Indian Head Hosiery Co., Inc.

National Labor Relations Board - Board Decisions

Oct 4, 1972

199 N.L.R.B. 488 (N.L.R.B. 1972)

488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Indian Head Hosiery Company, Inc. and Raymond J.
Schnell, Field Representative, AFL-CIO. Case 11-
CA-4727
October 4, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND
PENELLO
On May 22, 1972, Administrative Law Judge'
Joseph I. Nachman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions to his Decision and a supporting brief.
Pursuant to the provision of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm only such of the rulings,
findings, and conclusions of the Administrative Law
Judge as are consistent herewith.
Based on a charge filed with the Board's Region-
al Office on November 15, 1971, the General Counsel
issued a complaint, as amended, alleging that
Respondent's failure to recall three former employees
who were on layoff status, on April 19 and 20, 1971,
and Respondent's failure to rehire them in October
and November 1971, because of their former union
and concerted activities violated Section 8(a)(3) and
(1). The facts show that Betty Gurganious, Retha Bur-
roughs, and Hilda Powell Peach had worked in
Respondent's preboarding department and were
numbers 19, 10, and 2, respectively, in seniority in that
department. All had been active in the Union during
its existence prior to February 1969 when the Union
was decertified.
On November 2, 1970, Respondent closed its
preboarding department for economic reasons and
approximately 45 employees from that department
were laid off, including the alleged discriminatees. At
that time the employees were told that they would be
recalled should the department be reopened. The de-
partment was reactivated on April 10, 1971, but the
three alleged discriminatees received no notice of re-
call. Although the three discriminatees were aware
that the department was again operating, they did not
seek their old jobs back until October and November
of 1971, a time when preboarding department was
already working short hours, and no jobs were avail-
able.
1 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
The General Counsel contends that Re-
spondent's failure to recall them on April 19 and 20,
1971, was the first chance Respondent had to discrim-
inate against these three most active union adherents
and that the failure to recall them was a continuing
violation. The Administrative Law Judge agreed with
the General Counsel's contentions that Respondent
discriminated against them on April 19 and 20, 1971,
by failing to recall them and that Respondent was
motivated by the fact that approximately 2 years earli-
er the employees had engaged in extensive concerted
and union activities. The Administrative Law Judge
found it unnecessary to determine whether Respon-
dent also violated the Act when it refused to rehire
them in October and November 1971, as the remedy
would be the same , and made no findings regarding
the General Counsel's theory of a continuing viola-
tion.
Respondent claims that the Administrative Law
Judge's findings of a violation in April 1971 was time
barred since it was beyond the 10(b) period of limita-
tion as proscribed in the Act .2 We find merit in
Respondent's contentions in this regard. Section 10(b)
of the Act specifically prohibits us from finding a
violation of the Act when the alleged unfair labor
practice has occurred more than 6 months prior to the
filing of the charge on which it is based. Since the
charge here was, not filed until November 15, 1971, we
cannot look beyond May 15, 1971, except for eviden-
tiary purposes of motivation, in finding a substantive
violation of the Act 3
The record shows and the Administrative Law
Judge found that between April 19 and 30, Respon-
dent hired a total of 44 employees in the preboarding
department, and employee complement almost equal
to that in the department prior to the November 1970
layoff. Although Respondent hired new employees
between May 3 and June 16, 1971, it had apparently
reached a full complement of employees in late April
and all available jobs in the preboarding department
were filled by early May. As found by the Administra-
tive Law Judge, all persons hired after the 10(b) cutoff
date were replacements of those either recalled or
hired into the new department who subsequently quit.
Thus, prior to May 15, Respondent filled all jobs cre-
ated by the reopening of the department, and any
discrimination evident in the failure to recall had by
that date become final. Since the finding of a violation
would be grounded on events predating the 10(b) lim-
itations period beginning May 15 we are precluded
2 Sec. 10(b) of the Act reads, in pertinent part. "no complaint shall issue
based upon any unfair labor practice occurring more than six months prior
to the filing of the charge with the Board and the service of a copy thereof
upon the person against whom such charge is made ......
3 Local Lodge No. 1424, International Association of Machinists [Bryan
Manufacturing Co.] v. N.L.&B., 362 U.S. 411.
199 NLRB No. 75
INDIAN HEAD HOSIERY COMPANY, INC. 489
from finding an unfair labor practice based thereon.4
Accordingly, we shall dismiss that portion of the com-
plaint alleging a failure to recall, and a continuing
failure to recall, as they occurred outside the 10(b)
period of limitations.'
Regarding the failure to rehire Peach, Burroughs,
and Gurganious when they presented themselves at
the plant in October and November 1971, the record
shows, and we have found, that Respondent had a full
complement of employees in the preboarding depart-
ment by the end of April or early May. Some time in
June, production in the department fell drastically,
and Respondent has not hired and has not replaced
any employees who have left since June, and has actu-
ally had the department working only on alternate
weeks so that any remaining employees will not have
to be laid off. Since there is no showing that jobs were
available for the alleged discriminatees when they
sought employment in October and November 1971,
we also dismiss that portion of the complaint alleging
that Respondent discriminatorily refused to rehire
them when they sought employment on those dates.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the complaint herein
be, and it hereby is, dismissed in its entirety.
4 Furthermore , there is no evidence that Respondent was recalling employ-
ees at any time within the 10(b) period . The record shows that the last date
an employee designated as a "recall" began working was May 10, 1971, and
this was the only "recall// after April 28, 1971.
5 See Bowen Products Corporation, 113 NLRB 731; N.L.KB v. Pennwoven,
Inc., 194 F 2d 521 (C.A. 3, 1952).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN, Trial Examiner:, This proceeding
tried before me at Wilmington, North Carolina, on March
7 and 8, 1972, with all parties present or duly represented,
involves a complaint 1 pursuant to Section 10(b) of the Na-
tional Labor Relations Act, as amended (herein the Act),
which , as amended, alleges that Indian Head Hosiery Com-
pany, Inc. (herein Respondent or Company), failed to recall
and failed to rehire Hilda Peach, Retha Burroughs, and
Betty Gurganious (each of whom had previously been laid
off for valid economic reasons), because they joined or as-
1 Issued January 31, 1972, on a charge filed November 15, 1971.
sisted a labor organization, or engaged in other union or
concerted activities. For reasons hereafter stated, I find the
allegations of the complaint sustained by the evidence and
recommend an appropriate order.
At the trial all parties were afforded full opportunity to
examine and cross-examine witnesses , to introduce relevant
evidence, to argue orally on the record, and to submit briefs.
The filing of briefs was waived, but oral argument presented
by counsel for the General Counsel and Respondent, re-
spectively, is included in the transcript and has been duly
considered.
Upon the pleadings, stipulations of counsel, the evi-
dence, including my observation of the demeanor of the
witnesses while testifying , I make the following:
FINDINGS OF FACT 2
Background
Respondent is engaged at Wilmington, North Caroli-
na, in the manufacture of hosiery. About 1965, Textile
Workers of America began a campaign to organize
Respondent's employees. In due course a representation
petition was filed, and after an election the Union was certi-
fied in late 1966 or early 1967, following which the parties
began bargaining for a contract. On or about June 7, 1967,
a great number of the employees engaged in a 24-hour strike
to protest what they regarded as the undue delay on the part
of the Company in agreeing to a contract. When the striking
employees returned to work the following day, Betty Gurga-
nious 3 was given a separation notice which stated that she
had been replaced because she failed to report for duty on
June 7. Other employees finding that their timecards had
been removed from the rack, and were in the possession of
supervisors who gave them to some employees but not to
others, after waiting for a period, concluded that the Com-
pany had fired them and suggested picketing of
Respondent's plant, which they proceeded to do. The num-
ber of employees who engaged in this picketing is not dis-
closed by the record, but it included at least Retha Bur-
roughs and Betty Gurganious, two of the three alleged dis-
criminatees in this proceeding .4 After picketing about a
week the strikers returned to the plant and asked for their
jobs, but were told that there were no jobs available for
2 No issue of commerce is presented . The complaint alleges and the answer
admits facts which establish this jurisdictional element I find those facts to
be as pleaded Although the complaint does not allege that any labor organi-
zation is involved, the evidence shows that a local of Textile Workers of
America organized the employees and was certified as the representative of
the employees of Respondent 's Wilmington , North Carolina, plant; that for
about a year it had a contract with Respondent covering said employees, and
that pursuant to a Board-conducted election held in February 1969 the Local
was decertified . On the basis of this evidence , I find that there existed at
Respondent's aforesaid plant , a labor organization within the meaning of
Sec. 2(5) of the Act.
3 Gurganious had worked for Respondent from 1962 to 1964, when she left
for maternity reasons. She was rehired in June 1967 and was scheduled to
report for work on the day of the 24-hour protest strike , but did not cross
the picket line, reporting for work the following day
4 Hilda Powell Peach , the remaining alleged discrinunatee had not yet been
hired at the time of these events.
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them. Because of these events, the Union at least on behalf
of Gurganious and Burroughs, filed charges with the Board
and, in October 1967, both were reinstated with backpay.5
Upon returning to work in October 1967, Gurganious
was elected to the Union's bargaining committee and par-
ticipated in the bargaining with Respondent until about
February 1968, when a contract was signed. After the con-
tract was signed, Gurganious was elected secretary of the
local and served in that capacity for the remainder of 1968.
In addition Gurganious served as a shop steward until Feb-
ruary 1969, when the Union ceased to be the bargaining
representative of the employees. Additionally, during this
period of her employment Gurganious solicited her fellow
employees to sign cards on behalf of the Union; passed out
union literature in front of the plant on a number of occa-
sions; and wore union buttons while at work.
Retha Burroughs began working for Respondent in
1958, and was active in support of the Union's campaign
from its inception. She solicited a great number of employ-
ees both at work and in their homes, to support the Union's
cause ; handbilled the plant on a number of occasions; wore
union buttons while at work, sometime in multiple num-
bers; engaged in picketing the plant as above related; and,
like Gurganious, served on the Union's negotiating commit-
tee until the contract was signed in February 1968.
Hilda Peach came to work for Respondent about Sep-
tember or October 1967. She promptly became active in the
Union's campaign soliciting employees to sign cards, and
on a number of occasions handbilled the plant, passing out
union literature. Sometime in 1968, while the contract be-
tween Respondent and the Union was in effect, Peach testi-
fied on behalf of the grievant in an arbitration proceeding
between the Company and the Union. The nature nor the
results of the arbitration proceeding is disclosed by the rec-
ord.
In February 1969, apparently prusuant to a decertifica-
tion petition, the Board conducted an election among the
employees of Respondent's Wilmington plant, and having
lost this election, the Union was immediately decertified.
The evidence is uncontradicted that, following the decertifi-
cation, no union activity of any kind took place among the
employees at said plant 6
Sometime in the summer of 1969, there no longer being
a collective-bargaining representative in the plant, Respon-
dent prepared and distributed to all employees on "Employ-
ee Handbook" which, the employees were told, would
govern all employment practices. To the extent here mate-
rial, the handbook stated that departmental seniority (con-
tinuous employment in a particular department), would be
used in determining job rights; that in the event of a reduc-
tion in force, the employee with the least seniority in the
department would be the first laid off; that employees so
laid off would be placed on a recall list by departments, and
would be recalled to work in their department in inverse
order of layoff; that employees to be recalled would be
3 Just how this came about the record does not reflect . Presumably, it
resulted from an informal settlement of the aforementioned charges filed
with the Board.
6 My finding to this point are based on the uncontradicted and credited
testimony of Gurganious, Burroughs, and Peach.
notified of that fact by telephone or registered mail; and
that recalled employees were expected to report for work or
contact the personnel manager within 3 days of receipt of
the recall notice. The handbook additionally provides that
an employee will lose "all seniority rights" if he (1) quits;
(2) is discharged for cause; (3) is laid off for more than 12
months; (4) is recalled from layoff and fails to report for
work within 3 days; (5) fails to return from a leave of ab-
sence; and (6) is absent from work for 3 consecutive days
without notifying the Company.
About the same time that the handbook was distrib-
uted to the employees, there was also posted in a glass
enclosed and locked bulletin board a six-page statement
entitled "Personnel Policy Manual, Subject: Seniority."
This document also defined seniority and stated that de-
partmental seniority would prevail in determining job
rights. However, with respect to recall from layoff the policy
manual states that for a period not exceeding 3 months after
the layoff date employees shall be entitled to recall, with
those in layoff status for more than 3 but less than 12
months to be given preferential consideration for employ-
ment, but if reemployed seniority shall be reinstated to the
preceding date of hire. With respect to the notice to be given
a laid-off employee in the event of'recall, the policy manual
states that such notice may be given "through friends or by
telephone, but official notice ... will be given by means of
registered mail (return receipt requested) sent to the
employee's address as shown on his personnel record," and
will be terminated as a quit unless they report for duty
within 3 working days after receipt of the notice unless
proper excuse is presented within a reasonable time. With
respect to loss of seniority the policy manual is identical
with the handbook above referred to .7
On November 2, 1970, Respondent found it necessary
to close its preboarding department and to layoff the ap-
proximately 45 employees then working in that department,
including Gurganious, Burroughs, and Peach, who at the
time were numbers 19, 10, and 2, respectively, on the senior-
ity list for that department. The General Counsel concedes
that this layoff was dictated solely by legitimate economic
considerations. At the time of the layoff, Robert Loy, then
personnel manager at the Wilmington plant, assembled the
employees of the preboarding department by shifts, and
told those on the first shift where Gurganious, Burroughs,
and Peach worked, that the department was being closed
down and all employees laid off; that he hoped the depart-
ment could be reopened at a later time and, if it was, the
employees would be recalled in the order of seniority, but
7 Johnson, Respondent's director of employee relations, testified that he
authorized both the handbook and policy manual ; and that the latter was
posted some 2 or 3 months before the handbook was distributed to employ-
ees, and that he attended meetings at which the pohcy manual was discussed
with an explained to employees by plant supervision ; and that the handbook
was merely a synopsis or explanation of the policy manual , the latter prevail-
mg where there was a conflict . Gurgamous , Burroughs, and Peach testified
that they saw the pohcy manual posted on the bulletin board, after the
handbook was distributed they thought, but that it was never discussed with
them by supervision, and that they had no recollection that the policy manual
stated that recall rights would last only 3 months. In the view I take of the
case, it is unnecessary to resolve the conflict
INDIAN HEAD HOSIERY COMPANY, INC. 491
if the department was not reopened , he would try to place
them in jobs in other departments.8
Current Facts
On or about April 14 or 15,9 Plant Manager Horn
informed Personnel Manager Loy that the preboarding de-
partment would be reactivated immediately , and directed
that Loy have from 40 to 50 workers available for that
department as soon as possible . According to Horn , he told
Loy to utilize the list of preboarding employees laid off the
preceding November, to communicate with as many of
those as he could , and recall those willing to accept employ-
ment , in the order of seniority , and when the list was ex-
hausted to resort to applications for employment which the
Company had on file . Also according to Horn , he was in-
formed by Loy that the latter went through the preboarding
list "numerous times ," and that some employees Loy con-
tacted , for reasons of their own , declined the offer of em-
ployment . 10 The record shows that between April 19 and
April 30, Respondent hired a total of 44 employees, of
which 19 were recalls from among the 45 laid off the prior
November , and the remaining 25 were new hires who had
not therefore worked for the Company ." Between May 3
and June 16 a total of 40'additional employees were hired,
of whom 1 was a recall , and the remaining 39 were new
hires.12
The evidence is uncontradicted that neither Peach,
Burroughs , nor Gurganious , although they stood number 2,
10, and 19 , respectively, on the list of those laid off the prior
November, received any communication from Respondent
about returning to work . The evidence is also undisputed
that at least two people on the preboarding seniority list
(Virginia Ganey and Barbara Dixon, who were 5 or 6, and
6 or 7, respectively , on the list), were recalled to work in
April by means of a letter sent by certified mail. Ganey did
not have a telephone but Dixon had provided Respondent
with a telephone number where she might be reached, the
number being 13 that of her sister-in-law, or of her neighbor.
Respondent 's basis defense to the complaint herein is
that it tried to communicate with the three employees in-
volved, but was unable to reach them . The relevant facts
with respect to this defense may be summarized as follows:
Respondent introduced into evidence its personnel rec-
ords for these employees , each of which shows an address
and telephone number . 14 With respect to Gurganious, Re-
spondent raises no question about the accuracy of the infor-
mation thereon . With respect to Burroughs , Respondent
8 Based on the credited testimony Gurgamous, Burroughs, and Peach. Loy,
although served with subpena, did not appear at the trial. However, the
General Counsel and Respondent stipulated what Loy's testimony would be
had he testified . On this point the stipulation is that on November 2, 1970,
Loy told the girls "that they would have recall rights." I do not regard Loy's
testimony in this regard as in any way inconsistent with or in contradiction
of that of the aforementioned employees.
9 This and all dates hereafter mentioned are 1971, unless otherwise stated.
10 The testimony of Loy, received pursuant to stipulation, is not entirely
in accord with that of Horn According to the stipulation as to what Loy's
testimony would be, he and those assisting him, using the list of the laid-off
preboarding employees, telephoned each employee starting with the top of
the list , but if they got no answer went to next name down the list, and so
on until the list was exhausted, and then they resorted to applications for
employment on file with the Company.
raises no question about the accuracy of her address as it
appears on its records , but claims that it had an inaccurate
telephone number for her. Burroughs testified that her tele-
phone number was 687-7857, and that there has been no
change in that number since her layoff , and that she fur-
nished that number to the Company , at its request, approxi-
mately 6 weeks before the layoff . Respondent 's records,
however, show her telephone number as 763-4526. No testi-
mony was offered by either party in explanation of the
apparent discrependy , or how the error , if it was an error,
may have occurred.
In the case of Hilda Peach the evidence shows that,
when initially employed by Respondent in 1967 , she gave
the Company her address as 705 Spofford Circle, Wil-
mington, North Carolina, and her telephone number as
762-0487 . Actually, this is the address and telephone num-
ber of Peach's mother . At some time not disclosed by the
record , Peach moved to 4-C Lake Village , where she lived
The time and breakdown of the hires are as follows-
Date No. hired Recalls New hires
April19 6 6 0
April20 9 5 4
April 21 4 2 2
April22 3 2 1
April23 2 0 2
April 24 1 0 1
Apnl26 10 2 8
April 27 3 1 2
April 28 4 1 3
April 29 1 0 1
April 30 1 0 1
Totals 44 19 25
12 Over the period subsequent to April 19, a number of the employees hired
for preboarding terminated their employment for one reason or another,
which made it necessary to hire additional people , and by March 2, 1972,
employment in that department stood at 25. Since June 16, no one has been
hired for the preboarding department
i3 Plant Manager Horn testified that some people on the list were sent
letters because they did not have telephones and could be reached quicker
by letter, but gave no explanation as to why letters were not sent to Peach,
Burroughs , or Gurganious notwithstanding Respondent 's own policy state-
ment that `official notice of recall to will be given by means of registered mail
:' Neither did he explain why a letter was sent to Dixon although she
had provided Respondent with a telephone number where she might be
reached . The stipulated testimony of Loy makes no mention of attempts to
recall employees by mail I do not credit Horn 's testimony that letters were
sent to some employees because they could be reached easier that way Not
only did Horn fail to give any basis of knowledge of the facts, but he admitted
that Personnel Manager Loy had never informed him that he (Loy) had sent
a letter to any girl recalling her to work Moreover, Horn did not impress me
as a straightforward witness whose testimony would inspire confidence in its
reliability . Rather he impressed me as one who had something to hide and
seemed fearful that he might inadvertently disclose something . For example,
he professed complete lack of knowledge as to whether the letter to Virginia
Ganey (G.C. Exh. 4) was or even that it appeared to be a form letter, when
it is perfectly obvious that it was . He also professed inability to explain why
new hires were put to work on April 20 and 21, ahead of recalls who were
put to work later, and refused to state whether that was, or even that it
appeared to be , contrary to his instructions to Loy regarding the practice the
latter was to follow in recalling the previously laid-off employees.
141 credit the testimony of Gurganious, Burroughs, and Peach that Re-
spondent periodically sent someone through the plant to get updated infor-
mation with respect to the addresses and telephone numbers of its employees,
and that they supplied such information on the last occasion about 6 weeks
prior to their layoff . I do not iegard the testimony of Company Representa-
tive Johnson that the practice of asking employees for addresses and tele-
phone numbers was abandoned in 1969, as being in conflict with the positive
testimony of the alleged discnminatees that such information was requested
of them , and that they supplied it pursuant to such request.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until November 1971. A telephone was installed at this loca-
tion, the number of which was 762-9244.15 On Respondent's
personnel record, the original address furnished by Peach
has a line drawn through it, and the new address written in
by hand, but there is no change in the telephone number.
The evidence additionally shows that at all times material
Peach's mother was employed at Respondent's plant, that
prior to her layoff the Company at times sent messages to
Peach through her mother; and that during Christmas 1970,
after her layoff, Respondent sent Peach a message through
her mother, that she should call for a ham that Respondent
was giving its employees as a gift.
Other than the stipulation that Loy, if present, would
testify that he and company representatives calling persons
from the list would call a certain number, and if that num-
ber did not answer would proceed to the next name on the
list-testimony which I do not credit-there is no evidence
in the record that Respondent had any difficulty communi-
cating with the employees involved or, if so, what that diffi-
culty was. Indeed there is no specific testimony that the
three individuals here involved were in fact ever called; if
they were in fact called was the inability to speak with them
because the telephone did not answer, or because a wrong
number was reached; if the phone did not answer, what
efforts, if any, were made to call later; if Respondent
reached wrong number what effort, if any, was made to
ascertain and call the correct number? As to all of these
questions the record is silent.
On October 12, Gurganious and Burroughs together
went to Respondent's plant, where they conferred with Per-
sonnel Manager Loy. They asked Loy why they had not
been called back to work and told him they were still inter-
ested in their jobs. Loy responded that the Company was
calling people back as it needed them, but that he had not
had the opportunity to call them, and that those who had
been recalled were only working about half time. About a
week later Gurganious and Burroughs returned to the plant
and again talked to Loy. On this occasion they reminded
Loy of their high standing on the seniority list and com-
mented that it was their understanding that under
Respondent's policy it would recall the employees previous-
ly laid off before hiring new employees, as Respondent had
done. Loy's response again was that he had not had the
opportunity to call them as there was not sufficient work.
In neither of these conversations did Loy make any claim
that he had tried to communicate with Gurganious or Bur-
roughs, but had been unable to reach them.16
15 Peach testified that she had this number until July or August 1971, when
the telephone was apparently disconnected. She further testified that in No-
vember 1971, which, of course, was after the events here involved, she moved
from 4-C Lake Village to 1109 Spofford Circle. Apparently no telephone was
installed at the latter location.
16 Based on the credited testimony of Gurgamous and Burroughs. The
stipulated testimony of Loy refers only to the October 12 conversation, no
mention being made of the October 19 conversation. According to Loy, the
employees merely asked about possible employment in preboarding; he that
stated such was not available but that perhaps something might be open on
the third shift in sewing or knitting , both stated they would be interested only
in a first-shift job, he responded there are no first -shift jobs available; and
both women then left the plant . To the extent that there is a conflict between
the testimony of Loy, on the one hand, and Gurgamous and Burroughs on
the other, I credit the latter.
After two prior unsuccessful attempts to communicate
by telephone with Loy during the preceding month, Peach
went to see Loy on November 11. In substance Peach told
Loy that she needed and was available for work. Loy told
Peach that no work was then available, but that plans were
under consideration for the installation of a dye board oper-
ation and, if this was done, she would be called back.17
Gurganious testified that she learned in May that Re-
spondent was recalling employees for preboarding, and
when asked to explain why she waited until October before
going to see the Company about work she explained that
Personnel Director Loy, whom she had met on the street in
June, told her that the Company had hired only a few girls
and those were working only part-time, that she had been
told at the time of her layoff that employees would be
recalled in the order of seniority, and as she was number 18
on the list, she waited for her turn to be reached.
Burroughs testified that she first learned that some em-
ployees were recalled by Respondent in April, but did not
learn that new employees were hired ahead of people on the
list until August; that when she learned about the new em-
ployees being hired, she telephoned Loy but was unable to
get to speak to him; and that she did not go to see Loy until
October because he had told the laid-off employees that
they would be called back in the order of seniority and
ahead of new employees.
Peach testified that she learned from her mother about
mid-April that Respondent was hiring for preboarding, and
that she knew those hired had to be junior to her because
she was number 2 on the list. She explained the delay in her
going to see Loy by the fact that she was injured in mid-
April which incapacitated her for 6 weeks, and that she had
to go through a second operation in September, which inca-
pacitated her for another 6 weeks.
Contentions and Conclusion
As has been said with such frequency as to make un-
necessary the citation of authority, an employer is free to
discharge an employee for any reason, or for no, reason so
long as it is not for union or concerted activity protected by
Section 7 of the Act. I perceive it to be axiomatic that the
same principles are applicable when an employer refuses to
hire an applicant for employment, or to recall or rehire a
previously laid-off employee. See Phelps Dodge Corp. v.
N.L.R.B., 313 U.S. 177. Accordingly, under the principles
mentioned, if the General Counsel establishes by a prepon-
derence of the evidence that Respondent discriminated
against Gurganious, Burroughs, and Peach and that such
discrimination was motivated by the fact that said individ-
uals had engaged in union or concerted activity protected
by Section 7 of the Act, there can be no question but that
a violation of Section 8(a)(3) of the Act has been estab-
lished. On the other hand, if the General Counsel failed to
establish either of the two elements above-mentioned, then
17 The findings in this section are based on the credited testimony of Peach.
Loy admits the meeting with Powell on November 11, 1971, and admits the
discussion about the dye board operation, but claims that he told her that
such work , if it became available, would be only on second or third shift, and
that Powell replied that she was only interested in first-shift work. To the
extent that Loy's testimony conflicts with that of Powell , I credit the latter.
INDIAN HEAD HOSIERY COMPANY, INC. 493
the complaint must be dismissed. I turn now to a considera-
tion of those questions.
Was There Discrimination?
That Respondent discriminated against the three peo-
ple here involved can hardly be open to question. The
"Handbook" and the "Policy Statement" announced to all
employees during the summer of 1969, although differing
somewhat in the precise procedure to be followed in the
event of a layoff, that in the event of such a layoff and
subsequent necessity for employees, such employees would
enjoy certain preferences.'8 In addition, the uncontradicted
testimony is that at the time of the November 2 layoff
Personnel Manager Loy told all the laid-off employees that
Respondent hoped to reopen the preboarding department
and, if it did, they would be recalled in the order of seniori-
ty; nothing being said about a time limitation on their recall
rights. Nonetheless, it is undisputed that neither Gurgani-
ous, Burroughs, nor Peach was recalled nor offered employ-
ment by Respondent, as were numerous others on the list
of those laid off on November 2. This, I find and conclude,
constituted a discrimination against the aforementioned
employees with respect to their hire or tenure of employ-
ment, and I so find and conclude. As the Supreme Court
said in Radio Officers' Union v. N.L.R.B., 347 U.S. 17, 39
"involuntary reduction of seniority, refusal to hire for an
available job, and disparate wage treatment are clearly dis-
criminatory" (Emphasis Supplied).19
Having concluded that Respondent discriminated
against Gurganious, Burroughs, and Peach is not the end,
but only the beginning of the issue I regard as critical in the
disposition of this case, for not all discrimination is violative
of Section 8(a)(3). Retail Clerk's Union, Local 1357 (Lit
Brothers), 192 NLRB No. 172 (TXD). To constitute a viola-
tion of that section the discrimination must be of a character
which "encourage[s] or discourage[s] membership in any
labor organization" (Sec. 8(a)(3) of the Act). In applying the
quoted phrase, it must be born in mind, as the Supreme
Court has held, that with exceptions not here material, the
section applies to "discrimination to discourage participa-
tion in Union activities as well as to discourage adherence
to Union membership." Radio Officers' Union v. N.L.R.B.,
supra, 39-40. And while in proper circumstances the pros-
cribed intent may be inferred from the discrimination itself
(Radio Officers'v. N.L.R.B., supra, 45), or at least may cast
18 As heretofore indicated the "Handbook" distributed to employees con-
tained nothing to indicate that recall rights of a laid -off employee would
expire after some designated period . However the "Policy Manual" posted
on the bulletin board stated that recall rights would extend only to those
employees who had been in layoff status for less than 3 months , and those
laid off for more than 3 but less than 12 months would be given preferential
consideration for employment
19 I am not holding, as Respondent argues that I must in order to reach
the conclusion that it discriminated against the three employees involved,
that each enjoyed recall rights without limitations as to time . To what extent,
if at all, an employer may limit or abrograte possible recall right of a laid-off
employee is a question as to which I find it unnecessary to express any
opinion. All I hold is that whether legally obligated to do so, or not , Respon-
dent elected to use , in the order of seniority, the list of those laid off on
upon the employer the burden of going forward with evi-
dence of legitimate and substantial business justifications
for the conduct (N.L.R.B. v. Great Dane Trailers, Inc., 388
U.S. at 34), the Board has held that Great Dane is inapplica-
ble where the issue turns upon the employer's motive for
particular conduct. Standard Times Publishing Company,
169 NLRB 1129, 1131, fn. 8. In such cases the burden rests
with the General Counsel to establish by a preponderance
of the evidence that the employer had the proscribed mo-
tive.
Applying the foregoing principles to the instant case,
the precise question to be decided is has the General Coun-
sel established by a preponderance of the evidence that in
failing to recall Gurganious, Burroughs, and Peach in mid-
April 1971 Respondent was motivated, even in part, by the
fact that approximately 2 years earlier said employees had
engaged in "concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection," within
the meaning of Section 7 of the Act. Upon careful consider-
ation of the entire record, I am convinced, and therefore
find and conclude that the question posed must be answered
in the affirmative, and that Respondent's contention that it
failed to recall the employees solely because it was unable
to communicate with them is simply a subterfuge seized
upon in an attempt to obscure the true motive for its con-
duct, and to give it apparent legitimacy. I reach this conclu-
sion upon the totality of the following considerations:
1. Respondent was well aware of the fact that the three
employees here involved were deep in prounion activity.
Not only did Gurganious and Burroughs handbill the plant
and solicit employees to become and remain members of the
Union, but they were on the Union's committee that bar-
gained with representatives of Respondent. Both filed
charges with the Board which resulted in their being rein-
stated with backpay. Peach not only handbilled the plant
and solicited card signers, but she testified against Respon-
dent in an arbitration proceeding between it and the Union.
2. Respondent makes no complaint concerning the
work record of any of the employees involved.
3. Instead of recalling the three employees here in-
volved, each' of whom had theretofore established a record
as a competent and satisfactory employee, Respondent
within a period of 11 days hired at least 29 new employees
none of whom had theretofore worked for the Company nor
had previous experience in the work required of them. Plant
Manager Horn admitted that such new employees worked
at piece rate, with a guarantee that they would earn at least
$1.60 an hour, and that it takes from 6 to 8 weeks for the
average employee to reach the level of proficiency that they
would earn the guaranteed minimum. I find it difficult to
believe that an employer would forego the services of
trained and satisfactory employees, and instead hire un-
trained and unproven employees that would cost him mon-
ey to train, unless there was a reason therefor, and the only
November 2 and that, when it failed to recall Gurganious, Burroughs, and
Peach, Respondent discriminated against them within the meaning of Sec.
8(a)(3) of the Act. Whether such discrimination is of a type proscribed by the
remainder of Sec. 8(a)(3) is the next question to be considered.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason that suggests itself on this record is the union and
concerted activity of these employees, of which Respondent
was well aware. °
4. Respondent's sole justification for its failure to recall
the employees involved is that it attempted to communicate
with them by telephone and was unable to do so, pointing
out that in the case of Burroughs it had a wrong telephone
number.21 Not only was recall by telephone contrary to the
statement in Respondent's "Personnel Policy Manual,"22
but, as I have discredited the testimony of Loy, I find the
evidence insufficient to establish that Respondent made any
effort to communicate with the employees involved by tele-
phone, and it is clear that it did not attempt to use any other
method of communication. The only other testimony of-
fered by Respondent on this issue is the hearsay statement
of Plant Manager Horn, whom I have also found not to be
a reliable witness, that he had been informed by Loy that
the latter, in recalling employees, went down the seniority
list "numerous times." But even assuming that Respondent
made an effort to communicate with each of the three em-
ployees involved by telephone and for some reason was
unable to get them, there is still inadequate explanation as
to why Respondent wrote employees Ganey and Dixon
recalling them to work, but did not write to Gurganious,
Burroughs, and Peach 23
5. What all this adds up to is that the three employees
here involved, all with unblemished employment records,
are contrary to Respondent's own announced employment
practice of officially recalling laid-off employees by letter,
passed over for employment in favor of inexperienced em-
ployees who, before they will perform satisfactorily will
have to be trained at some considerable cost to Respondent,
allegedly because it was unable to communicate with them
by telephone, although it recalled other employees by letter.
This is just not the way employers faced with such a situ-
ation normally react. An employer not motivated by a de-
sire to discriminate would call several times if a phone did
not answer, or would at least make some effort to ascertain
if perhaps he was calling a wrong number, or at least write
a letter to the last address in its files. But Respondent does
not even claim that it did any of these things. Plainly there
was some motive which dictated Respondent's course of
action, and the only one that suggests itself is that Respon-
dent, at the first opportunity that presented itself which it
felt it could take advantage of, retaliated against Gurgani-
ous, Burroughs, and Peach for the union and protected
concerted activity in which they had previously engaged.
I so find and conclude. As the Court of Appeals for the
Ninth Circuit said in Shattuck Denn Mining Corporation v.
N.L.R.B., 362 F.2d 466, 470, in language fully applicable
here:
If he [the trier of fact] finds that the stated motive for
a discharge [or a failure to recall] is false, he can cer-
tainly infer that there is another motive. More than
that, he can infer that the motive is one that the em-
ployer desires to conceal-an unlawful motive-at
least where, as in this case, the surrounding facts tend
to reinforce that inference?
Upon the foregoing findings of fact, and the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
20 Respondent 's suggestion that these employees purposely refrained from
going to Respondent for employment when they learned that employees were
being hired in order to continue collecting unemployment compensation,
their right to same not expiring until early November 1971, while having
surface appeal , does not withstand scrutiny in view of the provisions of Sec.
96-14(8) and 96-18(f) of the General Statutes of North Carolina (1971)
These provide that an employee is disqualified for compensation for any
week he has received any sum from his employer or any lump sum payment
pursuant to an order of the Board , and if he received compensation to which
he is not entitled such sum must be repaid to Unemployment Insurance
Fund . Thus, any compensation they received for any week covered by the
backpay order recommended herein , they must repay to the State.
21 It may be noted that in the case of Gurganious Respondent made no
proof of a wrong telephone number, and in the case of Peach the number
Respondent had was that of her mother who was at all times material em-
ployed at Respondent's plant. There is no showing that Respondent made
any effort to communicate with Peach through her mother, either by tele-
phone or otherwise
22 The manual stated that recall notices may be given "through friends or
by telephone, but official notice ... will be given by means of registered mail
(return receipt requested) ...."
23 The explanation given by Respondent is that it wrote only to those
employees who did not have a telephone . Ganey and Dixon both testified
that they did not have a telephone. The explanation does not ring true
however, in light of Horn 's testimony that the purpose of resorting to the
telephone was to get the employees to work as quickly as possible. As the
letter to Ganey is dated April 16, 1971, and gave her until April 21, 1971, to
indicate whether she was interested in returning to work , it is difficult to see
how the objective of speed was served . Dixon , according to her testimony,
received an identical letter as Ganey. The bona fides of Respondent's expla-
nation is also put in question by the testimony of Dixon, that Respondent
had a telephone number for her, although the number she furnished was that
of her sister-in-law or of her neighbor . Finally it is difficult to understand
why, if speed in communication was Respondent's prime objective , it did not
even attempt to communicate with Peach through her mother who , as shown
on Peach's employment record, is employed at Respondent 's plant.
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The local of the Textile Workers Union certified by
the Board as the collective bargaining representative of
Respondent's employees is a labor organization within the
meaning of Section 2(5) of the Act.
3. By failing to recall Gurgamous, Burroughs, and
Peach in April 1971, for employment at Respondent's Wil-
mington, North Carolina, plant, Respondent discriminated
against them in regard to their hire and tenure of employ-
ment, and the terms and conditions thereof, discouraging
membership in a labor organization, and thereby engaged
in and is engaging in unfair labor practices proscribed by
Section 8(a)(3) and (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 Respondent engaged in certain un-
fair labor practices, I shall recommend that it be required
to cease and desist therefrom and take affirmative action
24 Having reached the conclusion that Respondent 's failure to recall the
three employees involved in April 1971 violated Sec. 8(a)(3) and (1) of the
Act, it becomes unnecessary to decide whether it also violated the Act when
it refused to rehire them when they visited the plant in October and Novem-
ber 1971 , for whether such a violation is found or not the remedy would be
the same.
INDIAN HEAD HOSIERY COMPANY, INC. 495
found necessary and designed to effectuate the policies of
the Act. The violations found being of a character that go
to the very heart of the Act, I shall recommend that Respon-
dent be required to cease and desist from in any manner
infringing upon the exercise of employee rights protected by
Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120
F.2d 532 (C.A. 4); California Lingerie Inc., 129 NLRB 912,
915.
Having found that Respondent discriminatorily failed
to recall for employment Gurganious, Burroughs, and
Peach, it will be recommended that Respondent be required
to offer each of them employment in their former or sub-
stantially equivalent positions, without prejudice to their
seniority or other rights, privileges, or working conditions,
and to make each of them whole for any loss of earnings
they suffered by reason of the discrimination against them,
by paying to them, respectively, a sum of money equal to
the amount each would have earned from April 19 in the
case of Peach,25 and April 20 in the case of Gurganious and
25 There is some indication in the record that because of her injuries Peach
may not be entitled to backpay for a portion of the period after April 19. As
this was not fully developed in the record , I leave to the compliance stage
of the proceeding the question of what period she would have been available
for work.
Burroughs, to the date Respondent offers them rein-
statement as aforesaid, less any amount each may have
earned as wages during said period.26 The backpay herein
recommended shall be computed in the manner set forth in
F. W. Woolworth Company, 90 NLRB 289, with interest at
the rate of 6 percent per annum, as provided in Isis Plum-
bing & Heating Co., 138 NLRB 716. It will also be recom-
mended that Respondent be required to preserve and, upon
request, make available to authorized agents of the Board
all records necessary or useful in determining compliance
with the Board's order, or in computing the amount of
backpay due.
[Recommended Order omitted from publication.]
26 The evidence shows that Respondent recalled six employees on April 19.
As Peach was number two on the seniority list, it is obvious that but for the
discrimination against her she would have been recalled on that day. As
Gurgamous and Burroughs were numbers 19 and 10 , respectively , it is ob-
vious that they would not have been reached for recall on April 19, in the
normal operation of the seniority list However , on April 20, Respondent
hired nine people, five of whom were recalls and four were new hires. As
Gurganious and Burroughs both had seniority over the new hires , I fix their
right to recall as beginning on April 20 for the purpose of computing their
backpay.