Gary Co., Inc.Download PDFNational Labor Relations Board - Board DecisionsMay 25, 1967164 N.L.R.B. 1026 (N.L.R.B. 1967) Copy Citation 1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gary Company, Inc. and Amalgamated Clothing Workers of America , AFL-CIO. Cases 26-CA-2376, 26-CA-2480, and 26-CA- 2480-2. May 25,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On March 3, 1967, Trial Examiner David S. Davidson issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal thereof. Thereafter, the Charging Party filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. Company, Inc. The complaint alleges that Respondent violated Section 8(a)(1) and (3) of the Act. This proceeding was heard before me in Gallatin, Tennessee, on October 13 and 14, 1966. At the close of the hearing, the parties waived oral argument and were given leave to file briefs, which all parties filed. In its answer, timely filed before the hearing, Respondent denied the commission of any unfair labor practices. However, at the outset of the hearing, Respondent amended its answer to admit the commission of all the violations alleged in the complaint except the allegations that an additional holiday was announced and granted in order to induce employees not to support the Union and that Marie Willis was discriminatorily discharged by Respondent on July 15, 1966. Upon the entire record in this case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Respondent, a Tennessee corporation, engages in the manufacture of shirts and blouses at its Gallatin, Tennessee, plant. During the 12-month period prior to the issuance of the complaint, Respondent manufactured, sold, and shipped products valued in excess of $50,000 from its Gallatin plant directly to points outside the State of Tennessee, and purchased and received goods and materials valued in excess of $50,000 at that plant directly from points outside the State of Tennessee. Respondent admits and I find that it is engaged in commerce within the meaning of the Act and that assertion of jurisdiction is warranted. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Clothing Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Gary Company, Inc., Gallatin, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Trial Examiner: Upon charges filed April 6 and July 7 and 20, 1966, by the Amalgamated Clothing Workers of America, AFL-CIO, referred to herein as the Union, the General Counsel issued a consolidated complaint against Respondent Gary III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Admitted Violations The following findings are all based on Respondent's admissions in its amended answer. Plant Manager Jack Roth, Assistant Plant Manager Walter McLean, Plant Engineer Richard Rothenberg, Cutting Room Foreman Jimmy Phillips, Final Assembly Department Supervisor Jerry L. Johns, Cuff Department Supervisor Mary Lou Hendrickson, Stitching Room Floorlady Peggy Ann Gregory, Pressing and Boxing Department Supervisor Melvin Lee Slatten, and Sleeving and Side-seam Floorlady Flossie Gregory are all agents of Respondent and supervisors within the meaning of the Act. On the dates parenthetically indicated, the following named supervisors and agents interrogated employees at the Gallatin plant concerning their union membership, activities, and desires: Jack Roth (February 18 and 22, 1966); Richard Rothenberg (February 23, 1966); Jimmy Phillips (February 17, 1966); Jerry L. Johns (February 16, 1966); Mary Lou Hendrickson (March 2, 1966); Peggy Ann 164 NLRB No. 154 GARY CO. 1027 Gregory (March 28, 1966); and Flossie Gregory (February 18,1966). On February 18, 1966, Plant Manager Jack Roth told Respondent's employees that Respondent knew how many employees had signed union authorization cards at a union meeting and on February 17, 1966, Supervisor Jerry L. Johns told employees that Respondent had observed them entering the building in which a union meeting was taking place, thereby creating the impression of surveillance of the employees' union activities. During March and April 1966, Plant Manager Roth, Assistant Plant Manager McLean, and Supervisors Phillips, Rothenberg, and Peggy Ann Gregory solicited Respondent's employees to withdraw their membership in and support for the Union. On or about March 30, 1966, Supervisor Slatten warned employees not to wear union buttons. On or about March 1, 1966, Supervisor Flossie Gregory threatened employees with discharge if they became or remained members of the Union or gave any support to it. On or about April 25, 1966, Plant Manager Roth told employees that wage increases would not be granted because of the employees' union activities. On or about March 8, 1966, Assistant Plant Manager McLean threatened employees with discharge if they became or remained members of the Union or gave any assistance or support to it. On or about May 31 and June 1, 1966, Respondent and the Union respectively entered into a settlement agreement in Case 26-CA-2376, which the Regional Director approved on June 6, 1966, providing in essence that Respondent would not engage in conduct such as that described above. On June 30, 1966, Plant Manager Roth threatened employees with loss of jobs for distributing union literature on company property. On the same date Roth instituted a no-solicitation rule banning distribution of union literature on company property at any time. On that date he also placed warning notices in the personnel files of certain employees for violating this rule. On the dates parenthetically indicated after their names, Plant Manager Roth (June 30 and July 1, 1966), Supervisor Slatten (July 1 and 15, 1966), and Assistant Plant Manager McLean (July 15, 1966) interrogated employees concerning their union membership, activities, and desires. On or about June 30, Plant Manager Roth threatened an employee with unspecified reprisals if she became or remained a member of the Union, or selected the Union as collective-bargaining representative. On or about July 1, 1966, Plant Manager Roth threatened an employee with loss of future employment if she became or remained a member of the Union or selected the Union as collective-bargaining representative. On or about the same date, Roth threatened an employee with discharge of certain of Respondent's employees if the Union were selected as collective-bargaining agent. The acts which were admitted to have occurred after execution of the settlement agreement in Case 26-CA-2376 are also admitted to have violated the terms of that agreement. In the light of the post-settlement conduct of Respondent, the Regional Director vacated and set aside the settlement agreement. Respondent admits and I find that by the conduct of Respondent's supervisors and agents set forth above, Respondent interfered with , restrained , and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act, and thereby violated Section 8(a)(1) of the Act. B. The Additional Holiday The complaint alleges as an independent violation of Section 8(a)(1) that on or about May 23, 1966, Respondent announced that an additional holiday would be given to employees on May 30, and that the additional holiday was given to them in order to induce them to refrain from supporting the Union Respondent admits the announcement and grant of the holiday but denies that these actions were taken in order to induce employees to refrain from supporting the Union. The circumstances surrounding the announcement and grant of the holiday were not developed at the hearing, although it is clear from the violations admitted by Respondent and the record that it occurred during the period of time in which Respondent engaged in other extensive acts of interference and when the Union's organizing campaign was in progress. In the absence of any explanation for the timing of the announcement and the grant of the holiday, I find the evidence sufficient to support the inference that the holiday was announced and granted to induce the employees to refrain from supporting the Union, thereby violating Section 8(a)(1) of the Act. Iowa Pork Company, Inc., 148 NLRB 1242, 1256. C. The Discharge of Marie Willis 1. Introduction The union campaign at the plant started in the late summer of 1965. In January the Union held small organizational meetings of the employees and additional union meetings were held in February and March. From time to time thereafter, the union organizers held small meetings in their apartment. The Union's first communication to the Company was sent in April or early May. The Union petitioned for a representation election which was scheduled to be held around July 15 but was posponed after the Union filed additional charges on July 7, 1966. Insofar as the record shows, the election was never held. Marie Willis was employed as a presser in the pressing department of the plant where she had worked for approximately 4 years. In mid-April she took a leave of absence to have major abdominal surgery performed. She returned to work about 1 week before the plant shut down for a 1-week vacation on July 1. She worked 1 week after the shutdown and was discharged on July 15 for the stated reason that she started a fight with another employee, Odessa Posten. Marie Willis actively supported organization of the plant by the Union. She signed an authorization card for the Union in February and solicited the signatures of about 15 other employees. She distributed literature in the plant at lunch and before work and engaged in other union activities away from the plant. Willis' union adherence concededly became known to at least three of Respondent's supervisors during the course of the events which led up to her discharge, and her immediate 298-668 0-69-66 1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisor, Slatten, had reason to believe that she was supporting the Union some months earlier.' Insofar as the record shows, Willis' work record was good. There is no evidence of prior disciplinary action against her. However, she conceded that she had once been arrested for fighting in public and forfeited collateral rather than stand trial. She denied that she ever engaged in fighting or pushing incidents in the plant during her 5 years of employment. Odessa Posten, like Willis, was a presser employed in the same department a few stations away from Willis. Posten attended one union meeting and signed an authorization card although she asked the union organizer not to tell others that she had done so. She did not tell any supervisor about her union activities. Respondent's supervisors denied any knowledge of Posten's position with respect to the Union. In order to understand and evaluate the testimony to the critical events of July 15, a brief description of the plant is necessary. The pressing department is in a rather large room with 100 or more employees located at the northeast portion of the plant. It is partitioned off from the rest of the plant. On the south wall of the room there is a doorway, from which at the time the doors were removed,2 leading into the shipping department where stock is stored in bins from which shipments are made. There is an open space in the middle of the pressing department forming an aisle which runs north and south to the doorway and continues through the shipping department south to the shipping office. In the shipping department there are storage bins on either side of this aisle. At the north end of the shipping department, there is another aisle, about 20 feet wide running east and west which runs west through another open doorway into the sewing room and on toward the plant offices. The water fountain is located in the sewing department outside the doorway from the shipping department along the south wall of the east-west aisle. Near the fountain is the entrance to the lunchroom or cafeteria which is also on the south side of the aisle 2. Credibility A number of witnesses testified with respect to the critical events of July 15 which preceded Willis' discharge. The chief protagonists in these events were Willis and Posten, whose testimony is in sharp conflict. Neither Willis nor Posten impressed me as entirely truthful in their testimony. Both displayed strong feelings about the incidents to which they testified and the rectitude of the side they were supporting by their testimony. Willis, of course, the dischargee, had an obvious direct interest in the outcome of the proceeding, but Posten appeared no less partisan. Whether consciously or unconsciously, each in her testimony sought to convey that she was a blameless victim and that the other was entirely at fault in all that happened This can be seen rather clearly in their respective testimony concerning what each said to the other in the course of the argument between them during the afternoon. Some of the other witnesses also had identifiable interests which appeared to color their testimony. Thus, Slatten, Rothenberg,3 McLean, and Roth were supervisors and members of management with interest in the outcome of this proceeding. They displayed varying degrees of lack of candor in their testimony with respect to their awareness of what the argument between Willis and Posten was about and what they reported to Plant Manager Roth concerning the argument, as set forth in more detail 'below. Fay Lillard, whose testimony constituted the main support for Willis' version of the events, is Willis' daughter whose interests were clearly aligned with those of her mother. Mary Smith, an employee, who supported Posten's version, displayed considerable partisanship in her vehement insistence that she went to Roth's office in the late afternoon on July 15 to give a sworn statement voluntarily and without being asked. Apart from these bases for a skeptical approach to much of the testimony, there are numerous inconsistencies between the testimony of the various witnesses as to the position of the principals at the critical times. Also some of the witnesses, when asked to supply details to support more general testimony, were unable to comply. Some of their testimony may merely reflect the frequently encountered inability of witnesses accurately to observe and later recall details of unexpected events, the importance of which becomes evident only at some later time; some reflects more fundamental defects. I have concluded in the light of the above, as well as the reasons set forth in connection with specific findings made below, that none of the testimony of the principal witnesses is to be credited in its entirety and that the following are the facts as nearly as they can be determined. 3. The warning to Willis about "slurring" Posten On the morning of July 15, both Willis and Posten were at work. Sometime during the morning Posten heard from other employees that Willis was telling other employees that Posten had told Plant Manager Roth that she was for the Union.' Posten denied that it was true, became upset, and asked an inspector, Opal Dowell, to call their supervisor, Slatten. Slatten came to her work station and asked her what was wrong. Posten told him that Willis was telling employees lies to the effect that Posten had told Roth that Posten was for the Union. Posten asked Slatten i Although Respondent's supervisors all denied knowledge of Willis' union activities until the day of her discharge , both Willis and employee Naomi Love testified that on March 30, Willis asked Slatten if she could wear a pin for the Union in view of the fact that another employee was wearing a pin against the Union. If this incident occurred , Slatten had reason to believe from Willis' question that Willis supported the Union . Slatten denied that the incident occurred While there is a slight variance between Willis' testimony and a statement she gave during the investigation of this case with respect to the words spoken in her conversation with Slatten , it is not substantial, and her testimony is corroborated by that of Love I note also that Respondent has admitted the allegation in paragraph 10 of the complaint that on or about March 30, Slatten warned employees not to wear union buttons Although , as indicated below, I have not credited or discredited the testimony of either Willis or Slatten in its entirety, in this instance I credit Willis and Love and discredit Slatten 3 From the testimony, it appears that there is room for a double door at this doorway but its width is not indicated 3 Rothenberg is the son of Plant Manager Roth. 4 On July 9 , Posten and Willis had an extended conversation about the Union away from the plant. Their testimony with respect to this conversation is in sharp conflict However , neither testified that Posten then or at any other time told Willis that Posten had told Roth she was for the Union . I find it unnecessary to resolve the conflict as to this conversation. GARY CO. to make Willis leave her alone.-, Slatten went to the phone and called Assistant Plant Manager McLean out of the office.6 McLean came back to the pressing department, asked Slatten what the trouble was, and they - went together to Willis' work station. McLean told Willis that she was causing a disturbance in the plant that morning and they would _like to get it settled. Willis asked for details. McLean said that Posten had said that Willis had said that Posten was for the Union and signed a card and that four different people had come to Posten and told her that Willis had made that statement that morning Willis denied the statements attributed to her and stated that she did not even know whether Posten had signed a union card . McLean told her that he was not going to tell her not to talk union on her own time, but to be sure that she did not slur anybody about the Union on her own time or on company time.7 4. The altercation between Willis and Posten Between 2 and 3 o'clock that afternoon, Willis left her S I credit Posten who so testified as to what she told Slatten Slatten testified that Posten told him that Willis had been telling lies about her being for the Union , but did not say exactly what the lies were . According to employee Leavie Calvert who worked beside Posten , Posten told both Dowell and Slatten that if Willis did not stop telling lies about her, she was going to "beat her to death or something like that ." Posten and Dowell denied that Posten said this , and Slatten was not asked about it but did not mention it in his version of the conversation Although Posten was clearly upset and it is not likely that any witness ' recollection of what was said was completely accurate , I am not satisfied that Calvert 's recollection was more accurate than that of the other witnesses. I find that Posten did not threaten to beat Willis at this time 0 Slatten testified that he considered Posten 's complaint major at the time and important enough to call McLean because the union organizing campaign was going on t The versions of this converation given by Slatten and McLean are considerably more brief and restrained than that of Willis and indicate considerable editing by them I find implausible on its face McLean 's assertion that he went to talk to Willis about what Slatten considered a major incident concerning lies allegedly told by Willis about Posten and the Union without first asking Slatten what the lies were and how he had learned of them , particularly in the light of Respondent 's other antiunion activities in which McLean, the assistant plant manager , was an admitted participant , including admitted interrogation by McLean on July 15 . Equally implausible in the light of these circumstances, and indicative of McLean 's lack of candor , is the hypothetical nature of the warning which McLean testified that he gave to Willis and which is not supported even by Slatten 's testimony I have concluded that Willis' version of this incident is the most accurate of the three, and credit her testimony that McLean told her the nature of the lies which Posten attributed to her and warned her against slurring any employees about the Union at any time . However , I do not credit her further testimony that after McLean told her that he would not tell her to not talk about the Union on her own time, McLean added that he wished she would clock out if she was going to talk unionism at all I also do not credit Willis ' testimony , contrary to that of McLean, Slatten, and Posten, that after Slatten and McLean left her work station, she saw them go to Posten 's work station There is no evident reason why McLean , Slatten, and Posten should have concealed this fact if it were true, and Willis did not ordinarily face in Posten's direction when she worked 8 Although Posten testified, contrary to Willis, that Willis initiated the argument, Posten conceded that Willis preceded her out of the pressing department According to Posten , while they were walking toward the shipping department , Willis suddenly 1029 work station to go to the drinking fountain. On her way down the aisle in the pressing department, she passed the unit where Posten was working Posten left her unit and followed Willis. Posten called to Willis who turned, and Posten said they were going to settle "this thing" once and for all.8 The two women proceeded to the shipping department, arguing as they went. In the shipping department they paused, perhaps only briefly, and continued their argument standing face to face." Smith and Parker approached from the pressing department and stopped to observe Willis and Posten. Lillard who had gone to the boxing area, was attracted by the argument and also stopped to see what was going on. Rothenberg approached up the aisle of the shipping department from the shipping office, and Slatten approached from the direction of the sewing department and plant offices.10 As Rothenberg and Slatten arrived at the scene, Willis pushed Posten.ii Rothenberg or Slatten asked Willis and Posten to go into the cafeteria with them to settle the dispute, and on the way to the cafeteria wheeled around and asked Posten either where she was going (on direct examination) or if she was following Willis (on cross- examination ). According to Posten , until Willis turned, she did not know Willis was in front of her Plausibility heavily favors Willis' testimony in this instance and I credit her in this regard 0 The exact location at which they stood and their relative positions is the subject of considerable variation in the testimony. The predominant testimony which I credit places them inside the shipping department , west of the doorway to the pressing department in the aisle toward the sewing department, with Posten standing with her back toward the doorway to the sewing department and Willis facing her. 10 According to Willis, Slatten arrived pursuant to a call from Posten, and Slatten in turn called Parker to the scene However, Lillard's testimony is consistent with that of Smith, Parker, and Slatten that they arrived independently and not in the order claimed by Willis u Willis denied that she pushed Posten, and Lillard who appears to have been present at the critical moment , testified that she did not see her mother push Posten Two other witnesses were called by the General Counsel to testify with respect to this incident . One, Sheila Thompson , was not asked directly whether she saw Willis push Posten, but in describing what she saw, did not mention any pushing However , Thompson 's observation was limited to when she passed the scene on her way to and from the drinking fountain, and she does not appear to have been present the whole time that Willis and Posten stood in the shipping department . In addition , in at least two respects, her observations appear to have been inaccurate (where Posten and Willis stood and where Parker went when the others went to the cafeteria). The General Counsel's other witness, Brazeal , concededly did not see Willis and Posten until after they entered the sewing department on their way to the lunchroom Another employee, Ruby Deering, was identified by Willis as present at the scene of the incident but was not called as a witness by either side It is true that there is reason to believe that two of Respondent's witnesses did not observe the incident as they described it (Coker, whose version differs from all others, and Brown, who testified that he saw the incident in the pressing department ) Also Parker testified that she did not see the incident , and as I have indicated above, the partisan coloring of the testimony of Smith, Slatten , and Rothenberg , as well as the conflict between Rothenberg and Slatten as to the direction in which the two women were facing, raises doubts as to their testimony that Willis pushed Posten But I am not convinced that their testimony along with that of Posten and Gregory , all of whom were in a position to observe, is the product of conspiratorial fabrication or after-the- fact suggestion Accordingly, I credit them in this regard and find that Willis pushed Posten. 1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rothenberg told another employee to call McLean to the cafeteria. 12 Posten, Willis, Slatten, and Rothenberg entered the cafeteria followed by Parker, Giles Leggett,13 and Smith. 14 Another employee, Elnora Jackson, was cleaning up in the cafeteria when they entered. The argument between Willis and Posten continued. Willis again pushed Posten and slapped at her, hitting her on the arm or hand. Posten raised her hand and attempted to strike back. At this point, Rothenberg stepped between them, blocked the blow, and he and Slatten separated the two women.15 At this point, McLean entered the cafeteria. After determining that Smith, Parker, Jackson, and Leggett had no part in the argument in progress, McLean sent them from the room, and asked Willis and Posten what the trouble was. Posten told McLean that Willis was telling lies about Posten and the Union.is McLean told them to stop their arguing and go back to work. Posten left the room, but before Willis left, she talked further with McLean, telling him, among other things, that she wus going to serve as an observer for the Union in the election.'' After Posten and Willis had both left the cafeteria, Rothenberg mentioned for the first time to McLean that 12 Willis and Lillard testified that while in the shipping room Slatten said that the only thing he knew to tell them was to fight it out right there Slatten , Posten , and Rothenberg denied that this statement was made, and no other witness testified that he heard it In the light of the physical circumstances as I have found them and the probability favoring Slatten's denial , I find that the statement was not made 13 Although Leggett , another employee , apparently witnessed the critical events in the aisle and the cafeteria , he was not called as a witness by either side 19 Smith did not enter the cafeteria but stood at the door looking in i5 This version of the incident with minor variations was testified to by Posten , Smith, Jackson , Slatten, and Rothenberg Willis testified that before any blows were struck Slatten said, as she testified he had earlier , that the only way he knew for them to settle their argument was to fight it out . According to Willis, Posten then struck at her, but Rothenberg intercepted the blow, and no further blows were struck . Although I am mindful of the fact that Willis had only recently returned to work after major surgery which was performed some 3 months earlier, I have concluded that Willis ' testimony cannot be credited in the face of the substantial and essentially consistent testimony to the contrary , including that of Parker and Jackson . Parker's testimony that she did not see the earlier pushing incident indicates that she conscientiously sought to limit her testimony to what she was certain she observed . Both she and Jackson impressed me as truthful witnesses I do not credit Willis as to this incident or as to Slatten 's alleged provocative remark. I have considered in this regard the testimony of Leavie Calvert, denied by Posten , that Posten told her, after returning from the cafeteria, that she had slapped Marie and guessed that she would be fired. It is conceded that no member of supervision mentioned pushing or hitting before Posten was sent back to work from the cafeteria, and there appears to have been no reason for Posten to have been apprehensive On the basis of my impression of Calvert and the witnesses who were present in the cafeteria I have concluded that Posten did not make the admission attributed to her by Calvert 18 Willis ' version of what she and Posten told McLean is much more detailed than that of Posten, Slatten, Rothenberg, and McLean . All four witnesses appeared to color this portion of their there had been fighting between the two women. McLean told Rothenberg that they had better go see Plant Manager Roth. He sent Slatten back to work and he and Rothenberg went to Roth's office. 5. The discharge of Willis Upon entering Roth's office, Rothenberg told him there had been a fight. Roth asked Rothenberg to tell him what had happened, and Rothenberg proceeded to relateithat he had seen Willis push Posten in the shipping room,ithat he saw Willis push and swing at Posten in the lunchroom and that Posten had swung back in self-defense. Roth asked who else had seen the fight and Rothenberg told him that Slatten had. Rothenberg left and Roth called Slatten to his office. He asked Slatten if he had been present when some blows had been struck. Slatten said he had and told Roth basically the same story that Rothenberg had. Roth sent Slatten back to work and placed a call to Respondent's Attorney Morris. Unable to reach Morris he asked to talk to another member of the law firm who could not be reached.18 Roth and McLean then discussed the matter and they decided to discharge Willis, according to them, because it was their policy always to discharge anyone testimony , and I am satisfied that the truth lies somewhere between the versions given by the witnesses Nonetheless, I am persuaded that Willis is to be credited that the nature of the argument between the two women was aired before McLean and that Willis, as Posten also testified , stated her support for the Union. it All witnesses agree that this much was said and that nothing was said about the physical encounter between Willis and Posten between the time that McLean entered the cafeteria and the time that Willis left. According to McLean , Rothenberg , and Slatten, Willis started to leave but turned back on her own initiative to make this comment to which McLean responded that it was of no concern to him According to Willis, McLean caused her to remain after Posten left by telling her that if she brought charges against Respondent , she should be sure they were true According to her, McLean continued to tell her his view of the reason the election was postponed . She also testified that at one point, Slatten said that they might as well discharge her because of the confusion she had caused in the plant since returning from leave by talking union in the plant. Slatten denied making such a statement. In a statement given to the General Counsel during the investigation of the charges , Willis attributed to Plant Manager Roth on another occasion some of the statements which she attributed in her testimony to McLean on this occasion While I am not convinced of the accuracy of any of the versions of what was said while Willis remained in the cafeteria, I find as much cause to doubt the accuracy of Willis' version as that of the other witnesses , and I do not credit it 11 McLean testified that because of the union activity , the point had been reached where they were afraid to move because any action might be blown up into something . Therefore , according to McLean, they made a point when they had an incident of any kind to check with their lawyer to let him put it on the record He testified that they had made "a million calls" to him and that it did not matter who the incident involved Roth testified that he tried to reach his attorney "because while we have a policy, and fortunately we have not had to use this policy very often, of immediately dismissing any person who resorts to physical violence, we had been undergoing the union campaign and I just did not want to make a move until I could clear it with [the attorney] " GARY CO. 1031 who struck a blow at another.19 Roth made out a separation notice and had Willis' check prepared. Just about quitting time he told Slatten to send Willis to the office. A few minutes later Slatten came in and reported that Willis had said she could not come because she had a taxi waiting.20 Roth told Slatten to tell Willis that he must see her before she left. Slatten came back with Willis. Roth told Willis that he understood that she had started a fight and that he would have to let her go. Willis denied the charge, but Roth told her that he had reports that she started it,21 and that he was going to give her a separation slip because of it. Upon learning the contents of the separation slip, Willis told Roth that it was a "dirty" slip and that she did not want to take it 22 Roth told her that she could take the slip as it was or leave it . Willis took the slip and her termination check and left.23 6. Concluding findings As indicated McLean and Roth testified that they discharged Willis solely because it was company policy to discharge anyone who struck the first blow in a fight.24 If Roth, McLean, Rothenberg, and Slatten are to be believed, Roth was not told about the nature of the argument between Willis and Posten or about Willis' union activities until after Willis was discharged and Roth could not have based his decision on her union activities. But their testimony in this regard so taxes credulity that I cannot accept it Even if Roth had not unsuccessfully tried to call his lawyer for advice before discharging Willis, one would think that Roth's questions about what had happened would necessarily have been answered with a description of the argument as well as the physical encounter. If Roth and McLean, both of whom struck me as bright perceptive men, were so sensitive to the possibility that any little thing might be blown up because of the union organizing campaign, it would seem that whether or not Roth intended to call his lawyer, Roth would have inquired and McLean would have indeed volunteered that this incident was a likely candidate for blowing up because of the nature of the argument and Willis' self-proclaimed union sympathies. But particularly as Roth did try to call his lawyer, I cannot believe that he placed the call without knowing the answer to the question his lawyer was certain to ask,-an answer which McLean, Rothenberg, and Slatten all knew. I do not accept their testimony in this regard, and I am certain that none of these witnesses was candid in disclosing their communications among themselves relative to the discharge. Nonetheless, the question remains whether the evidence preponderates in favor of finding that Willis' activities were the true reason for her discharge. For even though Willis' union activities were known to Respondent, it does not follow therefrom that Willis' union activities rather than her misconduct caused her discharge. There is considerable basis in this case to view skeptically Respondent ' s assertions that the altercation was the cause of Willis' discharge. Respondent's admitted unfair labor practices, including threats of discharge by McLean and Roth, which continued even after Respondent executed a settlement agreement, supply substantial evidence of union animus. The course of events on July 15 which culminated in Willis' discharge, also demonstrates disparate treatment by Respondent of employee union activities. When Posten complained that Willis was lying about her, no effort was made by Slatten or McLean to determine whether Posten's complaint was justified or whether Willis had been engaging in union activities during working time. Both went immediately to Willis and told her to stop slurring Posten. As I have found above, both were aware that Posten's upset was caused by her belief that Willis was telling other employees that Posten was supporting the Union, and Slatten even before this had reason to believe that Willis was supporting the Union. Despite the fact that there is no evidence that Willis engaged in union activities on working time, she was warned not to lie about other employees at any time, which in context was a warning to her that she might be disciplined because of what she said at any time about the activities of other employees on behalf of the Union. On the other hand, Posten was never warned, either at this time or later in the day, that disputes over union activities were not properly carried on during working time. Although Willis denied the accusation made by Posten, neither McLean nor Slatten made any effort to determine whether it was in fact Posten who was slurring Willis, nor did they warn Posten against slurring other employees. 11 McLean, Rothenberg , and Roth all testified that Roth was not told until after Willis was discharged what she had said in the lunchroom relating to her union activities They also testified that neither Rothenberg or Slatten , in describing the fight , told Roth what Willis and Posten were arguing about or what either of them said during the argument , and that Roth did not ask Roth testified that at the time of the discharge he did not know how either Willis or Posten stood with respect to the Union Roth testified that as far as he was concerned the fight "didn't concern, or shouldn ' t pertain at all to a matter of unionism" and he decided, without waiting to talk to his attorney , to let Willis go because she was the instigator and had used physical violence 20 Willis offered a somewhat different and less convincing explanation for her delay in coming to the office I credit McLean and Slatten in this regard Si Conflicts in testimony as to the number and source of reports are not material , but the circumstances indicate that Willis' testimony in this regard is less accurate than that of Slatten and McLean 22 The slip stated as the cause of separation , "started a fight with another girl " 23 The testimony of Willis concerning her discharge interview is in conflict with that of Roth, McLean , Rothenberg , and Slatten in only one significant respect According to Respondent's witnesses , Willis' protest about the contents of the separation slip was made in conjunction with a question about drawing unemployment compensation during the course of which, according to Roth and McLean , Willis indicated that she had no objection to being fired as long as the slip was changed so that she could draw unemployment compensation Slatten's testimony is closer to that of Willis that she asked for a "clean " separation slip without indicating that she would acquiesce in the discharge if the slip were changed Upon consideration of his testimony as well as the undisputed fact that she denied having started a fight, I find that she did not state that she did not mind being fired if Roth changed the separation slip. I find it unnecessary to decide whether, as Willis also testified before leaving Roth's office, she accused Slatten of causing her discharge because he had it in for her ever since she told him she was for the Union Even if her testimony were true , Slatten denied her accusation , and nothing was said which could be construed as a concession that her charge against Slatten was valid 24 Roth cited prior discharges as evidence of the existence of this policy One involved an altercation between an employee and a supervisor and is not in point However , there was no evidence offered to show Respondent did not follow a policy such as Roth described 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While these factors support the complaint, however, others cast doubt on its allegation. Willis was discharged shortly after a physical altercation in which I have found that Willis was the aggressor.25 The decision to discharge Willis was not made, as the General Counsel and the Charging Party contend, without any investigation. Roth and McLean had reports from two eye witnesses, and although those reports necessarily could not have included what had happened before Slatten and Rothenberg arrived on the scene, they established that however hazy the beginning of the incident in the shipping department, it was Willis who was the aggressor when the shoving resumed in the lunchroom after it had been stopped in the shipping department Although Posten was never reprimanded for her role in the matter, her offense in starting an argument over union activities during working time was distinguishable from that of Willis, and it is not clear that in their later investigation of the incident Roth and McLean became aware that she had started the argument.26 There is no evidence to refute the testimony of Roth that Willis' resort to force was considered a dischargeable offense, nor is such an offense so borderline that there is reason to doubt that it would be so viewed In sum, while there is cause to suspect that Willis' union activities entered into the decision to discharge her and resolution of the issue is far from clear, I am of the view that in these circumstances the doubt must be resolved in favor of Respondent. Accordingly, I find that Respondent did not violate Section 8(a)(3) of the Act by discharging Marie Willis. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent violated Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent engaged in substantial infringement of employee rights, I am of the opinion that there exists a danger of commission of other and further unfair labor practices. Accordingly, I recommend that Respondent be ordered to cease and desist from infringing in any other manner the rights guaranteed by Section 7 of the Act. Upon the basis of the above findings of fact and the entire record in these cases, I make the following: CONCLUSIONS OF LAW 1. Respondent , Gary Company, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Amalgamated Clothing Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating employees at Respondent's Gallatin. Tennessee , plant concerning their union membership , activities , and desires ; creating the impression that the activities of the employees were under surveillance by Respondent ; soliciting employees to withdraw their membership and support from the Union; warning employees not to wear union buttons; threatening employees with discharge or other reprisals if they became or remained members of the Union or gave it support; telling employees that wage increases would not be granted because of their union activities; threatening employees with discharge for distributing union literature on company property ; instituting a no-solicitation rule barring distribution of union literature on company property at any time ; and announcing and granting additional holiday benefits in order to induce employees to refrain from supporting the Union, as found above, the Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a)(1) and Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and pursuant to Section 10(c) of the Act, I hereby recommend that Respondent, Gary Company, Inc , Gallatin , Tennessee , its officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Interrogating employees concerning union affiliation , activities , sympathies , or desires , in a manner constituting interference , restraint , or coercion in violation of Section 8(a)(1) of the Act. (b) Conveying to employees the impression that their union activities are under surveillance. (c) Soliciting employees to withdraw their membership and support from the Union. (d) Warning employees not to wear union buttons. (e) Threatening employees with discharge , loss of benefits , or other reprisals as a consequence of union activities or support or the selection of a union as their bargaining representative. (f) Prohibiting employees from distributing union literature on company property during nonworking time in nonworking areas or disciplining employees or threatening to discipline them for engaging in such distributions. (g) Promising , announcing , or granting, additional holidays or any other benefits to induce employees to refrain from union activity or support. (h) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities. 25 No contention is made that her conduct was protected concerted activity 26 Roth testified that Respondent did not discipline employees for starting arguments Posten's offense, however, was not that she simply started an argument but that she started an argument about the Union during working time GARY CO. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its Gallatin, Tennessee, place of business, copies of the attached notice marked "Appendix."27 Copies of said notice, to be furnished by the Regional Director for Region 26, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 26, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.28 2' In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 28 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read- "Notify said Regional Director , in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith "' APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate employees concerning union affiliation, activities, desires, or sympathies, in a manner constituting interference, restraint, or coercion in violation of Section 8(a)(1) of the Act. WE WILL NOT convey to employees the impression that their union activities are under surveillance. WE WILL NOT solicit employees to withdraw their membership and support from the Union 1033 WE WILL NOT warn employees not to wear union buttons. WE WILL NOT threaten employees with discharge, loss of benefits, or other reprisals as a consequence of union activities or support or the selection of a union to represent them for purposes of collective bargaining. WE WILL NOT prohibit employees from distributing union literature on company property, on nonworking time and in nonworking areas, nor will we discipline employees or threaten employees with discipline for engaging in such activity. WE WILL remove from the personnel files of employees any warning notices given to employees for distributing union literature on company property during nonworking time and in nonworking areas. WE WILL NOT promise, announce, or grant additional holidays or any other benefits to induce employees to refrain from union activity or support. WE WILL NOT in any other manner, interfere with, restrain, or coerce our employees in the exercise of the rights to self-organization, to form labor organizations, to join or assist Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. Dated By GARY COMPANY, INC. (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 534-3161. Copy with citationCopy as parenthetical citation