Hosiery Corp. of America

National Labor Relations Board - Board Decisions

Mar 28, 1969

175 N.L.R.B. 180 (N.L.R.B. 1969)

180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hosiery Corporation of America and Textile
Workers Union of America , AFL-CIO. Case
11-CA-3601
March 28, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On December 5, 1968, Trial Examiner George L
Powell issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel and the Charging Party filed exceptions to
the Trial Examiner's Decision together with
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National 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 no
prejudicial error was committed The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this
case, including the exceptions and briefs, and hereby
adopts the findings, conclusions,' and
recommendations of the Trial Examiner only to the
extent consistent herewith.
The Trial Examiner found that the Respondent
did not violate Section 8(a)(1) of the Act by
promulgating its no-solicitation rule, and did not
violate Section 8(a)(3) and (1) of the Act by
discharging Lula Finley, recording secretary and
member of the negotiating committee, for breaking
the rule. We do not agree Although we find, in
agreement with the Trial Examiner, that Finley
violated the rule, it is our opinion that the
Respondent discriminatorily promulgated and
enforced the rule.
The Trial Examiner found and it is undisputed
that the Respondent in January 1968, after the
advent of the union organizing campaign, posted a
rule providing in pertinent part as follows:
No person will be allowed to carry on Union
organizing activities in the Plant during working
hours.
'These findings and conclusions were based , in part, upon credibility
determinations of the Trial Examiner , to which the General Counsel and
the Charging Party have excepted Having carefully reviewed the record,
we conclude that the Trial Examiner's credibility findings are not contrary
to the clear preponderance of all the relevant evidence Accordingly, we
find no basis for disturbing those findings Standard Dry Wall Products,
inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 2)
It is also undisputed that the Respondent has always
permitted supervisory and nonsupervisory personnel
to engage in collecting for the "flower fund" and
selling hosiery on working time, and has not
prohibited its employees from talking about any
other subject during their working time. In contrast
with its leniency with regard to engaging in these
activities on working time, the Respondent strictly
enforced its union activities ban against Finley on
March 3 by laying her off for a week, and then, 2
weeks later, by discharging her
Although a rule prohibiting union activities which
is limited to employees' work time is presumed to
be valid, the presumption of validity may be
rebutted by a showing that the rule was adopted for
a discriminatory purpose.' In the instant case, we
are satisfied that the General Counsel made out a
prima facie case rebutting the presumption by
proving the following: (1) the ban was not
promulgated until the advent of union organization;
(2) the rule on its face prohibited only union
organizing activities; and (3) the Respondent
permitted solicitations of other kinds during work
time. Under these circumstances, it was incumbent
upon the Respondent to show that the rule, although
limited to union activity, was legitimately required
in order to maintain production or discipline. This
the Respondent did not do. We find, therefore, that
the Respondent's promulgation and enforcement of
the rule prohibiting only union activity was
motivated, not by a purpose to maintain production
and discipline, but by a purpose to interfere with the
employees' right of self-organization, and thus
violated Section 8(a)(1) of the Act.' By discharging
Finley for violating its invalid rule, the Respondent
discriminated against her in violation of Section
8(a)(3) and (1).
THE REMEDY
Having found that the Respondent, Hosiery
Corporation of America, has engaged in violations
of Section 8(a)(3) and (1) of the Act, it will be
ordered to cease and desist from the unfair labor
practices found, and from in any other manner
infringing upon the statutory rights of its employees;
offer Lula Finley immediate, full, and unconditional
reinstatement to her former job or a substantially
equivalent position of employment without prejudice
to her seniority or other rights and privileges, and
reimburse her for any loss of pay suffered as a
result of the discrimination against her in the
manner set forth in F. W. Woolworth Co., 90
NLRB 289, 291-293, and Isis Plumbing & Heating
Company, 138 NLRB 716; and post appropriate
notices.
'See State Chemical Company , 166 NLRB No 60
'See TRW , Inc, 161 NLRB 690, Pepsi Cola Bottlers of Miami. Inc,
155 NLRB 527, Wm H Block, 150 NLRB 341
175 NLRB No. 31
HOSIERY CORP. OF AMERICA 181
CONCLUSIONS OF LAW
We hereby adopt the Trial Examiner's
Conclusions of Law except for paragraph 3, for
which we make the following substitutions:
3. By discharging Lula Finley on March 18, 1968,
the Respondent violated Section 8(a)(3) and (1) of
the Act.
4. By promulgating and discriminatorily applying
a rule against union activities during working hours
in order to discourage such activity among its
employees, the Respondent interfered with,
restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act, and
thereby committed an unfair labor practice affecting
commerce within the meaning of Section 8(a)(1) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent,
Hosiery Corporation of America , Rock Hill, South
Carolina, its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Textile Workers
Union of America , AFL-CIO, or any other labor
organization of its employees , by discharging any of
its employees , or in any other manner discriminating
against them with respect to their hire or tenure of
employment or any term or condition of their
employment.
(b) Promulgating or enforcing any rule prohibiting
union activities on company time, while permitting
other types of solicitation on company time, where
the purpose thereof is to interfere with union
organization.
(c) In any other manner interfering with,
restraining , or coercing employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Offer to Lula Finley immediate , full, and
unconditional reinstatement to her former job or a
substantially equivalent position , without prejudice
to her seniority or other rights and privileges and
make her whole for any loss of pay suffered by her
in the manner set forth in the section entitled "The
Remedy."
(b) Notify the above -named employee if presently
serving in the Armed Forces of the United States of
her right to full reinstatement upon application, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
(c) 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 and the rights of
employment under the terms of this Order.
(d) Post at its factory at Rock Hill, South
Carolina, copies of the attached notice marked
"Appendix."' Copies of said notice, to be provided
by the Regional Director for Region 11, shall, after
being duly signed by the Respondent's authorized
representative, be posted by the Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to its employees are customarily posted.
Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any
other material.
(e) Notify said Regional Director, in writing,
within 10 days from the date of this Order, what
steps have been taken to comply herewith.
MEMBER ZAGORIA, dissenting:
Although I would agree with my colleagues that
the "flower fund" and hosiery sales were
"solicitations," for essentially the reasons relied on
by the Trial Examiner and as I have indicated in
other cases,' I would not find that the Respondent's
posting of its no-solicitation rule or its discharge of
Finley were unlawful.
I am not persuaded that there is a preponderance
of the evidence to establish that Finley was
discharged for any reason other than her violation
of a lawfully promulgated and lawfully enforced
no-solicitation rule. I would therefore adopt the
Trial Examiner's Decision, and dismiss the
complaint.
'In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order"
'E g , Universal Cigar Corporation, 173 NLRB No 129, Saco-Lowell
Shops, a Division of Maremont Corporation, 169 NLRB No 151,
Marlene Industries Corporation, 166 NLRB No 58, and Gooch Packing
Company, 162 NLRB I
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that
After a trial in which both sides had the opportunity to
present their evidence , the National Labor Relations
Board has found that we violated the law and ,has ordered
us to post this notice and to keep our word about what we
say in this notice.
WE WILL NOT discharge or otherwise discriminate
against employees in order to discourage membership in
or support of Textile Workers Union of America,
AFL-CIO, or any other labor organization.
WE WILL NOT promulgate or enforce any rule against
union activities on company time, while permitting
other types of solicitation on company time, where the
purpose of such rule is to interfere with union activity.
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer to Lula Finley employment in her
former job or substantially equivalent position of
employment without loss of any seniority or other
rights and we will make her whole for any loss of pay
she may have suffered by reason of the discrimination
against her, with interest.
WE WILL notify the above-named employee if
presently serving in the Armed Forces of the United
States of her 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
HOSIERY CORPORATION
OF AMERICA
(Employer)
period preceding the issuance of the complaint,
Respondent produced and transported outside the State of
South Carolina directly from its Rock Hill, South
Carolina, plant , goods of a value in excess of $50,000
During the same period of time it caused goods and raw
materials of a value in excess of $50,000 to be shipped
directly to its Rock Hill , South Carolina, plant, from
points and places outside the State of South Carolina
Accordingly, I find that i t is an employer engaged in
commerce and in operations affecting commerce, within
the meaning of Section 2(2), (6), and (7) of the Act
The pleadings establish , and I find , that the Charging
Party, Textile Workers Union of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act
II. THE UNFAIR LABOR PRACTICESDated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting , and must not be altered,
defaced , or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board ' s Regional Office , 1624 Wachovia
Building, 301 North Main Street , Winston-Salem, North
Carolina 27101, Telephone 919-723-2911.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE L POWELL, Trial Examiner This case was
tried before me in the courtroom of the United States
District Court in Rock Hill, South Carolina, on July 30,
1968 The complaint issued June 26, 1968, (amended at
the hearing) based upon a charge filed April 17' by Textile
Workers Union of America, AFL-CIO, herein called the
Charging Party or Union. The two issues involved is
whether a rule promulgated by Respondent prohibiting
union organizing activities in the plant during working
hours violated the Act and whether the discharge of one
Lula Finley on March 18, based upon the rule, violated
Section 8(a)(1) and (3) of the Act.' All parties appeared
and gave testimony Briefs were filed on behalf of the
General Counsel and the Respondent on September 10
and September 6 respectively.
Upon the entire record of evidence, my observation of
the witnesses as they testified and on due consideration of
the briefs, I find, for the reasons hereafter stated, that the
General Counsel has not established by a preponderance
of the evidence that Respondent violated Section 8(a)(1)
and (3) of the Act as alleged in the complaint, as
amended, and will recommended that the complaint be
dismissed in its entirety.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I THE BUSINESS OF THE EMPLOYER AND THE LABOR
ORGANIZATION INVOLVED
The pleadings establish and I find that the Respondent,
Hosiery Corporation of America, is a South Carolina
corporation engaged in the manufacture of hosiery at its
Rock Hill, South Carolina, plant. During the 12-month
All dates are in 1968 unless otherwise noted
'29 U S C Sec 151, el seq
The Union began organizing the employees of
Respondent in January 1968 Thereafter on January 30,
the Respondent posted a notice to its employees as
follows:
TO ALL EMPLOYEES
A good many of you have recently been asking
questions in regard to the following matters and we
have decided to state the Company's position on these
matters as clearly and as definitely as we can for
everybody alike.
It is not necessary, and it is not ever going to be
necessary, for anybody to belong to the Textile Union,
or any other Union in order to work in this Plant
No person will be allowed to carry on Union
organizing activities in the Plant during working hours.
Anybody who undertake to do so and who thereby
interferes with his own work or the work of others will
be discharged
We will not tolerate any act by the Union or Union
members which is done with the purpose of causing any
trouble in the Plant for employees who are opposed to
the Union. Those who undertake to put such pressure
on other employees will be discharged.
Anybody who tells you anything contrary to the
foregoing is not telling you the truth.
HOSIERY
CORPORATION OF
AMERICA
BY
1-30-68
The parties stipulated that dunng the organizing
activities at the plant many charges of unfair labor
practices had been filed by the Union against Respondent.
The first case was filed on March 5, alleging violations of
Section 8(a)(1) and (3) in the discriminatory treatment of
four named employees. Lula Finley was named as one of
these discriminatees for her layoff of March 1. This case
was dismissed by the Regional Director on April 18
except for the layoff of Lula Finley which was to be
considered in the instant case. However the instant case
did not allege the layoff of March 1, which was involved
in the previous case. On a subsequent date of April 2, the
Union filed Case 11-CA-3568 alleging 8(a)(1) and (3)
discharges which case was dismissed on April 18.'
'It is not clear from the record whether this case, I1-CA-3568, is the
same as the original case although the parties stipulated as to the date the
charges were filed as noted above
HOSIERY CORP. OF AMERICA 183
The Union also filed two cases, 11-CA-3569 and
11-CA-3583, alleging violations of Section 8(a)(1) and (3)
of the Act but these cases were later withdrawn by the
Union The Union then filed a charge in Case I1-CA-3607
on April 26 alleging violations of Section 8(a)(1)(3) and
(5), which charge was withdrawn by the Union on May
20 The instant case, II-CA-3601, was filed on April 17
alleging violations of Section 8(a)(I) and (3) with respect
to the discharge of Lula Finley made on March 18, 1968.
The facts are relatively simple although some are in
sharp conflict Hartzell Kirby was the plant manager of
Respondent until April 5, 1968 According to his credited
testimony he had a conversation with Lula Finley on
March i at which time he told her that he had
information that she was "soliciting union membership .
on working time" Finley did not deny this but asked
him to prove it. In reply he told her that he had the
information and he would prove it if the time ever came
that he had to do so At that time he laid her off for I
week, without pay, for violation of the above rules.
Finley's first day returning to work was March 11.
The next time Kirby talked to Finley was on Monday,
March 18, a week later. Before work commenced on this
day, he had Finley report to the conference room. In a
conversation with her, Kirby went back over the
reprimand that he had given her earlier and told her that
he had evidence that she had tried to get union
memberships after returning to work on the 11th.
Accordingly, Kirby told her that since she had gone ahead
and was guilty of violation of the rule the second time
that he had no alternative other than to terminate her.
And he discharged her on that date.
Mary Therrell, an employee in the packing department,
credibly testified that Finley came to her on March 13 as
she was working at the end of the folding department
Both Finley and Therrell had had lunch. Finley's lunch
break was at I I a.m. and Therrell's was at 12 Finley was
a service girl although she did not service the machine
operated by Therrell. Finley came to Therrell's work
station, stopped and said "Mary, have you signed a union
card yet?" Therrell replied "We don't have a union yet."
Finley's reply to this was, "Yes, but we will have one."
Therrell testified, "I was packing hose and I kind of
stopped and talked and listened to what she said. And
said a few words to her." Therrell reported this incident to
her supervisor, Harry Geddings, who was supervisor of the
shipping department, and she also talked to B B. Shaw,
the administrator working with the plant manager. Shaw
asked her if she was willing to sign a statement to what
she told him. She was willing and did make a statement of
her own free will.
Norma Ellis, employee in the shipping department,
credibly testified that Finley talked to her on March 12 as
she was working. At this time Finley asked Ellis if she
would help in getting the shipping department in the
Union. Ellis told Finley that she didn't have the time and
was not interested. This conversation took place during
working time and interrupted her work so she reported it
to Geddings, her supervisor. He asked if she would talk to
Shaw about the conversation which she did, and she also
made a statement for Shaw. Actually she made two
statements, one the Monday following the Friday on
which she talked to Shaw and the second one within 2
weeks thereafter. According to Ellis' credited testimony,
Finley came to her while she was working and asked for
help to get some boxes. Ellis went with Finley to where
the boxes were stacked and Finley asked her if she would
help get the shipping department together for a meeting
with the union officials Ellis told her that she did not
have the time and "really wasn't interested in meeting
with them." Finley asked if Ellis would meet "just
briefly" with them as it would be to Ellis' benefit if she
would talk to them. Ellis again told her "no" that she
really wasn't interested. Finley then asked if Ellis would
meet her somewhere that she would buy her a cup of
coffee or a steak supper whichever she wanted if she
would just meet and talk with the union men. Again Ellis
told her she did not have the time and was not interested.
Ellis further testified that they were not working all of the
time that they were talking. Ellis said that "if we hadn't
been talking, we would have been finished a lot sooner."
Harry Geddings, supervisor of the shipping department,
credibly testified that both Ellis and Therrell told him that
Finley had tried to get them to join the Union while they
were working, during working time He reported this
violation of the rule to Shaw
W. F. Rhodes a retired police officer who was in charge
of security at the time, credibly testified that he was
present at the interviews Kirby had with Finley and
corroborated Kirby's testimony.
Lula Finley, the discharged employee, testified that she
did not have the conversation with Therrell but that she
did have the conversation with Ellis although instead of it
being during working time it was while she was on her
break
Break Periods and Other Activities
At some time after the first of the year in 1968
Respondent changed its starting times and break times.
Although Finley testified that at the time she engaged in
the conversation above with Ellis she was on her break
time, her testimony with respect to when her breaks took
place did not conform to the official break time as
testified to by Plant Manager Kirby. No additional
testimony was presented with respect to the time when
breaks could be taken. I credit Kirby's testimony and
conclude that Finley did not know her break periods, or at
least that her testimony with respect to the break periods
was erroneous, and that when she talked with Ellis she
was in fact talking during working time in violation of the
rule.' The General Counsel presented no evidence that
Respondent was discriminating against the Union in the
promulgation of the rule other than the fact that the rule
was published after the Union began its organizing
campaign. However, General Counsel did establish that
employees contributed to a "flower fund" and were able
to purchase hosiery at a reduced price by writing out
orders on scrap paper. These contributions and orders for
the purchasers' benefit were picked up by supervisors who,
in the case of orders for stockings, delivered the filled
orders to the employees at their work stations. There was
no evidence that anyone was engaging in antiunion
activities during working time or even during nonworking
time.
Concluding Findings
I find that the "flower fund" was not a "solicitation"
nor could the discount purchasing of hosiery by the
employees be considered a "solicitation." Hence neither of
these activities would fall within the rule prohibiting
solicitation, so there is no evidence of any disparate
treatment. As far as the rule itself is concerned, there is
'Finley is not credited when in conflict with other witnesses
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no evidence to show that it was promulgated "solely" to
prevent organization by a union As a matter of fact it is
apparently from the rule, and I so find, that it was
promulgated to hold down any interferences with
Respondent's operations. It is reasonable to conclude that
union organization during working hours tends to interfere
with employees as they are carrying out their duties
Accordingly, I find no violation of the Act in the rule or
in its promulgation The Board has held that
no-solicitation rules are presumptively valid and that an
employer may lawfully prevent his employees from
soliciting for a union during working hours provided the
rule is not promulgated or enforced for a discriminatory
purpose Pepsi Cola Bottlers of Miami, Inc, 155 NLRB
527; Wm H Block Company, 150 NLRB 341, Cf. Logan
Manufacturing Company, 162 NLRB No 148.
With respect to the allegations in the complaint having
to do with Lula Finley, I find from the credited evidence
above that she was in violation of the posted rule as she
solicited for the union during working time, was
suspended for a week for this reason, and upon her return
to work continued to engage in this prohibited conduct
thus interfering with her own work and the work of others
within the meaning of the rule, and, accordingly, was
discharged for cause. I can see no conclusion other than
that she deliberately flaunted the advice given her by the
plant manager. Respondent here simply enforced its rule
by discharging the rule breaker Accordingly I will
recommend that the complaint be dismissed in its entirety
III THE REMEDY
Having found that the General Counsel has not
sustained his burden of proof with respect to the
allegations of the complaint, I shall recommend that the
complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Respondent is, and during all times material has
been, an employer engaged in commerce and in the
business affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act
2 The Union, Textile Workers Union of America,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. The General Counsel has failed to establish by a
preponderance of the evidence that Respondent has
violated Section 8(a) (1) and (3) of the Act as set forth in
the complaint.
Accordingly, I recommend that the complaint be
dismissed in its entirety.