Kellwood Co.

National Labor Relations Board - Board Decisions

Apr 25, 1969

175 N.L.R.B. 559 (N.L.R.B. 1969)

KELLWOOD CO.
Kellwood Co. and International Ladies' Garment
Workers' Union , Local 451 . Case 28-CA-1693
April 25, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On October 16, 1968, Trial Examiner George H.
O'Brien issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found
that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint,
and recommended dismissal of such allegations.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief,
and the General Counsel filed cross-exceptions and
supporting and answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
Trial Examiner's findings, conclusions, and
recommendations only to the extent consistent
herewith.'
1. The Trial Examiner found, and we agree, that
the Respondent violated Section 8(a)(1) of the Act
by threatening employees with trouble or harm as a
consequence of signing union authorization cards.
2. The Trial Examiner found, and we agree, that
the Respondent violated Section 8(a)(3) and (1) of
the Act by discriminatorily refusing to rehire
employee Mrs. Roy Nell Mass on April 29, 1968.
However, we find, contrary to the Trial Examiner,
that the discharge of Mrs. Mass on April 26, 1968,
was also discriminatorily motivated, and hence also
in violation of Section 8(a)(3) and (1) of the Act.
The record shows that Mrs. Mass began her
employment with the Respondents' predecessor on
in its brief, the Respondent requested that, if the Board affirms the
Trial Examiner ' s finding that the Respondent violated Section 8 (a)(3) by
unlawfully refusing to rehire employee Mrs Roy Nell Mass, the record
should be reopened to receive certain additional evidence bearing on the
Respondent 's obligation to rehire Mrs. Mass We have, as hereinafter
appears, found , like the Trial Examiner, a Section 8(a)(3) discriminatory
refusal to rehire Mrs Mass, but we perceive no persuasive reason to
reopen the hearing . Accordingly , the Respondent 's request is denied.
559
March 2, 1966. On January 31, 1968, union
representatives distributed handbills at the plant
entrance, and Mrs. Mass was observed receiving a
union leaflet by May Shank, a supervisor, and Ford
Robbins, assistant manager. On the next day,
February 1, Robbins sent a memorandum to
Personnel stating falsely that Mrs. Mass had been
warned about her low work performance of the last
2 days. On March 19, the Respondent, in a speech
to an assembled group of employees, warned of
trouble or harm if they signed union cards, which,
we have found, violated Section 8(a)(1) of the Act.
During March and April, Mrs. Mass signed a union
card, attended union meetings, and urged other
employees to sign union authorization cards. In late
March or early April, Mrs. Mass, hearing a rumor
that she was to be fired because of her union
activity, sought and obtained an interview with Mrs.
Eleanor Rael, production manager. During this
conversation, Mrs. Mass told Mrs. Rael of the
rumor, volunteered the information that she had
signed a union card, and added that the Union
would be good for the Company. In response, Mrs.
Rael stated to Mrs. Mass that she would not be
discharged for union activity, but added that if the
Company did not have the money to pay union
prices, it would have to close its doors, and that the
Respondent thought Mass was the Union leader.
On Monday, April 22, Mrs. Mass phoned the
plant and reported that her son was ill, and that she
would be in as soon as he "got well." Mrs. Mass
did not again communicate with the Company
during the rest of the week, and on Friday, April 26,
the Company terminated her employment,
classifying it as a "Resignation" under Company
Rule 12, described below. At the same time
management officials prepared a "Termination of
Employment" form for Mrs. Mass' personnel file, in
part recommending against reemployment because
of her alleged poor deportment. When Mrs. Mass
reported in for work on Monday, April 29, Mrs.
Erline Johnson, the Respondent's personnel
manager, asked her why she hadn't called in, and
called her attention to Rule 12 of the Company,
which reads as follows:
An employee absent for three days, without
notifying the company, shall be considered as
having quit voluntary (sic) and cannot return to
work unless rehired as a new employee.
Mrs. Johnson took the position with Mrs. Mass that
Rule 12 required an absent employee to call in every
day of an absence. Because of this alleged failure to
comply with Rule 12, Mrs. Mass was not permitted
to work. On Tuesday, April 30, Mrs. Mass was
advised that the decision was irrevocable.
Under all the circumstances of this case, including
Mrs. Mass' activities on behalf of the Union, the
Respondent's awareness thereof and suspicion that
she was the Union leader, the Respondent's
threatening remarks in connection with the signing
of union cards by the employees, the timing of the
175 NLRB No. 79
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge as well as the refusal to rehire, all of
which occurred in the midst of the Union's
organizational campaign, the discriminatory
notations in Mrs. Mass' personnel file,' and the fact
that she did notify the Respondent of her absence in
apparent compliance with Rule 12,' we are
convinced that both her discharge and the
Respondent's refusal to rehire her on April 29, when
she reported for work, were discriminatorily
motivated, and in retaliation for her union activities.
Accordingly, we find that by such unlawful actions,
the Respondent violated Section 8(a)(3) and (1) of
the Act.4
THE REMEDY
AMENDED CONCLUSIONS OF LAW
Delete Conclusion of Law No. 4 in the Trial
Examiner's Decision and substitute in lieu thereof
the following paragraph:
4. By discriminatorily discharging employee Mrs.
Roy Nell Mass on April 26, 1968, and
discriminatorily refusing to reemploy her on April
29, 1968, thereby discouraging membership in or
activities on behalf of the Union and interfering with
rights guaranteed by Section 7 of the Act,
Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order that it
cease and desist therefrom and take certain
affirmative action designed to effectuate the policies
of the Act.
As we have found that the Respondent
discriminatorily discharged employee Mrs. Roy Nell
Mass on April 26, 1968, and discriminatorily
refused to reemploy her on April 29, 1968, all in
violation of Section 8(a)(3) and (1) of the Act, we
shall order that Mrs. Mass be offered immediate
and full reinstatement to her former or substantially
equivalent position without prejudice to her seniority
or other rights and privileges, and make her whole
for any loss of pay suffered by her by reason of the
discrimination against her, from the date of
discharge on April 26, 1968, to the date of the offer
of reinstatement. Loss of pay shall be computed in
the manner prescribed by the Board in F. W.
Woolworth Company, 90 NLRB 289, and with
interest on the backpay in accordance with Board
policy set out in Isis Plumbing & Heating Co., 138
NLRB 716.
'The Trial Examiner found, and we agree, that the two adverse notations
in Mrs Mass' personnel file were motivated by antmnton considerations
'As indicated , Mrs Mass notified the Respondent , on the first day of
her absence , that her young son was ill, and that she would be absent until
he got well She was absent for 5 days It would appear that Rule 12
requires a notice for an absence of 3 days or more, and Mrs Mass ' single
notice satisfied this requirement At most, Rule 12 could be construed as
requiring a notice for each 3-day penod of absence , in which case Mrs
Mass ' notice cleared her for the first 3 days of her absence, and she would
have been required to repeat the notice only before the end of the second
3-day period if she were absent that long In any event, Rule 12 clearly
does not support Mrs Johnson's assertion that Mrs Mass was required to
call in every day On the contrary, such assertion can only serve as
evidence that Mass ' alleged violation of the Rule was utilized by
Respondent as a pretext to mask the real discriminatory reason for her
discharge and Respondent 's refusal to rehire her
'In this connection , we cannot overlook a course of conduct engaged in
by the Respondent on a Companywide basis The Board has, on three
previous occasions , found this Respondent to have violated the Act. The
violations have included threats and discriminatory discharges , as in the
instant case , unlawful surveillance , unlawful interrogation , and other unfair
labor practices See Hawthorn Company , a Division of Kellwood
Company, 166 NLRB No 20, enfd in part 404 F 2d 1205 (C A 8),
Kellwood Company , Ottenheimer Bros Mfg Division, 170 NLRB No
183, and Kellwood Company, Southern Division , 170 NLRB No 184
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, Kellwood Co., Mesa, Arizona, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order, as herein modified:
1. In paragraph 1(a) of the Recommended Order,
delete the words "by refusing to rehire" and
substitute in lieu thereof the words "by unlawfully
discharging or refusing to rehire."
2. Delete paragraph 1(c) of the Recommended
Order, relettering present paragraph 1(d) as 1(c),
and delete the counterpart third indented paragraph
of the notice attached to the Trial Examiner's
Decision.'
3. In paragraph 2(a), delete the word
"employment" and substitute in lieu thereof the
words "and full reinstatement."
4. Add [reference to fn.] 11 at the end of
paragraph 2(d), deleting same from the last
paragraph of the Recommended Order.
5. Delete the fourth indented paragraph of the
Appendix and substitute in lieu thereof the
following:
WE WILL offer Mrs. Roy Nell Mass immediate
and full reinstatement to her former or a
substantially equivalent position, without prejudice
to her seniority and other rights and privileges
previously enjoyed, and will make her whole for
any loss of earnings she may have suffered as a
result of the discrimination against her.
6. Renumber present paragraphs 2(c) and (d) as
2(d) and (e), respectively, and insert the following as
'The Trial Examiner did not find that the Respondent misrepresented to
employees the circumstances under which union authorization cards may
be made public, in violation of Section 8(a)(1) As we construe the Trial
Examiner 's findings , he found only that the Respondent made threats of
reprisal in its speeches to employees, in violation of Section 8(a)(1), and he
utilized the Respondent 's statements with respect to union authorization
cards being made public only as part of the context in which said threats
were made Accordingly, we do not adopt these gratuitous additions to the
Trial Examiner's Recommended Order and Notice to Employees
KELLWOOD CO. 561
paragraph 2(c):
Expunge from the Respondent's record of Roy
Nell Mass the two adverse notations in her
personnel file found to have been motivated by
antiunion considerations.
7. Add the following as the last indented
paragraph in the Appendix (Notice to All
Employees):
WE WILL expunge from the records of Roy Nell
Mass the two adverse notations in her personnel
file found to have been motivated by antiunion
considerations.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE H 0 BRIEN, Trial Examiner This matter
was heard by me in Phoenix, Arizona, on July 30 and 31,
1968 The complaint issued June 3, 1968, based upon a
charge filed May 2, 1968 and an amended charge filed
May 29, 1968
The complaint, as amended at the hearing, alleges in
substance that Respondent in speeches by its Plant
Manager, Garrett, on March 4 and March 19, 1968,
restrained and coerced employees in violation of Section
8(a)(1) of the Act and by discharging, and thereafter
failing and refusing to reinstate or to recall Roy Nell
Mass, discriminated against employees in violation of
Section 8(a)(3) of the Act. Pursuant to a pretrial order of
the Associate Chief Trial Examiner, the General Counsel
advised the Respondent that Roy Nell Mass "did not
make application for reinstatement." Respondent's answer
denies the commission of any unfair labor practices.
Upon the entire record,' including consideration of
briefs filed by counsel for the General Counsel and
counsel for Respondent, and upon my observation of the
witnesses, I hereby make the following:
2. Whether the discharge of Roy Nell Mass on Friday,
April 26, 1968, was caused solely by the fact that she had
not reported for 3 consecutive days or whether it was
motivated, at least in part, by Respondent's intent to
discourage union activity.
3. Whether Respondent's failure to rehire Roy Nell
Mass on Monday, April 29, was motivated, at least in
part, by the intent to discourage union activity or whether
it was based on some other consideration.
B The Speeches
On Tuesday, January 30, 1968, two agents of the Union
stationed themselves at the entrance gate to Respondent's
plant, and, in plain view of persons in Respondent's office
(some 40 to 50 feet away), distributed handbills with
authorization cards attached. Other handbills were
distributed on Tuesday, February 6; Thursday, February
15; Monday, February 26; Wednesday, March 6, Monday,
March 11; Monday, March 18, Monday, March 25;
Tuesday, April 2, Monday, April 15; Tuesday, April 23;
Monday, May 6; Monday, May 20; and Tuesday, June
18.
On Monday, March 4, 1968, following the afternoon
break, employees were assembled in the sewing room. A
public address system was used. Plant Manager Garrett
read a prepared speech Mr. Garrett testified under direct
examination that when he delivered his speech he added
nothing and deleted nothing from the typewritten text with
its handwritten notations, listing existing benefits. On
cross-examination he testified that he did interpolate
words in the speech to the extent of asking one of the
employees to go into the office to obtain a union
authorization card, and by describing in some detail
existing company benefits. In this speech he stated:
We have had some events recently which could have
serious and far reaching effects on you, your job, and
your future
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Kellwood Co., herein called Respondent, is a Delaware
corporation. It employs approximately 400 persons in the
manufacture of women's garments in its factory in Mesa,
Arizona, from which it annually ships products valued in
excess of $50,000 directly to points located outside the
State of Arizona. I find that Respondent is an employer
within the meaning of Section 2(2) of the Act, engaged in
commerce and in a business affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Ladies' Garment Workers' Union, Local
451, herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Whether Mr Garrett's speeches exceeded the
permissive bounds of Section 8(c) of the Act
The General Counsel has moved to correct the stenographic transcript
in certain particulars There being no opposition , the motion is granted
Four times since January 30 outside agitators have
been to the plant, and each time they have distributed
some propaganda to you. . . Along with their
propaganda they are handing out union membership
cards, [at this point in his talk Mr. Garrett asked an
employee, Dave, to obtain a card for him and held it up
for all to see] like this one. They make it sound
simple - all you do is sign it and mail it, and then
they will take care of you.
Well it's not that simple. If enough of you make the
mistake of signing one of these cards, things won't be
simple - the troubles will be just beginning then.... I
want all of you to understand our position, and it is the
same as it always has been: WE DO NOT WANT A
UNION IN THIS PLANT, and we will take every
legal step we know of to keep the union out of this
plant'
Some of you already know this, but all of you should
be aware of the facts. We want you to know the facts
so that you won't make any mistakes.
* * * * *
Even if the Union got in here, the law requires only that
we bargain with the union . But, under the law we have
no obligation to make any concessions to the union
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Therefore, the only means which the union has to
even try to keep its promises to you if we did not agree
to its demands would be to call you out on strike, and
make you go without work and without pay, while you
walk a picket line.
If that happened, not only would you go without
pay, but you could lose your job. Under the law, the
company is perfectly free to permanently replace
economic strikers with new employees. I would hate to
see any of you lose your jobs that way, but we intend to
keep this plant operating, and if we have to replace
anyone because of a union strike, we will do so.
*
I want you to understand, also, that you do not have
to talk or listen to any of the agitators. You are free, of
choice, to do as you please, but regardless of what
anyone may say, you are free to tell those people to go
away and leave you alone. And don't make the mistake
of signing one of those cards, just to see what will
happen or to get rid of the agitators. Stand up for your
rights and think for yourself'. I am sure that if you do
that you will follow our advice and not sign one of their
cards
The Union in its handbill distributed on Monday,
March 11, "challenges" Mr. Garrett to "debate the
issues," and in its handbill distributed on Monday, March
18, states:
2. WILL THE BOSS KNOW WHO SIGNED A
CARD?
Nobody knows. All cards are locked up. The only
purpose of these cards is to show the United States
Government that a majority of the employees in your
shop want the Union to be legally formed in your
shop. .. .
YOUR BOSS NEVER SEES THE CARDS
On Tuesday, March 19, Mr. Garrett delivered his
second speech under identical circumstances In this
speech he stated:
I have called you together because I feel it is
important that you be reminded how your Company
feels about the Union I have told you before and I
want to be sure there are no mistakes about it. We do
not want a Union in this plant and we will use every
legal means at our disposal to keep it out of here.
The matter is, of course, of serious concern to the
Company. However, it is a matter of more serious
concern to you. It is our sincere belief that if this
Union were to come into this plant, it would not work
to your benefit, but could be harmful to you.
They will also tell you that the Company will never
see the card you sign and they only want to show it to
the Federal Government. Well, let me make this clear:
Under the law no Union can get in here without an
election or without a full trial before the National
Labor Relations Board. If that should ever become
necessary all those cards will be made public - not just
to me and the Company but anyone who wants to read
the public records.
So don't be deceived and don't let yourself be pushed
around. Stand up for yourself and say no when asked
to sign a card.
Four present and three former employees testified to
their recollections of what Mr. Garrett said in his
speeches. All freely acknowledged that their memories
were hazy and that they could not separate statements
made in one speech from statements made in the other.
Five of the seven witnesses recalled that Mr. Garrett
stated that the company would do everything in its power
to keep the Union out. Four recalled him saying that it
would be a mistake to sign a union card, one recalled the
statement as being "Don't sign or you'll be out of a job.
He said and we sign the card we lose our job so you can
replace us" and one recalled the statement as being: "you
better think twice before you sign this" (holding up the
union authorization card). Four recalled him stating that
the company would know who signed the cards for the
Union. Six of the seven recalled that he said something
about employees being discharged or replaced or out of a
job, but no two had the same recollection in this area.
C. Roy Nell Mass
Mrs. Roy Nell Mass is a sensitive, personable young
woman. She was hired without prior experience by
Respondent's predecessor company on March 2, 1966, and
worked continuously at Respondent's Mesa plant through
April 19, 1968. She was a piece worker. On June 21,
1966, her then supervisor, Eleanor Rael, filed a written
progress report stating that Mass' work was satisfactory,
that she liked her work, that she got along well with
others and would make a good employee. On April 6,
1967, Respondent replied to an inquiry from the Credit
Bureau of Phoenix that Mass was a "Good Steady
Worker."
Her only difficulty with any supervisor occurred
probably in early January 1968. The only testimony on
the subject is that of Mrs. Mass, as follows:
Q. [By Mr. Stout] You said something about some
bad work, in fact, you were warned by Mr. Robbins'
in relation to quality?
A. You mistunderstand about the work.3
Q. He did speak to you about it?
A. Yes, but they were my repairs because of the
machine.
Q. All right. When was this conversation with
Eleanor Rael.'
A. Well, this was sometime after Mr. Robbins had
the fuss.
Q. When was that?
A. This was before the Union guys came.
Q. That Mr. Robbins spoke to you?
A. Yes.
Q. How long before this week that you were out with
the boy sick?
A. That was three or four months later.
Q. This week was three or four months after the
conversation with Eleanor?
'Ford Robbins , assistant manager
'Mrs Mass had testified that after she engaged in union activities she
received bad work assignments from her supervisor.
'Production manager
KELLWOOD CO.
A. No, I would say two months.
As noted above, the Union distributed its first handbill
on January 30. Mrs. Mass, seeing two men just outside
the entrance gate in front of the plant passing out
circulars and thinking they were salesmen, walked up and
accepted a union leaflet. At the same time she noted that
she was being observed by May Shank, a supervisor, and
Ford Robbins, assistant manager, who were standing at a
large window inside the plant about 40 or 50 feet from the
gate. On the next day, February 1, Robbins sent a memo
to Personnel, "Subject - Warning to Operator" reciting:
"Roy Nell Mass Clock was warned about her
performance (Low Earnings) for last two days - She had
plenty work available for her - "'
Mass signed a union card, attended union meetings,
tried to get other women to sign and tried to get other
women to attend meetings. Noting a difference in the
attitude of her supervisor, Mrs. Butram, the absence of
the friendly greeting, the increase in bad work, and
shorter hours, and noting that Mr. Garrett had ceased his
practice of stopping by her machine with a friendly word,`
and hearing a rumor that she was to be fired because of
her union activities, she sought and obtained an interview
with Eleanor Rael.
Mrs. Mass told Mrs. Rael that she had heard she was
going to be fired because of her activities on behalf of the
Union and volunteered the information that she had
signed a union card. Rael recalled her question as being
"Will the company fire me because I signed a Union
card?" and testified that her answer was a categorical
"No." Rael did not reply to Mass' question as to whether
or not she had heard the rumor. In response to Mass'
statement that she thought the Union would be good for
the company, Rael replied that the company was already
doing all it could for the employees, that 60 percent of its
business was with Sears, and 40 percent with Deena, that
these were big companies with many suppliers, and if the
company did not have the money to pay union prices it
would have to close its doors. Rael told Mass that she had
a right if it was her conviction to sign anything she
wished, and told Mass that she thought Mass was a strong
personality over the girls, and thought Mass was the
leader and that they would be more apt to follow Mass if
Mass said vote for the Union.
On Sunday night, April 21, Mrs. Mass' son became ill,
and after emergency treatment at the hospital, she
brought him back home and stayed with him until he
recovered a week later.
On Monday morning, April 22, Mrs. Mass phoned the
plant and asked for the personnel manager, Mrs. Johnson.
Upon being informed that Mrs. Johnson was out, she
spoke to the personnel clerk, Sonya Cloud. Mrs. Mass
told Mrs. Cloud that her little boy was sick, and that she
would be in as soon as her little boy got well and asked
Mrs. Cloud to inform Mrs. Mass' supervisor, Norma
Butram. Mrs. Cloud told Mrs. Butram only that Mrs.
Mass was sick.' Mrs. Butram wrote the word "sick" on
Mrs. Mass' timecard and on the absence report form
which each supervisor must submit daily to the personnel
office. There were then about 400 employees in the plant,
and about 35 employees in the department supervised by
Mrs. Butram. Mrs. Mass did not attempt in any way to
communicate with any person in authority at the company
after this initial telephone call until she reported for work
'There is no explanation of this memorandum in this record
`Mr. Garrett testified that he personally did not treat Mass differently
before and after the appearance of the Union
563
on Monday morning, April 29. Meanwhile, on Tuesday,
Wednesday, Thursday, and Friday, Mrs. Butram wrote
the words "not notified" on Mass' timecard and on the
daily absence report to Personnel listed Mass as absent
"reason unknown."
Also on Friday, April 26, Mrs. Butram filled out a
"TERMINATION OF EMPLOYMENT" form checking
under "reason" the word "Discharged," stating in
longhand under "Details of Reason": "Has not notified
reason for being absent for 4 consecutive days - Plant
Rule 12 states that an employee absent for three days
without notifying the company shall be considered as
having quit voluntarily." Under the question
"Recommend for reemployment" Mrs. Butram on the
portion of the form entitled "rating" checked the highest
box for "skill," the highest box for "producer" and the
lowest box for "deportment." Mrs. Butram signed the
form, obtained the signature of the production manager,
Eleanor Rael, and the two women presented the form to
the personnel director, Erline Johnson, as their
recommendation. (The same three had conferred on the
day preceding, i.e., Thursday, April 25, and agreed that
Mass would have to be terminated). When Mrs. Johnson
received the termination form, she, using red ink in a pen,
crossed out the checkmark after the word "discharged"
and placed a checkmark after the word "resignation." She
also pulled Mrs. Mass' timecard "so I could talk to her
before she did clock in."
On Monday morning, April 29, Mrs. Mass reported for
work and, finding her timecard missing, went to Mrs.
Johnson's office. Mrs. Johnson testified:
Well, I asked Roy Nell into the office and asked her
why she didn't call in, and also asked her whether she
knew the rule and she stated to me she did. I asked her
if she had gotten the rules when they were passed out,
and she said, yes, she knew the rule that she was
supposed to call in, and so I asked her what was wrong,
and she said she was upset, she had to take her child to
the Emergency Room on Sunday night, but she did not
leave him there, she brought him home.... So I asked
her if she knew the rule, and she said she did, and I
stated the rule to her, and the part that Mr. Garrett
had said he presumed she had quit, and the rule was
voluntarily quit.
After her recollection was refreshed, Mrs. Johnson
testified further: ". . . she told me that she had decided
that she was going to call in on Friday and quit, but -
and go back to her mother's. But in thinking it over, she
decided on attending school."
Mrs. Mass testified:
She asked me if I knew I was supposed to call in every
day and I told her, well, I suppose so, but I have never
done it before and I didn't see any reason why I had to.
She told me to go home and she was going to speak to
Mr. Garrett and see if I could come back to work.
Mr. Garrett testified that Mrs. Johnson came to him on
Monday afternoon and:
Well Erline reported Roy Nell's absence without
reporting, and said she had come in on Monday, the
29th, to talk to her, and that Roy Nell had told her she
had thought about calling in Friday and quitting, and
that was in violation of Rule 12, and you know, what
was my opinion on it. I told her from the information
that I didn't see any way we could deviate from Rule
12, and Roy Nell actually showed a lack of interest in
'English is not the native language of Mrs Cloud and she may have
misunderstood the soft accents of Mrs. Mass
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her job, and I felt we had to stick to the rule.
On Tuesday morning Mrs. Johnson advised Mrs. Mass
by telephone of Mr. Garrett's decision.
In her application for unemployment insurance filed
May 10, 1968, Mrs. Mass stated that she had been
discharged because "I didn't call in every day."
D. Respondent's Rule on Reporting
Shortly after Mrs. Johnson became personnel manager
in October of 1967, she caused plant rules to be posted
and in early November distributed copies of the rules to
all employees. Rule 12, which had been in effect prior
thereto and which is still in effect, reads:
An employee absent for three days, without notifying
the company, shall be considered as having quit
voluntary (sic) and cannot return to work unless rehired
as a new employee.
It is the responsibility of the individual supervisor to
prepare a termination notice in every case in which an
employee is absent without excuse and without notice to
the company. Personnel maintains a check by requiring
each supervisor to submit daily on a prescribed form the
name of each absent employee with the reason for the
absence. When these reports show that an employee has
been absent for 3 days without calling in, Personnel
requests the supervisor to prepare a termination form.
Since Mrs. Johnson has occupied her present position, this
practice has been followed without exception. Company
records show that Mrs. Mass had never been absent for 3
consecutive workdays without calling in, or without prior
excuse until the occasion which led to her termination.
E. Concluding Findings
1. Interference, restraint, coercion
I find that Mr. Garrett read both speeches exactly as
they appear in this record with only the emendations
described in his testimony. In so doing, I do not discredit
any of the testimony of his hearers. The vague inchoate
threats in Garrett's skillfully drawn talks took different
concrete forms in the minds of his untutored listeners, and
each hearer testified truthfully to her individual
recollection of the impression which the talks made on her
mind.
Even under the broad scope given to Section 8(c) of the
Act by the Court of Appeals for the Ninth Circuit in
N.L.R.B v. Semiconductors Inc., 385 F.2d 753, the
speeches of Garrett constituted restraint and coercion. The
thrust of the first speech was that it would be a mistake to
sign a union authorization card, because the employer
would take every legal step it knew of to keep the Union
out of the plant, and if enough employees made the
mistake of signing cards, the troubles would dust be
beginning. The words- "We will take every legal step we
know of to keep the Union out of this plant" when used
in juxtaposition with the words "mistake" and "troubles"
carry a strong connotation of dire consequences. Where
the borders of the law are as ill-defined as they are in the
National Labor Relations Act, I am unable to give any
controlling significance to the word, "legal."
In his second speech Garrett repeated: "We do not
want a Union in this plant and we will use every legal
means at our disposal to keep it out of here," and so that
there might be no doubt that a threat was intended,
added: "It is our sincere belief that if this union were to
come into this plant, it would not work to your benefit
but would be harmful to you.i' With that warning still
ringing in their ears, the law was again invoked with the
words "Under the law, no union can get in here without
an election, or without a full trial before the National
Labor Relations Board. If that should ever become
necessary all those cards will be made public - not just
to me and the company, but anyone who wants to read
the public records."
I find that the speeches delivered by Mr. Garrett
restrained and coerced employees in the exercise of
Section 7 rights and are not protected by Section 8(c) of
the Act.
2. The discrimination against Mass
Respondent has a practice, from which it has never
consciously deviated, of terminating employees
immediately and automatically following the third
consecutive day of unexplained absence. Responsibility for
initiating the termination is in the immediate supervisor,
and it is part of the responsibility of the personnel
department to see that this policy is followed.
Mass was terminated on Friday in the normal course of
business. Her supervisor on the Monday attendance report
showed Mass as sick. The attendance reports for Tuesday,
Wednesday and Thursday showed Mass absent, reason
unknown. On Thursday the supervisor checked with the
production manager and with the personnel manager and
her clerk to ascertain whether there had been some
message that she had missed. On Friday, which was the
fourth day of unexplained absences, the supervisor
executed the document which effected Mass' termination.
The supervisor stated that the action was "discharged "
This was corrected by the personnel manager to read
"voluntary quit."
This policy is charitable and humane and to be
commended. There may be any number of reasons why an
employee may be absent without reporting, and the word
"discharged" is a blot on the record of any person.
To this point, applying the "but for" test, there was no
discrimination against Mass . "But for" her unexplained
absence, she would not have been terminated on Friday.
The allegation of discriminatory discharge must, therefore,
be dismissed.
There remains the question, Why was Mass not
returned to work as a new employee when she reported
for work at her usual time on Monday morning? Rule 12
contemplates rehiring and Johnson testified employees
"voluntarily resigned" under Rule 12 would be rehired
absent information in their personnel file indicating an
unsatisfactory employee. There were two such matters in
the personnel file of Mass.
The first is the termination paper itself on which
Bertram and Rael had graded Mass poor on deportment.
Unless, by "deportment" they meant "union activity,"
their rating has been demonstrated conclusively on this
record to be false. Garrett testified that there was no
question about her deportment in her department, that she
did not fight with the girls and was civil to her superiors.
Johnson testified that poor deportment meant poor
attendance, a definition clearly at odds with that of the
dictionary and common usage. The persons directly
'For a sampling of the cases in this area and illustrations of the narrow
line between " legal" and "illegal" see Southwire Company v N L R B ,
383 F 2d 235 (C A 5), J P Stevens , 167 NLRB 37, Aerovox Corp of
Myrtle Beach , S C, 172 NLRB No 97, Harvey Aluminum , 156 NLRB
1353
KELLWOOD CO. 565
responsible for the rating, Bertram and Rael, were not
interrogated on the point. I conclude that Mass was rated
poor in deportment because she insisted to Rael that the
Union would be good for the company, and attempted to
persuade her fellow workers to her point of view.
The second is the February 1 memorandum of
Assistant Manager Robbins. I have concluded from the
fact that Mass was unaware that the persons handing out
circulars at the exist gate were union organizers, but
thought they were handing our advertising circulars, on
the occasion when she was observed by Robbins, that this
must have occurred on the day of the first distribution,
i.e., January 31. I have concluded on the basis of Mass'
uncontradicted testimony that her sole difficulty with
Robbins occurred some time before January 31, and did
not involve in any way any failure or refusal to work
when work was available. Not only is the Robbins
memorandum implausible on its face (since Mass was a
piece worker), the company records show that during the
period encompassed by the Robbins memorandum, Mass'
hourly earnings were well above her average for the year.'
I conclude and find that Robbins caused the
memorandum to be entered in Mass' personnel file to
provide a "legal" basis for her termination or other
discipline should the suspicion evoked by her acceptance
of union literature be confirmed.
I find that when Mass presented herself for work on
Monday morning, Respondent, had it followed its usual
practice, would have permitted her to return to work as a
new employee, but for the fact that she had been active on
behalf of the Union, had not been persuaded by
Respondent's arguments to abandon her allegiance to the
Union and because of the Respondent's determination to
do everything legally in its power to keep the Union out
of the plant.
Garrett, in his conversation with Johnson, was not
concerned with whether Mass had been a good employee,
was not concerned with any matter in her personnel file,
was not concerned with the reason for her absence or
whether good attendance and work performance might be
expected in the future. His only concern was with the
"legality" of the initial discharge, i.e., had there been any
'Company records of average hourly earnings for Mass in 1968 show:
January
February
March
April
First week
2d
3d
4th
I st
2d
3d
4th
5th
1st
2d
3d
4th
5th
1st
2d
$1.60
1.83
1.84
2.00
2.18
2.21
2.39
2.19
1.65
1.91
1.93
2.01
2.13
2.40
2.66
2.35
On the form in which Respondent 's records are maintained , the 2 days
specified in Robbins ' memorandum would be included in the period shown
as February 1st week . Mass' mean average earnings for the year were
$2.08 per hour and her median average was $2.07.
deviation from the policy of terminating employees on the
fourth day of any unexplained absence. I find that in
failing to reemploy Mass on Monday, April 29,
Respondent was wholly motivated by the fact that she had
been and was still an open and avowed union advocate
and by Respondent's belief that denying reemployment to
her was a legal means of keeping the Union out of the
plant.
I further find that any application, other than
presenting herself for work on Monday morning, would
have been a completely futile act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent as set forth in Section
III, above, occurring in connection with the operations of
the Respondent set forth 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 commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It will be recommended that Respondent be required to
offer immediate reemployment to Roy Nell Mass,
displacing, if necessary, any employee hired on or after
April 29, 1968, and make her whole for any loss of pay
she may have suffered by reason of the discrimination
against her. Backpay shall be computed in the manner
prescribed by the Board in F. W. Woolworth Company,
90 NLRB 289, and with interest on the backpay due in
accordance with Board policy set out in Isis Plumbing and
Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act engaged in commerce and in a
business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By engaging in the conduct set forth in the section
entitled "Interference, restraint and coercion," the
Respondent has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(1) of
the Act.
4. By denying employment to Roy Nell Mass on April
29, 1968, thereby discouraging membership in or activities
on behalf of the Union and interfering with rights
guaranteed by Section 7 of the Act, Respondent has
engaged in , and is engaging in, unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 8(a)(1) and (3) and Section 2(6) and (7) of the
Act.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I recommend that Respondent, Kellwood Co., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from-
(a) Discouraging membership in, or activities on behalf
of, International Ladies' Garment Workers' Union, Local
451, or any other labor organization of its employees, by
refusing to rehire or otherwise discriminating against
employees in regard to their hire or tenure of
employment, or any term or condition of employment.
(b) Threatening employees with trouble or harm as a
consequence of signing union authorization cards.
(c) Misrepresenting to its employees the circumstances
under which union authorization cards may be made
public.
(d) In any like or related manner interfering with,
restraining or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer immediate employment to Roy Nell Mass and
make her whole for any loss of pay suffered by reason of
the discrimination against her in the manner set forth in
this Decision under the heading "The Remedy."
(b) Preserve and, upon request, make available to the
Board, or its agents, for inspection and reproduction, all
payroll records, social security reports, timecards,
personnel files, and other records necessary to analyze,
compute and determine the amount of backpay to which
Roy Nell Mass may be entitled under the terms of this
Decision.
(c) Post at its plant in Mesa, Arizona, copies of the
attached notice marked "Appendix."" Copies of said
notice on forms to be provided by the Regional Director
for Region 28, shall, after being duly signed by
Respondent's representative, be posted by the Respondent
and maintained by it for 60 consecutive days thereafter in
conspicuous places, including all places where notices are
customarily posted Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
"In the event that this Recommended Order be adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board 's Order Gs enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "A
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 28 , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith.
(d) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of the receipt of this
Trial Examiner's Decision what steps the Respondent has
taken to comply with the foregoing Recommended Order.
IT IS FURTHER RECOMMENDED that unless within 20
days from the date of the receipt of this Trial Examiner's
Decision the Respondent shall notify said Regional
Director in writing , it will comply with the foregoing
Recommended Order," the National Labor Relations
Board issue an Order requiring Respondent to take the
aforesaid action.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT discourage membership in or activities
on behalf of International Ladies' Garment Workers'
Union, Local 451, by refusing to rehire or otherwise
discriminating against employees with regard to their
hire or tenure of employment, or any term or condition
of employment.
WE WILL NOT threaten employees with trouble or
harm as a consequence of signing union authorization
cards.
WE WILL NOT misrepresent the circumstances under
which union authorization cards may be made public.
WE WILL offer immediate employment to Roy Nell
Mass and make her whole for any loss of pay she may
have suffered by reason of the discrimination against
her.
All our employees are free to become or remain, or to
refrain from becoming or remaining, members of the
above-named Union or any other labor organization.
KELLWOOD CO.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Federal Bldg.
and US Court House, 500 Gold Avenue, Room 7011,
P.O. Box 2146, Albuquerque, New Mexico 87101,
Telephone 247-0311, Ext. 2556.