Gary Co., Inc.

National Labor Relations Board - Board Decisions

May 25, 1967

164 N.L.R.B. 1026 (N.L.R.B. 1967)

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.