Hickman Garment Co.

National Labor Relations Board - Board Decisions

Aug 11, 1970

184 N.L.R.B. 864 (N.L.R.B. 1970)

864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hickman Garment Company and Amalgamated
Clothing Workers of America , AFL-CIO. Cases
9-CA-4872, 9-CA-4944, 9-CA-4967,
9-CA-5288, and 9-RC-7797
August 1 1, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND BROWN
On March 17 , 1970, Trial Examiner Melvin Pol-
lack issued his Decision in the above -entitled
proceeding , finding that Respondent had engaged
in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner 's Decision. He
also found that Respondent had not engaged in
other unfair labor practices alleged in the com-
plaint and recommended that such allegations be
dismissed . Finally, the Trial Examiner found that
certain conduct of Respondent after the petition in
Case 9-RC-7797 was filed interfered with the elec-
tion , and recommended that the election be set
aside and the petition dismissed. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision , a supporting brief, and an answering
brief, and the Charging Party filed cross -exceptions
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
briefs, and the entire record in the case , and hereby
adopts the findings , conclusions , and recommenda-
tions of the Trial Examiner , as modified below.
We agree with the Trial Examiner 's findings that
Respondent violated Section 8(a)(1) of the Act by
unlawful interrogation , promises of benefits , threats
that the employees might have less work if the
Union were voted into the plant , attributing loss of
I As found by the Trial Examiner , there were 208 employees in the unit
on July 5, 1968 We find that the Union had obtained valid cards from 116
employees in the unit as of that date In addition, we note that the Union
received valid cards from Joyce Cunningham , Ruth Cunningham, Mary
Freeman , Brenda Giles, Shirley Lockard, and Lana Stowe before July 23,
1968 (see Appendix ), thus increasing the number to 122 by the later date
In accepting as valid the cards with printed signatures, we note that each
was authenticated by the testimony of the solicitor who witnessed the "sig-
ning" of the card McEwen Manufacturing Company, eta! , 172 NLRB No
employees ' vacation pay to the Union, and dis-
tributing coercive antiunion propaganda during the
election campaign ; and that Respondent violated
Section 8 (a)(3) by discharging employees Lizzie
Hendrix , Evelyn Jackson, Maycel Phipps, Connie
Kennedy, Blossie Westbrook, and Beverly Callison
for discriminatory reasons . We further agree with
the Trial Examiner 's finding that Respondent's
refusal to bargain with the Union on and after June
20, 1968, violated Section 8(a)(5) and (1) of the
Act, and that a bargaining order is necessary to
remedy the effects of its unfair labor practices.
The record shows, and we find, that the Union
represented a majority of the employees in the
stipulated unit at the time it demanded bargaining.'
As already noted , subsequent to the demand,
Respondent engaged in extensive violations of the
Act which involved every employee in the unit. We
note further that the Board has previously found
that this Respondent has engaged in a pattern of
similar unfair labor practices at this plant during
the same campaign .2 Respondent's flagrant repeti-
tion of conduct previously found unlawful not only
precluded the holding of a fair election in the
representation proceeding the Union had instituted,
but in our judgment was of a sufficiently pervasive
and extensive character to have undermined the
Union's preexisting majority . We are of the further
opinion that the lingering effects of the Respon-
dent's past coercive conduct render uncertain the
possibility that traditional remedies can ensure a
fair election . We therefore conclude, on balance,
that the Union's majority card designations provide
a more reliable test of employees ' desires and
better protect employee rights than would a rerun
election.3 In these circumstances, we believe that
restoration of the status quo ante required in order
to vindicate employee rights and prevent the Re-
spondent from profiting from its own unfair labor
practices would necessitate a bargaining order even
absent an 8(a)(5) violation. Additionally, we find
that by refusing to recognize and bargain with the
Union and by engaging in the aforesaid unfair
labor practices, the Respondent violated Section
8(a)(5) and (1) and that the policies of the Act
will best be effectuated by imposition of a bargain-
ing order to remedy such violations.4
99 (cards of Bishop and Black)
2 Hickman Garment Company, 172 NLRB No 118, enfd 408 F 2d 379
(C A. 6), cert denied 396 U.S 838
s N L R B . v Gisse! Packing Company , 395 U S 595
' The Charging Party has filed exceptions to the Trial Examiner's failure
to recommend that the Respondent be ordered to make employees whole
for losses suffered as a result of the Respondent's refusal to bargain, mail
copies of the notice to employees of the Hickman Garment Company and
(Continued)
184 NLRB No. 99
HICKMAN GARMENT COMPANY 865
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.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges viola-
tions of the Act not found herein.
IT IS HEREBY FURTHER ORDERED that the election
held on September 27, 1968, in Case 9-RC-7797
be, and it hereby is, set aside and all proceedings in
that case be, and they hereby are, vacated.
(Continued)
the Ridgely Manufacturing Company; require a responsible company offi-
cial to read the Board 's notice to each employee of the Hickman Garment
Company and the Ridgely Manufacturing Company, grant to the Union
reasonable access for a 1-year period to the Hickman Garment Company
plant bulletin boards, grant to the Union, upon request, made within I year
of the issuance of this Decision , a list of names and addresses of all bargain-
ing unit employees at Hickman Garment Company, and make available,
upon request , suitable facilities for employee meetings so that the Union
may present its views to the employees assembled on company time at a (-
hour meeting at the plant We deem it inappropriate in this case to depart
from our existing policy with respect to remedial orders in cases involving
violations of Section 8(a)(5), or violations of Section 8(a)(3) and (I) We
therefore find no merit in these exceptions . See Monroe Auto Equipment
Company, Hartwell Division, 164 NLRB 1051, Marine Welding and Repair
Works, Inc., Williamson Engine and Supply, Inc., Greenville Manufacturing
and Machine Works, Inc, Greenville Propeller Works Inc., 174 NLRB
661 -2-67
APPENDIX
1. Anderson, Adell 3-8-67
2. Baggett , Minnie 11-15-67
3. Baker , Ruby 1-25-68
4. Barnett , Betty 6-18-68
Jean
5. Basham , Kathleen 4-18-67
H.
6. Bass, Birtie 4-24-67
7. Belt , Shirley Ann 3-16-68
8. Bequette , Laverne 11-8-67
9. Blackburn , Elneda 3-20-67
10. Booker , Betty 3-23-67
11. Bradley, Betty 2-2-67
Jean
12. Bradshaw , Arey 3-27-67
13. Brawner , Susie 2-1-67
14. Bridges , Helen 6-24-68
Louise
15. Brooks, David L. 2-14-68
16. Brown , Helen 6-27-68
Frances
17. Bryson, Charles 6-4-68
18. Bryson , Hazel 9-6-67
19. Cagle, Betty 2-1-67
Louise
20. Caldwell, Pamela 6-20-68
Louise
21. Callison, Beverly 2-1-67
22. Campbell, Sue 2-23-67
23. Carr, Rena 6-10-68
24. Carr , Steve 6-4-68
25. Cheers, Lillie 2-2-67
Mae
26. Choate, Linda 2-1-67
27. Council, Norma 2-1-67
28. Craddock, Linda 3-16-67
Kay
29. Crittenden, 2-6-68
Brenda Sue
30. Crittenden, 2-6-68
Charles
31. Crumble, Cecil 6-28-68
32. Cunningham, 7-8-68
Joyce
33. Cunningham, 7-12-68
Ruth
34. Dean, Jeannette 5-7-67
35. DeHart, Mattie 2-1-67
36. Dickerson, 5-7-67
Flossie
37. Eakes, Betty • 6-26-68
38. Eakes, Martha 3-17-67
Ann
39. Edgin, Glenda Jo 2-1-67
40. Edwards, Amrit 4-26-67
41. Elliott, Ada Faye 5-6-68
42. Farmer, Janice 2-1-67
43. Ferrell, Allene 11-8-67
44. Flanigan, Rose 6-20-68
Marie
45. Freeman, Mary 7-8-68
London
46. Freeman, Willie 6-27-68
Mae
47. Gibson, Dorothy 2-1-67
48. Giles, Brenda 7-23-68
Kay
49. Giles, Clarence 6-20-68
50. Goodman, Jo 2-1-67
Ann
51. Goodman, Mary 5-15-67
52. Gougar, Maudie 3-16-67
53. Graham, Nancy 6-20-68
Ellen
54. Green, Mary B. 4-11-68
55. Haney, Edna 2-1-67
Rose
56. Harris, Evelyn 5-13-68
57. Harrison, Doris 3-13-67
866 DECISIONS OF NATIONAL
58. Harvey, Aggie 11-30-67
Lee
59. Henderson , Doris 6-21-68
L.
60. Henderson , Mary 6-28-68
Sue
61. Hendrix , Lizzie 4-7-67
62. Hickman , Mary 2-1-67
63. Higgins , Peggy 2-1-67
64. Jackson , Dorothy 2-1-67
65. Jackson , Evelyn 6-12-68
66. Jones, Ada 6-24-68
Lucille
67. Jones, Julia 6-20-68
68. Jones, Leona 2-1-67
69. Jones, Phillip W . 6-24-68
70. Keath , Janeta I. 3-7-67
71. Kennedy , Connie 2-1-67
Patricia
72. Kinney , Mildred 3-13-67
73. King, Melba 4-24-67
74. Lane, Margaret 6-24-68
75. Lockard , Shirley 7-17-68
Kathryn
76. Logan , Margaret 2-1-67
G.
77. Luter , Leone 3-2-67
78. Mays, Bettye 11-16-67
Dean
79. McClure , Paula 2-1-67
R.
80. McDaniel , David 6-19-68
Scruggs
81. Murphy, Marcine 3-14-67
82. Nerren, Dianna 3-5-68
H.
83. Newberry, Ann 5-24-68
84. Nichols, Franklin 6-27-68
85. Pannell , Rachel 6-20-68
Darlene
86. Pewett , Wilma 3-16-67
87. Phipps , Maycel 6-3-68
88. Pierce , Betty 3-5-67
Ruth
89. Pillow , James 6-21-68
Thomas
90. Pratt, Sandra 6-14-68
Jean
91. Raymond , Etthyl 3-1 1-67
Lean
92. Rice, Ruth Ann 3-20-67
93. Riley, Mary Lee 6-19-68
94. Roberts , Beatrice 3-1-67
95. Robinson , 4-4-67
Minnie Mae
96. Sharp , Ruby 6-17-68
97. Staggs , Mary 3-28-67
LABOR RELATIONS BOARD
98. Stowe, Lana 7-17-68
99. Stray, Annie 11-30-67
Russell
100. Stray, Norma 6-24-68
Lou
101. Tarver, Swan 6-5-68
102. Taylor, Mildred 11-15-67
103. Thomas, Betty 3-15-67
Lou
104. Thompson, 3-27-67
Virginia
105. Thurman, 2-28-67
Shirley
106. Vaught, Rose 2-27-68
107. Walsh, Mary 4-15-68
Sue
108. Warren, 6-18-68
Dorothy Ann
109. Warren, 6-29-68
Josephine
110. Warren, Marion 4-12-68
Lee
111. Westbrook, 5-23-68
Blossie
112. Whitlock, Rose 6-24-68
113. Wilkerson, 11-8-67
Florence
114. Williams, Bertie 3-14-67
115. Williams, Joyce 6-26-68
Carolyn
116. Williams, Larry 6-25-68
Gene
117. Wilson , Iria J. 6-27-68
118. Winters, 6-18-68
Marjorie
119. Wirth, Francine 6-14-68
120. Woodruff, 3-22-67
Mildred
121. Workman, 2-2-67
Rosella
122. Wright, 2-2-67
Jimmie N.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN POLLACK , Trial Examiner : In this con-
solidated proceeding under Sections 9(c) and
10(b) of the National Labor Relations Act, as
amended (herein called the Act), the issues to be
decided are whether Respondent Hickman Gar-
ment Company interfered with, restrained, and
coerced its employees in the exercise of their rights
of self-organization; whether Respondent
discharged or otherwise discriminated against six
employees in order to discourage support of the
HICKMAN GARMENT COMPANY
Amalgamated Clothing Workers of America,
AFL-CIO, herein called the Union ; whether
Respondent refused to bargain with the Union; and
whether the objections filed by the Union to the
results of an election held on September 27, 1968,
should be sustained and the election set aside.'
The case was heard at Hickman , Kentucky, on
December 2, 3, 4 and 5, 1969. Briefs filed by the
General Counsel and by counsel for the Union have
been considered . Upon the entire record herein2
and my observation of the witnesses as they
testified , I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Kentucky corporation, is engaged
in the manufacture of clothing and garments at its
plant in Hickman , Kentucky . Its interstate sales ex-
ceed $50,000 annually. I find, as Respondent ad-
mits, that Respondent is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Union , which had unsuccessfully tried to or-
ganize the Hickman plant in the past , initiated a
new organizing campaign in January 1967. In
Hickman Garment Company, 172 NLRB No. 118,
enfd . 408 F .2d 379 (C.A. 6), cert. denied 396 U.S.
838, the Board found inter, alia that Respondent
during February and March 1967 discharged or
refused employment to 19 employees for engaging
in protected concerted or union activity , threatened
employees with loss of employment and lower
wages for engaging in union activity , and promised
employees increased benefits if they abandoned
their support of the Union.
Philip and Nettie Roseman are the principal of-
ficers of Respondent and of Ridgely Manufacturing
Company, which manufactures clothing at a plant
in Ridgely , Tennessee . On November 26, 1968, a
Trial Examiner's Decision issued in Ridgely Manu-
facturing Company, Case 26-CA-3143, finding
inter alia that Ridgely had violated Section 8(a)(1)
of the Act by coercively interrogating its employees
concerning their union membership and activities,
' In Case 9-CA-4872, a charge was filed on September 6, 1968, and a
complaint issued on October 30, 1968. In Case 9-CA-4944, charges were
filed on October 29, November 6, 14 and 21 , 1968, and a complaint issued
on January 20, 1969 In Case 9-CA-4967, a charge was filed on November
14, 1968, and a complaint issued on March 5 , 1969. In Case 9-CA-5288, a
charge was filed on August 8, 1969, and a complaint issued on September
19, 1969 The Board on August 21, 1969 , directed that a hearing be held
on objections filed by the Union in Case 9-RC-7797 The foregoing cases
were consolidated for hearing by the Regional Director for Region 9 by an
order dated September 19, 1969. In Case 9-CA-5420, a charge was filed
867
by theatening employees with loss of their jobs or
plant closure if they selected the Union as their bar-
gaining representative, and by promising employees
insurance benefits and putting them into effect to
dissuade them from supporting the Union. Ridgely
did not file timely exceptions and the Board, by or-
ders issued on December 31, 1968, and January 22,
1969, adopted the Trial Examiner's findings.
B. The Refusal to Bargain
On June 20, 1968, the Union sent Respondent a
letter requesting recognition and negotiations on a
contract for the production and maintenance em-
ployees at the Hickman plant. It offered to prove its
majority status by a card check conducted by a
neutral third party. President Philip Roseman
replied by letter dated June 25, 1968, that Respon-
dent had a good-faith doubt that the Union
represented "an uncoerced or properly informed
majority of our employees in any appropriate unit"
and suggested that the Union "process the matter"
before the Board. By letter dated July 3, 1968, the
Union requested Respondent to clarify its position
and again offered to prove its majority status by a
card check. On July 5, 1968, the Union filed its
petition for a Board election. In a letter dated July
10, 1968, Respondent's attorneys noted that the
Union had filed a petition with the Board and sug-
gested that the Union permit the Board to resolve
the matter of representation. On August 14, 1968,
the parties executed a Stipulation for Certification
Upon Consent Election.
The stipulated bargaining unit is composed of all
production and maintenance employees at the
Hickman plant, excluding all office clerical em-
ployees, professional employees, watchmen, guards,
and supervisors as defined in the Act. A check of
the union cards put into evidence against Respon-
dent's July 5, 1968, payroll shows that the Union
had cards from 116 employees out of 208 em-
ployees in the unit as of that date.3 I find below that
Respondent, upon the scheduling of the Board elec-
tion , engaged in unfair labor practices including
threats of economic reprisal, promises of benefit,
and discharges of employees because of their union
activity. I find that by refusing to bargain with the
Union and thereafter engaging in a series of unfair
labor practices which were calculated and tended
to undermine the Union's majority status, the
Respondent violated Section 8(a)(5) and (1) of the
Act. Easton Packing Company, 180 NLRB 1092.
on November 17, 1969 , and a complaint issued on November 25, 1969,
which was amended at the hearing after I granted the General Counsel's
motion to consolidate.
' The unopposed motion of the Union to correct the transcript of
testimony is granted
31 have not counted the cards of Joyce and Ruth Cunningham, Mary
Freeman , Brenda Giles , Shirley Lockard , and Lana Stowe , whose names
appear on the July 5 payroll , as these cards were signed after that date. Two
cards are in evidence for Ruth Rice , one dated in 1967 and one after July 5,
(Continued)
427-835 0 - 74 - 56
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Interference, Restraint , and Coercion
On August 14, 1968, Philip Roseman spoke to
the employees over the plant public address system.
Roseman testified that he read a prepared speech
and made no other remarks. According to the text
of the speech, Roseman said the Union had at-
tempted to make arrangements with Respondent to
collect dues from the employees "without giving
them an opportunity to vote in this most important
matter in secret" but that "the Federal Government
has agreed with your Company" that a secret ballot
election should be held at the plant on September
27, 1968. He advised the employees that they
would be exposed to "rumors, half truths and
misleading statements" by the Union and its sup-
porters . He said Respondent was "in trouble trying
to get out [ its] orders" and needed the support of
its employees to meet its commitments , but that the
dissatisfaction and problems caused among em-
ployees by the Union "can only hurt all of us at this
critical time in the life of this Company." He
promised that Respondent would keep the em-
ployee fully informed "so you will be able to make
the right decisions based on actual facts-not
promises."
Connie Kennedy testified that Roseman said the
Union wanted to come in and start collecting union
dues but that the Board made them have an elec-
tion . Roseman also said he "didn 't feel the Union
would do us any good and we would probably have
less work if the Union came in than we did now and
... it would cause trouble with the Government
contract."4 Kennedy 's testimony concerning
Roseman 's remarks on the Union 's attempt to col-
lect dues without an election and his feeling that
the Union could do the employees no good com-
ports with the text of the speech purportedly read
without deviation by Roseman . Kennedy's overall
testimony in the case is detailed and substantially
uncontradicted. For these reasons, I consider her a
reliable witness and credit her testimony that
Roseman included in his talk on August 14 state-
ments to the effect that the employees would
probably have less work and Respondent would
have trouble retaining its government contracts if
the employees selected the Union as their bargain-
ing representative . As Roseman did not accompany
1968. 1 have not included Ruth Rice as the record does not show that she
was continuously employed after she signed a card in 1967 The Union
would also include Brownie Kilpatrick A card for Martha Kilpatrick is in
evidence As the record does not show that Brownie and Martha Kilpatrick
are the same person, l have not counted this card.
While some cards were authenticated by signers , most cards were ad-
mitted into evidence over Respondent 's objection on the testimony of sol-
icitors that they saw the cards signed or that the employees in question
returned signed cards to them The Board has approved such authentica-
tion of cards . McEwen Manufacturing Company, et al., 172 NLRB No. 99.
(Two cards in evidence for Cecil Crumble are dated February 2 and
February 28, 1967. The latter carries a notation on the back " RCW wit-
nesses signing Feb. 28 , 1967." Union Representative Nunley identified the
solicitor as Roy Wren. I have counted this card.) The Board in the McEwen
case also approved cards with printed signatures . I have therefore counted
the cards of several employees who printed their names on the signature
these remarks with a "basis of objective fact to con-
vey [his ] belief as to demonstrably probable con-
sequences beyond his control,"5 I find that they
were not expressions of opinion protected by Sec-
tion 8 (c) of the Act but rather threats of reprisal
violative of Section 8(a)(1) of the Act.6
On August 22, 1968, Roseman stopped by El-
neda Blackburn 's machine and asked her what she
knew about the Union and if she wanted a union.
He commented that he knew she had never worked
for a union because he had "checked that out." As
Roseman 's interrogation of Blackburn concerning
her union knowledge and sentiments occurred dur-
ing an antiunion campaign marked by unlawful
threats, promises , and discharges , I find it tended to
restrain Blackburn in the exercise of her rights
under the Act, in violation of Section 8(a)(1) of
the Act.
On August 23, 1968, Mrs. Roseman spoke to the
employees . Connie Kennedy credibly testified con-
cerning Mrs . Roseman 's speech as follows: Mrs.
Roseman asked employees who had been visited by
union organizers to raise their hands . She said the
Union could not do any more for the employees
than what she was already doing and could not
promise them anything but a strike . She spoke
about high union dues and initiation fees and what
being on strike in New York had done to her
daughter . She said she would bargain with the
Union if it were voted in but that " bargaining could
go on and on and she didn 't have to do a thing she
didn 't want to." She said she had "new insurance"
for the employees "but the Union wouldn't let her
give it to us." She said if the Union came in,
production would continue , "while we were out on
strike walking the picket line that other people
would be there in our jobs drawing our paychecks."
After her speech , Mrs. Roseman came over to
Kennedy and said , " I hear you are for the Union.
Tell me what you think they can do for you." Ken-
nedy mentioned seniority , the setting of production,
and the payment of insurance premiums at a
unionized plant in Salant. Mrs. Roseman said she
"just didn't believe" Kennedy's complaints, and,
concerning insurance at the Salant plant, that it
"just wasn't so, that the Union did not pay the
insurance."
I find that Mrs. Roseman violated Section
line
Although many cards were signed more than 1 year prior to the Union's
bargaining requests , I have counted them as they were obtained during an
organizing campaign interrupted by the filing and processing of unfair
labor practice charges Blade- Tribune Publishing Company, 161 NLRB
1512
4 Respondent at all relevant times manufactured Army raincoats exclu-
sively at the Hickman plant
" N L R B . v Gissel Packing Co., 395 U S . 575, 618
° Maycel Phipps testified that the "only thing" she remembered
Roseman saying "was something about the Studebaker plant closing and
we did not want that to happen at Hickman " As Phipps admitted that she
was not " paying too much attention ," I am not satisfied that her recollec-
tion of Roseman 's remarks on August 14 was accurate and therefore do not
credit her testimony in this respect
HICKMAN GARMENT COMPANY
8(a)(1) of the Act by: (1) Asking employees who
had been visited by union organizers to raise their
hands, (2) identifying Connie Kennedy as a Union
supporter and asking her what she thought the
Union could do for her, and (3) telling the em-
ployees that they would have received insurance
benefits but for the Union. I further find that Mrs.
Roseman 's remarks were calculated to convince the
employees that collective bargaining on Respon-
dent's part would be a sham, and that a strike and a
consequent loss of employment were inevitable if
the employees selected the Union as their bargain-
ing representative. As her remarks thus stressed the
futility of union representation and implied a threat
of economic reprisal should the employees select
the Union as their bargaining representative at the
Board election, I find them violative of Section
8(a)(1) of the Act. Cf. N.L.R.B. v. Gissel Packing
Co., 395 U.S. 575, 619-620; Kellwood Company,
etc., 178 NLRB 20.
Mrs. Roseman again spoke to the employees on
August 27, 1968. Elneda Blackburn credibly
testified that Mrs. Roseman told the eemployees
the Union would not do more for them than what
she was already doing. If they went out on strike,
replacements would be hired. She asked an em-
ployee if she wanted a union in there, and said she
would not be able to get contracts "like she had
been getting" if the Union came in . She knew of
factories that had been closed "due to the union
trying to come in on them." The Union could not
get them more pay unless she and her husband
"wanted us to have it." The "court fees and so on
with the Union" had interfered with production so
that "she could not pay us the holiday fees like she
had been paying us." The union people were
"gangsters" who "just wanted paychecks and fees"
which would be sent to New York, and the em-
ployees would get no benefit in return.7
I find that Mrs. Roseman violated Section
8(a)(1) of the Act by her assertions, unaccom-
panied by objective facts, that: (1) Respondent
would lose contracts if the Union came in, (2)
Respondent could not give the employees their
usual holiday pay because its involvement with the
Union had interfered with production, and (3) the
Union had caused other plants to close. I further
find that her overall remarks on the futility of union
representation, strikes, and loss of employment
were substantially repetitive of her remarks on Au-
gust 23 and equally violative of Section 8(a)(1) of
the Act.
On September 24, 1968, a birthday party was
given at the plant for Mrs. Roseman.' The party
was attended by the Rosemans , their daughter, and
'Maycel Phipps also testified concerning an August 27, 1968 , speech by
Mrs. Roseman " about the union " She said Mrs Roseman said union dues
would be $3 to $4 a month and "would go to the New York gangsters "
Mrs Roseman then asked Phipps, "You worked in a union company What
have they ever done for you?" Phipps replied she had not worked there
long enough to know
6 Ethyl Raymond testified that this was the only birthday party for Mrs.
869
all the employees. Mrs. Roseman received a gift
from the employees' and the employees were
served a free luncheon. That afternoon, Respon-
dent distributed a leaflet reading: "Don't let the
Union Gum Up the Works. Don't Get Stuck. Vote
No!" A package of gum was attached to each
leaflet.
Although I do not doubt that the unprecedented
birthday party for Mrs. Roseman was part of
Respondent's antiunion campaign, I do not con-
sider the serving of a free lunch to the employees or
the distribution of packages of gum after the party
a grant of benefits sufficient to warrant a Section
8(a)(1) finding.
On September 25, 1968, Mrs. Roseman spoke to
the employees "one [section] at a time." I find that
she told the employees substantially the following:''
The Union made a lot of promises it could not keep
and would make the employees pay high dues and
high initiation fees and also make them pay em-
ployees on strike against other companies. Respon-
dent's government contracts could be broken if the
plant were unionized, the plant might have less
work for the employees, and the plant could go else-
where. The Union had promised the employees
better' pay and holidays but the Union could not
make her and her husband do anything they did not
want to do. If the Union came in, and someone in
the Union did not like any employee, that employee
could be fired, She could not give the employees
better insurance now because of the Union, but
they would get better insurance and she was work-
ing on a July vacation of a week with pay for the
employees.
Mrs. Roseman showed the employees a number
of slides. One slide showed picketing of a plant
where grass and weeds had grown around the plant.
She asked, "Is this what you want to happen to
your plant?" Another slide showed a man on a scaf-
fold with a rope around his neck. Mrs. Roseman
asked, "Would you want this to happen to you
because of the Union?"
Mrs. Roseman said if the Union got in, it could
strike the next day and that was what it was for,
that it always came around and tried to stir up trou-
ble "after you get a job and get established in a
plant." If the employees struck for more pay than
she was willing to pay, she would hire other hands
to replace the strikers.
I find that Mrs. Roseman violated Section
8(a)(1) of the Act by: (1) her assertions that
Respondent might lose its government contracts,
the plant could go elsewhere, and the employees
might have less work if the plant were unionized;
(2) her statements that the employees would get
Roseman at the plant in the 5 years Raymond had worked for Respondent
0 A collection for the gift had been taken up by Supervisor Mildred
Glidewell
10 These findings are based on a synthesis of the testimony of Ethyl
Raymond , Sue Campbell , Maycel Phipps, Leona Roberts, Hilda Everett,
and Lillian Parker
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
better insurance ," and that she was working on a
July vacation with pay for the employees ; and (3)
her statements , highlighted by slides, to the effect
that union representation was futile , and that it in-
evitably would lead to strikes, loss of employment,
and the closing of the plant.
On September 26, 1968, the day before the
Board election, Philip Roseman spoke to all the
employees from a platform "erected in the middle
of the plant near the entrance." He testified that
he did not "deviate one bit" from a printed speech
which he read "word for word." According to the
text of this speech, Roseman said inter alia:
Now if you decide you want a union, and
that's your right, we'll bargain in good faith
and make concessions to the union. We hope
there wouldn't be a strike. But I do want to
make one thing clear to everyone. If there is
a strike here, and make no mistake about it-
we'll take a strike to stay economically
competitive. If this happens, we have a gov-
ernment contract which we have to finish so
we probably won't operate this plant during a
strike, because it probably wouldn't be effi-
cient. We'll make everything that is being made
here now in another plant during the strike.
Make no mistake, I'll do this if economically
necessary.
Now let me explain to you what a union can
get for you-nothing . A union can't get you
anything by itself-it has to get the company to
give it and if we won 't or can 't, all they can do
is strike . Bargaining starts from zero or scratch.
In other words everything you now have is up
for grabs. You could get less money ; you could
get more money . The Union might trade lower
pay and some of your holidays for a union dues
clause-and this happens every day.
Many of you know my daughter , Betty, who
used to work in the plant . She's a school
teacher and has been out on strike for over a
month . Betty and 53,000 of her fellow teachers
are out on strike now. She lost her apartment
because she 's broke. The union promised her
strike money and she never got any . In short
Betty doesn 't have a job now because she went
out on strike . She told me the union lied to her
and she wished she hadn 't believed them. Betty
didn 't get anything for her dues money. She
said she might as well have thrown the money
away because the union didn 't get or give her
anything except to cause her to lose her job.
That 's just one reason the union won't put
anything in writing . They would rather lie
about insurance and other things . If they put it
in writing you could sue them for lying to you.
" Insurance leaflets were distributed to the employees about September
20, 1968 , and the employees received improved insurance benefits after
the September 27 election . I find that Respondent granted these benefits
for antiunion reasons , in violation of Section 8 ( a)(1) of the Act Exchange
Now we've had a lot of production problems
here as all of you know , but I think we're just
above over the hump . This can mean a better
life for all of you if we can continue working
together free from possible union trouble.
We're a small company and I don 't think a
union will help anyone ; it could hurt all of us.
This I sincerely and honestly mean.
Now let me repeat several things because of
their importance:
1. Bargaining starts from scratch or zero.
You could get more or you could get less.
2. If there 's a strike we'll probably be forced
to make most of our coats in another plant
during the strike because it would probably be
too inefficient to make them here.
3. If you have signed a union card,-Re-
member you can vote no. This is your right
under the law.
Ethyl Raymond testified that Roseman included
in his speech a statement that the government con-
tract would be broken and the plant closed down
"if they got a union in the plant ." Sue Campbell
testified that Roseman said "if the Union came in,
the coats would be made at another plant " and that
"the Union couldn 't guarantee our jobs." In a
pretrial affidavit' 12 Blossie Westbrook stated that
Roseman declared that if the Union got in , before
he would let them take away his factory, he would
take all the coats to Ridgely and the employees
would be out of a job.
I find it unnecessary to determine to what extent
Roseman may have deviated from this prepared
speech, for I find that this speech was not signifi-
cantly different from the speeches of Mrs. Roseman
in its emphasis on the futility of union representa-
tion , strikes, and loss of employment if the Union
won the election . In this context, Roseman 's asser-
tion that he would manufacture coats elsewhere in
the event of a strike was tantamount to a declara-
tion that he would close the Hickman plant if the
Union won the election . I find , accordingly, that
Roseman 's speech contained threats of economic
reprisals against the employees if they selected the
Union as their bargaining representative and hence
that it was violative of Section 8(a)(1) of the Act.
Respondent distributed some 15 pieces of anti-
union material during the election campaign, includ-
ing:
A leaflet to "Vote No ... if you want Steady
Work" and don't want "Strikes" or "Dues,
Fines, Assessments ," " Union Domination ," "Con-
stant Uncertainty ,"and "IF you don't want to Pay
for what you Already Have."
A leaflet with a cartoon of a Gypsy fortune teller
reading a crystal ball with the words "Dues, Ru-
mors, Strikes Violence" and captioned "I See
Parts Co , 375 U S 405
" Westbrook was hospitalized at the time of the hearing . The parties ac-
cepted Westbrook 's affidavits in lieu of her testimony
HICKMAN GARMENT COMPANY
Possible Trouble Ahead ." The text of the leaflet
emphasized that a union cannot force a company to
do anything ; that union salesmen sell "dues"; that
unions cause strikes and plant closedowns. The
leaflet closed with the sentence : "Strike and labor
violence will only hurt the company and hurt its
employees."
A leaflet with a union letter showing the con-
sequences of a lost strike . The leaflet asked "Can
you be sure it will not happen here?" and answered
"Yes ... Vote No Union."
A newspaper advertisement which , in part , listed
what Respondent had tried to do for the employees
and stated : "Hickman Garment sincerely feels that
no union can do one single thing for anyone that
the Company isn't doing anyway because in other
plants where this Union is in employees have ac-
tually ended up with less money and less freedom
with the union than they had without it."
A leaflet with a drawing of a judge holding a
gavel and emphasizing : "The Union Cannot Make
the Company Do Anything "; "The Union Could
Cause You To Lose Your Job" (because if it calls a
strike the company has the right to replace
economic strikers ); "Unions often cause employees
a lot of Trouble and Cost Them A Lot of Money by
fines ( hundreds of dollars ) assessments and `special
levies' and union caused discharge and loss of
seniority."
A leaflet headed Hickman Garment Company
which showed the salaries paid the Union 's three
top officers and the Union 's total salaries and ex-
penses in 1967 . The leaflet concluded : "That's a
total of $3,121 ,222.02 the Union Bosses spent in
1967 ... no wonder they want you-they need
your money . There's one other thing , if there was a
strike here, the Union Bosses and Organizers still
get paid- they just go on to some other town."
The foregoing materials, no less than the
speeches of Mr . and Mrs . Roseman , were calcu-
lated to instill a belief in the employees that collec-
tive bargaining could accomplish nothing for them
and that selection of the Union as their bargaining
representative could only lead to strikes and loss of
work . I find , accordingly , that the antiunion materi-
als distributed by Respondent , viewed in their en-
tirety and evaluated in light of the coercive
speeches of the Rosemans , contained threats of
economic reprisal for union activity violative of
Section 8(a)(1) of the Act. Cf. Yazoo Valley Elec-
tric Power Assn ., 163 NLRB 777, 788-789.
D. The Discrimination Against Employees
1. Lizzie Hendrix
Lizzie Hendrix was hired at the Hickman plant
" A letter in evidence dated October 27, 1969 , offering reinstatement to
Beverly Callison , is signed by Gray as "Personnel Director " I am satisfied
from Gray 's actions with respect to the alleged discnmmatees as described
in the text that, whether or not so formally designated , she exercised the
871
on August 17, 1966. She signed a union card on
April 7, 1967, and talked "more than once" to
other employees in favor of the Union. She told
"some of the girls" she herself had signed a card.
Hendrix saw her doctor in June 1968 about the
removal of her tonsils . The doctor set a date in July
for a tonsillectomy and gave her some tablets for
blood pressure . The medication caused Hendrix to
"go to the bathroom quite often " and also made
her "slightly dizzy ." Hendrix advised Gayle Gray in
the plant office of her difficulties and asked Gray
for an indefinite leave of absence . Gray told her "to
go ahead home."19
The tonsillectomy was performed on July 23,
1968 . Hendrix called Plant Supervisor Peter Hol-
comb on August 5 at his home . Holcomb told her
to report to the office and he would have her
machine set up when she "got there the next day."
Hendrix called the office after speaking to Hol-
comb and told Gray she was "able to come back to
work." Gray said she would have to check to see if
her machine was set up . Hendrix asked about her
insurance premium , which was deducted from her
paycheck. Gray told her to send the premium in.
Hendrix did so and was covered for her tonsillecto-
my expenses.
Hendrix spoke to Holcomb again on August 10,
1968. Holcomb said work was still slow and they
had no work for her then . She asked him whether
she could draw her "unemployment " and he told
her "to go and sign up for it." Hendrix applied for
unemployment compensation but was informed
that she was not eligible because Respondent had
reported that she "quit ." Hendrix called Gray, who
said she had "quit ." Hendrix said she had not quit.
Gray told her to continue to call in about work.
Hendrix spoke to Gray again ' on August 26 about
work. At Gray's request , she got a statement about
her tonsillectomy. Hendrix called Gray several
more times about work and each time Gray said
they still had no work for her.
Hendrix was rehired by Respondent on June 3,
1969,14 and assigned to a sewing operation she had
not previously performed which required "more
time."
According to a list submitted by Respondent of
employees discharged in 1967, 1968 and 1969, al-
legedly for absenteeism or nonproduction , Hendrix
was discharged for both these reasons . Hendrix's
testimony that she advised Gray of the side effects
of tablets she was taking for high blood pressure,
and that Gray granted her an indefinite leave of
absence, is uncontradicted . Respondent introduced
no evidence to show that Hendrix was a low
producer or that she had ever been warned about
low production in her 2 years' employment with
Respondent . Nor was anything said to Hendrix
functions of a personnel director and that Respondent is chargeable with
her conduct
" Respondent had advertised for sewing operators in November 1968
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about low production when she was refused work
after her tonsillectomy . Rather, she was told that
work at the plant was slow and Respondent had
nothing for her to do. This reason for refusing her
reemployment was plainly false , for the record
shows considerable turnover of personnel at the
Hickman plant and that Respondent advertised for
operators in November 1968, months before it re-
called Hendrix to work. Hendrix signed a union
card and spoke in favor of the Union at the plant.
In view of Respondent 's hostility to the Union and
its palpable false explanations for the refusal to
reemploy Hendrix after her tonsillectomy, I find
that Respondent had work available for Hendrix
but that it refused her employment because it knew
or believed that she was a union supporter , thereby
violating Section 8(a)(3) and (1) of the Act. Cf.
Shattuck Denn Mining Corp. v. N.L.R.B., 362 F.2d
466, 470 (C.A. 9).
2. Evelyn Jackson
Evelyn Jackson worked for Respondent for about
8 years . She signed union cards on February 1,
1967, and June 12, 1968. During the hearing in the
prior unfair labor practice proceeding against
Respondent , Mrs. Roseman called six or seven em-
ployees, including Jackson, into her office and
asked them to make a "statement ." Jackson said
she would make a statement "on behalf of what she
said " but told Mrs . Roseman that she was "also
Union because I signed a Union card. '115
Jackson was away from work for 3 weeks
because of an automobile accident on February 18,
1968. She was absent for another week when she
had surgery on an arm on June 12. In July, Philip
Roseman came up to the line where Jackson was
working and claimed that the whole line was not
making production . He asked Jackson why she did
not make production and Jackson replied that it
"wasn't worth the extra sixty cents to work that
hard ." Jackson was summoned to the office where
Foreman William Tony said she was "a ringleader
and a queen bee and ... started trouble and caused
other girls not to make production.""
Jackson spoke to Roseman and Gray about her
arm on August 16, 1968 , and received permission
"to go and do what I could for my arm ." Jackson
returned to the plant on August 29 to see about her
insurance which she had paid through October 15,
1968. She told Roseman at this time that she would
know after she came back from an operation in
Memphis whether she would be able to work or not
because that would be the last test . Roseman com-
mented that he had to be willing to take her back
"Jackson recalled that Mrs Roseman made a statement that "Evelyn
Jackson told me she had signed the card and I still wanted her to work
The record does not show when Mrs Roseman said this
1° Jackson testified that Tony 's charges were not true and that she usually
made production
11 Before her discharge on April 6 , 1967, Phipps had signed a union card
on March 13, 1967.
18 Phipps testified that her forelady and Gayle Gray knew that she rode
because she had "quit ." Jackson retorted, "I
haven 't quit."
Jackson was hospitalized for 1 day in Memphis
on September 5 or 6. She telephoned Gayle Gray
on September 10 about her job. Gray told her to
get a doctor's certificate. Jackson did so and called
Gray to tell her she had a statement from her doc-
tor. Gray said work was too slack and they had no
work for her. Jackson was told by an employee that
Mildred Nipp had been put on her machine. Jackson
called Gray at the end of the week and asked about
work . When Gray said "no," Jackson asked her,
"How come you put Mildred Nipp on my machine
if you did not have any work for me?" Gray said "I
had nothing to do with it."
Mrs. Roseman notified Jackson to return to work
and Jackson was hired as a new employee on
January 28, 1969.
Jackson, like Hendrix , was refused employment
after an operation on the ground that work was
"too slack ." Another employee was in fact assigned
to her machine . Respondent was aware that
Jackson was a union sympathizer . Her competency
is not challenged . I find that Respondent had work
for Jackson after her operation but refused to em-
ploy her because she was a union supporter, in
violation of Section 8(a)(3) and (1) of the Act.
3. Maycel Phipps
The Board found in the prior unfair labor prac-
tice proceeding that Respondent discharged Maycel
Phipps on April 6 , 1967, "not because of any
record of absenteeism , but because Respondent
knew or suspected that she was espousing the
Union 's cause " (172 NLRB No. 118, TXD). She
was recalled to work in 1968 and signed a second
union card on June 3 , 1968.17 She talked to em-
ployees at the plant about joining the Union "at
various times during the campaign." She identified
two union cards dated May 24, 1968 , and one card
dated July 23, 1968 , as having been signed in her
presence.
On Wednesday , October 8, 1968, Phipps had
lunch away from the plant and called Philip
Roseman about 12:15 p .m. to tell him she would
not be able to come in but that she would be in the
next day . Roseman said that would be all right.
Phipps did not report to work the next day because
Vera Holly, who drove her to work , was sick.'8
Phipps was also absent on Friday because "the
teachers had a meeting and all my kids were home
from school ." Phipps sent word by Holly that she
would not be in. Holly told Phipps that afternoon
that " she told them. "1B
with Holly and that she would not be in when Holly was absent from work.
1° Holly testified that she did not see Phipps that Friday and did not re-
port Phipps ' absence to Respondent . I do not credit Holly in view of her
further testimony that Phipps would tell her when Holly "went by her
house " if she was not coming in and Holly would in turn tell Respondent
when she got to work. Holly did not explain why this "agreement" with
Phipps and Respondent was not followed on October 10
HICKMAN GARMENT COMPANY
Phipps picked up her paycheck at the plant on
Saturday . Plant Supervisor Holcomb told her he
heard she had quit and that another girl had been
put on her machine . Phipps said she had not quit
and would be in on Monday . Holcomb instructed
her to call Gray before coming in. Phipps called
Gray from a neighbor 's house on Monday morning.
Gray said they had sent her a letter that they would
take it for granted she had quit if she missed any
more time without calling in . Phipps said she had
sent word to her forelady by Holly . Gray said they
had to be told directly in the office and that she had
no job for Phipps.
Phipps tried to speak to Philip Roseman at the
plant on October 15. Roseman rebuffed her and
had Gray speak to her in the plant lobby . Gray said
she had "quit " but Phipps said she wanted "Mr.
Roseman to tell me I don't have a job." Gray
replied , " I told you you had quit . And you don't
have to talk to him." Phipps said she would sign up
for "unemployment" and Gray replied , "Go ahead
if you can."
Respondent offered Phipps work in June 1969
but Phipps refused to return because she was now
living too far from the plant.
Phipps' testimony that Roseman excused her
absence on Wednesday afternoon , October 8, that
she did not come to work on Thursday because
Holly was sick , and that both her forelady and Gray
knew that she depended on Holly for a ride is un-
contradicted. Respondent has not explained why in
these circumstances Gray sent her a letter that she
would be considered "quit " if she missed any more
time without calling in . In any event , Phipps sent
word by Holly on Friday , October 10, that she
would not be in that day. As Phipps ordinarily had
Holly notify Respondent of her absences, and as it
does not appear that Gray checked with Holly be-
fore she discharged Phipps , I consider Gray 's state-
ment to Phipps the following Monday that she
should have reported her absence directly to the of-
fice wholly contrived and a pretext to discharge
Phipps a second time for her union activity.
4. Connie Kennedy
Connie Kennedy worked for Respondent for
about 12 years . She signed union cards on February
1, 1967, and June 11, 1968, and talked "on more
than one occasion " to employees at the plant about
joining the Union. After Mrs . Roseman spoke to
the employees on August 23, 1968, she said to Ken-
nedy, "I hear you are for the Union . Tell me what
you think they can do for you ." Kennedy was a
union observer at the September 27, 1968, elec-
tion.
Just before the election Kennedy told Gayle Gray
she wanted to take 6 weeks off for dental work,
873
beginning October 4 . Gray noted Kennedy's
request and Kennedy, at Gray's direction , notified
her supervisor , Eddie Mayo, that she would be off
for 6 weeks beginning October 4 . Kennedy started
her 6-week leave of absence on October 4 but
called Gray back on October 21 to tell her she was
ready to return to work . Gray said she would
check , left the phone , and returned to tell Kennedy
there was no work for her at that time . She took
Kennedy's phone number and said she would call
her. Kennedy spoke to Gray on October 23 and
November 19, but each time Gray said they had
nothing at all for her . Respondent about this time
was advertising for sewing machine operators.
Gray called Kennedy back to work in May 1969.
Kennedy worked until June 27 when she quit
because she needed a babysitter . Gray told her to
call in when she found a babysitter . About a month
or so later , Kennedy called Gray for work. Gray
said she had nothing for her . Kennedy has called off
and on ever since but Gray said each time they had
nothing for her.
Kennedy was a union supporter and served as a
union observer at the September 27, 1968, elec-
tion . Kennedy had received permission in Sep-
tember 1968 to take time off for dental work, and
had a good reason for quitting work in June 1969.
Gray 's statements to Kennedy in October and
November 1968, and again during the summer of
1969, that Respondent had no work for her were
obviously not the real reason for refusing to employ
Kennedy, who had worked for Respondent for
about 12 years . I find that Respondent refused em-
ployment to Kennedy in the fall of 1968 and the
summer of 1969 because of her known union ac-
tivity, in violation of Section 8(a)(3) and ( 1) of the
Act.
5. Blossie Westbrook20
Blossie Westbrook started to work for Respon-
dent in January 1967. She signed a union card in
the summer of 1968 and served as a union observer
at the September 27, 1968, election.
Westbrook sent word to Gray on Thursday, Oc-
tober 24, 1968, that she was sick . Westbrook also
missed work the next day . She returned to the plant
on Monday October 28, but was taken ill that
morning . Supervisors Eddie Mayo and Ruth Yates
spoke to Westbrook and Yates arranged for em-
ployee Mary Green to take her home . Green took
Westbrook to the doctor instead. Westbrook stayed
out of work the rest of the week without reporting
to the office.
Westbrook reported back for work on Monday,
November 4, 1968 . She got her timecard from the
rack to clock in but Gayle Gray "came running
down the hall " and asked her if they had called her
!0 As previously noted , Westbrook was hospitalized at the time of the
hearing and the parties agreed to accept her pretrial affidavits as her
testimony . The text is based on these affidavits
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in to work . Westbrook asked if she was laid off but
Gray said no, she thought Westbrook had quit.
Westbrook asked if Gray knew she was off sick.
Gray said she knew that but Westbrook had not
called in every day to let them know when she
would be back to work . Wesbrook said she knew of
no rule like that but that you were supposed to call
in the day you were out . Gray left to talk to Plant
Supervisor Holcomb . Upon her return , Gray told
Westbrook she would have to wait for work until
they found another place for the operator assigned
to Westbrook 's machine . Gray said she would call
Westbrook by Thursday or Friday but she did not
do so.
Westbrook reported back for work on June 2,
1969 , pursuant to an offer of reinstatement from
Respondent about May 21, 1969 . She had worked
on sewing shields-squares of material-on the left
shoulder of the Army raincoats manufactured by
Respondent . Westbrook had always made produc-
tion on this work . When she returned to work on
June 2, Plant Supervisor Holcomb assigned her to
sewing pleats . She was given no training for this
work which involved "much more sewing ." West-
brook had "real trouble in pleating" and asked Hol-
comb for another job. Holcomb said he needed her
on pleating . Two or three weeks after Westbrook's
return to work, Holcomb gave her a warning for
low production . She was discharged on July 3,
1969, for low production.
It appears that Westbrook consistently made
production before she missed a week's work
because of illness . Respondent introduced no
evidence that it had a strict requirement that em-
ployees absent for illness had to call in daily. Gray
and Supervisors Mayo and Yeats knew that West-
brook was "off sick." Westbrook had acted as a
union observer at the September 27, 1968, elec-
tion . I find from these circumstances that Respon-
dent refused to employ Westbrook on and after
November 4, 1968 , because of her union activity.
As a discriminatorily discharged employee, West-
brook , absent special circumstances , was entitled to
reinstatement to her old job. Chase National Bank,
65 NLRB 827, 829 . Respondent, however , assigned
her to different work when she returned to work on
June 2, 1969 , pursuant to Respondent 's offer of
reinstatement . Respondent thereafter refused West-
brook 's request for other work , warned her about
low production, and discharged her. Absent
adequate explanation by Respondent for its refusal
to transfer Westbrook to her former work or other
operations within her capacity , these facts warrant
an inference that Respondent assigned Westbrook
more difficult work and refused to transfer her
from this work in order to have a pretext to
discharge her again because of her union activity.
As Respondent offered no explanation whatsoever
for its conduct, I find that Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by assigning West-
brook to more difficult work and discharging her
for low production.
6. Beverly Callison
The Board in the prior unfair labor proceeding
against Respondent found inter alia that Respon-
dent refused reinstatement on February 1, 1967, to
Beverly Callison and three other employees
because they were "ardent , known , union activists"
(172 NLRB No. 118, TXD). After the Supreme
Court on October 13, 1969, refused to review the
decision of the Sixth Circuit enforcing the Board's
order against Respondent , by letter dated October
27, 1969, Respondent offered to reinstate Callison
and directed her to report to work on November 4,
1969 , "or notify us of your intentions by that date."
Callison received the letter on October 29 and im-
mediately called Gray to tell her that she would
come to work on November 4. Gray called Callison
back in an hour and told her she would have to re-
port to work the next morning if she wanted a job.
Callison reported to the plant the next morning
and was hired as a new employee . 21 Quality
Manager Hofrath took Callison to a machine and
gave her a 10-minute explanation on the work she
was to do as a pleater . Callison , who had worked on
sewing linings in coats, asked for her old job back.
Hofrath said she would have to speak to Plant
Supervisor Holcomb about returning to her old
job.
Callison had made "over production" in her old
job but she was not able to make production on
pleating which she found "a far more complicated
operation." She also had trouble with her machine
from the beginning. She complained several times
about the machine but "it was never repaired satis-
factorily. The stitches were too short and the
feeder on it did not work properly ." Callison spoke
to both Hofrath and Holcomb about lengthening
the stitches on her machine . Hofrath looked the
machine over and said the stitching was satisfacto-
ry. She also asked Hofrath for permission to ob-
serve one of the experienced pleaters . Hofrath
refused to let her do so.
Shortly after her return to work , Callison told
Holcomb she would like to have her old job back,
that her new job "wasn 't like the other job and
[her] machine didn 't sew as well as the other girls,"
and that she had never done pleating but that she
"was experienced on shell to lining ." Holcomb said
he would not take a girl off shell to lining to put
Callison on that work and that she could clock out
if she did not like what she was doing. Callison said
she was not going to quit and would "stay on this
job in protest."
Much of Callison's work was rejected. About
November 10, Supervisor Roger Price returned
every coat she had sewn the day before for inspec-
" Gray told Callison as a new employee she would receive holiday pay
after 6 months , vacation pay after a year, and insurance effective in
December
HICKMAN GARMENT COMPANY 875
tion and repair . Callison " started crying " and In-
spector Barbara Parnell came over and asked her
what was wrong . Callison said she "had been sort-
ing through and inspecting all these coats and these
bundles and had found only two or three repairs."
Parnell told Callison she had found only a few coats
that needed redoing and that she had turned them
"cross-wise" so that they could be pulled out for
repairs and the bundles put through.
According to Callison, Gayle Gray followed her
"most every time" she left her machine to go to the
restroom and "stayed until I went back to my
machine."
During her lunch hour on November 12, 1969,
Callison called her sister-in-law and said she "had
to get away from there for a little while."22 About 1
p.m. Gray came over to Callison 's machine and said
her daughter was sick and she was to go home. Cal-
lison returned home that afternoon. Gray checked
with the school which Callison 's daughter attended.
The next day, Callison reported for work and found
her timecard missing . She went to the office where
Gray insisted that she sign a statement that she
missed work on November 12, 1969, from 1 to 4:15
p.m. because her daughter was ill . Callison at first
refused to do so but then signed the statement, took
her timecard , clocked in , and went to her machine.
At 9 a.m., Callison returned to the office and told
Gray she would appreciate getting the statement
back, that she had signed it under duress. Gray
asked her what was untrue in the statement. Cal-
lison said she had been nervous and upset and
wrote out an explanation why she had taken the af-
ternoon off. Gray said she would not dismiss Cal-
lison but that it would be grounds for dismissal if
she "was caught in misrepresenting the facts
again." Philip Roseman was present and heard this
conversation between Callison and Gray.
About 11 or 11:30 a.m., Holcomb told Callison
he wanted to see her in the office during her lunch
hour. When Callison came to the office, Holcomb,
in the presence of Roseman and Gray, told her he
was firing her "for misrepresentation of the facts."
After lunch, Callison returned to the office and
asked Gray why she had reprimanded her that
morning and told her she would not be dismissed.
Gray said she was not actually fired but only tem-
porarily laid off. Callison called Gray the next
morning and asked when she could expect to return
to work. Holcomb got on the line and told her she
was not laid off, that "we have decided to dismiss
you for misrepresentation." Callison asked, "Does
that mean I am fired?" Holcomb replied , "Yes, it
does."
When Callison returned to work pursuant to
Respondent 's offer of reinstatement , she, like West-
brook , was assigned to work she had not done be-
fore. Her uncontradicted testimony shows that she
received little training, that she was assigned an in-
ferior machine, that she asked Holcomb for her old
job back but was told that she could quit if she did
not like what she was doing , and that she was sub-
jected to job harassment . I am satisfied from these
facts that Respondent did not reinstate Callison in
good faith but sought to force her to quit and was
looking for an excuse to get rid of her. It found
such an excuse when Callison left work after lunch
on November 12 on the pretext that her daughter
was ill. Gray immediately checked out Callison's
excuse and the next morning refused to permit Cal-
lison to return to work until Callison signed a state-
ment affirming the reason for her absence the
previous afternoon. Callison returned to the office
a little later, told Gray, in Philip Roseman's
presence , that the statement was untrue , and told
Gray that she had taken the afternoon off because
she was nervous and upset. Gray accepted Cal-
lison's explanation and permitted her to return to
work with a warning . Callison was nevertheless
discharged after her lunch hour. I find under all the
circumstances that Respondent discharged Callison
for her union activity and not because she took a
few hours off by misrepresenting that her daughter
was ill.23
IV. CONDUCT AFFECTING THE RESULTS OF THE
ELECTION
I have found that Respondent in its preelection
campaign engaged in coercive conduct , including
promises of benefit and threats of economic
reprisal . As this conduct interfered with a free and
untrammeled choice in the September 27, 1968,
election , I recommend that the election be set
aside. In view of the bargaining order to be recom-
mended in the unfair labor practice proceedings, I
further recommend that the petition in Case
9-RC-7797 be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2 (5) of the Act.
,3. By the acts and conduct herein found viola-
tive of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8 ( a)(1), (3), and (5) of the
Act, which unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in
" According to Callison , she was "nervous and upset. I had been crying.
I got quite a few reject bundles My machine still wasn 't sewing right."
" Peggy Johnson testified that when Callison first returned to work she
said she was not going to do her work and that she had returned to spite
Mrs Roseman Johnson also testified that Callison told her on November
I 1 that she "would love to take off today just to run around. I could maybe
get my slack outfit finished." Johnson 's testimony does not refute Cal-
lison's testimony concerning her efforts to get her machine repaired and to
transfer back to her old job . Moreover , in view of Johnson 's further
testimony that she observed Callison crying over rejects, it would appear
that Callison took her new work seriously.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices , I shall recommend that it
cease and desist therefrom and take certain affir-
mative action designed to effectuate the policies of
the Act.24
It has been found that Respondent disccrimina-
torily discharged or refused reemployment to Lizzie
Hendrix , Evelyn Jackson, Maycel Phipps , Blossie
Westbrook , Connie Kennedy , and Beverly Callison.
I shall therefore recommend that Respondent offer
full and immediate reinstatement to these em-
ployees to their former or substantially equivalent
positions at the Hickman plant , without prejudice
to their seniority or other rights and privileges, and
that Respondent make these employees whole for
any loss of pay suffered by reasons of the dis-
crimination against them . 25 Backpay shall be com-
puted in the manner set forth in F. W . Woolworth
Company, 90 NLRB 289, with interest added
thereto in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716.
The record establishes that the Union
represented a majority of the Hickman production
and maintenance employees in an appropriate unit
before Respondent engaged in a series of unfair
labor practices which were calculated and tended
to undermine the Union 's majority status . the unfair
labor practices are such as to render it doubtful
that their coercive effects could be eliminated by
traditional remedies so as to ensure a fair election. I
therefore find that the purpose of the Act can
better be effectuated and employee rights better
protected by reliance on the employees' desires as
expressed by their signed authorization cards rather
than on the results of an election. I shall therefore
recommend that Respondent be ordered to bargain
with the Union upon its request as a remedy for
Respondent 's violation of Section 8(a)(5), as well
as to remedy the other unfair labor practices found.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law, and upon the entire record
in the case , I recommend that Respondent,
"The Union contends that traditional remedies , including a bargaining
order , are not enough to ensure the employees effective representation
because the Union 's strength has been dissipated by Respondent's flagrant
unfair labor practices and by turnover of personnel during the delay in bar-
gaining caused by those unfair labor practices It argues that the Union is in
effect faced with another major organizational campaign and urges that I
recommend additional remedies similar to those adopted by the Board in J.
P. Stevens and Co, Inc., 157 NLRB 869, 878-879 , and also a monetary
remedy similar to that recommended by the Trial Examiner in Ex-Cell-0
Corporation, Case 25-CA-2377, TXD 80-67 . By virtue of the bargaining
order recommended herein , if adopted by the Board , the Union , without
regard to fluctuations in its majority status , will have a reasonable time to
bargain for a contract , to process grievances on behalf of the employees,
and otherwise to demonstrate the advantages of unionism to the em-
ployees San Clemente Publishing Corporation , et al., 167 NLRB 62 (TXD).
The Union 's position is thus far different from that of the union in the
Stevens case whose organizational campaign was met and aborted by "mas-
sive and deliberate " unfair labor practices ( 157 NLRB at 878 ). I therefore
do not believe the Stevens remedies proposed by the Union are necessary
to dissipate the coercive effect of Respondent 's unfair labor practices. As
the Ex-Cell-0 case is still pending before the Board , I see no need for a
Hickman Garment Company, its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in the Amalga-
mated Clothing Workers of America, AFL-CIO, or
any other labor organization of its employees, by
discharging or refusing reemployment to em-
ployees, by assigning employees to more difficult
work, or by discriminating against them in any
other manner because of their union membership
or activity.
(b) Refusing to bargain , on request , with the
above -named Union , as the majority representative
of the production and maintenance employees at
the Hickman plant , excluding office clerical em-
ployees, professional employees , watchmen , guards,
and supervisors as defined in the Act.
(c) Threatening reprisals for engaging in union
activity, promising or granting insurance , vacation,
or other benefits in order to discourage union ac-
tivity, and coercively interrogating employees con-
cerning their union activity and sentiments.
(d) In any other manner interfering with,
restraining , or coercing its employees in the exer-
cise of their rights under the Act.
2. Take the following affirmative action which I
find will effectuate the policies of the Act:
(a) Offer Lizzie. Hendrix, Evelyn Jackson,
Maycel Phipps , Blossie Westbrook, Connie Ken-
nedy, and Beverly Callison immediate and full rein-
statement to their former or substantially
equivalent positions , without prejudice to their
seniority and other rights and privileges, and make
them whole for any losses of pay they may have suf-
fered by reason of the discrimination against them
in the manner set forth in the section entitled "The
Remedy."
(b) Notify any of the above-named employees if
presently serving in the Armed Forces of the
United States of their 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.
specific recommendation on a monetary remedy for the bargaining delay
caused by Respondent 's unfair labor practices.
45 I have found that Respondent discriminatorily refused to reinstate
Westbrook and Callison to their former jobs when they returned to the
Hickman plant pursuant to Respondent 's offers of reinstatement Even as-
suming , contrary to my findings above , that Respondent thereafter in fact
discharged Westbrook for low production and Callison for taking an after-
noon off on the pretext that her child was sick , I would nevertheless recom-
mend that they be reinstated with backpay as Respondent failed to remedy
its original discrimination against them . The record shows that both Cal-
lison and Westbrook made production on their former work and Callison's
misconduct was not such as to make her unfit for further employment with
Respondent
Although Phipps told Gray in June 1969 that she lived too far away to
work at the plant, the record does not show that Respondent offered her
full reinstatement I therefore consider a reinstatement and backpay order
appropriate for Phipps The question of Phipps' availability for employ-
ment after her discharge in October 1968 may be appropriately left for
determination at the compliance stage of this proceeding I have recom-
mended reinstatement for Hendrix and Jackson as it appears that they were
rehired as new employees
HICKMAN GARMENT COMPANY 877
(c) Bargain collectively, upon request, with the
Union.
(d) Preserve 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 the
amount of backpay due under the terms of this
Recommended Order.
(e) Post at its plant in Hickman, Kentucky, co-
pies of the attached notice marked "Appendix."28
Copies of said notice, on forms provided by the Re-
gional Director for Region 9, after being duly
signed by a 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) 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.21
IT IS FURTHER RECOMMENDED that, except as
hereinabove found, all other allegations in the com-
plaint be dismissed.
IT IS ALSO FURTHER RECOMMENDED that the elec-
tion in Case 9-RC-7797 be set aside and that the
petition be dismissed.
" 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 "
Zr 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 "
ployees to more difficult work , or by dis-
criminating against them in any other manner
because of their union membership or activity.
WE WILL NOT threaten our employees with
loss of work or with other economic reprisals
for engaging in union activity.
WE WILL NOT promise or give our employees
insurance , vacation , or other benefits in order
to discourage them from engaging in union ac-
tivity.
WE WILL NOT interrogate our employees
about their union activity.
WE WILL NOT in any other manner interfere
with the rights of our employees to join or sup-
port a labor union.
WE WILL offer back their jobs to Lizzie Hen-
drix, Evelyn Jackson, Maycel Phipps , Blossie
Westbrook , Connie Kennedy , and Beverly Cal-
lison , without prejudice to their seniority or
other rights and privileges , and, if we have not
already done so, we will pay them for any loss
of pay because of our discrimination against
them.
WE WILL notify immediately the above-
named individuals , if presently serving in the
Armed Forces of the United States, of the right
to full reinstatement , upon application after
discharge from the Armed Forces, in ac-
cordance with the Selective Service Act and
the Universal Military Training and Service
Act.
WE WILL bargain collectively upon request
with Amalgamated Clothing Workers of Amer-
ica, AFL-CIO, as the exclusive representative
of our production and maintenance employees,
excluding office clerical employees, profes-
sional employees , watchmen , guards, and su-
pervisors.
All our employees are free to become or remain,
or refrain from becoming or remaining , members of
Amalgamated Clothing Workers of America,
AFL-CIO , or any other labor union.
HICKMAN GARMENT
COMPANY
(Employer)
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage our employees
from joining or supporting the Amalgamated
Clothing Workers of America , AFL-CIO, or
any other union, by discharging or refusing
reemployment to employees , by assigning em-
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 513-684-3686.