Hickman Garment Co.

National Labor Relations Board - Board Decisions

Aug 12, 1970

184 N.L.R.B. 888 (N.L.R.B. 1970)

888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hickman Garment Company and Amalgamated
Clothing Workers of America , AFL-CIO. Case
9-CA-545 3
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
August 12, 1970
DECISION AND ORDER
By MEMBERS FANNING , MCCULLOCH, AND JENKINS
On May 12, 1970, Trial Examiner Maurice S.
Bush issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision. I
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, the
brief, and the entire record in the case , and hereby
adopts the findings, conclusions ,2 and recommenda-
tions.
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 and hereby
orders that the Respondent, Hickman Garment
Company, Hickman, Kentucky, its officers, agents,
successors, and assigns , shall take the action set
forth in the Trial Examiner's Recommended Order.
' The Respondent has requested oral argument . The request is hereby
denied because the record, the exceptions , and the brief adequately
present the issues and the position of the parties
2 We find at unnecessary to consider the Trial Examiner 's construction of
Johnnie's Poultry Co , 146 NLRB 770, enforcement denied 344 F 2d 617
(C A 8) It is clear, as the Trial Examiner found, that the interrogation of
December 18, 1969, was coercive and violative of Sec 8(a)(1) All of the
circumstances- including the facts that employee Robinson was
questioned by the three top management officials in the main office, that
he was asked by the management officials about the truth of certain in-
cidents that they knew full well had occurred, and that Robinson was also
asked whether he had, in fact, signed a union card, a matter not germane to
the subjects under investigation-persuade us that the inquiry transgressed
the bounds of lawful investigation and was, indeed, an effort to intimidate
Robinson into signing a false denial of the charges lodged against Respon-
dent
MAURICE S. BUSH , Trial Examiner : The issues in
this case are whether the Respondent Company
through its president , its co-manager , and its al-
leged office manager coercively interrogated an
employee at its plant at Hickman , Kentucky, at
various dates and whether the president made a
threatening remark to the same employee that the
Company would close its plant if the Union were
successful in its organizational campaign, all in
violation of Section 8(a)(1) of the National Labor
Relations Act. Involved in these issues is also the
question of whether the alleged office manager has
that title and whether she is an agent of the Com-
pany within the meaning of the Act.
The complaint herein was issued on January 30,
1970, pursuant to a charge filed on December 15,
1970, and served upon the Company on December
17, 1970.
The case was tried before me on March 19,
1970, at Hickman , Kentucky . Although all parties
were afforded the opportunity to file briefs, only
counsel for General Counsel has filed a brief. It has
been carefully reviewed and considered.
Upon the entire record and from my observation
of the witnesses , I make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Hickman Garment Company, Respondent, is a
Kentucky corporation engaged in the manufacture
of clothing and garments at its plant in Hickman,
Kentucky. During the 12 months preceding the is-
suance of the complaint, which is a representative
period, the Company had a direct outflow of its
products, in interstate commerce, valued in excess
of $50,000 which it sold and shipped from its
Hickman plant directly to points outside of the
State of Kentucky. It is admitted that the Respon-
dent is an "employer" as defined in Section 2(2) of
the Act, engaged in "commerce" and in operations
"affecting commerce" as defined in Section 2(6)
and (7) of the Act, respectively.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Company in the operation of its plant at
Hickman, Kentucky, a county seat with a popula-
tion of about 2,000, employs about 200 employees.
Philip Roseman is president of the Company and
his wife, Nettie Roseman, is co-manager of the
Company. Nettie Roseman is also an attorney by
184 NLRB No. 103
HICKMAN GARMENT COMPANY 889
profession. The complaint alleges and the record
shows that Gayle Gray is the Company's office
manager. She prepares and signs company letters
variously under her signature as personnel director,
office manager, or secretary. In October 1969, in
her capacity as personnel director she addressed a
letter to a former employee recalling that employee
for employment. (C.P. Exh. 1.) She has authority to
grant employees time off from their jobs to attend
to personal matters. She has the authority to
responsibly direct employees and to adjust em-
ployee grievances under circumstances which
requires the use of independent judgment. Under
these facts she is found to be a "Supervisor" of the
Respondent Company within the meaning of the
Act.
The Company has heretofore been involved in
violations of the Act. On July 12, 1968, the Board,
in 172 NLRB 1168, found the Respondent in viola-
tion of Section 8(a)(1) and (3) and ordered the
reinstatement of 19 employees who had been dis-
criminatively discharged because of their activities
on behalf of the Union. The Board in that decision
also found a number of independent 8(a)(1) viola-
tions by company conduct which restrained and
coerced its employees in the exercise of their rights
guaranteed in Section 7 of the Act. Due to the na-
ture and extent of the unfair practices engaged in
by the Company in that earlier case which the
Board found "evidence [d] an attitude of opposi-
tion to the purposes of the Act in general," the
Board ordered the Company to "cease and desist
from in any other manner infringing upon the rights
of employees guaranteed in Section 7 of the Act."
Subsequent to the above-noted Board decision,
the Company was the subject of a second complaint
charging it with unfair labor practices under the
Act. As a result of a 5-day hearing held under that
complaint in December 1969, Trial Examiner Mel-
vin Pollack issued a decision on March 17, 1970, in
which he found violations of Section 8(a)(1), (3),
and (5) and recommended orders requiring the
Company to cease and desist from (a) discouraging
membership in the Union by discharging or refusing
reemployment to employees, by assigning em-
ployees to more difficult work, or by discriminating
against them in any other manner because of their
union membership or activity, (b) refusing to bar-
gain with the Union, upon request, as the majority
representative of the involved unit in the plant, (c)
threatening reprisals for engaging in union activity,
promising or granting insurance , vacation, or other
benefits in order to discourage union activity, and
coercively interrogating employees concerning
their union activities and sentiments , and (d) in any
other manner interfering with, restraining, or coerc-
ing its employees in the exercise of their rights
under the Act. Trial Examiner Pollack's decision is
pending before the Board on exceptions.
The complaint here under consideration is thus
the third complaint charging the Company with un-
fair labor practices. It came to trial some 3 months
after the second unfair labor practice proceeding
was heard before Trial Examiner Pollack.
David Lee Robinson, approximately 50 years of
age, has been employed by the Company for a little
better than 3 years. He is the only employee under
the complaint with respect to whom the Company
is charged with unfair labor practices. He is em-
ployed as a "bundle boy"; it is his job to physically
carry fabrics under manufacture to various machine
operators as needed. Because his job requires him
to move about all parts of the plant, he is frequently
asked to convey messages by the machine operators
to the Company's front office. Robinson is
completely illiterate; he can neither read nor write,
except that he can print his name.' His schooling
ended in the second grade. Robinson's wife, Min-
nie, is also employed at Respondent's plant. She is
employed as a machine operator and started work-
ing for the Company some 2 weeks before her
husband did.
During the Union's organizational campaign in
1967, Robinson signed a union card by placing an
X alongside his name on the card.'
On or about November 5, 1969, Robinson was in
the Company's offices on some errand. President
Roseman and Office Manager Gray were there at
the time. Roseman told Robinson that he had heard
rumors that Beverly Callison, a recently reinstated
discriminatee pursuant to the aforementioned order
of the Board in 172 NLRB 1168, was trying to get
Robinson's wife, Minnie, to sign a union card, and
asked him if it was true. Beverly operated a
machine alongside of Minnie's. Robinson denied
the rumor, stating that his wife had never said
anything to him about the matter.
Robinson was again in the office on or about
November 26. Roseman in the presence of Gray
asked Robinson if he had been looking for another
job. Surprised, Robinson asked why he was "sup-
posed" to have been looking for other employment.
Roseman replied that "if this Union comes in,"
management would have to close the plant as the
plant was already paying the highest wages it could
afford and couldn't afford to pay more.
Some 2 days later Robinson was again in the of-
fice. He was questioned by both Roseman and Mrs.
Gray on whether he had signed a union card. They
told him that there were other employees who had
' This is established by the testimony not only of Robinson and his wife,
Minnie , but also that of Gayle Gray, the Company's office manager and
personnel director The Company President Roseman testified that Robin-
son could write He based his testimony on an alleged printed statement
which Roseman said Robinson had printed in his presence and handed to
him in which Robinson was said to have denied that he had signed a union
card or had engaged in any union activity This alleged printed statement
by Robinson , which Roseman described as "primative ," was not produced
or offered in evidence by the Respondent The Examiner finds Roseman's
testimony that Robinson could write wholly lacking in credibility
' It is inferred and found that the above-mentioned union card was an
authorization card by Robinson to the Union to represent him in dealings
with the Company
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed union cards but were now sorry they had
signed up and that they were asking him to find out
what the situation was so that they would "know
more how to go about it." Although Robinson had
in fact signed a union card as long ago as 1967, he
denied that he had ever signed a union card.'
The final occasion on which management person-
nel spoke to Robinson concerning his union activi-
ties occurred on or about December 18, 1969, after
the Company had received a copy of the Union's
charges of unfair labor practices against the Com-
pany in the present case. The charges state that on
certain dates in 1969 the Company by its agents
and officers interrogated one of its employees con-
cerning "his sympathy for, membership in and/or
activities in behalf of" the Charging Party Union
here involved. The charge specifically identified
Robinson as the involved employee. The charge
also accused the Company of threatening em-
ployees with plant closure if the plant was
unionized. At the end of the workday here in
question, Robinson found his timecard missing
from the rack. This was a signal that he was wanted
in the front office. At the office he found Roseman,
his wife, Nettie Roseman, and Mrs. Gray waiting
for him.
At the meeting Robinson was told about the
Company's receipt of a copy of unfair labor prac-
tice charges against it and that Robinson's name
was prominently mentioned in the charge. Mrs.
Roseman read the charge to Robinson." Mrs.
Roseman, who as noted above is an attorney, asked
if the contents of the charges, showing his involve-
ment, were true. It appears and is inferred from the
record that Mr. Roseman also engaged in inter-
rogating Robinson along the same line, but there is
no evidence that Mrs. Gray participated in the in-
terrogation. Robinson replied that it was not true
that he had been interrogated about his union in-
terests or that any threats had been made to him
that the plant would be closed if the Union came in
as alleged in the charge. Asked if he would give the
Company a written statement to that effect, Robin-
son readily agreed to this. Mrs. Roseman drafted
the statement, Mrs. Gray typed it up, and Robinson
signed the document and several carbon copies
thereof by printing his name thereon. The state-
ment is in the form of an affidavit, but was not ac-
tually notarized. It is dated December 15, 1969, but
the actual preparation of the statement and the
meeting at which it was signed by Robinson must
have occurred some 3 days later as the pleadings
show that a copy of the Union's unfair labor
charges against the Respondent was not served on
Respondent until December 18. Robinson 's wife,
who had been waiting for her husband in the hall,
was called in to countersign her husband's printed
signature as a witness . The document was received
in evidence as General Counsel's Exhibit 2.
The findings of the above paragraph are based on
the joint testimony of Robinson, Philip Roseman,
and Gayle Gray. (Mrs. Roseman did not testify
herein.) The credited testimony of Robinson shows
that he was also asked at the meeting under discus-
sion whether he had signed a union card and that
he had denied that he had. At the trial Robinson
acknowledged that his denials to the Rosemans that
he had signed a union card were untrue. His
testimony established that he was untruthful to the
Rosemans about this because of his fear that he
might lose his job if he had admitted that he had
signed a union card. It is inferred from the record
that Robinson was similarly untruthful to the
Rosemans in his oral and written denials (G.C. Exh.
2) that he had not been interrogated by Philip
Roseman and Gayle Gray concerning his union
sympathies and activities as found above. It is
similarly found that his motive for making such un-
true oral and written statements to the Rosemans
was his fear that he might lose his job if he had
been truthful.
Although there is no conflict in the testimony of
any of the witnesses that Robinson was questioned
by the Rosemans on or about December 18, 1969,
on whether he had anything to do with causing the
unfair labor charges here involved to be filed
against the Company, there is a direct conflict of
testimony on whether the Rosemans and Mrs. Gray,
prior to their questioning of Robinson , advised him
in the words of the complaint "that he did not have
to answer any questions or that his job would not
be in jeopardy as a result of his answers or if he
declined to answer."5
Both Mrs . Gray and Mr. Roseman were positive
in their testimony that Robinson was advised as
above-noted prior to his questioning . Mrs. Gray
testified that Mrs . Roseman read the charges to
Robinson in detail and that "After she got through
reading them to him , she told him at that time that
he did not have to answer any of her questions and
that his job was in no way threatened." Mrs. Gray
3 The findings of the above paragraph and the two paragraphs preceding
it are based on the credited testimony of Robinson which does not appear
to be denied by either Roseman or Mrs Gray, except that Roseman denied
ever telling Robinson that the plant would be closed if the Union came in or
asking Robinson whether he had signed a union card at the time indicated
above . These denials and others which may appear of record are not
credited
4 The text of the charges read in pertinent part as follows.
On or about November 5, 1969 , November 12, 1969 , and November
26, 1969 , the above -named Employer by its officers , agents, and
representatives interrogated an employee of the above -named Em-
ployer , one David Robinson , concerning his sympathy for, member-
ship in and/or activities in behalf of the Amalgamated Clothing
Workers of America, AFL-CIO
On or about November 12, 1969 , the above-named Employer by its
officers , agents and representatives threatened employees with plant
closure if the plant was unionized.
Par. 5 ( c) of the complaint alleges that Philip Roseman , Nettie
Roseman , and Gayle Gray interrogated an employee , identified at the trial
as Robinson , about his union sympathy and activities on behalf of the
Union, and questioned him concerning a charge filed with the Board
"without telling that employee that he did not have to answer any ques-
tions or that his job would not be in jeopardy as a result of his answers or
if he declined to answer "
HICKMAN GARMENT COMPANY
further testified that she likewise made the same
thing clear to Robinson . Mr. Roseman testified in
equally positive terms that Robinson had been
given this warning prior to any questioning.
Moreover , he stated that the warning was given to
Robinson on advice of counsel . Robinson, on the
other hand , denied that such a warning had been
given to him . The record shows that Robinson's
memory by his own admission is very poor.
Counsel for General Counsel in his brief seeks a
resolution of this conflict of testimony in favor of
Robinson 's testimony solely on the ground that
Roseman 's testimony is unreliable , but he wholly
overlooks the fact that Mrs. Gray, the Company's
personnel director , also testified that Robinson was
fully apprised of his rights before he was questioned
about his involvement in the unfair labor charges
against Respondent . I find Mrs . Gray to be a
completely forthright , honest , and sincere witness
and accord her testimony full credibility.'
While it is true that Roseman 's testimony as a
whole did not inspire confidence,? his testimony
that Robinson was apprised of his rights before he
was questioned is credited because it was cor-
roborated by Mrs . Gray and also because circum-
stances compel the conclusion that such a warning
would have been given Robinson before he was
questioned . Prior to the commencement of the
present proceeding , the Company had undergone
two unfair labor practice trials . In each of these
earlier trials as well as in the instant case it was
represented by counsel . Roseman credibly testified
that he questioned Robinson on the charges here
involved on the advice of counsel. Mrs. Roseman
who apparently did most of the questioning of
Robinson is herself an attorney . These facts make it
fairly certain that Mr. and Mrs. Roseman would
have in their own self-interest sought to protect
themselves against another unfair labor charge by
following their counsel 's advise that they acquaint
Robinson of his rights before they started question-
ing him about the charge.
I find that Robinson, despite his denials , was fully
apprised in advance of his questioning on the unfair
labor charges of his right to remain silent and of his
right not to have his job jeopardized by his silence
or as a result of his answers . Whether such for-
malistic compliance with what the Rosemans be-
lieved to be the requirements of the law constitutes
a defense to the allegations of paragraph 5(c) of
the complaint will be determined below.
Mrs Gray , for example , under cross-examination promptly and
unequivocably acknowledged that Robinson could neither read nor write.
She was in a position to know as she was payroll master , personnel director,
and office manager The record shows that Robinson consulted her on per-
sonal matters , such as making a loan from the Company
' Contrary to the testimony of his own personnel director , Mrs Gray,
and that of Robinson and his wife , Minnie, Roseman testified that Robin-
son could write He based this claim on an asserted statement he said he
saw Robinson print in his presence , but did not produce the document
Discussion and Conclusions
891
Of the various offenses against the Act charged
to the Respondent by the complaint herein, the
most serious appears to be the admitted interroga-
tion of employee Robinson by Philip Roseman and
Nettie Roseman, his wife, on December 18, 1969,
on whether or not Robinson had a part in instigat-
ing the charges which lead to the issuance of the
complaint. Robinson's credited testimony further
shows that he was also interrogated by the
Rosemans on whether or not he had signed a union
card. The circumstances surrounding the meeting
to which Robinson was summoned were ominous.
At the end of the workday that day, Robinson
found his timecard missing from the rack. This
meant that he was wanted at the front office. At the
office, he found the two Rosemans and Mrs. Gray
waiting for him; for Robinson these three persons
constituted the Company. They waived a paper at
him and told him that it was a charge filed against
the Company by the Union. They told him that his
name was mentioned in the charge and read to him
the charge which alleged that he had been inter-
rogated by officers and agents of the Company on
various dates and asked him whether it was true.
Out of-fear of losing his job, Robinson denied to the
Rosemans and Mrs . Gray the allegations of the
charge that he had been interrogated by officers
and agents of the Company (although the evidence
herein shows that in fact he had been so inter-
rogated), and readily agreed upon their request to
give the Rosemans an affidavit to this effect . Robin-
son, in making such untruthful denials, was un-
doubtedly motivated by his remembrance that the
Company had in a previous year fired many em-
ployees because of their union sympathies and ac-
tivities . (Reference is again made to the Board's
Decision and Order of July 12, 1968, in 172 NLRB
1168, in which it was found that Respondent had
engaged in massive terminations in violation of Sec-
tion 8 ( a)(3)).
I find and conclude that the interrogations
discussed above were markedly coercive in nature
constitute violations of Section 8(a)(1) of the Act.
In the complaint issued herein the Regional
Director saw fit to couple the allegation that Philip
and Nettie Roseman and Mrs. Gray questioned an
employee ( Robinson ) concerning the charge filed
with the Board with the allegation that such
questioning of the employee was done "without
telling that employee that he did not have to answer
This claim is not credited The record also otherwise shows testimony by
Roseman which reflects on his sincerity as a witness Asked on cross-ex-
amination if his wife , Nettie Roseman , was an attorney , he replied half-eva-
sively , " 1 believe she is." Upon further inquiry from union counsel,
Roseman answered , " She is not a practicing attorney if that 's what you
mean ." Pressed for an answer if his wife ever practiced law, Roseman
replied , " I have no idea . I met her after the War She hasn 't practiced all
this time . She has practiced on me "
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any questions or that his job would not be in
jeopardy as a result of his answers if he declined to
answer ." Presumably this was done on the authority
of Johnnie's Poultry Co., 146 NLRB 770, 775, en-
forcement denied 344 F.2d 617 (C.A. 8),8 as coun-
sel for General Counsel cites the case in his brief.
(It will be recalled that neither the Respondent nor
the Union herein filed a brief.) The Board in that
case held that "despite the inherent danger of coer-
cion " in interrogations by an employer of an em-
ployee on matters involving his Section 7 rights, an
employer may interrogate an employee in an "in-
vestigation of facts concerning issues raised in a
complaint where such interrogation is necessary in
preparing the employer's defense for the case." The
Board in that case specifically held that it was not
passing on the question of whether such privilege of
investigation by interrogation of an employee
would ordinarily extend to a case where "the Board
was still investigating charges and before any com-
plaint issued." ( Emphasis supplied.)
In the instant case the interrogations by Philip
and Nettie Roseman of Robinson on the charge
filed with the Board took place on December 18,
1969. The complaint herein was issued on January
30, 1970. In view of the fact that the interrogations
took place approximately 6 weeks prior to the is-
suance of the complaint, the privilege accorded an
employer by Johnnie's Poultry Co., to interrogate
employees on matters involving their Section 7
rights without incurring an 8(a)(1) liability is
clearly inapplicable because the Johnnie case
makes that privilege applicable only after a com-
plaint has been issued. In view of this, I find and
conclude that that part of the allegations of para-
graph 5(c) of the complaint which states that the
questioning of an employee (Robinson) by Respon-
dent's agent (Philip and Nettie Roseman) on the
charge filed with the Board was done "without
telling that employee that he did not have to answer
any questions or that his job would not be in
jeopardy as a result of his answer or if he declined
to answer" is surplusage and contains an element of
proof not required of General Counsel.
As a corollary I further find and conclude from
the finding above that the Rosemans and Mrs. Gray
prior to the Rosemans ' questioning of Robinson on
the charge filed by the Union with the Board told
him that he did not have to answer any of their
questions and that his job was in no way threatened
is not a defense to the interrogation which I find to
be markedly coercive in nature and, accordingly, in
violation of Section 8(a)(1) of the Act.
I further find that in any event the privilege of
the Johnnie case under all the circumstances of the
instant case would not be applicable to the Respon-
dent. The Johnnie case described the privilege as
follows:
In allowing an employer the privilege of
ascertaining the necessary facts from em-
ployees in these given circumstances, the
Board and courts have established specific
safeguards designed to minimize the coercive
impact of such employer interrogation. Thus,
the employer must communicate to the em-
ployee the purpose of the questioning , assure
him that no reprisal will take place , and obtain
his participation on a voluntary basis; the
questioning must occur in a context free from
employer hostility to union organization and
must not be itself coercive in nature ; and the
questions must not exceed the necessities of
the legitimate purpose by prying into other
union matters , eliciting information concerning
an employee's subjective state of mind, or
otherwise interfering with the statutory rights
of employees. When an employer transgresses
the boundaries of these safeguards, he loses the
benefits of the privilege. [ Emphasis supplied.]
It is noteworthy that the Board 's description of
the privilege is not rigid and inflexible . On the con-
trary, any fair reading of the conditions under
which the privilege is to be accorded reflects the
rule that the trier of the facts in each case must
determine whether the employer obtained the par-
ticipation of the employees on an essentially volun-
tary basis, whether the interrogation by itself was
coercive in nature , and whether the conduct of the
employer under all the circumstances of the case
transgressed the boundaries of the safeguards set
forth in the Johnnie case and thereby forfeited the
benefits of the privilege under discussion.
The circumstances of this case requires the find-
ing that the Rosemans trangressed these safeguards.
Philip Roseman knew or should have known in ad-
vance that he was the unnamed officer named in
the charge who was alleged to have interrogated
Robinson about his union sympathies and activities.
Consequently his true purpose was not to inter-
rogate for information purposes but to intimidate
Robinson. Roseman and his wife, Nettie, knew that
Robinson was an uneducated, illiterate person and
that Robinson and his wife, Minnie, were totally de-
pendent upon their jobs at the plant for a
livelihood. The interview of Robinson was not con-
ducted by Philip Roseman alone. Nettie Roseman
was in on the interview and Mrs. Gray, although
she did not interrogate, was present. The obvious
purpose of the interview was to intimidate Robin-
son. That is what happened. Robinson for fear of
losing his job denied, contrary to the facts, that he
had had any complicity in the charges and acceded
to the Rosemans' request for a written statement to
this effect. It is inferred that the Rosemans wanted
Robinson's written statement for the purpose of
warding off a complaint, if possible.
'The enforcement proceeding in 344 F.2d 617 has no bearing on the
principle for which Johnnie 's Poultry Co , case is here cited.
HICKMAN GARMENT COMPANY 893
Although Mrs. Gray did not personally engage in
the interrogation of Robinson, the fact that she was
at all times present at the interrogation in her
capacity as office manager and personnel director
and that she had personally participated in the
preliminaries to the actual questioning by putting
Robinson on notice of his Section 7 rights made her
for all practical purposes a party participant in the
interrogation. Accordingly, I find and conclude that
her participation to the extent noted in Robinson's
interrogation was in violation of Section 8(a)(1) of
the Act.
The remaining allegations of 8(a)(1) violations
of the Act do not require extensive discussion.
Under paragraph 5(a)(i), the complaint alleges that
Philip Roseman on November 5, 1969, interrogated
an employee concerning his or his spouse's union
sympathies and activities. As no evidence was ad-
duced in support of this allegation, it will be recom-
mended that that portion of the complaint be
dismissed for failure of proof. However, the record
does show, as found above, that Roseman on
November 5, 1969, did interrogate Robinson on
whether his wife, Minnie, another employee at the
plant, was being solicited to sign a union card by
Beverly Callison, a recently reinstated dis-
criminatee. Although this incident is not alleged in
the complaint, it was litigated by consent. I find
that this incident, especially in the light of the
findings made in 172 NLRB 1168, supra, and in the
light of the events of December 18, 1969, as above-
described, constitutes coercive interrogation in
violation of Section 8(a)(1) of the Act.
Similarly, I find Philip Roseman 's remark on
November 26, 1969, to Robinson that the plant
would be closed if the Union comes in constitutes a
threat against the rights guaranteed in Section 7 in
violation of Section 8(a)(1) of the Act.
Finally, with reference to the findings made
above that Philip Roseman and Mrs. Gray
questioned Robinson on November 26, 1969, on
whether he had signed a union card, I conclude that
the interrogation was coercive in nature as the
record supports the finding by inference that the
purpose of the interrogation was to find employees
who were "sorry" they had signed up with the
Union so that the Company could aid them in
withdrawing from the Union. The mere act of try-
ing to find employees who were "sorry" that they
had signed up with the Union would have a power-
ful coercive effect on employees so interrogated
with respect to their Section 7 rights. It follows that
the interrogation of Robinson by Philip Roseman
and Mrs. Gray was in violation of Section 8(a)(1)
of the Act.9 The complaint also alleged that Robin-
son on the same occasion was questioned about his
wife's union sympathy and activities. As no
evidence was adduced in support of that allegation,
that part of the complaint will be recommended for
dismissal for failure of proof.10
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section
III, above, occurring in connection with the opera-
tions described in section I, above, have a close, in-
timate, 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
It having been found that the Respondent en-
gaged in unfair labor practices in violation of Sec-
tion 8(a)(1) of the Act, it will be recommended
that Respondent cease and desist therefrom and
take certain affirmative action designed to effectu-
ate the policies of the Act.
Due to the nature and extent of Respondent's
previous unfair labor practices as found by the
Board in 172 NLRB 1168, and the continuation of
similar unfair labor practices as further reflected in
the findings herein , it is also recommended that an
order again be entered requiring the Respondent to
again cease and desist, as was done in 172 NLRB
1168, from infringing in any manner upon the
rights guaranteed in Section 7 of the Act. N.L.R.B.
v. Express Publishing Company, 312 U.S. 426;
N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A.
4).
Upon the basis of the foregoing findings of fact
and upon the record as a whole, I make the follow-
ing:
CONCLUSIONS OF LAW
1. By interfering with, restraining , and coercing
its employees in the exercise of the rights guaran-
teed in Section 7 of the Act, Respondent engaged
in unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act.
2. The aforesaid unfair labor practices are unfair
labor practices within the meaning of Section 2(6)
and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law and upon the entire record in
the case, it is recommended that Respondent,
s This interrogation of Robinson by Roseman and Mrs Gray as to
whether he had signed a union card is deemed to be an interrogation of
Robinson "concerning his ... Union sympathy and activities " as alleged in
par 5 ( b) of the complaint as a violation of Sec 8 ( a)(I) of the Act
10 This little case with a transcript of testimony of only 92 pages bristles
with problems which were either not recognized by counsel for General
Counsel or ignored and passed on to the Trial Examiner without benefit of
briefing in his 3-1/2-page brief under the caveat , " While this brief may not
treat all aspects of the case , this is not to be construed as an abandonment
of any conclusions of law or findings of fact in support of the complaint,
which can or should be drawn from the record as a whole."
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hickman Garment Company, of Hickman, Ken- APPENDIX
tucky, its officers, agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Coercive questioning of employees as to
whether they have signed union authorization
cards.
(b) Questioning employees as to whether other
employees have been soliciting union authorization
cards from fellow employees.
(c) Questioning employees as to their union
sympathies and activities.
(d) Questioning employees in a coercive manner
concerning charges filed with the Board.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Post at its plant at Hickman, Kentucky, co-
pies of the attached notice marked "Appendix.""
Said notice, on forms provided by the Regional
Director for Region 9, after being duly signed by
Respondent'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 customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 9, in
writing, within 20 days from the receipt of this
Decision , what steps have been taken to comply
herewith. 12
IT IS FURTHER RECOMMENDED that the complaint
be dismissed to the extent that it alleges unfair
labor practices not found herein.
" In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations, and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals , the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board " shall be changed to read " Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
" 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 "
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unlawfully question you about
your union sympathy and activities.
WE WILL NOT unlawfully question you about
the union sympathy and activities of other em-
ployees at the plant.
WE WILL NOT threaten to close down the
plant if the Amalgamated Clothing Workers of
America , AFL-CIO, becomes the bargaining
representative of the employees in our plant.
WE WILL NOT unlawfully question you about
any unfair labor charge filed against our Com-
pany with the National Labor Relations Board.
WE WILL NOT in any other manner interfere
with , restrain , or coerce any employees in the
exercise of their right to self-organization, to
form labor organizations , to join or assist the
above-named or any other labor organization,
to bargain collectively through representatives
of their own choosing, or to engage in other
concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protec-
tion , or to refrain from any or all such activi-
ties.
HICKMAN GARMENT
COMPANY
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, Room 2407, Federal Office Build-
ing, 550 Main Street, Cincinnati, Ohio 45202,
Telephone 684-3686.