Fabricut, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1978

238 N.L.R.B. 768 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fabricut, Inc. and United Paperworkers International
Union, AFL-CIO. Cases 16-CA-7080, 16-CA-
7250, and 16-RC-7462
September 29, 1978
DECISION, ORDER, AND CERTIFICATION
OF REPRESENTATIVE
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On April 27, 1978, Administrative Law Judge Da-
vid S. Davidson issued the attached Decision in this
proceeding. Thereafter, Respondent and the General
Counsel filed exceptions and supporting briefs, and
the Charging Party filed an answering brief.
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 to the
extent consistent herewith and to adopt his recom-
mended Order, as modified herein.
We agree with the Administrative Law Judge's
findings that the reasons assigned for terminating Jer-
ry Livingston, Glenda Martin, Francine Neel. and
Pamela Dry were pretextual and that the true reason
for their terminations was to discourage their and
other employees' union activities in violation of Sec-
tion 8(a)(3) and (1) of the Act.
The Administrative Law Judge also found that Re-
spondent did not violate Section 8(a)(3) and (1) of the
Act when, on March 11, 1977, it reduced its work
force. Included in the reduction were Ray Griffin,
who was laid off; Livingston, Martin, and Neel, who
were terminated from the bedspread department; and
Dry, who was terminated from the drapery depart-
ment. The Administrative Law Judge found that this
decision to reduce the work force was economically
motivated because: (1) it was a slow season for the
bedspread department, (2) Respondent had just
learned of a loss of a substantial amount of antici-
pated business, (3) even after the reduction there was
a surplus of workers who were transferred from the
bedspread to the drapery department, and (4) there
was no need to hire or recall any employee for 3
months. The Administrative Law Judge concluded
that, in the absence of a blanket allegation that all
bedspread department terminations were discrimina-
tory, and in the face of a plausible economic explana-
tion for the reduction in force, the decision to reduce
the work force was not in itself unlawful, and the
inclusion of Griffin, Livingston, Martin, and Neel was
based on seniority.
We find, contrary to the Administrative Law
Judge, that the preponderance of evidence on the rec-
ord as a whole establishes that the alleged reasons for
reducing the work force were pretextual and used by
Respondent to rid itself of persons who were known
union supporters, in violation of Section 8(a)(3) and
(I1) of the Act.
The credited evidence establishes that General
Counsel met his burden of proving a primaJacie case
that the March II reduction in the work force was
unlawful because: (I) on February 25. Respondent's
president, Harry Guterman, said that Respondent
would try to provide work for the employees at the
plant and expressed hope that they would prosper:
(2) by the time of the February 28 union meeting,
Respondent knew of the Union's organizing drive: (3)
later it was aware of the indentities of the Union's
supporters and card signers: (4) Respondent's union
animus is evidenced by Virginia Orr's, Linda Back's,
and Harry Guterman's unlawful interrogations of'
and/or threats to employees about or because of their
union activities; and (5) on March 8, Harry Guter-
man told his employees that Respondent expected to
have enough work to keep them all busy, but that,
while waiting for materials to come in, Respondent
would try to shift employees from one department to
another to keep them occupied. In conformance with
the March 8 statements, there were shifts of employ-
ees from the bedspread to the drapery department
both before and after the March II terminations.
Moreover, on March 10, Manager Michael Guter-
man told Supervisors Jean Weaver and Naomi Dixon
that Respondent needed to lay off about 10 more peo-
ple. He then revealed that the home office needed the
names of the employees by the next day "because if
there is any petition from the union, it will arrive
tomorrow," and Respondent wanted to lay off the
employees before the petition arrived. Michael Guter-
man continued and said that there were several em-
ployees he would like to discharge but could not and
that he, therefore, would lay' off others: he reempha-
sized that he wanted to terminate or lay off the em-
ployees before there were any union problems. On
March I , Respondent laid off Griffin and terminated
nine employees, including Livingston, Martin, Neel,
and Dry.
In light of the General Counsel's prima facie case,
the Administrative Law Judge erred in applying a
standard of"a plausible economic explanation for the
reduction in force." Rather, the burden shifted to Re-
spondent to go forward with probative evidence to
support its claim that it had a legitimate economic
reason for its actions. As described below, because
the record is void of any credible evidence of an eco-
238 NLRB No. 103
768
FABRICl'. INC(.
nomic motivation for the March 11 reduction in
force, we find that it was unlawful.'
The crux of Respondent's economic defense is that.
on March 9, Harry Guterman was allegedly told by
one of his own employees, Frank savien, that Respon-
dent had not received the contract for the balance of
an order for 150,000 Army bedspreads. Respondent.
however, merely introduced Harry Guterman's sellf-
serving hearsay testimony consisting of bare asser-
tions. No written evidence was presented, nor was
Savien called as a witness.2 The record is completely
devoid of any credible. documentary, or probative
evidence of the alleged economic defense. It is ele-
mentary that the Board may draw an adverse infer-
ence from the failure of a respondent to produce evi-
dence to support an alleged economic defense to a
layoff.'
Respondent also claims that on March 14. when
Michael Guterman discovered that he still had too
many employees. Harry Guterman suggested that
Michael Guterman contact Drapery Department
Manager Gosney and check into temporarily trans-
ferring employees to the drapery department. Em-
ployees were then temporarily transterred olr periods
lasting from 4 to 6 weeks. Furthermore. Gosney testi-
fied that the in-house work in his department was not
seasonal and that his work force from March to June
1977 varied between 85 and 95 employees and had
been steadily growing. Additionally, it was admitted
and found by the Administrative Law Judge that in
early April 1977 Gosney introduced six to seven new
drapery department employees and mentioned the
need to keep up production. Respondent offered no
explanation as to why persons affected by the March
I I reduction in force were not transferred to the drap-
ery side, especially since, according to Respondent, it
was not until March 14 that Respondent realized that
there were allegedly additional surplus employees.
Finally, Michael Guterman's testimony vacillated
as to the role of seniority in compiling the list of em-
ployees to be severed: he stated that seniority was the
determining factor, then cited other reasons which
were supposedly involved. His shifting position, ex-
planations, and narrative of relevant events also lead
to the inescapable conclusion that Respondent has
offered a patently pretextual defense for the layoffs.
Thus, we can only conclude that Respondent's re-
duction in force was motivated bv its desire to dis-
courage union activities of its employees. In view of
I Shattuck Denn .imng ('orpioratil (Iron King Branh) v. N.LR. B., 362
F.2d 466 (C.A. 9. 1966), We disagree with the Administrative Law Judge
that a blanket allegation covering all bedspread departnlent terminations is a
necessars factor for finding that the reduction in force was unlawful
I2 he record does not show that Savien is no longer an employee of Re-
spondent and, therefore. no longer under its control.
Internatumnal Uin. L'nin, nid A.ut,,,lo le,b A4rospur t, ..ind Agri.luhural l lm-
plemenm norkeri ol America (L4 tW) /(vGrocdine (C. of 'Amc'rial \ ;'. .1 R B.
459 F.2d 1329 C AD.C.. 1972)
the toregoing. we find Respondent's layoff of Griffin.
Livingston, Martin. and Neel a violation of Section
8(a)(1) and (3) of the Act.
TiE RE1MEDY
Having found that Respondent engaged in unfair
labor practices, we shall order it to cease and desist
therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Accordingly we shall order that Respondent offer
Jerry Livingston, Glenda Martin, Francine Neel. and
Ray Griffin, as well as Pamela Dry, immediate and
full reinstatement to their formerjobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, and that Respondent make them
whole for any loss of earnings they may have suffered
as a result of the discrimination practiced against
them by payment to them of the amount they nor-
mally would have earned from the date of their dis-
charges to the dates of Respondent's offers to rein-
statement,4 less net earnings. Backpay shall be
computed in the manner prescribed in F W. UWool-
worth C'ompan', 90 NLRB 289 (1950), with interest as
prescribed in Florida Steel Corporation,. 231 NLRB
651 (1977).'
AMFNI)D CO(N('I I;SIONS ()I LAWv
Substitute the following for Conclusion of Law 4:
"4. By laying off or discharging Pamela Dry, Jerry
Livingston, Glenda Martin, Francine Neel, and Ray
Griffin because of their union activities, Respondent
has engaged in unfair labor practices affecting com-
merce within the meaning of Sections 8(a)(3) and ( 1)
and 2(6) and (7) of the Act."
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,
Fabricut, Inc., Pryor, Oklahoma, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, as herein modified:
1. Substitute the following for paragraph l(c):
"(c) Laying off, discharging, or otherwise discrimi-
nating against employees in regard to hire or tenure
of employment or any term or condition of employ-
' We agree with the Administratise Law Judge's implied conclusion that
Respondent's alleged attempt hi recall (irlflin was not an otfer of reinstate-
ment
'See. generalls lsi Plumbing & tleating Co. 18I i.LRB 710 (1962'
769
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment because they become members of or engage in
activities on behalf of United Paperworkers Interna-
tional Union, AFL-CIO, or any' other labor organiza-
tion."
2. Substitute the following for paragraph 2(a):
"(a) Offer Pamela Dry, Ray Griffin, Jerry Living-
ston, Glenda Martin, and Francine Neel immediate
and full reinstatement to their former jobs or, ift' those
jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other
rights or privileges, and make them whole for any loss
of earnings they may have suffered as a result of dis-
crimination practiced against them in the manner set
forth in the section of the Board's Decision and Order
entitled 'The Remedy.'"
3. Substitute the attached notice for that of the
Administrative Law Judge.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for United Paperworkers Inter-
national Union. AFL CIO, and that, pursuant to
Section 9(a) of the National Labor Relations Act, as
amended, the said labor organization is the exclusive
representative of all the employees in the following
appropriate unit for the purposes oft collective bar-
gaining with respect to rates of pay, wages, hours of
employment, or other terms and conditions of em-
ployment:
All production and maintenance employees, in-
cluding lead employees employed by the Em-
ployer at its plant in Pryor, Oklahoma, but ex-
cluding office clerical employees, professional
and technical employees. guards, watchmen, and
supervisors as defined in the Act, as amended.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF TIHE
NAIIONAI LABOR RELATIONS BOARD
An Agency of the United States Government
WE wl.l. NO I interrogate our employees about
their union membership, activities, or desires,
and WI" WIt l. NOT threaten them with loss of em-
ployment opportunities or with subcontracting
of their work in the event they choose to be rep-
resented by a labor organization.
WE WILL NO( lay off, discharge, or otherwise
discriminate against our employees in regard to
their hire, tenure, or any terms or conditions of'
employment because they become members of or
engage in activities on behalf of United Paper-
workers International Union, AFL CIO, or any
other labor organization.
WE WiLL. NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of their right to engage in or to refrain
from engaging in any or all the activities speci-
fied in Section 7 of the Act. These activities in-
clude the right to self-organization. to bargain
collectively through representatives of their own
choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection.
WE Wil.L offer Pamela Dry, Ray Griffin, Jerry
Livingston, Glenda Martin, and Francine Neel
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substan-
tially equivalent jobs, without prejudice to their
seniority or other rights and privileges, and We
wiI.i. make them whole for any loss of earnings
they may have suffered as a result of the dis-
crimination against them, plus interest.
FABRICUL1 IN('.
DECISION
S 1TAiMiENI OF I l CASi
DAVi). S. DAVIDSO.N Administrative L aw Judge: The
charges in Cases 16 CA-7080 and 16 CA 7250 were filed
by United Paperworkers International Union, AFL CIO,
referred to in this Decision as the Union, on March 14 and
June 6, 1977, respectively. The consolidated complaint al-
leges that on and after February 21. 1977, Respondent
threatened employees with loss of existing benefits, interro-
gated them concering union activities, created an impres-
sion of surveillance of union activities, instructed employees
to report information concerning union activities, in-
structed employees to report information concerning union
activities to Respondent and not to talk to other employees
about such information, and threatened loss of employment
and plant closure if the Union became their representative.
'The complaint also alleges that on March I I Respondent
discriminatorily terminated five employees and on June I
discriminatorily prohibited two employees from engaging in
routine conversations with other employees during working
time. Respondent denies the commission of any unfair la-
bor practices.
The petition in Case 16 RC' 7462 was filed on March 7,
1977. by the Union. Pursuant to a Stipulation for Certifica-
tion Upon C(onsent Election entered into on April 14, 1977,
an election was conducted on June 1, 1977, among the pro-
duction and maintenance employees at Respondent's Pryor,
Oklahoma, plant. The tally of ballots shows that 69 votes
were cast for the Union and 64 votes against. There were I I
challenged ballots. On June 24. 1977, the Regional Director
issued a report on challenged ballots, order consolidating
cases, and notice of hearing in which he found that the
issues raised by the challenges overlapped with the issues
770
FABRICtI. INC
raised by the complaint and that the cases should be con-
solidated for purposes of hearing and decision.
A hearing in the consolidated cases was held before me in
Pryor, Oklahoma, on July 26 through 28 and August 2
through 4, 1977. At the conclusion of the hearing oral argu-
ment was waived. All parties have filed post-hearing briefs.
Upon the entire record in this case and from my observa-
tion of the witnesses and their demeanor I make the follow-
ing:
Klapp and Jean Weaver were also supervisors within the
meaning of the Act. Respondent denies that any of the
above-named persons were supervisors or agents of Re-
spondent at any time material to this case and contends
that Michael Guterman and Tom Gosney were the only
supervisors within the meaning of the Act at the plant.
B. The Nomiunal Supervisaors and A.vsistanl Production
Managers
FINDIN(;S AND CON( I.USIONS
1. 1itI. Bt SINlSS OF RFSPONDENI
Respondent, an Oklahoma corporation, operates a facil-
ity at Pryor. Oklahoma, where it manufactures and sells
draperies and bedspreads. During a representative I-year
period, Respondent had direct inflow of goods and materi-
als valued in excess of $50.000 from points outside Okla-
homa. I find that Respondent is an employer engaged in
commerce within the meaning of the Act and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
i1. FIl I. ABOR OR(ANIZ7ATION INVOI VSt)
The Union is a labor organization within the meaning of
the Act.
111. liI SiPItRVISORY ISSI'ES
A. Introduction
Respondent's home office is in Tulsa, Oklahoma, and it
has seven sales offices and showrooms at locations through-
out the United States. It sells and distributes at wholesale
decorator fabrics and contract and custom-made bed-
spreads and draperies. The bedspreads and draperies are
manufactured in separate departments at the Pryor. Okla-
homa. plant, the facility involved in this proceeding. Mi-
chael Guterman and Tom Gosney are comanagers of the
Pryor plant, with Guterman in charge of the bedspread
manufacturing and Gosnex in charge of the drapery manu-
facturing. The parties agree that Guterman and Gosney are
supervisors within the meaning of the Act.
As of December 1976, the total plant complement was
approximately 205 employees. There were layoffs in early
1977 in the bedspread department, and by June 1. 1977.
when the election was held, there were approximately 155
to 160 employees in the plant. Drapery Department Man-
ager Gosney estimated that from March through June 1977
there were from 85 to 95 employees in the drapery depart-
ment and from 50 to 65 employees in the bedspread depart-
ment.
At the election eight voters. Lucinda Backwater. Mina
Blossom, Charlotte Brenner. Eva Chancellor. Naomi Dix-
on, Yona Guterman. Virginia Orr, and Olatha Willman.
were challenged by the Union on the ground that they were
supervisors within the meaning of the Act. The complaint
names four of them as supervisors and agents of Respon-
dent,' and additionally alleges that as of March 1977, Ernie
|Charlotte Brenner. F'va Chancellor. Yona G(uterman, and Virginia Orr
As of January 1,. 1977, Naomi Dixon, Jean Weaver, and
Olatha Willman carried the job title of supervisor in the
bedspread department. Lucinda Backwater, Mina Blossom,
Charlotte Brenner, and Eva Chancellor had the title of su-
pervisor in the drapery department. On January 11, 1977,
Naomi Dixon and Jean Weaver were given the title "assist-
ant production manager," and on the same day Virginia
Orr was given the title "supervisor" in the bedspread de-
partment. She had previously been designated a lead person
in that department. On April 13. 1977. Jean Weaver re-
signed the position of assistant production manager and
returned to a production job in the bedspread department.
There were no other changes in the titles or duties of the
named persons between January 11. 1977, and the date of
the election.
All those carrying the title "supervisor" or "assistant pro-
duction manager" were hourly paid and punched a time-
clock. They were paid time and a half for hours worked in
excess of 40 each week, as were other production employ-
ees. They worked the same schedules and received the same
fringe benefits as other employees.
All production employees were aware of the titles held by
the supervisors, and on Januar I I a notice was posted
informing the employees of the change in job titles of Dix-
on. Orr. and Weaver. Each year Respondent published a
book with pictures of its officers and employees at its var-
ious locations throughout the country. In the December
1976 edition, the supervisors at the Pryor plant were identi-
fied as such.
In both the bedspread and the drapery departments the
managers held regular meetings with the supervisors. 2 On
the bedspread side, Michael Guterman met with the super-
visors every morning at about 8:30. half an hour after work
began. At the start of the shift the supervisors noted who
was absent for the day and cooperatively moved employees
within the bedspread department in order to meet antici-
pated production needs for the day. At the 8:30 meeting
they reviewed these assignments with Michael Guterman.
who either approved them or instructed them to make fur-
ther changes based upon his knowledge of the new produc-
tion orders to be distributed that day. Guterman also dis-
cussed with the others production orders for the day and
any special problems which might arise from the handling
of special orders or materials. In addition, from time to time
2 There is conflict in the testimony as to whether the assistant managers
Weaver and Dixon had greater authority and responsibility than the remain-
ing supernisors after their title change. It is not disputed. however, that thes
continued Io have at least as much responsibilit, as the other supervisors.
and in the findings which follow references toi the supervisors include the
assistant production managers.
771
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the day as problems arose which they felt they could
not handle on their own authority, the supervisors con-
ferred with Gutherman and at times during lunch or break
periods met in a group with Guterman to discuss problems.
In the drapery department Gosney met with the supervi-
sors during working time on a less regular basis. The fre-
quency of these meetings varied from as many as three in a
week to as few as one in 3 weeks. However, Gosney also
met with supervisors during lunch periods and breaks to
discuss departmental problems. In the drapery department
Gosney directed all changes in daily assignments to com-
pensate for absences and told the supervisors what changes
they should make.
Production employees in both departments were assigned
to lunch and break periods on a staggered basis so that half
the plant remained at work while the other half was off.
Supervisors determined when employees should take their
lunch and break periods. At times the supervisors took their
lunch and break periods at the same time as other employ-
ees, but at other times, because of production needs, they
worked through employee lunch and break periods. When
supervisors met with Guterman or Gosney during lunch or
breaktimes, their lunch or break periods were often ex-
tended beyond those allowed other employees.
Each of the supervisors had responsibility for an area of
production where she had considerable experience. They
trained new employees, answered questions, helped em-
ployees solve special problems beyond the employees' com-
petence, and observed employees in the performance of
their work. The supervisors also transmitted instructions
from the department managers to the employees. The se-
quence of production was determined by the managers, and
the nature of an order determined to a large extent which
operators would work on it, but there were occasions when
supervisors determined which of several employees should
be given particular work in order to best meet Respondent's
production needs, particularly in the case of rush orders.
Each of the supervisors spent part of her time working on
machines and performing production functions on bed-
spreads or drapes. Some of the production work was per-
formed by the supervisors to fill in for absent employees
when other replacements were not available or during over-
time when not enough employees were available to perform
necessary work. In addition, during the course of a day,
supervisors performed some production work requiring spe-
cialized skills which they possessed, and they obtained ma-
terials and supplies for other employees when necessary to
avoid interruption of production.
The managers discussed the job performance of newly
hired employees with supervisors, and from time to time the
managers solicited supervisors' opinions of the work per-
formance and progress of other employees. If a supervisor
believed that a new employee was not working out on the
job, she so advised her manager.
The supervisors were not empowered to take disciplinary
action against employees, but admonished employees about
any infractions of company rules or policy which they ob-
served. If an admonition was not effective, they reported
the infraction to the department manager. On occasion the
manager instructed them to go back and talk to the em-
ployee, and on other occasions the manager took disciplin-
ary action directly.
When employees wanted to take time off, they went to
their supervisors to ask for permission. It is disputed
whether supervisors granted such permission without first
checking with the manager, but it appears that at least in
the bedspread department employees' requests and the re-
sponses thereto were conveyed through the supervisors.
Section 2(11) of the Act defines a supervisor as "any indi-
vidual having authority, in the interest of the employer, to
hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or responsibly
to direct them, or to adjust their grievances, or eflectively to
recommend such action, if in connection with the foregoing
the exercise of such authority is not of a merely routine or
clerical nature, but requires the use of independent judg-
ment."
Based on the facts set forth above, which are essentially
undisputed, the General Counsel and Charging Party con-
tend that the supervisors and assistant production managers
had authority responsibly to direct other employees.' Re-
spondent concedes that the supervisors and assistant pro-
duction managers direct the work of other employees, but
contends that the nature of their direction does not require
the exercise of independent judgment and is merely routine.
In determining whether or not the direction of employees
is responsible, one of the factors to be considered is the
ratio of supervisors to employees. Here Respondent's posi-
tion is that only' managers Guterman and Gosney were su-
pervisors within the meaning of the Act and that all others
working in both departments were not. If that were the
case, the resultant ratio of employees to supervisors in the
bedspread department would have been no less than 50 to 1
at any material time, and in the drapery department the
ratio would have been no less than 85 to I. On the other
hand, if the assistant production managers and supervisors
in both departments were also supervisors within the mean-
ing of the Act, then from January 11 to April 13 there
would have been five supervisors in the bedspread depart-
ment. From April 13 on there would have been four super-
visors in that department, and at all times five supervisors
in the drapery department. In that event, there would have
been 12 or 13 employees to each supervisor in the bed-
spread department and 17 to 19 employees to each supervi-
sor in the drapery department.
A ratio of 40 employees to I supervisor has been held
abnormally high by the Board and has been considered a
strong indication that alleged supervisors who directed em-
ployees in their day-to-day work responsibly directed that
work and were not merely conduits for orders emanating
from higher management.4 In its brief Respondent contends
that special conditions in the garment and related industries
make the work unskilled, routine, and repetitive and there-
tbre permit Respondent to operate with only two supervi-
sors for all production employees in the plant. The evidence
does not support that contention. In both the bedspread
and the drapery departments a substantial portion of the
I There is disputed testimony that the supervisors and assistant production
managers made effective recommendations with respect to hire, transfer,
promotion, assignment, and di.cipline of employees. In view of the disposi-
tion reached herein, I find it unnecessary to rely on that evidence in resolving
the issue or supervisory status.
4
Screwmatic In'., 218 NL RB 1373 (1975).
772
FABRICUT. INC
work consists of small custom orders, and it appears from
the supervisors' testimony as to the kinds of questions the,
were asked in the course of a day and the kinds of problems
which arose during production that the work was not of an
assembly line nature, which could be reduced to the con-
stant repetition of the same operations in the same manner.
Moreover, in other garment industry cases the Board has
found that supervisory ratios similar to those urged by Re-
spondent are abnormal.?
Other factors also support the conclusion that the super-
visors responsibly direct the employees under them. Mi-
chael Guterman testified that before offering the job of su-
pervisor to Virginia Orr he spoke to several more senior
employees and offered the job to them. He testified that
they each turned it down. He was asked what reasons they
gave for not wanting the job and replied "No reasons. We
can't take it. We can't handle it. Too difficult. It is too hard
to work on the floor carrying the materials and the sewing
machines. It just-not everybody can take the pressure."
He testified that Orr was willing to do whatever he wanted,
was an extremely loyal employee, knew all the machinery
in the shop, could perform all the operations on the floor,
and that "We need to get girls like that, because we need
girls to train other girls to work." With respect to the
change of title of Jean Weaver and Naomi Dixon to assist-
ant production manager, Guterman was asked why he gave
them the title in view of his testimony that there was no
change in their responsibilities and that they continued to
perform the same work as other supervisors after the title
change. He replied, "I just give them a title. an honorary
title, just to make-when I give them the title I was think-
ing they would have a little more respect from the people,
especially with Jean Weaver, because she lost the respect
from the people." He was asked why they needed the re-
spect and replied that it was so that the people would listen
when they gave them instructions.
The fact that Respondent utilized the titles of supervisor
and assistant production manager. the reasons Guterman
gave for the change in the title of Dixon and Weaver, and
his testimony as to the reasons employees refused promo-
tion to supervisor all show that Respondent held them forth
as persons of authority over employees, gave them responsi-
bility for production, and expected employees to respond to
their instructions.
Respondent's employee manual, which was distributed to
each employee, further supports the inference of supervi-
sors' responsibility. There are numerous references to su-
pervisors in it. The manual states that supervisors will ad-
vise employees of their hours and of any need to work
overtime; that supervisors will initial timecards if employ-
ees are requested to punch in or out at times other than
their starting times; that the reason for any absence during
the workday must he noted on a timecard by the supervi-
sor; that at the end of each pay period names are to be
signed on the back of timecards and presented to supervi-
sors for forwarding to the payroll department; that immedi-
ate supervisors will inform employees of their lunch sched-
ules; that supervisors will inform employees of their break
Ridgelv Manufacturing Co. Inc. 198 NLRB 860 (1972). Palramount
Trends, Inc.. 222 NL RB 141 (1976)
period: that absences must be reported immediately to an
employee's supervisor: that the supervisor is to be called on
each successive day of illness; that eligibility for holiday
pay depended upon working the full workday before and
after a holiday unless an absence on one of those days was
previously authorized by employee's supervisor; that super-
visors were to have 4 weeks' advance notice and give ap-
proval before vacation time was authorized; that employees
had the duty to report at once to their supervisor any work-
connected injury: that maternity leaves of absence were to
be requested in writing to the supervisor: that employees
summoned for jury duty were to present the summons to
the supervisor as soon as received to receive a leave of ab-
sence: that employees seeking military leave should show
evidence of military orders to their supervisors: that em-
ployees should not use company telephones for personal
calls except in case of emergency or approval of their super-
visor: and that notices to he posted on bulletin boards were
to he approved by supervisors in advance. The manual fur-
ther provides that during a 90-day probationary period for
new employees, supervisors will observe employee work
characteristics, will share their observations with employ-
ees, and will answer any questions they may have.
Respondent contends that many of the references to su-
pervisors in the manual were made in a generic rather than
a specific sense and that the supervisors referred to in the
manual in many instances were the department managers,
Guterman and Gosney, rather than those carrying the title
"supervisor" on the production floor.
The evidence shows that in some instances it was the
managers rather than supervisors who performed the func-
tions assigned to supervisors in the manual. However, many
of the functions described in the manual are performed by
those designated as supervisors, and there is nothing in the
record to show that a number of others are not performed
by them. With respect to the evaluation of probationary
and other employees. Guterman's testimony underscored
the role of the supervisors described in the manual. He tes-
tified that he questioned supervisors about employees "be-
cause we hire so many people and it is for-for the last few
months I want to know their opinion for some of the peo-
ple, how' they progress. How they do." He testified that he
also wanted to know from supervisors whether an employee
worked on just one machine or could operate several. I
conclude that the provisions of the manual reinforced the
impression Respondent created among its employees by the
use of the titles "supervisor" and "assistant manager" that
the supervisors were responsible members of management
and give further evidence that the duties of the supervisors
were not merely routine.
A further indication that the supervisors responsibly di-
rected other employees is that Respondent also had a clas-
sification of lead person and in at least some instances
placed a potential supervisor in the lead person classifica-
tion for a period of training before making her a supervisor,
showing that the title of supervisor is not lightly bestowed.
Other indicia of the responsibility of the supervisors and
assistant production managers are their frequent meetings
with their respective managers, their adjustment of their
own lunch hours and breaktimes to meet production needs,
and their role in providing information to management
773
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about infractions of rules or poor performance on which
disciplinary actions were based.
Finally, the evidence shows that Respondent itself
viewed the supervisors and assistant production managers
as representatives of management. Thus. when Michael
Guterman learned that the Union was attempting to orga-
nize Respondent's employees he called the supervisors in
the bedspread department into his office. He told them that
the employees had the right to organize and that they could
express their own opinions. But he also instructed them not
to ask employees questions. While Guterman testified that
he did this on his own without instructions from any higher
authority, he indicated that he did so on the basis of advice
he received in 1974 in connection with an earlier organizing
campaign among the employees.2 In an election at that time
Respondent challenged at least one of the supervisors who
attempted to vote on the grounds that she was a supervisor
within the meaning of the Act. Both from Michael Guter-
man's instructions to the bedspread department supervisors
and Respondent's past position, it appears that Respondent
itself view ed the supervisors as statutory supervisors before
the issues in this case arose.
On the basis of the above, I conclude that the supervisors
and assistant production managers had authority responsi-
bly to direct the work of the employees under them. I find
therefore that until April 13, 1977, Jean Weaver was a su-
pervisor within the meaning of the Act and that at all times
material, including the day of' the election, l.ucinda Back-
water. Mina Blossom, Charlotte Brenner, Eva Chancellor,
Naomi Dixon. Virginia Orr, and Olatha Willman were su-
pervisors within the meaning of the Act.
C. Ernie Kltl pp
As of January 1. 1977, Ernie Klapp was working in the
bedspread department on a cutting table as a head or lead
cutter, an hourly paid nonsupervisory job. After Jean
Weaver became assistant production manager, she told the
employees in the cutting department that Respondent was
going to pick somebody to take her position as supervisor in
the cutting department. Somewhat later in January.
Weaver told the employees that she and Michael Guterman
thought that Klapp would make a good supervisor and that
as soon as he was replaced on the cutting table he would be
a lead person in training to become a supervisor. After the
meeting Klapp continued to work on the cutting table and
remained there for all but a period of several days befiore he
left employment of the Company in July 1977.'
Although Weaver announced to the employees in the
cutting department that Respondent intended to make
Klapp a lead person and ultimately a supervisor, there is no
evidence that the plan was implemented. I find that there
was no change in Klapp's status after January 1 . 1977. and
that he remained an employee at all times material to this
case.
I There is some dispute as to what Guterman actually told the supervisors,
but it is not denied that he told them they were not to ask questions of other
employees about their union activities.
7 While there is some conflict between the testimony olf Weaver and Fran-
cine Neel as to whether WVeaver specified a 90 day probationary period for
Klapp, the essential facts are riot in dispute, and there is no evidence that the
employees vwere ever further informed that Klapp had become a leadman or
a supervisor,
D. Yona Guterman
Yona Guterman is the son of Michael Guterman, man-
ager of the bedspread department and comanager of the
plant. Michael is in turn a cousin of Harry Guterman. pres-
ident of Respondent.
Yona Guterman started to work full time for Respondent
in June 1976. Until December 1976. he worked in the pil-
low department, a part of the drapery department, where
he performed cutting and sewing operations. In December
1976, the pillow department was shut down, and Yona
Guterman worked in the sample department of the drapery
department. There he cut, tagged, and kept tract of fabrics
to be made up into drapery samples for Respondent. Guter-
man brought sample work to the production employees and
told them what needed to be done. When the work was
completed, he inspected the samples for quality and packed
them fbr shipment. He reported to Gosney and received
instructions and lists of sample production requirements
from him. Although Guterman does not appear to have
been classified as a supervisor, he was known as samples
manufacturing supervisor in charge of samples manufactur-
ing.8
In April 1977, sample fabrication tapered off and Guter-
man's duties changed. At that time Gosney held a meeting
of all the supervisors and employees in the drapery depart-
ment at which among other things he introduced several
new employees in the plant and also introducted Guterman
to the other drapery' department employees.
Gosney told the employees that Guterman would be
learning how to make drapes and wanted to know every-
thing about making them from cutting through shipping.
Gosney said Guterman would spend several weeks on the
floor observing and asking questions and that the employ-
ees and supervisors were to help him out in any way they
could and answer his questions no matter how foolish they
might sound. Gosney told the assemblage that Guterman
was in training on a trainee and that he would be helping
the supervisors and him on the floor.,
8 An insurance form in his personnel file prepared in Respondent's person-
nel department and signed by Yona Guterman in March 1977 showed his
occupation as samples manufacturing supervisor In the April 1977 issue of a
monthly newsletter published by Respondent an article stated the Respon-
dent nowv had a "drapery sample department" headed by Yona Guterman.
Gosney and Guterman denied that Guterman was in charge of the samples
department or called a supervisor, and Respondent adduced evidence that
the newsletter was not compiled or edited by anyone in a position of author-
ity. However, it is difficult to understand how two totally disconnected state-
ments happened to appear to the same effect if there was no foundation for
either one of them. Moreover, in addition to these statements, Lucinda Back-
water testified that Guterman was in charge of the samples department,
Giuterman's duties in the samples department ranged over its entire opera-
tion, and Guterman reported directly to Gosne) I conclude that Guterman
was in charge of sample manufacturing and was known as sample supervi-
sor.
T'Ihere are a number of conflicts in the testimony as to what Gosney said
about Guterman's title and future duties at this meeting. There is no dispute
that (Gosney described an initial period during which Guterman would be
learning the job. However, there is dispute as to what Gosney said Guter-
man's role would be. According to employees Norma Jean Stevens. Nanette
(layton, and Reba Kvittum, Gosney said that (Guterman would be assistant
plant manager or assistant to Gosney and would take over when Gosney was
absent At the opposite end of the spectrum (Cosney testified that Guterman
was just learning to make drapes like any other employee and that he told
the employees that Guterman was training just as a worker and helper to
774
FABRICUT. IN('.
For 2 or 3 weeks after the April meeting, Guterman went
onto the floor with paper and pencil, asked every produc-
tion employee what she was doing, tried to perform each
operation himself and tried to learn everything about mak-
ing drapes from cutting through packing. After Guterman
finished familiarizing himself with all phases of the opera-
tion, around May I Gosney told him that he wanted him to
start expediting work on the priority list for delivery. This
function was previously' handled by employee Doris Rab-
bitt, who thereafter divided the expediting work with
Guterman and also worked on adjustments. Guterman also
performed some functions which Rabbitt did not perform.
When he had time, he responded to requests for help from
production employees, and on occasion Gosney asked him
to talk to production employees about excessive talking on
the job and to tell them to stop it. On one occasion Guter-
man timed the work of several of the production employees.
Starting in April. Guterman attended supervisory meetings
in the drapery department. '° Rabbitt did not attend these
meetings.
Guterman had a health problem which limited his ability
to stay on his feet for long periods of time and to perform
heavy work. Gosney took that into consideration in making
work assignments to him, and when necessary Guterman
was permitted to rest during the course of the day.
Respondent contends that Yona Guterman was an em-
ployee with the same duties and status as Doris Rabbitt.
However, the evidence shows material differences between
him and other employees. As indicated, he is related to
Michael Guterman and Harry Guterman. Before April Re-
spondent regarded him as the head or supervisor of the
samples department. In that capacity he was responsible for
getting samples out and reported directly to Gosney. After
April I Guterman was considered a trainee" and was given
a 2- to 3-week period to go through the plant and ask ques-
tions of other employees to learn the entire drapery busi-
ness. Such indoctrination was not routine and was not nec-
essary for the performance of ordinary production work.
This indoctrination, Gosney's introduction of him at the
April I meeting, Guterman's attendance at supervisory
meetings, his role in helping employees the same way super-
visors did, and his use by Gosney to transmit instructions to
employees persuade me that he was in training to assume a
managerial role in the drapery department and was gradu-
ally assuming responsibilities beyond those of an employee.
learn the draper) business. Two supervisors. Lucinda Backwater and Evsa
Chancellor, testified that Gosney told the employees and supervisors that
Guterman was coming to the floor to help the supervisors and him. While 1
do not credit the testimony that Gosney referred to Guterman as assistant
plant manager, I reject (iosnes's testimony that Guterman was being trained
simply to be another employee. Other new hires were not given 2 to 3 weeks
to observe and ask questions at will. Guterman was not a new face in the
drapers department who needed an introduction to become known to the
other employees, and. as will be seen, he did not simply become another
employee in the department I credit Backwater and Chancellor that Gosne)
told the assemblage that Guterman would be helping him and the supervi-
sors on the floor.
m Although Guterman and Gosney testified that Guterman did not attend
all supervisory meetings and was asked to attend only to discuss something
relating to his expediting duties or if he happened to be in Gosney's office
when a meeting took place, Gosney conceded that there was no occasion
since April when all supervisors got together and Guterman was not present
11 Guterman testified that Gosney told him he was a trainee but never told
him wh.at job he w.as training for
Whether or not he had supervisory authority. I find that his
interests were closely allied with those of management and
that he did not share a community of interests with Respon-
dent's production employees.' 2
Based on the above findings I shall recommend that the
challenges to the ballots of Lucinda Backwater. Mina Blos-
som, Charlotte Brenner. Eva Chancellor. Naomi Dixon.
Yona Guterman. Virginia Orr. and Olatha Willman be sus-
tained.
IV. Iil[ Al I(FGI) :UNFAIR I.ABOR PRA( it( UIS
A. ihe A llcgcd I iolationrs of Section 8Y(a)(1t ) f tlhe Act
1. The facts
In February 1977" Respondent's employees at its Tulsa
location, who were represented by the Teamsters Union,
struck over contract negotiations. A few days after the
strike began, the Teamsters started to picket at the Pryor
plant. On February 22 there was some property damage at
the Tulsa facility, and on the following day Pryor Supervi-
sor Naomi Dixon told Bedspread Department Manager
Michael (iuterman that she heard employee Ray Griffin in
the cafeteria state that a man from the Teamsters Ulnion
had said that things would go very rough at the Pryor plant.
Guterman called Griffin to his office, told him that he had
heard that Griffin had been talking to other employees
about rumors that it was going to get rough at the plant.
and asked him what he knew. Griffin told him that while
Griffin was in a store a man overheard him tell a clerk
where he worked and the man commented that things
would get rough at the plant. Guterman then asked Griffin
to report back to him any other rumors or threats of that
nature and not to tell other employees about them.'4
On the next morning when Guterman arrived at the
plant he observed that a large office window had been bro-
ken, that paint or some other substance had been splattered
on the outer walls of the building. and that the locks had
been damaged, making it impossible to open them with
keys. As a result the start of work was delayed. Later that
morning Respondent's president Harry Guterman came
from Tulsa and spoke to the employees. Guterman ex-
pressed considerable emotional upset over the nature of the
damage to the plant but assured employees that Respon-
dent would post guards who would protect them and their
"' One allegation of the complaint is based on conduct of Yona (;uterman
As will be seen below, in that instance both G;uterman and iGosney testified
that he acted at the specific direction of Gosney so that whether or not a
supervisor he then acted as an agent of Respondent.
1i All dates which follow were in 1977 unless otherwise indicated
4 In my findings as to this conversation I have relied principalls on the
testimonti of Michael Guterman as developed and qualified on cross-examl-
nation Griffin initially descnribed this conversation without reterence to his
lunchrxoom conversation or the department store incident and substantially
modified his version on cross-examinltion when reminded of' that incident
and the lunchroom ciln'.rsatihon I have concluded that (Gnffin's recollection
of what Guterman said was generalls poor. Howeser, in one respect I credit
(riffin that Guterman asked him not to repeat ans further rumors that he
heard to other employees That is a detail (irffin was unlikels to have in-
vented and is consistent with (Gulernan's concern o,ser the impact ot the
learnster Ic isitles oin productilon iat Ihe Pirstor plant
775
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
property. Guards were posted, and no further incidents oc-
curred.
On the evening of February 28 the Union held its first
meeting for Respondent's employees at the home of a mem-
ber of the Union who was not an employee of Respondent.
That morning in the plant Jerry Livingston asked Assist-
ant Production Manager Jean Weaver if she was going to
attend the meeting. She told him she was not. Thereafter,
Weaver reported to bedspread manager Michael Guterman
that she had heard there was going to be a union meeting
for the Pryor employees but did not know where it was
going to be held." Guterman told her to let him know if she
found out where it was going to be.', Later she learned the
meeting location and told Michael Guterman. He then
called Respondent's Tulsa office in her presence and re-
ported to Harry Guterman what Weaver had told him.
Guterman asked if she knew of anyone who would go to the
meeting that night to find out what was going on and men-
tioned Weaver's mother, Doris Rabbitt, as a possibility.
Weaver rejected that suggestion.
That evening after work Michael Guterman made a rou-
tine visit to Respondent's Tulsa office, where he spoke with
Harry Guterman. According to Michael, Harry advised
him that the employees had the right to organize a union,
that they could vote for it or against it, and that Michael
was to worry only about getting production out and making
certain that normal operations were maintained.
That night approximately 15 to 20 of Respondent's em-
ployees attended the union meeting, including Francine
Neel, Ray Griffin, Jerry Livingston, Norma Jean Stevens,
Pat Hager, Diane Smirl, Betty Hawkins, and Skip Orr, hus-
band of Supervisor Virginia Orr. The others present unsuc-
cessfully sought to exclude Orr from the meeting because
they believed he was there for purposes of surveillance. All
those present except Orr signed union authorization cards.
On the next day a number of those who had been present
began to solicit others to sign authorization cards and talk
about the organizational campaign in the plant during
break- and lunchtimes.
The next morning Michael Guterman talked to the bed-
spread department supervisors about the union activities in
the plant. He told them that the employees had the right to
5"Weaver testified that she heard a few rumors about union activity
shortly after employees were given evaluations, which was a week or two
earlier. Griffin testified that there had been some talk about a union among
employees before February 23 when Guterman spoke to him However.
there is no evidence that Guterman was aware of' any employee union ac-
tivity until Weaver's report to him on February 28.
16 Weaver so testified and Guterman did not specifically deny asking this
question, although he testified that in general that he was not interested in
knowing what happened at the union meeting and he had no personal objec-
tion to the Union's effort to organize the Pryor employees. In view of' Guter-
man's concern about maintenance of production, the recent incidents arising
out of the Teamsters strike and picketing, and Harry Guterman's reaction to
the damage to the Pryor plant, I do not credit Michael Guterman's claimed
indifference to the organizing campaign. Although Weaver clearly enter-
tained strong feelings of personal hostility toward Michael Guterman and at
times showed flashes of bias in her testimony, she remained an employee of
Respondent dependent upon it for her livelihood and in her testimony pre-
sented facts which were not invariably supportive of the allegations of the
complaint, not only in connection with alleged interrogation attributed to
her but also in connection with the discharges of Francine Neel and Gilenda
Martin. I deem her to have been generally credible and have credited
Weaver as to the interest shown by Michael Guterman in the employees'
union activities.
be for or against the Union and that they were to be quiet,
not to bother anyone and not to ask questions but to listen
and report back to him immediately anything they heard
pertaining to the union activities. Guterman told them they
were free to express their personal opinions.l7
During the first week in March, some of the bedspread
department employees and Supervisor Virginia Orr were
temporarily transferred to the drapery department. With
apparent reference to the fact that transferred employees
Patsy Ingram and Mamie Griffin were not included in con-
versations among regular drapery department employees,
Orr commented to them that she guessed they were missing
out on a lot of the union talk going on in the department.
Ingram replied that she rode with a group of women who
talked about it in the car. Orr commented that if the Union
came in, the Respondent would probably close shop and
subcontract the work.
A few days later Virginia Orr came by when Pat Hager
and Mamie Griffin w'ere working and wanted to know what
the employees thought of all the activities going on and all
the people running back and forth. They asked whether she
was referring to the union activity, and Orr said "Yes." In
the course of conversation which followed, Orr said that if
the plant went union, Respondent could very well shut it
down because it could contract the work out and have it
done at less cost. s
1i The testimony of Weaver and Gutermnan as to this meeting is only in
conflict as to whether Guterman asked the supervisors to report back to him
anything they heard. Guterman testified that he spoke to the supervisors on
his own initiative based on what he had been ads ised by Respondent's coun-
sel at the time of an earlier organizing campaign in 1973. lie testified that he
told the supervisors to report back onlk infoirmation about harassment,
threats, or violence but neot anything else concerning union activities As set
fbrth, I do not credit Guterman's claim of' indifference to the union meeting
and the employees' interest in organizing. While Guterman's interest may
have been confined to rumors of improper activities when he questioned
Griffin before February 28, I credit Weaver that Guterman sought reports
on all union activities after that date.
i' Ingram and Griffin testified to the first of these conversations. Hager
testified to the second, with Griffin testifying that she remembered that such
a conversation occurred but not its content Orr gase substantially different
versions of both conversations. She testified initially that Ingram asked her
about contracting out some work and that she replied that it could possiblN
be done, that she didn't think so, and that it would be silly for Respondent to
do so. since it had just bought a number of new machines. She then testified
that she did mention to Ingram and Griffin that they must be missing a lot of
the talk about the Union in the draper) department and that they asked her
about the Union. She testified that she replied that she could not discuss it
because she knew nothing about it but did not think the Paperworkers was
what the employees needed and that thes probably needed a garment union.
As for Hager, she testified that Hager asked her how she felt'about "it," to
which Orr replied that she did not know, that she could not discuss it, that
she had been told not to discuss it with the employees, that she knew nothing
about it, and that she could not give an opinion. Orr testified that Hagar's
question "kind of threw" her because no one had even mentioned the Union.
Ingram and Griffin were still employees at the time of the heanng, and
although Griffin had quit her job without notice to Respondent, her testi-
mony that she could not recall the content of the conversation involving
Hager appeared candid and lent credence to her corroboration of Ingram.
Orr's testimony that she talked to Ingram and Griffin about the Union and
expressed an opinion to them is inconsistent with her testimony that she was
allegedly "thrown" by Hager's question and replied to Hager and Griffin
that she had been told not to express an opinion. Although she testified that
Guterman gave his instructions to the supervisors after she spoke to Ingram
and before she spoke to Hager, her testimony otherwise indicates that both
conversations were after March I, when Guterman talked to the supervisors
about the union activities and told them they could express their personal
opinions. In all these circumstances, including the similarity of the two con-
versations attributed to Orr, I have credited Ingram. Hager. and Griffin and
have not credited Orr's denials.
776
FABRICUIT INC.
At various times after February 28 when Ray Griffin was
in the plant, office clerk Linda Back asked him if he thought
the Union was going to come in, if he knew how many
people would sign cards, and if those who signed would
vote for the Union. Back told him that she felt that a good
union possibly could help things but she did not mention
any union by name.'
On March 8 Respondent's president. Harry Guterman.
again addressed the assembled employees at the Prvor
plant. Guterman told employees that it was up to them to
do whatever they wished with respect to choosing a union.
He also told them that Respondent expected to have
enough work to keep them all busy, but that while waiting
for materials to come in Respondent would try to shift em-
ployees from one department to another to keep them occu-
pied. 2" Guterman pointed out that at Cherokee Togs. an
area garment plant which was represented by a union, it
was not possible to move employees temporarily from one
department to another and it was necessary to send em-
ployees home when a department had no work. Guterman
said that in union places he knew of, it was not possible to
shift people around and that if the Union came in, Respon-
dent could not move employees from one department or job
to another. Guterman said nothing about the possibility of
closing the plant down?2
2. Concluding findings
a. The violations attribulted o Michael Guterman
The complaint alleges that Michael Guterman created
the impression of surveillance, engaged in interrogation.
and instructed an employee to tell him and not other em-
ployees about information concerning employee union ac-
tivities. These allegations are based on Guterman's Febru-
ary 23 conversation with Ray Griffin. Although Griffin
testified that Guterman interrogated him generally about
union rumors in the plant and asked him to report back any
union talk he heard. I have found, based on Griffin's testi-
mony on cross-examination as well as Guterman's testi-
mony, that Guterman questioned him about the statement
Griffin had repeated in the cafeteria about things getting
rough at the Pryor plant. The record does not show with
any precision when the Pryor employees began to talk
'"Griffin's testimony as to his conversations with Linda Back was not
contradicted.
On February 25. Harry Guterman had also said that Respondent would
try to provide work for the employees at the plant and expressed the hope
that they would prosper at the Pryor plant
21 Francine Neel. Jean Weaver. Norma Jean Stevens. and Ray Griffin so
testified in substance, with minor variations as to the words used by Guter-
man. Harry Guterman testified that he did refer to Cherokee Togs and his
understanding that transfers were not possible under union contracts, but
that with respect to Respondent's plant he said. "Thank God we don't have
that situation here." Michael Guterman testified that he remembered noth-
ing said by Harry about moving employees around within the plant or re-
strictions on movement of employees imposed by unions. Olatha Willman
testified that she recalled no reference to Cherokee Togs and only the Guter-
man said that transfers would be necessary if no materials came in. Neither
of them corroborated Harry Guterman that he affirmatively assured employ-
ees that the plant would not close down. While the outline of Harry Guter-
man's version of his remarks is the same as that described by the General
Counsel's witnesses, I do not credit his uncorroborated testimony as to what
he said about the application of union transfer policy to Respondent's plant
and his affirmative assurance to employees that the plant would not close
among themselves about unionization. Overt union activity
among the Pryor plant employees did not start until a cou-
ple of days later, and there is no evidence that Guterman
learned of it until February 28. Guterman's statements and
questions to Griffin indicate that Griffin's lunchroom con-
versation with other employees was overheard and reported
to Guterman. but that conversation did not concern em-
ployee union activities and Guterman's statement therefore
created no impression of surveillance of employees' union
activities. Guterman's questioning dealt with rumors of pos-
sible trouble or disruption at the Pryor plant. To the extent
that the questioning might be deemed to go to union activi-
ties of Respondent's Tulsa employees, it dealt with Respon-
dent's legitimate concern over disruption at the Prvor plant.
and it does not appear to have been directed at intrusion
into protected rights of Griffin or the other Pryor employ-
ees. I find that Guterman's questions related to information
similar in kind to that which prompted Guterman to call
Griffin in and that in context the interrogation did not vio-
late Section 8(a)(1).
I find further that Guterman's instruction to Griffin to
report to him any further rumors he might hear and not to
talk to other employees about them was not an infringe-
ment of the right of Respondent's employees to engage in
union or self-organizational activity but was an effort to
keep himself informed of rumors of impending trouble
while restricting their disruptive effect on other employees.
I shall therefore recommend dismissal of the allegations of
violation of Section 8(a)( I) of the Act based on this inci-
dent.22
b. The violations attributed to Virginia Orr
The complaint alleges that Virginia Orr interrogated em-
plovees about their union activities and threatened employ-
ees with loss of employment and subcontracting of work
performed by employees if the Union succeeded in organiz-
ing the plant. I find that the evidence as to her March con-
versations with Ingram, Hager, and Griffin supports these
allegations and that the violations occurred as alleged.
c. The violations attributed to Linda Back
The complaint alleges that Linda Back was an agent of
Respondent and unlawfully, interrogated employees. Her
status as an agent is denied by Respondent and must first
be determined.
Linda Back performed clerical work in the main office
area at the Prior plant under the supervision of Michael
Guterman. She maintained personnel files for the employ-
ees at the plant and prepared forms for these files, including
change-of-employee-status forms. Back also maintained
timecards for the Pryor facility and kept plant attendance
records for the bedspread department. Guterman, Gosney.
and Back were the only persons at the plant with access to
the personnel files. Back assisted employees in answering
22 Although not separately alleged as violations, Griffin testified, contrary
to Guterman. that following their February 23 conversation on some occa-
sions when Guterman passed him in the plant. Guterman asked him if he
had heard anything and he said "No." Assuming that Guterman pursued the
matter further after Februaru 23, I would find that these questions were a
continuation of the February 23 request to Griffin and not unlawful.
777
I)E(CISIONS OF NATIONAL LABOR RELATIONS BOARD
their questions about timecards. paychecks, and insurance
and benefit programs, and she helped employees make in-
surance claims. She consulted Respondent's personnel man-
ager in Tulsa if she lacked sufficient information to help
them. Back also answered the office telephone and took
calls from employees reporting absences but did not ap-
prove absences.
Back attended some supervisors' meetings in the bed-
spread department and was present when Guterman dis-
cussed information about employees' union activities with
supervisors. 21
Back interviewed a number of applicants for employ-
ment at the plant. She usually asked them to fill out appli-
cation forms, checked the forms for completeness, and
asked some additional questions, such as whether the appli-
cant was looking for permanent work, had health problems,
or had transportation, noting the answers on the applica-
tion forms. If Respondent was not hiring at the time of the
interview, Back kept the application on file. If Respondent
was hiring, she gave it to Michael Guterman or Gosney
without any recommendation. They usually also inter-
viewed applicants in whom they were interested, but Mi-
chael Guterman sometimes made decisions based on the
information on the application without further interview.
When newly hired employees reported fbr work, Back gave
them the employee manual and told them about Respon-
dent's rules.
In January and FebruarN 1977. employees at the Pryor
plant were evaluated. Although Back testified that her role
in the evaluations wtas clerical, in at least one instance she
discussed the results of the evaluation with an employee.
I find that there are sufficient indicia that Back func-
tioned as an arm of management to support the conclusion
that Respondent was responsible for her interrogation of'
Griffin. Back had access to confidential personnel informa-
tion and functioned as a conduit for information between
management and employees. While her role in interviewing
applicants for employment may have been routine, that role
as well as her explanation of rules and policies to new em-
ploNees and her discussion of at least one employee's evalu-
ation made her appear a spokesman of management. Her
participation in supervisory meetings made her a likely con-
duit to report back to management any information she
might have acquired concerning the union activities. In
these circumstances, I find that Respondent is responsible
for her interrogation of' Griffin about the strength of em-
ployee support for the Union and thereby violated Section
81(a)( I) of the Act.2
d. The violtiovns oatrihblecd to Itarn (lGutertrmal
The complaint alleges that Harry Guterman threatened
employees with plant closure if the Union came in. The
evidence fails to support that allegation. However. the (ien-
" Back estimated that she lltended on! ;a small number of ,supervssors'
meetings According to Jean Weaer, er ack attended nmisl morning supervi-
sors' meetings and was present at some oi the meetings at which Michael
(iGuterman and supervisors talked ahout who attended union meetings and
what was said at them. I have credited Weaver that Guterman asked super-
visors to report hack what thes heard abhout the iUnion, and I credit her that
Back was present when the talked abhout the t mon.
,4 ,ltKAinnon Seroien. Ir.', 174 Nl.RB 1141 11969).
eral Counsel contends that Guterman's remark about the
effect of a union contract on Respondent's policy of tempo-
rarily moving employees between departments threatened
employees with loss of employment opportunities and vio-
lated the Act. As Guterman's statements on March 8 relat-
ing to transfers were fully litigated and this contention is
closely related to the allegation of the complaint. I shall
consider it on its merits.
There is no showing of any foundation for Guterman's
assertions as to what union contracts elsewhere required,
nor is there any showing that the Union was likely to seek
or insist upon restrictions against temporary transfers if it
became the representative of Respondent's employees. In
the absence of such showings, Guterman's assertion that
Respondent could not transfer employees if the Union be-
came their representative was not a prediction of economic
consequences of unionization, but a threat of reprisal. 25 I
find therefore that Guterman's statement violated the Act.
e. Other alleged violations
The complaint alleges that Respondent violated Section
8(a)(l) of the Act through interrogations of employees by
Ernie Klapp and Jean Weaver. In the case of Klapp, as he
was not a supervisor within the meaning of the Act, his
interrogation of Francine Neel. to which she testified with-
out contradiction, did not violate the Act. In the case of
Weaver, there is no evidence to support the allegation.
The complaint also alleges that Charlotte Brenner threat-
ened employees with loss of benefits. Although Betty Haw-
kins testified that Brenner threatened loss of Christmas bo-
nuses, seniority, and other unspecified benefits, she placed
those threats sometime in February, about 2 weeks before
the first union meeting and before Hawkins had heard any-
thing about the Union. Brenner denied making such
threats. I credit Brenner's denial. Accordingly. I shall rec-
ommend that the allegations as to Klapp, Weaver, and
Brenner be dismissed.
B. The March 11 Lavoff and Distcharges
I. The facts
Production requirements in the bedspread department
vary seasonally. Demand begins to increase during the
spring and summer months building to a peak in December
followed by a substantial decline in January and continuing
through February and March. Respondent adjusts its work
force in the bedspread department correspondingly.
On January 21, 1977, Respondent laid off seven employ-
ees and terminated seven employees. On January 28, Re-
spondent laid off an additional eight employees. Before
March I 11 there were also some temporary transfers of em-
ployees form the bedspread department to the drapery de-
partment. which does not have similar seasonal fluctuation
in demand.2 ~ There is no dispute that these layoffls. termina-
tions, and transfers were caused by lack of work.
'5 L. RB v. Gisse[ Pauking C(o., In., 395 tS. 575 619 6201) (1969).
2, The record is not clear as to the number or dates ot these transfers.
778
FABRICUIT. INC.
The decisions to reduce the work force in January were
made by Michael Guterman after consultation with Harry
Guterman. In both instances Michael reported a lack of
work to Harry, and Harry instructed him to let some people
go. Harry left it to Michael's discretion to decide how many
to let go and whether they should be laid off or discharged.
In the January 21 reduction Michael chose to terminate
seven employees who seemed to have no interest in their
work and had low productivity, absenteeism, or tardiness.
He did not consider the seniority of those selected for dis-
charge, and those who were discharged were not the least
senior employees in their areas. Those chosen for layoff on
January 21 and 28 were the least senior employees in their
areas, and Michael intended to recall them when needed
because they were good employees.
In 1976 Respondent had submitted a bid to make
150,000 bedspreads for the Army. In December 1976, the
Arms gave a partial order to Respondent for 47,000 bed-
spreads. and Respondent anticipated that it would receive
orders during the early part of 1977 for the remainder. In
January. Michael Guterman built additional cutting tables.
bought additional machines, rearranged the shop, and
trained some additional employees to prepare for this work.
In January, February, and March Respondent had diffi-
culty getting delivery of materials for the portion of' the
order it been awarded. It received quantities of 3,000 to
5,000 yards at a time, which could be cut and processed
relatively quickly because of the simplicity of the bed-
spreads involved. As of March 9. the biggest portion of the
work on the 47,000 partial order had been completed, and
there were no materials in the plant for the remainder.
During the day on March 9 Harry Guterman learned
from Respondent's contract department that another
manufacturer had been given the order for the remaining
103.000 Army bedspreads and that Respondent would not
be getting this work.
That evening when Michael Guterman made his daily
visit to the Tulsa office, Harry informed him that Respon-
dent was not going to get the rest of the bedspread order
and told him that he would have to reduce his work force
by 10 employees effective Friday. March I 1. Harry testified
that he picked the number 10 fbr economy reasons and
wanted the reduction effective Friday because it was the
end of the week. According to both Gutermans, Harry did
not tell Michael whether to discharge or lay off the unneed-
ed employees, but left that decision to Michael's discretion.
Harry Guterman testified that they did not discuss the
Union or the effect the reduction in force might have on the
union supporters in the plant. According to Harry. the im-
pact of a reduction in force on the organizing campaign did
not concern him one way or the other.
Early the next morning. March 10. Michael Guterman
told Jean Weaver and Naomi Dixon that there had to be
another cutback of approximately 10 people and that Re-
spondent needed to lay off some more people. Guterman
said that the names had to be sent into Tulsa so that they
could have the payroll ready for the next day. "because if
there is any petition from the union, it will arrive tomor-
row." and Respondent wanted to lay' the employees off be-
tore the petition arrived.
Weaver and Dixon asked whether they really needed to
have another layoff. and Guterman replied that they did.
that they needed to weed back a few more people. and that
he wanted to get rid of a few more people who were not
that good. Guterman asked Weaver and Dixon to give him
a list of names that morning, because he wanted those se-
lected discharged and their checks in the plant before the
petition arrived."2 Guterman kept Weaver and Dixon in the
office until a list was compiled. Weaver told him that she
could not recommend the discharge of anyone in the cut-
ting area and that in fairness he would have to take employ-
ees from her area by senionty. Dixon and GCuterman listed
the names of the other employees at that time. Guterman
said there were several employees he would like to dis-
charge but could not and that he would therefore take oth-
ers. According to Weaver. Guterman was emphatic that
action had to be taken at that time because he did not want
to have any argument over letting employees go later on
and w anted to terminate or lay them off before there were
any union problems.2 -
On March I . Michael Guterman laid off Ray Griffin
and terminated Jerry Livingston, Glenda Martin. Francine
Neeld and six other emplo'ees trom the bedspread depart-
ment.2? Toward the end of the workday Guterman called
each of the separated employees in the bedspread depart-
ment to his office and notified them of their separation.
Guterman told Griffin that he was being laid otf because of
a reduction in work and that he felt Griffin would be one of
the first to be recalled. Guterman told Li ingston that Re-
spondent no longer needed him and was terminating him
because theN could not retain anyone who was klate to work
every day. Guterman told Glenda Martin that she was
being terminated for low production." Guterman also told
Francine Nedl that she was being terminated for low pro-
duction.
On the same afternoon Drapery Department Manager
Gosney called Pamela [ry, an employee in his department.
to his office and told her that he needed only 75 employees
in the drapery department. had to let six or seven employ-
ecs go. and was terminating her.
1 IThe petition a, tfiled o,n Matlch 7 and wa's received . it the plant on the
ittern.o n of March I I
12 w easer tetified testified Guterma esti tha it he compiled the list o1 em-
plosees to he separated and then called all the supervisors together to tell
them of the reduction in liorce and the reason for it. No other witness testified
as to the meeting (ot all the super'isors described bs Guterman. but Naomi
Dixon. who denied any participation in the decision. testified that she ,.nl)
learned I.i ingston was terminated because of attendance problems a day or
two alter March It when she asked Michael Guterman what happened to
.ivsingston because she noticed he was not at work I, en under Gutermlan's
version. Dixon would hase been aware o, Ll.lngston's separalltion before
obser ling hi' absence trolll the plant, and I find her testimony in that regard
incredible. (uterman's testimony vacillated as to the role of seniorit in
compiling the list of emplo)ees. and he twice answered affirmatisely when
asked if he told supervisors whs he needed the names on March 10, indicat-
ing that he did not hase the list compiled when he spoke to the supervisors
but sought aid in compiling the list. As noted elsewhere. I hase iound in-
credible Guterman's disclaimer iof interest in employee union actisities. and
his testimin' as a whole shows partisan distortion. for example, in his at-
tempts to disclaim the authenticity and timing of Neel's evaluation and his
initial and only partiallN corrected denial that any of the emploiees laid off
in Janualr, were recalled before March 11. I have credited Weaier.
29 rhe complaint does not a;llege that the six emplosees who are not inden-
tified on the record were discriminatorils discharged
5' Althouigh ('uterman testified that he also mealtioned excessive talking,
the reason stated on the w ritten termination notice placed in her file supports
Martin's testlmonsn that low product ion was the onls reason stated h ( u ter-
lI n
779
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Monday, March 14, Michael Guterman reported to
Harry Guterman that he still had an excess of 15 employees
in the bedspread department who would have to be laid off.
Harry told him to defer the layoffs and suggested that he
ask Gosney if he had work to keep them busy in the drap-
ery department. Thereafter Gosney agreed to take 15 em-
ployees from the bedspread department temporarily.
At about that time Harry Guterman made another
speech to the Pryor employees in which he told employees
that Respondent was not getting materials it needed and
there would be further production delays.
About a week after the terminations, at the direction of
Michael Guterman, Linda Back asked Weaver to write re-
ports on the people who had been terminated, telling her
that Respondent was in trouble because it had nothing in
its files. Weaver was aware at the time that the charges in
this case had been filed against Respondent. She asked
Back what she wanted her to write. Back replied that they
needed something in the file by way of reprimands which
would serve as grounds for dismissal of the discharged em-
ployees. Back told her to leave them undated but did not
tell her what words to write. During the day Michael
Guterman came to her and told her that he needed the
reports and to get them ready. Weaver wrote reports on
Livingston, Martin, and Neel.3'
Starting a week or two after March 15, employees were
transferred back from the drapery department to the bed-
spread department as work became available, and the last
employees returned to the bedspread department form the
drapery department several weeks later, with some tempo-
rary interchanges in the interim. There were no new hires in
the bedspread department until June.
At the end of April a job opened up for a utility person in
the bedspread department, a different job than that per-
formed by Griffin before his layoff. After checking Griffin's
employment application and learning that he had no tele-
phone, Guterman unsuccessfully tried to get a telephone
number for Griffin from the Oklahoma State Employment
Service in order to contact Griffin.32 Guterman did not
write to Griffin at that time or make any further effort to
reach him.
In June Guterman hired a new employee to fill the va-
cant position. A few weeks later, in late June or early July,
Griffin called Respondent's plant seeking work. Guterman
told him that his previous job was occupied, that he did not
need help in that area, and that there were no openings for
him. Griffin said that he would check later. Although Grif-
fin spoke to Back and Guterman at that time, neither asked
him for a telephone number where he could be reached.
Griffin, who had changed his mailing address in May, did
lo Weaver's testimony as to the circumstances under which she wrote the
reports was uncontradicted. Although Guterman testified at one point that
he never asked any supervisor to write a report on any employee after he was
terminated, he also testified that he asked supervisors to write up notes after
being informed by Respondent's Tulsa office that its attorney had asked for
written information about the charges.
32 Guterman testified that he made the inquiry personally, while Linda
Back testified that in April she called the employment service office because
Guterman wanted to know if they had a telephone number for Griffin. As
this was the kind of inquiry likely to be delegated to a clerical assistant, as
Guterman's testimony is in other respects inaccurate, and as Back had no
reason to take credit for a call Guterman made, I credit Back
not inform them of his change of address, but did notify the
post office.
On July 19, a week before the hearing in this case, Guter-
man sent a letter to Griffin by certified mail to the address
shown for Griffin on company records. The letter was re-
turned to Respondent stamped to indicate that the Postal
Service was unable to forward or deliver it.
In the undelivered letter, Guterman offered Griffin recall
with a reporting date of July 25. Guterman stated that if he
did not hear from Griffin within 5 days of Griffin's receipt
of the letter, Guterman would assume that Griffin was no
longer interested in working for Respondent and would re-
move his name from the list of those eligible for recall.
Guterman's offer was for the job of utility person, which
had again become vacant because of illness.
2. Concluding findings
a. The decision to reduce the work fircse
The initial question to be decided is whether the decision
to reduce the work force in the bedspread department on
March 11 was itself discriminatorily motivated. There is
evidence to support such an inference. Thus, there had been
two previous reductions in force, the second consisting en-
tirely of layoffs and neither initiated by Harry Guterman,
as was the March II reduction. There were also transfers
from the bedspread department to the drapery department
both before and after March 11. Weaver's credited testi-
mony indicates that the testimony of Harry Guterman as to
his conversation with Michael Guterman was not com-
pletely candid and that the imminence of a representation
petition entered into their discussion.
However, there is also evidence which supports Respon-
dent's contention that the reduction was economically mo-
tivated. It was the slow season in the bedspread depart-
ment. Respondent had just learned of the loss of substantial
anticipated business. Even after the reduction there was a
surplus of workers in the bedspread department who had to
be transferred to the drapery department. Finally, there
was no need to hire or recall any employee for 3 months.
While there is some doubt as to whether the organizing
campaign influenced Respondent's decision to reduce its
work force, in the absence of a blanket allegation that all
bedspread department terminations were discriminatory
and in the face of a plausible economic explanation for the
reduction in force, I conclude that the decision to reduce
the work force was not in itself discriminatory.
b. Inclusion of Griffin, Livingston, Martin, and Neel in the
reduction in force
The next question to be answered is whether the inclu-
sion of Griffin, Livingston, Martin, and Neel on the list of
those to be separated was discriminatorily motivated. Grif-
fin, Livingston, and Neel were active supporters of the
Union who attended the first union meeting, solicited other
employees to sign cards at the plant, and talked about the
Union at lunch- and breaktimes. Martin had only signed an
authorization card insofar as the record shows. Livingston
was Weaver's source of information as to the first union
meeting, and Back had questioned Griffin about the Union
780
FABRICUT. INC.
on several occasions. All the bedspread department supervi-
sors, including Virginia Orr, whose husband attended the
first union meeting, had been instructed to report anything
they heard to Michael Guterman. I find in these circum-
stances that the evidence warrants the inference that Re-
spondent was aware of the identity of the union supporters
and card signers in the plant.
The evidence, however, indicates that the inclusion of
Griffin, Livingston, Martin, and Neel on the list of those to
be separated was based on seniority rather than any other
consideration. In the case of Griffin. although he initially
testified that he was not the junior employee in shipping in
the bedspread department, his testimony as well as that of
Guterman ultimately indicate that the only employee in
shipping junior to Griffin was in the drapery department
and that shipping in the bedspread department was sepa-
rate from that in the drapery department. Griffin also testi-
fied, without contradiction, that during the month before
his layoff he worked daily overtime and some Saturdays,
but there is no indication that following his layoff Priscilla
Blevins, the other employee who performed the same work
as Griffin, was unable to handle the workload.3 In the case
of the others, although Guterman vacillated between testi-
tying that he picked the terminated employees by seniority
and that seniority had nothing to do with the terminations,
Weaver testified that she supplied the names of Martin and
Neel on the basis of seniority, and it is clear that they and
Livingston were the junior employees in the areas where
they worked.
Seniority was the basis of past layoff., and if Respondent
had merely laid off all four on March II there would be
little basis to conclude that their selection was based on
their union activities rather than their seniority.
c. The alleged termination of Grfflin
With respect to Griffin. the General Counsel contends
that despite his nominal layoff. Respondent in effect termi-
nated him because it had no intention of recalling him.
I find it unnecessary to decide whether Guterman in-
tended at the time of the layoff not to recall Griffin, for
there is no evidence that until April there was any work
available for him. and it is sufficient to decide whether
Guterman then unlawfully failed to recall him.
In April, despite the fact that the representation petition
was pending and the charge in this case had already been
filed alleging that Griffin had been unlawfully discharged.
Guterman made at best a minimal effort to contact Griffin.
Before checking with the Oklahoma State Employ ment Ser-
vice, Guterman had reason to believe that Griffin could not
be reached by telephone. and he learned nothing form his
effort to give him cause to believe otherwise. He had a mail-
ing address and did not need further information to try to
' Biesins was called as a witness by the Charging Part) hut was not
questioned about the relationship oif her work to that of Griffin or the per-
formance of the work previously done by him. She did testits in another
context that she was transferred from the bedspread department to the drap-
er) department for approximately 3 weeks in February or possibly the first
of March There is no indication, however, that she was out of bedspread
shipping after Gnffin's layoff, and, if anything, her testimony in this regard
shows that there was insufficient work to keep both her and Griffin busy In
shipping betore Griffin's lakoff
reach Griffin by mail. However, despite the fact that Guter-
man did not fill the vacant position until June, more than a
month later. Guterman did not take the step of writing to
Griffin, which would have demonstrated that he intended to
recall him but which might also have resulted in Griffin's
return. When Griffin called later seeking work, Guterman
made no effort to get a telephone number from Griffin for
any future meed which might arise. I find that Guterman
failed to take the obvious step in seeking to recall Griffin
because of Griffin's union activities and thereby violated
Section 8(a)(3) and ( ) of the Act.
d. The termination of Livingston, Martin. and Neel
With respect to Livingston, Martin. and Neel the ques-
tion remains whether any of them would have been termi-
nated rather than laid off if not for their union activities.
Livingston was hired on November 19, 1976, as a carpen-
ter. After 2 weeks, he was moved to the stock department.
He was laid off on January 28. but was recalled to the stock
department on February I because of the illness of another
stock department employee.
After his recall, Livingston was transferred to the cam
machine, a large multineedle machine which quilts materi-
als used in making bedspreads. and also worked on the
flatbed machine as a helper.
On February 19, at the end of his 3-month probationary
period. Michael Guterman recommended a pay raise for
Livingston to be effective February 12. Respondent's gen-
eral manager approved the recommendation, but for rea-
sons not shown. Harry Guterman did not approve it and it
was not granted.
In February Respondent conducted an evaluation af all
employees. and on February 18 Michael Guterman dis-
cussed Livingston's evaluation with him. At that time
Guterman made no criticism of his work and said that he
was doing very well, was improving, was was average in his
work.", Guterman mentioned that Livingston had missed a
couple of days in January when there was snow, and Liv-
ingston told him it was unavoidable because he had been
snowed in. Gutherman did not mention tardiness as a prob-
lem at that time.3'
On other occasions before March I 11, when Guterman
observed that Livingston was late, he asked Livingston for a
reason, and on several occasions Livingston told him that
he had car trouble.
Livingston's timecards show chronic tardiness through-
out his employment. In his first 2 weeks of employment he
was 4 minutes late once and otherwise on time. In the next
2 weeks, ending December 17. 1976. he was from I to 8
minutes late on 6 days and I hour and 6 minutes late on
another. In the next 6 weeks, ending on January 28, the das
of his layoff. Livingston was on time 4 days.? from I to 10
4 Livingston testified that he believed his score on the evaluation was 18
In the evaluation Respolndent rated employees for six characteristics on a
scale from one (poor) to five (excellent). A total score of 18 was an average
score
1' Livingston so testified. Although Guterman testified that he spoke to
Livingston about his tardiness at other times, he did not testify about what
he said to Livingston at the time of his evaluation.
This includes I das when Livingston was 20 minutes late because of
snow hut gien credit for a full duis worked
781
DECISIONS OF NATIONAL LABOR RELATIONS BOARI)
minutes late on 14 days, and 11 minutes or more late on 8
days, including 3 days when he was 38 minutes, I hour and
28 minutes, and 3 hours and 27 minutes late. In the period
between Livingston's recall and his evaluation on February
18, Livingston was on time once, I to 10 minutes late on 10
days, II to 14 minutes late on 2 days, and 2 hours and 37
minutes late on I day.
Following his evaluation, Livingston worked 3 weeks.
The first week he was I minute late I day and on time the
other 4 days, the second week he was 2 to I I minutes late
all 5 days. and the final week he was on time I day and 3 to
10 minutes late the other 4 days.
A survey of the Respondent's timecards for the period
from January 31 through March I I showed that 75 percent
of the employees clocked in before 8 a.m. An employee is
regarded as tardy if he punches in at 8:01 or later. Hie is
docked pay if he punches in at 8:11 or later.
Although Livingston testified that some of his tardiness
was due to a cluch malfunction which caused it to print a
time 3 to 5 minutes later than what the face of the clock
showed," this explanation would still leave a number of
instances of tardiness on iv ingston's record, and Living-
ston conceded that there were other causes tor his tardiness,
including car problems, and that on occasion Linda Back
had pulled his timecard from the rack when he arrived at
the plant because he was late.
Michael Guterman testified that he terminated Living-
ston because he was late 27 times during the last 6 weeks of
his employment. The employee dismissal notice in Living-
ston's files signed by Michael (Guterman states that Living-
ston was terminated because he "did not meet our standard
during his probationary period. Numerous tardinesses." In
a letter written to the Oklahoma Employment Commission
on March 22, Respondent stated, "You will note on the
attached copies of his timecards and attendance record that
during 30 days of work he was tardy 25 times. Due to his
poor attendance record, he was terminated 3/11/77."3 T
Notwithstanding lIivingston's record of chronic tardi-
ness, there is substantial reason to discredit Guterman's ex-
planation for his decision to terminate Livingston. I.iving-
ston was laid off on January 28 and not terminated despite
the fact that he was then still a probationary employee and
his record of tardiness was clearly established. Notwith-
standing that record, he was almost immediately recalled
when a vacancy arose, and a few weeks later, despite a
continuing record of chronic tardiness. he was evaluated as
an average employee and recommended for a raise by Mi-
chael Guterman at the end of his probationary period. Liv-
ingston's tardiness record after his evaluation was no worse,
and if anything better, than it had been preceding the
evaluation. If. as stated on the form in his file. Livingston
failed to meet Respondent's standards during his probation-
" Jean Wreaver and Priscilla Blevins testified that tardiness due to
the
clock was 2 to 3 minutes. Michael Guterman testified that the problem with
the clock was only temporary in duration.
31 In the statement written by Weaver alter Livingston's discharge, she
mentioned other shortcomings. some of which she testified she was instructed
to put in her statement and which she testified charged him Ior mistakes
for
which he was not responsible. Cuterman made no mention of these In termi-
nating livingston or in the correspondence with the Oklahoma Emplo
ment
Commission, and it is apparent that Respondent relied only on his tardiness
to jusifs his ternaination
ary period, the time to have terminated him was on January
28, when he was laid off, or on February 19, when his pro-
bationary period ended. The inconsistency between Guter-
man's treatment of Livingston before March 11 and his de-
cision to terminate him on that date makes it clear that the
reason given for his termination was a pretext.
Turning to Glenda Martin, the record shows that she was
hired by Michael Guterman in October 1976 to work as a
helper on a cutting table under the supervision of Jean
Weaver. After 3 months she was given an increase of 20
cents an hour effective January I. 1977. The form noting
her pay increase was signed by Michael Guterman on Janu-
ary I 1 and contained blanks checked to show that Martin's
conduct was good, attendance excellent, ability excellent.
and production excellent.
On January 28 Martin was laid off; and on February 17
she was recalled."? The dismissal notice in Respondent's
files shows low productivity as the reason for Martin's dis-
charge. In a letter to the Oklahoma State Employment Ser-
vice I month after her discharge, Respondent stated in rel-
evant part: "We continue to maintain that Ms. Martin was
fired for just cause. Our files contain three reports from
supervisors attesting to the fact that, although Ms. Martin
completed her probationary period satisfactorily, her per-
formance and attitude declined steadily resulting in her ter-
mination."
Martin received no written warning about her produc-
tion. Although Martin testified that the quality or quantity
of her work was never criticized by anyone and denied she
was not interested in becoming a head cutter, I credit
Weaver that Martin told her that she only wanted to be a
helper. I also credit Weaver that low production on Mar-
tin's table had been discussed at supervisory meetings. and
as a result Weaver spoke to head cutter linda Mounce.
who attributed it to her not feeling well and having back
problems. I also credit Michael Guterman that on two oc-
casions within a few w veeks of' her termination he talked to
Martin about standing around without doing anything and
that she told him she needed something to do and could not
find the supervisor.
In Weaver's post-termination statement about Martin,
Weaver wrote:
Glenda Martin has been in the cutting department
since hiring into Fabricut. Glenda helped on a large
stock & contract table. As of leaving Fabricut I do not
believe she knew stock sizes or bed sizes. Several times
I approached her on learning and she was only inter-
ested in helping by doing what she was told. A helper
does not have to be as good as the head but they must
still learn and have some qualifications and ability in
the helping level. When her head cutter was gone she
would not put forth an effort to do something on her
own. In my opinion she would have not progressed any
l'urther."'
A' Martin was not evaluated in February, apparently because of her layoff
4a During Weaver's cross-examination Weaver was shown a second state-
ment in her handwriting about Martin. containing somewhat similar com-
ments and the additional comment that Martin had not prosved to be a good
cutter's helper. TIhat statement had a portion torn Irom its top which Weaver
testified originally contained a date. Weaver testified that she did not believe
that Martin was not a good helper and that she had been told to write this
statement for the file and did so despite her disagreement w ith it. Neither this
782
FABRICUT. INC.
While the evidence is not as clear as in the case of Living-
ston, I find that the reason advanced for Martin's termina-
tion was also pretextual. When Martin finished her proba-
tionart period in January,. her increase and rating show
that Respondent then found no fault with her. On January
28, when she was laid off. Guterman again found her an
employee worth retaining, as he did not terminate her at
that time. Between the time of her recall on February 17
and her termination, she worked only 3 weeks.
There is some evidence that Respondent was concerned
with productivity on the table that Martin worked on, but
productivity on cutting tables reflects the work of a team
and not an individual employee, and I have credited
Weaver that the head cutter on that table attributed the
problem to her own personal circumstances. While Guter-
man testified that Martin's lack of fitness to become a head
cutter entered into the determination to terminate her, that
reason was not mentioned to Martin or in Respondent's
communications to the Oklahoma State Employment Ser-
vice. Moreover, contrary to the assertion in Respondent's
letter to the Ser`vice a month after her discharge, it did not
have three reports from supervisors in its files. One of the
statements it possessed was written after the ftact for the
purpose of justifying an action already taken, and the other
was produced in this proceeding under circumstances
which undermine its worth.
Weaver's testimony that she viewed Martin as a good
helper is supported by the rating given Martin in January
and Respondent's treatment of her recall in February. The
evidence does not show such change in the last 3 weeks of
Martin's employment to conclude that the employee
deemed excellent in production and suitable for recall in
February had so deteriorated in her productivity that she
should not be recalled from layoff. For these reasons, I find
that the reason given for her termination was a pretext.
Francine Neel was hired by Michael Guterman on No-
vember 8, 1976, and shortly thereafter started to work as
helper on a cutting table in the bedspread department with
head cutter Ernie Klapp.
On Fehruarv 19 Michael Guterman recommended a 15-
cent hourly increase for Neel. to be effective February 19.
Respondent's general manager recommended that the in-
crease be 20 cents an hour, but Harry Guterman disap-
proved it, for reasons not indicated, and Neel did not re-
ceive it. During February. in the plantwide employee
evaluation. Neel was rated average with respect to produc-
tion output, job knowledge. and drive and initiative. She
was rated very good with respect to dependability. coopera-
tion, punctuality and attendance. and production output.41
statement nor Wea.er's post-termination statement was produced in re-
sponse to a subpena for her personnel file. Although Ciuterman explained
that the po'st-terminalion statements were obtained at the request of counsel
and thus may arguably not ha'se been subject to the subpena. no explanation
was offered fir Respondent's failure to produce the other statement or for
the alteration ol that document to remove its date. Because of these circum-
stances. and particularly the defacement of the statement which makes it
impossible to determine when it vas dated or written. I reject this statement
as impeaching Weaver's testimono and credit her explanaltion that she Incor-
porated material in it which was untrue
4' the form prodiuced from Respondenl's tiles shows a;n alteration in the
rating swith respect tl productiin output fronl ery good to average and a
change in tolal score. Neel testified that the changes were made after she was
shioun the form. although she a;lso testified she did not think the total score
wias changed. No explanations were offered fior the alteration ot the form
Her total score was 22 points. or 4 points above the total
which all-average ratings would have produced.
On February 21. Linda Back discussed the evaluation
with Neel and told her that for the length of time she had
been there she was doing her job well.4? During February
Neel missed about 3 days of work a week for 3 weeks be-
cause of jury duty. She last worked with Ernie Klapp as his
helper during the week of February 28. and the next week.
her final week, she worked with head cutter Pat Hlager.'
After Neel's discharge a dismissal notice signed by Mi-
chael Guterman was placed in her file, giving as the reason
for discharge, "Did not meet our standard during her pro-
bationary period." Thereafter in a letter sent to the Okla-
homa State Employment Service, Respondent stated. "An
evaluation of [Neel's] performance following the comple-
tion of her probationary period indicated that she lacked
the drive and initiative needed for her position and that she
was unable to meet our production standards.
In late December Neel's sister-in-law, who also worked
in the cutting department, and Neel's brother had a prob-
lem which upset Neel and which she talked about at work
excessively. The problem was resolved in Januar." During
that period Neel's production and attitude were discussed
in supervisors' meetings.
After Neel's discharge, at the request of Guterman and
Back, Weaver vwrote:
Francine was in the outline department before she was
transferred to the cutting department. She was placed
on a cutting table and training tfor a possible head cut-
ter. She started fine and was potentially good for this
other then testimony of Michael Guterman that he did not recognize the
form or the handwriting and believed the exhibit was false. As the exhibit
came from subpenaed files of Respondent. I do not credit the claim that it
was false and regard that testimony as a transparent but futile effort to asoid
the consequences of what the exhibits showed I find that it was altered some
time after it was first shown to Neel. Despite her belief that the total score
was unchanged. I also find that the consequence of the alteration of her
rating was to lower her score by one point.
42 Neel so testified. Michael Ciuterman initially testified that he did not
remember whether he discussed Neel's evaluation with her but that he called
her into the office and gave her the sheet to read and to sign Guterman was
asked if he discussed Neel's low performance with her when he discussed her
evaluation and answered affirmatively He was then asked if he noted her
low production on the evaluation foirm and replied that he did. that he
believed she was an average girl. and that to be average for 2 months was
·very good He testified that at the time of the evaluation Neel was probation-
ary, had been with Respondent for 2 months and a few days. and was show-
ing good interest in her work. As indicated above, when shown the evalu-
ation form taken from Respondent's files Guterman disputed its date and
authenticity I do not credit his testimony as to Neel's evaluation or his
discussion of it with her and find that at the time of her evaluation. 4 months
after she was hired. Guterman did not discuss it with her.
41 Neel testified without contradiction as to her absences and assignments
at this time.
" Neel's testimony as to the timing of the problem and the duration of its
distraction of her at work is corroborated by her evaluation and the recom-
mendation for her raise in Februars I11 as Klapp testified, the problem arose
near the end of her probaltionary penod. it is highly unlikely that she would
have been evaluated as above average on February 19. During Neel's last
month It employ ment. when O(uterman placed the problem. Neel was out on
jury duty much of the time and worked on a different table her final week.
perhaps explaining why, as Guterman testified. he tound her absent from the
table most of that time The testimony that Neel's decline occurred during
her last month is also inconsistent with the statement in her file and to the
employment service that the cause of her discharge was her tailure to meet
standards during probation and in her esaluatin. I do not credit Guterman
or Klapp. whose testimnon5 with respect toi Neel was inconsistent in another
respect. its to the timing off the decline in Neel's work
783
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
position. The first problems were over her brother's
separation from his wife. She took this with difficulty
and brought it here to Fabricut. On several occasions I
mentioned to her about excessive talking with fellow
employees. I tried to overlook this but it got out of
hand. On several occasions I talked to the cutters as a
unit concerning talking, production etc. She was pre-
sent in these meetings. On her last 2 weeks of the job
she steadily went backwards in job initiative and I
would not have felt it easy to place her in a responsible
position. She would not qualify for the position I was
training for.
Weaver testified that she agreed with all but the last two
sentences of this statement and that she put those in be-
cause she was told Respondent needed something in the
statement to show why Neel was discharged.45
The evidence again shows that the reasons given for ter-
minating Neel were a pretext. Whatever Neel's temporary
problem, by February 19 Guterman recommended her for
a raise and gave her an above-average evaluation. Despite
her probationary status, she was passed over in the earlier
reductions in force when Guterman terminated those he
then deemed undesirable. The reason given in the dismissal
notice in Neel's file was demonstrably false. Neel was out of
her probationary period, and the recommendation for an
increase and evaluation on February 19 were diametrically
opposed to the statement in the notice that Neel failed to
meet Respondent's standards during her probationary pe-
riod. The later letter to the Oklahoma State Employment
Service abandoned this position but was equally false in
asserting that her evaluation showed lack of drive and ini-
tiative and inability to meet production standards. In Neel's
case the facts make it abundantly clear that Respondent
seized upon a temporary problem during Neel's employ-
ment which it had previously discounted to justify a dis-
charge for other reasons.
I find that the decision to terminate these three employ-
ees rather than lay them off as well as the later failure to
pursue the recall of Griffin were caused by the union activi-
ties in the plant. As found above, there is basis to infer
Respondent's knowledge of the union activities of these em-
ployees. While the evidence is insufficient to support the
conclusion that the reduction in force in its entirety was
caused by the union activities, Michael Guterman's state-
ments to Weaver and Dixon on March 10 show that those
activities were very much on his mind as he selected the
employees to be separated and decided whether to lay them
off or terminate them. Only 2 days earlier Harry Guterman
had warned employees that with a union Respondent
would no longer be able to deal as flexibly with fluctuations
in the work load, and this reduction in force offered an
immediate opportunity to underscore his point. While other
employees who attended union meetings and were leaders
in union activities were not terminated, Michael Guter-
,l As in the case of Martin, during Weaver's cross-examination she was
also shown an altered statement in her handwriting critical of Neel's per-
formance and initiative. That statement was not produced in response to the
General Counsel's subpena for Neel's personnel file, and no explanation was
offered for Respondent's failure to produce it or for its alteration. I reject this
statement as impeaching Weaver's testimony and credit her that this state-
ment was also untrue and that she wrote the statement because she believed
it was necessary for her to do so to keep her job.
man's comment to Weaver that there were several employ-
ees he wanted to discharge but would have to take others
indicated that he did not discharge all those he wanted to
and lacked a colorable basis for doing so.
In these circumstances, and particularly in the light of
the findings above that the reasons assigned for terminating
Livingston, Martin. and Neel were pretextual, I find that
the true reason for their terminations was to discourage
their union activities and those of other employees. I con-
clude that their discharges violated Section 8(a)(3) and (1)
of the Act.
e. The terminatlion of Pamela Dry
Pamela Dry was the only employee terminated in the
drapers department on March 11. All the evidence relating
to the circumstances of her discharge was developed by the
General Counsel. Although G(osney and Charlotte Brenner.
Dry's supervisor in the drapery department, testified to
other matters, they were not questioned about Dry's termi-
nation or job performance.
Dry was hired in April 1976 to work in the bedspread
department. After a week she was transferred to the drap-
ery department, where she worked first as a hemmer and
then as a pinner. At the end of her probationary period she
received a 15-cent hourly increase. At that time no one
discussed her work with her or told her that she needed to
improve.
In February 1977 drapery department manager Gosney
evaluated her and gave her a score of 14 points, which was
below average. He rated her punctuality and attendance
poor, production output and drive and initiative fair, and
dependability, job knowledge, and cooperation average.
Gosney told her at that time that she had missed too many
days of work and that he wanted her absenteeism stopped.
Gosney also discussed Dry's production with her, but she
did not remember what he said.
Dry signed a union authorization card and talked with
union activist Diane Smirl about the Union during breaks
at the plant. She did not talk about the Union at other
times or with the women who worked near her.
The employee dismissal notice in Dr v's personnel file
signed by Gosney and a later letter to the Oklahoma State
Employment Service state that the reason for her termina-
tion was "low productivity"
Despite Gosney's statement to Dry on March I that he
had to let 6 or 7 employees go to reduce the drapery depart-
ment to 75 employees, there was no need for a reduction in
force in the drapery department, and Dry was the only
employee separated from the drapery department at that
time. Gosney's misrepresentation to Dry of the need for her
termination and the timing of her termination support the
contention that the reason given her for her discharge was
pretextual and are sufficient to establish a prima facie case
with respect to Dry's discharge and to shift the burden to
require Respondent to go forward to show the cause of
Dry's discharge. As Respondent failed to do so, I find that
Dry's termination from the drapery department was also
discriminatory.
Although Gosney's evaluation of Dry in February indi-
cates that her attendance and productivity were found
wanting at that time, there is no evidence that her attend-
784
FABRICUT, INC.
ance played any role in her discharge or that her productiv-
ity continued to be deficient between February and March
I 1.
C. The .4lleged Discrimilnatron Change in Policy Relating
to Conllersations oiln Ihe Job
The representation election among Respondent's em-
ployees was held on June 1. 1977. from 3 to 4:30 p.m. Be-
fore the election started there was a pre-election conference
which started at 2:15 p.m. and ended just before the elec-
tion started. Immediately after the voting ended, the ballots
were counted. Norma Jean Stevens served as a union ob-
server at the election and was present at the preelection
conference and the count of the ballots.
IThe next morning Drapery, Department Manager Gos-
nev called the drapery department employees together and
told them that the election was over, the results were incon-
clusive. the matter was in the hands of the Board, and there
was nothing that any of them could do about it at that time.
IHe told the employees that production had gone to pieces
and it vwas time for them to get back to work and to see if
they could catch up and operate on a normal basis. He told
them that it' he had to he would beg them to do so and
asked them to go back to work, to knock off conversations,
to stav at their machines, and to try to get some work done.
Shortly after the meeting with the emploees Gosney
went over the same instructions with the supervisors and
asked them to help him get the work out. He told them that
he needed to cut down on wasted time, to get rid of unnec-
essary conversations and absences from machines. and to
keep employees at work. He told the supervisors to push the
work and to watch for employees who gathered together
and talked. Gosnev said that he did not want such gather-
ings and that if supervisors saw them they were to ask if the
employees had any problems with their work, which usu-
ally would cause them to go back to their machines if they
were only talking.
That afternoon Gosney observed Stevens not working
and engaged in an extended conversation. Gosney asked
Yona Guterman to tell Stevens to stop talking and to get
back to work. Guterman went to Stevens and told her not
to talk so much and to get to work.4
The next morning Supervisor Chancellor observed Ste-
vens. Clayton. and Reba Kvittum sitting at their machines
in personal conversation. Kvittum and Clayton were facing
Stevens, who was talking to them. Chancellor told Gosney
about it and then told Stevens that the party was over and
46 Gosney and Guterman so testified. Stevens and Clayton placed this inci-
dent on the previous afternoon before election at 2:15 p.m. According to
them, Guterman told Stevens she could not talk to anyone about anything,
and for the next 45 minutes Stevens wrote notes about her work until she left
oIbr the election Their testimony as to the timing of this incident conflicts
with uncontradicted testimony as to the timing of the preelection conference
and Stesvens' participation in it. Although there is some conflict as to the
extent of restrictions on talking before this incident, the evidence shows that
Stevens talked while at work both before and after this incident and that
Respondent had permitted and continued to permit employees to talk as
long as their talking did not interfere with their work. In these circumstances,
I have credited Gosney and Guterman as to the timing of the incident and
that Guterman did not tell Stevens that she was not allowed to talk to
anyone while at work.
that she was to get back to work. to quit bothering the
women who worked near her, and to quit talking to them.47
While Chancellor's instruction to Stevens to quit talking
to the other girls could be construed literally as an instruc-
tion not to talk to anyone about anything, given the nature
of the conversation between Stevens. Clayton, and Kvit-
tum. the speech which Gosney gave the employees on June
2. and the evidence that Stevens continued to engage in
conversations after this instruction was given, I am con-
vinced that the instruction to Stevens was neither intended
to stop Stevens from all talking with others nor so under-
stood. I find that Chancellor's instruction to Stevens was
giv en to her as part of the effort announced by Gosney the
previous day to end excessive talking and to direct employ-
ees' attention to their work following the election.
On June 3 Supervisor Charlotte Brenner went to the
packing area of the drapery department, where Diane Smirl
and Regina Jackson worked, and told them that she wanted
them to stop talking and to get their work out. They replied
that they were talking about an order, and Brenner com-
mented that thev did not always have to talk about an or-
der. Smirl protested that Brenner should not tell her to stop
talking when all the other employees in the area were talk-
ing. Brenner replied that she spoke to the others about talk-
ing also. and Smirl disputed her.s
On June 8. when Smirl was working with Virginia Butter.
Brenner approached her and told her she was talking too
much. Smirl denied it. Brenner asserted that Smirl had been
talking the day before also. Smirl told Brenner that if
Smirl's work did not suit Brenner. she could move her.
Smirl asked Brenner about a meeting at which Gosney had
said that they could talk as long as they were working and
the work was slack, and then she asserted that Brenner also
talked. Brenner replied that she talked to the employees in
order to get the work out.
The complaint alleges that on or about June I Respon-
dent implemented a policy of prohibiting Stevens and Smirl
from engaging in routine. previously permitted conversa-
tions with other employees in their work areas during work-
ing time because of their union activities. Both Stevens and
Smirl were active supporters of the Union and were openly
indentified as such. However. I do not find that the at-
tempts to restrict their talking following the election were
attempts to curtail previously permitted practices because
of their union activities. While a certain amount of conver-
sation was always permitted in the plant, even before the
14 Chancellor so testified. Stevens testified that Chancellor told Stevens
that she could not talk to anyone, that she asked Chancellor how she was
going to get her work done, as there were things she had to talk about, and
that Chancellor merely repeated her instruction. Clayton testified that when
Chancellor told Stevens to stop talking. Kvintum asserted that it was not
Stevens' fault. because Kvittum had started the conversation. to which
Chancellor replied that it didn't matter, because they didn't want Stevens
talking, Kvittum testified that when Chancellor told Stevens to stop talking,
Stevens protested that she was working and Chancellor merely repeated her
instruction. W'hile Stevens may have made some protest before acquiescing.
the failure of Clayton and Kvittum to corroborate Stevens that she asked
Chancellor how she was going to get her work done persuades me that there
was no discussion of the impact of Chancellor's instruction of Stevens' ability
to do her work. I also credit Backwater's denial that Stevens asked her how
she was to get her work out and that Backwater told her she was sorr) but
"he" told them Stevens was not to talk.
" According to Smirl, after leaving Smirl, Brenner talked for 2 hours to
the banders. who worked nearby, about nonwork related subjects. I credit
Brenner's denial.
785
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election and before the union campaign employees were
asked to curtail talking if it was deemed to interfere with
work. On the day after the election Gosney appealed to all
employees to direct their attention to production and to
curtail talking in the plant. I have credited Respondent's
witnesses that Stevens was not told to stop talking for all
purposes, and I find that both she and Smirl were told to
stop talking because they had been observed talking exces-
sively. I find therefore that the instructions to them to stop
talking did not violate the Act, and I shall recommend dis-
missal of this allegation of the complaint.
V. THIE ( CIIHAL.LEN(iD BAiL I.o'S
As I have found that Lucinda Backwater, Mina Blossom,
Charlotte Brenner, Eva Chancellor. Naomi Dixon, Yona
Guterman, Virginia Orr, and Olatha Willman were not eli-
gible voters in the June I election and will recommend that
the challenges to their ballots be sustained, the remaining
challenged ballots cast by Livingston, Martin, and Neel are
not sufficient to alter the outcome of the election. As the
tally of ballots shows that a majority voted in favor of rep-
resentation by the Union. I shall recommend that a certifi-
cation of representative issue.
Vl. ItllI RIA MiDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
As I have found that Respondent unlawfully discharged
Pamela Dry, Jerry Livingston, Glenda Martin, and Fran-
cine Neel and discriminatorily refused to recall Ray Griffin,
I shall recommend that Respondent be ordered to offer
them immediate and full reinstatement to their former jobs,
without prejudice to their seniority or other rights and
privileges. I shall further recommend that Respondent be
ordered to make them whole for any loss of earnings they
may have suffered as a result of the discrimination against
them by payment to them of the amount they normally
would have earned, in the case of Dry from the date of her
discharge and in the case of the others from the dates they
normally would have been recalled until the dates of Re-
spondent's offers of reinstatement, less net earnings, to
which shall be added interest to be computed in the manner
prescribed in F W. Woolworth ('ompanv, 90 NLRB 289
(1950)., and Florida Steel Corporation, 231 NLRB 651
(I 977).49
Upon the basis of the above findings of fact and the en-
tire record in this case. I make the following:
C(()N('IUSI()NS Oi LAw
i. Fabricut, Inc.. is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. United Paperworkers International Union, AFL- ('10,
is a labor organization within the meaning of' Section 2(5)
of the Act.
"4See. generally, 1.l Phlumbii & Illiitiny (', 138 NLRB 716 (1962)1.
3. By interrogating employees about their union mem-
bership. activities, and desires and by threatening employ-
ees with loss of employment opportunities and subcontract-
ing of their work in the event they chose union
representation, Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tions 8(a)(1) and 2(6) and (7) of the Act.
4. By' discharging Pamela Dry. Jerry Livingston. Glenda
Martin, and Francine Neel. and by refusing to recall Ray
Griffin. because of their union activities, Respondent has
engaged in unfair labor practices affecting commerce within
the meaning of Sections 8(a)(3) and (I) and 2(6) and (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 hereby issue the following recommended:
ORDER'O
The Respondent. Fabricut, Inc., Pryor, Oklahoma, its of-
ficers, agents, successors, and assigns, shall:
I. ('ease and desist from:
(a) Interrogating employees about their union member-
ship, activities, or desires.
(b) Threatening employees with loss of employment op-
portunities or with subcontracting of their work in the event
they choose to be represented by a labor organization.
(c) Discharging, refusing to recall, or otherwise discrimi-
nating against employees in regard to hire or tenure of em-
ployment or any term or condition of employment because
they become members of or engage in activities on behalf of
United Paperworkers International Union, AFL. CIO, or
any' other labor organization.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to engage
in or retrain from engaging in any or all the activities speci-
fied in Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer Pamela Dry', Ray Griffin. Jerry Livingston,
Glenda Martin, and Francine Neel immediate and full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other rights or privileges, and make
them whole for any loss of earnings they may have suffered
as a result of discrimination against them in the manner set
forth in the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request. make available to the
Board or its agents. for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records rel-
evant and necessary to analyze the amount of backpay due
under the terms of this recommended Order.
(c) Post at its Pryor. Oklahoma. place of' business copies
'o In the event no exceptions are filed as provided bs Sec. 102.46 of the
Rules and Regulations of the National t.abor Relations Board. the findings.
conclusions. and recommended Order herein shall, as pros ided in Sec. 102.48
of the Rules and Regulations. he adopted by the Board and become its
findings. conclusions. and Order, and all objections thereto shall hbe deemed
wais;ed lor all purposes.
786
FABRICUT, INC.
of the attached notice marked "Appendix." 5' Copies of said
notice, on forms provided by the Regional Director for Re-
gion 16, after being duly signed by Respondent's represent-
ative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
51 In the event that this Order is enforced by ajudgment of a tUnited 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 States Court of Appeals Enforcing an Order of the National
Labor Relations Board
notices 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) Notify the Regional Director for Region 16. in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
1I IS I' RlIHER RE(()'}MMiNDFD that the challenges to the
ballots of Lucinda Backwater, Mina Blossom. Charlotte
Brenner. Eva Chancellor. Naomi Dixon. Yona Guterman,
Virginia Orr, and Olatha Willman be sustained and that a
certification of representative be issued.
787