Hanes Corporation

National Labor Relations Board - Board Decisions

Feb 26, 1982

260 N.L.R.B. 557 (N.L.R.B. 1982)

HANES CORPORATION
Hanes Corporation and Amalgamated Clothing and
Textile Workers Union, AFL-CIO, CLC. Cases
5-CA-12348 and 5-CA-12483
February 26, 1982
DECISION AND ORDER
BY MEMBERS FANNING;, JENSKINS, ANI)
ZIMM RMAN
On December 23, 1980, Administrative Law
Judge Michael O. Miller issued the attached Deci-
sion in this proceeding. Thereafter, Respondent and
the Charging Party filed exceptions and supporting
briefs, and the Respondent filed an answering 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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge, as modified herein, and to adopt his recom-
mended Order, as modified herein.
We agree with the Administrative Law Judge
that Respondent violated Section 8(a)(5) of the Act
by refusing to bargain with the certified representa-
tive regarding the specific, discretionary aspects of
a wage increase, of rules respecting the wearing of
respirators, and of an economic layoff.' Inasmuch
as it was the refusal to bargain over these discre-
tionary aspects rather than Respondent's unilateral
but lawful effectuation of the established or nondis-
criminatory aspect that constitutes the violations in
the circumstances of this case, we hereby modify
the Administrative Law Judge's "Further Conclu-
sions of Law," paragraph 2, to reflect the precise
violation committed, and we shall modify the rec-
ommended Order accordingly.
Further, we find no record support for the Ad-
ministrative Law Judge's conclusion that regardless
of whether Respondent acted unilaterally or con-
sulted with the Union regarding the economic
layoff, the employees would have been laid off for
the same number of days as their actual layoff. We
agree with the Administrative Law Judge that a
layoff substantially equal in extent to the layoff ef-
fected was an economic necessity, and that it was,
'In light of our decision in Hanes Corporation, 254 NLRB 1041 (1981),
Respondent's contention that the Union was improperly certified is with-
out merit. With respect to Respondent's contention that its 1980 enforce-
ment of respirator rules was pursuant to rules promulgated in 1978.
before it was obligated to bargain with the Union, we note that Respond-
ent chose to suspend its 1978 rules pending a legal challenge to the
OSHA regulations making the wearing of respirators by certain employ-
ees mandatory Respondent's implementation of the rules in 1980, even if
substantially the same as the 1978 rules, was a mandators subject of bar-
gaining
260 NLRB No. 77
by virtue of past practice, an established condition
of employment in these circumstances. However,
Respondent's past layoffs involved complete or
partial layoffs, reduced work schedules, etc., and
were for varying lengths of time, and we can only
speculate whether the result of bargaining inevita-
bly would have resulted in a layoff of the same
number of employees for the same period. There-
fore, we find that Respondent violated Section
8(a)(5) by refusing to bargain over the timing of
the layoff, the manner in which it would be imple-
mented, and the selection of employees to be
exempted from it, all as found by the Administra-
tive Law Judge.
THE REMEDY
I. We agree with the Administrative Law Judge
that any attempted make-whole remedy for the
laid-off employees is inappropriate. Since the im-
mediate remedial objective is to restore the status
quo ante, and since we have found, in agreement
with the Administrative Law Judge, that a layoff
substantially equal in extent to the layoff effected
unilaterally was inevitable, we perceive no basis on
which to predicate a finding that any identifiable
employee suffered a loss of pay because the layoff
was implemented unilaterally. Cf. Ramos Iron
Works, Inc. and Rasol Engineering, 234 NLRB 896,
906 (1978); Hedison Manufacturing Company, 249
NLRB 791, 794, 828 (1980).2 Likewise, we have no
basis for assessing loss to any employee because of
the length of the layoff.
Similar considerations apply to the propriety of
litigating further the issue of backpay for employ-
ees who might have been called back for repair
work instead of those whom Respondent called
back, unilaterally, but according to seniority and
training. The Administrative Law Judge concluded
that it was appropriate to leave to the compliance
stage the determination of which employees might
have been called back.3 That conclusion, however,
is based on pure speculation, and we fail to see
how the compliance proceedings can accurately
identify such employees. Any finding based on
such speculation as to the possible outcome of bar-
gaining over their identities would constitute an
impermissible intrusion by the Board into the sub-
stance of bargaining.
What is before us is a refusal to bargain over the
discretionary aspects of a nondiscriminatory layoff
that would have occurred regardless of good-faith
2We also note that there is no evidence of a practice whereby employ-
ees laid off foir lack of work in one department normally were transferred
to other departments Cf. Hedison Manufacturing Company. supra
3 Inadvertently. the Administrative Law Judge omitted such a provi-
sion from his recommended Order
557
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining. Our treatment of the remedial questions
arising from such a violation should be consistent
with our treatment of an analogous violation, the
refusal to bargain over the effects of a plant closure
in situations where there was no duty to bargain
over the decision to close. There, backpay begins
to run only after the date of the Board's decision
and ends when certain conditions are met. See Na-
tional Family Opinion, Inc., 246 NLRB 521, fn. 5
(1979). Here, the cause of the loss of pay, the
layoff, has long since ended. Consequently, no loss
can be suffered after the date of this Decision, and
a make-whole remedy is, therefore, inappropriate.4
2. We agree with the Administrative Law
Judge's formulation of a remedy for Respondent's
termination of employee Kilby pursuant to an un-
lawfully implemented respirator rule. However, we
believe that the condition imposed for Kilby's rein-
statement after the parties have bargained in good
faith over the respirator rules needs clarification.
The Administrative Law Judge recommends that
Kilby be reinstated if he "is able to comply" or, as
he states in the recommended Order, Kilby "is
willing and able to comply" with the rules that
result from good-faith bargaining. Inasmuch as
Kilby was unable to comply with the existing rule
because he was unwilling to shave his beard, the
condition that he be "able" to comply might be
ambiguous and could engender a further dispute
over his eligibility for reinstatement; i.e., is he
"able" to comply with or without his beard? With
the understanding that it will be Kilby's choice
whether or not to tailor his beard, if necessary, to
the resulting rules, we shall impose the condition
that he "complies" with them. Further, to clarify
the make-whole remedy for Kilby's termination,
we hereby modify the conditions for cutting off his
accumulation of backpay by adding to the Admin-
istrative Law Judge's remedial conditions (2), (3),
and (4), the words, "regarding this subject."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Hanes Corporation, Galax, Virginia, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph l(a):
4 The 2-week minimum backpay award provided in plant closure cases
is inappropriate here because no further bargaining over the effects of
this layoff is contemplated. See Tranmnarine Navigation Corporation, 170
NLRB 389, 390 (1968)
"(a) Refusing to bargain collectively concerning
the size and timing of wage increases, the specific
types of respirators employees are required to
wear, the timing, length, and manner of implemen-
tation of layoffs, and the selection of employees to
be exempted from layoffs, and other terms and
conditions of employment with Amalgamated
Clothing and Textile Workers Union, AFL-CIO,
CLC, as the exclusive bargaining representative of
its employees in the following appropriate unit:
"All employees employed by the Employer at
its Brooks Plant, Galax, Virginia, location, but
excluding all office clerical employees, profes-
sional employees, guards, and supervisors as
defined in the Act."
2. In paragraph 2(b), substitute the word "com-
plies" for "is willing and able to comply."
3. Add the following as paragraph 2(c) and relet-
ter the subsequent paragraphs accordingly:
"(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records necessary to analyze
the amount of backpay due under the terms of this
Order."
4. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT refuse to bargain collectively
concerning the size and timing of wage in-
creases, the specific types of respirators em-
ployees are required to wear, the timing,
558
HANES CORPORATION
length, and manner of implementation of lay-
offs, the selection of employees to be exempt-
ed from layoffs, and other terms and condi-
tions of employment with Amalgamated
Clothing and Textile Workers Union, AFL-
CIO, CLC, as the exclusive representative of
the employees in the bargaining unit described
below. Nothing in the Order of the National
Labor Relations Board, however, requires that
we revoke any wage increases previously
granted.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights guaranteed
under Section 7 of the National Labor Rela-
tions Act.
WE wit. offer Mikel Kilby immediate and
full reinstatement to his former position or, if
that job no longer exists, to a substantially
equivalent position, without prejudice to his
seniority and other rights and privileges previ-
ously enjoyed, if he complies with such respi-
rator rules as may result from our bargaining
with the Union on the subject of respirator
rules, and WE Wl. I make him whole for any
loss of earnings he may have suffered because
of our unlawful conduct, with interest.
WE WIL L, upon request, bargain with Amal-
gamated Clothing and Textile Workers Union,
AFL-CIO, CLC, as the exclusive bargaining
representative of all employees in the bargain-
ing unit described below with respect to rates
of pay, wages, hours, and other terms and con-
ditions of employment and, if an understanding
is reached, embody such understanding in a
signed agreement. The appropriate unit is:
All employees employed by Hanes Corpora-
tion at our Brooks Plant, Galax, Virginia, lo-
cation, but excluding all office clerical em-
ployees, professional employees, guards and
supervisors as defined in the Act.
HANES CORPORATION
DECISION
STATEMENT OF THE CASE
MICHAEl O. MIL ER, Administrative Law Judge:
These cases' were heard by me in Galax, Virginia, on
I These cases had been consolidated for hearing with the consolidated
complaint in Cases 5-CA-11794 and 5-CA-11815 At the hearing, the
General Counsel and Respondent entered into an informal settlement
agreement resolving the issues raised by the complaint in Cases 5 CA-
11794 and 5-CA-11815 The settlement agreement was approved by the
Administrative Law Judge and that complaint w.as severed from the in-
stant complaints.
October 7 and 8, 1980,2 based on charges filed by the
Amalgamated Clothing and Textile Workers Union,
AFL-CIO, CLC, herein called the Union, and com-
plaints and amended complaints issued on behalf of the
National Labor Relations Board, herein called the Board,
by the Regional Director and Acting Regional Director
for Region 5 of the Board.3
The complaints allege that Hanes Corporation, herein
called Respondent, violated Section 8(a)(1) and (5) of the
National Labor Relations Act, herein called the Act, by
unilaterally changing its employees' terms and conditions
of employment without bargaining with their certified
collective-bargaining representative. Respondent's timely
filed answers deny the commission of any unfair labor
practices.
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue
orally. The General Counsel, Respondent, and the Union
have all filed excellent briefs which have been carefully
considered.
Based on the entire record, I make the following:
FINDINGS OF FACT4
1. RESPONI)DENT'S BUSINESS AND THE UNION'S I ABOR
OR(GANIZA TION STATUS-PREII.MINARY
CONCI.USIONS OF LAW
Respondent is a North Carolina corporation engaged
in the manufacture and sale of clothing apparel at its
Brooks Plant in Galax, Virginia, and elsewhere. Jurisdic-
tion is not in issue. The complaints allege, and Respond-
ent's answers admit, that Respondent meets the Board's
standards for the assertion of jurisdiction over nonretail
enterprises and is engaged in commerce within the mean-
ing of the Act. I therefore find and conclude that Re-
spondent is an employer, engaged in commerce, within
the meaning of Section 2(2), (6), and (7) of the Act.
The complaints allege, Respondent admits, and I find
and conclude that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
11. THE Al. EGED UNFAIR LABOR PRACTICES
A. The Union's Certification
On June 25, pursuant to an election conducted on No-
vember 20 and 21, 1979, in Case 5-RC-11004, the Board
certified the Union as the collective-bargaining repre-
sentative of all of Respondent's employees in the follow-
ing appropriate bargaining unit:
All employees employed by Hanes Corporation at
its Brooks Plant, Galax, Virginia location, but ex-
2 All dates hereinafter are 1980 unless otherwise specified
3 The charges In Cases 5-CA-12348 and 5-CA-12483 were filed by
the Union on June 24 and July 31, respectively The complaint in Case 5
CA-12348 issued on July 31 and was amended on September 3 The
complaint in Case 5-CA-12483 issued on September 4 and was amended
on September 24 The cases were consolidated for hearing pursuant to an
Order which issued on September 18
' The facts in these cases are essentially undisputed, the findings herein
are based on the stipulations of the parties and uncontradicted testimony.
559
DECISIONS ()F NAT(IONAL. IABOR RELA'I()NS BO()ARD
eluding all office clerical, professional employees,
guards and supervisors as defined in the Act.
Since on or about April 21, the Union has requested
and continues to request to bargain collectively with the
Employer as the employees' representative. Respondent,
however, has refused to bargain, contending that the
Board improperly overruled its objections to the election
and that, consequently, the certification is invalid and it
is under no obligation to bargain. Respondent's challenge
to the Union's certification is pending before the Board
on a Motion for Summary Judgment in Case 5-CA-
12494.,
B. The Contentions of the Parties
The General Counsel and the Union contend that Re-
spondent was under an obligation to bargain with the
Union from the date of the Union's election victory on
November 21, 1979. Part and parcel of that obligation,
they correctly contend, is the duty of the employer to
refrain from making changes in the working conditions
of unit employees even while post election challenges or
objections are pending. As the Board carefully reiterated
in Mike O'Connor Chevrolet-Buick-GMC Co., Inc., 209
NLRB 701, 703 (1974):
The Board has long held that, absent compelling
economic considerations for doing so, an employer
acts at its peril in making changes in terms and con-
ditions of employment during the period that objec-
tions to an election are pending and the final deter-
mination has not yet been made. And where the
final determination on the objections results in the
certification of a representative, the Board has held
the employer to have violated Section 8(a)(5) and
(1) for having made such unilateral changes. Such
changes have the effect of bypassing, undercutting,
and undermining the union's status as the statutory
representative of the employees in the event a certi-
fication is issued. To hold otherwise would allow an
employer to box the union in on future bargaining
positions by implementing changes of policy and
practice during the period when objections or de-
terminative challenges to the election are pend-
ing. . . .
See also Allis-Chalmers Corporation, 234 NLRB 350
(1978), enfd. in relevant part 601 F.2d 870 (5th Cir.
1979).
Specifically, the General Counsel and the Union con-
tend that Respondent unilaterally granted its employees a
wage increase in January, unilaterally implemented a
program and rules concerning the wearing of respirators
to comply with the mandate of the Occupational Safety
and Health Administration (OSHA) in May, discharged
an employee for his failure to comply with the improper-
ly implemented rules, and unilaterally laid off employees
in June. Respondent contends, initially, that it is not obli-
5 In view of the outstanding certification and the apparent agreement
of all parties that these cases proceed as quickly as possible to decision,
there appears to be no reason to withhold decision herein pending issu-
ance of the Board's Decision and Order in Case 5-CA 12494
gated to bargain with the Union at all because the certifi-
cation is invalid. Beyond that contention, which is not
before me, Respondent admits that it unilaterally took
each of the actions alleged but contends that none of
those actions were changes in the terms and conditions
employment.
C. The Wage Increase
The parties stipulated that, on January 1, the Employ-
er granted an 8.1-percent wage increase to the Galax em-
ployees without notice to or bargaining with the Union.
The records reflects that this was an "across-the-board"
increase granted to all of the employees in the 10 plants
w hich make up Respondent's knitwear division. The
amount of the wage increase and the date it would be
granted were determined by the management of the
plants in the division w ith the approval of corporate
management. The size of the annual wage increase, it
was testified, was based generally, without any fixed for-
mula, on such factors as inflation and the profitability of
the knitwear division.
The record further indicates that the wage increase
was similar to those granted to all of the employees in
the knitwear division plant in prior years. Thus, in Janu-
ary 1978 and 1979, all of those employees received wage
increases of 7.1 percent and 9.4 percent, respectively.
Across-the-board raises had also been given to all of
these employees, in unspecified amounts, in August 1975,
July 1976, and again in July 1977. The record contains
no evidence of Respondent withholding a wage increase
in one plant while implementing it in others within the
same division.
Respondent contends that its wage increase practices
since 1975 establish that the granting of such a wage in-
crease became part of the existing wage structure and
that, had it declined to grant the January increase, its
failure to do so would have constituted a violation of the
Act. In support of this contention Respondent cited
Verona Dyestuff Division Mobay Chemicailm Corporation,
233 NLRB 109 (1977). Therein, an employer who was
refusing to bargain in order to test certification denied
the unit employees "the annual wage increase and addi-
tional holiday" which it granted to all of the other em-
ployees in its plant notwithstanding that the union had
advised the employer of its agreement that the increase
and additional holiday be granted. The Board held that
the employer's conduct, withholding those increases and
benefits from employees who otherwise would have re-
ceived them, because they had chosen the union as their
collective-bargaining representative, violated Section
8(a)(3) and (1) of the Act. See also Florida Steel Corpora-
tion, 220 NLRB 1201, 1203 (1975), and cases cited there-
in at footnote 10.
The General Counsel and the Union, pointing to the
discretionary aspects of Respondent's wage increase
policy, particularly as to size and timing, contend that
there was no pattern of wage increases which Respond-
ent was obligated to follow. They cited Mosher Steel
Company, 220 NLRB 336 (1975), wherein an employer
who was engaged in collective bargaining (unlike Re-
spondent herein) granted its employees both a general
560
HANES CORPORATION
wage increase and numerous individual increases. As to
both types of wage increases, the employer had retained
considerable discretion in determining the amount of the
increase (within a narrow range) and the time of year
that they were to take effect. The Board, agreeing with
the Administrative Law Judge, found that respondent's
conduct in granting these wage increases "[w]hile negoti-
ations with the union were continuing-all without af-
fording the union notice or an opportunity to bargain,"
violated Section 8(a)(5) and (1) of the Act. The General
Counsel also relied on Allis-Chalmers, supra. In that case,
and in the subsequent Allis-Chalmers case, found at 237
NLRB 290 (1978), the Board held that the unilateral
grant of an across-the-board wage increase during a
period when the employer was challenging the union's
certification violated Section 8(a)(5) "even when [such
unilateral actions] are made . . . pursuant to an estab-
lished company policy and with no antiunion motive."
234 NLRB at 354. Allis-Chalmers' raises were given pur-
suant to an established policy of reviewing wages semi-
annually and were, according to that employer, "merely
an attempt to maintain the status quo."6
More recently, in Charles Manufacturing Company, 245
NLRB 39 (1979), the Board held that an employer who
was engaged in collective bargaining did not violate Sec-
tion 8(a)(5) "when it automatically implemented a set of
wage increases for unit employees" which it had uncon-
ditionally committed itself to grant, as to both the
amount and the time, prior to the advent of the Union.
Therein, the Board, citing Liberty Telephone, supra, held
that the wage increases had become established condi-
tions of employment and that "[r]espondent did not vio-
late its bargaining obligation when it subsequently imple-
mented the increases as promised, because its conduct was
devoid of any element of discretion." (Emphasis supplied.)
That situation was thus distinguished from cases, such as
Allis-Chalmers, "wherein an employer continues, after a
bargaining agent has been selected, unilaterally to exer-
cise its discretion with respect to wage increases granted
pursuant to certain wage review programs." "What is re-
quired" in such cases, according to the Board, "is a
maintenance of preexisting practices, i.e., the general out-
line of the program, however the implementation of that
program (to the extent that discretion has existed in de-
termining the amounts or timing of the increases), be-
comes a matter as to which the bargaining agent is enti-
tled to be consulted." Charles Manufacturing, supra, fn. I.
Oneita Knitting Mills, Inc., 205 NLRB 500, fn. I (1973).
See also State Farm Mutual Auto Insurance Company, 195
NLRB 871, 890 (1972).
Thus, the problem herein is to determine whether and
to what extent Respondent's wage review policy was
6 Compare Libertiry lIphone & Communications. Inc., 2(04 NLRB 317.
318 (1973), wherein ihe Board, reversing the Administrative Law Judge's
Decision, held that the employer violated Sec 8(a)(
5
) hy withholding a
wage increase which the employer had earlier promised to grant its em-
ployees even though that wage increase was conditioned upon the ap-
proval of the Internal Revenue Service. The Board stated
The Administrative L aw Judge's siew ihat any other course than
that taken by Respondents would have suhjected them to unfair
labor practices is in error No violations of the Act can normally
result where ant employer in good faith consults the bargaining rep-
resentati,.e before taking action on such maltter
discretionary. For, to the extent that its policy was
devoid of discretion, it was obligated to continue it and
that continuation, even without notice or bargaining,
would not violate the Act. Charles Manufacturing, supra.
On the other hand, to the extent that Respondent re-
tained discretion, it was obligated to consult with the
employees' representative before taking any action.
Oneita Knitting Mills, supra.
The pattern of granting general wage increases once a
year for the last 5 years to all of the knitwear division
employees sufficiently establishes such increases as an ex-
isting term or condition of employment about which Re-
spondent was not obligated to bargain. However, the
wage increases were granted at several different times of
the year in those 5 years and, at least for the last 2 years,
had varied fairly substantially in amount.7 I am therefore
satisfied that, though the voice of the Brooks Plant man-
agement may have been small in determining the discre-
tionary elements of the annual wage increase, Respond-
ent Hanes Corporation had, in fact, retained significant
elements of discretion as to both its size and its timing. It
was therefore obligated to bargain with the Union about
those discretionary elements and its failure to do so con-
stituted a violation of Section 8(a)(5) and (1) of the Act.8
D. The Respirator Rules
Respondent's implementation of rules requiring that
respirators be worn in certain areas of the plant raises
issues similar to those discussed above. The record re-
flects that pursuant to regulations promulgated by the
Occupational Safety and Health Administration (OSHA)
(CFR, Ch. XVII, § 1910.1043). Respondent posted the
following notice, dated May 9, 1980:
Effective Sunday, May 11, 1980, all employees,
working in areas where exposure to cotton dust ex-
ceeds a permissable [sic] exposure limit, will be re-
quire [sic] to wear respirators. In order to comply
with the Federal OSHA Regulations, these areas
will be posted with the OSHA required sign, and
proper respirator usage will be a condition of em-
ployment for everyone working in these areas.
Proper respirator usuage, as defined by OSHA,
requires a good face-to-respirator seal. This means
there can be no facial hair (beards or certain types
of sideburns) which prevents the face-to-respirator
contact.
; An increase of 9.4 percent, ;!s granted in 1979. is nearly one-third
larger than the increase of 7 1 percent which was granted in 1978 In
Moshier Steel. supra, the Board found ample discretion in determining the
amount of the general wage increase where it had varied only between 5
and 6 percent
s It may he argued by Respondent that Board law places upon the em-
ploycr a difficult burden, one which puts it at substantial peril However.
it must be noted that the risk is one of Respondent's own chositng; noti-
ficaltion to. land bargaining w ith, the UInion would have obviated the risk
Sec libril l,'lephone. supra As staled in. liAe O'Connor Chevrolet,. upra:
"all enplo)er acts at its peril in making changes In terms and conditions
if emplonyment during the period that objections to an election ar pernd-
Ing and tlit Final determtination has noit 3el been made"
561
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent offered its employees a choice among three
types of respirators; all, it contended, required clean
shaven skin for proper fit.
Respondent admitted that it instituted the above re-
quirements without notice to or bargaining with the
Union. The General Counsel and the Union agree that
the OSHA regulations mandated the implementation of a
respirator program; they contend however that, in adopt-
ing and enforcing its particular rules, Respondent had an
obligation to bargain with the Union.
One long-term employee, Mikel Kilby, an electrician,
refused to comply with the respirator requirements as
adopted by Respondent. Kilby wore a full beard and, for
undisclosed but obviously sincerely held reasons, he re-
fused to shave any portion of it. He asked Respondent to
provide him with a "space helmet" type of respirator
such as it provided one employee, who had a disability
incurred from exposure to Agent Orange during the
Vietnam conflict which prevented him from shaving.
The space helmet respirator was considerably more ex-
pensive than any of the three types of respirators Re-
spondent provided for general use. Respondent refused
Kilby's request though it indicated that if he were to buy
one himself he could retain his employment. 9
Respondent, in implementing its respirator regulations,
relied on OSHA's standards which provided as follows:
The employer shall assure that the respirator used
by each employee exhibits minimum face piece leak-
age and that the respirator is fitted properly. [29
CFR Sec. 1910.1043 (g)(4)(i).]
Respirators shall not be worn when conditions
prevent a good face seal. Such conditions may be a
growth of beard, sideburns, a skull cap that projects
under the face piece, or temple pieces on glasses.
Also, the absence of one or both dentures can seri-
ously affect the fit of a face piece . . . [29 CFR
Sec. 1910.134 (e)(5)(i).]
The OSHA cotton dust regulations did not require that
employees use any specific respirator. For such cotton
dust concentrations as were found in the Brooks Plant,
the regulations permitted the use of three different types
of respirators including those designated as high efficien-
cy particulate filter respirators with a fullface piece, sup-
plied air respirators with fullface piece, helmet, or hood,
or self-contained breathing apparatus with fullface pieces.
Respondent's witness, Mackey McDonald, its director of
manufacturing at the Brooks Plant, acknowledged that
there were probably other respirators, beyond the three
provided by Respondent, which would meet OSHA's re-
quirements. OSHA regulations, section 1910.1043
(f)(2)(ii), provide that selection of respirators be made
from among those tested and approved by the National
Institute for Occupational Safety and Health (NIOSH)
and the Union contends that the (NIOSH) listed 119 res-
pirators which it had approved for use as protection
against cotton dust.
D An offer was even made to loan Kilby the money to make such a
purchase.
In addition to contending that its adoption and imple-
mentation of the respirator requirements were mandated
by the OSHA regulations, and thus not subject to collec-
tive bargaining, Respondent contended that its rules did
not constitute a change in the working conditions be-
cause they had been initially adopted in 1978, but were
held in abeyance since that time pending resolution of
legal issues surrounding the implementation of OSHA's
cotton dust standards. Thus, those standards were initial-
ly scheduled to become effective on October 4, 1978,
and, at that time, Respondent had promulgated certain
rules requiring the wearing of respirators. While the
record does not reflect whether the rules promulgated in
1978 were identical to those published in 1980, it appears
from Kilby's objections raised at that earlier date that
they, like the current rules, would have required him to
remove some or all of his beard to comply. Implementa-
tion of those standards in 1978 was stayed on October 2,
1978, by Order of the United States Court of Appeals for
the District of Columbia.'° Respondent posted a notice
informing the employees of the stay and advising them
that the use of the respirators would not be required at
that time. That notice went on to state: "If after further
review the courts decide the regulations will continue
we will do whatever the law requires." Respondent con-
tinued to offer "[b]oth types of respirators" which it had
made available to the employees, for their use on a vol-
untary basis, but did not again require the wearing of
respirators until the Court's stay was lifted. I
Based on all of the forgoing, I must agree with the
General Counsel and the Charging Party that Respond-
ent's failure to notify and consult with the Union on the
details of its implementation of the OSHA regulations
violated Section 8(a)(5) and (1) of the Act. 12 As con-
tended by the General Counsel and the Union, the
OSHA regulations left open to the subject employers sig-
nificant flexibility and latitude in implementing steps nec-
essary for compliance. Thus, with a number of approved
respirators to chose from, Respondent could have bar-
gained over the particular respirators to be worn. Addi-
tionally, bargaining might have been fruitful over wheth-
er or not facial hair precluded the proper wearing of a
respirator. I note, in this regard, that the OSHA regula-
tion does not preclude facial hair but only suggests that
facial hair and other conditions might impede the forma-
tion of a proper fit.'3 Moreover, consultation with the
Union in regard to the type of respirator to be worn, or
to the question of whether a beard prevents a proper seal
with the different kinds of respirators, and on the ques-
tion of who should bear the cost of providing acceptable
but more expensive respirators, might have provided a
"' American 'lextile Institute. Inc. s. Dr. Eula Bingarm, et a., 1978
()SHD par. 27, 852 (Docket No 78-1979).
" See A4FL-CIO v Ray Marshall, Secretary of labor, 1980 OSHD par
24, 150
12 Neither the General Counsel nor the Charging Party appears to
contend that Respondent was obligated to bargain over the general ques-
tiion of whether respirator usage would be required. That, they acknowl-
edged. was mandated by OSHA.
": Respondent's rule. specifically alluding to beards and certain types
of sideburns, makes no reference to the wearing of glasses or the failure
to wear dentures which ()SHA also suggested might interfere with the
proper fit
562
HANES CORPORATION
way for Mikel Kilby to satisfy the OSHA standards and
retain his job.
Finally, I cannot accept Respondent's argument that
the rule as implemented on May 11 was but a continu-
ation of the earlier rule promulgated in October 1978.
The earlier rule was never actually implemented and was
not enforced. Additionally, the record does not establish
that it was the same rule as that implemented in 1980.'4
Accordingly, I conclude that by unilaterally adopting
and implementing the specifics of its respirator rule, pre-
cluding the wearing of facial hair and requiring that em-
ployees use specific kinds of respirators, Respondent has
violated Section 8(a)(5) of the Act. J. P. Stevens & Co..
Inc., 239 NLRB 738 (1978). I further find that employee
Mikel Kilby was terminated because of his refusal to
comply with the respirator rules which Respondent un-
lawfully promulgated and implemented.
E. The June Layoff
All employees of Respondent's men's briefs depart-
ment, of whom there were approximately 230, were laid
off during the last 2 weeks of June.'5 During the last
week in June, certain employees in other departments,
performing work related to that of the men's briefs de-
partment, were also laid off. Three employees, selected
on the basis of their plant seniority and training, were re-
called to do repair work on the briefs in that second
week. The layoff was announced by a notice posted on
June 9 which stated as follows:
Over the last several weeks the orders from our
retailers and distributers for our briefs have been
decreasing. Our most recent forecast and June
orders indicate that this trend will continue. For
these reasons, it will be necessary to stop produc-
tion in all Stateside and Offshore BRIEFS
SEWING and BRIEFS RELATED DEPART-
MENTS prior to our scheduled vacation closing.
Our information indicates no change in our T-shirts
and A-shirts production at this time.
The parties stipulated that the layoff was made without
prior notice to or bargaining with the Union.
Where the layoff of employees constitutes a change in
the terms and conditions of their employment, an em-
ployer is obligated to give the union notice and an op-
portunity to bargain. See, for example, Sundstrand Heat
Transfer, Inc., Triangle Division, 221 NLRB 544 (1975),
and Allis-Chalmers Corporation, 234 NLRB 350 (1978).
Respondent, however, contends that its June 1980 layoffs
were "conducted in a manner consistent with the Com-
pany's long-established practice for conducting tempo-
rary layoffs to reduce inventory." This procedure, it
argued, had become one of the existing conditions of em-
ployment which Respondent was bound to continue and
14 In this regard I note that the 1978 rule refers to "[b]oth types of
respirators"; McDonald's testimony established that Respondent's 1980
rule permitted the use of three kinds of respirators Thus. it appears that
the rules may not have been the same.
I' The layoff also affected the employees in the men's briefs depart-
ments through out the knitwear division
on which Respondent was not obligated to give the
Union notice or an opportunity to bargain.
Thus, the Company points to its policy statement
dated May 6, 1975, which provides among other things,
that layoffs of 2 weeks or less were considered tempo-
rary layoffs to which the Company's seniority policies
were inapplicable. It points also to layoffs it has had in
the past. Since 1974, there have been occasions when
entire departments were temporarily laid off for full
workweeks and others when they were placed on re-
duced schedules of 3 or 4 days per week in order to cur-
tail production. After early 1979, when employees alleg-
edly expressed a preference for full week layoffs (be-
cause such layoffs entitled them to unemployment com-
pensation), Respondent has reduced its inventory back-
logs by laying employees off for full weeks. In July 1979,
the employees of the men's briefs department were laid
off for the last week of Respondent's fiscal year because
of a buildup of inventory resulting from the failure of
actual sales to meet the sales figures which had been pro-
jected for the period.
Layoff practices, like an employer's practices in regard
to the granting of wage increases, are a mandatory sub-
ject of bargaining. See N.L.R.B. v. Frontier Homes Cor-
poration, 371 F.2d 974, 980 (8th Cir. 1967). An employer
in Respondent's circumstance is privileged to continue its
layoff or wage practices unchanged without notification
to or bargaining with the Union. However, where an
employer retains substantial discretion in regard to the
manner that a layoff or a wage practice will be imple-
mented, it must bargain with its employees' representa-
tive before such implementation. See Oneita Knitting
Mills, supra. See also Charles Manufacturing Company,
supra, and the Allis-Chalmers cases, also cited supra.
The facts in the instant case, I am convinced, establish
that Respondent had a practice of laying off its employ-
ees whenever necessary to balance inventory with actual
or projected sales. It was, therefore, privileged to contin-
ue this policy without notice or bargaining. However, I
find that in its practice it retained considerable discre-
tion, particularly as to the timing of layoffs, as to wheth-
er or not the layoff would encompass entire workweeks
or would take the form of shortened workweeks, and as
to which employees might be exempted or called back
from such a layoff for special purposes. Respondent's his-
tory of layoffs establishes that they may occur at differ-
ent times of year; there was no established practice man-
dating that the layoff occur in the last 2 weeks of the
fiscal year. Similarly, the layoff in the last week of June
1979, a single incident, does not establish a practice of
laying employees off for a full workweek rather than
shortening several workweeks in order to achieve a
needed reduction. Indeed, Respondent's justification for
choosing the full workweek layoff, i.e., that some em-
ployees expressed that as a preference, establishes that
this matter is highly discretionary and particularly fit for
collective bargaining. Additionally, the evidence indi-
cates that Respondent called back three sewers to per-
form repair work in the men's briefs department and that
those three were selected upon both objective (plant se-
niority) and subjective (training) factors. Respondent ap-
563
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parently had no established practice or policy governing
the selection of such employees for exemption from
layoff. This too is a fit subject for collective bargaining.
Accordingly, I find that while Respondent had no ob-
ligation to bargain with the Union about whether or not
there would be a layoff, that being an established term or
condition of employment, it was obligated to bargain
about the discretionary aspects of that layoff, the timing
thereof, the manner in which it would be implemented,
and the selection of employees to be exempted there-
from. To the extent that it failed to comply with its obli-
gation, as it admitted that it did, Respondent has violated
Section 8(a)(5) of the Act.
FURTHER CONCL USIONS OF LAW
1. Amalgamated Clothing and Textile Workers Union,
AFL-CIO, CLC, is and has been at all times since No-
vember 21, 1979, the exclusive representative of Re-
spondent's employees employed by Respondent at its
Brooks Plant, Galax, Virginia, location, but excluding all
office clerical employees, professional employees, guards,
and supervisors as defined in the Act.
2. By unilaterally, without notice to or consultation
with the above-named Union, granting wage increases to
its employees on January 1, 1980, implementing and en-
forcing rules respecting the wearing of respirators in the
plant as a condition of employment, and laying off cer-
tain employees in the weeks of June 16 and 23, 1980, Re-
spondent has refused to bargain with the Union, in viola-
tion of Section 8(a)(5) and (1) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
4. Respondent did not engage in any unfair labor prac-
tices not specifically found herein.
THE RFMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(5) and
(1) of the Act, my recommended Order will require that
it cease and desist therefrom and take certain affirmative
action necessary to effectuate the policies of the Act.
I have found that Respondent has unlawfully refused
to bargain with the Union by unilaterally granting wage
increases to its employees. While Respondent will be or-
dered to cease and desist from such unlawful conduct,
nothing herein shall be construed as requiring Respond-
ent to revoke any wage increases.
I have further found that Respondent unlawfully im-
plemented the layoffs of certain employees during the
last 2 weeks of June 1980. However, the vice of this con-
duct is found not in the fact that employees were laid
off; its existing practice permitted unilateral layoff. It is
evident from the record herein that the employees in Re-
spondent's men's briefs department and in the related po-
sitions would have been laid off for the same number of
days as they were, whether Respondent acted unilateral-
ly or consulted with the Union. Rather, the violation lies
in Respondent's unilateral selection of the time and
manner of the layoffs and in the unilateral determination
as to which employees would be exempted from portions
of it. Accordingly, I do not deem it warranted to order a
make whole remedy, generally, as to the laid-off employ-
ees. Cf. Sundstrand Heat Transfer, Inc., supra at 546.
Such a remedy is warranted, however, for those employ-
ees who might have been called back for the repair work
had Respondent fulfilled its obligation to bargain on that
recall. It is appropriate to leave to the compliance stage
of this proceeding the determination of who those em-
ployees might have been.
Mikel Kilby was terminated as a result of his refusal to
comply with the terms of the unlawfully adopted respira-
tor rules. In order to fully remedy this violation, it is
necessary that Respondent offer him immediate and full
reinstatement to his former position or, if that job no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights and privi-
leges, if, after Respondent has bargained in good faith
with the Union concerning the respirator rules said
Kilby is able to comply with whatever respirator rules
result from such bargaining, and make him whole for
any loss of earnings he may have suffered from the date
of his termination until the earliest of the following con-
ditions: (1) the date Respondent bargains to agreement
with the Union on its rules regarding the wearing of res-
pirators; (2) a bona fide impasse in bargaining; (3) the
failure of the Union to request bargaining within 5 days
of Respondent's notice of its desire to bargain with the
Union; or (4) the subsequent failure of the Union to bar-
gain in good faith. This limited backpay requirement is
necessary in order to make the employee whole for the
losses, if any, he suffered as a result of the violation and
to recreate in some practical manner a situation in which
the Union's bargaining position is not entirely devoid of
economic consequences for Respondent. See Uncle John's
Pancake House, 232 NLRB 438, 440 (1977).
All backpay due under the terms of this Order shall be
computed, with interest, in the manner prescribed in F
W. Woolworth Company, 90 NLRB 289 (1950), and Flor-
ida Steel Corporation, 231 NLRB 651 (1977). 6
The Union argued that Respondent should be required
to reimburse both the Board and itself for reasonable at-
torneys' fees and costs incurred in this litigation, con-
tending that Tiidee Products, Inc., 194 NLRB 1234
(1972), enfd. as modified sub nom. International Union of
Electrical, Radio and Machine Workers, AFL-CIO v.
.v.L.R.B., 502 F.2d 349 (D.C. Cir., 1973), authorized
such a remedy in order to discourage frivolous litigation.
While I have found that Respondent violated the Act es-
sentially as alleged in the complaint, I have also found
that its conduct, in certain regards, was not violative of
the Act. Moreover, the issues presented herein, even
where I found against Respondent, were substantial, or
at least debatable. The litigation in this case was not
frivolous. Accordingly, I reject the Union's request for
extraordinary remedies. Kings Terrace Nursing Home and
Health Facility, 227 NLRB 251 (1976).
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
" See, generally. Isi Plumbing d teating Co, 138 NLRB 716 (1962).
HANF'S CORPORATION
ORDER 17
The Respondent, Hanes Corporation, Galax. Virginia.
its officers, agents. successors, and assigns. shall:
1. Cease and desist from:
(a) Unilaterally granting wage increases. adopting or
enforcing rules respecting the wearing of respirators in
the plant as a condition of employment, laying off em-
ployees, or changing other terms and conditions of em-
ployment without notice to and bargaining with Amalga-
mated Clothing and Textile Workers Union, AFL-CIO,
CLC, as the exclusive bargaining representative of its
employees in the following appropriate unit:
All employees employed by the Employer at its
Brooks Plant, Galax. Virginia location, but exclud-
ing all office clerical employees, professional em-
ployees, guards, and supervisors as defined in the
Act.
(b) In any like or related manner interfering with. re-
straining, or coercing employees in the exercise of the
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, bargain collectively and in good
faith with Amalgamated Clothing and Textile Workers
Union, AFL-CIO, CLC, concerning wages. hours. and
i7 In the event no exceplnons are filed as provided h) Sec 102 46 of
the Rules and Regulations of the National I abor Relalions Board. the
findings, conclusions, and retommnended Order herein shall, as prolded
in Sec. 102 48 of the Rules and Regulations. he adopted bh the Bo alrd and
become its findings, conclusions. and Order, and all ohjectiions hercto
shall he deemed waived for all purposes
other terms and conditions of employment of its employ-
ees and, if an understanding is reached, embody such un-
derstanding in a written agreement.
(b) Offer Mikel Kilby immediate and full reinstatement
to his former position or. if that job no longer exists. to a
substantially equivalent position. without prejudice to his
seniority and other rights and privileges if, after Re-
spondent bargains in good faith with the Union concern-
ing the respirator rules, said Mikel Kilby is willing and
able to comply with the rules which result from said col-
lective bargaining. and make Mikel Kilby whole for any
loss of earnings he may have suffered by reason of Re-
spondent's unlawful conduct herein in the manner set
forth in the section of this Decision entitled "The
Remed .
(c) Post at its place of business in Galax, Virginia,
copies of the attached notice marked "Appendix. " '
Copies of said notice on forms provided by the Regional
Director for Region 5, after being duly signed by Re-
spondent's representative, shall be posted by Respondent
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 cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered. de-
faced. or covered by any other material.
(d) Notify the Regional Director for Region 5, in writ-
ing, 'within 20 days from the date of this Order. what
steps have been taken to comply herewith.
'[ In the c.ent that this Order is enforced by a Judgment of i l nited
State, C olirt rof Appeals. the wsords in the notice reading "Posted bh
Order of the National Labor Relations Board" shall read "Posted Pursu-
anlt Io a Judgment of the tlilted States Court of Appeals I'nforcing an
Order of the Nationlal I ahbor Relations Board"