Fayette Manufacturing Co.

National Labor Relations Board - Board Decisions

Jan 11, 1971

187 N.L.R.B. 775 (N.L.R.B. 1971)

FAYETTE MANUFACTURING CO.
Fayette Manufacturing Company and Amalgamated
Clothing Workers of America, AFL-CIO. Case
10- CA-8246
January 11, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On July 29, 1970, Trial Examiner Joseph I.
Nachman issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner, as modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board, as modified herein, adopts as its
Order the Recommended Order of the Trial Examiner
and hereby orders that the Respondent, Fayette
Manufacturing Company, Fayette, Alabama, its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommend-
ed Order as so modified:
1. In footnote 12 of the Trial Examiner's Decision,
substitute "20" for "10" days.
2. Substitute the attached notice as Appendix for
that recommended by the Trial Examiner?
I The Respondent has excepted to certain credibility findings made by
the Trial Examiner It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all the relevant evidence convinces us that the resolutions
were mcoirect . Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188
F 2d 362 (C A 3) We find no such basis for disturbing the Trial
Examiner's credibility findings in this case
2 Considering the nature of the violation found, this notice is adequate
to effectuate the policies of the Act
775
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We, Fayette Manufacturing Company, discharged
Wyleen Hamner on March 19. After a full trial in
which all sides had an opportunity to present their
evidence, the National Labor Relations Board has
found that:
1. Wyleen Hamner's discharge occurred
because we believed, in good faith, that she
had engaged in misconduct in the course of
soliciting membership in the Amalgamated
Clothing Workers of America, AFL-CIO.
2. The evidence at the trial failed to
demonstrate that Wyleen Hamner had in fact
engaged in this misconduct, and therefore the
Board has found that her discharge violated
the National Labor Relations Act.
WE WILL therefore carry out the order of the
Board and offer Wyleen Hamner her old job back
or, if that job no longer exists, a substantially
similar job, with full seniority, and WE WILL make
up to her the pay she has lost, with 6 percent
interest.
Dated By
FAYETTE
MANUFACTURING
COMPANY
(Employer)
(Representative ) (Title)
We will notify immediately the above-named individ-
ual, if presently serving in the Armed Forces of the
United Staes, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Peachtree Building, Room 701, 730 Peachtree
Street, NE., Atlanta, Georgia 30308, Telephone
404-526-5760.
187 NLRB No. 85
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN, Trial Examiner: This proceeding
tried before me at Fayette, Alabama, on June 4,1 with all
parties present and represented by counsel, involves a
complaint 2 which alleges that on March 19, Fayette
Manufacturing Company (herein Respondent), discharged
and thereafter failed and refused to reinstate its employee
Wyleen Hamner because of her membership in, and
activities on behalf of Amalgamated Clothing Workers of
America, AFL-CIO (herein the Union), and because she
engaged in concerted activities with other employees for the
purpose of collective bargaining and other mutual aid and
protection. By answer Respondent admitted certain
allegations of the complaint, including the discharge of
Hamner, but denied the commission of any unfair labor
practice, contending that her discharge was for cause.
Decision of the case turns on whether, as Respondent
contends but the General Counsel denies, Hamner in a
telephone conversation with a fellow employee threatened
the latter with injury to her person and property unless she
signed a union card. For reasons hereafter stated, I find the
allegations of complaint sustained by the evidence and
recommend that Hamner be reinstated with backpay.
At the trial all parties were afforded full opportunity to
examine and cross-examine witnesses, to introduce relevant
evidence, to argue orally on the record, and to submit
briefs. Oral argument was waived. Briefs submitted by the
respective parties have been duly considered. Upon the
pleadings, stipulations of counsel, the evidence, including
my observation of the demeanor of the witnesses while
testifying, and the entire record in the case, I make the
following-
FINDINGS OF FACTS
In the late fall of 1969, the Union began a campaign to
organize Respondent's employees, in which Wyleen
Hamner participated. In late December or early January,
Hamner, while visiting at her sister's home, telephoned her
fellow employee Coleen Everette and asked the latter how
she felt about a union in the plant.4 Everette replied that she
had not given the matter much thought and would have to
discuss it with other employees, but that she was ill with the
flu and was in bed. Hamner then apologized for disturbing
Everette, expressed the hope that Everette would soon feel
better, and concluded the conversation on that note.5
Everette testified that about 8:30 the following morning
(January 9), she received another telephone call. On this
occasion the caller did not identify herself, but said, "Are
you still not interested in the Union." When Everette
replied that she did not know what good the Union would
i This and all dates hereafter mentioned are 1970, unless otherwise
stated
2 Issued April 27 on a charge filed and served March 23.
3 No issue of commerce or labor organization is presented The
complaint alleges and the answer admits facts which establish these
elements I find those facts to be as pleaded
4 Hamner and Everette had known each other since 1945, when they
were in high school together They lived in different sections of the county,
and while both had worked in the plant for about 9 years, they had very
do her, the caller stated, according to Everette, "I guess you
know if you are not for the Union, that something could
happen to you or some member of your family, or some of
your property." According to Everette, she replied that she
was not aware of that fact, and hung up the telephone.
Everette also testified that between January 9 and March
22, she received a number of telephone calls "at all hours of
the night, especially on the weekends," but when she
answered, the caller would say nothing. Although Everette
did not affirmatively state that Hamner was responsible for
the last mentioned calls, she apparently was desirous of
leaving the impression that she considered such to be the
fact
According to Everette, neither the call on January 9, nor
the subsequent calls, were mentioned by her to anyone until
March 17, when she told Axilee Davis, her line supervisor:
.. . that I was getting tired of these people that was
for the Union a-pressing me, and that I had something
to tell her that I had been keeping back a long time, and
I had to get it off me and let someone else share my load
with me.. .
When Davis asked what the problem was, Everette told her
about the telephone call she had received from Hamner the
evening of January 8 and about the call on the morning of
January 9, and that Hamner was the person that called on
the morning of the 9th. Everette also told Davis about the
calls she received in the interim, when the caller would not
say anything.6
The following morning (March 18), Supervisor Davis
directed Everette to report to the office of Plant Manager
Thigpen. There, Thigpen brought up the subject of the two
telephone calls, and Everette repeated what she had
theretofore told Supervisor Davis. Thigpen admits that in
this conversation Everette stated that she "thought" the
caller on January 9 was Hamner, or that "it sounded" like
Hamner, and that he informed Everette that in a matter of
this nature she had to be certain, and that Everette them
responded that "she was sure it was Wyleen Hamner's
voice." Thigpen asked if Everette would testify to the facts
she had related, and when she replied in the affirmative, the
conversation ended.
The following morning, after first calling his labor
counsel and being told to be certain of his facts, Thigpen
called Everette back to his office and, according to
Everette, asked her if she was certain that the voice of the
person that spoke to her on January 9 was that of Hamner,
and pointed out that because of the seriousness of the
accusation, "I couldn't think, that I would have to say that I
was sure, so that I could be sure." 7
Following the second conversation with Everette,
Thigpen summoned Hamner to his office where he
little contact
5 To this point the testimony given by Hamner and Everette is in
accord, except that Everette fixed the time of this telephone conversation
as the evening of January 8, rather than just prior to Christmas as Hamner
testified I find it unnecessary to resolve this conflict
s Davis did not testify
7 Everette fixed the time of this conversation as the afternoon of March
18, rather than the morning of March 19. as Thigpen testified Again, I find
it unnecessary to resolve the conflict
FAYETTE MANUFACTURING CO 777
informed the latter that it had been reported to him that in
a telephone conversation she had threatened Everette 8
Hamner admitted that she had telephoned Everette, but
denied that she made the second call, or that she had
threatened Everette in any way Thigpen admits that
Everette and Hamner gave him basically the same story,
except that Hamner claimed there was only one call and
denied that she at any time threatened Everette Thigpen
also admits that upon the conclusion of his conversation
with Hamner he terminated her and that his sole reason for
doing so was that she had threatened Everette
Following her discharge, Hamner returned to the work
area of the plant for her personal belongings and there
asked Everette why the latter had made a false charge
against her causing her to lose herjob Everette insisted that
Hamner had called her Hamner replied that she had called,
but had made no threat According to Hamner Everette
replied, "Well, I thought you did " Everette admits this
conversation, but claims that when Hamner stated she had
not threatened Everette, she turned and walked away, and
that she (Everette) did not make the statement last above
quoted
Everette admits that after the January 9 telephone call
and prior to Hamner's discharge, a number of her fellow
employees, but not Hamner, approached her from time to
time about signing a union card, and that this annoyed her
When asked to explain why she waited almost 2-1/2
months to report the threatening telephone call, Everette
explained that she did not want to stir up any trouble at the
plant and felt that if she kept quiet the anonymous calls
would die down She admitted, however, that she
threatened to punish her teenage daughter for the
anonymous phone calls if they did not cease She further
explained that the telephone threat made to her on January
9 caused her great anxiety for the safety and well-being of
members of her family, particularly her daughter who at
times went out at night There is no evidence, however, that
she at any time sought to limit her daughter in going out in
the evening, or that she took any steps to insure her
daughter's safety
In NLRB v Burnup and Sums, Inc, 379 U S 21, the
Supreme Court held that Section 8(a)(1) of the Act is
violated
if it is shown that the discharged employee was at
the time engaged in protected activity, that the
employer knew it was such, that the basis of the
discharge was an alleged act of misconduct in the
course of that activity, and that the employee was not,
in fact, guilty of that misconduct [379 U S at 231
The record clearly establishes-indeed Respondent does
not question-that Hamner was engaged in soliciting a
signature to a union card, plainly an activity protected by
Section 7 of the Act, that Respondent was aware of that
fact, having been so informed by Everette, that Hamner
was admittedly discharged by Respondent solely and only
because in the course of such solicitation she threatened
Everette with possible injury to her person or property
Thus, the only question to be decided is whether Hamner
did in fact threaten Everette, for if she did not, as the
Supreme Court's decision in Burnup and Stns, supra, makes
clear, her discharge for that reason was a clear violation of
Section 8(a)(1) notwithstanding Respondent's good-faith
belief that Hamner had in fact threatened Everette The
problem thus posed is one of evaluating the credibility of
the evidence given by Everette that a threat was made to
her by Hamner in the telephone conversation on the
morning of January 9 against that of Hamner who denies
that she telephoned Everette that morning, and hence did
not threatene Everette in any respect
Unfortunately, in determining credibility issues, a trier of
fact does not have the benefit of any test that may be
applied with absolute certainty that the result reached will
be correct Under our judicial system, all that a trier of the
facts can do is to give due consideration to, among other
factors, the demeanor of the witnesses , their apparent
candor and frankness, their bias or interest, or the lack
thereof, the probability of the truth of their testimony, and
upon considerations of all relevant factors, give credit
where credit appears to be due After careful consideration
of the testimony, and without imputing any improper
motive to Everette, I have concluded that I must credit the
testimony of Hamner that she did not telephone or threaten
Everette on January 9, as the latter claims I base this
conclusion upon the totality of the following considera-
tions
1 In the first telephone conversation on the evening of
January 8, Everette admittedly told Hamner that she had
not given much consideration to the matter of the Union
and would have to discuss it with other employees before
reaching a decision, and she was in bed ill with the flu Not
only is it highly improbable that Hamner having received
that information would have called back early the next
morning, but it is even more improbable that Hamner
would have opened the conversation by asking, "Are you
still not interested in the Union", and that Everette would
have responded as she admittedly did, that she saw no
benefit to her from the Union
2 Everette's delay of nearly 2-1/2 months in reporting
the alleged threat to anyone I deem it most improbable
that she would have delayed that long in reporting the
alleged threat if, as she claimed , she was so concerned
about the safety of her family Her explanation for the
delay-that she did not want to stir up trouble in the plant
and felt the anonymous telephone calls would cease if she
remained silent-seems rather weak in view of her
admission that such calls continued with some regularity
until the Sunday after Hamner's discharge Even her claim
that she was in constant fear about the safety of her
daughter sounds suspicious in view of her admission that
during this period she permitted her daughter to go out at
night without taking any precautions for her safety
3 The admission by Plant Manager Thigpen that when
he first spoke with Everette about the matter, that the latter
stated that she "thought" the person who called on January
9 was Hamner, or that it "sounded" like Hamner When
this fact is considered along with Everette's admission that
8 In so stating Thigpen referred to Everette by her given name of was that she assumed that Thigpen was referring to another person named
Coleen Hamner at first denied having made such a telephone call but Coleen and not until Thigpen mentioned the name Coleen Everette did
later admitted making the first call She testified that the reason for this she fully understand to whom he was referring
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it was not until Thigpen told her, "I couldn't think, that I
would have to say that I was sure, so that I could be sure,"
and that it was not until then that she told Thigpen that she
was certain that the caller on January 9 was Hamner,9
Everette's identification of the caller on January 9 becomes,
to say the least, suspect.
Accordingly, and for the reasons stated, I find and
conclude that by discharging Hamner because it erroneous-
ly believed, albeit in good faith, that she had threatened
Everette as above indicated, Respondent interfered with,
restrained, and coerced Hamner in the exercise of rights
protected by Section 7 of the Act, and thereby violated
Section 8(a)(1) of the Act. N.L.R.B. v. Burnup and Sims,
Inc., supra. 10
Upon the foregoing findings of fact, and upon the entire
record in the case, I make the following:
recommended that Respondent be required to preserve
and, upon request , make available to authorized agents of
the Board , all records necessary or useful in determining
compliance with the Board 's order , or in computing the
amount of backpay due.
Because of the character of the unfair labor practices
found , which go to the very heart of the Act, I shall
recommend that Respondent be required to cease and
desist from in any manner interfering with , restraining, or
coercing its employees in the exercise of rights guaranteed
by Section 7 of the Act. N. L.R.B. v. Entwistle Mfg. Co., 120
F.2d 532 (C.A. 4); California Lingerie, Inc., 129 NLRB 912,
915.
RECOMMENDED ORDER
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Hamner because of her concerted
activities for the purpose of collective bargaining or other
mutual aid or protection, Respondent interfered with,
restrained, and coerced Hamner in the exercise of rights
protected by Section 7 of the Act, and thereby engaged in,
and is engaging in, unfair labor practices proscribed by
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found Respondent engaged in certain unfair
labor practices, I shall recommend that it be required to
cease and desist therefrom and take certain affirmative
action found necessary and designed to effectuate the
policies of the Act.
Having found that Respondent discharged Hamner
because she engaged in activity protected by Section 7 of
the Act, I shall recommend that Respondent be required to
forthwith offer her full and unconditional reinstatement to
her former position, or if that is not available, to a
substantially equivalent position, without prejudice to her
seniority or other rights, privileges, or working conditions,
and make her whole for any loss of earnings suffered by
reason of her discharge, by paying to her a sum of money
equal to the amount she would have earned as wages from
March 19, 1970, to the date Respondent offers her
reinstatement as aforesaid. Backpay with interest at the rate
of 6 percent per annum, shall be computed in the manner
set forth in F. W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co., 138 NLRB 716. It will also be
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is recommended that Fayette
Manufacturing Company, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discharging any employee for engaging in concerted
activities protected by Section 7 of the National Labor
Relations Act.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Offer Wyleen Hamner immediate, full, and uncondi-
tional reinstatement to her former job, or if that job no
longer exists, to a substantially equivalent position without
prejudice to her seniority or other rights, privileges, or
working conditions, and make her whole for any loss of
earnings she may have suffered, in the manner set forth in
the section entitled "The Remedy."
(b) Notify Wyleen Hamner, if presently serving in the
Armed Forces of the United States, of her right to full
reinstatement, upon application, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(c) Preserve, and upon request, make available to
authorized agents of the National Labor Relations Board,
for examination and copying, all payroll records, social
security payment records, timecards, personnel records and
reports, and all other records necessary or useful in
determining compliance with this order, or in computing
the amount of backpay due.
9 I do not rely on the fact that, according to Hamner, after her 10 Having reached this conclusion, it becomes unnecessary to decide
termination, when she accused Everette of making a false charge against whether, as the General Counsel and Charging Party contend, Respondent
her, that Everette replied, in effect, that she thought Hamner was the one also violated Sec 8(a)(3) of the Act Burnup and Sims, supra In either
who called , because Everette denied that she made such a statement , and I event , the remedy would be the same
find it unnecessary to resolve the specific conflict
FAYETTE MANUFACTURING CO. 779
(d) Post at its Fayette, Alabama, plant copies of the
attached notice marked "Appendix."" Copies of said
notice, on forms to be furnished by the Regional Director
of Region 10, shall, after being signed by an authorized
representative, be posted immediately upon receipt thereof,
and maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director, in writing, within 20
days from the date of the receipt of this Decision, what
steps it has taken to comply herewith.12
I I In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted
by the Board and become its findings, conclusions, and order, and all
objections thereto shall be deemed waived for all purposes In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals. the words in the notice reading "POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED
PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS
ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
12 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read - "Notify the Regional Director, in
writing, within 10 days from the date of this Order, what steps it has taken
to comply herewith "