Hickman Garment Co.

National Labor Relations Board - Board Decisions

Feb 27, 1975

216 N.L.R.B. 801 (N.L.R.B. 1975)

HICKMAN GARMENT COMPANY 801
Hickman Garment Company and Amalgamated Cloth-
ing Workers of America , AFL-CIO. Case 9-CA-
8368
February 27, 1975
DECISION AND ORDER
By MEMBERS JENKINS , KENNEDY, AND
PENELLO
On November 14, 1974, Administrative Law Judge
Robert E. Mullin issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
examine witnesses and to file briefs. The parties waived
oral argument. Briefs were submitted by the General
Counsel and the Respondent on October 23, and by the
Charging Party on October 24, 1974. Upon the entire
record in the case, including the briefs of counsel, and from
my observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent , a Kentucky corporation, is engaged in
the manufacture of clothing and garments at a plant in
Hickman , Kentucky . During the 12 months preceding
issuance of the complaint , a representative period, the
Respondent had a direct outflow of its products in
interstate commerce , valued in excess of $50,000 , which it
sold and shipped from its plant in Hickman directly to
points outside the State of Kentucky. Upon the foregoing
facts , the Respondent concedes , and I find, that Hickman
Garment Company is an employer and is engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Clothing Workers of America , AFL-CIO
(herein the Union), is a labor organization within the
meaning of the Act.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Hickman Garment
Company, Hickman, Kentucky, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended order.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Administrative Law Judge: this
case was heard on September 30, 1974, in Mayfield,
Kentucky, pursuant to a charge duly filed and served,' and
a complaint issued on August 12, 1974. The complaint
presents questions as to whether the Respondent violated
Section 8(axl) and (3) of the National Labor Relations
Act, as amended (herein the Act). In its answer, duly filed,
the Respondent conceded certain facts with respect to its
business operations, but it denied all allegations that it had
committed any unfair labor practices.
At the hearing all parties were represented by counsel.
All were accorded full opportunity to examine and cross-
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
Philip Roseman is the president and his wife, Nettie, is
the secretary of the Hickman Garment Company. Since
1967, when the Union began its organizational activities,
the Hickman plant, under the management of the
Rosemans, has been almost constantly involved in the
litigation of a continuing series of unfair labor practice
cases.
At the onset of the Union's organizational effort, the
Employer's response was an unlawful campaign of interro-
gation, threats, promises of benefit, and discrimination
against 19 employees. Hickman Garment Corporation, 172
NLRB 1168 (1968), enfd. 408 F.2d 379 (C.A. 6, 1969), cert.
denied 396 U.S. 838 (1969) (herein Hickman 1). Notwith-
standing this opposition from the Respondent, the employ-
ees designated the Union as their majority representative.
Shortly thereafter, in another proceeding, the Board found
that the Respondent had engaged in another wide range of
unfair labor practices, including discriminatory conduct as
to six of its employees. As a result, the Board ordered the
Respondent to cease and desist from the unfair labor
practices found, make whole the employees who had been
discriminated against, and bargain with the Union.
Hickman Garment Company, 184 NLRB 864 (1970) (herein
Hickman II). Only a few months later, in another case, the
Board found that the Respondent was guilty of additional
unfair labor practices including coercive interrogation and
threats. Hickman Garment Company, 184 NLRB 888 (1970)
(herein Hickman III). The Board's orders in both of these
I The charge was filed on March 11, 1974.
216 NLRB No. 140
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cases were enforced. Hickman Garment Company v.
N.L.R.B., 437 F.2d 956 (C.A. 6, 1971). In December 1972,
the Court of Appeals for the Sixth Circuit found the
Company in civil contempt of the court for disobeying its
order directing the Company to bargain collectively with
the Union. The court's decree thereupon ordered the
Company to purge itself of contempt and provided that, if
the Company failed to do so, compliance fines would be
imposed and body attachment might issue against any
company officer or agent responsible for noncompliance.
N. L. R. B. v. Hickman Garment Company, 471 F.2d 611, 612
(C.A. 6, 1972).
In the latter part of 1970, in a fourth case, the Board
again found the Respondent guilty of unlawful interference
with the organizational rights of its employees and of
discriminating against them because of their union activi-
ties . Hickman Garment Company, Case 9-CA-5663 (unpub-
lished decision) (herein Hickman IV). In January 1972, in a
fifth case , the Board found the Respondent guilty of
interference with employees ' rights by the imposition of an
unlawful no-solicitation rule. Hickman Garment Company,
Case 9-CA-6187 (unpublished decision)(herein Hickman
V). In February 1973, in a sixth case, the Board found that
the Respondent had again unlawfully interfered with its
employees ' rights , discriminatorily refused reinstatement to
laid-off employees, and unlawfully refused to bargain with
the Union. Accordingly, the Board issued another cease-
and-desist order wherein , inter alia, it ordered the Re-
spondent to reinstate four employees and make them
whole along with seven others who had been the object of
the Respondent's discrimination . Hickman Garment Com-
pany, Case 9-CA-6579 (unpublished decision), decided
February 16, 1973, enforced July 26, 1973 (unpublished per
curiam opinion , C.A. 6) (herein Hickman VI).2
One of the discriminatees in Hickman VI was employee
Marcine Murphy . In January 1974, and almost immediate-
ly after Murphy was reinstated, the Company discharged
Barbara Murphy , her daughter-in-law . The General Coun-
sel alleges that this termination was discriminatory. This
allegation is denied by the Respondent.
B. The Hearing
At the hearing in the instant case the General Counsel
presented three witnesses who were examined and cross-
examined at length . The Respondent recalled two of the
General Counsel's witnesses for further examination, but
did not present any witnesses of its own. Counsel for the
Respondent stated that originally he planned to call three
witnesses , President Philip Roseman , Vice President Nettie
Roseman , and Lon White, the latter being plant manager
at the time in question. In fact, Attorney Weiss arrived at
the hearing with no witnesses and produced neither the
Rosemans nor White. He announced that Mrs. Roseman
had been hospitalized in Memphis the preceding Friday
and that her husband would not leave her to appear at the
2 Judicial notice has been taken of the Board and court decisions which
have been cited, supra.
3 After White's affidavit was held inadmissible , the Respondent
requested a continuance, presumably to secure additional time in which to
locate that witness . Since the complaint was issued on August 12, 1974, and
the Respondent had made no apparent effort to ensure that White would be
hearing. He further stated that White was no longer
employed by the Respondent and that he had been unable
to locate him. The Respondent then moved that the
pretrial affidavits which the General Counsel had secured
from each of the three above-named agents be received in
evidence as incorporating the testimony which they would
give if they were called. The General Counsel agreed to the
receipt in evidence of the affidavit of Nettie Roseman, but
he and the Charging Party objected to the receipt of Philip
Roseman's affidavit or that of White. The affidavit of
Nettie Roseman was received, but the affidavits of Philip
Roseman and White were rejected and placed in the
rejected exhibit file.
Upon reconsideration , and in view of the absence of
Roseman from the hearing, at least in part because of the
illness of his wife , that affidavit is now received . No such
considerations are present, however, with respect to the
affidavit of White. Counsel for the Respondent stated that
White had quit the Company's employ in August 1974. He
asserted that thereafter White had remained a resident of
Hickman, Kentucky, until only a short while before the
hearing and that it was believed that White was then living
in Tennessee. Notwithstanding the fact that after White
left his job with the Respondent in August he was no
longer subject to the Employer's control, the Respondent
did not place him under subpena to assure his attendance
at the hearing . In fact, from the statements of counsel it
was evident that he had had little, if any, contact with
White prior to the opening of the hearing. Under these
circumstances, there is no explanation for White's non-
appearance! as a witness other than the Respondent's
inadequate preparation for trial. There is, therefore, no
basis on which to permit the receipt in evidence of White's
pretrial affidavit and the original ruling that it be rejected
is now reaffirmed.3
C. The Discharge of Barbara Murphy, Findings and
Conclusions With Respect Thereto
Marcine Murphy had worked for the Respondent for 10
years prior to her layoff in 1971. In Hickman VI, the Board
found that the Respondent discriminatorily refused to
recall her to work. On July 26, 1973, the Court of Appeals
for the Sixth Circuit enforced the Board's order in the case.
Almost 6 months later and in January 19744 the Respond-
ent had not yet reinstated Murphy. At some point during
the latter month the Regional Office requested an
explanation from the Respondent. In her affidavit Nettie
Roseman stated that on January 18, and after receiving a
letter from the Regional Office, she told Lon White, whom
she described as the plant superintendent, that Murphy
had to be reemployed. About the same time the Respond-
ent notified Murphy by telephone that she could report for
work the following Monday. On January 21, a Monday,
Murphy returned to the plant, and was assigned to
topstitch sleeves. At the time Murphy was reinstated,
available for a hearing that did not start until September 30, 1974, the
request for a continuance on the latter date was denied for lack of ment. Cf.
Donkins Inn, Inc, 214 NLRB No. 6.(1974).
4 All dates that appear hereinafter are for the year 1974 unless otherwise
noted.
HICKMAN GARMENT COMPANY
Barbara Murphy, her daughter-in-law, was, and had been,
for some while, an employee at the plant. When Marcine
Murphy returned to work, her daughter-in-law was
topstitching cuffs. Four days after Murphy resumed
working for the Respondent pursuant to the Board's order
and the circuit court's decree, her daughter-in-law was
missed and Marcine Murphy was assigned to Barbara's
job of topstitching cuffs.
Barbara Murphy went to work at the Hickman plant
about June 1972. She was a member of the Union. Insofar
as the record indicates, her employment was without
incident until about January 15, 1974. This was during the
same week that, according to the affidavit of Nettie
Roseman , the Regional Office questioned the plant
management as to whether Marcine Murphy had been
reemployed and subsequent to which contact by the Board,
Nettie Roseman informed Lon White that Murphy had to
be reinstated the following Monday. According to the
credible and undenied testimony of Barbara Murphy, on
about January 15, President Philip Roseman, in the
presence of Lon White, questioned her as to whether she
was related to Marcine Murphy. In response to this
interrogation , Barbara acknowledged that the elder Mrs.
Murphy was her mother-in-law.
The incident about which the principal testimony in the
case revolves occurred on January 23. The plant closing
time was then 4:15 p.m. At about 4:12 p.m. and 3 minutes
before the quitting bell sounded, Barbara Murphy and
many of her coworkers were sitting at their machines
waiting for the end of the shift. At this point, Lon White
came up to Murphy and told her that the next day she was
to work until the bell rang. Murphy, who credibly testified
that at the time she was not feeling well, responded "I may
not be here tomorrow." White thereupon walked off and
made no effort to continue the conversation. Employee
Mona Gaskins, a coworker who sat at the machine next to
Murphy, credibly testified that she herself was waiting for
the bell, as were several other employees, but that White
spoke to no one other than Murphy.
On the next day, January 24, Murphy was ill and asked
that Gaskins report to the plant office that she was off
because of sickness. Gaskins duly reported this fact to
Hazel Clark, the office worker who kept such records. On
January 25, Murphy returned to the plant and checked
with Clark as to whether Gaskins had reported that she
(Murphy) had been out because of sickness the preceding
day. Clark acknowledged that Gaskins had made the
necessary report on Murphy's behalf.
After her exchange with Clark, Murphy noticed that her
timecard was not in its customary place at the office. At
that point Lon White appeared and told her that she was
not needed anymore and that her final check was coming
over from Ridgely.5 Murphy immediately asked White
whether she was being fired or laid off and he responded "I
take it that you quit." Murphy indignantly asked the basis
for such an assumption since she had sent in word the day
before that she was ill . White then told her that on January
5 Ridgely Manufacturing Company is located at Ridgely , Tennessee, a
relatively short distance from Hickman . The relationship between the
Hickman and Ridgely plants was not made a part of the record in this case.
However , in her affidavit , Nettie Roseman averred that whereas she is the
secretary of the Hickman corporation she is also the plant superintendent
803
23 when she told him that she might not be in the next day
he assumed that she was quitting since she offered no
explanation for the remark. Murphy thereupon told him
that she felt no obligation to offer him an explanation for
feeling ill. To this comment, White's response was "In case
you don't know it, I'm running this place now."6
Murphy testified that up to that time the plant
superintendent and her supervisor had been one Pete
Holcomb. White had come to the plant a few months
earlier as a timestudy engineer . In his affidavit, Philip
Roseman, the general manager and president of Hickman,
averred that White was transferred from the Ridgely plant
to Hickman about December 1, 1973, that White did not
replace Holcomb as the production manager until January
30, 1974, and that "No notice was placed on the bulletin
board as to Lon White's title and there was no assembled
meeting to inform the employees who Lon White was or
his title." 7 Under these circumstances, it was not surprising
that on January 23, when Holcomb was still the production
manager , Murphy should have assumed on that date that
she owed no explanation to White, the engineer, about her
illness or about the likelihood of her being on sick leave the
next day.
Barbara Murphy credibly testified that Production
Manager Holcomb had never criticized her work and that
no one else had ever warned her of possible dismissal or
told her that unless she improved she would have no job.
While on the witness stand, Murphy was subjected to a
searching and extended cross-examination by counsel for
the Respondent. Her demeanor throughout the course of
this examination was that of a frank and honest witness.
During that interrogation she credibly denied that White
told her that if she stopped talking to other people she
could increase her production, that White admonished her
about talking excessively to other employees, that prior to
her discharge White ever told her she was talking too
much, and that she ever told White that she could not
increase her production and had no intention of doing
better. As noted earlier, White was not called by the
Respondent. Consequently, Murphy's testimony, which
was credible throughout, stands uncontradicted and
undenied.
During his cross-examination of Murphy, counsel for the
Respondent sought to establish that her production record
was deficient and that this could have been the basis for
her dismissal . Murphy credibly testified that her pro-
duction rate was 260. Employee Mona Gaskins thereafter
testified that she worked at the machine next to Murphy,
that she performed the same identical work, viz, topstitch-
ing cuffs, and that the best production rate she had
attained was 120. Gaskins further testified, credibly, that
notwithstanding the fact that her rate was much lower than
Murphy's she was never dismissed or threatened with
dismissal because of low production.
There are few employees as to whom an employer does
not have a basis for discharge at any given time. The issue
here, however, is not whether the reason for the termina-
for Ridgely.
6 The quotations and the findings in this paragraph are from the
credible, undemed , and uncontroverted testimony of Barbara Murphy.
4 The quotation is from Roseman's affidavit.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lion was good or bad, but whether the discharge was
illegally motivated within the meaning of the Act. The
Respondent did not call any witnesses and was content to
rely on the affidavits which it proffered. The affidavit of
Nettie Roseman does not discuss Barbara Murphy's
dismissal . Philip Roseman 's affidavit acknowledges that he
had no firsthand knowledge of the discharge in question
and avers only that White subsequently told him that he
had trouble with Murphy because of excessive talking to
other employees. Nothing in this affidavit, however,
outweighs the credible testimony of Mrs. Murphy to the
effect that prior to January 23 she had never been
reprimanded by Production Manager Holcomb or by
White, his successor . On this record, Murphy appears to
have been a responsible employee with a satisfactory work
history extending over an 18-month period. Nevertheless,
she was discharged summarily and without being given any
warning . In an early case , this type of conduct was
characterized as "action on the part of an employer [that]
is not natural." E. Anthony & Sons v. N.L.R.B., 163 F.2d
22, 26 (C.A.D.C., 1947), cert . denied 332 U.S. 773 (1947).
Barbara Murphy was summarily dismissed on a Friday.
The preceding Monday the Respondent had reinstated
Marcine Murphy pursuant to a Board order and a court
decree , and after the Board had found that Marcine
Murphy had been discharged unlawfully in 1972. The week
before that reinstatement, Philip Roseman, in the presence
of White, questioned Barbara as to her relationship to
Marcine and secured from the younger woman an
acknowledgment that it was her mother-in-law whom the
Respondent was being compelled to reemploy.
In view of. (1) Barbara Murphy's satisfactory work
history; (2) the lack of any evidence that Murphy had ever
been warned that she was in danger of dismissal; (3)
President Roseman 's interest in her relationship with
Marcine Murphy; (4) the celerity with which the discharge
of Barbara Murphy followed the reinstatement of her
mother-in-law , and in the light of the Respondent's
pronounced antipathy to the Union , it is my conclusion
that the primary motivation for the dismissal of the
daughter-in-law was not her work record, but a desire on
the part of the Respondent to punish the mother-in-law, a
union activist whom it had been compelled to reemploy.
By this conduct the Respondent discriminated against
Barbara Murphy and, in so doing, violated Section 8(a)(3)
and (1) of the Act.8
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the
Union is a labor organization, all within the meaning of the
Act.
2. By discriminating in regard to the hire and tenure of
Barbara Murphy, thereby discouraging membership in the
Union , the Respondent has engaged in, and is engaging in,
9 See that line of cases where the Board has held that an employer
discriminated against an employee for the purpose of punishing a relative
who had been identified with the union . Ridgely Manufacturing Co, 207
NLRB 83; (1973); Forest City Containers, Inc., 212 NLRB 38 (1974); J. P.
Stevens & Co., 179 NLRB 254, 265-266 (1%9), enfd . 441 F.2d 514, 519 (C.A.
5, 1971), cert . denied , 404 U.S. 830 (1971); Champion Papers, Inc., (Ohio
Division), 158 NLRB 978, 987-988 (1966), enfd. 393 F .2d 388 , 395 (C.A. 6,
1968); J P. Chnapko, Inc., 202 NLRB 252 (1973); The Colonial Press, Inc,
unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
3. By interfering with, restraining , and coercing its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices , it will be recommended that
the Respondent be ordered to cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that the Respondent discriminatorily
discharged Barbara Murphy, I now recommend that the
Respondent be ordered to offer Barbara Murphy immedi-
ate and full reinstatement without prejudice to her
seniority or other rights and privileges , and make her whole
for any loss of earnings that she may have suffered from
the time of her discharge to the date of the Respondent's
offer of reinstatement . The backpay for the foregoing
employee shall be computed in accordance with the
formula approved in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest computed in the manner and amount
prescribed in Isis Plumbing & Heating Co., 138 NLRB 716,
717-721 ( 1962). It will also be recommended that the said
Respondent be required to preserve and make available to
the Board , or its agents, on request, payroll and other
records to facilitate the computation of backpay due.
As the unfair labor practices committed by the Respond-
ent are of a character striking at the root of employees'
rights safeguarded by the Act, it will be recommended that
the said Respondent be ordered to cease and desist from
infringing in any manner upon the rights guaranteed in
Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120
F.2d 532 , 536 (C.A. 4, 1941).
Upon the foregoing findings and conclusions of law, and
the entire record , and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:
ORDERS
Hickman Garment Company, its officers, agents, succes-
sors, and assigns , shall:
1. Cease and desist from:
(a) Discharging, or otherwise discriminating against any
employee because of activity on behalf of the Amalgamat-
ed Clothing Workers of America, or any other labor
organization.
204 NLRB 852 (1973); Vanella Buick Opel, Inc., 191 NLRB 805,806 (1971);
Carolina Quality Concrete Co, 193 NLRB 462,468-469 (1971).
9 In the event no exceptions are filed as provided by Sec. 102 .46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
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.
HICKMAN GARMENT COMPANY
(b) In any other manner interfering with , restraining, or
coercing its employees in the exercise of their right to self-
organization , to form , join, or assist any labor organiza-
tion, to bargain collectively through representatives of their
own choosing , or to engage in concerted activities for the
purpose of collective bargaining or other mutual aid, or to
refrain from any or all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Barbara Murphy immediate and full
reinstatement to her former or substantially equivalent
position , without prejudice to her seniority or other rights
and privileges , and make her whole in the manner set forth
in the section of this decision entitled "The Remedy."
(b) Preserve and, upon request , make available to the
Board or its agents , for examination or copying , all payroll
records , social security payment records , timecards, per-
sonnel records and reports , and all other records necessary,
or appropriate , to analyze the amount of backpay due.
(c) Post at its plant in Hickman , Kentucky, copies of the
attached notice marked "Appendix." 10 Copies of said
notice , on forms provided by the Regional Director for
Region 9 , after being duly signed by an authorized
representative of the Respondent , shall be posted immedi-
ately upon receipt thereof , and be maintained by it for 60
consecutive days thereafter , in conspicuous places , includ-
ing all places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respondent
to ensure that said notices are not altered , defaced, or.
covered by any other material.
(d) Notify the said Regional Director, in writing , within
20 days from the date of this Order , as to what steps the
Respondent has taken to comply herewith.
805
10 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 National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Amalga-
mated Clothing Workers of America AFL-CIO, or any
other union , by discharging or otherwise discriminating
against our employees because of their union or
concerted activities.
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise of their
right to self-organization , to form , join , or assist the
above-named Union , or any other labor organization,
to bargain collectively through representatives of their
own choosing , and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such
activities.
WE WILL offer Barbara Murphy immediate and full
reinstatement to her former or substantially equivalent
position without prejudice to her seniority or other
rights and privileges, and make her whole for any loss
of pay suffered as a result of the discrimination against
her.
HICKMAN GARMENT
COMPANY