Garment Workers

National Labor Relations Board - Board Decisions

Oct 16, 1990

300 N.L.R.B. 507 (N.L.R.B. 1990)

507
300 NLRB No. 49
GARMENT WORKERS
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule and administrative law
judge’s credibility resolutions unless the clear preponderance of all the relevant
evidence convinces us that they are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
2 We agree with the judge that weekly car allowance and per diem payments
made to international representatives are properly included in backpay as
emoluments of value arising out of the employment relationship. Boyer Ford
Trucks, 270 NLRB 1133 (1984), relied on by the Respondent, is distinguish-
able in that there the employer, who provided its sales staff with car and gaso-
line allowances, monitored sales calls made by the salesmen at all times and
required receipts showing at least $50 in gasoline purchases in order for them
to receive the monthly gasoline allowance. Here, in contrast, the Respondent,
while requiring international representatives to file weekly reports summarizing
their contract administration and organizing activities, does not distinguish be-
tween work done onsite and that done at home or set minimum expenditures
or otherwise condition receipt of the allowances at least for representatives
who have their own vehicles available for use in their work.
3 We find merit to the General Counsel’s exceptions regarding the judge’s
failure to direct that the Respondent, make Sherlock whole for losses, if any,
he sustained as a result of the discriminatory institution of the prohibition
against outside work. Accordingly, the recommended Order is revised to pro-
vide for such backpay, with any such amounts to be ascertained in the compli-
ance proceeding. Backpay shall be computed in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest computed in ac-
cordance with New Horizons for the Retarded, 283 NLRB 1173 (1989).
Further, we find that where, as here, an employer repeatedly retaliates
against an employee for resorting to Board processes, a broad order is war-
ranted. P.I.E. Nationwide, 295 NLRB 382 (1989). In the instant case, the Re-
spondent terminated Sherlock for threatening to file charges with the Board
on behalf of himself and another international representative (Case 3–CA–
14240); offered him reinstatement under conditions that were explicitly more
onerous and implicitly designed to generate failure and thereby create grounds
for a second termination; began issuing letters critical of his performance with-
in 2 weeks of his reinstatement; and issued Sherlock warnings, including a
‘‘final warning,’’ after Sherlock advised that he had filed new charges as a
result of the prohibition against outside employment that was instituted and
applied to him. We shall modify the recommended Order in accordance with
the foregoing.
4 The payment to the Retirement and Severance Fund shall be made in ac-
cordance with Merryweather Optical Co., 240 NLRB 1213 fn. 7 (1979).
United Garment Workers of America, AFL–CIO
and Warren Sherlock. Cases 3–CA–14240, 3–
CA–15120, and 3–CA–15207
October 16, 1990
SUPPLEMENTAL DECISON AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On April 19, 1990, Administrative Law Judge Joel
P. Biblowitz issued the attached supplemental decision.
The Respondent Union and the General Counsel filed
exceptions and briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, United Garment Workers
of America, AFL–CIO, Hermitage, Tennessee, its offi-
cers, agents, and representatives, shall pay to Warren
Sherlock $25,677.60, plus interest computed in accord-
ance with New Horizons for the Retarded, 283 NLRB
1173 (1987), and shall pay $2,614.15 to the United
Garment Workers of America Retirement and Sever-
ance Fund.4
IT IS FURTHER ORDERED that the Respondent, its of-
ficers, agents, and representatives, shall take the action
set forth in the judge’s recommended Order as modi-
fied.
1. Substitute the following for paragraph 1(b).
‘‘(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights guaranteed them by Section 7 of the Act.’’
2. Insert the following as paragraph 2(b) and reletter
the subsequent paragraphs accordingly.
‘‘(b) Make Warren Sherlock whole for losses he in-
curred, if any, as a result of the Respondent’s unlawful
institution of a rule prohibiting employees from engag-
ing in outside employment, in the manner set forth in
the supplemental decision.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT prohibit our employees from engaging
in outside employment, or threaten them because they
have such outside employment, because they filed
charges with the Board.
WE WILL NOT issue warnings to our employees, or
otherwise threaten them, because they filed charges
with the Board.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make Warren Sherlock whole for losses he
incurred, if any, as a result of our unlawful institution
of a rule prohibiting employees from engaging in out-
side employment, with interest.
WE WILL remove from our files any reference to the
threats or warnings to Sherlock and we will notify him
that this has been done and that evidence of these
508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless indicated otherwise, all dates referred to relate to the year 1989.
threats and warnings will not be used as a basis for fu-
ture actions against him.
UNITED GARMENT WORKERS OF AMER-
ICA, AFL–CIO
Robert A. Ellison, Esq., for the General Counsel.
Richard Markowitz, Esq. (Markowitz & Richmond), for the
Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on January 30 and 31, 1990, in Albany,
New York. The order further consolidating the compliance
proceeding with the unfair labor practice proceeding issued
on November 9, 1989.1 This Order consolidated the compli-
ance specification and notice of hearing, which issued on
August 30, and was based on a decision in Case 3–CA–
14240 which issued on March 2 and was affirmed by the
Board at 295 NLRB 411 with the unfair labor practices al-
leged in Case 3–CA–15120, which was filed by Warren
Sherlock on August 7, and the unfair labor practices alleged
in Case 3–CA–15207, which was filed by Sherlock on Octo-
ber 3. The consolidated complaint alleges that United Gar-
ment Workers of America, AFL–CIO (Respondent), violated
Section 8(a)(1)(4) of the Act when (on about July 26), it in-
stituted a rule against Sherlock, prohibiting him from engag-
ing in outside employment, and on about July 26 and Sep-
tember 6, in enforcement of this rule, threatened him with
termination, and (on about June 20, August 9 and September
26) issued written warnings, including a ‘‘final warning’’ to
Sherlock, all in retaliation for his Board proceedings.
On the entire record, including my observation of the wit-
nesses and the briefs received from the parties, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a labor organization with its headquarters
in the City of Hermitage, State of Tennessee, represents em-
ployees in bargaining with employers located in various
states and it annually collects and receives dues and fees in
excess of $250,000 transmitted directly to its headquarters
from constituent locals and members located outside Ten-
nessee. It was previously found, is admitted, and I find, that
Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. BACKGROUND
Due to the nature of the allegations of the consolidated
complaint, as well as Respondent’s defense to the compli-
ance specification that it made a valid offer of reinstatement
to Sherlock on August 29, 1988 (rather than the reinstate-
ment date of March 27 alleged in the compliance specifica-
tion) it is necessary to examine the history of this dispute
with some specificity.
Sherlock began his employ with the Respondent in 1976
as an international representative, covering the northeastern
area of the United States, from about Vermont to Maryland.
In that position, he serviced the locals in the area through ne-
gotiations, grievance and arbitration handling, contract ad-
ministration, and organizing. During a portion of this period,
he was on Respondent’s executive board, and from August
1986 to August 1987, he was the director of organizing for
Respondent. The turning point in his relationship with the
Respondent was Respondent’s convention in August 1987
when Sherlock was defeated by Earl Carroll for the post of
general president of Respondent; at the same time, Calvina
Little was reelected secretary-treasurer. A few days later,
Carroll informed Sherlock that he was replacing him as di-
rector of organizing and that Sherlock would return to the
northeast as international representative, an area with 9 local
unions and about 496 members. Carroll informed Sherlock
that as there wouldn’t be enough work to keep him busy full
time, he expected Sherlock to spend about 50 percent of his
time organizing. At the time that he returned as international
representative, his salary was reduced from $558 a week to
$485 a week, plus a $63 a week car allowance and $25 a
week per diem.
In about January 1988, Sherlock heard that Respondent
had given raises to other of its international representatives;
he discussed this with Lucy Gibby, another International rep-
resentative, and the one who nominated him for general
president at the August 1987 convention. She also had heard
of such raises, but had not received one. In February 1988,
on his weekly report to Respondent, Sherlock asked if staff
members would be receiving wage increases. Having re-
ceived no reply, on March 1, Sherlock wrote to Carroll and
Little about a raise, stating that if he and Gibby do not re-
ceive a reply by March 11, 1988, they would ‘‘file charges
against the International Union.’’ The letter was received by
Respondent on March 3, 1988. By letter of the same date,
Carroll wrote Sherlock that he was being terminated effective
March 12, 1988: no reason was given. At the hearing, Re-
spondent defended that Sherlock’s discharge was due to his
poor performance as an organizer and his tardiness in trans-
mitting dues to Respondent. The administrative law judge
dismissed this testimony of Carroll and Little as a ‘‘fictional
scenario’’ and found that although Sherlock was not success-
ful in his organizational attempts ‘‘the record is equally clear
that no one in the Union appears to have performed any dif-
ferently than Sherlock or achieved any better results than
Sherlock . . . .’’ The administrative law judge concluded
that the discharge was in retaliation for the March 1, 1988
letter, in violation of Section 8(a)(1) and (4) of the Act. This
determination was affirmed by the Board.
III. THE BACKPAY FACTS & CONCLUSIONS
The backpay specification alleges that the backpay period
runs from March 12, 1988, through March 27; March 12,
1988, is the date that his discharge became effective as per
Carroll’s letter of March 3, 1988, and March 27 is the date
he returned to work pursuant to an offer of reinstatement
from Respondent. However, Respondent disputes these dates,
as well as having other defenses to the backpay specification.
Respondent initially alleges that although Sherlock’s employ-
ment with Respondent ceased on March 12, 1988, he was
paid through March 19, 1988, and that is therefore the date
509GARMENT WORKERS
2 Respondent’s international representative located in Toronto, Canada, does
not use an automobile. Additionally, in 1977, Sherlock’s automobile sustained
extensive damage and it was another month before he could obtain a replace-
ment car. During this period, Respondent rented an automobile for him (at
their expense) in lieu of the $63 weekly car allowance.
his employment effectively ended. More significantly, Re-
spondent alleges that although Sherlock returned to work on
March 27, his backpay should have ended on August 29,
1988, when he refused an allegedly valid reinstatement offer.
Additionally, Respondent alleges that it should not be liable
in this backpay proceeding for a $63 weekly car allowance
and a $25 weekly per diem payment that its International
representatives receive and that Sherlock did not make a rea-
sonable search for interim employment.
As stated, supra, Carroll’s termination letter to Sherlock
dated March 3, 1988, states: ‘‘This is to advise that as of
week ending March 12, 1988, your service will no longer be
required. Enclosed herewith is two weeks severance pay.’’
Respondent’s payroll records establish that for the ‘‘pay pe-
riod’’ ending March 5, 1988, Sherlock was paid $485, plus
$63 car allowance, $55 per diem, $12.32 reimbursement for
other expenses, less the usual deductions, for a net payroll
check of $415.71. For the week ending March 12, 1988, with
the same gross pay, only a $25 per diem and no reimburs-
able expenses, his check was $373.39. For what is listed is
‘‘pay period’’ of March 19, 1988, with the $485 weekly
gross, $63 and $25 car allowance and per diem, and $2.05
reimbursable expenses, less the usual deductions, his net pay
was $375.44. Together with that check, Sherlock received 2
weeks severance pay, $485 per week, with no car allowance,
per diem or reimbursable expenses, less the usual deductions
for a net total of $570.78. Respondent initially alleges that
since Sherlock’s last check in March 1988 was for the ‘‘pay
period’’ ending March 19, 1988, his backpay should begin
on that date rather than March 12, 1988. However, Sher-
lock’s uncontradicted testimony is that Respondent’s payroll
is 1 week behind, and that the pay listed as being for the
pay period of March 19, 1988, was actually for the pay pe-
riod of March 12, 1988. Supporting this testimony is the bill
Sherlock submitted to Respondent for his pay for the week
ending March 12, 1988; it is identical in every respect to
what Respondent’s payroll lists as his pay for the pay period
ending March 19, 1988, and is for a different amount than
all of his prior paychecks. I therefore find that what Re-
spondent’s payroll refers to as the pay period of March 19,
was actually Sherlock’s pay for the week ending March 12,
and that is the date that backpay begins to run.
At the hearing, Respondent also alleged that backpay
should not have begun until 2 weeks later because Respond-
ent paid Sherlock 2 weeks’ severance pay with his final
check. However, this gross amount, $970, was taken into
consideration by General Counsel and was included in Sher-
lock’s interim earnings for the first quarter of 1988. This was
a more appropriate way of deducting this amount from Re-
spondent’s total obligation than pushing the backpay period
ahead 2 weeks, since the weeks’ severance pay did not in-
clude car allowance or per diem. As Respondent was there-
fore not prejudiced, this allegation is also rejected.
Respondent next alleges that the $63 weekly car allowance
and the $25 weekly per diem should not have been included
in Sherlock’s backpay since these amounts represent reim-
bursement for job related expenses and as Sherlock was not
employed during the backpay period, he incurred no reim-
bursable expenses. The undisputed evidence establishes that
the $63 car allowance reimburses the international represent-
atives for the use of their automobiles: Respondent provides
each of these employees with a gasoline credit card (charge-
able to Respondent) to pay for gasoline. Each of Respond-
ent’s international representatives but one 2 receive this al-
lowance from Respondent and they receive it even if they are
on vacation, or not using their automobile, for the period.
The $25 weekly per diem allowance represents reimburse-
ment to the international representatives to cover extra ex-
penses, such as meals, for periods when they are out of
town.
If they have to stay overnight, Respondent provides them
with a credit card to cover the hotel and reimburses them an
additional $20 daily for meals. Carroll testified that both the
$63 weekly car allowance and the $25 weekly per diem are
actually annual figures that Respondent pays to its employees
on a weekly basis. The evidence establishes that the weekly
car allowance and per diem payments were made to the em-
ployees whether they used their automobiles or were out of
town, and there is no evidence that Respondent ever mon-
itored the employees’ activities in this regard. The only ex-
ception to these payments was that the representative in To-
ronto did not need, or have, an automobile and therefore
never received these payments, and Sherlock did not receive
these payments for a month while his automobile was not us-
able and Respondent, in lieu of these payments, rented a car
for him at their expense. As the Board stated in W. C.
Nabors Co., 134 NLRB 1078, 1086 (1962), a make whole
remedy ‘‘includes emoluments of value arising out of the
employment relationship; in addition to or supplementary to
the actual rate of pay per hour worked or per unit pro-
duced.’’ As the court of appeals stated in enforcing W. C.
Nabors, 323 F.2d 686 at 690 (5th Cir. 1963):
[T]he ‘‘make whole’’ concept does not turn on whether
the pay was wholly obligatory or gratuitous, but on the
restoration of the status quo ante. ‘‘Back pay’’ as used
in section 10(c) includes the moneys, whether gratu-
itous or not, which it is reasonably found that the em-
ployee would actually have received in the absence of
the unlawful discrimination.
I am mindful of Boyer Ford Trucks, 270 NLRB 1133
(1984), which I find distinguishable from the instant matter.
As I find that the car allowance and per diem payments were
prerequisites of the international representatives’ positions, I
find that these payments were properly included in the back-
pay specification. Full Line Distributors, 243 NLRB 758
(1979); Electrical Workers IBEW Local 401 (Stone & Web-
ster), 266 NLRB 870 (1983).
Respondent next alleges that Sherlock did not make an
adequate search for interim employment. As will be dis-
cussed more fully below, beginning in September 1987,
Sherlock began working part-time for Thermal Associates
(Thermal), a heating and air conditioning contractor. Sher-
lock’s brother was employed at Thermal and he introduced
Sherlock to Thermal’s owner, who offered him a part-time
job at $6.50 an hour, which he accepted. Thermal’s records
produced by Sherlock establish that he worked 161 hours for
Thermal from about January 1, 1988, through March 6, 1988.
510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 In August 1987, after losing the election to Carroll, Sherlock told him that
‘‘because of all this with the election that had been going on . . . we try to
keep our communications in writing for the protection of both sides.’’ As will
be clear below, the parties followed this recommendation.
When he was fired by Respondent on March 7, 1988, he told
the owner of Thermal that he could not afford to continue
working there at $6.50 an hour; at that time he was not of-
fered a raise and ceased working for Thermal in order to de-
vote his full time to look for comparable replacement em-
ployment. Sherlock did not work for Thermal from March 7
through mid September 1988. By September 1988, he had
not yet obtained replacement employment and his unemploy-
ment insurance was ending; at that point he decided: ‘‘mak-
ing even $6.50 an hour was better than making nothing at
all.’’ When Sherlock reapplied to work at Thermal in Sep-
tember 1988, he requested $8.50 an hour and, to his surprise,
he was rehired at that rate, beginning the week ending Sep-
tember 21, 1988. From September 1988 through March, he
worked approximately 40 hours a week at $8.50 an hour for
Thermal.
Sherlock also testified to his search for interim employ-
ment subsequent to his discharge: on March 11, he filed an
application and resume with Heber Associates, a job place-
ment service, requesting a position in the labor relations
field. They were unable to locate employment for him. On
March 24, 1988, he filed for unemployment compensation
with the New York State Unemployment Division. They had
no jobs available in the field he was applying for, nor did
they have any jobs that paid in excess of $6 or $7 an hour.
On March 30, 1988, Sherlock filled out an employment ap-
plication for the Electric Boat Division of General Dynamics
Corporation in West Milton, New York. He had learned that
they were adding a shift and he told them that he would ac-
cept any employment there because all positions there were
high paying; he never received any response from them. In
April 1988, he filled out an application of employment for
a conductor’s position with Amtrak in New Haven, Con-
necticut, after learning that they were increasing operations
in the area. On May 5, 1988, he called Amtrak to be sure
that they had not lost his employment application. On July
28, 1988, he had an interview with Amtrak for a position of
ticket clerk in Rensselaer, New York; it never developed into
a job offer. On July 20, 1988, he again went to the job
placement service of New York State Unemployment Divi-
sion; a clerk told him that they do not receive calls for his
field of employment, but that he should look through their
files, which he did. Nothing came of this, as well. During
this period, he also spoke to union representatives in order
to obtain contacts with union people in the area; this attempt
was unsuccessful, as well. As stated, supra, in September
1988, he returned to work at Thermal; during the backpay
period he was not offered any job other than by Thermal.
Sherlock’s interim earnings (solely from Thermal) are as fol-
lows:
3d Quarter 1988 $513.83
4th Quarter 1988 2049.48
1st Quarter 1989 2009.39
Innumerable cases, by now, have stated that an employer
can mitigate his backpay liability by establishing that the
claimant willfully incurred losses by unjustifiably refusing to
accept new employment; this is, of course, an affirmative de-
fense and it is the employer’s burden to establish these facts.
The mere fact that an individual had little or no success in
locating interim employment is not enough to satisfy this
burden; rather the employer must affirmative]y demonstrate
that the employee ‘‘neglected to make reasonable efforts to
find interim work.’’ NLRB v. Coca Cola Bottling Co., 360
F.2d 569 at 575 (5th Cir. 1966). Additionally, a
discriminatee is held only to reasonable exertions in this re-
gard, not to the highest standards of diligence. In deter-
mining the enableness of a discriminatee’s efforts, the em-
ployee’s skills and qualifications, his age, and labor condi-
tions in the area are factors to be considered. Aircraft & Hel-
icopter Leasing, 227 NLRB 644 (1976).
I find that Respondent has not satisfied its burden of estab-
lishing that Sherlock failed to make an honest good-faith ef-
fort to find interim employment between March and Sep-
tember 1988. Initially, I note that it was not unreasonable for
Sherlock to cease his employment with Thermal at the time
of his discharge in order to devote his time to locating com-
parable interim employment. At $6.50 an hour, he would
only earn $260 a week, less than half the weekly salary he
had received from Respondent. This was therefore not com-
parable employment. Mid-America Machinery Co., 258
NLRB 316 (1981). Additionally, I find that Sherlock made
a reasonable attempt to locate interim employment between
March and September 1988. The record establishes that 4
days after his termination, he applied at a job placement
service and 2 weeks later, he registered with the New York
State Job Service. The following week, he applied for work
at General Dynamics and in April he traveled 200 miles to
apply for employment with Amtrak. He later returned to the
New York State Job Service and had an interview with Am-
trak. In addition, he made approximately 14 telephone calls
in furtherance of these applications. That he was unsuccess-
ful does not detract from these attempts. Rather, his inability
to locate comparable interim employment may have been
caused by the high salary he had been receiving from Re-
spondent and the fact that the area in which he was located
had an economy where, apparently, jobs are difficult to find.
Finally, Sherlock’s good faith is further established by the
fact that in September, realizing that his attempts to locate
comparable employment had been futile, he returned to Ther-
mal on an almost full-time basis.
The remaining defense on the issue, and the most signifi-
cant dollar wise, is that backpay should have been tolled in
July 1988, or subsequent thereto, when Respondent offered
reinstatement to Sherlock. The issue in this regard is whether
these represented unconditional offers of reinstatement to
Sherlock’s former position of employment. There were a se-
ries of letters from Carroll to Sherlock, together with some
responses from Sherlock and the Board’s Resident Office
that must be considered in this regard.3 By letter dated July
19, 1988, Carroll wrote to Sherlock:
This communication constitutes an unconditional
offer to reinstate you to employment as an International
Representative of the United Garment Workers of
America. Such reinstatement which is hereby offered to
you will be effective Monday, August 1, 1988.
You will receive a salary of $485.00 per week, the
amount which you were receiving at the time of your
termination. You will also receive automobile expenses
and all of the other expenses which you were pre-
511GARMENT WORKERS
viously receiving and which are received by all other
international representatives employed by the Union.
Your assignment, effective August 1, 1988, will be
the organizing of the former Francis Heydt Manufac-
turing Co. plant which may now be known as Sac and
Fox Industries, Idabel, Oklahoma. You had initiated or-
ganizing efforts at this plant in 1987, and I want them
to be continued with the aim of securing sufficient au-
thorization cards from employees at this plant so as to
be able to obtain a National Labor Relations Board
election or recognition from the employer.
I want you to take your automobile to Idabel, Okla-
homa so that you will have the use of it there. The
Union is willing to pay you reasonable airfare expenses
to return to your home every other weekend, to go
home on Friday and to return to Idabel on Monday,
leaving your car in Oklahoma.
I am enclosing a pad of report forms which must be
filed weekly by you with the General Office. The en-
closed report forms detail your work and activities in
this organizing campaign, and it will be expected that
you file these reports weekly. I will monitor your
progress in this campaign, and, hopefully, we can se-
cure sufficient authorization cards within a reasonably
brief period.
So that there will be no misunderstanding I do not
want you to take your trailer to Oklahoma. I also do
not believe that your wife should travel with you be-
cause this would interfere with your devoting your full-
time efforts to organize this plant.
Please advise this office immediately of your accept-
ance of this offer.
Sherlock answered by letter dated July 26:
This letter acknowledges your letter dated July 19,
1988. This letter also advises you that your offer has
been refused as it is not a valid offer of reinstatement.
By letter dated August 11, 1988, Carroll wrote Sherlock:
I have your communication of July 26, 1988 in
which you state you are refusing the offer or reemploy-
ment made to you on the grounds that, in your opinion,
it is not a valid offer of reinstatement. I must strenu-
ously differ with your conclusion and assure you that
the offer of employment made to you was made in
good faith and consistent with the needs of this Inter-
national Union and our Local Unions.
As you are aware, in August 1987 you were reas-
signed to service Local Unions in the northeastern part
of the United States together with International Rep-
resentative Jeff Roberts. You were also directed to
spend at least 50% of your time in organizing activities
in this area.
You were certainly aware that the work of servicing
these Local Unions was nowhere near a full-time posi-
tion. There are only eight (8) Local Unions in Pennsyl-
vania and New York, and there are less than 500 mem-
bers in these Local Unions. This International Union
certainly does not need to have both you and Inter-
national Representative Jeff Roberts servicing these
Local unions. You are aware that International Rep-
resentative Jeff Roberts has been servicing these Local
Unions for several years prior to the termination of
your employment.
In my letter to you of August 26, 1987, I asked you
to spend as much time as possible organizing new
plants in the northeastern section of the United States.
Your reports for an approximate six (6) month period
indicate only several days in which you spent orga-
nizing, and one of those days was spent at a warehouse
which has only a handful of people.
It is my belief that your experience as an organizer
for our International Union should be utilized in your
performance of duties as international representative for
the United Garment Workers of America. Therefore, in
my letter of you of July 19, 1988, I directed that you
should be assigned to the organizing of the former
Francis Heydt Manufacturing Co. plant in Idabel, OK
where you spent considerable time in November and
December 1986 and in April, May, June and July 1987.
You are familiar with this area and undoubtedly have
contacts with employees who work at this plant, and
this is the reason why I made this assignment.
I regret your view that you did not receive a valid
offer of reinstatement. This is simply incorrect since it
was my intention to offer you reinstatement as inter-
national representative of this Union to the position
which you previously held. If you believe the offer was
not valid because you were not assigned to the north-
eastern part of the United States, you must recognize
that international representatives are subject to assign-
ment by the General President, and there is simply not
enough work in the area near your home to justify a
full-time representative in that area. You are aware that
we have only two (2) Local Unions in the state of New
York and they have approximately a total of twenty-
five (25) members.
I consider it unfortunate that you did not accept the
offer of reinstatement made to you. It was my intention
to return you to the position of an international rep-
resentative for this International Union and to permit
you to exercise in full the duties and responsibilities of
that position.
By letter dated August 19, 1988, Carroll again wrote to Sher-
lock:
This communication is intended to clarify and restate
the unconditional offer to reinstate you to employment
as international representative of the United Garment
Workers of America which offer was made in my letter
to you of July 19, 1988. Such reinstatement is to be ef-
fective Monday, August 29, 1988.
You will receive a salary of $485.00 per week, the
amount which you were receiving at the time of your
termination. You will receive automobile expenses and
all other expenses which you previously were receiving
and which are received by all other international rep-
resentatives employed by this Union.
Your immediate assignment, effective August 29,
1988, will be to participate with International Rep-
resentative Jeffrey Roberts in the servicing of Locals
110, 140, 222, 233, 117, 283 and 482. In addition to
this activity, and in accordance with my letter to you
of August 26, 1987, you are assigned to engage in the
512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The administrative law judge’s decision in the underlying case issued on
March 2.
organizing of new plants in the northeastern portion of
the United States.
In my letter to you of August 26, 1987, I advised
you that you were reassigned to the aforementioned
Local Unions, but, as you yourself recognized, this was
not enough work to keep you fully occupied. In my let-
ter to you of August 26, 1987, I requested that you en-
gage in organizing new plants in the northeastern sec-
tion of the United States. Unfortunately, your reports in
the six (6) month period between September 1, 1987
and March 1, 1988 indicate very little such organizing
activity, and I am not aware of any organizing activity
in which you successfully engaged during that period of
time.
You are certainly aware that the General President of
the United Garment Workers of America has the right
to assign International representatives to engage in or-
ganizing or servicing work in various parts of the coun-
try. So that there will be no misunderstanding, it should
be clearly understood that if you are not successfully
pursuing organizing activities in the northeastern part of
the United States, you will be subject to such assign-
ment since the servicing of the above-mentioned Local
Unions should not take more than one and a half weeks
per month.
I have already forwarded to you a pad of report
forms for organizing activity which must be filed week-
ly by you with the General Office. I am enclosing a
pad of reporting forms for servicing work, and it will
be expected that you file both these reports weekly.
Please advise this office immediately of your accept-
ance of this offer.
By letter dated August 24, 1988, Thomas Sheridan, the
Resident Officer of the Board’s Albany Office wrote counsel
for Respondent:
This letter is with regard to the issue of whether
General President Earl E. Carroll’s August 19, 1988 let-
ter to Warren Sherlock constitutes a valid unconditional
offer of reinstatement to him. The first paragraph on the
second page of the letter appears to contemplate that
Sherlock is liable to be reassigned to any part of the
country in the event his organizational efforts do not
prove successful. According to Sherlock, to his knowl-
edge no international representative has ever been sub-
ject to being reassigned because organizational efforts
did not turn out to be successful. Sherlock has also
raised questions regarding the report forms sent to him
and whether other international representatives are re-
quired to fill out such reports. He states he is not aware
of any such reporting form requirement apart from the
forms he regularly sent to the International office in the
past.
Under the above circumstances the August 19 letter
cannot be considered a valid unconditional offer to
Sherlock of reinstatement to his former position of em-
ployment. You have already been advised by Board
Agent Horowitz as to the reasons why Carroll’s July
19,1988 letter did not constitute a valid unconditional
offer of reinstatement to Sherlock. I remain willing to
discuss settlement of the case once Respondent makes
a valid, unconditional offer of reinstatement to Sher-
lock.
By letter dated March 20,4 Carroll wrote to Sherlock:
This communication is intended to repeat the uncon-
ditional offer to reinstate you to employment as an
International Representative of the United Garment
Workers of America which offer was set forth in my
letters to you of July 19, 1988 and August 19, 1988.
Such reinstatement is to be effective March 27. 1989.
You will receive a salary of $485.00 per week, the
amount which you were receiving at the time of your
termination. You will receive automobile expenses and
all other expenses which you previously were receiving
and which are received by all other International Rep-
resentatives employed by this Union.
Your immediate assignment, effective March 27,
1989, will be to participate in the servicing of Locals
110, 140, 222, 233, 117, 177, 283 and 482. In addition
to this activity, and in accordance with my prior cor-
respondence with you, you are assigned to engage in
the organizing of new plants of the northeastern portion
of the United States. It is expected that your organizing
activities will take at least 50% of your time and very
likely more than 50% of your time.
I already forwarded to you a pad of reporting forms
for organizing activity which must be filed weekly by
you with the General Office. I have also forwarded to
you a pad of reporting forms for servicing work, and
it will be expected that you file both these reports
weekly.
Please advise this office immediately of your accept-
ance of this offer.
Sherlock answered by letter dated March 25, inter alia:
This letter acknowledges receipt of your letter dated
March 20, 1989.
I accept your unconditional offer of reinstatement
with the understating [sic] that the conditions in your
previous letters are no longer in effect.
This acceptance in no way is intended to express or
imply any withdrawal of case 3-CA-14240 pending
with the National Labor Relations Board, or any other
rights which I may have through the National Labor
Relations Board or Civil Court.
Understanding that I have been out of touch with the
Northeast area for over a year, and understanding that
there are pending negotiations, I will need to spend
considerable time updating myself with the locals, pre-
paring for negotiations and negotiating. With that in
mind, I believe that servicing must be the priority in
my schedule until negotiations are completed.
For the future I will be handling all communications
with the Union by letter, and will follow up any phone
conversations by letter. For our mutual protection I re-
quest that the Union do the same.
I am ready to start servicing as soon as I receive the
Union supplied credit cards for gas and motel expenses.
513GARMENT WORKERS
Please advise me immediately if any of the above
suggestions or requests are not acceptable, or if you
have any questions regarding this letter.
Finally, by letter dated March 31, Carroll wrote Sherlock:
This will acknowledge receipt of your communica-
tion of March 23, 1989 accepting this Union’s uncondi-
tional offer of reinstatement to the position of Inter-
national Representative. You will be subject to the
same rules and conditions which apply to all Inter-
national Representatives employed by this Union. You
will be expected to comply with directions given to you
by the undersigned and by the General Secretary-Treas-
urer.
You have been advised to secure copies of all com-
munications with Locals 111, 140, 222, 233, 117, 177,
283 and 482, together with copies of all collective bar-
gaining agreements, from International Representative
Jeffrey Roberts. You are also directed immediately to
begin servicing the previously mentioned Local Unions.
There is absolutely no reason to await receipt of Union
supplied credit cards since you may use your own cred-
it card or pay cash and receipts will be honored.
I cannot agree that you will need to spend consider-
able time updating yourself with the Local Unions, pre-
paring for negotiations or negotiating. You are directed
that the most important portion of your schedule is to
be devoted to organizing new plants. Servicing is not
a priority in your schedule. Rather, your most important
priority and one which we expect you to fulfill, will be
the organizing of employees in new plants and the addi-
tion of new members to this International Union.
Obviously, such organizing activity can be carried
out in conjunction with your servicing of existing Local
Unions. Clearly, the Local Unions are not to be ne-
glected, but you can certainly engage in organizing ac-
tivities in those areas where Local Unions are in exist-
ence.
It is absolutely imperative that your organizing ef-
forts result in the addition of new members in the area
you are servicing. You were advised of this necessity
as early as August 1987, and you agreed to devote at
least 50% of your time to organizing. It will be ex-
pected that you fulfill this commitment, and we trust
that your organizing efforts will be successful and will
result in the addition of new members for the Inter-
national Union in the area you are servicing.
Sherlock testified that he refused Carroll’s reinstatement
offer dated July 19, 1988, for a number of reasons; for about
a 9-month period prior to being elected general president of
Respondent, Carroll was acting president, and, in that posi-
tion, assigned Sherlock to organize a plant in Idabel, Okla-
homa, where he was allowed to come home for 3 days every
2 weeks. The July 19, 1988 letter, he felt, offered the same
job, which he felt was not a comparable one to the one he
had when he was fired on March 12, 1988. Additionally, he
had previously taken his wife and trailer, with him; Carroll’s
letter said that he could not do so on this occasion. In addi-
tion, when Sherlock had previously been involved in orga-
nizing employees in Idabel he told Carroll that they were not
getting anywhere and they should not waste their time and
resources continuing the campaign, and Carroll agreed. By
reassigning him to the same campaign (in the July 19, 1988
letter) which they previously agreed would not be successful
and stating that Sherlock’s progress would be monitored,
Sherlock was convinced that he was being ‘‘set up for an-
other fall.’’ For all these reasons, he rejected the July 19,
1988 reinstatement offer. Sherlock testified that he rejected
Carroll’s August 19, 1989 reinstatement offer because of the
third from the final paragraph (beginning: ‘‘You are certainly
aware’’) which refers to the general president’s right to as-
sign international representatives to work in various parts of
the country. Although this letter never specifically mentioned
a location that Sherlock would be assigned (or reassigned) to,
Sherlock testified that his interpretation of the letter is that
he would be assigned out of town for 2 weeks at a time
which, again, was not compatible with his position prior to
March 12, 1988. He testified that this letter was ‘‘. . . say-
ing similar things in different words.’’ He accepted the
March 20 reinstatement offer because it does not talk about
reassigning him to another area; ‘‘it . . . just referred to as-
signment, not reassignment.’’ Sherlock was asked by counsel
for Respondent whether he understood from Carroll’s March
20 letter that he could be reassigned to a different area of
the country. He testified ‘‘According to our constitution I
could be, yes, but this was the same job description I had
prior to my termination.’’
Sherlock testified that he (as well as the other international
representatives) understand that the general president of Re-
spondent has the authority to assign them to various parts of
the country, but only ‘‘on a temporary campaign,’’ he testi-
fied, not the long term campaign in Idabel that he referred
to in his July 19, 1988 letter:
Because no other rep on our staff is expected to go on
the road for twelve days, home for two. It hasn’t been
the past practice, and I was being subjected to different
job conditions than other representatives.
Carroll testified that sometime prior to July 19, 1988, he
received a request from the regional director of the AFL–
CIO in Tulsa, Oklahoma, stating:
that he had received some telephone calls from this area
wanting us to return to the area and try to organize the
factories, that they had some other unions in the area
that could give us some help. And I felt like that the
best thing to do was to send the same representative
back in there that was familiar with it to try to see if
we could revive the efforts and maybe obtain the bar-
gaining rights in that particular plant.
He testified, further, that he notified Sherlock of this assign-
ment in order to cover this situation, while, at the same time,
returning Sherlock to his position as international representa-
tive and settle the Board case. After Sherlock refused the re-
instatement offer, he did not assign anyone else to attempt
to organize these plants in Oklahoma. Respondent has an
international representative in Oklahoma but she was not as-
signed to this task nor did Carroll assign two international
representatives who had assisted Sherlock when he was in
the area in 1987, because they were too busy with other
work that they were performing. By his July 19, 1988 letter,
he told Sherlock that he wanted him to go to Oklahoma to
514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Sherlock admits that international representatives are, at times, assigned
outside of their area. His objection to the July and August 1988 assignment
relates to the length of time and the stated restrictions that were involved in
the assignment.
attempt, again, to organize the company involved. This was
not a permanent assignment:
I intended to send him down there on a temporary
basis. I didn’t know how long it would be. Sometimes
you can finish an organizing campaign fairly fast.
Sometimes you can’t. Sometimes they run for several
months. So, it’s impossible to predict how long it
would be.
In support of its defense in this regard, Respondent moved
into evidence a summary of international representatives5
who worked outside of their areas during 1987 and 1988;
this exhibit states that five worked outside of their area dur-
ing this period. One worked a total of 2 days in this cat-
egory; the other four worked between 21 and 41 days outside
of their area during this period. However, the longest con-
secutive period that any of these representatives spent in one
area was 10 days. The only out-of-area assignment that could
compare with the Idabel assignment referred to in Carroll’s
July 19, 1988 letter to Sherlock was an assignment testified
to by International Representative Lucy Gibby. She testified
that in about 1985, she, Carroll, Sherlock and one other rep-
resentative were assigned to a raid situation at a plant in
Missouri. It lasted about 8 weeks and she was away for 2
weeks at a time and then home for a few days.
As stated, supra, it is the employer’s burden to establish
an diminution in a backpay award; this applies to estab-
lishing that a valid offer of reinstatement was made as well
as establishing that the discriminatee made an inadequate
search for interim employment. The order in the underlying
case directed Respondent to offer Sherlock immediate and
full reinstatement to his former position of employment or,
if that position is not available, to a substantially equivalent
position. Initially, it should be noted that Respondent has not
established that Sherlock’s position was no longer available;
Jeffrey Roberts, Respondent’s international representative in
the area prior to August 1987, was apparently outside the
area engaging in engineering work for Respondent. The issue
is whether any of Carroll’s letters to Sherlock prior to March
20 constituted unconditional offers of reinstatement to his
prior position. I find that they did not. The July 19, 1988 let-
ter presents a good example of a bad-faith offer of reinstate-
ment. After stating that he would be reinstated at his former
salary, effective August 1, 1988, in the third paragraph Car-
roll tells him that, effective August 1, 1988, he would be
going to Idabel, Oklahoma, to attempt to organize a plant he
was previously unsuccessful in organizing. The next para-
graph states that he can only come home every other week-
end. The following paragraph states that he (Carroll) will be
monitoring Sherlock’s progress in the campaign, while the
final paragraph states that he should not take his trailer or
his wife (as he had done previously) with him to Oklahoma.
This is clearly not an unconditional offer of reinstatement to
his former position; the only positive aspect of this offer is
that it states that it is an unconditional offer of reinstatement
and that it would be to his prior salary. The letter never re-
fers to his former position as international representative for
the Northeast area; rather, it tells him that he is to imme-
diately report to Oklahoma and, apparently, stay there for an
indefinite time. Not only is this letter unacceptable because
it assigns him to a position that is different from the one he
had just prior to March 12, 1988, and provided for numerous
restrictions that Carroll probably knew Sherlock would find
that objectionable, but also refers to the fact that Carroll
would be monitoring his progress in the campaign. Since this
was a campaign that had previously been unsuccessful, and
one that Sherlock told Carroll they could not win, Sherlock
had good cause to believe that this was a setup for a subse-
quent discharge. There is an additional reason why I find that
this letter was not a valid offer of reinstatement. Such offers
should also serve to reassure certain discriminatees that the
respondent has altered its policy and will no longer discrimi-
nate against its employees for discriminatory reasons. Art
Metalcraft Plating Co., 133 NLRB 706 (1961). The adminis-
trative law judge in the underlying case found General Coun-
sel’s case to be ‘‘compelling,’’ while finding Respondent’s
reason for Sherlock’s discharge to be ‘‘flimsy and insubstan-
tial.’’ This situation called for a strong, unconditional rein-
statement offer, which Carroll’s July 19, 1988 letter clearly
is not. Finally, I should state that I do not credit Carroll’s
testimony that he made this assignment to Sherlock based on
a telephone call from the regional director of the AFL–CIO
in Tulsa, Oklahoma, inviting Respondent to reattempt orga-
nizing the employees in Idabel, Oklahoma. The evidence is
unmistakable in both the underlying and instant matter that
there was, and is, animus between Carroll and Sherlock. Ad-
ditionally, I find it puzzling that after Sherlock refused the
Oklahoma assignment, Carroll did not assign any of the other
international representatives to this assignment.
Respondent next contends that Carroll’s August 19, 1988
letter to Sherlock represented an unconditional offer of rein-
statement, ending any backpay obligation to Sherlock. There
are two aspects of this letter that make it unacceptable. At
the conclusion of the fourth paragraph of the letter, Carroll
refers to Sherlock’s poor performance as international rep-
resentative between September 1, 1987, and March 1, 1988,
a claim rejected by the administrative law judge in the under-
lying case. Additionally, the letter refers to Carroll’s right to
assign international representatives to engage in organizing in
various parts of the country. Although this letter is not as ob-
jectionable as the prior letter, it is still not ‘‘unequivocal,
specific and unconditional for it to remedy the employer’s
unfair labor practices.’’ Tri-State Truck Service, 241 NLRB
225 (1979). I therefore find that Sherlock’s backpay contin-
ued to run until March 27, as alleged in the compliance spec-
ification.
IV. THE UNFAIR LABOR PRACTICES
There are two aspects to the unfair labor practice allega-
tions which were consolidated with the compliance specifica-
tion. The first involves Sherlock’s employment with Ther-
mal, where he was employed on a part-time basis prior to
his termination on March 12, 1988, and where he resumed
working in September 1988 and continued working, for a pe-
riod, after his reinstatement in March. Respondent contends
that such ‘‘employment’’ (as distinguished from owning a
business) is prohibited by Respondent and by letters dated
July 26 and September 6, Carroll notified Sherlock of such
prohibition; these letters are alleged to violate Section 8(a)(1)
515GARMENT WORKERS
6 The compliance specification, which issued on August 30, mentions his
employment at Thermal.
and (4) of the Act. The other aspect of this case is a series
of letters from Carroll to Sherlock threatening him with ter-
mination because of poor performance as an international
representative. These letters are also alleged to result from
his prior Board action and proceeding, and therefore are al-
leged to violate Section 8(a)(1) and (4) of the Act.
It is undisputed that at least two international representa-
tives owned and operated businesses simultaneous to their
position as international representative for Respondent, with
the knowledge of Respondent’s agents. In this regard, Phillip
Simmons, who had been employed as an international rep-
resentative by Respondent from 1981 through 1987, testified
that during his early years of employment with the Respond-
ent he bought and sold automobiles and was the director of
Music at a local church (a paying position). He discussed
these jobs with Little, Carroll, and his predecessor. In about
1986, he and his wife opened a store in his hometown (the
same town where Little lived) where they made and sold
drapes. In fact, they made drapes for Little’s apartment and
they supplied the curtains for Respondent’s convention in
1987, after approval at Respondent’s board meeting. During
this meeting, Little informed the Board that Simmons and his
wife were in the drapery business and could supply the
drapes for the convention, absent objection; there was none.
Simmons did the actual measurement for the drapes and put
them up as well. Both he and his wife worked in the store
and both sewed the drapes. When he was out of town on Re-
spondent’s business, his wife operated the store. He spent, on
the average, 15 to 20 hours a week in the store. While he
was traveling as part of his job with Respondent, Simmons,
at times inspected and/or purchased fabric while he was in
the area. He discussed this with Little who never raised an
objection. During this period, at least two other international
representatives, Tom Agan and Lucy Gibby owned their own
businesses. Agan owned some car washing operations as well
as a craft store and Gibby and her husband owned an uphol-
stery store. He discussed both with Little, who voiced no ob-
jection.
Sherlock began working part-time for Thermal in about
September 1987; he learned of the position through his
brother, who is employed there. The owner asked him if he
would be interested in part-time employment there installing
and repairing heating and air conditioning units. Thermal’s
records (beginning in January 1988) establish that from Janu-
ary 1988 through his discharge he worked from 8 to 32
hours weekly, for an average of 22 hours a week. After
being reinstated by Respondent, Sherlock continued to work
for Thermal until late June; during this period his hours
ranged from a low of 8 to a high of 16, for an average of
11 hours a week. On the days that he worked for Thermal,
his hours were usually 7 a.m. until 3:30 p.m. He testified that
the work he performed for Thermal did not interfere with his
job responsibilities for Respondent. During cross-examina-
tion, Sherlock was shown his work records regularly sub-
mitted to Respondent which showed little or no work per-
formed on days that he worked for Thermal. He testified that
when he was hired, he was told:
you’re to service this area. We don’t care how long it
takes. You make your own schedule. As long as we
don’t have any problems or hear about any problem, we
don’t care how you handle it.
He also testified that even on those days that he worked 8
hours for Thermal, he sometimes met with employees at
nearby companies at lunch time or after work; at other times,
he did his paperwork for Respondent in the evening.
Sherlock never told Carroll about his employment at Ther-
mal; Carroll testified that the first he learned of it was some-
time in 1989 when the Board informed Respondent’s counsel
of it.6 He testified that on learning this,
I was quite upset about it because in my 40 years
of experience working for the international union, I’ve
never known anyone who had a second employer. Sev-
eral of them have had businesses or things like that, but
no second employer.
My policy is that everybody is a full-time representa-
tive and must spend all their time working for the inter-
national union because of the peculiarities of our work
. . . And it is a full-time job. it’s not an eight hour-
a-day job.
By letter dated July 26, Carroll wrote to Sherlock:
It has come to my attention that during the period of
time that you were employed as international represent-
ative by this International Union, you were working at
other employment for another employer. Such action on
your part was unknown to the officers of the Inter-
national Union, and you certainly never advised the
General President or the General Secretary-Treasurer of
the International Union, or its Executive Board, of the
fact that you were also engaged in other employment
in addition to your performance of your duties as either
a member of the General Executive Board or as an
international representative.
I am anxious to discover whether you are still en-
gaged in employment by another party. Please advise
me whether you have such other employment, the name
and address of your employer, if one exists, and the
amount of time or the number of hours or days per
week which you devote to such outside employment.
I want to advise you that employment as an Inter-
national Representative of this International Union is a
full-time job. It is not simply a five (5) day a week job;
it is a seven (7) day a week job. Any holding of any
outside employment is totally inconsistent with the per-
formance of your duties and obligations as an Inter-
national Representative of this International Union.
Therefore, please advise me whether you are pres-
ently enjoying such outside employment and provide
the information set forth above. If you have such out-
side employment, you are directed immediately to cease
and desist from such outside employment and advise
me in writing that you have done so. I want to make
crystal clear to you that your job as an International
Representative of this International Union does not con-
template or permit your engaging in any outside em-
ployment, and your continuation of any such outside
employment will be grounds for your termination.
By letter dated August 15, Sherlock responded:
516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Respondent produced evidence showing that from March through Decem-
ber, the local unions in Sherlock’s region contributed $25,000 in per-capita tax
to the Respondent. During the same period, Sherlock’s payroll costs totaled
$33,000.
This letter is in reply to your letter to me dated July
26, 1989 regarding my outside employment.
When I was hired by the United Garment Workers
there was no requirement implying or otherwise forbid-
ding outside employment. During my thirteen years of
employment there have been occasions where staff rep-
resentatives have held outside employment. In one such
case the International Union and the General Secretary
hired work to be done by that representative.
I have been and am presently ‘‘enjoying’’ such out-
side employment. I am working for an employer who
allows me to pick and chose the days I work along with
the number of hours I work.
Since returning to the staff in March of 1989 I have
worked less than an average of eight hours per week
for this employer.
I have at no time and will at no time in the future
allow my outside employment to interfere with my job
for the United Garment Workers.
Please be advised that I have filed charges against
the United Garment Workers with the National Labor
Relations Board regarding your letter dated July 26,
1989 because I feel it is discrimination applied against
me for filing and also winning case 3-CA-14240 with
the N.L.R.B.
I request that the above mentioned and other subtle
forms of harassment cease immediately so as to avoid
my filing of further charges.
By letter dated September 6, Carroll wrote:
This letter is in response to your letter to me of Au-
gust 15, 1989 concerning outside employment.
Contrary to your statement, there has always been an
understanding that all International Representatives of
the United Garment Workers of America will be full-
time employees of the Union. Such International Rep-
resentatives are not allowed to have outside employ-
ment because of the fact that such outside employment
obviously interferes with their duties and responsibil-
ities for the International Union. An International Rep-
resentative simply cannot be employed by a third party
and maintain his duties and responsibilities to the Inter-
national Union.
Your statement that other International Representa-
tives have held outside employment is simply incorrect.
No other International Representative has any such out-
side employment and no other International Representa-
tive is permitted to have such outside employment.
I note your statement that you have worked less than
an average of eight (98) hours per week for an outside
employer. You are directed to cease and desist from
such employment as the continuation of such employ-
ment is inconsistent with your obligations as an Inter-
national Representative of this International Union.
In my prior communication to you on this subject,
I requested that you advise me of the name of your em-
ployer and the nature of such employment. I would also
like to be advised of the dates of which you have
worked for such employer and the duties you have per-
formed.
It is perfectly obvious that your engaging in outside
employment by a third party is inconsistent with your
obligations as an International Representative. You
must always be available to service those Local Unions
assigned to you, and your duties also consist of orga-
nizing at least 50% of your time. I need not remind you
of the noticeable lack of success which you have had
in organizing efforts since your return to the staff in
March of 1989. I have previously warned you about
your inactivity and lack of success on this score, and
this letter constitutes a repetition of such warnings.
Carroll testified that he knows of no other international
representative employed by Respondent who has ‘‘outside
employment’’; he knows of others who had ‘‘other outside
interests, but not of a second employer, second boss.’’ His
‘‘understanding’’ was that Simmons assisted his wife in a
curtain shop that she owned, but that he was always avail-
able, by phone, when needed. Additionally, Simmons left
Respondent’s employ approximately a month after Carroll
became president. Additionally, Carroll testified that while he
was an international representative someone told him that
Agar had bought a laundromat. ‘‘But my understanding is
that he sold that a long time ago and he doesn’t have any-
thing like that at the present time, not since I’ve been presi-
dent.’’ Prior to the July 26 letter to Sherlock, he never in-
structed any employee of Respondent that they were pre-
cluded from outside employment; since he knew of no one
who had a second employer he didn’t feel that it was nec-
essary.
The final allegation is that on about June 20, August 9 and
September 26, Respondent, by Carroll, issued written warn-
ing to Sherlock in retaliation for his prior Board activity, in
violation of Section 8(a)(1) and (4) of the Act. As stated
above after the 1987 election, Sherlock told Carroll that they
should keep their communications in writing; this rec-
ommendation went a long way to filling the record of the
hearing. Between Sherlock’s reinstatement in March, and
Carroll’s letter of September 26 containing a final warning,
letters containing a total of 35 pages passed between them.
For the sake of brevity, not all these letters will be referred
to or even quoted from. Stated simply, Respondent defends
that Carroll gave Sherlock these warnings because of his
poor performance as an international representative; he was
doing no organizing and was deficient, as well, in all areas
of his position.
Sherlock’s understanding with Carroll was that as an Inter-
national representative in the northeast region, he would de-
vote 50 percent of his time to organizing. He testified that
combined with travel time (the plants ranged from 20 miles
to 425 miles from his home), he spent in excess of 50 per-
cent of his time organizing. The other part of his job (as well
as the job of the other International representatives) was
servicing the Respondent’s members in the area. At the time
he returned, there were about 500 members in the area; only
one other region had such a small number of members.7 By
517GARMENT WORKERS
letter dated April 11, Carroll wrote Sherlock a two page let-
ter stating, inter alia:
I have reviewed your reports for the week ending
April 8, 1989. I have paid particular attention to your
report on organizing the plant of C.B. Sports in Glens
Falls, New York.
As I emphasized to you in my letter of March 31,
1989, your most important activity will be the orga-
nizing of new plants and the securing of new members.
Our financial records disclose that the Local Unions
you are presently servicing do not pay sufficient per
capita tax to support the employment of an Inter-
national Representative. Therefore, it is essential you
engage in organizing activity so as to build up the
membership in your area and to justify the continuation
of an International Representative to service the Local
Unions in New York and Pennsylvania.
I also note that in February and May of 1987 your
reports disclose that you handbilled and visited the C.B.
Sports Plant in Glens Falls, New York. At that time the
plant was apparently not yet completed, and I do not
know whether the employer had a full complement of
employees. However, from your report for the week
ending April 8, 1989, it appears that the plant is in op-
eration, and organizing activities should certainly be un-
dertaken at that location.
The letter then requests that Sherlock provide Carroll with
information regarding this employer and to attempt to orga-
nize its employees, stating: ‘‘Your organizing reports [week-
ly reports submitted to Respondent] will show, of course, the
extent of your activity and the results obtained.’’ The letter
also requests that Sherlock investigate an employer’s delin-
quency in forwarding checked off dues to Respondent and
advised him that one local in his region had not forwarded
per capita dues to Respondent for a year. Sherlock testified
that he complied with the instructions of this letter by send-
ing Respondent the reports Carroll requested and attempted
to organize the employees of C.B. Sports by speaking to
them after work, although he had not obtained any signed
authorization cards. In fact, he did not receive his only
signed card from an employee of this employer until about
mid-November. By letter dated May 8 (which Carroll began
by stating: ‘‘I have reviewed your last three week’s re-
ports.’’) Carroll answered a prior querry from Sherlock about
obtaining assistance in organizing. Carroll stated: ‘‘The an-
swer is, you need no help in organizing, at least until you
petition the NLRB for an election. At that point, if the plant
has 75 employees or more, we will allow you to take two
people out of any of the plants in your area . . . to assist
you.’’ Sherlock testified that, in the past, Respondent always
assigned at least two international representatives (rather than
employees of a plant) to an organizing campaign. By letter
dated June 3, Sherlock answered the questions posed by Car-
roll in his May 3 letter; the letter states that he had spoken
to employees of C. B. Sport, but is not optimistic about
chances there because of financial difficulties and layoffs at
the company. By letter dated June 20, Carroll wrote to Sher-
lock:
To say that your answers to the questions that I
asked you on May 8, 1989 are unsatisfactory would be
an understatement.
Regarding Troy Guild, there is no excuse for wait-
ing. Jeff can give you the names of the workers he has
contacted over the phone. Also, this is the plant you
used to work in and, I know, you know some people
working in the factory. Why have you not contacted
some of them?
Regarding C.B. Sport, according to your Organizer’s
Initial Report, item six (6), on the question ‘‘Has any-
one ever tried to organize this plant?,’’ your answer
was, ‘‘ILGWU and still trying.’’ Then on question
fourteen (14), ‘‘Why should we start a campaign at this
plant?,’’ you left blank. According to your reports, you
have not signed up any employees on authorization
cards. If you are not making progress, start working on
another unorganized plant. You know to do this without
my having to tell you. Also, if the ILGWU is involved
in a campaign, we don’t need to intervene.
You said you disagree with my policy of providing
help in organizing that was set forth in my letter of
May 8th. You further stated that I said no one should
organize alone. This statement is not true. Any orga-
nizer ‘‘worth his salt’’ should be able to start a cam-
paign and bring it to the point of petitioning the NLRB
for an election (30%). The policy I set forth, after this
point, is outlined in my letter of May 8th, 1989. It is
very important that we develop leadership in all sec-
tions of the country. Am I to understand that you will
not wholeheartedly follow the policy outlined in my let-
ter?
On your Organizer’s Report, week ending June 3,
1989, you show ‘‘Tuesday, C.B. Sport, Glens Falls,
New York,’’ and under ‘‘Organizing Activities,’’ you
only say, ‘‘parking lot.’’ What does this mean? Also,
on your Organizing Report, week ending June 10, 1989,
you show on Monday, ‘‘C.B. Sport, Glens Falls, New
York,’’ but did not answer any of the questions under
‘‘Organizing Activities.’’ Why?
You made no comments on the other side of these
forms as required in our letter to you of December 3,
1987 (copy enclosed to remind you)—see paragraph
two (2). While this letter refers primarily to service
work, it is required in organizing.
Regarding Robdeb Manufacturing (Temco), enclosed
is copy of letter I received from Jeff on February 25th,
1989, regarding money owed to Local 482’s treasury.
This is the only information I have. It is up to you to
investigate further, and give me a detailed report.
This is a warning that you are not doing the job you
should be doing, and you are not reporting your activi-
ties properly. I do not intend to continue indefinitely,
to put up with this type of reporting.
Sherlock answered the allegations in this letter in a letter to
Carroll dated July 31. The letter states:
This letter is in response to your letter dated June 20,
1989, in order to simplify my response I will discuss
your letter paragraph by paragraph.
Paragraph two (2) Regarding Troy Guild; I believe
that if you took the time to review my application you
518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 In the interest of brevity, I have omitted about one page of the letter which
refers to Carroll’s unhappiness with certain of Sherlock’s organizing and serv-
icing activities.
would find that I have never worked for Troy Guild.
Your assumption that ‘‘you know some of the people
working in the factory’’ is as far off the mark as was
your statement ‘‘this is the plant you used to work in.’’
For your information access to the cutting department
is gained through a stairway which isolated from the
rest area I was accompanied by the Plant Manager. I
agree that Jeff could give me the names over the phone,
but if he wants to contact them first what choice do I
have. I have not tried handbilling or talking to employ-
ees outside of work because even as you must be aware
of, as former Director of Organizing, that the best way
to organize is from within, without management know-
ing. In the situation at Troy Guild with us already rep-
resenting the cutters, I feel it is in our best interest to
keep management in the dark as long as possible re-
garding organizing efforts.
Paragraph three (3) Regarding C.B. Sport; in my let-
ter to you dated June 3, 1989 paragraph five (5) I stated
that at this time with a lot of layoffs and financial prob-
lems, the employees of C. B. Sport are more concerned
with their jobs than with joining a Union but I feel we
must maintain a presence because at least the employ-
ees are talking to me. I still feel that we should main-
tain a presence in the area because with the company
receiving a grant, as I reported in my letter dated June
3, 1989, once the employees are back at work they may
become more interested in a union. Maybe I did not
make it clear enough in my report to you when I said
the ILGWU is in the area, that they are having no suc-
cess in getting anyone interested in the Union either. I
feel that if we stay involved, we will be the Union the
people chose to sign up with, if not we can pull out at
a later date.
Paragraph four (4) organizing help, I have no prob-
lem in following the internationals organizing policy
‘‘wholeheartedly.’’ Apparently, since you have gone
from the position of Director of Organizing to General
President you have changed your position on ‘‘in plant
organizing,’’ which is your right. I still respectfully dis-
agree with your new policy which does not provide
help to representatives in organizing. As I stated pre-
viously, even though I disagree I will follow your pol-
icy ‘‘wholeheartedly.’’
Paragraph five (5) Organizer’s Report; I have been
filling out my weekly reports the same since January 9,
1988 through June 20, 1989. Having gotten no com-
plaints from the International during that period I as-
sumed they were filled out to the International’s satis-
factory. I will as per your request go into more detail.
Paragraph six (6) Robdeb Mfg.; a report regarding
dues owed by Robdeb Mfg. will follow under separate
cover.
Paragraph seven (7) Warning: I take exception to
your warning, what do you mean by your statement
‘‘you are not doing the job you should be doing’’ it is
vague and indistinct. Your statement ‘‘I do not intend
to continue indefinitely, to put up with this type of re-
porting’’ is also vague.
I request a more detailed explanation regarding your
warning and I also request in writing any policy
changes in Weekly Reporting procedures.
Between the above two letters, on July 10, Carroll wrote
a three page letter to Carroll regarding one of Respondent’s
local unions in Rockland County, New York. The employer
was delinquent in its payments to Respondent’s retirement
and severance fund as well as back dues to the local union.
Carroll instructed Sherlock to do a number of things to cor-
rect this situation, concluding: ‘‘I expect you to take imme-
diate action on these subjects and to give me a full report
without delay.’’ By letter dated August 3, Sherlock reported
on his activities in each regard including a check of $500
from the employer as partial payment for its delinquencies.
The letter concludes: ‘‘If you have any questions or com-
ments, or if you are not satisfied with my handling of the
situation, please advise.’’ By letter dated August 7, Carroll
stated that Sherlock did not say anything about the contract
for the company which was supposed to expire on June 30;
Carroll asked for this information—‘‘I expect a reply to this
letter upon receipt of same.’’
By letter dated August 15, Sherlock informed Carroll that
the answers to these questions could be found in specific let-
ters and weekly reports that he had prepared. By letter dated
August 9, Carroll wrote to Sherlock, inter alia:8
This letter is in response to your letter to me of July
31, 1989, and is also intended to follow-up on a num-
ber of prior communications which were sent to you
concerning your work as an International Representa-
tive of this International Union and the nature of your
performance of your duties.
I do not want to repeat in this letter the history of
our prior discussions, but you are certainly well aware
of the fact that it is absolutely essential for you to en-
gage in organizing activity, consuming at least 50% of
your time, and to organize new members in your area.
You are well aware of the fact that the number of
members which you are servicing do not support the
employment of an International Representative by this
International Union. You are servicing less than 500
members, and I am sure that you can compare the per
capita tax which they pay to the salary and other bene-
fits which you receive. In addition, of course, their per
capita tax goes to support the International Union, the
International Office and the other expenses which the
International Union has, in addition to your salary as
International Representative.
Therefore, it is absolutely essential that you be suc-
cessful in organizing employees and in adding members
in your area. I am not at all satisfied with the efforts
that you have made to organize new plants. Your orga-
nizing reports do not indicate a diligent application of
your time and effort toward such organizing. If you are
not achieving success at C. B. Sport, then find another
location in another plant where employees may be in-
terested in being organized.
I do not accept your so-called ‘‘exception’’ to the
warning contained in my letter of June 20, 1989. In that
letter, I warned you that you are not doing the job you
should be doing, and you are not reporting your activi-
ties properly. The job that you should be doing includes
519GARMENT WORKERS
9 According to Respondent’s records, the number of members serviced by
each international representative ranged from 421 for Sherlock to 2283 for
Agan.
the organizing of employees and new plants; it does not
appear to me that you are doing sufficient work in this
regard. There is nothing vague about my statements,
and I think they are clear and specific.
Despite my letter of June 20, 1989, and the warning
in that letter, you have continued to ignore your respon-
sibility and obligation to organize and to fulfill the du-
ties and responsibilities imposed upon you. This Inter-
national Union will not continue to support your inac-
tivity and your failure to perform the duties imposed
upon you in your position as International Representa-
tive. If you do not engage in organizing and increasing
our membership in the area you are servicing, we shall
have to consider other action which might adversely af-
fect your employment. You may consider this commu-
nication to be a second warning which I trust you will
observe and take to heart.
By letter dated September 26, Carroll wrote Sherlock:
I have written to you on a number of occasions con-
cerning the necessity of your organizing and increasing
our membership in the area that you were servicing. In
my letter to you of June 10, 1989, I advised you that
the letter was a warning that you are not doing the job
you should be doing. In my letter to you of August 9,
1989, I told you that you were receiving a second
warning concerning your responsibility and obligation
to organize.
Your reports to this office since my letter to you of
August 9, 1989 shows no results and no positive action
in regard to any organizing campaign. It appears that
you are either not devoting yourself to organizing activ-
ity or are not performing organizing duties in an appro-
priate fashion. You are certainly an experienced orga-
nizer, but in the more than twelve months that you have
been assigned to spend at least half your time orga-
nizing, you have not secured a single signed authoriza-
tion card.
Therefore, this letter constitutes a final warning. You
have been told repeatedly that it is essential that our
membership be increased in your area in order to jus-
tify your employment as a International Representative.
You are well aware of the fact that the per capita taxes
paid by the Local Unions you service do not even pay
your salary, expenses and fringe benefits. Such per cap-
ita taxes, also, of course, support the International Of-
fice and its functions. For this reason you were told in
August 1987, and have been repeatedly told since then,
that you must organize and add to our membership. To
date, you have failed to fulfill this responsibility.
This letter is a final warning to you of your responsi-
bility and obligation. The International Union will not
tolerate any further disregard on your part.
As stated, supra, when Sherlock returned to the Northeast
region in 1987, it comprised approximately 500 members.
Sherlock testified that at the time of the hearing the region
comprised between 450 and 500 members, although an un-
dated form of Respondent states that it contained 421 mem-
bers.9 Since returning to the Respondent’s employ, Sherlock
obtained one signed authorization card from an employee of
C.B. Sport and one card from an employee of another non-
union employer. During this period, he has (obviously) filed
no petitions with the Board.
Carroll testified that he sent Sherlock the June 20, August
9, and September 26 letters because, ‘‘he was not doing his
job, was not accomplishing anything, absolutely nothing, so
far as organizing is concerned.’’ When there was no im-
provement after the June 20 letter, he sent Sherlock the Au-
gust 9 letter. He testified that there was no connection be-
tween the letters and the charges Sherlock filed with the
Board: ‘‘I issued those letters in order to emphasize to him
the importance and the necessity to add more membership to
this particular area.’’ Carroll testified further that Sherlock’s
predecessor in the Northeast region was Jeff Roberts, who
was assigned to service the same number of shops as Sher-
lock, and did some engineering work for Respondent, as
well. During Roberts’ tenure, he also had no success in orga-
nizing employers in the region; he was never disciplined or
reprimanded for this lack of success.
Respondent defends that the warnings to Sherlock were
solely the result of his lack of success in organizing and
were totally unrelated to his Board actions. Thus, in his brief,
counsel for Respondent states:
Despite his past history and past experience in orga-
nizing, the fact is that during the twelve months that he
worked for the Union between August 1987 to March
1988 and from March 1989 through September 1989,
Sherlock obtained only one signed authorization card
during his supposed organizing forays. Certainly, as a
former Director of Organizing, the Union had every
right to believe that Sherlock had the ability to success-
fully organize. To the extent that he obtained only one
authorization card, it is clear that we are not dealing
with a lack of ability, but rather with a lack of desire.
In the underlying case, Respondent also defended that
Sherlock was terminated because he was performing inad-
equately as an organizer. The administrative law judge found
that although Sherlock ‘‘did not engage in a significant
amount of organizing activities,’’ no other representative
achieved any better results than he did for the period in ques-
tion, August 1987 through March 1988. Thus, for that pe-
riod, the administrative law judge concluded: ‘‘Therefore, to
the extent Respondent seeks to measure work effort by re-
sults, the record refutes the claim that Sherlock was any
more deficient than any other Union organizer.’’ Counsel for
Respondent, in his brief, seeks to differentiate the instant
matter.
Since the time of that hearing before Judge Bennett, the
circumstances have changed and the record in this case
was replete with instances of organizing activities suc-
cessfully engaged in by other international rep-
resentatives. Some six campaigns had occurred in that
time that had lead to either petitions or card checks.
520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Moreover, there had been other organizing activities
that, while not successful, at least had been attempted.
It is therefore necessary to examine the results of the orga-
nizing activities of Sherlock (admittedly meager) with the re-
sults of the other international representatives, for the period
of March 27 (when he returned) through September 26 (the
date of his final warning). Simmons testified that during the
period of his employ with Respondent (1981 through 1987)
he knew of only two or three Board petitions filed by the
Respondent, and Respondent lost the Board elections. Each
of these organizing attempts involved a large number of
international representatives; in fact, to his knowledge; all or-
ganizing involved more than one representative. Carroll testi-
fied that in 1989, International Representative Ethel Forsythe
began a campaign in White House, Tennessee; she obtained
some signed authorization cards from employees and then
Carroll assigned other representatives to assist her. A petition
was filed with the Board and the Respondent won the elec-
tion. Carroll also testified that (at an unspecified time) Inter-
national Representative Charlie Boyd began a campaign in
Williamsburg, Kentucky; after he obtained signed authoriza-
tion cards from 30 percent of the employer’s employees and
filed a petition with the Board, Carroll sent other representa-
tives to assist him. Respondent lost the election and filed un-
fair labor practice charges with the Board, which issued a
complaint in the matter. At a plant in Auburn, Nebraska,
International Representative Tim Fitzpatrick obtained signed
authorization cards (also at an unspecified time) and obtained
recognition from the employer on the basis of a card check.
Carroll next testified about a campaign (time unspecified) in
Dalton, Georgia commenced by International Representative
Dave Johnson. With the assistance of two other international
representatives and some people from the local union, he ob-
tained enough cards to file a petition and obtain a Board
election, which Respondent lost. International Representative
Sue Cawyer began a campaign in Wagoner, Oklahoma, at an
unspecified time. With the assistance of some local union
members, she obtained signed authorization cards and rec-
ognition based on those cards. There was also a petition filed
with the Board (at an unspecified time) for a plant in Cam-
den, Tennessee. This plant was originally organized by two
organizers recently hired by Carroll solely for organizing
purposes. At a certain point, Boyd was sent to assist them.
Respondent won the election. Of these six above-mentioned
employers (and campaigns) five (all but Williamsburg) in-
volved ‘‘sister plants,’’ i.e., a plant that Respondent had a
contract with plants of the employer at a different location.
In Wright Line, 251 NLRB 1083 (1980), the Board set
forth the rule to be applied in discrimination cases such as
the instant matter: ‘‘First, we shall require that the General
Counsel make a prima facie showing sufficient to support the
inference that protected conduct was a ‘motivating factor’ in
the employer’s decision. Once this is established, the burden
will shift to the employer to demonstrate that the same action
would have taken place even in the absence of the protected
conduct.’’
In making findings under Wright Line, it is helpful to ex-
amine some of the findings of the administrative law judge
in the underlying case. The judge found Carroll’s testimony
‘‘untrustworthy’’ and incredible and found Respondent’s de-
fense that Sherlock was terminated for valid business reasons
‘‘flimsy and unsubstantial’’ while finding General Counsel’s
case ‘‘compelling.’’
Examining initially the institution of the rule against out-
side employment and the resulting warnings to Sherlock re-
garding this rule, the evidence establishes that neither Carroll
nor his predecessor ever formulated or announced a prohibi-
tion against outside employment or the ownership of a busi-
ness by international representatives prior to July 26, al-
though the evidence is clear that Carroll and Little were
aware of Simmons, Gibby, and Agan’s business interests.
Respondent attempts to differentiate between outside employ-
ment and business ownership. I reject this distinction. The
record establishes that Simmons spent considerable time on
his personal business while on the road to the knowledge of,
at least, Little. It appears that Sherlock spent no more time
in his employment with Thermal than Simmons did in his
church employment and his automobile and drapery busi-
nesses. This, together with Respondent’s animus toward
Sherlock clearly documented in the prior Decision, estab-
lishes that General Counsel has satisfied his burden that the
warnings of July 26 and September 6 resulted from his
Board actions. As Respondent has not sustained its burden
that it would have taken this action even in the absence of
Sherlock’s activities (after all, there had never been any prior
warnings regarding outside employment) I find that these
warnings and the institution of the rule, violate Section
8(a)(1) and (4) of the Act. That is not to say, of course, that
a union cannot prohibit its employees from maintaining out-
side business interests or other employment; however, when
a union institutes such a rule in retaliation for an employee’s
protected activities, such activity is proscribed by the Act.
The final allegation is that the warnings of June 20, Au-
gust 9, and September 26 were also in retaliation for his
Board actions; Respondent defends that they were solely the
result of his inadequate organizing activities. In support of
this defense, Carroll testified to six organizing campaigns by
the Union. However, only one of these campaigns clearly
took place between Sherlock’s reinstatement and the warn-
ings; the time of the other campaigns was not testified to.
Further, six organizing campaigns is not so inspiring when
one considers that Respondent employs 14 international rep-
resentatives and 2 full-time organizers. Additionally, Roberts,
Sherlock’s predecessor, was no more successful in orga-
nizing, yet he was never given any warnings for his defi-
ciency. Finally, I find particularly interesting that Carroll’s
first letter to Sherlock referring to his deficient organizing is
dated April 11, only 2 weeks after his reinstatement. Sher-
lock had been out for over a year; within 2 weeks after re-
turning, he is already being criticized for his work. All these
facts, together with the animus Respondent previously dis-
played toward Sherlock, establishes that the warnings were
motivated by his Board activity; I therefore find that they
violate Section 8(a)(1) and (4) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, United Garment Workers of America,
AFL–CIO is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. By instituting a rule prohibiting Sherlock from engaging
in outside employment, and threatening him with termination
because he engaged in such outside employment, and by is-
521GARMENT WORKERS
10 General Counsel’s unopposed motion to correct transcript (included in his
Br. dated March 22, 1990) is granted, with the exception that the third item
should read: ‘‘Page 322, Line 2.’’
11 In the event no exceptions are filed provided as by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order shall, as provided by Sec. 102.48 of the
Rules and Regulations, be adopted by the Board and become its findings, con-
clusions, and Order, and all objections thereto shall be deemed waived for all
purposes.
12 If this Order is enforced by a Judgment of a United States Court of Ap-
peals, 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.’’
suing warnings and a final warning to Sherlock, Respondent
discriminated against Sherlock for filing charges with the
Board, in violation of Section 8(a)(1) and (4) of the Act.
3. These unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it cease and desist there-
from and take certain affirmative action designed to effec-
tuate the policies of the Act. In this regard, Respondent shall
notify Sherlock that it is withdrawing and rescinding its
threats of termination dated July 26 and September 6, 1989,
as well as its warnings and ‘‘final warning’’ dated June 20,
August 9, and September 26, 1989, and will remove from its
files any reference to such threats and warnings and will no-
tify Sherlock of the removal and that these warnings and
threats will not be used as a basis for future action against
him. Additionally, Respondent will notify Sherlock that until
it establishes a lawful rule prohibiting outside employment
by its international representatives, it will take no action to
prohibit him from engaging in said employment.
Finally, as the international representatives employed by
Respondent are located throughout the United States and, ap-
parently, visit Respondent’s headquarters infrequently, the
usual posting of the notice will be ineffective in reaching
these employees. I shall therefore recommend that, in addi-
tion to posting the attached notice at its facility in Hermitage,
Tennessee, Respondent shall mail a copy of this notice to
each of its international representatives.
On these findings of fact and conclusions of law and on
the entire record,10 I issue the following recommended11
(first regarding the backpay case, Case 3–CA–14240, and
then the unfair labor practice case, Cases 3–CA–15120 and
3–CA–15207)
ORDER
The Respondent, United Garment Workers of America,
AFL–CIO, Hermitage, Tennessee, its officers, agents, and
representatives, shall pay to Sherlock and the Fund the
amounts set forth below, plus interest computed in accord-
ance with Florida Steel Corp., 231 NLRB 651 (1977), and
New Horizons for the Retarded, 283 NLRB 1173 (1987):
Warren A. Sherlock—$25,677.60; United Garment Workers
of America, Retirement and Severance Fund—$2,614.15.
IT IS FUTHER ORDERED that the Respondent, United Gar-
ment Workers of America, AFL–CIO, its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Instituting a rule prohibiting its employees from engag-
ing in outside employment and threatening its employees
with termination for engaging in such outside employment,
and issuing warnings and final warnings to its employees.
when such actions are in retaliation for their filing charges
with the Board.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Remove from its files any reference to the threats and
warnings issued to Sherlock and notify him in writing that
this has been done, and that evidence of this will not be used
as a basis for future action against him; and notify Sherlock
that at the present time, it has no rule against outside em-
ployment.
(b) Mail a copy of the attached notice to all international
representatives at their home addresses, and post it at its fa-
cility in Hermitage, Tennessee, copies of the attached notice
marked ‘‘Appendix.’’12 on forms provided by the Regional
Director for Region 3, after being signed by the Respond-
ent’s authorized representative, shall be posted by Respond-
ent immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that the no-
tices are not altered, defaced, or covered by any other mate-
rial.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.