Kellwood Co.

National Labor Relations Board - Board Decisions

Apr 10, 1973

202 N.L.R.B. 1033 (N.L.R.B. 1973)

KELLWOOD CO., SPENCER DIV. 1033
Kellwood Company, Spencer Division and Upper
South Department , International Ladies Garment
Workers Union , AFL-CIO. Case 9-CA-6838
April 10, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On December 13, 1972, Administrative Law Judge
Josephine Klein issued the attached Decision in this
proceeding. Thereafter, the Respondent and the
Charging Party filed exceptions and supporting
briefs, the General Counsel filed limited exceptions
and a supporting brief, and the Respondent filed an
answering brief to the exceptions and briefs of the
General Counsel and Charging Party.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions' of the Administrative Law Judge
and to adopt her recommended Order.
ORDER
dent) on April 19, 1972, alleging that on specified
occasions between October 30, 1971, and mid-January
1972 Respondent interfered with its employees' exercise of
rights guaranteed by Section 7 of the Act, t in violation of
Section 8(a)(1), and on February 11, 1972, discriminatorily
discharged employee Mildred Saunders, in violation of
Section 8(a)(3) and (1).2
Upon due notice, a trial was conducted before me in
Spencer, West Virginia, on July 11, 1972. All parties were
afforded full opportunity to be heard, to present written
and oral evidence, and to examine and cross-examine
witnesses. The parties waived oral argument and the
hearing briefs have been since submitted by the General
Counsel and Respondent.
Upon the entire record, observation of the witnesses, and
consideration of the briefs, I make the following:
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
A. Respondent, a Delaware corporation, is engaged in
the manufacture of wearing apparel at a manufacturing
plant in Spencer, West Virginia, the only facility' involved
herein. During the past 12 months, a representative period,
Respondent, in the course of its business, sold and shipped
goods and merchandise valued in excess of $50,000 from
its Spencer, West Virginia, plant directly to customers
outside West Virginia. Respondent is, and was at all times
material herein, an employer engaged in commerce as
defined in Section 2(2), (6), and (7) of the Act.
B. The Union is, and was at all times material herein, a
labor organization as defined in Section 2(5) of the Act.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Kellwood Company, Spencer
Division, its officers, agents, successors and assigns,
Spencer, West Virginia, shall take the action set forth
in the said recommended Order.
I The General Counsel and the Charging Party except to the Administra-
tive Law Judge's conclusion that 6 or 7 months had elapsed between
Saunders' initial union activity and discharge on February 1 l,'1972. Based
upon record testimony not specifically mentioned by the Judge, it appears
that Saunders may have been in contact with the Union in late August or
early September 1971, before her mid-October activity described by the
Judge.
DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Administrative Law Judge: Pur-
suant to a charge filed by . Upper South Department,
International Ladies Garment Workers Union, AFL-CIO
(the Union) on February 22, 1972, a complaint was issued
against Kellwood Company, Spencer Division (Respon-
' National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519,
29 U.S.C. Sec. 151 el seq.).
2 By amendment made at the outset of the hearing on the General
II. THE UNFAIR LABOR PRACTICES
A. Background and Chronology
Around the middle of October 1971, employee Mildred
Saunders telephoned the AFL-CIO office in Charleston,
West Virginia, for information and assistance in union
organization of the employees at Respondent's Spencer
plant. A few days thereafter, Mario Marcello, West
Virginia state director of the Union, telephoned Saunders
and an initial organizing meeting was,arranged. That
meeting, attended by Marcello, Saunders, and four other
employees, was held at Saunders' home on or about
October 17. Marcello said that, because a prior attempt to
organize the plant had been fruitless, the Union would take
no present action unless substantial employee interest was
demonstrated by the execution of union authorization
cards. The employees present at the meeting all signed
cards and took blank cards for distribution and solicita-
tion. Saunders solicited around 10 employees in person and
mailed some 50 cards to other employees. There is no
evidence concerning the success of her solicitation. Union
meetings were then held around the middle of November,
December, and January in the administration building of
the 4-H recreation area, about 10 miles outside of Spencer.
Counsel's motion, allegations of an additional violation of Sec. 8(a)(1) and
another discriminatory discharge were deleted from the complaint.
202 NLRB No. 155
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It does not appear that a representation petition was ever
filed or that any demand was made for recognition.
Employee Saunders was discharged on February 11,
1972, the latest date involved herein.
B. Violations of Section 8(a)(1)
Employee Joyce Anderson was hired on October 18,
1971. On November 1, she, along with some four.or five
other new employees, attended an orientation meeting held
by Personnel Manager William P. Patton, Jr. Anderson
testified that in the course of the meeting, after explaining
such matters as the Company's insurance and retirement
plans, Patton "told us that there wasn't a union at the plant
and that if someone should ask us to sign a union card that
we should take the. card without signing it and bring it to
him or Phil Moore, our supervisor." On questioning by
Respondent's counsel, Anderson specifically denied that
Patton had been reading from any document or paper
when he made the statement about union cards.
Patton, who had been plant personnel manager for 3 1/2
years, testified that on November 1 he followed his
established practice in conducting indoctrination meetings
with new employees. According to Patton, Respondent has
two versions of a statement concerning unions: one
applicable where no organizing campaign is in process, and
one for use when, as here, the new employee meeting is
held during a union organizing campaign. The latter
statement, which Patton testified he read on November 1,
states that the Company views itself and its employees as
"a working family-a team," relying on "mutual trust and
confidence" for success of the enterprise. Because of this
attitude, Respondent believes that a union "would be an
unnecessary expense" to the employees. The prepared
position statement proceeds, in part:
Because, as a company, we will strive to maintain this
atmosphere of teamwork and cooperation, there should
never be any reason for the jobs of our employees to
come under union jurisdiction.
This is why we urge you never to sign a union
authorization card. If any one ever approaches you and
asks you to sign such a card, you are free to tell us
about it. We.certainly would want to see that you have
all the facts, for we believe that none of our employees
will ever sign a union card when they have all the facts.
One important fact about those cards, which I want to
tell you now, is that there have been many cases in
recent years where unions have gotten into the plants
after they obtained signed cards from a majority of the
employees. Many times employees will sign cards not
knowing this fact and other facts, just to get the union
off their back. This is why we urge you never to sign a
union card.
Remember, you did not have to belong to a union to
get you[r] job here, and you don't have to join one to
keep it. Keep your hard earned money for yourself and
your family.
1 The cases cited by Respondent do not, as Respondent maintains,
support the validity of Patton's prepared statement. Neither Patio Foods,
Inc., 168 NLRB 305, nor N.L.R.B. v. Hobart Bros. Co., 372 F.2d 203 (C.A.
6), involved employer action in which warnings not to sign union cards were
accompanied by solicitation of information concerning union activities.
There is little doubt that at the meeting on November 1,
Patton in general followed the prescribed outline for such
meetings. However, with a group of only five employees
present, he appears, naturally and reasonably, to have
maintained a more friendly and informal atmosphere than
would have prevailed had he read a prepared text. Having
been personnel manager for some years, he undoubtedly
had conducted many such meetings and was thus so
familiar with the material that he did not need to read the
prepared message verbatim. The written statement is
obviously drafted with precision, with the aim of soliciting
information from individual employees concerning union
activities while remaining literally or technically within the
outer limits of permissible free speech. In short, the
statement as written is an example of "brinkmanship."
Wausau Steel Corp., 160 NLRB 635, 639, enfd. 377 F.2d
369 (C.A. 7); Aerovox Corp. of Myrtle Beach, S.C, 172
NLRB 1011, enfd. 435 F.2d 1208 (C.A. 4). On all the
evidence, including careful observation of the demeanor of
the witnesses, I credit Anderson's testimony and find that
Patton stepped over the brink, thus unlawfully soliciting
the employees to provide information concerning union
activities within the plant. Bank of St. Louis, 191 NLRB
No. 119, enfd, 456 F.2d 1234 (C.A. 8). Further, in the total
context, Patton's "urging" new employees "never to sign a
union card" was an implied threat of reprisals for union
activities. Accordingly, it is found that Respondent
violated Section 8(a)(1) by Patton's statements to new
employees on November 1, 1971.
Even if I were to credit Patton's testimony that he read
the prepared statement verbatim, I should find a violation.
In my opinion, the statement as written appears calculated
to elicit information which Respondent was not at liberty
to solicit expressly. The employees would reasonably
construe a statement that they were "free to tell [manage-
ment] about" union solicitation as a request that they do
so. Employee rights cannot realistically be made to turn on
the necessity of sophisticated and minute analysis of
precise words, dissociated from the surrounding circum-
stances.3
It should be noted that Respondent's tactics were
apparently successful, since, according to Patton, employ-
ees did provide information concerning union solicitation
as early as October.
The complaint alleges unlawful surveillance of union
meetings held in December 1971 and January 1972.
On a Saturday in December, a union meeting for male
employees was scheduled at the administration building of
the 4-H facility, a recreational area some 10 mile outside
of Spencer. It was a cold, dismal day, with rain threatening.
Before the scheduled start of the meeting, employee
Mildred Saunders, accompanied by her son and daughter-
in-law, went to the area to secure the key to open the
administration building and to make sure it would be
heated. When Saunders arrived at the premises, she saw
Jack Miller, supervisor of Respondent's finishing depart-
ment, sitting in a vehicle about 15 feet away from the
Respondent's interest in learning of individual union solicitations, expressed
at a front-office meeting . adds a coloration against which its urging
employees not to sign union cards amounts to something more than advice
not to sign cards without fully investigating the implications.
KELLWOOD CO., SPENCER DIV. 1035
entrance to the administration building. Saunders testified
that when Miller saw her he slid down in the seat of his car
and hid his head under a newspaper. -
Miller testified that at the time in question he was at the
4-H recreation area to enable his 13-year-old son to ride a
minibike, an activity prohibited on the public highways of
Spencer but allowed on the 4-H grounds. Miller testified
that while he was sitting in his car, a Kellwood employee
approached him to inquire where a Christmas tree could be
purchased. A second employee appeared on the scene. The
first employee thereupon left Miller to consult the second
employee on the Christmas tree matter. According to
Miller, six or eight other Kellwood employees drove into
the park, circled the administration building, and then
drove out of the premises. Shortly thereafter, because it
was starting to rain, Miller started to leave the premises
with his son. At that time, the six or eight employees who
had driven through before returned, parked their cars near
the administration building, and entered the building.
Except for the Saunders group and the other Kellwood
employees who arrived to attend the meeting, Miller and
his son were the only people in the recreation area at the
time involved.
Another union meeting was held at the 4-H recreation
area on a Saturday or Sunday in January 1972. Again it
was a dismal cold day. Saunders and approximately six
other employees went to the. meeting. Because of the low
attendance, at about 3:45 p.m. Saunders left the building,
entered her car, and drove to the nearest available
telephone, which was about 3 miles away, in an attempt to
increase the attendance at the meeting. Upon reentering
the 4-H grounds around 4:30 p.m., while driving toward
the exit from the grounds, Saunders saw her supervisor,
Helen Whited, supervisor of the sewing department, sitting
in a Volkswagen. with her daughter and 4-year-old
grandson. The Whited vehicle was parked in the driveway
of the caretaker's house, which is located just off the
blacktop road on the 4-H grounds. The blacktop road is
the only means of access to the grounds and the
administration building. As Saunders was later driving
toward Spencer at the close of the meeting, she passed
Whited's car, which was then beading away from Spencer
in the direction of the 4-H grounds.
Whited testified that on the day in question she,
accompanied by her daughter and grandson, had gone out
to do some shopping. After shopping a short while in
Spencer, they went to the 4-H grounds in Grandeeville.
They drove through the 4-H grounds twice, with Whited
noticing two or three cars parked near the administration
building. On the way out, they stopped the car so that the
4-year-old boy could relieve himself on the side road by the
caretaker's house. Thereafter, they started back toward
Spencer and home. En route Whited and her daughter
began to talk about clothes, whereupon they decided to
visit a fabric shop which they had previously passed on
their way back from the 4-H grounds. They thereupon
turned around and drove back to the shop, but found it
had closed for the day by the time they got there. It was
while they were on the way to the fabric shop that they
passed Saunders as she was returning to Spencer after the
union meeting.
It would be a most extraordinary coincidence for
supervisors simply to happen to be at the 4-H grounds on
cold dreary Saturday or Sunday afternoons at precisely the
time union meetings were being held. On both occasions,
the supervisors were the only people present other than
those attending the union meetings . There is no reason to
doubt Miller's testimony that he had brought his son along
and the son was riding his minibike. Nor is there any
reason to question Whited's testimony that her daughter
and grandson were with her and that they had done some
shopping before going to the area. However, it is difficult
to believe that the motivation of the trips was recreational.
The 4-H grounds are apparently much frequented for
picnicking, sports, and similar outdoor activities. Both
Miller and Whited both visit the premises for such
purposes from time to time . According to Whited, the
location is beautiful just to drive through. However, the
entire surrounding countryside has considerable beauty. It
seems rather unlikely that one would choose such a spot
simply to drive through as a means of entertaining a 4-
year-old boy on a cold and gloomy day.
Respondent argues that no finding of violation can be
made in connection with these two incidents because there
is lacking any evidence of union animus or of knowledge of
the scheduled meetings on the part of Respondent.
However, there is ample record evidence on which animus
and knowledge can be found.
The text of the prepared statement which Patton testified
he reads to each new employee, as quoted above, manifests
both Respondent's "opposition to unionization of its
operations" (Jewell Smokeless Coal Corp., 175 NLRB 57,
60) and its interest in keeping informed of union activities
among its employees so that it may have the opportunity to
counter them. In addition, union animus is reflected in a
series of past unfair labor practices by Respondent and
affiliates . Kellwood Co., Ottenheimer Bros. Mfg. Div., 170
NLRB 1638, enfd. 411 F.2d 493 (C.A. 8); Kellwood Co., 175
NLRB, 559, enfd. 427 F.2d 1170 (C.A. 9); Kellwood Co.,
Ottenheimer Div., 178 NLRB 20, enfd. in part 434 F.2d
1069 (C.A. 8), cert.'denied 401 U.S. 1009; Hawthorn Co.,
Div. of Kellwood Co., 166 NLRB 251, enfd. in part 404 F.2d
1205 (C.A. 8); Greenfield Mfg. Co., & Division of Kellwood
Co., 199 NLRB No. 122. See also Kellwood Co., Southern
Div., 170 NLRB 1625, enforcement denied 406 F.2d 1063
(C.A. 6).
Patton testified that he knew of the union organizing
activities as early as October, when some employees gave
management authorization cards and provided informa-
tion as to the identity of the employees soliciting such
authorizations. It is reasonable to assume that employees
who volunteered such information would be equally
inclined to keep management 'advised of subsequent
organizational activities, including the scheduling of union
meetings.
As set forth in more detail below, Respondent's evidence
establishes that on or about November 22, 1971, employee
Carolyn Callow dramatically complained to management
about Saunders' allegedly persistent solicitation on behalf
of the Union. It is certainly reasonable to assume that
Callow would inform management of the continuing
course of the union organizational campaign. While no
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
written notices of the union meetings were issued, they
were widely publicized by word of mouth. Callow
undoubtedly knew of their being scheduled and passed her
information on.
Knowledge and motivation, being subjective facts, can
rarely be established by direct evidence. Instead, they must
usually be determined on the basis of circumstantial
evidence and inferences from objective facts. On all the
evidence, including careful observation of the demeanor of
the witnesses, I discredit Miller's and Whited's testimony
that their visits to the 4-H premises in December and
January, respectively, were unrelated to the union meetings
being held there. I find that, as alleged in the complaint,
Respondent engaged in unlawful surveillance of the union
meetings in December and January, thus violating Section
8(a)(1) of the Act.
C. Discrimination Against Employee Saunders
1. Invocation of company rule against visiting
There is no question that Saunders initiated the union
organizing campaign around the middle of October. She
also actively solicited other employees to sign union
authorization cards. Among the persons she solicited was
Carolyn Callow, who worked at the same operation as
Saunders did. According to Saunders, Callow's initial
reaction was, favorable to the Union.
On the morning of November 22, 1971, Saunders was
called to the management office. On the way back to her
work station, she stopped at Callow's machine. Saunders'
version of her conversation with Callow was as follows:
Well, I asked her-different times I asked her to sign
a union card and she talked very favorable that she
would. So I had heard she had been in the office the,
Friday before and I asked her, I said "Carolyn, don't
you think it's about time you signed that little card now
that we've been asking you to before you're replaced
with older employees"? . .. [4] She said "No, I don't."
She said "I talked to somebody over the weekend that
knows more about this than you do." I said, "Well, if
you talked to somebody that knows more about it than
a union representative does, then you've talked to the
right person." ... She said that at least she had talked
to somebody that would keep them off of her back.
Shortly after the conversation, Callow put her head on
her machine and started to cry. She then left the
department with the service employee and Supervisor
Whited. Then Saunders, upset and suffering a headache
and backache, went to the nurse's office to obtain a pain
pill. In the nurse's office, she saw Callow lying on a cot
with Patton and Cottle standing beside her.
About half an hour after returning to her machine,
Saunders was called into Cottle's office. Cottle said that an
employee had "reported [Saunders] for stopping at her
machine and upsetting her." Saunders apparently did not
deny the accusation. She asked who had reported her.
Although Cottle would not reply, Saunders apparently
knew the answer to her question. Cottle said, "He was
going to write [Saunders] up for it and if it ever happened
again [Saunders] would be terminated." The "corrective
interview" report filed by Cottle at the time described
Saunders' misconduct as follows:
Violation of plant rules and regulations number 26.
"Visiting fellow employees while they are working" and
causing a disturbance in production by upsetting an
employee who had to report to the dispensary.
The report further said that Saunders had been warned
that she would be terminated "if this disturbance occurs
again." Later that, day Saunders was again summoned to
Cottle's office and informed that henceforth she was not to
leave her work to go to the nurse's office without first
notifying her supervisor.
The General Counsel maintains that the invocation of
plant rule 26 and the imposition of a new requirement that
Saunders notify her supervisor before going to the nurse's
office were discriminatory action against Saunders for her
activity on behalf of the Union. In support of the
contention, the General Counsel refers to undisputed
testimony that employees frequently visited among them-
selves without objection by. management and that for some
time Saunders been visiting the nurse's office for pain pills
several times a day without having to obtain permission or
notify her supervisor.
The General Counsel's argument ignores the fact that, so
far as appears, the employees' visiting among themselves
had never before so disturbed an employee as to disrupt
production. Respondent appears to have been indulgent to
the employees generally, and to Saunders in particular, up
to that time. However, it seems reasonable that such
indulgence would be curtained if it led to an encounter
such as Respondent maintains occurred between Saunders
and Callow. The mere fact that the incident resulted from
Saunders' having discussed the Union with Callow is
insufficient in itself to establish that Respondent's discipli-
nary action was directed against, and designed to discour-
age, her union activities.
The one fact raising substantial question as to the
propriety and motivation for Respondent's conduct is
Callow's unexplained failure to testify at the hearing.
Callow's version of the episode is presented only in the
form of self-serving hearsay by Cottle and Patton,
management representatives. I can ascribe absolutely no
weight to their hearsay testimony as to what Callow
allegedly reported concerning her discussion with Saun-
ders. Since Callow's complaint was the basis of Respon-
dent's disciplinary action against Saunders, one would
reasonably expect Respondent to produce Callow as a
witness. Her unexplained failure to testify, therefore,
warrants the inference that her testimony would be adverse
to Respondent.
In the absence of testimony by Callow, Saunders' version
of the verbal exchange is uncontradicted and credited. As
described by Saunders, the conversation was hardly such
as to warrant Callow's very emotional reaction.5 There is
4 The reference is to a warning given to the six side-seam operators Callow. Cottle testified: "Carolyn Callow ... went to the nurse. She and
concerning their low productivity. Helen [Whited ] and the nurse called me in, being the department head. We
5 Even Cottle's hearsay version reflects considerable overreaction by went into my office. Carolyn was very hysterical, crying, said `Mildred,
KELLWOOD CO., SPENCER DIV.
no evidence that the exchange was attended by overt
anger.
It appears likely that the person Callow said she had
"talked to ... over the weekend," who "knows more
about this" than Saunders does, was a management
representative. It also seems probable that Callow, having
become convinced that unionization was not in the best
interests of the employees and/or the employer, agreed to
keep management advised of further union activities. Such
willingness to cooperate with management might well have
been influenced, to a greater or lesser degree, by the fact
that Callow, along with other side-seam operators, had just
been warned that she was in danger of being replaced if her
productivity did not improve. This view would serve to
explain both her apparent overreaction to Saunders' visit
and Respondent's failure to produce her as a witness at the
hearing, where she would be subject to cross-examination
concerning the background and setting of the event and
her prior contacts with management representatives. If the
facts were as above suggested, the Callow incident would
be seen as a staged event seized upon as a pretext for
discriminatorily disciplining Saunders for her union activi-
ties.
The difficulty, however, is that the foregoing analysis is
really in the nature of conjecture or speculation. Although
I have drawn the inference that Callow's testimony would
have been adverse to Respondent, such negative inference
is insufficient to establish affirmatively that Saunders was
reprimanded for her union activities rather than for having
unduly disturbed a fellow employee. Accordingly, while
entertaining considerable suspicion about the incident, I
find that the General Counsel has not established by a
preponderance of the competent evidence that, as alleged
in the complaint, Saunders was the target of unlawful
discrimination on or about November 22, 1971.
2. Discharge
Saunders had been employed by Respondent for about 8
1 /2 years. During her entire career, she had worked as a
side-seam machine operator, although she had acquired
some experience in other operations.
Machine operators are paid on a piecework or "pro-
duction" basis. For the period here involved, the norm, or
required standard, was that an employee produce enough
at piecework rates to earn an average of at least $2.05 per
hour.
At least in recent years Saunders had been plagued by
illness. Respondent's records show the following extended
leaves of absence for illness: January through June 1966
(with 3 weeks during that period apparently charged to
layoff for lack of work); January through June 19, 1967;
January through March and 4 1/2 weeks in May and June
1968; mid-October 1968 to around mid-January 1969; 2
everytime she went by her into the restroom or got up and and came by her
would say "Hurry up and sign your card. We haven't received your card.
We need you to sign the card. You said you would.' " And she said she was
was fed up with it and wanted Mildred to be kept away from her. . . . After
that I went to Bill Patton , talked to him and wrote up another corrective
interview on the Rule 26 being broken on harrassment and disturbing other
employees while they were working." Cottle did not indicate, as Saunders
1037
weeks in June 1969; mid-November 1970 through the third
week of April. 1971.6 The extended sick leaves in 1966 and
1970-71 were for surgery for a back condition. Saunders
maintained that she returned to work prematurely in April
1971 because Respondent limits sick leave to 6 months.
According to Saunders, after her 1966 illness, the
working relationship between her and Cottle, her depart-
ment manager, began to deteriorate. Saunders further
testified that upon her return to work in April 1971,
following her second back operation, Cottle became
increasingly harsh to her. He continually spoke to her
about her failure to meet her production standard.
Cottle testified that early in July 1971 he spoke to the six
side-seam operators, collectively, about their low pro-
ductivity. According to Cottle,there was an ensuing increase
in productivity by the "majority of the side-seam people"
but Saunders' production did not improve.
During the third week of July, Saunders was out of work
for the surgical removal of a tumor from her shoulder.
After her return, Cottle again spoke to her about
productivity. Saunders testified that Cottle then warned
her that she would be discharged if she were thereafter to
be absent because of illness for a full workweek. Respon-
dent introduced into evidence a "Corrective Interview
(Notice of Warnings Given for Violations)" prepared by
Cottle and dated July 30, 1971. The report states that the
interview was conducted because of Saunders ' "excessive
absenteeism" and "not making production." Although the
report does not report the specific warning to which
Saunders testified, it does set forth Cottle' s recommenda-
tion that she be given a final warning. Cottle testified that
Saunders' productivity improved for about 2 weeks but
then reverted to a very low level.
On several occasions in 1971, apparently after her second
back operation, Saunders asked Cottle about the possibili-
ty of her being transferred to another job which would
entail less bending and lifting than the side-seam opera-
tion.
On October 29, 1971 (the precise date being established
by a corrective interview form executed by Cottle), Cottle
again interviewed Saunders concerning her failure to meet
production standards. According to Cottle's report, Saun-
ders referred to Cottle's having previously promised her a
job transfer. According to his report, Cottle could not
specifically recall having made such a promise, but at that
time gave Saunders a week to think it over and decide if
she really wanted a transfer, despite Cottle's opinion "that
because of the fact that Mildred knows this
operation-production--quality-machines-and others,
she should stay on this operation , (seam-side on banlon)."
Early in November 1971, in response to her renewed
request, Cottle offered her a transfer to the operation of
setting plackets. After discussing the matter with Cottle
and Whited, Saunders rejected the proffered transfer
because setting plackets was as physically taxing as side-
did, that Patton also spoke to Callow in the dispensary . Patton did not
testify concerning the incident . I credit Saunders ' testimony.
6 In addition, Saunders was apparently absent a considerable amount of
time on personal business , including 2 1/2 weeks in May 1969, almost the
entire month of November 1969, 2 weeks in August 1970, and 3 1/2 weeks
in October and November, 1970.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seams and the placket-setting job would probably last only
a few months.
Later in November 1971, the company nurse suggested
that Saunders secure a doctor's statement in support of her
need for a physically easier job. Saunders then presented to
Respondent a doctor's statement, reading:
Mrs. Mildred Saunders had disc surgery performed
by me in January, 1971. She has been rechecked
periodically in the office since hospital discharge. If
there is some job where she would be under less
pressure, such as a timework job, available, I would
recommend that she be moved to this.
She gave this statement to the company nurse around
November 22 (the same day as the Callow incident).? The
nurse passed the doctor's statement on to William Patton,
Respondent's personnel director. Patton then spoke to the
doctor, who said Saunders, should not have a job entailing
excessive bending or lifting. In answer to Saunders'
subsequent inquiry, Patton said that there was no alterna-
tive job then available. Saunders suggested that she be
given a job as a utility operator or as a trainer, both of
which positions are paid on a time rather than a piecework
basis. Patton said that he would confer with Plant Manager
William Moore to see if an appropriate job might be
available in the future.
Around December 20 Saunders asked Moore about a
transfer. Moore said there were no utility operator or
trainer jobs available. When Saunders then suggested that,
as an alternative, she be transferred to operating another
type of machine, Moore replied that it would not be fair to
allow her, in effect, to displace another employee. Moore
said that, if she worked to the best of her ability, he might
be able to give her another job in about 2 months. On
February 11, however, she was summoned to the office and
there discharged, assertedly for her consistent failure to
meet production standards. At that time Saunders remind-
ed Moore that he had previously "promised" her a transfer.
Moore replied that the work he had anticipated when he
spoke to her in December had not materialized. Undisput-
ed evidence establishes that during the period here
involved, at least during the latter half of 1971, the banlon
department, in which Saunders worked, was very busy, but
other departments were not, with many employees on
layoff.
The General Counsel contends that Saunders' record of
low production was simply used by Respondent as a
pretext for ridding itself of the instigator of the union
organizational campaign. In support of this conclusion, the
General Counsel relies primarily on the fact that Respon-
dent had borne with Saunders' low productivity, as the
result of physical disability, for some years before she
embarked upon her union activities, and the alleged fact
I Monday, November 22, 1971, was a busy day for Saunders. Upon
arriving at work, she took her doctor's statement to the nurse. Shortly
thereafter, she, and another side-seam operator who, like Saunders, had
been absent on Friday, November 19, were called to Cottle's office and
warned that they would be replaced if their production did not improve. On
the way back to her machine, she stopped to talk to Callow. After Callow
left the department, Saunders went to the dispensary to get pain pills. After
returning to her machine, Saunders was again called to Cottle's office and
reprimanded for the Callow incident. Thereafter, Saunders went to the
nurse's room to check on the status of her doctor's statement. At lunchtime,
she spoke to Patton concerning that matter. Sometime later she was recalled
that in the period immediately preceding her discharge
Saunders had exerted great effort and her productivity had
shown some improvement.
In defense, Respondent contends, inter alia, that there is
no showing that Respondent knew of Saunders' role in the
union campaign and no evidence of union animus on the
part of Respondent. Both these contentions must be
rejected. There is no doubt that Saunders initiated the
campaign. She made the initial contact with the Union and
the original meeting was held at her home. She also was
primarily responsible for the arrangements for subsequent
meetings and had been seen doing so by Supervisors Miller
and Whited. She also solicited union authorization cards
from other employees. Also, as set forth above, Patton
testified that in October some employees had informed him
of the solicitation of union cards and the identity of the
solicitors. Although he did not specifically testify as to the
employees who had been so identified, there can be little
doubt that Saunders, as the ringleader, must have been
named .8 Further, Saunders' union activities were revealed
to management by the Callow incident, which occurred
some 2 1/2 months before the discharge. And, as
previously found, there is ample evidence of Respondent's
union animus. But Respondent' s union ' animus and
knowledge of Saunders' union activities are not in
themselves sufficient to establish that her discharge was
discriminatorily motivated.
The record leaves no doubt that Saunders' production
was consistently substantially below the prescribed stand-
ard. According to Respondent's records, between Septem-
ber 1970 and her discharge on February 12, 1972, Saunders
met the prescribed $2.05-per-hour standard in only 2
weeks-one in October 1970 and the first week of August
1971. After the side-seam operators were warned, in
November, that.they would be replaced if they did not
improve, Saunders' production showed no immediate
improvement, her average hourly earnings remaining at
about $1.80 until the weeks ending January 15 and 22,
when they reached $2.00 and $2.03, respectively. The
departmental average hourly earnings were $2.50 and $2.61
in these 2 weeks. Saunders' earnings then started to decline
again, descending to $1.94, $1.78, and $1.86 in the weeks
ending January 29, and February 5, and 12, respectively.
During this period, the first 6 weeks of 1972, the
departmental average hourly earnings at piece-rate work
show a generally increasing trend. There can be little doubt
that Saunders' performance was sufficiently unsatisfactory
to justify discharge.
At the General Counsel contends , it is often a suspicious
circumstance that an employer who has tolerated an
unsatisfactory employee for a considerable period of time
finds the worker no longer employable after he has become
to Cottle's office and told that henceforth she was not to leave her machine
to go to the dispensary without first reporting to her supervisor. Still later on
November 22, Saunders was called to the nurse's office , where she was
informed of complaints by other employees of a personal problem on
Saunders' part.
8 There is no evidentiary support for the statement in Respondent's brief
"that several other employees ... were equally active on behalf of the
union ." In any event , failure to discharge other union activists would not be
decisive as to the reason for Saunders' discharge. N.L.R.B. v. Nabors Co.,
196 F.2d 276 (C.A. 5), cert. denied 344 U.S. 865.
KELLWOOD CO., SPENCER DIV. 1039
active on behalf of a union. However, such a sequence of
events is not necessarily conclusive.
In the present case, long before Saunders made contact
with the Union she had been the subject of reprimands and
warnings, both written and oral, concerning her admitted
substandard productivity. Respondent, through Depart-
ment Manager Cottle, had revealed that Respondent was
reaching the limit of its patience and indulgence. Virtually
decisive against the General Counsel's contention is
Saunders' own testimony that she first called a union
because she knew her job was in jeopardy. Her initial
contact with a union was a direct reaction to Cottle's
warning that she would be terminated if she were absent
for 5 consecutive working days because of illness. To be
sure, her eventual discharge was not directly pursuant to
that specific warning. But, as Saunders maintained, her low
productivity and her poor health were interrelated.
Respondent had for a considerable time made known its
great concern for productivity. Despite repeated warnings,
Saunders' production remained low. The threat of dis-
charge antedated and led to the union activities.
On all the evidence, it cannot be found that Saunders'
discharge, some 6 to 7 months after she initiated the union
campaign, was motivated by her having taken such action.
Accordingly, it will be recommended that the complaint be
dismissed insofar as it alleges that Saunders was discrimi-
natorily discharged because of her union activities.
CONCLUSIONS OF LAW
1. By coercively interrogating employees concerning
their union activities and inviting employees to report on
the union activities of other employees; by coercively
warning employees not to sign union authorization cards;
and by engaging in surveillance over its employees'
attendance at union meetings, Respondent has interfered
with, restrained, and coerced employees in their exercise of
rights guaranteed in the Act and has thereby committed
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
3. It has not been shown that Respondent has engaged
in any other unfair labor practices other than those found
in paragraph I above.
1. Cease and desist from: .
(a) Coercively interrogating its employees concerning
their adherence to, or activities on behalf of, Upper
Southern Department, International Ladies Garment
Workers Union, AFL-CIO, or any other labor organiza-
tion, and inviting its employees to report on such union
adherence or activities of other employees; coercively
warning its employees not to sign authorization cards on
behalf of Upper South Department, International Ladies
Garment Workers Union, AFL-CIO, or any other labor
organization ; conducting or maintaining surveillance over
the union activities of any employees.
(b) In any like or related manner interfering with,
restraining, or coercing employees in their exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Post at its plant in Spencer, West Virginia,-copies of
the attached notice marked "Appendix." 10 Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being signed by a representative of
Respondent, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director for Region 9, in writing,
within 20 days from the receipt of this Order, what steps
Respondent has taken to comply herewith.
The complaint is hereby dismissed insofar as it alleges
unfair labor practices other than those specifically found
herein.
9 In the event no exceptions are filed as provided by Sec. 102 .46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
15 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) of the
Act, I shall recommend the issuance of a cease-and-desist
order and the imposition of a notice-posting requirement in
accordance with the established and usual practice in such
cases.
Upon the basis of the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDERS
Respondent , Kellwood Company, Spencer Division, its
officers , agents, successors , and assigns, shall:
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity to
present their evidence, it has been found that we violated
the law and we have been told to post this notice about
what we are committed to do.
The Act give all employees rights:
To organize themselves
To form, join, or help unions
To bargain as a group through a representative
of their own choosing
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all these things.
We assure all of our employees that:
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT unlawfully question any employees
concerning their membership in, activities on behalf of,
or sympathies for Upper South Department , Interna-
tional Ladies Garment Workers Union, AFL-CIO, or
any other union , or concerning the union membership,
activities , or sympathies of other employees; and WE
WILL NOT request that employees report to us concern-
ing any such membership, activities , or sympathies.
WE WILL NOT conduct surveillance of union meet-
ings or other union activities.
WE WILL NOT coercively warn employees not to sign
union cards and we will not . expressly or impliedly
threaten them with reprisals if they do so.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce employees in the exercise of
their right to self -organization , to join or assist- Upper
South Department, International Ladies Garment
Workers Union , AFL-CIO, or any other labor organi-
zation , and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid
or protection , or to refrain from any or all such
activities.
Dated By
KELLWOOD COMPANY,
SPENCER DIVISION
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
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 . Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board 's Office , Federal Office Building,
Room 2407, 550 Main Street , Cincinnati , Ohio 45202,
Telephone 513-684-3686.