Ken Lee, Inc.

National Labor Relations Board - Board Decisions

Oct 30, 1961

133 N.L.R.B. 1598 (N.L.R.B. 1961)

1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has been found that the Company, by discharging Simpson and Moore (both
thereafter reinstated) because of their union activities, discriminated against them in
respect to their hire and tenure of employment in violation of Section 8(a) (3) of the
Act. I shall therefore recommend that the Company make Simpson whole for any
loss of pay he may have suffered (Moore lost no pay) from July 24 through 28,
1959, by reason of the discrimination against him, computation to be made in the
customary manner. I shall further recommend that the Board order the Company to
preserve and make available to the Board upon request payroll and other records to
facilitate the checking of the amount of backpay due.37
It has been further found that the Company's activities in connection with 21906
constituted support of that labor organization in violation of Section 8(a) (2) of the
Act. I shall therefore further recommend that the Company withhoud all recognition
from 21906 as the exclusive representative of its employees for the purposes of
collective bargaining unless and until such labor organization has been duly certified
by the National Labor Relations Board as the exclusive representative of such
employees.
It has been further found that the Company, by threats and promises of benefit
dependent on limitation of employees' concerted activities, has interfered with, re-
strained, and coerced its employees in violation of Section 8(a)( I) of the Act. I
shall therefore recommend that the Company cease and desist therefrom.
For the reasons stated in the section entitled "The alleged violation of Section
8(a)(5)," I shall recommend that the complaint be dismissed insofar as it alleges
violation of that section.
Upon the basis of the above findings of fact, and upon the the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. District 65, Retail, Wholesale and Department Store Union, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
2. Hair Goods, Toiletries and Accessories Workers Union, Local 21906, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of its em-
ployees, thereby discouraging membership in a labor organization, the Company has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (3) of the Act.
4. By contributing to the support of 21906, the Company has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (2) of the Act.
5. By such discrimination and support, and by threats and promises of benefit,
thereby interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Company has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
7. The Company has not engaged in unfair labor practices within the meaning
of Section 8(a) (5) of the Act.
[Recommendations omitted from publication.]
since the remedy in either or both of the cases against the Company may depend on the
evidence adduced in all of these cases.
87 Cro8sett Lumber Company, 8 NLRB 440; Republic Steel Corpoi ation v N L R It ,
311 It S. 7; F W. Woolworth Company, 90 NLRB 289, 291-294
Ken Lee , Inc. and International Ladies Garment Workers Union.
Cases Nos. 10-CA-4351, 10-CA-4408, and 10-CA-4420. Octo-
ber 30, 1961
DECISION AND ORDER
On December 28, 1960, Trial Examiner Sidney Lindner issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
133 NLRB No. 148.
KEN LEE, INC. 1599
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices and recom-
mended that the complaint be dismissed with respect to them. There-
after, the Respondent, the General Counsel, and the Charging Union
filed exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this proceeding to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner to .the extent that they are con-
sistent with this Decision.
1. We agree with the Trial Examiner that the Respondent by the
following conduct interrogated and threatened its employees and en-
gaged in surveillance of their activities in violation of Section 8(a) (1)
of the Act.'
(a) Annie Massey, who was active in the union's organizational
campaign which commenced in November 1959, signed an authoriza-
tion card, served as a member of the union's organizing committee,
approached employees at their homes and on the street outside the
plant to sign cards, and attended union meetings and the union banquet
for Respondent's employees on March 9,1960. Ken Jackson, principal
owner of Respondent Company, on or about November 10, 1959, asked
Massey if the girls had been bothering her about this "Union thing."
When Massey replied that she had not heard anything about it at all,
Jackson remarked she must have been deaf. About 2 weeks later,
Jackson inquired if Massey liked her job. When Massey said she did,
Jackson told her she had better talk to the girls.2
(b) Employee Joan Lee, who did not join the Union or attend any
of its meetings, was asked by Jackson in December 1959,3 and again
in February 1960, if she knew any of the people who had signed cards
and who were starting "all the mess about the Union."
(c) Employee Jacquelyn Richardson, who signed an authorization
card, was a member of the union's organizing committee, talked to em-
I In making these findings , the Trial Examiner relied on the record as a whole as well
as the credited testimony of the various employees mentioned below.
a As indicated below, Massey was laid off on March 3, 1960.
Jackson testified that early in December 1959 , a union official informed him that the
employees were overwhelmingly in favor of the Union and when Jackson was asked
whether he was willing to sign the contract , Jackson replied in the negative Jackson
further testified that on December 14, the Union picketed his plant.
On December 24, 1959, the Union filed a petition for an election.
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees in their homes about joining the Union, and attended about
five union meetings. On December 11, 1959, Richardson and employee
Evelyn Harper were called into Jackson's office where he inquired of
them whether the information he received that they were ringleaders
and were instrumental in organizing the Union was correct 4 Jackson
stated that he was not going to have a union and if the Union was suc-
cessful in organizing the Respondent's employees, the manufacturers
with whom he had contracts would cancel them and the employees
would lose their jobs. Jackson also mentioned that he was offered
$75,000 to open a plant in Lawrenceville, Georgia, and before he would
have a union in his shop he would close the Atlanta plant and move
there.-'
(d) Employee Arneatha Berry, who signed a union authorization
card in November 1959 and attended the union banquet, was asked by
Jackson if she had signed a union authorization card. After her
denial, Jackson stated that he had been told that she had signed a card
and asked what Berry thought the Union could do for her s
(e) Employee Virginia Smith was asked late in February 1960
what she thought about the Union. When Smith replied "she felt the
girls had dropped it," Jackson told Smith "they had voted for an elec-
tion to be held in the plant." Jackson also told Smith that if the em-
ployees voted for the Union to represent them, he would close the plant
and move the machines out.
(f) Employee Annie Long, who signed a union authorization card
and attended union meetings, was told by Jackson in February 1960,
that his favorable reply to an inquiry from a mortgage company to
which she had applied for a loan "all depends on how you girls act
toward the Union."'
(g) Employee Classie Roberson signed a union authorization card,
and attended union meetings and the banquet. When Roberson, who
was laid off on March 1, 1960, went to the plant 2 days later to pick up
her paycheck, Jackson said he was having a lot of trouble because of
the Union and could not obtain contracts for work. Jackson also asked
Roberson what she knew about the Union.
(h) Employee Joan Lee, who had previously been questioned about
the Union by Jackson in December 1959 and February 1960, at the
' 4The' Trial Examiner found , and we agree, that Richardson was discriminatorily dis-
charged on March 10, 1960 , because of her union membership and activities
5 Respondent did in fact open up another plant in Greenville , Georgia , during the first
week of January 1960 In this connection , the parties stipulated that Jackson said in a
speech to his employees at the Atlanta plant on February 24, 1960 , "Our sole remaining
customer has insisted that we set up an alternate plant so that there would be other
facilities available in the event of a labor disturbance at our plant here Our whole
situation has been made very uncertain because of this Union's efforts to come into the
plant "
G As indicated below, Berry was laid off on March 1, 1960
P As indicated below, Long was laid off on March 7, 1960 According to Long, Jackson
filled out the inquiry and returned it to her a day or two later.
KEN LEE, INC. 1601
request of Jackson who handed her $10, went to the union banquet in
the evening of March 9, 1960, and then told Jackson's wife, Lenora H.
'Jackson, who was at the banquet.
(i) Employee Ruth Kelly on March 10, 1960, was told by Mrs.
Jackson, "Ruth, we know you're in the Union, we know all of them in
it." On the same day Mrs. Jackson told Kelly that if the Union came
in "you wouldn't have any work."
(j) Mrs. Jackson also told employee Barbara Burke on March 10,.
1960, "I am surprised at you. We have been so nice to you . . . then
you went out and sold your job for a chicken dinner." Mrs. Jackson
added that if the Union came into the plant the Respondent would
close down and nothing could be done about it because Georgia was a
good State.
(k) Employee Claudia Williams on March 10, 1960, was asked by
Jackson where she though she would get a job if the Union came in and
the plant closed down. Jackson added, "The Union bribed you with a
dinner last night but it wont feed you next week." Jackson also stated
that as long as the plant was open Williams would have a job but when
the plant closed she would not have a job.
(1) Jackson on the same day also told employee Johnnie Hairston
that he knew she had attended the banquet and he was surprised at
her, "trying to cut me in my back with a knife."
2. The Trial Examiner found that the Respondent did not have
knowledge concerning the union activities of the nine employees who
were laid off between February 22 and-March 14, 1960,8 and that the
layoffs, the failure to recall Massey and Carey, and the delay in re-
calling the other seven laid-off employees until May 3 to May 23, 1960,.
were not discriminatory because these acts were the result of manage-
ment decision and economic factors. We disagree for the following
reasons.
As indicated above, Respondent became aware of the campaign to^
organize employees in November 1959, when Jackson and his wife em-
barked upon a course of patent hostility toward the Union. As already
noted, Respondent persistently interrogated employees as to who was
in the Union, and engaged in surveillance and threats of reprisal
against the Union and its adherents. For example, Jackson on or
about November 10, 1960, interrogated Massey, who was an active,
union adherent, about the Union and 2 weeks later told her that if she
liked her job she had better talk to the girls. In December 1959,,
Jackson rejected the Union's request for collective bargaining, and
about the same time Jackson inquired of Richardson concerning infor-
mation he had received that she was a ringleader who was instrumental
8 Jesse M Sims , February 22, 1960 ; Pearlene Glass, February 23; Arneatha Berry,
Mary Carey , Helen Pittman , Classic Roberson , March 1 , Annie Massey, March 3; Annie
Long, March 7 ; and Ila Lake , March 14
024067-62-N o l 13'. 102
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in organizing the Union. As found by the Trial Examiner, Respond-
ent discriminatorily discharged Richardson on March 10 because of
her union activities. Jackson, by his statement of January 1960 to
Berry, that he had been told she signed a union authorization card and
his questioning her as to what the Union could do for her, clearly
showed that he believed Berry was an active union adherent.
Respondent's knowledge of the union activities of the employees was
also shown by its surveillance of the union banquet of March 9, 1960.
Thus, employee Joan Lee, who was not active in the Union, attended
the banquet at its behest and reported to Jackson's wife as to who was
in attendance. Although the Trial Examiner found that Lee did not
name "particular employees" present at the banquet, we find, contrary
to the Trial Examiner, that Respondent was in fact informed as to who
was at the banquet because Lee, whom the Trial Examiner found
credible, testified that she told Mrs. Jackson who was at the banquet.
Moreover, as already noted, a number of employees who were credited
by the Trial Examiner, testified that on the day following the banquet
Mrs. Jackson asserted that the Jacksons knew all of the employees in
the Union and upbraided them as ingrates for attending the banquet.
Respondent's knowledge of the employees' union activities and its
antiunion motivation were further demonstrated in connection with
the opening of another plant in Greenville, Georgia, early in Janu-
ary 1960, only about a week after the Union filed a petition for an
election at its Atlanta plant. As already stated, there is ample evi-
dence that prior to that date during the organizing campaign Re-
spondent threatened a number of employees with opening another
plant if the Union came in. Although the Respondent contended that
the Greenville plant was the outgrowth of plans for expansion which
were started in August 1959, we find, contrary to the Trial Examiner
who accepted this contention of the Respondent, that the Respondent's
purpose of opposition to the Union was clearly revealed when Jack-
son in his speech explained that, "Our sole remaining customer has
insisted that we set up an alternate plant so that there would be other
facilities available in the event of a labor disturbance at our plant
here."
Jackson hired up to 30 new employees during the ensuing months
at Greenville and began training them on plain sewing work which
involved the simplest operations. Jackson explained that business
declined in late February and March and as a result he decided to di-
vide the plain sewing work between the Atlanta and Greenville plants.
Accordingly, as noted above, nine so-called plain sewing employees
were laid off at the Atlanta plant from February 22 to March 14, 1960.
Yet the record shows that despite the supposed business decline, from
March 14, the day the last of the nine layoffs took place, to April 19,
KEN LEE, INC. 1603
1960, Respondent actually took on 20 employees at its Atlanta plant.°
Although 15 of these were new employees who had to be trained for
the job and the remaining 5 were former employees who were not
working for Respondent at the time of the layoff, Jackson gave as the
reason for taking on these employees at Atlanta instead of recalling
the laid-off emplyoees, that the jobs they filled were "not related to
plain sewing," which was the only type of work done by the laid-off
employees. Jackson also explained that rather than retrain the laid-
off employees for 1 of the 20 jobs, it was better to train the new
employees and keep available the plain sewing laid-off employees for
their old jobs and avoid the necessity for subsequently training new
employees in plain sewing.
We find no basis or support for the foregoing explanation of the
Respondent. Thus, the record shows, contrary to the contention of
the Respondent, that many of the jobs for which the new employees
were taken on involved the very same operations performed by the
laid-off employees, such as loop setting, blind stitching, and bar tack-
ing'° It is undisputed that the nine laid-off employees, eight of whom
were active in the Union before their termination and four of whom
had been interrogated, had a great deal of experience and performed
a variety of operations including zipper work which Jackson stated
was the hardest job in the plant. More specifically, Massey," who
had experience in setting loops, hemming or blind stitching, and side
seaming, and Carey,'2 who had 35 years' experience in sewing and
working on darts, and setting pockets and belt loops, were qualified
without further training for the two loop setting positions as well as
O The 20 positions were : 2 loop setters , 3 belt department jobs, 2 blind stitchers, 3 bar
tackers, 1 sorter in cutting department , 1 floor girl, 4 shipping department jobs, 1 spreader,
1 porter , 1 presser , and 1 office worker
1o In this connection , it is also significant that employee Virginia Smith, who did bar
tacking, setting loops, plain sewing , and sewing of darts, testified without contradiction
from Jackson that she stated in.reply to his question that it would take 10 to 15 minutes
for anyone to learn to operate the machine she was on.
"As already indicated , Massey was an active union adherent who was interrogated by
Jackson . When Massey fractured her finger on February 22, and reported she was unable
to come to work, Jackson told her to call when she was ready to do so. Yet without wait-
ing for such a call or receiving any message from Massey that she had quit, Jackson
handed Massey a separation notice dated March 3, 1960 , stating that she had quit because
"she broke her finger " When Massey telephoned Jackson on March 16 to say that her
doctor was now permitting her to return to work, Jackson replied that he could not wait
that long and had replaced her. Nevertheless , the record shows that the replacement, Ina
Atkinson , did not start work until the following day. Under these circumstances, par-
ticularly the availability of work for Massey from mid-March to May 1960, we cannot
agree with the Trial Examiner that Respondent offered a valid explanation for refusing
to recall Massey on March 16 or thereafter.
'i As indicated above , Carey, who was 56 years old, was not recalled at any time. The
Trial Examiner accepted Jackson's explanation for the failure to recall Carey, namely her
age We disagree , as Carey at the hearing named five or six employees who were her age
and were retained by the Respondent and Jackson admitted that he had other employees
about Carey ' s age Moreover, although, as the Trial Examiner indicated , Carey testified
that no one in management mentioned the Union as such to her, it is significant in the
context of Respondent ' s antiunion conduct that Carey went on to testify that Jackson
told her that if she didn ' t "listen to politics" she would be "around . . . a long time "
1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some of the other 20 jobs. Pearlene Glass," who had worked on belts,
darts, top stitching, loop setting, setting pockets, and setting zippers
and was recalled on May 18, 1960, to work on zippers, was qualified
without further training for one of the three belt department posi-
tions as well as for some of the other 20 jobs. Jesse M. Sims,14 who
worked on pockets, darts, and top stitching of pockets and was re-
called on May 9, 1960, to work on zippers, and Arneatha Berry,15 who
stitched down pockets and made darts and was recalled on May 23,
1960, had stitching experience which qualified them for the two blind
stitching jobs. Helen Pittman,"' whose experience included dart set-
ting, setting pockets, setting loops, blind stitching, and bar tacking,
and was recalled on May 23, 1960, to set pockets, was qualified for one
of the three bar tacking jobs. Classie Roberson'17 who had experience
setting pockets, doing dart work, and top stitching and was recalled
on May 3, 1960, to work on zippers, the most difficult of all the opera-
tions, appears qualified for one of the three bar tacking jobs, one of
the simplest operations in the plant. Annie Long,18 who had 12 years'
experience in the industry and worked as it utility operator on prac-
tically every machine doing joining, setting pockets, top stitching,
setting loops, and serging and was recalled on May 9, 1960, to do
similar work, also appears qualified for one of the bar tacking open-
ings. Finally, Ila Lake,19 with 10 years' experience in sewing includ-
ing making darts and stitching, appears qualified for one of the four
jobs in the shipping department whose operations involve sorting of
garments and putting on belts.20
In view of the Respondent's course of conduct consisting of interro-
gation and threats of reprisal, Respondent's antiunion motivation
for opening another plant in Greenville, Georgia, Respondent's
knowledge of and hostility toward its employees who were in the
Union, and the obvious pretexts for the layoffs, we find that the Re-
spondent's action in effecting the nine layoffs, failing to recall Massey
18 Glass signed a union authorization card and attended four or five union meetings and
the banquet.
14 Sims signed an authorization card and attended four or five union meetings
15 As noted above , Berry was active in the Union and was interrogated by Jackson.
19 Pittman was active in the Union , handing out cards on Respondent's parking lot, and
attending union meetings and the banquet.
17 As already noted , Roberson was active in the Union and was interrogated.
19 As already indicated , Long was active in the Union.
19 Lake was active in the Union , signing an authorization card , and attending meetings
and the banquet She was given permission on March 9 , 1960, to be with her daughter
who was in the hospital However, when Lake telephoned Jackson on March 14, 1960, to
say she could return to work because her daughter was now out of the hospital, Jackson
replied that work was slow and he would call her when she was needed Yet Jackson
sent Lake a separation notice dated March 17, 1960, stating that her last day of work
was March 9, 1960, and she had "quit for personal reasons." There is no evidence that
Lake at any time mentioned that she was quitting. Under these circumstances , we find'
without foundation Respondent ' s explanation for terminating Lake.
20 Although Jackson testified that employees who sat at the machines normally do not
like to work in the shipping department because it involved standing , Jackson conceded
that he did not ask any of the laid-off employees whether they would work in shipping
KEN LEE, INC. 1605
and Carey, and delaying the recall of the other seven laid-off em-
ployees, was discriminatory and therefore in violation of Section
8(a)(3) of the Act.
THE REMEDY
Having found, in agreement with the Trial Examiner, that the
Respondent engaged in surveillance, interrogation, and threats in vio-
lation of Section 8 (a) (1) of the Act and discriminatorily discharged
Jacquelyn Richardson in violation of Section 8(a) (3) and (1) of the
Act, we shall adopt the Trial Examiner's recommended remedy re-
garding these violations.
It has also been found, contrary to the Trial Examiner, that the
Respondent discriminatorily laid off employees Jesse M. Sims, Pearl-
ene Glass, Arneatha Berry, Mary Carey, Helen Pittman, Classie Rob-
erson, Annie Massey, Annie Long, and Ila Lake, failed to recall
Carey and Massey, and delayed in recalling the other seven laid-off
employees until May 1960. Accordingly, we shall order the Respond-
ent to offer Massey and Carey immediate and full reinstatement to
their former or substantially equivalent positions without loss of
seniority or other rights and privileges, and make these two employees
whole, except for the period between the date of the Intermediate
Report and the date of the Order herein.21 We shall also order Re-
spondent to make whole the other seven laid-off employees from the
date of their layoffs to the date of their recall in May 1960,22
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board orders that the Respondent, Ken Lee, Inc., of Atlanta, Georgia,
its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Ladies Garment
Workers Union, or any other labor organization of its employees, by
discharging any of its employees or in any other manner discriminat-
ing in regard to their hire or tenure of employment or any term or
condition of employment.
(b) Engaging in surveillance of its employees union activities,
interrogating its employees concerning their union affiliations, or
threatening employees with reprisal or economic loss because of their
union affiliations, activities, or sympathies.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
si F. W Woolworth Company, 90 NLRB 289.
22 F. W Woolworth Company, supra.
1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organizations , to join or assist International Ladies Garment
Workers Union, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage-
in concerted activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the Act, or to,
refrain from any and all such activities, except to the extent that such
rights may be affected by any agreement requiring membership in a
labor organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer reinstatement and make whole Jacquelyn Richardson in
the manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(b) Offer reinstatement and make whole Annie Massey and Mary
Carey in the manner set forth in the section of this Decision entitled
"The Remedy."
(c) Make whole Jesse M. Sims, Pearlene Glass, Arneatha Berry,
Helen Pittman, Classie Roberson, Annie Long, and Ila Lake in the
manner set forth in the section of this Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to determine the amount of backpay
due under the terms of this Decision.
(e) Post at its office in Atlanta, Georgia, copies of the notice at-
tached hereto marked "Appendix." 23 Copies of said notice, to be
furnished by the Regional Director for the Tenth Region, shall, after
being signed by Respondent's representative, be posted by Respondent
immediately upon receipt thereof, and be maintained by it for a period
of 60 consecutive days thereafter, in conspicuous places, including all
places were 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.
(f) Notify the Regional Director for the Tenth Region, in writing,
within 10 days from the date of this Order, what steps the Respond-
ent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of the complaint relating
to the termination of Louise Collier and Rosa Felton, be, and they
are hereby are, dismissed.
23 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
KEN LEE, INC.
APPENDIX
NOTICE TO Aii, EMPLOYEES
1607
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage self-organization or concerted activi-
ties on behalf of International Ladies Garment Workers Union,
or any other labor organization, among employees for their mu-
tual aid or protection as guaranteed in Section 7 of the Act, by
discharging any of our employees.
WE WILL NOT engage in surveillance of employees' union activi-
ties, or threaten employees with reprisal or economic loss because
of union membership and activities, or interrogate employees
concerning their union affiliations and activities.
WE WILL NOT in any manner interfere with, restrain, or coerce
employees in the exercise of their rights to engage in union or
concerted activities for the purpose of collective bargaining or
other mutual aid or protection.
WE WILL offer to Jacquelyn Richardson, Annie Massey, and
Mary Carey immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to any sen-
iority or other rights and privileges previously enjoyed.
WE WILL make whole Jacquelyn Richardson, Annie Massey,
Mary Carey, Jesse M. Sims, Pearlene Glass, Arneatha Berry,
Helen Pittman, Classie Roberson, Annie Long, and Ila Lake for
any loss of pay suffered as a result of our discrimination.
All employees are free to become, remain, or refrain from becoming
or remaining members of International Ladies Garment Workers
Union, or any other labor organization.
KEN LEE, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding brought under Section 10(b) of the National Labor Relations
Act, as amended, 61 Stat . 136, 73 Stat. 519, herein called the Act, was heard at
Atlanta, Georgia , on May 31 and June 1 , 2, and 3 , 1960, pursuant to due notice,
with all parties represented by counsel . The complaints issued by the General Coun-
sel on February 25, April 20, and May 6 , 1960, respectively , against Ken Lee, Inc.,
herein called Respondent , were consolidated by order of the Regional Director for
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Tenth Region, and alleged that Respondent had engaged in unfair labor prac-
tices affecting commerce within the meaning of Section 8(a)(1) and (3) and Sec-
tion 2(6) and (7) of the Act. More specifically, the complaints as amended at the
hearing alleged, inter alia, that Respondent through its officers and agents, more par-
ticularly owner Ken Jackson and Mrs. Ken Jackson on specified dates from on or
about November 16, 1959, through March 10, 1960, (a) interrogated its employees
concerning their union membership and activities; (b) threatened its employees that
it would close down and move the plant if the Union came in; (c) threatened its em-
ployees with the loss of employment because they had engaged in union activities;
(d) created the impression of surveillance by stating to its employees that it knew all
employees who had attended a union banquet; (e) on certain dates from February 22
through March 17, 1960, laid off 10 employees,' and failed and refused thereafter to
recall and reinstate said employees to their former or substantially equivalent po-
sitions of employment because of their membership and activities on behalf of the
Union; and (f) on or about March 10, 1960, discharged and thereafter refused to
reinstate employees Rosa Felton and Jacquelyn Richardson because of their mem-
bership in and activities on behalf of the Union. In its answer Respondent generally
denied these allegations.
Upon the entire record, and from my observation of all witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Ken Lee, Inc., a corporation duly organized under and existing by virtue of the
laws of the State of Georgia, at all times material herein, has maintained its principal
office and place of business in the city of Atlanta, State of Georgia, where it has been
engaged in the manufacture, sale, and distribution of women's apparel and related
products. During the year 1959, which period is representative of all times material
herein, Respondent in the course and conduct of its business operations manufactured,
sold, and distributed at said Atlanta plant products valued in excess of $100,000 of
which products valued in excess of $100,000 were shipped from said plant in inter-
state commerce directly to customers outside the State of Georgia. The Respondent
admits and I find that at all times material herein is has been engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
International Ladies Garment Workers Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Organization of Respondent's employees; interference, restraint, and coercion
In November 1959, the Union began a campaign to organize Respondent's em-
ployees. A meeting was held at the union hall, and an organizing committee was ap-
pointed from among those employees in attendance. It appears from the record
that the activities of the organizing committee 2 were confined for the most part to
calling at employees' homes in an attempt to get them to sign union authorization
cards. No organizing was done in the Respondent's plant. One member of the com-
mittee, Helen Pittman, testified she handed out some union cards in her car while
it was parked on Respondent's parking lot. Thereafter some four to seven union
meetings were held and on the evening of March 9, 1960, the Union sponsored a
banquet for Respondent's employees at the Waluhaje Apartments in Atlanta. On
March 10, 1960, the Board conducted an election among Respondent's employees
at the plant.
While the Union's organizing campaign was in progress Respondent's president
and owner, Kenneth Jackson, spoke to employees individually and collectively about
IJesse M Sims and Annie B Massey, February 22,1960; Pearlene Glass, February 23,
1960, Arneatha Berry, Mary Carey, Helen Pittman, and Class!(, Roberson, all on March 1,
1960; Annie Long, March 7, 1960; Ila Lake, March 14, 1960; and Louise Collier,
March 17, 1960
2 Jacquelyn Richardson, a member of the organizing committee, whose alleged dis-
criminatory discharge will be taken up fully hereinafter, testified there were 10 employees
on the committee She was able to name only three other employees Some employees
were unaware of an organizing committee
KEN LEE, INC. 1609
the Union. It is the General Counsel's contention that while Jackson was thus en-
gaged he displayed union animus and committed violations of Section 8(a)(1) of
the Act.
Annie Massey, who commenced her employment with Respondent in Febru-
ary 1959, testified without contradiction that Jackson came to her machine while she
was working on or about November 10, 1959, and asked if any of the girls had been
bothering her about this "union thing." When Massey replied that she had not heard
anything about it at all, Jackson remarked that she must have been deaf. About 2
weeks later Jackson inquired how Massey liked her job. She said she liked it.
Thereupon Jackson told her she had better talk to the girls.
Joan Lee started her employment with Respondent in January 1958, and left on
May 2, 1960.3 She did not join the Union nor did she attend any union meetings.
Lee testified that in December 1959, and again in February 1960, Jackson came to her
machine while she was working and inquired if she knew any of the people who had
signed union cards and who was starting "all the mess up about the Union." Jack-
son admitted he asked Lee if she knew anyone in the Union. He explained that Lee
complained to him that she received telephone threats during all hours of the night.
It was in the course of such investigation that he interrogated her regarding the Union
or anyone in the Union who might be making the threatening calls. I do not accept
Jackson's explanation for the interrogation of Lee.
Jacquelyn Richardson commenced her employment with Respondent as a plain
sewer in February 1957. With the inception of union organization in Novem-
ber 1959, she signed a union authorization card and was appointed to the Union's
organizing committee. In this latter capacity she visited the homes of employees and
talked to them about joining the Union. She attended about five union meetings.
Richardson testified that on December 11, 1959, she and employee Evelyn Harper
were called to Jackson's office where he spoke to them in the presence of his wife, his
mother-in-law, Mrs. Hahn, and Supervisor Ruby Hudson. Jackson inquired of Rich-
ardson and Harper whether the information he received that they were the ring-
leaders and were instrumental in organizing the Union in the plant was correct.
Jackson stated he was not going to have a union in his plant and that if the Union was
successful in organizing Respondent's employees, the manufacturers with whom he
had contracts would cancel their contracts, and the employees would lose their jobs.
Jackson also mentioned that he was offered $75,000 to open a plant in Lawrenceville,
Georgia, and before he would have a union in his shop he would close the Atlanta
plant and move there. Richardson's testimony in substance was corroborated by
Harper.
Jackson denied making the statements testified to by Richardson and Harper. He
recalled that,on the morning of December 15, there was a newspaper article in the
Atlanta Constitution concerning the closing of a garment plant in Lawrenceville
which also reported that payroll checks given the employees were bouncing. He
stated that several Respondent employees in the factory were discussing the situa-
tion and brought him into the conversation. He claimed this was the only con-
versation he had with employees concerning the Lawrenceville situation , and he did
not have any knowledge of it prior to December 15. Jackson's demeanor on the wit-
ness stand was not impressive. He was a highly volatile, extremely emotional, un-
cooperative, evasive witness. I do not accept his testimony in this regard and find that
the statements of December 11 attributed to him by Richardson and Harper were
made substantially as testified by them.
Arneatha Berry, a plain sewer in Respondent's employ since February 1959, testi-
fied that in January 1960 she had occasion to talk to Jackson about a loan of some
money to pay for a traffic violation. During their conversation Jackson inquired if
she had signed a union card. Berry denied that she had.4 Jackson said he had been
told she signed a card. Jackson then wanted to know what Berry thought the Union
would do for her, and after some further discussion loaned her $20. Jackson denied
that he asked Berry or any other employee if they signed union cards. I do not accept
his denial.
Virginia Smith, an employee of Respondent from April 1959 until her discharge
in March 1960, testified without contradiction that on a Saturday morning 5 late in
February 1960, while she and employee Martha Davis were at their respective
machines preparing to start work, Jackson asked what they thought about the Union.
Smith replied she "felt the girls there had dropped it." Jackson said "no" and told
$ She was pregnant and left at a doctor's suggestion
Berry testified that she did sign a union authorization card in November 1959
5 The employees worked a 5-day week and came in on Saturday, upon request, when
the plant was busy. -
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith that "they had voted for an election to be held in the plant." Jackson also
told Smith that if the employees voted for the Union to represent them, he would
close the plant and move the machines out.
Annie Long became employed by Respondent in May 1958. She signed a union
authorization card and attended union meetings . Long testified that in February
1960, she and her husband were contemplating buying a house and applied for a
mortgage loan. There was a space on the application concerning the future employ-
ment of the applicant , which the employer was asked to fill out . Long testified that
while she was working at her machine , Jackson came over and remarked that he had
received an inquiry from the mortgage company. He told Long that he would hold
the paper for awhile , because he did not know whether he would sign it, "because it
all depends on how you girls act toward the Union."
Jackson recalled discussing a mortgage with an employee. He testified that his
advice was sought regarding the purchase of a house, the mortgage , etc. He in-
quired about the employee 's ability to maintain a house and opined, "in view of the
circumstances surrounding her salary and her employment and the conditions in the
plant . . . it would be wise for her to wait until we saw how things worked out."
He denied mentioning the Union . Long impressed me as a sincere , honest witness.
Her testimony was straightforward and unequivocal . I credit Long's testimony set
out above.
Classie Roberson , employed by Respondent in February 1959 and laid off on
March 1 , 1960, signed a union authorization card and attended union meetings.
Roberson testified without contradiction that when she went to the plant on March 3,
1960, to get her paycheck Jackson said he was having a lot of trouble because of the
Union and could not get contracts for work. Jackson wanted to know from Rober-
son what she knew about the Union.
Lee testified that about 4:45 p .m., on March 9, 1960, while she was standing out-
side of the plant, waiting to be picked up by her husband , Mrs. Hahn came over and
asked if she wanted to wait in the office . Lee accepted the invitation . Mrs. Jackson
came into the office and in the course of conversation asked Lee to call the Waluhaje
Apartments to find out the time of the union banquet scheduled for that evening.
Lee complied , obtained the information , and told Mrs. Jackson it would start at
7:30 p .m. Jackson then entered the office and after some conversation with his wife
and Mrs. Hahn asked Lee if she would go to the bar at the Waluhaje and report to
him the names of the employees going into the banquet . Jackson gave Lee $10.
Lee found the bar closed and reported this fact to Jackson. He thereupon told her
to go into the banquet if she could . She did . Lee also testified that after she
returned home that evening she had a telephone call from Mrs. Jackson at which
time she gave her the names of the employees she saw there.
Testifying regarding her version of the incident of March 9, Mrs. Jackson stated
she was in the office when Lee came by and asked if she could wait there. She
indicated she was afraid to wait outside because of previous threats made to her.
Mrs. Jackson testified that Jackson was in the office with them when Lee mentioned
the union banquet , said she would like to go and wanted to know if the Jacksons
objected. Mrs. Jackson told Lee she could do as she saw fit, but in view of the past
threats she wondered why Lee would even want to go. Lee then said she would
not go to the banquet, but would go into the bar . Mrs. Jackson loaned Lee $10
in cash because Lee did not have any money . Lee, according to Mrs. Jackson , called
her the following day from a public telephone booth in the Respondent's plant to tell
her that she attended the banquet and "half the belt department was there and
Jeannie Slack." Jackson corroborated Mrs. Jackson 's version . Mrs. Jackson testi-
fied in a contradictory, evasive manner. Her version set forth above is utterly im-
plausible If the Jacksons were so interested in Lee's well -being, particularly in view
of alleged past threats to her, it seems anomalous that they should lend her the
money to attend a function where she would be exposed to further threats and
possible bodily harm . I do not credit Mrs. Jackson 's testimony and find that the
Jacksons requested Lee to attend the banquet and report to them.
Barbara Burke, an employee since August 1058 , testified that on March 10, 1960,
Mrs. Jackson came to her machine and said , "Barbara, I am very surprised at you.
We have been so nice to you, holding your job for you, after you had your baby; and
then you went out and sold your job for a chicken dinner" Mrs. Jackson added
that if the Union came into tl•e plant, Respondent could close down and nothing
could be done about it, because Georgia was a good State
Althoue_h she admitted that she talked with employees about the Union, Mrs.
Jackson denied she made the statement testified to by Burke and stated that upon
instructions she spoke to emniovees only about "normal working" cond itions for 24
hours prior to the election of March 10 . I have heretofore not credited Mrs. Jackson
and do not credit her denial above.
KEN LEE, INC. 1611
Employee Ruth Kelly testified that on March 10, 1960, as she left the plant she
observed a large group of girls standing around, and asked another employee what
happened. Mrs. Jackson who was close by turned to Kelly and said, "Ruth, we know
you're in that Union. We know all of them in it."
Claudia Williams, a presser since May 1959, testified that on March 10, 1960,
Jackson came to the board where she was working and inquired where she thought she
would get a job if the Union came in and the plant was closed down. Jackson then
remarked, "The Union bribed you with a dinner last night, but it won't feed you next
week." Jackson reassured Williams however that as long as the plant was open she
would have a job; he added when the plant closed she would not have a job.
Johnnie Hairston, an employee of Respondent since August 1956, testified that
Jackson came to her machine while she was working on March 10, 1960, and asked
how much she earned a day. Hairston answered, "$14 or $15 a day sometimes."
Jackson remarked that he was surprised at her, noting, "You think I didn't know
you went to that banquet last night? . . . You, of all people, trying to cut me in my
back with a knife, as nice as I have been to you." I do not accept Jackson's denial
that he had no conversation whatsoever with Hairston on March 10.
The General Counsel also contends in his brief that the preponderance of the
evidence demonstrates that Jackson deviated from the text of his prepared speech
given to the employees on December 18, 1959, and made it known that he would not
tolerate the Union in his plant. The testimony of the General Counsel's witnesses
in this regard is conflicting. Viewed in its totality, it appears from such testimony
that the text of the prepared speech, which the General Counsel does not attack as
violative of the Act, was adhered to closely. I credit the testimony of Jackson and
Mrs. Jackson that he read the prepared speech without deviation .6
On the basis of the record as a whole and the testimony of Massey, Lee, Richard-
son, Harper, Berry, Smith, Long, Williams, and Hairston, which I credit, I conclude
and find that Respondent interrogated 7 and threatened 8 its employees and surveilled 0
their union activities, thus interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act, in violation of
Section 8 (a)( I) thereof.
B. The alleged discriminatory layoffs and refusals to recall employees
The complaint as amended at the hearing alleges that Respondent laid off em-
ployees Jesse Sims and Annie Massey on February 22, Pearlene Glass on February 23,
Arneatha Berry, Mary Carey, Helen Pittman, and Classie Roberson on March 1,
Annie Long on March 7, Ila Lake on March 14, and Louise Collier on March 17,
1960,10 and refused thereafter to recall them because of their memberships in and
activities on behalf of the Union and because they engaged in concerted activities
with other employees for the purpose of collective bargaining and other mutual
aid and protection.
The Board and the courts have held that for a finding of discrimination, substantial
evidence must have been adduced (1) to show the employer knew the employee was
engaging in a protected activity, (2) to show that the employee was discharged
because he had engaged in protected activity, and (3) to show that the discharge had
the effect of encouraging or discouraging membership in a labor organization.
The General Counsel in his brief acknowledged that he has the burden of the
issue and contends that knowledge of the union adherence of the discriminatees has
been "conclusively proven by the record." I disagree and find that such conclusion
is not borne out by the record.
In the case of Berry, I have heretofore found that Jackson inquired if she signed
a union card and stated he was told she had signed one. It would be fair to draw the
inference from such interrogation that Respondent had knowledge of Berry's union
membership. Inferences, however, cannot be created where there is no substantial
evidence upon which to base them. See N.L.R.B. v. Kaiser Aluminum & Chemical
"Even though I have not credited Jackson and Mrs. Jackson in several respects above,
"It is no reason for refusing to accept everything that a witness says, because you do not
believe all of It; nothing is more common in all kinds of judicial decisions than to believe
some and not all " N L R B v Universal Camera Corporation, 179 F. 2d 749 (C A. 2).
a Atlas Engine Works, Inc, 129 NLRB 101.
9 R. E. Edwards. d/b/a Edwards Trucking Company, 129 NLRB 385.
9 New Orleans Furniture Manufacturing Company, 129 NLRB 244; Kohler Co, 128
NLRB 1062
10 The General Counsel did not adduce any proof regarding the alleged discriminatory
layoff of Louise Collier. Respondent's motion to dismiss the amended complaint as to her
was granted without objection.
1612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Corp., 217 F. 2d 366 (C.A. 9). While it is true the General Counsel proved that
Pittman and Massey were members of the union organizing committee, it is clear
that organization work was carried on at the homes of employees and no employees
were talked to in the plant. No evidence was adduced by the General Counsel
to show that Respondent's officers or supervisors knew of the organizing committee
or the names of its members. Indeed, alleged discriminatees Glass and Roberson
never heard of the union organizing committee. With respect to the remaining
alleged discriminatees,ll their union activity consisted of signing a union member-
ship card and attending union meetings. The record is barren of any evidence that
Respondent had any knowledge that they attended meetings or signed cards. The
evidence adduced by the General Counsel, in my opinion, is not enough to sup-
port a finding that Respondent had knowledge of the union membership and activi-
ties of the said alleged discriminatees or to create the inference of unlawful dis-
crimination.
Equally important is the fact that the record contains the uncontradicted testi-
mony of Jackson that in or about February and early March 1960, Respondent had
to reduce its work force in connection with its plain sewing operation.12 This I
cannot ignore. In addition, Jackson testified without contradiction that in August
1959 (several months before the inception of union organization) when business
appeared to warrant it, he contacted the Georgia Power Company's Industrial Devel-
opment Division and asked for assistance in locating an additional plant. In De-
cember 1959, Jackson reached an agreement with the Greenville, Georgia,
development committee to begin a pilot operation there, with a view toward con-
structing a new plant if things worked out. In January 1960, Respondent com-
menced its pilot operation in Greenville, hired up to 30 new employees, and began
training them on the plain sewing operations. Jackson testified that in late Feburary
and early March 1960, Respondent lost some customers and business declined to the
point where it appeared to him that Respondent would inevitably be unable to use
all of its employees performing the initial operations of plain sewing. Based on
his experience in the garment industry and upon his contractual commitments to
the city of Greenville, Jackson decided to divide the plain sewing work between
the Atlanta and Greenville plants and lay off some of the more experienced Atlanta
plain sewers,13 and not interrupt the training program at Greenville. Thus, starting
on February 23, Glass was laid off and as work declined Respondent laid off other
plain sewers. The Board and the courts have always held that management is for
management. The Act does not interfere with an employer's right to conduct his
business and in doing so to select and discharge his employees. It proscribes the
exercise of the right to hire and fire only when it is employed as a discriminatory
device. "Union membership or activity does not insulate an employee against the
hazards of unemployment due to lack of work or any other reason related to the
legitimate management of the business. . ... N.L.R.B. v. Jones Sausage Co. &
James Abattoir Co., 257 F. 2d 878 (C.A. 4).
The most that can be said of the General Counsel's case is that the layoffs having
taken place in an aura of antiunion animus during the period when the Union was
attempting to organize the Respondent's employees, there is a suspicion created that
the employees involved were dealt with discriminatorily. But suspicion is not
proof, and a finding of violation of the Act cannot be based on suspicion alone.
Valencia Service Co , 103 NLRB 1190.
With respect to the alleged discrimination that Respondent refused to recall its
laid-off employees, it is undisputed that with the exceptions of Mary Carey and
Annie Massey, all of the said employees were recalled and were working for the
Respondent at the time of the hearing.
Jackson testified that he does not intend to recall Carey because of her age. As
previously noted, Carey never signed a union card and no one in management ever
spoke to her about the Union She did attend the union banquet on March 9.
Even though I have heretofore found that Respondent used employee Lee to engage
in surveillance at the union banquet, the recored merely sets forth that Lee told
Mrs. Jackson who was there, without naming particular employees. I am unable
to find from this evidence that Respondent had knowledge of Carey's union activities
n Mary Carey never signed a union card and testified that no one in management spoke
to her about the Union
is All of the alleged discriminatees were plain sewers
is Jackson claimed that a break in the employment of an experienced operator would
not substantially affect her skill or ability when she returned to work
KEN LEE, INC. 1613
and based thereon discriminatorily refused to recall her . I credit Jackson 's reason
for not recalling Carey, namely, her age.
Annie Massey admittedly fractured her finger on February 22 and was unable to
perform any work until March 16. When she spoke to Jackson that day and told
him she was ready to come back to work, he advised her she had been away so long
he could not wait for her to return and had replaced her with another hemmer.
Jackson testified that Respondent had filled Massey's job with a former employee,
Ina Atkinson. Jackson testified further without contradiction that Atkinson was a
better hemmer and producer than Massey . I have heretofore found that the General
Counsel failed to prove that Respondent had knowledge of Massey 's union member-
ship and activities . Under these circumstances , it follows that the alleged discrim-
inatory refusal to recall Massey does not lie.
Upon the foregoing and the entire record , I find that the General Counsel has
failed to prove by a preponderance of the evidence that the layoffs of Sims, Massey,
Glass, Berry, Carey , Pittman , Roberson, Long, and Lake were discriminatorily
motivated and that Respondent thereafter failed and refused to recall them. I will
hereinafter recommend that the said allegations of the complaint as amended be
dismissed.14
C. The alleged discriminatory discharges
Jacquelyn Richardson started her employment with Respondent in February 1957
as a plain sewer , and when she was discharged in March 1960 she was doing zipper
setting.15 I have heretofore found that Richardson became a union member at the
first meeting , was on the union organizing committee , was interrogated by Jackson
regarding information he had received that she was a "ringleader ," and was instru-
mental in organizing the Union in Respondent 's plant . Based on this evidence, I
find that Respondent had knowledge of Richardson 's union membership and activities.
Richardson testified that when she came to work on March 3, 1960 , she informed
Jackson that she would have to be off on March 4 to attend her uncle's funeral. Jack-
son asked where the funeral was going to be held . Richardson told him and Jackson
said "okay."
Richardson testified further that about 2:30 p .m. on March 3, Supervisor Hudson
asked if she could work a half-day Friday ( March 4). Richardson said "no" and
explained that she had to go to the hairdresser , had several other things to do be-
fore she went to the funeral , and that she definitely could not work . Hudson
said "okay."
Richardson did not come in to the plant on March 4. She testified that about
2:30 p.m. she telephoned the office and told Jackson she needed her paycheck for
the weekend . She asked if she could pick it up on Saturday.is Jackson asked why
shehad not come in to the plant to work a half-day. Richardson replied, "Mr. Jack-
son, you knew that I wasn ' t coming to work today, because I told you and Mrs.
Hudson." After some further conversation , Jackson gave Richardson permission
to get her paycheck Saturday morning.
Richardson obtained her check from Mrs. Hahn and was instructed not to punch
in on the timeclock when she came to work Monday morning until she talked to
Jackson.
Richardson testified that she reported for work Monday morning at 7:45 a.m.,17
waited until about 8:15 a.m., when Jackson passed her on his way out, and said, "I
don't have time to talk to you now. Come back Thursday."
Jackson told Richardson on Thursday ( March 10 ) that he was discharging her
and handed her a separation notice dated March 7, 1960, signed by Julian Hahn,
vice president of Respondent . She has not worked for Respondent since March 3,
1960
Supervisor Hudson testified that on Thursday (March 3) Richardson told her she
had to attend a funeral the next day and asked to be off for the day. Hudson told
Richardson she was needed for a half -day because Respondent was behind in the
14 In arriving at this finding I have considered the testimony adduced by the General
Counsel that Respondent hired new employees in the Atlanta plant while the plain sewers
were in layoff status It is clear from the record that none of the newly hired employees
performed the plain sewing operation.
15 Jackson testified that zipper setting is the most difficult operation in the plant
10 Richardson testified that it was a company rule that if paychecks were not obtained
until 2 30 p m . on Friday , when the checks were disbursed , the employee could not get it
until the Monday of the following week
1V The regular starting hour is 8 a.m
1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
zipper setting operation and asked her to come in to work for the half-day. Rich-
ardson, according to Hudson , said she did not know , she would just try.
Hudson testified further that since she did not receive a definite answer from
Richardson she went to Jackson, explained her need of Richardson for the half-day,
and stated she would release her at noon . Jackson told Hudson to find out exactly
when the funeral was to be held and to give Richardson plenty of time so that
she could attend.
Following out Jackson 's instructions Hudson testified she again talked with
Richardson , asked her about working for a half-day, and inquired what time the
funeral was to be held. Richardson handed her a copy of the funeral notice which
set forth that it was to be held at 3 p .m. Hudson told Richardson she must work
for a half-day, that she was needed when Respondent was behind . Richardson said,
"Well, I just don't know if I can make it."
Hudson testified she went back to Jackson to tell him she could not get a definite
answer from Richardson . Jackson thereupon went with Hudson to speak to Rich-
ardson . Jackson, according to Hudson, told Richardson "that if her uncle was dead,
she knew it in advance , that she could have given us some notice , and we could
have worked some overtime in the afternoon ." He told her Respondent had need
of her services for a half-day and she could be off at noon . Richardson did not reply.
Hudson was asked on direct examination by Respondent's counsel if Richardson
was later discharged . Her answer was, "She came in later, and we sent her back."
When counsel repeated his question , Hudson answered, "We just laid her off. We
didn 't exactly fire her. We send them back when they are late."
On cross-examination Hudson was unable to state with certainty how far behind
the Respondent was in the zipper setting operation . She answered ". . . several
cuts. 1 don 't remember just how many cuts we were behind ." Questioned, when
this condition first came to her notice , she replied , "We had been behind for prac-
tically a week or more."
Jackson testified that when Hudson came to him the second time to advise that
she could not get a satisfactory answer from Richardson , he went with Hudson to
Richardson 's machine and explained , among other things, that Respondent was
behind in zipper setting and that he expected her to work until noon on Friday.
Jackson also testified that on Monday (March 7) he and Hudson discussed the
Richardson incident and they mutually decided to discharge her.
Richardson maintained after vigorous cross-examination that she had permission
from Jackson and Hudson to be off from work on Friday . She denied that Jackson
came to her machine on Thursday afternoon to talk to her about coming to work
for a half-day Friday.
Since Respondent stressed that it insisted that Richardson work a half-day on
Friday because it was behind in zipper setting and this appears to be the underlying-
reason for her discharge , a further discussion of this phase of the record is warranted.
As heretofore noted , Hudson appeared uncertain how far behind Respondent was
in this operation but did state the condition existed for practically a week or more
prior to March 3 . She also testified that Jackson told Richardson in her presence
"that if her uncle was dead , she knew it in advance , that she could have given us
some notice, and we could have worked some overtime in the afternoon ." Respond-
ent's records reveal that no overtime was put in by zipper setters for the weeks.
ending March 4 and 11 . 18 For the week ending March 18 , a total of 131/2 hours
overtime was worked by the zipper setters. During that week the Respondent's
payroll records reveal that zipper setters Harper and Jordan worked a total of 36
hours rather than 80 hours 19 and Hairston 's name does not appear on the payroll,
indicating she did not work that week 29 Thus Respondent lost some 84 man-hours
of zipper setting because of the absences and suspensions and used only 131/2 man
hours of overtime , presumably to make up for the lost time. I am not convinced
from the record or from the testimony of Jackson and Hudson that Respondent was
so far behind in its zipper setting operation during the weeks ending March 4, I1•,
and 18 that the fact that Richardson did not work for a half-day on March 4 was
such a tremendous loss to it. Nor am I convinced that Jackson and Hudson testified
Is I am aware from the testimony that the plant was closed on March 11 because of a
snowstorm in Atlanta However , on the 4 days preceding March 11, none of the zipper
setters worked overtime
10 This is based on a 40-hour workweek.
20 Hudson testified that zipper setters Harper and Hairston were laid off by Respondent
for a short period of time subsequent to March 4 She was unable to recall the precise
date
KEN LEE, INC. 1615
truthfully regarding their conversations with Richardson on March 3. Their testi-
mony was in conflict. On several material matters, Hudson did not testify in a
forthright manner and was evasive, indicating to me more of a concern not to give
answers unfavorable to her employer than to disclose the true facts as she knew
them. On the other hand Richardson impressed me as an honest and sincere wit-
ness. She testified in a calm, assured, and specific manner. Her testimony regard-
ing her conversations with Jackson and Hudson on March 3 was not shaken by a
vigorous cross-examination. I credit Richardson's testimony and find that Richard-
son's absence from work on March 4 was a pretext to discharge her, the real reason
being her union membership and activities.
Rosa Felton became a plain sewer for Respondent in April 1958. When she was
discharged in March 1960 she was a hemmer. Felton signed a union authorization
card, attended all union meetings except one, passed out union cards, attended the
union banquet on March 9, and was the union observer at the Board-conducted
election held in Respondent's plant on March 10, 1960.
After working hours on March 10, 1960, a fight occurred on the parking lot out-
side of the plant. Employees Bernice Johnson and Virginia Smith and a third party,
James Lee (not an employee), appeared to have been the participants in the fight.
Felton testified that on March 10, after 4:30 p.m., she was in the plant dressing
room changing her clothes, when another employee walked in and said there was
a disturbance out front. When Felton finished dressing, she walked out to the front
in the company of employee Baxter. She testified that whatever happened had
already happened, and a group of 45 to 50 girls were standing around talking.
Felton was in the crowd when she observed Jackson talking to James Lee, who was
seated in his car on the parking lot. Felton testified that Jackson walked over to
her and ordered her off his property. Felton asked why he was ordering her off
the property, she was not doing anything but like the other girls standing there
trying to find out what happened. Jackson, according to Felton, repeated his order
and said he would throw her off if she was not off by the time he counted to three.
Felton testified that her sister, Ruth Kelly, told Jackson to leave her alone and she
would get her to move. Felton claimed she then moved to the sidewalk and heard
Jackson tell Lee to "run her over." The next thing she knew the Lee car hit her
left leg, resulting in a bruise which required medical attention.
Felton testified that she returned to the plant Monday (March 14), she was
handed her paycheck by Jackson who at the same time suspended her from further
employment with Respondent. That afternoon Felton swore out a criminal warrant
against Jackson and James Lee for assault and battery.21 Felton received a separa-
tion notice dated March 17 via the mail which set forth that her last day of work
was March 10, and the reason for discharge "fighting and malicious prosecution."
Testifying regarding his version of the Felton incident on March 10, Jackson
stated he was in his office conferring with Attorney Elarbee when his wife came in
and said there was a fight outside. Jackson observed Virginia Smith and James Lee
fighting. He separated them, ordered James Lee into his car, and told some of the
girls there to get Virginia Smith home. Jackson testified the Lee car was in the
parking area backed up against another car, with its front facing the street ready
to drive out. Because of the crowd of people in front of Lee's car, he was unable
to drive it away. Jackson testified that Felton who was standing in the crowd,
walked over and stood in front of the Lee car. Jackson at this time was at the side
of the car near the driver. Jackson testified he told Felton that the fight was over
and she should go home. Felton did not move, said she was a taxpayer, and had
a right to be there. Jackson warned her that the police had already been called
and if she did not leave he would swear out a warrant for her arrest. Felton re-
mained in front of the car. At this time Jackson observed Ruth Kelly pull Felton
away from the front of the car. Jackson testified that just as he told Lee to get
started, Felton pulled away from Kelly and again walked to the front of the car.
Jackson stated he told Lee to gun his motor and perhaps Felton would get out of
the way. When Felton did not move, Jackson instructed Lee to drive his car real
slow in order to get her out of the way. Lee did this and pushed Felton slightly.
Jackson also observed Felton go to the side of the car trying to hit Lee through the
open window with her pocketbook.
Jackson's testimony was corroborated in most respects by Attorney Elarbee and
Mrs. Jackson. In addition, employees Burke and Harper testifying as witnesses
21 This charge was subsequently dismissed.
1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the General Counsel admitted on cross-examination that they observed Felton
in front of the Lee car when Jackson told her to move. I credit Jackson's testimony
regarding the Felton incident on March 10.
I do not accept the General Counsel's contention set forth in his brief that
Felton's discharge was but another pretext by Respondent to rid itself of a known
union adherent. I find that the General Counsel has not sustained his burden of
proving that Felton was discharged discriminatorily in violation of the Act, and
conclude that there was cause for Felton's discharge. I will hereinafter recommend
that the said allegation of the amended complaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of 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 com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices affecting
commerce, it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Having found that Respondent has discriminated in regard to the hire and tenure
of employment of Jacquelyn Richardson in violation of - Section 8(a)(3) of the
Act it will be recommended that Respondent offer her immediate and full rein-
statement to her former or substantially equivalent position, without prejudice to
her seniority or other rights or privileges, and make her whole for any loss of pay
suffered by reason of the discrimination against her by paying her a sum of money
equal to that which she could have earned in the employ of Respondent from the
date of her discharge to the date of Respondent's offer of reinstatement, less her net
earnings elsewhere, in accordance with the formula established by the Board in
F. W. Woolworth Company, 90 NLRB 289.
It has also been found that the Respondent by engaging in surveillance and by
means of interrogation and threats interfered with, coerced, and intimidated the
employees from exercising their rights under the Act. By the seriousness of the
unfair labor practices thus engaged in, the Respondent has revealed such a funda-
mental antipathy to the objectives of the Act as to justify the inference that the
commission of other unfair labor practices may be anticipated in the future and it
will be recommended therefore that Respondent be ordered to cease and desist
from in any manner interfering with, restraining, or coercing its employees in the
exercise of the rights guaranteed by the Act.
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. International Ladies Garment Workers Union is a labor organization within
the meaning of Section 2(5) of the Act.
2. Ken Lee, Inc., is, and has been at all times material herein, engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
3. By discharging employee Jacquelyn Richardson, thereby discriminating in
regard to her hire and tenure of employment and discouraging union activities among
its employees, the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (3) and (1) of the Act
4. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(1) of
the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent did not commit unfair labor practices by discharging Rosa
Felton and by laying off and thereafter failing and refusing to recall employees
Arneatha Berry, Mary Carey, Pearlene Glass, Ila Lake, Annie Long, Helen Pittman,
Classie Roberson, Jesse Sims, Annie Massey, and Louise Collier.
[Recommendations omitted from publication.]