituted an implied threat that Respondent would close its facility if employees selected the Union to represent them. The complaint alleges that on June 15 Thelma Brattin. an admitted supervisor, threatened employees with dis- charge if they engaged in union activities. The allegation is predicated on uncontradicted testimony of O'Dean that on that date she asked Brattin if she knew about the fight the night before (there was a fracas between Kalb and Cullers on June 14, when Cullers was discharged), and Brattin said "No." O'Dean described what had happened, and Brattin remarked that Cullers should have controlled herself. O'Dean agreed, but observed that under certain circum- stances people lose their cool. She then told Brattin about receiving her raise, and Brattin said: "See, it pays to keep your mouth shut. If a few more people don't settle down and keep their mouth shut four more are going out the door." I find that this remark constituted an unlawful threat of discharge. The record indicates that the employees who en- gaged in union activities-in particular, Ann Cullers-were vocal about their complaints about wages. As indicated be- low, they were unlawfully discharged. As O'Dean's testi- mony indicates, she was aware of the discharges. In all the circumstances, the remark of Brattin cannot be construed as other than an unlawful threat of discharge. The complaint alleges that on June 16 Kalb solicited em- ployee grievances and impliedly promised to remedy them. The allegation is based on O'Dean's testimony described above. While Kalhb may be said to have solicited grievances in asking O'Dean. "What in the hell is going on?" I find no implied promise in the conversation to support a finding of a violation. As a matter of fact. Kalb followed up this con- versation with another one with O'Dean on the same day. where he asked her again. "What the hell is going on'?" and O'Dean repeated the complaints about the rating system. Kalb defended the system, but O'Dean said that neverthe- less, it made the employees mad, adding. "Well, Mr. Kalhb, you can't change people." Kalb rejoined: "Oh. you can change people. You can change them all right." As he walked away, he said, "But I am not going to tell you how. now." In my judgment. If Kalhb implied anything. it was reprisals, not promises, and his remarks confirm my finding that the earlier conversation contained no implied promise.' The complaint alleges that Respondent violated Section 8(a)() of the Act by the conduct of one Cathy Cassity. an alleged supervisor and agent. Respondent denied C('assity was a supervisor, and General Counsel adduced no evi- dence to support a finding that Cassity was a supervisor within the meaning of Section 2(11) of the Act. G(eneral Counsel argues that Cassity occupied a special position as engineering aide whereby employees could reasonably be- lieve she was speaking and acting on behalf of' management and was an agent of Respondent. In my judgment. none of the duties performed by Cassity were such as to impute responsibility to Respondent for her conduct. I shall dismiss the allegations relative to Cassity. B. The Unlasful Discharges I. The Facts As noted earlier. Ann Cullers, Jean Smith. and Diane Stockton attended a union meeting on June 8. signed union cards, and thereafter solicited employees to sign union cards. Cullers testified that on Wednesday, June 14, about 3 to 4 minutes before 4 p.m.. which was quitting time, Kalb walked up to her machine, handed her an envelope, and said, "You had better open this." When she didn't. he re- peated himself and walked away. Cullers opened the enve- lope and found a letter stating, "In view of your bad feel- ings toward me and the company. I feel it is in our best interests that you seek employment elsewhere." Upon read- ing this, Cullers went to Kalb and told him, from a dis- tance, that he owed her an explanation. He said he did not, and she called him an SOB. and he moved toward her. arms and fists waving. Cullers took a swing at him and missed. Cullers asked him why he had given her a 25-cent raise, and he said that it was to pacify her. He told her she was fired and ordered her off the premises. Cullers insisted on making a telephone call and eventually was escorted off the prop- erty by police. 6 In his brief General Counsel adverts to a conversation between O'Dean and Kalhb on June 19 and contends it supports a finding of a violation. In this connection, he suggests that O'Dean was confused. and the June 19 conver- sation occurred on June 16. The suggestion is without support. It is clear that O'Dean meant June 19. As a matter of fact. the conversation was offered not to establish a violation, but to show animus. As the complaint did not allege this incident as violative. and the matter was not fully litigated, a finding of a violation with regard thereto is not warranted. 67 FI E(CISIONS ()1: NAIIONAl. I.ABOR R.AIIONS BOARI) At about the same time. Kalb gave Jean Smith an enve- lope containing a letter stating, "You are dismissed from your duties at Engineered Apparel for lack of effort toward your work." Kalb said nothing to her; he just walked away. About the time, the Cullers-Kalb incident described above occurred, and Smith never did talk to Kalb. At about the same time, Diane Stockton was given an envelope by Kalb which contained a letter stating. "You are being dismissed from your duties because of your fail- ure to follow instructions of your supervisors." Kalb did not discuss this matter with her at all. Alba Butler did not attend any union meetings, but she signed a union card in the dining area of the plant on June 12. and she testified to passing out cards to two other em- ployees. As in the cases of Cullers. Smith, and Stockton. just before 4 p.m. on June 14, Kalb gave her an envelope with a letter stating, "For a continuing poor attitude toward your work and company, I feel it in the best interests of both of us that you seek employment elsewhere." Kalb did not discuss the matter with her at all. 2. Analysis and conclusions The conclusion that the above-named employees were discharged because of their union activities is so compelling that detailed analysis of each case seems unnecessary. Thus. the facts set forth earlier show company knowledge, ob- tained by unlawful interrogation, followed by immediate discharge, in precipitate fashion, during midweek, fr al- leged misconduct or shortcomings of the past, not contem- poraneous with the discharges. These are incontrovertible fcts. Respondent has filed a lengthy brief the theme of which is that each of the alleged discriminatees gave cause for discharge. This, of course, is not the test of the legality of a discharge. The existence of' cause for discharge is no defense where the evidence dem- onstrates that the real reason for the discharge is union activity. In the case of Ann Cullers, the asserted reason for dis- charge was her "bad feelings" toward Kalb and the Com- pany. Cullers admitted she did not like Kaib. and it is clear she did not like the Company. However, she was never warned that her attitude could lead to her discharge. On the contrary, on May 30, only 14 days before her discharge. she was given a 20-cent-per-hour raise. According to Respon- dent, this raise was given to her to improve her attitude. and her attitude did not improve. One can agree that Cul- ler's attitude did not improve with the raise; however, there is not a scintilla of evidence that her bad attitude was mani- fested by any conduct other than her union activity, and it is clear, and I find, that it was this manifestation of bad attitude that motivated Respondent to discharge her. Diane Stockton was employed by Respondent in March and worked as a bar tacker. In mid-May she asked for and was given the job of bundle girl. According to Respondent, she was discharged because of her failure to follow instruc- tions of her supervisors. Stockton admitted to having trou- ble doing the job of bundle girl, but attributed her problems to the fact that she was receiving directions from two super- visors, Thelma Brattin and Sharon Eden. Eden confirmed that fact. Despite that, no steps were taken by Respondent to relieve the situation, nor was Stockton warned that her performance was unsatisfactory. As a matter of fact. super- visor Eden testified she did not discuss Stockton's problems with Kalb and was not consulted about her termination. In this connection, it is noteworthy that Stockton had per- formed satisfactorily as a bartacker and, according to Eden. could have been returned to that job, but the matter was never considered. In light of all these circumstances, the conclusion that the asserted reason for discharge is pre- textual is compelling. According to her letter of discharge. Jean Smith was dis- charged for "lack of effort toward her work." At the hear- ing this was translated by Kalb into absenteeism plus an incident on June 12. There is no question that Smith had a bad attendance record. According to Kalb. he spoke to Smith several times about her absenteeism. Significantly, however, he never warned her that if it continued, it could be a ground for discharge. The record indicates, rather. that about May 30 she was evaluated, and in Kalb's own words, he told her that just a little less absenteeism and a little bit more effort would bring her up significantly in earnings. Such testimony does not indicate that continued absentee- ism may result in discharge. In any event, there is no show- ing that after her evaluation Smith was absent a single day. In the circumstances. the assertion that absenteeism was a reason fr her discharge cannot be credited. The June 12 incident involved Smith's leaving the plant at about 10:30 a.m. to seek work in Springfield. Missouri. She told her supervisor. Sharon Eden. that she was leaving and left over Eden's objections. Eden reported the matter to Kalb. Smith's behavior clearly gave cause for discharge. Yet, it cannot seriously be contended that this was the real reason for the discharge, because Smith worked on both June 13 and June 14. without any mention of the incident. Even more important. according to Smith's uncontradicted testimony, which I credit. about 3:30 p.m. on June 13, Kalb and Eden came to her machine to time her. After doing so, they lingered to talk, and Kalb told her that with just a little more effort she would really be doing good, and, looking at Eden. he laughed and said that Smith was not a bad kid after all, once one got to know her. Kalb said nothing about the June 12 incident. In the circumstances, the assertion that the June 12 incident was a reason for her discharge cannot be credited. Al/h Butler was discharged for "a continuing poor atti- tude toward [her] work and company" In testimony. Kalb translated that into poor quality of work and not listening to or wanting to accept instructions. He asserted that her work had dropped off tremendously and that he had dis- cussed the matter with Butler. However, he could not state when this discussion occurred, but admitted it could have been as much as 4 weeks before her discharge. Yet. the record indicates that on May 30 Butler received an evalu- ation which rated the quality of her work at the highest rating for that factor and rated her skill as excellent and her effort as good, and she was given a 20-cent-per-hour raise. According to Kalb. Butler's work performance fell after her evaluation. In this connection, he testified to an incident when Butler assertedly did 2 whole days' work incorrectly without saying anything to anyone. Butler's supervisor, Nina Hatfield, testified to what it appears was the same incident, which occurred on June 12, in which Butler assert- 68 ENGINEI'RI[) APPAREL. IN(O(RPORA IEI) edly had trouble doing her sewing because she was not fol- lowing instructions to change needles more frequentl. Ac- cepting the testimony of this incident, I cannot credit the testimony that it was the basis of her discharge. In light of her recent evaluation: the undisputed fact that while Kalb was upset over the incident, he gave her no warning (he testified he "sort of appealed" to here hut rather discharged her without explanation 2 dass later, a few hours after in- terrogating Gifford about Butler's participation in union activity: and the fact that her discharge occurred in con- junction with three other discharges herein ound unlawful. the conclusion is warranted, and I find, that the asserted reason for discharge was false, and the real reason was But- ler's union activity. Ill. rH IFtl ()01 O ti F UNFAIR I Bi)R PRA( 11( IS t'P'i)N ( ()MMI R I The activities of Respondent set forth in section I11, above, occurring in connection with its operations as de- scribed in section I, above, have a close, intimate, and suh- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burden- ing and obstructing commerce and the ree flow thereof. TtI RMI-I)Y Having found that Respondent violated Section 8(a)(1) and (3) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent discharged Ann (Cul- lers, Jean Smith, Diane Stockton, and Alba Butler Williams because of their activities on behalf of Amalgamated Cloth- ing & Textile Workers Union, AFL-CIO, I shall order it to offer them immediate and full reinstatement to their former jobs or, if such jobs no longer exist, to substantially equiv- alent positions, without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of earnings they may have suffered by reason of their un- lawful discharge, by payment to them a sum of money equal to that which they normally would have earned as wages from the date of their discharge to the date of the offer of reinstatement, less net earnings, with interest thereon to be computed in the manner described in F. W Woolworth Company. 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977) 7 In his brief, General Counsel requests that the backpay found to be due the discriminatees herein be computed at an interest rate of 9 percent per year on the ground that recent financial events warrant a reconsideration of Florida Steel Corporation, supra. In my judgment, there is merit to the arguments of General Counsel; however, it appears to me that such arguments must be addressed to the Board rather than to an administrative law judge. For that reason the request is denied. 'See. generally, Iris Plumbing & Heating Co., 138 NLRB 716 (1962) ('ON( I't.SIONS ()I LAw I. Engineered Apparel, Incorporated, is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Clothing & Textile Workers Union, AFI, ('10, is a labor organization within the meaning of' Section 2(5) of the Act. 3. B interroga ting employees about union activities, creating the impression of' surveillance of the union activi- ties of its employees. threatening to close the facilit? if em- ployees select the Union as their collective-bargaining rep- resenlatie, and threatening employees with discharge because of their union activities, Respondent engaged in. and is engaging in, unfair labor practices within the mean- ing of Section 8(a)( I) and Section 2(6) and (7) of the Act. 4. By discharging Ann Cullers, Jean Smith. Diane Stock- ton, and Alba Butler Williams because of their union activi- ties, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)( 1 ) and (3) and Section 2(6) and (7) of the Act. Upon the t;,oregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 1O(c) of the Act I hereby issue the following recommended: ORDER' Respondent, Engineered Apparel. Incorporated. Monett, Missouri, its officers, agents, successors, and assigns. shall: I. Cease and desist from: (a) Interrogating employees about union activities in a manner or under circumstances constituting interference with, restraint, and coercion of employees in the exercise of rights guaranteed b Section 7 of the Act. (b) Threatening employees with discharge because oft their union activities. (c) Threatening to close its facility if employees select the Union to represent them. (d) Creating the impression of surveillance by telling em- ployees that it knows about a union meeting attended by employees. (e) Discouraging membership in, or activities on behalf of' Amalgamated ('!othing & Textile Workers Union, AFI, C10, or any other labor organization of its emplo- ees, by discharging employees because of their activities on behalf thereof or otherwise discriminating in regard to their hire or tenure of employment or any terms or conditions of employment of its employees. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization. to form. join, or assist labor organizations: to bargain collectively through representatives of their own choosing: and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protec- tion guaranteed by Section 7 of the Act or to refrain from any or all such activities. I 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 ts findings, conclusions. and Order, and all objections thereto shall be deemed waived for all purposes 69 i)lI('ISI()NS O1 NATIONAI. ABOR RA'l IONS BARI) 2. Take the following afftirmative action designed to ef- fectuate the policies of the Act: (a) Oifer Ann ('ullers Jean Smith. I)iane Stockton. anti Alba Butler Williams immediate, lull, and unconditional reinstatement to their former jobs or, i' such jobs no longer exist, to substantially equivalent positions, without preJu- dice to their seniority or other rights and privileges, and make them whole for any loss of' pay they may have sull fered by reason of the discrimination against them by pay- ment to them of a suni of money equal to the amount they normally would have earried as wages rom the date of their discharge to the date of their reinstatement in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the National L.ahor Relations Board and its agents. for exami- nation and copying, all payroll records, social security pay- ment records, timecards personnel records and reports, and all other records relevant and necessary to the determina- tion of amounts of hackpay due under the terms of this recommended Order. (c) Post at its Monett, Missouri. licility copies of the attached notice marked "Appendix."' Copies of said notice. on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's representative. shall be posted by it immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees 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. (d) Notilfy the said Regional Director, in writing, within 20 days from the date of this Decision, what steps Respon- dent has taken to comply herewith. The allegations of the complaint herein found not to have been established by a preponderance of the evidence are hereby dismissed. 9 In the event that this Order is enforced by a Judgment o a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United Stales (ourt of Appeals Enfircing an Order of the National Labor Relations Board." APPEN DIX No -I Ti t Mi (t)YII ;s POStI it) BIY ()RI)I-R (OI- III NAII()NAl .A()R Rh AI()NS BOtARI) An Agency of the United States overnment After a hearing in which both sides had the opportunity to present their evidence. the National Labor Relations Board has found that we violated the law and has ordered us to post this notice. W: A11 I NI question employees about their union activities. Wli 11l N)I tell employees that we know of a union meeting having been held and create the impres- sion that we are engaging in surveillance of their union activities. Wi will NI threaten lo close the facility if the employees select Amalgamated ('lothing & Textile Workers Union, AFIL ('10, to represent them. W Wi t.I NOI threaten employees with discharge if they engage in union activities. WI Willt Not discharge employees because of their activities on behal of Amalgamated Clothing & ex- tile Workers Union. AFL ('10. or any other labor or- ganizaton. Wi Will Not in any other manner interfere with. restrain, or coerce our employees in the exercise ofI rights guaranteed them under Section 7 of the Na- tional abor Relations Act, as amended. WI. wii.. offer to reinstate Ann Cullers, Jean Smith. Diane Stockton. and Alba Butler Williams to their for- mer jobs or, if such jobs no longer exist, to substan- tially equivalent jobs. and wt: witi. make them whole by paying them the wages which they lost because we discharged them unlawfully. You are free to become, and remain members of Amalga- mated Clothing & Textile Workers Union. AFL ('IO, or any other labor organization. EN(iINI+IRII) AIPPARIIL, IN( ORPORA I ID 70 Copy with citationCopy as parenthetical citation