Hanes Corp.

National Labor Relations Board - Board Decisions

Dec 12, 1967

168 N.L.R.B. 856 (N.L.R.B. 1967)

856 DECISIONS OF NATIONAL
Hanes Hosiery Division , Hanes Corporation and
Bernice Mahe , Bertha B. Dillion , Lila Rushing,
Mary S. Allen, and David Kenneth Brown. Cases
11-CA-3290-1, 3290-2, 3290-3, 3290-4, and
3290-5
December 12, 1967
DECISION AND ORDER
BY MEMBERS FANNING, J ENKINS, AND ZAGORIA
On September 26, 1967, Trial Examiner William
J. Brown issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices, and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. He also found that the Respondent had not en-
gaged in certain other unfair labor paractices al-
leged in the complaint and recommended that those
allegations be dismissed. Thereafter, the Respond-
ent filed exceptions to the Trial Examiner's Deci-
sion and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
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 recommenda-
tions of the Trial Examiner, as herein modified.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent,
Hanes Hosiery Division, Hanes Corporation, Win-
ston-Salem, North Carolina, its officers, agents,
successors, and assigns, shall take the actions set
forth in the Trial Examiner's Recommended Order,
as so modified:
1. Substitute the words "on forms provided" for
the words "to be furnished" in paragraph 2(d) of the
Trial Examiner's Recommended Order.
2. Substitute Notice to All Employees, attached
hereto as Appendix, for the one attached to the
Trial Examiner's Decision.
LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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:
After a trial in which both sides had the opportu-
nity to present their evidence, the National Labor
Relations Board has found that we violated the Act
and has ordered us to post this notice and to keep
our word about what we say in this notice.
Because the Board found that we violated
the law when we discharged David Kenneth
Brown for participating in and leading the work
stoppage of March 22, 1967, WE WILL offer him
his old job back and give him backpay.
WE WILL NOT again discharge anyone for en-
gaging in such an activity.
WE WILL NOT in any manner interfere with,
restrain, or coerce you in your right to engage
in concerted activities for the purpose of your
mutual aid or protection.
WE WILL notify David Kenneth Brown if he
is presently serving in the Armed Forces of the
United States of his right to full reinstatement
upon application in accordance with the Selec-
tive Service Act and the Universal Military
Training and Service Act, as amended, after
discharge from the Armed Forces.
You are all free to engage in concerted activity
for your mutual aid or protection so long as you do
not violate lawful regulations of the Company.
HANES HOSIERY DIVI-
SION, HANES CORPORA-
TION
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
No other material relative to this matter shall be
posted during this period.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 16th Floor, Wachovia Building, 301 North
Main Street, Winston-Salem, North Carolina
27101, Telephone 723-2911.
TRIAL EXAMINER 'S DECISION
WILLIAM J. BROWN , Trial Examiner : This proceeding
under Section 10 (b) of the National Labor Relations Act,
as amended, hereinafter referred to as the "Act," came on
168 NLRB No. 111
HANES HOISERY DIVISION
to be heard at Winston-Salem, North Caroliana, on June
27, 1967.1 The original charges of unfair labor practices
were filed on April 12. The complaint herein was issued
May 12 by the General Counsel of the National Labor
Relations Board, hereinafter called the "General Coun-
sel" and the "Board," acting through the Board's Re-
gional Director for Region 11. It alleged, in addition to ju-
risdictional matter, that the above-indicated Respondent,
hereinafter sometimes called the "Company," engaged in
unfair labor practices defined in Section 8(a)(1) of the
Act. The Company's duly filed answer denies the com-
mission of the unfair labor practices alleged.
At the hearing the General Counsel and the Company
appeared and participated as noted above with full oppor-
tunity to present evidence and argument on the issues. At
the conclusion of the testimony they argued on the record
in support of their positions on the issues.2 On the entire
record herein and on the basis of my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT COMPANY
The pleadings and evidence indicate and I find that the
Company is a North Carolina corporation engaged at the
Winston-Salem plant here involved in the manufacture of
hoisery products. During the 12-month period preceding
issuance of the complaint, a representative period, the
Company produced and shipped from the Winston-Salem
plant to points outside North Carolina goods valued in
excess of $50,000; during the same period the Company
received at that plant goods and raw materials valued in
excess of $50,000 and shipped thence directly from
points outside the State of North Carolina. On the basis
of the foregoing I find, notwithstanding the Company's
denial, that it is an employer engaged in commerce within
the purview of Section 2(6) and (7) of the Act.
II. THE UNFAIR LABOR PRACTICES
This case concerns events occuring in the Company's
shipping department in the period March 22 to 30. The
shipping department consists of some 40 employees in-
cluding shipping clerks, apparently females, and packer-
casers, apparently males; they work directly under the su-
pervision of Foreman James Ashburn who in turn reports
to Gary Kimball, superintendent of the department. The
supervisory status of Kimball and Ashburn is established
by the pleadings and evidence . Shipping department em-
ployees work Monday through Friday on a 6:50 a.m. to
3:20 p.m. schedule with occasional break periods. There
Dates hereinafter relate to the year 1967 unless otherwise indicated.
a The complaint alleged, and the answer denied, that the five Charging
Parties were discharged on March 28 and 30 because they engaged in
concerted activities with others for the purpose of collective bargaining
and other mutual aid and protection and that thereby the Company en-
gaged in unfair labor practices defined in Section 8(a)(1) of the Act At the
outset of the hearing the Company's attorney stated that the Company
had concluded that Mmes Mabe, Dillon, Rushing, and Allen had not en-
gaged in conduct warranting refusal of employment and that it would not
contest their cases and would offer them reemployment with backpay
computed under applicable Board standards At the conclusion of the
hearing, General Counsel's motion for directed verdict as to the four
ladies having been withdrawn, the Trial Examiner stated that no findings
would be made with respect to them unless additional matter were brought
to his attention No such information having been received by August 9,
857
is no plant rule requiring employees to secure supervisory
permission to leave their work stations. About 9 a.m. on
March 22 there was a discussion among casers at their
work stations concerning their need for higher pay; casers
Charles Towell and David Kenneth "Kenny" Brown as-
sumed the task of securing support among the shipping
clerks for a sitdown of the department in support of a de-
mand for more money and more help, with Kenny Brown
apparently doing the bulk of the soliciting of support of
the female shipping clerks. As a result of the efforts of
Towell and Brown some 35-40 employees left their work
stations about 10 o'clock and gathered in the breakroom
next to the shipping department, where some sat on
benches and the rest stood around. Foreman Ashburn ap-
pears to have been the first representative of management
to learn of the gathering; he testified that he asked the
group what the matter was and that Kenny Brown replied
that the employees wanted more money and more help.
Ashburn further testified that he ordered the group to
return to work and said he would discuss their grievances
with them individually, whereupon Kenny Brown said
that the group would not return to work until they saw
Plant Superintendent Wagner. Ashburn went and enlisted
the support of Kimball who again urged the employees to
return to work and was again met with the demand from
Brown and Towell to talk with someone higher in authori-
ty. Eventually the employees returned to work about
10:30 upon the commitment of Kimball to have someone
higher in authority available to talk to them at 2 p.m. and
the threat by Kenny Brown to sit down again at that time.
While there is some conflict in the testimony on the
matter, I credit the testimony of Kimball that Kenny
Brown did most of the talking during the sitdown discus-
sion and appeared to the management representatives to
be the leader of the sitdown movement.
Prior to 2 o'clock, however, employees were called, in
three separate groups, into the personnel conference
room where Personnel Manager Claude Frederick asked
employees to state their problems and made a list of their
responses. Frederick rebuked the groups for their morn-
ing sitdown and advised them that it was not the right way
to correct problems.
On March 28 Mmes. Mabe, Dillon, Rushing, and Allen
were discharged by Frederick on the recommendation of
Kimball who explained that he wanted them discharged
because of their attitude and conduct.3 Rushing testified
and it was stipulated that the three other female em-
ployees involved would corroborate her testimony, that
Kimball, who did not dispute this testimony, stated in the
course of the discharge interviews that participation in
the sitdown had nothing to do with their terminations. She
also testified credibly and without contradiction that both
the Trial Examiner issued an order requiring the General Counsel to show
cause why the complaint should not be dismissed as to them On August
15, the General Counsel responded that while reinstatement had been of-
fered (and accepted by Dillion, Rushing, and Allen) there had been no
offer to make whole with backpay. On August 19 the Company explained
that the failure to make whole was due to misunderstanding with the Re-
gional Office and that backpay would be computed and paid within the
next few days No further report having been received it is assumed that
the company commitments respecting the four female employees have
been fulfilled and no findings are made herein with respect to them.
3 The four female employees involved herein and David Kenneth
Brown were , on termination, given unemployment compensation forms
stating that their discharges were on the basis that their attitude and con-
duct was entirely unsatisfactory
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frederick and Plant Superintendent Wagner said they
would give her good recommendations on other employ-
ment.
On March 30, the first day he reported for work in that
week, Kenny Brown was discharged at 6:45 a.m. before
clocking in when Ashburn took him to Frederick and said
that he wanted Kenny Brown discharged because there
was to be another sitdown and Kenny Brown was the one
who was causing the trouble. The testimony of Kimball
and Ashburn to the effect thay they observed and had re-
ports of Brown's frequent absences at substantial
distances on some occasions from his work station is of
no particular significance except insofar as it relates to
their conviction that Brown was stirring up more sitdown
situations. And it is clear that the discharge was effectu-
ated by Frederick, who apparently usually made the deci-
sions on discharge recommendations of Ashburn and
Kimball, on the basis that he had been the one responsible
for the first sitdown and the belief that he was stirring up
another. In regard to the question of Brown's stirring up
a second sitdown, I credit his testimony that although
there were rumors in the plant of another sitdown he
never talked to employees on the matter after the initial
sitdown.4
In Indianapolis Glove Company, 5 NLRB 231, nine
employees sat down at their machines from 1:30 p.m. to
quitting time at 5:30 and performed no work (except for
uncompensated repair work) in protest over the refusal of
their supervisor to accede to wage demands. Three em-
ployees, considered by the Company to be leaders in the
sitdown activity, were discharged. In fording that the
discharges constituted unfair labor practices within the
scope of Section 8(a)(1) of the Act, the Board said:
The respondent does not contend that if the tippers
had walked out of the plant on strike that afternoon,
it would'have been justified in discharging or refusing
to reinstate them for such concerted activity. The
fact that in this case the tippers remained at their
machines during working hours instead of leaving the
plant does not justify their discharge. They were not
requested by respondent to leave, nor did they
remain in the plant after the hour at which they were
supposed to leave. While the stoppage was going on
they did some work for the respondent's benefit, but
for which they received no compensation .... They
committed no trespass, caused no harm to the
respondent's property, and did not prevent other em-
ployees from working. The respondent has not
demonstrated in what respect the conduct of the tip-
pers was in any way unlawful or wherein it should be
considered "glaring misconduct."
In Kennametal, Inc., 80 NLRB 1481, enfd. 182 F.2d
817 (C.A. 2), a group of 70 to 100 employees left their
work to request a wage increase of the company's pre-
sident and refused the plant superintendent's request that
they return to work. The company discharged three em-
ployees it found to be the leaders of the work stoppage. In
finding an unfair labor practice in the discharges, the
Board said:
That the Respondent could have refused to meet
with the employees during working hours is im-
material, for the real issue involves the right of the
employees to engage in a work stoppage to compel
the Respondent to entertain their grievance. We
think it clear, as found by the Trial Examiner, that
the work stoppage here involved, which was unac-
companied by any form of violence, constituted a
form of concerted activity fully protected by the Act.
On the basis of the foregoing authorities I conclude that
the discharge of David Kenneth Brown because of his
leadership in the sitdown and the apprehension that he
might lead another constituted an unfair labor practice
within the scope of Section 8(a)(1) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Company set forth in section II,
above, and there found to constitute unfair labor prac-
tices, occuring in connection with the operations of the
Company set forth in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing such commerce and
the free flow thereof.
IV. THE REMEDY
In view of the findings set forth above to the effect that
the Company has engaged in unfair labor practices affect-
ing commerce , it will be recommended that it be required
to cease and desist from such unfair labor practices and
take appropriate affirmative action, including the offering
of reinstatement to David Kenneth Brown with backpay
calculated in accordance with the remedial principles of
F. W. Woolworth Company, 90 NLRB 289 , and Isis
Plumbing & Heating Co ., 138 NLRB 716. Since the
discharge of an employee in reprisal for his participation
in the exercise of rights guaranteed in the Act affects the
very basis of such rights , the cease-and-desist provisions
should be appropriately broad . N.L.R.B . v. Entwistle
Mfg. Co., 120 F .2d 532 (C.A. 4).
On the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By discharging employee David Kenneth Brown in
reprisal for his leadership in concerted activities for the
purpose of employees mutual aid or protection, the Com-
pany has engaged in unfair labor practices defined in Sec-
tion 8(a)(1) of the Act.
3. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, it is
recommended that the Company, its officers, agents, suc-
4 In this regard I discredit the testimony of witnesses Barbara Carlton
and Ann Barnes that Kenney Brown solicited them to sit down a second
time
HANES HOISERY DIVISION
cessors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees because of their leadership
or participation in concerted activities for the purpose of
their mutual aid or protection.
(b) In any manner interfering with , restraining, or
coercing employees in the exercise of their right'to engage
in concerted activities for the purpose of mutual aid or
protection.
2. Take the following affirmative action which appears
necessary and appropriate to effectuate the policies of the
Act:
(a) Offer David Kenneth Brown immediate and full
reinstatement to his former or a substantially equivalent
position without prejudice to his seniority or other rights
and privileges , and make him whole for loss of earnings in
accordance with the provisions of this Decision entitled
"The Remedy."
(b) Notify David Kenneth Brown if he is presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(c) Perserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze and give effect to the
backpay requirements hereof.
(d) Post at its plant on Hanes Mill Road, Winston-
Salem, North Carolina, copies of the attached notice
marked "Appendix."5 Copies of such notice, on forms to
be furnished by the Regional Director for Region 11,
after being duly signed by the Company's authorized
representative shall be posted immediately upon receipt
thereof, and be maintained by it thereafter for 60 con-
secutive days, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Company to en-
sure that said notices are not altered, defaced, or covered
by other material.
(e) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Decision,
what steps have been taken to comply with the terms
hereof. 6
IT IS FURTHER RECOMMENDED that the complaint be
dismissed with respect to allegations of unfair labor prac-
tices not herein found to have been committed.
5 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 the United States
859
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
6 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 Re-
spondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
After a hearing in which both sides had the opportunity
to present their evidence, a Trial Examiner of the Na-
tional Labor Relations Board has found that we violated
the law and has recommended that we be ordered to post
this notice and abide by its terms.
We violated the law when we fired David Kenneth
Brown because he organized and led the sitdown of
March 22, 1967.
WE WILL NOT again fire anyone for such activity
and we will offer David Kenneth Brown his job back
with backpay.
WE WILL notify David Kenneth Brown if he is
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act
and the Universal Military Training and Service Act,
as amended, after discharge from the Armed Forces.
You are all free to engage in concerted activity for your
mutual aid or protection so long as you do not violate law-
ful regulations of the Company.
HANES HOISERY DIVISION,
HANES CORPORATION
(Employer)
Dated By
(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, 16th Floor,
Wachovia Building, 301 North Main Street, Winston-
Salem, North Carolina 27101, Telephone 723-2911.