Jamel, Inc.

National Labor Relations Board - Board Decisions

Jan 6, 1961

129 N.L.R.B. 1191 (N.L.R.B. 1961)

JAMEL, INC. 1191
picketing. Evidence as to inconsistency should be put before the Re-
gional Director as outlined in Section 102.77 of the Rules. We do not
see the necessity or wisdom of what amounts to a separate unit stand-
ard for expedited elections.
Jamel, Inc. and International Ladies Garment Workers Union,
AFL-CIO. Case No. 11-CA-1599. January 6, 1961
DECISION AND ORDER
On June 30, 1960, Trial Examiner Sidney Sherman issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, Respondent filed ex-
ceptions to the, Intermediate Report and a supporting brief.'
Pursuant to the provisions of Section 3 ('b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Jenkins and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and, except as set forth hereinafter, hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner.
As found by the Trial Examiner, Tant was one of six employees who
attended a union meeting on February 2, which meeting was kept
under surveillance by Respondent; was one of three employees who
Respondent knew had signed cards at that meeting; and was, as Re-
spondent knew from Gilliam's interrogation, an active union adherent.
On Monday, February 8, Tant and Robbins voluntarily accepted a
layoff. Tant's testimony was that she agreed to a layoff only for the
balance of the week while Supervisor Gilliam, corroborated by Rob-
bins, testified that Tant requested that she be the last one called back
to work. On February 10, the Union filed a charge, which was served
on Respondent on February 13, alleging, inter alia, that Respondent
had discriminated against Tant on February S. On February 15 Rob-
bins was recalled to work, but Tant was not recalled, either then or at
any other time prior to the hearing. In late March Supervisor Mc-
Millin told Tuck that Respondent had laid off some of its best hands
because of the Union.
X The Respondent 's request for oral argument is denied as the record, including the
briefs, adequately presents the issues and the positions of the parties.
129 NLRB No. 142.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In finding discriminatory motivation on the basis of the foregoing
facts, the Trial Examiner reasoned that upon receipt of the charge
Respondent should have known that Tant was not content to remain
unemployed, yet Respondent made no effort to contact her to clear up
any misunderstanding it may have had concerning her desire for im-
mediate reemployment; in these circumstances he deemed it unneces-
sary to resolve the testimonial conflict concerning the agreed duration
of Tant's layoff. The charge, however, was filed by the Union, and
not by Tent, before there could have been any unlawful failure to
recall, and the charge alleged discrimination as to the layoff which it
is clear was not discriminatory. In these circumstances we disagree
with the Trial Examiner that the charge should have put Respondent
on notice that Tent may have wanted to be recalled. Resolution of
the conflict in testimony between Tent on the one hand and Gilliam
and Robbins on the other, as to the duration of Tant's agreed layoff,
therefore, becomes crucial. Although the Trial Examiner elsewhere
credited Tant and discredited Gilliam, he found nothing in the de-
meanor of Robbins to discredit her testimony in support of Gilliam.
There is, moreover, further evidence in the record supporting Gilliam
and Robbins, including Tant's testimony that 2 weeks before her lay-
off, she had telephoned Gilliam and asked for an indefinite layoff, and
the fact that at no time did Tent ask to be recalled, although she had
visited the Respondent's plant on February 22. Under all the cir-
cumstances we credit Gilliam, whom the Trial Examiner did not dis-
credit as to this issue, and Robbins and find that Tent told Gilliam
she would like to be the last to be recalled. There is no evidence that
any new employees were hired after Tant's layoff to perform work
which Tant was capable of performing. In these circumstances, we
can attach no significance to the fact that the Respondent retained
employees who were less productive than Tent. Although the other
evidence referred to by the Trial Examiner raises a suspicion of dis-
criminatory motivation, we find that the General Counsel has failed
to prove by a preponderance of the credible evidence that Respondent
failed to recall Tent in violation of the Act. Accordingly, we shall
dismiss the allegations of the complaint as to Tant.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Jamel, Inc.,
Spartanburg, South Carolina, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership of its employees in International
Ladies Garment Workers Union, AFL-CIO, or any other labor or-
JAMEL, INC. 1193
ganization by discriminating in regard to their hire or tenure of em-
ployment or any term or condition of employment.
(b) Interrogating its employees concerning their union interest or
affiliation, threatening them with reprisals for engaging in union ac-
tivities, and engaging in and creating the impression of engaging in
surveillance of such activities, in a manner constituting interference,
restraint, or coercion, in violation of Section 8 (a) (1) of the Act.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, including the above-named labor
organization, to bargain collectively through representatives of their
own choosing, to engage in other concerted activities for the purposes
of collective bargaining or other mutual aid or protection or to refrain
from any or all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Lois Burke and Garnettie Atkinson reinstatement to
their former or substantially equivalent positions without prejudice
to their seniority or other rights and privileges previously enjoyed
and make them whole in the manner set forth in the section, in the
Intermediate Report, entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records and reports,
social security payment records, timecards, personnel records and re-
ports, and all other records necessary or appropriate to analyze the
amount of backpay and other benefits due and the rights of employ-
ment under the terms of this Order.
(c) Post at its plant at Spartanburg, South Carolina, copies of the
notice attached hereto marked "Appendix." 2 Copies of such notice,
to be furnished by the Regional Director for the Eleventh Region,
shall, after being duly signed by an authorized representative of the
Respondent, be posted immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that such notices are not altered, defaced, or covered by
any other material.
(d) Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps have been taken to comply
herewith.
IT IS FURTHER ORDERED that except as otherwise found herein the
allegations of the complaint be, and they hereby are, dismissed.
2In the event that this Order is enforced by a decree of a United 'States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in International Ladies
Garment Workers Union, AFL-CIO, or any other labor organiza-
tion by discriminating in regard to the hire or tenure of employ-
ment or any term or condition of employment of any of our
employees.
WE WILL NOT (1) interrogate our employees as to their union
activities; (2) threaten our employees with reprisals because of
their union activities; and (3) engage in surveillance of the union
activities of our employees or create the impression that their
union activities are under surveillance in a manner constituting
interference, restraint, or coercion, in violation of Section 8 (a) (1)
of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join the above labor
organization, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any and all such activities.
WE WILL offer Lois Burke and Garnettie Atkinson immediate
and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights and
privileges and make them whole for any loss of pay suffered as
a result of the discrimination against them.
All our employees are free to become, remain, or refrain from
becoming or remaining, members of any labor organization.
JAMEL, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , with all parties represented by counsel , was heard in Spartan-
burg, South Carolina, on May 2 and 3 , 1960, on complaint of the General Counsel
JAMEL, INC. 1195
and answer of the Respondent. The issues litigated were whether the Respondent
violated Section 8(a)(1) and (3) of the Act. The Respondent and the General
Counsel presented oral argument and filed briefs.
Upon the entire record and my observation of the witnesses, I hereby make the
following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a corporation organized under the laws of South Carolina and
having its principal place of business in Spartanburg, South Carolina, where it is
-engaged in the manufacture of women's blouses. During 1959 Respondent shipped
to points outside South Carolina products worth about $1,000,000.
It is found that Respondent is engaged in commerce and that it will effectuate the
policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
International Ladies Garment Workers Union , AFL-CIO, hereinafter called the
Union, is a labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The violations of Section 8(a) (1)
The complaint alleges violations of Section 8(a)(1) of the Act by Lottie Gilliam
.and Hazel McMillin, both of whom the Respondent acknowledges, and I find, to be
.supervisors within the meaning of the Act.
Gilliam is in charge of one of the Respondent's departments,' which during peak
production periods has a complement of about 70 employees. The work of the
employees in this department is principally the operation of various types of sewing
machines. McMillin is in charge of a department which during peak production
periods comprises 60 employees.
Early in January 1960 the Union initiated an organizational campaign at Respond-
ent's plant in Spartanburg, and in the evening of February 2, held a meeting at the
Franklin Hotel in Spartanburg. This meeting was attended by six employees-
Virginia Harvey, Fay Huston, Bessie Summey, Lois Burke, Mary Tant, and Garnettie
Atkinson. The three last-named employees 2 signed cards at the meeting. The meet-
ing broke up about 10:30 p.m. As the employees left the Franklin Hotel they were
observed by Gilliam and McMillin who were seated in a car, which was parked
opposite the hotel, and which drove off as the employees emerged from the hotel.
Late in the afternoon of the next day Burke was told by her supervisor, Gilliam,
that she was being laid off for lack of work. A conversation ensued between Burke
and Gilliam, in which Tant also participated. McMillin was nearby. (As the
content of this conversation is in sharp dispute, and as it supplies the basis for many
of the violations alleged in the complaint, the different versions will be related in
detail at a later point in this Report.) The following day Atkinson was discharged,
allegedly for cause, and 4 days later, on February 8, Tant was laid off and has not
since been recalled.
1. Surveillance
The complaint alleges that on February 2, 1960, the Respondent, through Gilliam
and McMillin, engaged in unlawful surveillance of the Union meeting at the Franklin
Hotel.
Both McMillin and Gilliam admitted that they had advance knowledge of the
Union meeting at the Franklin Hotel,3 and Gilliam testified that she and her com-
panions had been "parked" opposite that hotel between 10 and 10:30 p in. on Feb-
ruary 2, and observed the exodus from the meeting. However, both Gilliam and
McMillin denied that they had gone to the scene of the meeting for purposes of
surveillance. They asserted that about noon on February 2, they agreed with
Holloman, a plant employee, to do some window shopping that evening, and
1 There are about 10 departments altogether. The normal plant complement is
about 270.
2 As will appear below, the General Counsel alleges that these three employees were
unlawfully discharged within a few days after the meeting
a While Gilliam denied that she knew what time the meeting was to begin, it is in-
ferrable from her testimony and McMillin's, and it is 'found, that they knew that a union
meeting was to be held sometime In the evening of February 2 at the Franklin Hotel
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gilliam testified that pursuant to that purpose they toured the business section of
Spartanburg for about 2 hours, stopping twice in front of a department store (Aug.
Smith's) opposite the Franklin Hotel, and on one of those stops they remained
seated in the car.
The Respondent would apparently attribute to mere coincidence the fact that the
two supervisors decided to park near the scene of the union meeting for about half
an hour just as the meeting was drawing to -a close and the fact that they drove off
just as the employees emerged from the meeting and after ascertaining the identity
of the employees.4 Apart from the inherent improbability of such a coincidence
under any circumstances, the fact that Gilliam and her companions, as her testimony
indicates, remained seated in a parked car during one of their stops opposite the
scene of the meeting is not consistent with normal window-shopping procedure, but
is entirely consistent with the purpose of surveillance imputed to her by the General
Counsel. If one adds to this Gilliam's avowed hostility to the Union 5 and the
extent of her and McMillin's advance knowledge of the union meeting, as found
above, the conclusion seems inescapable that, whatever other reason they may have
had for being at the scene of the union meeting, the two supervisors were motivated
at least in part by a desire to ascertain the identity of the employees attending the
meeting. The denial of such purpose by McMillin and Gilliam is therefore rejected,
and it is found that,by such surveillance on the part of Gilliam and McMillin the
Respondent violated Section 8(a)-(1) of the Acts
2. Threats , interrogation, etc.
The complaint alleges that on or about February 3, 1960, Gilliam, in violation
of Section 8(a) (1) of the Act, (1) warned employees,that Respondent would close
its plant if the Union prevailed; (2) admitted to employees that Respondent had
engaged in surveillance of Union activities; and (3) interrogated employees about
their union activities.
All the foregoing items are based on the conversation, noted above, late in the
afternoon of February 3, shortly after Gilliam had told Burke she was being laid
off. In the testimony of Gilliam, Burke, and Tant, who participated in this conver-
sation, there is agreement only with regard to item (2). Gilliam substantiated the
testimony of Burke and Tant, that she told them that she knew not only who had
attended the union meeting the night before but also "some of the things" that were
said there.? It is found that by such statement, which was reasonably calculated to
create an impression of surveillance of union activities , the Respondent violated
Section 8 (a)(1) of the Act. F. W. Woolworth Co., 101 NLRB 1457.
As to item (1), both Tant and Burke testified that Gilliam warned that the Re-
spondent would close its plant if the Union succeeded in organizing it Gilliam
denied this charge.8 As I have already refused to credit Gilliam's explanation of her
presence at the scene of the union meeting, and as Gilliam's demeanor, in contrast
with that of Tant and Burke, did not impress me favorably, I do not credit this
denial, and find that she made the threat attributed to her and that the Respondent
thereby violated Section 8(a)(1) of the Act.
As to item (3), above (interrogation), Burke testified that Gilliam asked her
whether she would swear that she had not solicited any employees to sign union
cards, and whether she had signed up 50 employees for a union in a former employ-
ment at Spartanburg Sportswear. Tant corroborated this testimony, adding that
Gilliam asked her, as well as Burke. whether she would swear that she had not
passed out union cards. Although Gilliam denied in general terms that she had
4 As related below, Gilliam admitted at the hearing that she told Burke the day after
the union meeting that Gilliam had seen Burke leave the meeting. Gilliam also testified
that she saw Atkinson at the meeting Tant testified, without contradiction, and I find,
that Gilliam told her she had seen Tant come out of the meeting.
5 At the hearing Gilliam acknowledged that she had told various of Respondent's em-
ployees that she had no use for unions, and would not work under a union. Fier antipathy
to unions was attributed by her to an unfortunate experience with a union by a member
of her immediate family.
G Linn Hills Company, 116 NLRB 96. 100. As other violations of the Art are found
herein, it is not necessary to consider the Respondent's contention that surveillance alone
would not be unlawful or would not warrant a remedy.
7 The foregoing is based on a composite of the testimony of Gilliam , Tant, and Burke,
which was in substantial agreement.
8 McMillin did not testify on this point , although she did testify as to another part of
the conversation.
JAMEL, INC. 1197
questioned any employees about their union activities,9 she admitted that she had
referred in her conversation with Burke to "Spartanburg Sportswear" and that she
was aware of Burke's union activity there. In view of this admission, as well as the
other factors discussed above bearing on Gilliam's credibility, her denial of interro-
gation is rejected and it is found that she did interrogate Tant and Burke about their
union activity, and that such interrogation, occurring in the context of the other un-
fair labor practices found herein, was unlawful. It is accordingly found that by
such interrogation the Respondent violated Section 8(a)(1) of the Act.
The complaint alleges that Respondent also violated Section 8(a)(1) of the Act
by virtue of a statement made by Hazel McMillin to employees on or about
March 29, 1960, that Respondent "had rid itself of the Union and fired several of
its best operators."
In support of this allegation the General Counsel adduced testimony of Ethel
Tuck that in January 1960 she quit her job as a sleever at Respondent's plant, that
late in March her former supervisor, McMillin, asked her to return to work, and
that, when Tuck stated that she was reluctant to work in the Respondent's plant dur-
ing the union campaign, McMillin assured her that there was no more union activity
at the plant and that Respondent had "laid off" some of "the best hands" due to
the Union. McMillin's testimony agrees substantially with Tuck's,10 except that
McMillin denied making the statement italicized above. So far as the record shows,
Tuck was a wholly disinterested witness, who, if anything, was hostile to the Union,
while McMillin's denial was self-serving. Moreover, as noted above, McMillin's
testimony as to the surveillance incident has been found lacking in credibility.
Under these circumstances I credit Tuck's testimony and find that McMillin advised
her on March 29, 1960, that Respondent had laid off some of its best workers be-
cause of their union activity. I find further that by this statement the Respondent
violated Section 8(a) (1) of the Act."
B. Section 8(a) (3) violations 12
The complaint alleges that Respondent violated Section 8(a)(3) and ( 1) of the
Act by discriminatorily discharging Burke, Atkinson, and Tant on February 3, 4,
° McMillin did not testify about this aspect of the conversation. See preceding footnote.
10 McMillin fixed the exact date of the Incident as March 29, 1960, as alleged in the
complaint.
11 It is immaterial that Tuck was no longer an employee of Respondent on March 29.
Her status was analogous to that of an applicant for employment Cf. Keil Company,
117 NLRB 828, Transamerican Freight Linea, Inc., 122 NLRB 1033, footnote 3
At the hearing ruling was reserved on Respondent's motion to strike the allegations of
the complaint relating to the Tuck-McMillin incident because it occurred after the service
of the instant charge on February 13, 1960, and therefore did not fall within the period
to which the charge relates
The charge, served on Respondent on February 13, 1960, alleges discriminatory dis-
charges and a threat to close the plant rather than deal with the Union. The charge
concludes with a general allegation that by this and other conduct the Respondent inter-
fered with the rights of its employees guaranteed by Section 7 of the Act. It is clear that
such a broad allegation would under Board precedent support the allegation in the com-
plaint as to the Tuck incident, had that incident occurred before the filing of the charge,
and the Respondent does not contend otherwise. A more difficult problem is presented
where, as here, the conduct alleged in the complaint as a violation occurred after the
filing of the charge There seems to have been some vacillation in the Board's views on
this point. Compare Ferro Stamping and Manufacturing Co, 93 NLRB 1459, with
Knickerbocker Manufacturing Company, Inc. 109 NLRB 1195, 1197. However, it seems
to be the current position of the Board that postcharge conduct may be utilized as evi-
dence of a precharge violation (Fant Milling Co., 117 NLRB 1277, enf. denied 285 F 2d
851 (C.A. 5), revd 360 U S. 301), or may, indeed, be found, as here, to constitute a
violation, in itself (Aleo-Gravure, Division of Publication Corporation, 124 NLRB 1027) ;
provided only that, in either case, the postcharge conduct is related to and grows out of
the precharge conduct or is an integral part of the same pattern of conduct This qualifi-
cation seems to be met 'here, as McMillin's disclosure to Tuck of the discriminatory treat-
ment of union adherents is clearly related to the complaint's allegations of such pre-
charge discriminatory treatment and may properly be said to be a natural outgrowth of
such discrimination
The Respondent's motion to dismiss the allegation of the complaint as to the Tuck
incident is therefore denied.
1! All dates hereinafter cited relate to 1960 unless otherwise specified.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and 8, respectively. As already stated, these three were among the six employees
who attended the union meeting on February 2, and who were observed by Gilliam
to leave the meeting, and these three were the only ones to sign union cards at the
meeting. The case of each will be considered separately because of the different
issues raised by the Respondent as to each.
1. Burke
Burke had worked for Respondent for about 11/2 years prior to February 3, 1960,
all this time in Gilliam's department. Altogether she had worked in the garment
industry about 23 years, and had performed various types of sewing operations in
the course of such experience. At the Respondent's plant she was assigned to the
operation of various types of machines, including the double-needle sleever, single-
needle sleever, and the Merrow machine or serger. The last-named machine was
used, inter alia, in the so-called sleeve-setting operation, and at the time of her sepa-
ration Burke was classified as a sleeve-setter or sleever. Burke admitted that she was
less skilled in the operation of the Merrow machine than in the operation of the
other machines used by her, because she had not worked on a Merrow machine
prior to her employment by the Respondent. On February 3, as already related,
Gilliam told Burke she was being laid off. Respondent contends that such layoff'
was due to lack of work. The record shows that during the week ending January 16,
1960, Respondent had a complement of 271 production 13 employees. The next
week there was a sharp drop to 229, and thereafter the number fluctuated between
224 and 249, until the week ending March 26. At the time of the hearing-
May 2-this number had risen to 260. The sharp drop in employment in late
January and early February was due to a general decline in orders. The General
Counsel concedes that layoffs were warranted at this time and the only issue a&
to Burke is whether her selection for layoff was based on economic or union
considerations.
The salient evidence in support of the General Counsel's position is the testimony
of Burke and Tant, which I credit, that in the course of their conversation with
Gilliam after she notified Burke of her layoff, Gilliam told Burke that her layoff
"could be" due to her attendance at the union meeting.14 Such admission is alone
prima facie sufficient to establish discriminatory motivation. In addition, the record
shows that such motivation was consistent with the entire pattern of Gilliam's
conduct-her interrogation of Burke and Tant, her warning of the closing of the
plant if the Union prevailed, her surveillance of the union meeting, her avowed per-
sonal antipathy to the Union, her knowledge that Burke had signed a union card at
the meeting 15 and had been particularly active on behalf of a union in a previous.
employment. Moreover, further support for a finding of discrimination against
Burke is provided by McMillin's statement to Tuck, as noted above, about 2 months
after Burke's layoff, to the effect that union adherents had been eliminated by
layoffs.is
On the other hand, Respondent adduced in support of its economic defense the
testimony of its general manager, Piccirrillo, which is not disputed by the General
Counsel, that at the time of Burke's layoff, economic considerations warranted a
reduction in personnel, generally, and particularly of sleeve-setters, as there was no
more sleeve-setting work to do about the end of January.17 Piccirrillo testified fur-
13 This figure excludes four office clerks and six supervisors
11 Gilliam's denial of this statement is not credited because of her unreliability as a•
witness, as noted above. Nor do I credit McMillin's corroboration of Gilliam on this point.
is Gilliam admitted that she had been informed as to who signed union cards at the,
meeting of February 2 Although she later qualified this admission by saying that she
had been told only that three employees had signed but not which ones, I do not credit
this partial retraction of her prior testimony. In any event, Burke's attendance at the
union meeting and her prominence in the organizing campaign at Spartanburg Sportswear
would suffice to render her persona non grata to a person of Gilliam's admitted strong,
antiunion predilections.
18 While McMillin's statement that some of the "best hands" had been laid off for union
activity may have been inaccurate insofar as it included Burke in the category of "best
hand" (see footnote 20), the statement is nevertheless significant in Burke's case insofar
as it constitutes an admission that the Respondent had resorted to layoffs as a technique
for combating union activity.
17 Sleeve setting consists in sewing sleeves on blouses. Toward the end of January
Respondent entered a period of production of sleeveless blouses only
JAMEL, INC. 1199
ther that he instructed his supervisors, including Gilliam, that in effecting layoffs in
the future they select the least productive sleeve setters.18
Specifically, with regard to Lois Burke, Piccirrillo testified as follows:
Q. Did you tell Mrs. Gilliam to lay off Lois Burke in her entire group?
A. I told her to lay off the least productive, the one she could do without
temporarily until we again had sleeves to set into blouses.
Gilliam testified that she selected Burke for layoff, pursuant to this instruction, on
the basis of a comparison of Burke's production with that of Gilliam's other sleevers.
However, Gilliam's testimony was rather vague as to the precise basis for, and the
result of, this comparison. At first she testified that in "going over my books" she
found that Burke's production was "the lowest." Later she explained that the
records she consulted were certain "sheets" she prepared every night but that she
did not actually look at these sheets in determining whether to lay off Burke as she
knew from past experience that Burke was "practically 19 the lowest" producer.
There ensued the following colloquy:
Q. Who was the lowest?
A. If there is any lowest, I don't know
Q. You're not sure that she was the lowest?
A. I'm pretty sure.
Q. Why didn't you look at your records to make sure?
A. Well, I knew in the back of my mind who it was. [Emphasis supplied.]
Gilliam testified further that she "guessed" that the period she considered in ap-
praising Burke's productivity was December 1959 and January 1960.
Respondent's production records, which were put in evidence, show that during
that 2-month period Burke's production was not in fact the lowest among Gilliam's
sleevers, but that the lowest was Humphries?o Humphries worked 40 hours during
the week that Burke was laid off, 42 hours the next week, and 40 hours the week
after that, and was continuously employed by the Respondent to the date of the
hearing. Thus, the Respondent's records substantiate Gilliam's reluctant (and
promptly retracted) admission that Burke was not actually the lowest producer. It
is found further, in view of Gilliam's equivocating and self-contradictory testimony,
that she did not honestly believe that Burke was the lowest producer.
As the record does not support Respondent's contention that Burke was laid off
because she was (or was genuinely thought by Gilliam to be) the lowest producer
among Gilliam's sleevers, it is found that the Respondent has failed to rebut the
prima facie case presented by the General Counsel and that it has been established
by the preponderance of the evidence that Burke was selected for layoff on February
3 because of her union activity, and that the Respondent thereby violated Section
8(a) (3) and (1) of theAct.21
2. Tant
Tant, like Burke, was a sleever under Gilliam. She had worked for 7 years in
ladies' garment plants. As already found, Gilliam saw her at the union meeting on
February 2 and learned that she had signed a card for the Union. On February 3,
18 Tile only testimony as to the exact date of these instructions is Gilliam's to the effect
that they were given on the weekend preceding Burke's discharge, namely, January 30 or 31,
19 Emphasis supplied
20 AN erage hourly piece-rate earnings (excluding "make-up" and overtime premium pay)
during December 1959 and January 1960 were 89.7 cents for Humphries, 92 2 cents for
Burke, 97 7 cents for Smith, 98 cents for Tant, $1.03 for Price, $1 142 for Brown, $1 162
for Robbins, and $1 475 for Knighton
"Even apart from the disparate treatment of Burke and Humphries, the record is
replete with evidence that, whatever Piccirrillo's instructions to Gilliam may have been,
she did not follow any consistent policy of laying off her sleevers on the basis of pro-
ductivity As related below, on February 8, Robbins and Tant were asked to "volunteer"
for a 4-day layoff, and as a result they worked only 8 hours that week On the other
hand, Smith and Humphries worked overtime that same week, although Humphries was
about 25 percent less productive than Robbins and 10 percent less productive than Tant,
and Smith was 15 percent less productive than Robbins, and slightly less productive than
Tint. See footnote 20 The only conclusion that can be drawn from the foregoing is
that Gilliam gave controlling weight to factors other than productivity in selecting em-
ployees for layoff; and there is no effective rebuttal in the record of tile General Counsel's
evidence that the controlling factor in Burke's case was her union activity
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as related above, Gilliam, in connection with the layoff of Burke, interrogated Tant
about her union activity , and elicited from her the admission that she had passed
out a union card in Respondent 's plant.
On Monday , February 8, Gilliam approached Tant and another sleeve setter,
Ruby Robbins, and asked them if they would be agreeable to a layoff for the balance
of that week . Robbins assented . Tant, according to her own testimony , likewise
assented to the proposed layoff, mentioning only that she would like , in addition,
to be laid off again in the latter part of February , when she expected a visit from
relatives . However, according to Gilliam 's testimony, which was corroborated by
Robbins, Tant not only assented to the proposed layoff but also stated that she would
like to be the last one called back to work . Both Tant and Robbins were laid off on
February 8. Robbins was recalled the following Monday. Tant had not yet been
recalled at the time of the hearing.
As just noted , Gilliam's testimony that Tant, in effect, asked for an extended
layoff is contradicted by Tant but corroborated by Robbins , who, at the time of
the hearing was still in the employ of the Respondent under Gilliam . For reasons
already indicated , I do not deem Gilliam to be a credible witness. However, there
was nothing in Robbins ' demeanor on the witness stand that would tend to impair
her credibility.
It is not deemed necessary to resolve the foregoing conflict in testimony. The
instant charge, alleging discrimination against Tant on February 8, with regard to
her tenure of employment was served on the Respondent on February 13.22 Ac-
cordingly , whatever Respondent may have understood Tant to say on February 8
about the extent of her proposed layoff , the filing of the charge should have put
Respondent on notice that Tant was not content to remain indefinitely in layoff
status. Yet Respondent made no effort to contact Tant to clarify any possible mis-
understanding about her desire for immediate reemployment . At the hearing,
Piccirrillo testified to the following reasons for not recalling Tant : ( 1) He had no
work for her and (2 ) Tant had obtained new employment with a competitor and it
was contrary to Respondent 's policy to raid its competitors for personnel. As to
{ 1), Humphries and Smith , as noted above , continued to work up to the date of the
hearing, whereas Tant, although more productive than either of them ( particularly
Humphries), was not recalled at any time during that period. This does not square
with Respondent 's alleged policy of retaining only its more productive sleevers.
Moreover , it seems strange that, despite the general decline in orders and the
drastic curtailment of sleeve-setting work , Respondent managed to keep all of
Gilliam's sleeve setters employed continuously to the date of the hearing ( albeit not
always on a full-time basis ) 23 with the sole exception of Burke and Tant.
Respondent 's second contention that it did not recall Tant because of its "no-
raiding" policy likewise does not withstand analysis. It is true that Tant obtained
employment with Piedmont Dress Company on March 2 , but Piccirrillo admitted
that he did not know about this until he received a copy of a claim for unemploy-
ment compensation filed by Tant on April 11, which disclosed the fact that she had
been employed by Piedmont until April 2. It is clear therefore that Respondent did
not know of Tant's employment by a competitor until after such employment had
terminated . Accordingly , Respondent 's no-raiding policy could not possibly have
been a factor in the failure to recall Tant; and Piccirrillo 's insistence at the hearing
that it was a factor reflects adversely on the bona fides of Respondent's defense.
(Piccirrillo's dwelling on his no-raiding policy is all the more puzzling in view of
his repeated assertions that he had no work for Tant. If that were so, that would be
sufficent reason for not recalling her without regard to the no-raiding policy. Such
23 This charge was filed by the Union on February 10 It is not clear why Tart's name
was included in the charge , as, by her own account , she had agreed to a layoff through
Friday, February 12, and there therefore could have been no discrimination against her
until the failure to recall her on the following workday, February 15 However, what-
ever the reason for the premature filing of the charge with respect to Tant , the fact re-
mains that the service of the charge apprised Respondent that, contrary to their alleged
belief, Taut was not content to remain unemployed
Although the actual discrimination against Tant , as found below , postdated the filing
of the charge , it is clear that it grew out of, or was related to, the initial layoff on
February 8, referred to in the charge See footnote 11
23 Presumably , most of them were assigned to work other than sleeve setting There
was credible evidence that both Burke and Tant were capable of performing other
operations.
JAMEL, INC. 1201
reliance on two conflicting reasons suggests a lack of confidence in either reason,
standing alone.)
If anything more were needed to establish Respondent 's true reason for failing
to recall Tant , reference might be made to Tuck's testimony , which I have credited
that McMillin told her on March 29 that Respondent had laid off its best hands due
to the Union . This admission applies even more aptly to Tant than to Burke, as
Tant was substantially more productive than Burke.
Accordingly , it is found that Respondent on and after February 15 failed to recall
Tant because of her union activity , thereby violating Section 8 ( a)(3) and (1) of
the Act 24
3. Atkinson
Before her discharge on February 4, Atkinson had worked for Respondent about
7 months, the last 3 of these months in Gilliam 's department . In the afternoon of
February 2, Atkinson notified Gilliam that she had received a telephone call from
home advising her that two of her children were ill and at about 2 p.m., that day
she was excused from work to care for them. At about 10:30 that evening, as
already related , Gilliam observed Atkinson leaving the Franklin Hotel after the
union meeting . When Atkinson reported for work on February 4, she found that
her card had been pulled . Pressed for an explanation , Gilliam at first stated that
Atkinson bad been laid off for lack of work , but when Atkinson asked whether her
layoff was due to her attendance at the union meeting , Gilliam answered that it
could be, asserting that she had excused her because of her children 's illness and
that Gilliam would not have attended the union meeting if her children had been
as sick as Atkinson 's were claimed to be.25
Gilliam testified that she decided to discharge Atkinson as soon as she saw her
leave the union meeting, but, before taking any action, consulted with General
Manager Piccirrillo, advising him that she had seen Atkinson "up the street," and
he approved the discharge 25
Gilliam stated that her decision to recommend Atkinson 's discharge was prompted
by finding her at the union meeting.27 The question arises, however, whether the
General Counsel has established by the preponderance of the evidence that Atkinson
was discharged because Gilliam resented Atkinson 's interest in the Union rather
than , as Respondent contends , because she obtained permission to leave work for a
false reason, as allegedly demonstrated by her attendance at the union meeting.
Gilliam not only knew of Atkinson 's attendance at the meeting but also knew, as
found above , that she had signed a union card there. It has already been found
that Burke and Tant, who attended the same meeting and also signed cards there,
were discriminated against by Gilliam because of these circumstances . It is clear
therefore that Gilliam regarded union activity such as Atkinson engaged in on the
night of February 2 as in itself adequate cause for discharge . It is not so clear
that Gilliam would have sought to discharge Atkinson if her offense had been the
taking of leave on spurious grounds, although there was uncontradicted testimony
by Piccirrillo that Atkinson 's absence caused Respondent some inconvenience, as it
was necessary to replace her with an inexperienced employee. In any event , even if
it be assumed that obtaining of leave from work on improper grounds would be
deemed by Gilliam sufficient reason for discharge , it seems unlikely that Gilliam
would have instigated a discharge on that ground alone in Atkinson 's case without
any investigation of the circumstances. Conceivably , Atkinson 's children might
have recovered from their illness to the point that she might safely leave them, or
Atkinson might have been able to make arrangements for their care which were not
25 As Tant agreed to be laid off until February 15, her layoff prior to that date is not
found to be discriminatory.
z5 The foregoing findings as to the circumstances of Atkinson 's discharge are based on
her testimony , which was not controverted by Gilliam.
26 Gilliam denied , as did Piccirrillo , that she told him that Atkinson had been attending
the union meeting . While it seems highly improbable that Gilliam withheld this informa-
tion from Piccirrillo , it is not necessary to resolve this point, as, even if Piecirrillo, as he
testified , was ignorant of Atkinson 's union activity and approved her discharge for other
reasons, that would not exonerate the Respondent if Gilliam proposed the discharge for
discriminatory reasons.
x In view of this admission , it is not necessary to consider whether Atkinson's discharge
was justified because of her failure to report for work on February 3, the day after the
union meeting.
586439- -61-vol. 129-77
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
feasible earlier in the day.28 In view of these obvious possibilities, it is difficult to
believe that Gilliam (who testified at the hearing that she was regarded by her sub-
ordinates as a friend and confidant) would have determined to seek Atkinson's
discharge without any inquiry, had she been concerned only with the validity of
Atkinson's reason for leaving work that day. No such inquiry was made or, so far
as appears from the record, was considered. In fact, Atkinson's card was pulled
even before she returned to the plant.
In view of the foregoing, I find that the evidence preponderates in favor of a find-
ing that Atkinson was discharged, gat Gilliam's instance, for union activity and not for
unjustified absence from work, and that such discharge violated Section 8(a)(3)
and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices in
violation of Section 8 (a) (1) and (3) of the Act, it will be recommended that the Re-
spondent cease and desist theiefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Thus, having found that the Respondent interfered with, restrained, and coerced
its employees by certain conduct, as found in section III, A, above, the Trial Ex-
aminer will recommend that the Respondent cease and desist from this conduct.
Having also found that the Respondent discriminated with regard to the hire and
tenure of employment of Lois Burke on February 3, 1960, Garnettie Atkinson on
February 4, 1960, and Mary Tant on February 15, 1960, the Trial Examiner will
recommend that the Respondent offer each of them immediate and full reinstatement
to her former or substantially equivalent position without prejudice to her seniority
or other rights and make each of them whole for any loss of pay suffered as a result
of the discrimination against her, by payment to each of them of a sum of money
equal to the amounts she would have earned from the date of the discrimination to
the date of the offer of reinstatement, less net earnings to be computed on a
quarterly basis in a manner established by the Board in F. W. Woolworth Company,
90 NLRB 289 Earnings in any one particular quarter shall have no effect upon the
backpay liability for any other such period. It will also be recommended that the
Respondent preserve and make available to the Board, upon request, payroll and
other records to facilitate the computation of the backpay due.
As the unfair labor practices committed by the Respondent are of a character
striking at the root of employee rights safeguarded by the Act, it will be recom-
mended that the Respondent cease and desist from infringing in any manner upon
the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Ladies Garment Workers Union, AFL-CIO, is a labor organi-
zation within the meaning of the Act.
2. By discriminating in Iegard to the hire and tenure of employment of Garnettie
Atkinson, Lois Burke, and Mary Tant thereby discouraging membership in the
Union, the Respondent has engaged in unfair labor practices within the meaning of
Section 8(a)(3) and (1) ofthe Act.
3. By engaging in surveillance of union activities, by causing the impression of
engaging in such surveillance, and by interrogating employees concerning and
threatening reprisals for union activities, 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 com-
merce within the meaning of Section 2(6) and (7) of the Act
(Recommendations omitted from publication ]
In fact, that is what actually happened, according to Atkinson's uncontradicted
testimony, which I credit.