Kunja Knitting Mills U.S.A.

National Labor Relations Board - Board Decisions

Apr 15, 1991

302 N.L.R.B. 545 (N.L.R.B. 1991)

545
302 NLRB No. 88
KUNJA KNITTING MILLS U.S.A.
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
2 We do not rely on the judge’s finding that Lester Smith’s discharge was
inherently destructive of employee rights.
3 All dates are in 1988.
4 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983).
Kunja Knitting Mills U.S.A., Inc. and International
Ladies’ Garment Workers’ Union, AFL–CIO.
Cases 11–CA–13055, 11–CA–13276, 11–CA–
13364, and 11–CA–13458
April 15, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On May 31, 1990, Administrative Law Judge Low-
ell Goerlich issued the attached decision. The Re-
spondent and the General Counsel filed exceptions and
supporting briefs, and the Charging Party filed an an-
swering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs, and has
decided to adopt the judge’s rulings, findings,1 and
conclusions as modified and to adopt the judge’s rec-
ommended Order as modified and set forth in full
below.
We agree with the judge’s findings that the Re-
spondent violated Section 8(a)(1) of the Act as set
forth in his decision, violated Section 8(a)(3) and (1)
of the Act by discharging Chyrel Burroughs, Michael
Moody, Steven Anthony Smith, and Gena Hemingway,
and violated Section 8(a)(4) and (1) by discharging
Margaret Gail Rogers. We agree with the judge’s find-
ing that the Respondent violated Section 8(a)(1)2 by
discharging and disciplining Lester Smith, but we find
it unnecessary to pass on his finding that Smith’s dis-
charge and discipline also violated Section 8(a)(4) be-
cause the remedy would be the same in any event.
The judge failed to make findings and conclusions
on several allegations of the complaint, although he
did fully set forth the relevant facts. He also failed to
order the Respondent to expunge from its files any ref-
erence to the unlawful discipline of Lester Smith. We
shall address these complaint allegations and include
the expunction language.
1. The complaint alleges that Supervisor Wallace
Brown threatened an employee with discharge because
of his union activity. The credited evidence as set forth
by the judge shows that Brown called Steven Smith on
October 20, 1988,3 after Smith had been terminated
and told Smith that, in his opinion, Smith and the other
discriminatees had been fired for their union activity.
Although this statement does not establish that Smith
was in fact threatened with termination, it does estab-
lish that Brown informed him that he had been fired
for his union activity. This is a minor variance be-
tween the complaint allegation and the proof, and the
issue has been fully litigated. Therefore, we find that
the Respondent violated Section 8(a)(1) by informing
Smith that he had been fired for his union activity.
2. The complaint alleges that the Respondent created
the impression that its employees’ union activities
were under surveillance. According to the credited tes-
timony, Gena Hemingway was called into General
Manager Park’s office and accused of ‘‘taking names
to get a Union started.’’ We find that by this conduct
the Respondent created the impression that the union
activities of certain employees were under surveillance
and violated Section 8(a)(1) of the Act.
3. The complaint alleges that the Respondent threat-
ened its employees with plant relocation in order to
discourage union organization. The judge credited the
testimony of Michael Moody that on September 15,
Supervisors Bill Wong (Hwang) and Turberville both
told him that before the Company would let a union
come in, it would close down and relocate. The judge
found that the Respondent unlawfully threatened the
employees with plant closure, but made no finding re-
garding the threat to relocate the plant. We find that
the threat to relocate also violated Section 8(a)(1).
4. In Wright Line4 the Board established that if the
General Counsel makes a prima facie showing that
protected activity was a ‘‘motivating factor’’ in the
employer’s decision to take disciplinary action, the
burden shifts to the employer to demonstrate that the
action would have taken place even in the absence of
the protected activity.
The complaint alleges that the written warnings
issued to discriminatees Michael Moody on September
15; Gena Hemingway on September 3, 17, and 24;
Steven Smith on September 3 and 27 and October 5;
and Chyrel Burroughs on September 17 violated Sec-
tion 8(a)(3) and (1) under Wright Line. The judge
found extensive antiunion animus on the part of the
Respondent and fully set forth the credited evidence
relevant to these allegations, but failed to address the
allegations themselves. We shall do so below.
Michael Moody signed an authorization card, was a
member of the ‘‘in-plant’’ organizing committee, and
talked about the Union on break. He was a good pro-
ducer, and three times had received a bonus for perfect
attendance.
On September 15, Supervisors Bill Wong and Kevin
Turberville separately had conversations with Moody
546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in which they told him that the Company would close
and relocate the plant if the Union came in. Wong also
asked Moody if he was ‘‘part of the Union.’’ We have
already concluded that these conversations violated
Section 8(a)(1). Later the same day, Moody was given
a warning for being out of his work area. In prepara-
tion for ending his shift, Moody had stepped 10 feet
away from his work station to get an airhose to clean
his machine. Moody pointed out several other employ-
ees who were away from their stations, and he refused
to sign the warning. There were not enough airhoses
for each operator and it was common practice for em-
ployees to move about to obtain hoses and other clean-
ing supplies.
The judge found that Moody was an active union
adherent. No evidence was presented that other em-
ployees had been warned in such circumstances, and
none of the other employees pointed out at the time by
Moody were warned.
From all the circumstances, including Moody’s open
support for the Union and the unlawful interrogation
and threat occurring shortly before the warning, we
find that the Respondent had knowledge of his union
activity at the time of the warning. We further find
that Moody was disparately treated because he was the
only employee given a warning, even though others
were out of their work areas. Based on the foregoing
and the judge’s animus finding, we conclude that the
General Counsel established a prima facie case that
Moody’s union activity was a motivating factor behind
the warning. We also find that the Respondent has not
established that Moody would have been warned in the
absence of his union activity.
Gena Hemingway signed a union card, talked about
the Union to about 12 employees during breaks, and
obtained the signature of a fellow employee who rode
with her. She was consistently a high producer and re-
ceived a congratulatory letter for 100-percent produc-
tion during one period. On September 3, she received
a warning for extending her break beyond the allotted
time.
Employees received two 10-minute breaks and a 20-
minute break for lunch. Supervisors could give permis-
sion to combine breaks. On this occasion, Hemingway,
Steven Smith, and Lester Smith received permission to
combine their breaks. Hemingway testified that she
carefully noticed the time and that she was not late re-
turning from her combined break.
Combining breaks was a common practice, and there
is no evidence that the Respondent asked Heming-
way’s supervisor whether he had given permission for
her to combine her breaks. The Respondent’s animus
has been demonstrated. Based on Hemingway’s open
support and solicitation for the Union, and the cir-
cumstances surrounding this warning including the evi-
dence that combining breaks was an established prac-
tice and the Respondent’s failure to investigate the al-
leged infraction, we infer that the Respondent had
knowledge of Hemingway’s union activity. Therefore,
we find that the General Counsel established a prima
facie case that the September 3 warning was
discriminatorily motivated, and that the Respondent
has not successfully demonstrated that Hemingway
would have received this warning in the absence of her
union activity.
On September 17, Hemingway was given another
warning, allegedly because she was ‘‘taking names to
start a towel club.’’ A towel club was a sort of lottery
in which the prize was a towel. Supervisors partici-
pated in the towel clubs, and they were not uncommon
in the plant. Supervisor Annette Edwards admitted that
she had solicited names for a towel club, that the Re-
spondent was aware of these activities, and that she
had never been warned.
Later that day Hemingway was called into Park’s of-
fice, and informed that the Respondent actually sus-
pected her of taking names for the Union. Supervisor
Edwards was present and confirmed that she had told
Park that Hemingway was taking names to get a union
started. Based on the Respondent’s virtual admission
that the warning was issued because of Hemingway’s
union activity, we find that the September 17 warning
was discriminatory.
On September 24, Hemingway was given another
warning for failure to keep a ‘‘good eye on her ma-
chine’’ and for staying too long on her break—ap-
proximately 35 minutes. Hemingway refused to sign
the warning because her supervisor was responsible for
her machines while she was on break. The judge cred-
ited her testimony that other employees were on break
for the same length of time, but that she was the only
one warned. We find that Hemingway was disparately
treated and, therefore, that the General Counsel has es-
tablished a prima facie case of discrimination. We fur-
ther find that the Respondent has not met its burden
of proving that Hemingway would have been warned
in the absence of her union activity.
Steven Smith was on the in-plant organizing commit-
tee and signed and solicited cards. He was Gena Hem-
ingway’s boyfriend.
On September 3, he was on break with Gena Hem-
ingway and he was warned for overstaying his break
in the same incident that she was discriminatorily
warned. Based on his active and open support for the
Union and his association with Gena Hemingway and
the other circumstances of this case, including the
strong evidence of antiunion animus and the judge’s
finding of general knowledge of union activity, we
find that the Respondent had knowledge of Smith’s
union activity. We find that the September 3 warning
was discriminatory for the reasons noted above con-
cerning Hemingway’s warning.
547KUNJA KNITTING MILLS U.S.A.
On September 27, Smith was warned for leaving the
work floor without permission. Smith often painted
posters for people. The judge credited his testimony
that he received permission from Supervisors Edwards
and Sam to clock out long enough to do a poster for
someone. He did the poster in the canteen and Ed-
wards signed him out. Smith was away from his job
from 3:15 to 5 a.m.; he then worked until 8 a.m. Ed-
wards gave him a warning anyway.
Because Smith was warned even after he received
permission to clock out, we find that the General
Counsel has established a strong prima facie case that
the September 27 warning was really because of his
union activity, and that the Respondent has not estab-
lished that he would have been warned in the absence
of his union activity.
On October 5, Smith was warned for placing the
wrong side of production tickets on his production
sheet. Smith protested that he was following the in-
structions he had been given. He was told that, if he
did not sign the warning, he would not be paid. The
alleged mistake involved 8 out of 50 tickets, and no
product was improperly priced or marked. Later that
same day, Smith was terminated for having too many
warnings.
Based on all the circumstances, including the incon-
sequential nature of Smith’s alleged infraction and the
other unlawful warnings he received in September, we
find that the General Counsel has established a prima
facie case that the October 5 warning was discrimina-
tory. We further find that the Respondent has not prov-
en that he would have been warned in the absence of
his union activity.
Chyrel Burroughs signed a union card and talked to
various people in the canteen and on her breaks about
the Union. Three or four people would participate in
these conversations. She was told by Supervisor Suggs
that he regarded her as a loyal and good worker, and
that he had no trouble with her on the floor.
On September 19, she was given a written warning
for ‘‘taking names for other reasons than what her job
required on the floor during working hours.’’ Bur-
roughs had solicited names for a towel club. However,
Supervisor Suggs told Burroughs that Park thought that
Burroughs was securing names for the Union. Park
called Burroughs into his office and she explained
what had occurred. Park replied that soliciting for the
towel club was permissible so long as it was not when
the employees were working. Although Burroughs
thought the incident was concluded, Suggs presented
her with a warning the next day, stating that he was
acting on Park’s instructions.
The record shows that the Respondent associated the
towel club with union activity. As discussed above,
just 2 days earlier, when employee Hemingway re-
ceived an unlawful warning allegedly for ‘‘taking
names to start a towel club,’’ the Respondent actually
suspected her of taking names for the Union. Similarly,
with respect to Burroughs, Park, who was responsible
for the issuance of the warning, believed that she was
really soliciting names for the Union. Accordingly, we
find that the General Counsel established a prima facie
case that Burroughs’ September 19 warning was moti-
vated by the Respondent’s belief that she was engaging
in union activity. We further find that the Respondent
has not shown that Burroughs would have been warned
in the absence of her suspected union activity.
Accordingly, we conclude that the eight written
warnings given to Moody, Hemingway, Smith, and
Burroughs, discussed above, all violated Section
8(a)(3) and (l) of the Act.
AMENDED CONCLUSIONS OF LAW
1. Respondent Kunja Knitting Mills U.S.A., Inc. is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. International Ladies’ Garment Workers’ Union,
AFL–CIO is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act
by the following acts and conduct.
(a) Threatening employees that if the Union came in
it would close and/or relocate its plant.
(b) Interrogating employees about their union sym-
pathies and those of other employees and asking them
which employees signed union cards or are involved
with the Union.
(c) Soliciting employees to report on the union ac-
tivities of other employees.
(d) Informing employees that they were terminated
for their union activities.
(e) Representing to employees that if the Union
came into the plant they would lose their jobs.
(f) Creating the impression that employees’ union
activities were under surveillance.
4. By disciplining and discharging Supervisor Lester
Smith because he gave testimony at a Board proceed-
ing, the Respondent has violated Section 8(a)(1) of the
Act.
5. By disciplining and discharging Chyrel Bur-
roughs, Michael Moody, Steven Anthony Smith, and
Gena Hemingway, the Respondent has violated Section
8(a)(3) and (1) of the Act.
6. By discharging Margaret Gail Rogers because she
gave testimony in a Board proceeding, the Respondent
has violated Section 8(a)(4) and (1) of the Act.
AMENDED REMEDY
We shall order that the Respondent remove from its
files any reference to the unlawful warnings and dis-
charges of Chyrel Burroughs, Michael Moody, Steven
548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If this 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
Anthony Smith, Gena Hemingway, Margaret Gail Rog-
ers, and Lester Smith and notify them in writing that
this has been done and that the discharges and warn-
ings will not be used against them in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, Kunja Knitting Mills U.S.A., Inc.,
Mullins, South Carolina, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Threatening employees that if the Union came in
it would close and/or relocate its plant.
(b) Interrogating employees about their union sym-
pathies and those of other employees and asking them
which employees signed union cards or are involved
with the Union.
(c) Soliciting employees to report on the union ac-
tivities of other employees.
(d) Informing employees that they were terminated
for their union activities.
(e) Representing to employees that if the Union
came into the plant they would lose their jobs.
(f) Creating the impression that employees’ union
activities are under surveillance.
(g) Disciplining and discharging supervisors because
they give testimony at a Board proceeding.
(h) Disciplining and discharging employees because
of their union activities.
(i) Discharging employees because they give testi-
mony at a Board proceeding.
(j) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Chyrel Burroughs, Michael Moody, Steven
Anthony Smith, Gena Hemingway, Margaret Gail Rog-
ers, and Lester Smith immediate and full reinstatement
to their former positions or, if those positions no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges they may have previously enjoyed and make
them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them,
in the manner set forth in the remedy section of this
decision.
(b) Remove from its files any reference to the un-
lawful warnings and discharges, refrain from using
these warnings or discharges or any related matters as
a basis for future disciplinary action, and notify the
employees in writing that this has been done and that
the warnings and discharges will not be used against
them in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its facility in Mullins, South Carolina,
copies of the attached notice marked ‘‘Appendix.’’5
Copies of the notice, on forms provided by the Re-
gional Director for Region 11, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten employees that if the Union
came in we would close and/or relocate the plant.
WE WILL NOT interrogate employees about their
union sympathies and those of other employees and
WE WILL NOT ask them which employees signed union
cards or are involved with the Union.
WE WILL NOT solicit employees to report on the
union activities of other employees.
WE WILL NOT inform employees that they were dis-
charged for their union activities.
WE WILL NOT represent to employees that if the
Union came into the plant the employees would lose
their jobs.
WE WILL NOT create the impression that employees’
union activities are under surveillance.
549KUNJA KNITTING MILLS U.S.A.
1 The facts found are based on the record as a whole and the observation
of the witnesses. The credibility resolutions have been derived from a review
of the entire testimonial record and exhibits, with due regard for the logic of
probability, the demeanor of the witnesses, and the teachings of NLRB v. Wal-
ton Mfg. Co., 369 U.S. 404, 408 (1962). As to those witnesses testifying in
contradiction of the findings, their testimonies have been discredited either as
having been in conflict with the testimonies of credible witnesses or because
the testimony was in and of itself incredible and unworthy of belief. All testi-
mony has been reviewed and weighed in the light of the entire record. No
testimony has been pretermitted.
2 Park was ‘‘responsible for all over plant operations.’’ He commenced work
July 1, 1988.
WE WILL NOT discipline or discharge supervisors be-
cause they give testimony at a Board proceeding.
WE WILL NOT discipline or discharge employees be-
cause of their union activities.
WE WILL NOT discharge employees because they
give testimony at a Board proceeding.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Chyrel Burroughs, Michael Moody,
Steven Anthony Smith, Gena Hemingway, Lester
Smith, and Margaret Gail Rogers immediate and full
reinstatement to their former positions or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
or privileges previously enjoyed and
WE WILL make them whole for any loss of pay and
other benefits which they may have suffered by reason
of the discrimination against them, with interest.
WE WILL remove from our files any reference to
their unlawful warnings and discharges, refrain from
using those warnings or discharges or any related mat-
ters as a basis for future disciplinary action, and notify
them in writing that his has been done and that the
warnings and discharges will not be used against them
in any way.
KUNJA KNITTING MILLS U.S.A., INC.
Paris Favors, Esq., for the General Counsel.
Richard J. Morgan, Esq. and Margaret Bumgardner Dubose,
Esq., of Columbia, South Carolina, for the Respondent in
Cases 11–CA–13055 and 11–CA–13276.
Mark W. Buyck III, Esq. and Reynolds Williams, Esq., of
Florence, South Carolina, for the Respondent in Cases 11–
CA–13364 and 11–CA–13458.
James R. Goldberg, Esq. and James Haigler, of Atlanta,
Georgia, for the Union.
DECISION
STATEMENT OF THE CASE
Cases 11–CA–13055 and 11–CA–13276
LOWELL GOERLICH, Administrative Law Judge. The
charge in Case 11–CA–13055 filed by the International La-
dies’ Garment Workers’ Union, AFL–CIO (the Union) on
November 14, 1988, was served on Kunja Knitting Mills
U.S.A., Inc. (the Respondent) on November 15, 1988. An
amended charge filed by the Union, in Case 11–CA–13055
on December 5, 1988, was served on the Respondent on De-
cember 5, 1988. The charge in Case 11–CA–13276 filed by
the Union on April 12, 1989, was served on the Respondent
on the same date. An order consolidating cases, consolidated
complaint and notice of hearing was issued on May 10,
1989. In the complaint, among other things, it was alleged
that the Respondent had engaged in the violation of Section
8(a)(1) and (3) of the National Labor Relations Act (the
Act).
The Respondent filed timely answers denying that it had
committed the unfair labor practices alleged.
The matter came on for hearing at Mullins, South Caro-
lina, on May 24–26 and June 29–30, 1989. Each party was
afforded a full opportunity to be heard; to call, examine, and
cross-examine witnesses; to argue orally on the record; to
submit proposed findings of fact and conclusions of law; and
to file briefs. All briefs have been carefully considered.
FINDINGS OF FACT,1 CONCLUSIONS, AND REASONS
THEREFOR
I. THE BUSINESS OF THE RESPONDENT
Respondent is now, and has been at all times material, a
corporation licensed to do business in the State of South
Carolina with a factory located in Mullins, South Carolina,
where it is engaged in the manufacture and sale of sweaters.
During the past 12 months, which period is representative
of all times material, Respondent received at its Mullins,
South Carolina factory, goods and raw materials valued in
excess of $50,000 directly from points outside the State of
South Carolina.
During the past 12 months, which period is representative
of all times material, Respondent shipped from its factory in
Mullins, South Carolina, products valued in excess of
$50,000 directly to points outside the State of South Caro-
lina.
Respondent is now, and has been at all times material, an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
First: According to Yong S. Park, general manager,2 H. J.
Ahn, a Korean, is the ‘‘single owner’’ of the Respondent.
His office is in Seoul, Korea. He manages the plant by tele-
phone and telefax. Park testified that ‘‘[n]ot only [did he re-
port the] union campaign, but everything that has been going
on in the plant that [he] should report to him.’’ Ahn con-
trolled the Company completely and directed everything.
The plant is an entirely new installation from the ground
up. It is presently populated by around 500 employees, some
of whom are Korean technicians and other classifications.
The Respondent’s initial investment was $20 million. The
Respondent moved into the building in the second week of
January 1988 where it has since continued to knit sweaters,
its only product.
550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 According to Cone, ‘‘My job was to get it up and running efficiently and
profitable with on time deliveries. I had a Korean counterpart, K. W. Kim,
executive vice-president, Mr. Ahn put in, in December.’’
4 Park was hired ‘‘to come in and help with the communications link be-
tween the Korean and the Americans.’’ Park was fluent in the English and
Korean languages. He was a graduate of Syracuse University and had been
in the United States for 16 or 17 years. At the time Park was hired he was
a reporter for the American Religious News Agency. He had had no prior in-
dustrial experience.
5 Park testified that the break-even point was reached in March 1989.
6 Technicians are conceded to be supervisors.
7 Park testified, ‘‘I don’t even know what union is.’’
Edward Albert Cone was employed by Ahn to organize
the Company and to get the plant in production. From April
1987 until early January 1988, Cone, among other things, de-
veloped a business plan, identified and then negotiated with
local community officials for a site location, worked with the
South Carolina special schools to develop a training program,
and planned for and supervised all aspects of the construction
of the manufacturing facility. In Cone’s words regarding the
business and facility:
We started in August and it had to be operating in Jan-
uary. We’re talking about four or five months from a
soy bean field to an operating factory.
Cone was vice president; he was the top U.S. manager.3
Cone possessed excellent qualifications for the venture and
even though he faced many difficulties (a major one was
training employees) he set up the plant and put the plant into
operation, producing sweaters. Nevertheless, Cone’s efforts
did not please Ahn. Ahn showed up in March 1988 and
stayed 3 weeks. He was angry ‘‘because the factory had not
progressed as fast as he imagined it to.’’ He directed Cone
to fire some of the U.S. staff which he did, eliminating al-
most all the American managers. Cone testified ‘‘It was [an]
extremely difficult situation because at that point in time I
had [a] Korean management team out there managing every-
thing. Communications were difficult.’’4
Ahn reminded Cone constantly that he would shut the
plant down if it didn’t operate profitably. By May 1988 ac-
cording to Cone the plant was ‘‘approaching [a] level on a
monthly basis of profitability or break even,5 but we’d lost
a lot of money. About two million dollars up to that point.’’
Cone testified that it appeared that Ahn ‘‘was ready to close
the plant at the drop of a hat.’’ In the fall of 1988 Ahn told
Cone that ‘‘he was going to close the factory if we were late
and we lost anymore money.’’ Ahn even ‘‘insinuated’’ that
he would fire Cone. Ahn was ‘‘extremely angry.’’ Cone had
a ‘‘tough job keeping lids on things.’’ Cone finally left by
‘‘mutual agreement’’ in December 1988. In Cone’s words:
Let me be honest with you. I had a rough year and
there were a lot of communications situations between
Mr. Ahn and I that I didn’t like. And, to be very frank
with you, I had attracted that business and I felt a tre-
mendous responsibility to Mr. Ahn, to the four hundred
and fifty employees and to the state and county officials
to make that business successful. I had a very rough
time and I was operating under extremely difficult cir-
cumstances. And, I didn’t appreciate, in all cases, Mr.
Ahn’s assessment of what I was doing and what was
happening. It was a situation that I wasn’t going to con-
tinue staying with–—
Mr. Ahn is a very business oriented, very critical in-
dividual. He has got very high standards and it’s very
difficult to meet those. Under the circumstances my, the
relationship in July got to a point where I made a deci-
sion I wasn’t going to continue it and I told him . . . .
I didn’t feel I wanted to stay involved with the Com-
pany.
Mr. Ahn was critical to me and everybody. It wasn’t
as personal as that as it was a situation and through the
course of July to December we were breaking the rela-
tionship down.
In July it was a rough situation. I was afraid that if
I left because I was involved in so many things and it
was not organized to the point that I felt it would run
properly. And, Mr. Ahn discussed that at some point in
time when it was more stabilized and at the end of the
year, like in December, with some of the things we had
done, it was more stable. I felt comfortable leaving. I
think Mr. Ahn felt comfortable that I could leave. It
was chemistry.
I can’t say I would have been fired. I don’t know.
Possible.
Second: The Union held an organizational meeting at a
local union hall on May 13, 1988, and commenced an orga-
nizational campaign. Annette Edwards, a technician assist-
ant,6 testified that James Haigler, a union representative,
came to her home in August 1988 and asked her to think
about joining the union. She responded that she was part of
management.
Technician Wallace L. Brown, prior to November 1988,
while a knitter, signed a union card.
Kevin Stafford Turberville, a technician, testified that in
September 1988 he learned of the Union through ‘‘specula-
tion and rumor’’ when he overheard employees talking about
the Union during breaktime.
Park testified that he heard for the first time about the
Union in late September 1988.7
Cone claimed he had no knowledge of the Union’s at-
tempted organizational campaign although he said he had
hints of the Union as early as May, but actually learned of
the union campaign when ‘‘we got handbilled’’ in November
1988. On cross-examination Cone testified that before the
handbill distribution employees had asked whether they had
to join the Union and one employee told him that ‘‘some-
body had visited their house.’’ Occasionally an employee
would say ‘‘[T]he Union man went by my house last night.’’
Such comments could have been as early as April or May
1988. In any event Cone called the employees together on
May 10, 11, and 12, and among other things, ‘‘gave them
a general session on labor unions’’ and the Company’s atti-
tude toward labor unions. He said, ‘‘[W]e didn’t want a
Union and we didn’t think it was necessary.’’ ‘‘[W]e’d do
everything legally to keep the Union out.’’ ‘‘[T]hey didn’t
have to sign union cards.’’
According to Cone, Ahn had made it clear even before he
came into the United States that he didn’t want a union. It
was on the tip of Ahn’s tongue that he would close the plant
if the Union came in. Park was more explicit, he testified
that he knew Ahn would close the plant ‘‘if they came in.’’
Wallace L. Brown, technician assistant, testified that Park
had ‘‘informed us that the owner had a bad experience with
551KUNJA KNITTING MILLS U.S.A.
8 My observation of Rogers was that she was an extremely credible witness.
9 Suggs described the towel club: ‘‘That’s when operators get together and
they all put their name in one pot and at the end of the week they would
pick one name. The person [sic] name that was pulled would receive towels
from everyone else.’’
the union. That he really didn’t like unions’’ and that it was
‘‘a possibility’’ ‘‘that Ahn would close the plant if the union
came in.’’
Patricia Combs, a supervisor leadperson, testified that at a
meeting of supervisors, supervisor leadpersons, team leaders,
and technicians, Park told the group that ‘‘the owner would
shut the plant down if the union came in. He . . . asked us
to go out and find out anything we could and tell him.’’ The
meeting occurred January 16, 1989. At a prior small super-
visors’ meeting the ‘‘Friday before’’ Park asked ‘‘if any of
us had ever been associated with the union, what it would
take to get a union in . . . what could we do to keep the
union out.’’
Margaret Rogers,8 a knitter, testified that Cone told a
group of employees in the summer of 1988 ‘‘the company
didn’t want a Union and if a Union came they would prob-
ably shut the plant.’’
Sometime in August or September 1988, Rogers went to
see Park about a problem with her production. Among other
things, at this meeting, Park inquired, ‘‘Have you heard any-
thing about the Union?’’ She replied, ‘‘One of the guys came
by my house and I spoke with him,’’ after which Park asked
her about what she thought about the Union. After her reply
Park said, ‘‘if anybody harasses you about the Union on the
job feel free to come to me.’’ Park further remarked, ‘‘We
don’t want a union at Kunja. We don’t need a Union.’’ Park
concluded, ‘‘Well, if you ever hear anything about the Union
you let me know?’’ On another occasion Park asked Rogers
whether she had heard anything, Rogers answered, ‘‘Yes, the
talk about Union is very strong in the plant.’’ Park also
asked whether she had signed a union card. Rogers answered
she had not signed a union card. Park added ‘‘unions are or-
ganizations that’s [sic] just out to take people’s money . . .
and you don’t want to get involved in that.’’
Rogers testified that among other things she asked Cone
why a ‘‘lot of people are quitting’’ and ‘‘a lot of people’’
are being fired for ‘‘penny-anny things [sic].’’ Cone re-
sponded, ‘‘Well, Margaret . . . [W]e can’t have people influ-
encing other people.’’
In February 1989 Park published in the Kunja USA News
an answer to the rhetorical question ‘‘Could we survive
. . . . Yes, we can. But only when there is no[t] major inter-
nal or external factors including a union that hamper[s] our
concentration on production.’’ (G.C. Exh. 3, emphasis
added.)
On January 25, 1989, Ahn sent a facsimile transmission to
W. S. Lee and Park, which was distributed to managerial
employee, a part of which read:
1. Union
Glad to hear that they dropped their petition. Thanks
so much for your hard effort. In fact, all the people at
Kunja USA saved their jobs because the percentage of
plant shut down was 100% had worse come to worst
. . . . I agree with you that you should always be alert-
ed.
Many thanks again.
Gail Causey, who had been a lead supervisor for the Re-
spondent, testified that at a meeting of team leaders and su-
pervisors on January 16, 1989, Park said that ‘‘if the Union
came into the Kunja Company that it would be closed.’’ Park
also said that ‘‘he would like for us to go out and find out
what we could and report back to him. He promised us better
benefits and more money.’’ Park testified that he heard the
‘‘Union is in town . . . he’s trying to get employees to sign
the card’’ and that he heard ‘‘Union cards were being passed
out at the plant.’’
Third: Chyrel Burroughs commenced working for the Re-
spondent on December 4, 1987, as a knitting operator. She
was trained for approximately 3 months at Mullins/Marion
Vocational Center before she started working at the plant.
She worked on the swing shift, ‘‘[r]otating, first, second and
third.’’
Burroughs signed a union card in June 1988. She ‘‘talked
to various people about the union in the canteen and on [her]
breaks.’’ Three or four employees would participate in these
conversations.
On September 8, 1988, Burroughs was given a written
warning concerning absences. The warning was given to
Burroughs even though she maintained that she had been ex-
cused by her supervisor to attend surgery on her daughter.
On September 19, 1988, Burroughs received a second
warning. Edwin David Suggs, a technician, charged Bur-
roughs with ‘‘taking names for other reasons than what her
job [required] (2nd warning will be a termination) on the
floor during working hours.’’ (G.C. Exh. 15.) Burroughs re-
fused to accept the warning notice. Apparently ‘‘taking
names’’ referred to a towel club list of employees’ names.
From this list a name of an employee was chosen. The cho-
sen one received a towel from the other persons whose
names appeared on the list.9 Many employees including su-
pervisors participated in the towel club. Burroughs had solic-
ited names for the towel club. Suggs told Burroughs that
Park thought that she was securing names for the Union al-
though Suggs had told him that the list was not of union
names. Suggs also told Burroughs that he told Park that she
was ‘‘a loyal and a good worked [sic], and that he didn’t
have any problems with [her] on the floor.’’ Park called Bur-
roughs into his office. Burroughs explained what had oc-
curred. Park replied that as long as the towel club’s activities
occurred when employees were not working it was okay. Al-
though Burroughs thought the incident was concluded, the
next day Burroughs received a warning. Suggs, in presenting
the warning to her, said, ‘‘I’ve got to give you this warning
. . . it’s nothing that I can do about it. Mr. Park was making
him give me this warning.’’ Burroughs refused the warning.
Later Suggs said to Burroughs ‘‘I hope you’re not made [sic]
with me because it’s not [my] fault.’’
Suggs testified that Burroughs was away from her job 40
minutes obtaining towel club names whereupon he wrote the
warning and gave it to Park. The warning made no reference
to the 40-minute time lapse.
Burroughs received another warning on September 20,
1988. It involved material she ran that was allegedly too
short. The warning notice, among other things, had written
on it ‘‘(Final warning) . . . . She must be careful to check
552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Employees from time to time were required to check the materials run-
ning from the machines in order to verify the length.
11 A question has been raised as to whether Hwang was familiar enough
with the English language to have said ‘‘before the company let a union come
in they would close and relocate.’’ However, it would appear if Hwang could
have put in English the foregoing statement which he testified that he did, he
certainly would have been able to put into English the ‘‘close shop’’ state-
ment.
length and weight of panels, or she can be terminated.’’10
(G.C. Exh. 16.)
Burroughs maintained that the fault was in the way the
machine was set and not in the operator. Burroughs testified
that the warning offered in evidence was not shown to her.
The warning discloses the statement ‘‘Refused to Sign.’’ Ac-
cording to Burroughs, Suggs showed her some short panels
but these were not her panels because they did not have her
ticket number on them.
According to Burroughs she spoke to Cone about her
warning and Cone spoke to Suggs and ‘‘told him to take
away the warning and do away with it, and don’t give me
that warning.’’
When Burroughs appeared again for work she heard a
rumor that Park thought she was taking union names and that
she was going to be discharged. This prompted her to visit
Cone. Burroughs described the rumors she had heard and the
warnings she had received. Among other things, Cone told
her she didn’t have any problems about being terminated and
said, ‘‘you’re fine, so you can rest at ease.’’ Burroughs com-
mented ‘‘if they was to fire me . . . . it would be like only
union related, because they think I’m with the union.’’
Thereafter Cone talked about the union, in Burroughs’ testi-
mony:
And, he said well, I can understand how you feel, he
said, because I wouldn’t want to work with the pressure
over my head. And, you know, it sort of like went on
and he talked about the union, about if the union came
into the plant, the plant would close down, and the dis-
advantages of a union, like how much money the union
would take. Well, they did it like on a yearly basis. He
like gave me like a rough big figure like think about
what you could do with that money that you’re paying
for somebody else. And, he told me I wouldn’t be able
to come into his office and sit down and talk to him.
My union representative would have to go and talk, you
know, I wouldn’t have that freedom. And, which he
didn’t say anything that was of an advantage. Every-
thing he said was more or less to the disadvantage of
the union.
After Burroughs’ conversation with Cone, she was absent
from work for 2 days. When she returned on September 23
Yon advised her that she was terminated. She asked why.
Yon answered that he didn’t know. Burroughs asked to speak
to Park. Yon responded that Park was not there. Later Yon
informed Burroughs that Park would speak with her but Bur-
roughs declined. She had asked one of the employees to ask
Cone to call her. Cone phoned and Burroughs related to him
that she had been fired and that she would like to know the
reason for the firing. Cone replied that neither had he known
that she was fired nor the reason. He said he would ask Park
and call her back. Cone called back and informed her that
she had to be terminated because it was the policy of the
Company to discharge after three warnings.
Cone remembered having conversations with Burroughs.
She had complained about receiving a warning and that she
‘‘didn’t think her technician liked her.’’ Cone told her that
her warning appeared to be valid. Cone denied that he had
conversed with Burroughs about labor unions. Burroughs tes-
timony is credited.
Fourth: Michael Moody, a knitting machine operator,
commenced work with the Respondent on February 2, 1988.
He was discharged on October 3, 1989. His base pay was
$4.50 with additional earnings if he exceeded production.
In June 1988 Moody joined the Union’s efforts to organize
the plant. He ‘‘talked to some people and handed out some
cards.’’ He received the cards from Union Representative
Haigler who visited his home on June 13, 1988. Moody
‘‘signed on the committee list’’ and became a member of the
union ‘‘in-plant’’ committee. On breaktime Moody talked to
at least two people about the Union.
On September 15, 1988, Moody’s supervisor, Bill Wong
(Ill Jeong Hwang), approached Moody and asked ‘‘was [he]
part of the Union.’’ Moody answered, ‘‘no.’’ During the con-
versation, according to Moody, Wong said that ‘‘before the
company let a union come in, they would close down and
relocate.’’ Later Wong approached Moody with Technician
Kevin Stafford Turberville and the same representation was
repeated. Ill Jeong Hwang testified that he told Moody that
‘‘if this company continues to suffer from losses, then even-
tually this company will closed [sic] and maybe relocated at
other place.’’11
On the same day, shortly after Hwang had approached
Moody (September 15, 1988), he was given a warning. Al-
though this was his sixth warning, he had never been told
that he might be discharged. Moody returned to his machine
for the purpose of cleaning it in preparation of ‘‘knocking
off.’’ He had just returned from another employee from
whom he had obtained an air hose to clean his machine.
Turberville came up to him with an ‘‘already written out
warning.’’ He told Moody the warning was for being out of
his work area. Moody pointed to other employees and said,
‘‘look at her, look at him, they out of their work area, why
don’t you write them up.’’ These people did not get warn-
ings. Moody refused to sign the warning because he was in
his area ‘‘getting equipment to clean [his] machines’’ from
which he was only about 10 feet away. Turberville did not
advise Moody that he would be fired.
On the same day Moody conversed with Park in his office.
Moody describes the conversation:
He told me that the warnings don’t mean nothing. I
can get up to ten warnings and it wouldn’t really make
no difference as long as I come to work every day and
perform well, and as long as I don’t get caught for
stealing or tearing up company property, or missing too
many days or fighting, then I’d be terminated.
. . . .
He told me that they needed more black leaders.
. . . .
I told him that I shouldn’t be given this warning be-
cause I have to walk around to get cleaning equipment
to clean my machines and air hoses to blow off my ma-
chines, plus I have to walk around to get the yarn and
553KUNJA KNITTING MILLS U.S.A.
12 The presence of Smith and Hemingway was in response to Park’s open-
door policy. Park testified, ‘‘Anyone could come in any time.’’
stuff when I run out. So, I don’t think I should have
got that warning.
. . . .
He told me that, don’t worry about it and go back
to my machines.
Moody continued to work until October 3, 1988, when
Moody was called into Park’s office. Moody’s files were on
Park’s desk—Park told Moody that he had too many warn-
ings. Park said, ‘‘Normally anything after three warnings you
will be terminated and [he] should have been fired ever since
July.’’ Park called Hyon into the office and Park and Hyon
conversed in Korean. Moody protested. Park ‘‘bowed up’’ at
Moody and told him not to get upset. Then Hyon took
Moody to the backroom and told him that if he didn’t fire
Moody they would fire him. Moody asked to talk to Cone.
When Cone appeared (Moody was again in Park’s office) he
said that he knew what Moody was talking about but there
was nothing he could do. Park sent Moody home. The same
day Moody phoned Park and asked him whether he was
fired. Park asked Moody to come to the plant at which time
he told Moody he was fired.
On August 31, 1988, Moody had received a warning for
‘‘fail[ing] to check yarn ply for app. 2 hrs’’ (R. Exh. 17);
on June 28, 1988, Moody received a warning for ‘‘smoking
in unauthorized area’’; on May 25, 1988, Moody was given
a warning ‘‘for his bad attitude’’ and overstaying break (R.
Exh. 19); and on February 12, 1988, Moody received a
warning ‘‘about running 3 ply.’’ (R. Exh. 21.)
Ill Jeong Hwang, a technician, testified that Moody was
discharged ‘‘due to the accumulation of the problems that he
had in his performance. In particular, his laziness.’’ Hwang
testified that he addressed Moody a ‘‘lazy man, lazy man.’’
Wallace L. Brown, technician assistant, testified that Moody
‘‘seemed to be a good employee.’’ Technician Turberville
testified ‘‘at first [Moody] was a good operator’’ but there
came a time when ‘‘he would walk around . . . constantly’’
in late September ‘‘[w]hen everybody was concerned about
people walking around and talking.’’
Hwang testified that employees did not need permission to
‘‘move around to look for cleaning materials for their equip-
ment.’’ Turberville testified that other operators besides
Moody were walking around but he had no authority over
them. Annette Edwards, technician assistant, testified that
employees sometimes would leave their lines to obtain clean-
ing material. Moody denied that he ‘‘walked around a lot on
the job.’’
Moody testified ‘‘anything over $4.50 you made produc-
tion.’’ His average wage was between $5 to $7 an hour.
When he was discharged he was making $5.20 an hour. His
highest production rate was $7.42 an hour. Three times he
received a bonus of $25 for perfect attendance. Turberville
testified that an operator that makes over $4.50 an hour is
considered a good producer. Brown testified that if an em-
ployee averaged $5.67 an hour ‘‘that’s pretty good produc-
tion.’’
Brown testified that Moody asked him to attend a union
meeting around August or September. Brown referred to
Moody as ‘‘the main one.’’
Fifth: Steven Anthony Smith went on the Respondent’s
payroll February 2, 1988, as a knitting machine operator. In
May 1988 Smith first talked to a union representative, James
Haigler. Gena Hemingway was present. Smith signed a union
card at the first formal union meeting on May 13, 1988, at
the union hall in Mullins. Smith talked union to other em-
ployees on his breaktime and outside the plant and tried to
get them to sign cards. He was a member of the in-plant or-
ganizing committee. He kept in contact with the union rep-
resentative.
In April or early May, Smith received a warning that his
production was low. Smith attributed it to the fact that the
new machines were not operating properly. On September 3,
1988, Smith was warned for ‘‘his over-stay at canteen.’’
(G.C. Exh. 10.) Smith’s response was that he was told by
technicians that he could take two 20-minute breaks rather
than the 10-, 20-, and 10-minute breaks. He had obtained
permission from Han and Sam to take the 20-minute break.
When Hyon gave Smith the warning Smith told Hyon that
other operators had been in the canteen longer than he had.
He named the operators’ names. None received warnings. (If
the Respondent’s witnesses are considered credible, Smith
had been a constant overstayer of breaktime for which he
had not been warned.) Smith received another warning on
September 27, 1988. Smith asked Edwards and Sam for per-
mission for time off to make a poster rather than check out
and go home. Permission was granted and Edwards signed
him out for such purpose. Smith remained away from his job
from 3:15 to approximately 5 a.m. He then worked until 8
a.m. Edwards gave him a written warning notice for the inci-
dent. Smith protested the warning notice, stating that he had
received permission and did not expect to be paid for the
time. (G.C. Exh. 11.)
On October 5, 1988, Smith received another warning.
Smith was told to put a particular part of a ticket on a sheet.
Hyon claimed that Smith had put the wrong tickets on the
sheet. According to Smith, ‘‘What they said I did was tore
off the right side as opposed to the left side. And, see the
rest of the ticket, you tie it onto your bundle and send it
on.’’ It involved ‘‘eight out of fifty, sixty.’’ The warning
read, ‘‘He sticked wrong tickets on production sheet.’’ (G.C.
Exh. 12.) Smith refused to sign the warning notice initially
but he was told if he did not sign he wouldn’t be paid for
the tickets. Smith stated to Hyon that he did not merit the
warning because he was following instructions. This incident
occurred the first thing in the morning. At around 4 p.m.
Hyon approached Smith and asked him to come with him.
Smith followed Hyon. Hyon walked to the front door and
then addressing Smith said, ‘‘you’re terminated.’’ Smith
asked why. Hyon replied that Smith would have to talk it
over with Park. By Smith’s alleged error no product of the
Respondent was improperly marked or priced.
According to Smith in mid-September 1988 Smith and
Hemingway visited Park in his office to ascertain why they
were getting warnings which they thought were unmerited.12
Park reviewed their files and said that ‘‘the warnings were
trivia[l] and minor and we had nothing to worry about.’’
Then he said that—he started talking about the union
after he expressed that we didn’t have to worry about
being fired. He brought up the fact that he heard that
we were involved with trying to initiate a union in the
plant and he said if a union came into the plant, that
554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 The antiunion propaganda was a communication to the employee in which
Park wrote among other things ‘‘We do not have a union in this plant, and
we don’t want one in this plant . . . we will use all legal means to keep the
union out.’’ (G.C. Exh. 8.) The communication also outlined reasons why em-
ployees should not sign union cards.
14 Park downplayed his participation in the discharge of employees. He testi-
fied, ‘‘I don’t really have occasion to the reason why an individual terminated
and actual work is done by supervisors and managers and what I do is there,
I just finalize it and officialize.’’
15 The credited record reveals that there were some language difficulties be-
tween the Korean supervisors and the Americans.
he’d lose his job and we’d lose ours. He also said the
plant would close down, said Mr. Ahn was a very
wealthy man, he didn’t use any banks to finance that
plant, he paid cash for it, and that he’d close it down
at the first sight of a union coming in that plant. And,
then we were stunned, more or less, you know, for him
to talk like that. And, he also asked us did we know
of anybody else involved in the union and if we did,
to let him know exactly who those people were because
the company was running a strong campaign against the
union, and they didn’t want a union, and he gave us
some anti-union propaganda or literature.13 [Emphasis
added.]
Smith’s testimony was substantially corroborated by Heming-
way.
After Smith was discharged he remained in the lobby wait-
ing to see Park. Cone appeared and told Smith he would
contact Park. Smith was then called into Park’s office where
Cone and Park were. Smith recalled that he had been told
he would not lose his job because of the warnings and ex-
plained to Cone and Park ‘‘about the warnings.’’ Smith re-
minded them that other employees with three or more warn-
ings were working. Smith named names. Park replied that
the office personnel did not have enough time to review
files, ‘‘they would only fire people when they got a new
warning’’ at which time the person’s file would be reviewed
for prior warnings. The meeting ended by Park stating that
he did not know what actually happened on the floor and
that he would check with the technicians and phone Smith.
Smith received no phone call, nor was he otherwise con-
tacted.
On October 20, 1988, Smith talked to Technician Brown
who had phoned him. According to Smith, among other
things, Brown said it was ‘‘bad’’ that Smith was terminated
and that ‘‘he had talked to Mr. Park and he felt that the rea-
son we [Smith and Moody] were terminated was because we
were involved with the Union.’’ ‘‘[T]he word got back to
Mr. Park that we were involved in the Union.’’ On being
told that Hemingway (who had been fired that night) was
fired Brown commented that it was probably because she
was involved with the Union. Brown asked how he could get
back the union card he had signed prior to becoming a tech-
nician because he was ‘‘scared’’ that if the Respondent found
out about it they would fire him.
Brown testified that he had engaged in a phone conversa-
tion and asked Smith to try to get his union card back. Smith
agreed. Further Brown said that Smith had informed him that
Hemingway had been discharged and ‘‘he thought it was be-
cause of the union.’’ Brown replied that he ‘‘didn’t know
whether it was because of the union.’’ Smith asked Brown
‘‘to get his job back.’’ Brown said that he would do the best
[he] could.’’ Brown testified that Smith had placed the phone
call. Having carefully observed Smith’s demeanor, I consider
Smith to be a credible witness.
Park testified that the reason for Smith’s discharge was
‘‘the warnings.’’14
Sixth: Gena Hemingway commenced working for the Re-
spondent in the last week in January 1988 and went on the
company payroll February 2, 1988, as a knitting machine op-
erator. She ran four knitting machines and worked a swing
shift—the first week, the first shift, the second week, the sec-
ond shift; the third week, the third shift—8 hours a day.
Hemingway signed a union card the beginning of May
1988 at the union hall in Mullins. She talked about the
Union during breaks and obtained the signature of the girl
who rode to work with her. Hemingway talked to about 12
employees, describing for them the benefits of the Union. At
the time she worked for the Respondent, Steven Smith and
she were just friends, at the present time he is her boyfriend.
Brown testified that Hemingway had tried to get him in-
volved in the Union.
Hemingway received a warning on May 4, 1988, after an
encounter with Production Manager Han for which he was
required to apologize. The warning involved a stopped ma-
chine. Hemingway was waiting for a technician to change
the machine for a different panel over which there was a
communication misunderstanding.15 Hemingway objected to
the warning.
On September 3, 1988, Hemingway received a third warn-
ing. She was charged with being away from her job at break
for a period of 21 minutes rather than 10 minutes. Heming-
way refused to sign the warning notice asserting that she had
permission from her technician to adjust her break periods.
She also pointed out that the time on the notice was inac-
curate.
Break periods were established 10 minutes in the morning,
20 minutes for lunch, and 10 minutes in the afternoon, how-
ever, the technician could adjust the periods which was done
for Hemingway allowing her two 20-minute breaks.
On September 17, 1988, Hemingway was called to Park’s
office where she was told by Park that he had heard that she
had been taking names to start a towel club. Hemingway an-
swered that she did not know what a towel club was, and
that the accusation was not true. Thereafter Hemingway re-
turned to Park’s office with her technician, Edwards, whom
Park asked whether she had seen Hemingway taking names
for the towel club. Edwards said she was the one who was
taking names for the towel club, not Hemingway. Neverthe-
less, Edwards came to Hemingway and tried to get her ‘‘to
sign that warning for trying to start a tower [sic] club.’’
Edwards testified that she had been a member of the towel
club, that Park had called her into his office ‘‘to give a
warning for receiving names on the Towel Club.’’ Edwards
returned to Park; Park called Hemingway into his office. Ed-
wards was also present for about 10 minutes. Hemingway
denied that she had solicited names for the towel club. Ed-
wards testified she told Park she had not seem Hemingway
soliciting for towel club members.
According to Hemingway after she had refused to accept
the warning she went again to Park’s office and told Park,
555KUNJA KNITTING MILLS U.S.A.
16 See also Steven Smith’s testimony, supra.
17 Park appeared to be a scared witness who tried earnestly to tailor his tes-
timony to accommodate the Respondent’s position. Many of his answers were
superrogatory. Indeed after the Respondent’s attorney had completed his exam-
ination, Park asked to ‘‘mention just one thing before I leave.’’ He then volun-
teered additional testimony concerning Smith, which if believed, would have
enured to the benefit of the Respondent.
‘‘I told him well, she admitted she was the one taking names
to start a towel club . . . I didn’t have anything to do with
[it] . . . he said, well, you are innocent until proven guilty
. . . this will not go in your file.’’
Later in the day Hemingway was again called into Park’s
office. Edwards was present. Park, addressing Edwards,
asked her whether she had not said that ‘‘Ms. Hemingway
was taking names to get a union started, was involved with
the Union.’’ Edwards answered ‘‘Yes’’ and said employee
Frances Martin gave her this information; ‘‘we tried to get
her to come to the office, but she refused.’’ Edwards denied
that the word ‘‘union’’ was used in the meeting. Edwards’
denial is not credited. Edwards admitted that Hemingway’s
warning ‘‘wasn’t fair.’’
Hemingway was warned again on September 24, 1988, ac-
cording to the notice ‘‘for not keeping a good eye on her
machines’’ (G.C. Exh. 7) and for ‘‘staying over on break
(4:35 to 5:10 a.m.)’’ (35 minutes). Hemingway refused to
sign the notice because she ‘‘didn’t feel like I should have
taken the blame when my technician was responsible for
watching the machine while I was on break.’’ According to
Hemingway while other employees were on break with her,
for the same period of time, she was the only one Edwards
picked out to whom a warning was given. Edwards testified
that she did not know the exact time Hemingway left for
break but she knew that she was over break ‘‘[b]ecause ev-
erybody else was back and she wasn’t.’’
Around mid-September or the end of September Heming-
way, concerned about the warnings, with Steven Smith went
to see Park. According to Hemingway, Park had their files
pulled and looked at their records and said that Hemingway’s
‘‘attendance was good and [her] production was good, and
that [her] record was such that [she] wouldn’t be fired.’’ He
said she was in ‘‘good standing.’’ He said that ‘‘they fired
people for . . . stealing or fighting on the job . . . stuff like
that’’; that my record was ‘‘practically clean.’’
Hemingway testified further:
And, he also said that he had heard that Steven and
I were involved with the union, and he said he had got-
ten it from a very reliable source, and he said that, as
you—you may not be aware, but we’re running strong
campaign against the union and he gave me some anti-
union information, and you know, he told us to let him
know if we—give him the people’s names if we know
of anybody who was involved, and you know, we were
stunned, so we shook our heads as if to say okay, you
know.16
Q. This anti-union information that he gave you,
what did it say?
A. Something about they were 100% against the
union and you know, just saying why. And also, he
said too while we were in there that if a union came
in, that he would lose his job and we would lose our
jobs too because the company would close and that the
company—I mean that the man who owns the company
has a lot of cash and doesn’t have to pay any banks
or anybody.
Park agreed that he had met with Smith and Hemingway
and that they wanted to talk about warnings. A part of Park’s
testimony is as follows:
They could come in any time and these two individ-
uals just walked in and, then, they were—they want to
talk about the warnings. They were worried about
warnings they had. So, I asked him ‘‘How many warn-
ings do you have?’’ and the one says three and the
other one three—the other way around, I don’t know,
three or four. And, I asked him, again, what’s the na-
ture of that warnings and they are saying overstaying
break time and bad panel. So, what I told them is com-
pare it with other offenses such as stealing sweaters,
break machines and insubordination, you offenses is
minor than others. So, I told them ‘‘Don’t worry too
much.’’ They looked very worried. Said don’t worry
too much, just keep working. That’s what I told them.
I never told them your record is clean is [sic] any-
thing. I did not have record with them at the time and,
then, they left.
. . . .
What I said was employees—I also told other em-
ployees, too, whoever visit me . . . . Employees have
a right to go against Union. That’s your matter of
choice and the Company is not supposed to influence
any decision.
Park denied that he knew that Smith and Hemingway were
involved with the Union although he had heard through his
managers that the Union was involved in the plant. Accord-
ing to Park he was informed that ‘‘[t]he Union is in town
and he’s trying to get employees to sign the card . . .
[s]taying at Martin Motel’’ and ‘‘was going around to the
employees’ houses trying to get them to sign’’ and that ‘‘the
Union cards were being passed out at the plant.’’
Park also testified that he did not tell Hemingway and
Smith ‘‘the Company policy of three warnings and you
would be fired.’’ According to Park he did not look at their
files prior to their discharge. Where Park’s testimony differs
from the testimony of Hemingway and Smith, I credit Smith
and Hemingway.17
On October 18, 1988, when Hemingway was about to re-
port for the midnight shift, she was met by Edwards and Jay
who informed her that she had been terminated and that
‘‘they had nothing to do with it’’ and that she could speak
with Park, who was still at the plant. Park was on the tele-
phone so Hemingway made and appointment for the next
day. She and Smith went to Park’s office. Park and Giles
Campbell were there. Smith’s and Hemingway’s files were
pulled and their warnings were discussed. Hemingway testi-
fied as to what occurred at the meeting:
I was shown four warnings, four warnings, and I told
Mr. Park that I thought he had taken that out about the
towel club. I told him that he said that he took it out
because he said I was innocent until proven guilty.
556 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
And, also Giles Campbell claimed that he had taken
that warning about my machine being stopped out of
my file also. And, you know, it was still in there, both
of them. And, you know, I told Mr. Park also that I
hadn’t gotten warning—received a warning since the
last time I had talked with him when he said that my
records were practically clean, that I had nothing to
worry about, and would not be fired. I told him that I
hadn’t gotten a warning since then or anything and he
said that his attorney recommended that I be termi-
nated. [Emphasis added.]
JUDGE GOERLICH: Did he tell you why you were
being terminated?
THE WITNESS: He said too many warnings, too many
warnings, and that his attorney had recommended.
Hemingway received a letter dated March 30, 1988, from
Cone congratulating her ‘‘for achieving an efficiency in ex-
cess of 100% during the period of March 21, 1988 through
March 27, 1988.’’ (G.C. Exh. 9.) Included was the clause
‘‘Your accomplishment reflects highly upon you.’’ Her wage
records show that she was a much overaverage employee.
In his testimony Cone referred to Hemingway as ‘‘one of
our first people to make production . . . and she’s a nice
clean-cut girl and I enjoyed talking to her.’’
Park testified that Hemingway was terminated because of
the number of her warnings. Park asserted that his only role
in the Hemingway discharge was that he ‘‘finalized’’ it; he
‘‘just’’ signed the payroll action card for termination which
was brought to him by Roseanna [Frozana], a personnel as-
sistant, who said that this individual should be discharged.
Park testified at the time of the discharges he did not know
why either Hemingway or Smith was discharged. ‘‘I didn’t
even remember the name, Gina Hemingway, Steve Smith
until that comes a court case.’’ Park also testified, ‘‘I know
she [Hemingway] got [a] warning, but I didn’t know she got
warning for towel club.’’ But Park also testified, ‘‘I’m given
the warnings at the final stages and, then, I finalize’’ after
which the warning is placed in the file.
Edwards testified that ‘‘it wasn’t fair’’ to give Hemingway
a warning for the towel club.
Seventh: Regarding disciplinary action, the Respondent’s
policy dated June 1, 1988:
1. The following disciplinary actions are available for
use by supervision:
(a) Verbal Reprimand—Normally used for minor in-
fractions of rules or conduct. Shall be recorded on Em-
ployee Warning Record and placed in the employee’s
personnel file.
(b) Written Reprimand—Used for more serious in-
fractions of rules or conduct or repetition of minor in-
fractions. Shall be discussed with the employee and
filed in Personnel File, together with employee’s com-
ments or response.
(c) Discharge—Repetition of an offense for which an
employee has received a written reprimand or written
reprimands on different subjects or offenses within a
twelve month period will subject employee to termi-
nation. Management, in its sole discretion, reserves the
right to determine the number of written reprimands an
employee may receive in a twelve months period before
being discharged. Also available for major offenses.
Discharge of an employee is a serious matter and
should generally be used as the last resort after other
reasonable attempts to correct the situations have been
tried and failed. [Emphasis added.]
2. No other disciplinary actions are available. An em-
ployee cannot be ‘‘sent home’’ from work for a period
of time as a disciplinary action.
. . . .
4. Generally, receipt of a total of three (3) warnings for
different violations or two (2) warnings for the same
violation within a twelve month period, whether given
under this policy or any other policy, will result in dis-
charge. Management reserves the right, in its sole dis-
cretion, to determine the number of reprimands during
the twelve months period. [Emphasis added.]
Park thus explained the rule to Frozana Thomas, personnel
assistant:
Park’s testimony:
What I told her is that the management should start
considering terminating employees who has more than
three warnings and from the time an individual have
three warnings or more, the three warnings would be
considered. That individual could be considered being
terminated from the time he or she has three warnings.
Frozana M. Thomas, personnel assistant, testified that the
discharge policy was ‘‘[i]f an employee receives 3 or more
warnings, they are subject to termination.’’ Thomas testified
that when she found a file with three or more warnings she
would take it to Park and he would ‘‘initiate disciplinary ac-
tion, looking toward termination.’’ About the four alleged
discriminatees, Thomas did not remember pulling their files
or Park’s asking for them. She did remember that Cone
asked for Burroughs’ file. She remembered two employees
who were not fired, Wendel Graves and Ray Crawford, who
had received three or more warnings. Graves subsequently
was fired after nine warnings.
Turberville testified that an employee was discharged who
received ‘‘3 warnings in a 6-month period.’’
Suggs testified that all warnings have the same weight.
Cone testified:
We basically had a system of if you had three warnings
you couldn’t work there anymore. And, we told that to
the employees and as they would get warnings they
would be told that, you know, if they were near the
end, there’s one more warning and they would be ter-
minated. They would be told at the time they got that
written warning.
Edwards testified that she never checks the number of
warnings an employee has before giving a warning. Four em-
ployees were not discharged after receiving three warnings or
more. One employee received four warnings; another, seven
warnings; a third, eight warnings; and the fourth, four warn-
ings.
Eighth: Employees were required to clean their machines
before they secured each day. An air hose was used in the
process. According to Smith there were not enough air hoses
557KUNJA KNITTING MILLS U.S.A.
18 Hendrix Mfg. Co. v. NLRB, 321 F.2d 100 (5th Cir. 1963).
19 St. Mary’s Home, 258 NLRB 1024, 1028 (1981).
20 See Rossmore House, 269 NLRB 1176 (1984).
21 Cone testified that 1200 to 1500 employees passed through the gates in
the first year.
22 Regarding Burroughs, the Respondent expressed it this way in its brief:
‘‘She had too many warnings and was terminated pursuant to company pol-
icy.’’
23 The Respondent claims that the lax adaptation of the rule occurred be-
cause the personnel assistant, Thomas, who allegedly was charged with the
duty of calling to Park’s attention when an employee had received his third
Continued
for all employees, thus sometimes the employee would leave
his area to obtain a hose. No permission was required when
an employee sought a hose. Hemingway also testified that
sometimes it was necessary for employees to look for air
hoses to clean their machines.
Ninth: Breaks were allowed in 10-, 20-, and 10-minute
segments. Cone testified that an employee must take a nor-
mal break unless a technician authorized otherwise. Brown
also testified that the normal break must be taken ‘‘[u]nless
they got with a technician or supervisor and discussed it.’’
He further testified, ‘‘They were abusing the breaktime, quite
frequently.’’ According to Rogers many of the technicians
did not keep good tab when the employers took their breaks.
The credited record reveals that on occasion technicians ad-
justed employees’ breaks. The Respondent had a rule, ‘‘Ac-
cording to the situation on floor, this break time schedule can
be adjusted by technician.’’ (R. Exh. 3.)
IV. CONCLUSIONS AND REASONS THEREFOR
A. The 8(a)(1) Violations
The Respondent violated Section 8(a)(1) of the Act.
(1) By the threats made by agents of the Respondent that
it would close its plant if the Union came in.18
(2) By Park’s solicitation of employees to report on other
employees’ union activities.19
(3) By interrogations of employees by the Respondent’s
agents regarding whether they had heard anything about the
Union, what they thought about the Union, if an employee
was a part of the Union, who was supporting the Union, and
whether employees signed a union card.20
(4) By Park’s solicitation of Rogers to report anything she
heard about the Union.
(5) By Park’s representation to Hemingway and Smith that
if the Union came in the plant, they would lose their jobs.
B. The 8(a)(3) Violations
In Wright Line, 251 NLRB 1083 (1980), the Board estab-
lished that if the General Counsel makes a prima facie show-
ing sufficient to support the inference that protected conduct
was a ‘‘motivating factor’’ in the employer’s decision to dis-
charge, the burden shifts to the employer to demonstrate that
the discharge would have taken place even in the absence of
protected conduct.
In the instant case the General Counsel has supported his
prima facie case by offering the following credible evidence:
(1) Employer antiunion animus was of such potency that
it would have foregone an investment of more than $20 mil-
lion to escape union organization.
(2) The employer engaged in diverse unfair labor practices
which tended to discourage employees’ union affection, some
of which personally affected the dischargees.
(3) All four dischargees were active known union par-
tisans. Park thought Burroughs was securing names for the
Union; Moody was asked whether he was part of the Union;
Brown referred to Moody as ‘‘the main one’’; Park told
Smith and Hemingway that they were ‘‘involved with trying
to initiate a union in the plant’’; Smith was on the in-plant
organization committee and in contact with the union rep-
resentative; Hemingway and Smith were friends.
(4) All four dischargees were discharged within a period
of less than 25 days (September 20 and October 3, 5, and
11) during which period the union organizational campaign
was proceeding toward an election, and the Respondent was
conducting a ‘‘strong’’ campaign against the Union. More-
over, the discharges occurred at time when the discharges
would have had a maximum deleterious effect on union af-
fection.
(5) The four alleged discriminatees were discharged even
though they were better than average employees and even
though, because of a large turnover of employees, the Re-
spondent apparently needed their services.21 Suggs described
Burroughs as a loyal and good worker; Moody made over
production, and was considered a good producer. Three times
he had received a bonus for perfect attendance; Park told
Smith he had ‘‘nothing to worry about.’’ Cone described
Hemingway’s production and attendance as good; Heming-
way had achieved an efficiency ‘‘in excess of 100%.’’ (G.C.
Exh. 9.) Hemingway was a much overaverage employee and
was referred to by Cone as a ‘‘nice clean-cut girl.’’
(6) Some of the warnings on which the discharges were
alleged to have been predicated appeared not to have been
well taken and were for infractions for which other employ-
ees were not warned.
(7) Employees who had received a greater number of
warnings than any of the alleged discriminatees were not
fired.
(8) None of the dischargees were ever told that they would
be discharged after their third warning.
(9) All discriminatees were discharged shortly after they
became known union partisans.
The Respondent counters the General Counsel’s prima
facie case by asserting that the real reason the discriminatees
were discharged was because they ran afoul of the rule,22
mentioned above.
The application of the rule is somewhat ambiguous since
it reserves ‘‘sole discretion’’ to the management and appar-
ently was not well defined. Park apparently attempted to
clarify the rule when he advised Smith and Hemingway,
‘‘they fired people for . . . stealing or fighting on the job
. . . stuff like that.’’ In evaluating the warnings of Heming-
way and Smith, Park testified, ‘‘compare it with other of-
fenses such as stealing sweaters, break machines and insub-
ordination, you[r] offenses is minor than others.’’ It was
these ‘‘minor’’ offenses for which Hemingway and Smith
and the others were fired which normally they would not
have been even though they had committed three infractions.
Such conclusion is borne out by the fact that other employ-
ees were not discharged for committing three offenses; nor
is there any credible evidence that since the discharge of the
discriminatees any employee has been discharged for receiv-
ing three warnings. Indeed Burroughs and Moody were not
discharged until after they had received six warnings.23 Thus
558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
warning, was overburdened and was unable to make the reference. However,
Thomas does not remember ever pulling the files of the alleged discriminatees
or Park asking for them.
24 ‘‘[T]he ‘real motive’ of the employer in an alleged § 8(a)(3) violation is
decisive.’’ NLRB v. Brown Food Store, 380 U.S. 278, 287 (1965). ‘‘It is the
‘true purpose’ or ‘real motive’ in hiring or firing that constitutes the test.’’
Teamsters Local 357 v. NLRB, 365 U.S. 667, 675 (1961). ‘‘Section 8(a)(3)
prohibits discrimination in regard to tenure or other conditions of employment
to discourage union membership . . . . It has long been established that a
finding of violation under this section will normally turn on the employer’s
motivation.’’ American Ship Building Co. v. NLRB, 380 U.S. 300, 311 (1965).
‘‘Illegal motive has been held supported by a combination of factors, such
as ‘coincidence in union activity and discharge’ . . . . ‘general bias or hos-
tility toward the union’ . . . . variance from the employer’s ‘normal employ-
ment routine’ . . . and an implausible explanation by the employer of its ac-
tion.’’ McGraw-Edison Co. v. NLRB, 419 F.2d 67, 75 (8th Cir. 1969). All
these factors are present in the instant case.
25 The McNair law firm of which Michael J. Morgan, Esq., is a member
withdrew as counsel for the Respondent at the conclusion of Cases 11–CA–
13055, 11–CA–13276, and 11–CA–13364. Representation of the Respondent
was taken over by the Wilcox law firm by Mark Buyck III, Esq., and Rey-
nolds Williams, Esq. Respondent’s brief in Cases 11–CA–13055, 11–CA–
13276, and 11–CA–13364 was submitted by the McNair law firm. Respond-
ent’s briefs in the remaining consolidated cases were submitted by the Wilcox
law firm.
26 Combs, an employee who worked under Smith’s supervision, described
his duties as follows:
[H]e supposedly keep my machines and stuff running, you know, like
when I don’t know how to do something, he know how to do it for me.
Like when I don’t know how to change a certain stitch he does it.
it seems obvious that the alleged three-warning rule was
seized on by Park to afford a rationale for the alleged
discriminatees’ discharges. The sockdolager is found in
Park’s own testimony. Park testified:
I asked him [Smith] ‘‘How many warnings do you
have?’’ and the one says three and the other one
three—the other way around, I don’t know, three or
four . . . . ‘‘Don’t worry too much.’’ ‘‘They looked
very worried . . . just keep working.’’
From this testimony it is crystal clear that at this time there
must have been no three-warning discharge rule in effect for
had there been, a reasonable person would have told Smith
and Hemingway that their jobs were in jeopardy or on find-
ing that they had three or four warnings they would have
been fired on the spot. The conclusion is inescapable that the
Respondent’s real motive for discharging the alleged
discriminatees was discriminatory.24 The credible evidence in
this case sustains the General Counsel’s complaint regarding
the 8(a)(3) discharges by a preponderance of the credible evi-
dence. I am convinced that the discriminatees would not
have been discharged if they had not engaged in protected
union activities. Wright Line, supra.
I find that by discharging Chyrel Burroughs on September
20, 1988; Michael Moody on October 3, 1988; Steven An-
thony Smith on October 5, 1988; and Gena Hemingway on
October 11, 1988, the Respondent violated Section 8(a)(1)
and (3) of the Act.
1. Case 11–CA–13364
The charge in Case 11–CA–13364 filed by the Union was
served on the Respondent on June 13, 1989. A complaint and
notice of hearing was served on July 20, 1989. Among other
things the complaint alleges that the Respondent issued writ-
ten warnings to Lester Smith and discharged him on June 6,
1989, because he cooperated with the Board and gave an af-
fidavit and testimony in a proceeding in violation of Section
8(a)(1) and (4) of the Act.
The Respondent filed a timely answer denying that it had
engaged in the unfair labor practices alleged but admitted
that Lester Smith was terminated on June 6, 1989.
On August 7, 1989, this case was consolidated with Cases
11–CA–13055, 11–CA–13276, and 11–CA–13364 which ap-
pear in this caption. This case together with Case 11–CA–
13458 (infra) was heard in Mullins, South Carolina, on De-
cember 4–6, 1989.
Each party was afforded full opportunity to be heard, to
call, examine, and cross-examine witnesses, to argue orally
on the record, to submit proposed findings of fact and con-
clusions, and to file briefs. All briefs have been carefully
considered.25
On the entire record in this case and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT AND CONCLUSIONS THEREFOR
Lester Smith, a technician supervisor, testified adversely to
the Respondent’s position and for the General Counsel in
these proceedings on May 26, 1989. Four days later on May
30, 1989, he was given two warnings and on June 6, 1989,
he was discharged.
Smith had been hired around June 1988. He completed a
training program and became a supervisor in the knitting de-
partment around March 1989. Three or four knitting opera-
tors were under his supervision, including Patricia Diane
Combs (Nichols) who testified that he was a good super-
visor.
Smith described his responsibilities as a technician as fol-
lows:
Troubleshooting, machines, setting up machines, and
quality control . . . . I would spot check and make
sure that measurements and weights were being taken,
proper tickets were used on the panels, I mean on the
bundles and basically to keep the machines functioning
as they should.26
Despite Smith’s duties, it was the operators’ initial respon-
sibility to correct any problems that developed with the knit-
ting machines. Moreover, it was the operators’ job to check
for the accurate measurement and weight of the product. In
addition to the work of the operators, the Respondent had a
quality control department that checked the lengths and
measurements of the garments after they were completed.
Smith was previously terminated in April 1989 because he
supposedly neglected to call in that he was not reporting for
work. He produced a doctor’s excuse and was reinstated
within a week’s time. Park explained the reason for the rein-
statement:
We spend time—we invested time and money for train-
ing technician assistant. So we try to be more careful
of taking action against an employee like technician as-
sistant. So, I know he was wrong and he was supposed
to call in before he was out for three days with no call
in. But I decided to give him one more chance.
559KUNJA KNITTING MILLS U.S.A.
27 Deknits were defective sweater parts produced by knitters.
28 In its brief Respondent asserts that Smith was terminated because ‘‘he
was not a qualified supervisory employee.’’ (R. Br. 7.)
29 Although it is not entirely clear, these apparently are the same bundles
referred to in Smith’s testimony.
30 Combs’ testimony appears to support Smith’s explanation on his morning
shift that the defective material originated on a prior shift.
31 In weighing the credibility of Combs, I have considered that she is pres-
ently in the employment of the Respondent.
32 If Smith was as incompetent as depicted in the letter, it is incomprehen-
sible that he would have remained in the employment of the Respondent as
long as he did. I believe that the letter was in most part a fabrication as was
Suggs’ testimony. Shirley was known as a complainer. She was not called for
testimony.
33 Smith had been interviewed by a local television reporter at the time of
the hearing.
34 If Suggs is to be believed, the Respondent was planning to terminate
Smith even before he committed the last infraction which triggered his dis-
charge.
On June 6, 1989, Smith was given a written notice and
terminated. The notice read as follows:
Nature of warning: DeKnits,27 threat to security guard,
tardiness, absenteeism, Lester Smith has been given
several warnings concerning the above. Operators that
are following his shift are complaining about deknits,
that are being left (written complaint from operators)
. . . . He has been terminated. (G.C. Exh. 59.)28
According to Park, he made the final decision for Smith’s
discharge. Park related his reason:
I decided to terminate Lester Smith based on the accu-
mulation of everything, including warnings and absen-
teeism, and the fact that I gave him one more—one
chance. And then he did that again, with bad panels.
So, I decided to terminate him.
Warnings and Cited Reasons for Discharge
Tardiness: On May 30, 1989, 4 days after he testified
Smith was warned for being tardy 1 hour, on May 29, 1989.
Smith replied in writing on the warning slip that he was
tardy one-half hour because he had ‘‘car trouble.’’ He re-
fused to sign the warning slip. Smith had reported to the se-
curity guard that he would be late. Smith’s timecard was not
offered into evidence to verify the time at which he clocked
in. Although Technician Suggs had been late on occasion (as
had Smith) he had never received a warning.
Failure to Check Knitting Panels (Deknit Incident): On
May 30, 1989, Smith was also given a warning for alleged
failure to check knitting panels. Smith rejected the warning
and wrote, ‘‘The panels mentioned above were not run on
my shift. The shift before me had two new operators running
6 m/c each and they did not know how to make measure-
ment checks. I was told this by Kenny Findel (tech).’’ (G.C.
Exh. 57.)
This warning was given to Smith by Samuel Hyon, knit-
ting department manager, at the same time the tardiness
warning was given to him.
Patricia Diane Combs (Nichols), a knitting machine opera-
tor, who worked under Smith’s supervision had no com-
plaints about his supervision. On June 8, 1989, she was
given a warning that on May 30, 1989, she had three bundles
with the incorrect length.29 She replied in writing that it was
only two bundles ‘‘and all of them was not short or too
long.’’ (G.C. Exh. 63.) According to Combs, all the pieces
were not run by her. ‘‘They were the trainees mostly, was
these bundles and I came in behind them and ran the rest
of them. All of those weren’t mine.’’30 According to Combs,
when she arrived at her job there were defective bundles be-
hind the machines. Technician Turberville told her the bun-
dles were good. She measured them and found some too
short and some too long. She brought this to the attention
of Smith and he told her not to use them. Smith put them
in the deknit box. Combs testified that it was not unusual to
find defective panels when she arrived at her machine.
Combs testified that both she and Smith checked the bundles
every hour.
Although Combs had produced defective panels before,
this was her first warning. She testified that the plant pro-
duced ‘‘a whole bunch’’ of defective panels every day.31
Edwin David Suggs, a technician assistant, testified that
after he showed his supervisor, Kim Young Wu, who over-
sees production, two of Combs’ defective bundles (allegedly
the same bundles as above described), his supervisor asked
him ‘‘would me and my operator [who was also present]
write a letter of how we felt Lester Smith was doing his
job.’’ The letter written by Joan D. Shirley and signed by
Shirley and Suggs was offered into evidence by the Re-
spondent. The letter was not complimentary of Smith’s con-
duct and read, ‘‘This all started four weeks ago.’’32 (R. Exh.
34.) Suggs testified that it had been going on for a ‘‘long
time.’’
Suggs further testified that an operator averages around
eight defective pieces a day. ‘‘. . . if you run say twenty
(20), fronts (20) backs . . . we just give warnings.’’
Suggs further testified that it was the ‘‘talk of the plant’’
that Smith had testified and had been on television.33 ‘‘Us
technicians were talking together and we knew that he was
about to be terminated because he wasn’t doing his job.’’34
According to Smith, no supervisors had complained about his
work. Ellis Derry Floyd, a security guard, included in his
March 21, 1989 report the comment that he had ‘‘had trouble
with Lester Smith.’’ (R. Exh. 35.) The trouble was Smith’s
refusal to punch in and out at lunchtime. Floyd insisted that
the policy required technicians to punch in and out if they
went through the gate at lunchtime. After the incident, ac-
cording to Floyd, Smith, ‘‘still wanted to give [him] a hard
time about clocking in and out.’’ Floyd reported Smith’s
conduct to his supervisor who told Smith to clock in and out.
Smith said he didn’t understand the policy and wanted to talk
it over with Floyd. Floyd testified ‘‘. . . when they went
outside, I went to lock the door. And then he mentioned for
me to come outside.’’ Floyd declined. Then, ‘‘he said a few
things and then he says, ‘See you up town.’’’ Floyd replied,
‘‘Yes, sir, you probably will. I’ll be up town.’’ Floyd re-
ported the incident to Park and Smith’s supervisor, Giles
Campbell. No further incidents occurred. Thereafter Smith
clocked in and out. At the time the incident occurred Smith
was not familiar with the procedure. He thought he was to
clock in at the end of his luncheon break. This incident oc-
curred before Smith’s first discharge.
Absenteeism: Smith’s personnel record reveals:
Left early 1–27
Late 1-27
Late 1–31
Late 2–3
560 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
35 Smith furnished a ‘‘medical excuse from [his] doctor.’’
36 Smith was given four written warnings which he had received during the
period he was a technician. The final discharge warning was a summary of
these warnings: two of the warnings occurred before the time he was dis-
charged, the first time. His only warning for absenteeism was in April, which
apparently was erased because he was restored to work. Thus Park’s testimony
does not conform to the credited facts. Although Park’s testimony would sug-
gest that what caused the final discharge warning was absenteeism, the fact
is that the credited record contains no credible explanations as to why June
6, 1989, was chosen for the date to discharge Smith rather than May 30, 1989,
the date of his last warning.
37 The photograph of deknits offered in evidence was taken on June 9, 1989,
9 days later, raising a question whether they were the same deknits referred
to in the warning. They were never shown to Smith.
38 According to Smith, whom I credit, he received his discharge notice from
Giles Campbell; up to that time, no one had discussed anything with him
about his job performance. On the day of his discharge, Smith and Campbell
went to the office where they met Hyon and Park. Smith asked Park about
the warnings. Smith reminded Park that he had told him ‘‘that they were le-
nient towards that [technician’s warnings] because technicians weren’t fired
because of warnings.’’ Parks replied that Smith had ‘‘misunderstood what he’d
said because what he said was, they try to work with technicians who get
warnings.’’ Smith asked to see his timeclock sheet and the warnings. Park re-
plied that it was ‘‘against company policy for him to do that.’’ Smith was es-
corted from the plant at Park’s request. Park testified that he did not give
Smith a chance to explain the deknits, ‘‘[b]ecause I gave him once [sic]
chance already.’’ No other technician had been discharged before Smith’s dis-
charge.
39 In the case of Sahara Vegas Corp., 297 NLRB 726 (1990), the Board
said in an 8(a)(1) case, ‘‘Finally, in regard to the Respondent’s animus to-
wards the Charging Parties, the judge properly relied on the Respondent’s
antiunion history and general bias as reflected in the prior case!’’
40 Cf. Bill Fox Chevrolet, 270 NLRB 568, 573 (1984). The timing of a dis-
charge may give rise to an inference of unlawful intent.
41 The Board has said in Texaco, Inc., 285 NLRB 241, 246 (1987): ‘‘under
Great Dane, even if the employer proves business justification, the Board may
nevertheless find that the employer has committed an unfair labor practice if
the conduct is demonstrated to be ‘inherently destructive’ of important em-
ployee rights or motivated by antiunion intent.’’ Suggs in his testimony, re-
vealed that he and other technicians thought that it would be believed that
Technician Smith was discharged because he gave testimony.
Left early 2–11
Absent 4–4 (n.c.)
Absent 5–13
Absent 4–5 (n.c.)
Absent 4–5 (n.c.)
Terminated 6/7/89 [G.C. Exh. 66.]
Except for his excused absence which resulted in his first
termination, he was absent 1 day. A further note in his per-
sonnel record reveals:
Lester Smith was terminated on 4–6–89 for being ab-
sent 3 days with no call in. Smith came in 4–7–89 and
talked to Mr. Park and Park agreed to reinstate him.
Smith then returned to work on 4–8–89.35
Park testified that he discussed the decision to discharge
Smith with ‘‘knitting manager [Samuel Hyon] and floor
manager [Yong Kim],’’ and with ‘‘Personnel Assistant, Bar-
bara Lee and Frozana [Thomas].’’ He did not discuss the
matter with Smith. Park also testified that he was familiar
with the letter of Suggs and Shirley and the report of Floyd.
The floor manager reported to him the deknit information.
Regarding the deknit situation Park testified:
At the time the plant was making effort very hard to
minimize the number of bad panels in the knitting
room. The bad panels—a percentage of bad panels
knitted in the knitting room at that time was more than
40 percent of them. Which is unusually high. Which
doesn’t make any since [sic], so we were contacting
Oshima, Japan. Does the machine have problems in
bursts, or what is it? We have too many defective pan-
els here right now. [Emphasis added.]
Regarding Smith’s discharge Park testified, ‘‘. . . what I
remember is, he has many warnings. He should have been
gone long time ago. And then, the last time, what he did,
was he was absent—he was laying out for three days without
calling in.’’36 (Emphasis added.)
Park further testified (referring to the number of warnings
a technician could receive before he was discharged):
We don’t have a pre-established policy on that, Your
Honor, but we try to be more lenient on the super-
visors—I mean, the technicians—because we invested
time and money for them.
Park further testified that he attributed the deknits which
appeared in a photograph offered in evidence to Smith.
(These were allegedly the same deknits referred to in Smith’s
May 30, 1989 warning.)37
Although Park testified that he read the solicited statement
of Shirley and Suggs he did not verify whether the facts
were true or false nor did he give Smith a chance to re-
spond.38
Conclusions
The record, as noted above, is replete with evidence of the
Respondent’s antiunion animus,39 of its commission of unfair
labor practices, and its determination to bar the Union from
its plant. Its discharge of Smith and Rogers (see infra) is a
further manifestation of such endeavor. It is fortified by the
fact that the Respondent discharged the only two employee
witnesses who appeared for the General Counsel and who
were still employed by the Respondent at the time of the ini-
tial hearing in this case. Smith was fired just 10 days after
he had testified40 in this case. Such circumstances teach a
lesson which the dullest employee would not fail to com-
prehend. Indeed the natural and foreseeable consequence of
the Respondent’s action was to deter and dissuade employees
from testifying adversely against the Respondent and for the
General Counsel in a Board proceeding and to discourage
union activity. Such employer conduct is inherently destruc-
tive of employees’ rights guaranteed by Section 8(a)(1) and
(4) of the Act, the consequence of which the Respondent
must have intended. Cf. NLRB v. Erie Resistor, 373 U.S.
221, 227–228 (1963). See also NLRB v. Great Dane Trailers,
388 U.S. 26, 34 (1967). Under these circumstances an unfair
labor practice may be found, even if the employer offers evi-
dence that his conduct was motivated by business consider-
ation.41
It is also significant in evaluating the Respondent’s motive
that at the time it discharged Smith, according to Park, ‘‘a
percentage of bad panels knitted in the knitting room . . .
was more than 40 percent.’’ If this was true other employees
working under other technicians must have been producing
561KUNJA KNITTING MILLS U.S.A.
42 With this policy in effect it seems incongruous that the Respondent would
only warn operator Combs but fire Smith.
43 The court observed in United States Rubber Co. v. NLRB, 384 F.2d 660,
662–663 (5th Cir. 1967): ‘‘Perhaps most damning is the fact that both [em-
ployees] were summarily discharged . . . without being given any opportunity
to explain or give their versions of the incidents.’’ See also Metal Cutting
Tools, 191 NLRB 536, 542–543 (1971); Postal Services, 275 NLRB 510
(1985).
44 See Limestone Apparel Corp., 255 NLRB 722 (1981). ‘‘[A] finding of
pretext necessarily means that the reasons advanced by the [Respondent] either
did not exist or were not in fact relied on, thereby leaving intact the inference
of wrongful motive established by the General Counsel.’’
deknits. Thus, it is clear that Smith must have been singled
out by the Respondent as the one technician to be dis-
ciplined. Such discipline following on the heels of Smith’s
adverse testimony surely was discriminatory. Moreover, up
to the time Smith testified, the Respondent had not consid-
ered Smith to be an unsatisfactory employee. Indeed he must
have been considered a promising employee because he was
chosen for technician training and was returned to employ-
ment after his first discharge. Considering Smith’s training,
it is not credibly explained in the record why he, whose
shortcomings were apparently typical of technicians, should
be chosen for discharge when the Respondent had a ‘‘pre-
established policy . . . to be more lenient on . . . techni-
cians’’ and tried to be ‘‘more careful of taking action against
an employee like technician assistant.’’42
The Respondent does not appear to have been ‘‘more care-
ful of taking action’’ in Smith’s case for, before Park fired
him, Park did not give Smith a chance to respond to the
charges against him even though Smith in his answer to the
warning had written that the defective panels were not run
on his shift and had cited Kenny Findel, a technician, as a
source of this information.43 Although the Respondent solic-
ited a statement from employee Shirley, the record is barren
of any evidence that the Respondent attempted to contact
Findel. Indeed it is unclear in the credible record whether the
deknits which figured in his discharge were actually attrib-
utable to Smith.
The sockdolager appears in the testimony of Suggs who
testified after Smith had appeared as a General Counsel wit-
ness the ‘‘technicians were talking together and we knew that
he [Smith] was about to be terminated, because he wasn’t
doing his job.’’ Indeed they even knew the pretextious rea-
son the Respondent was going to use.
Because of the foregoing, I conclude that the reasons ad-
vanced by the Respondent for the discharge of Smith were
pretextious.44 I am convinced and find that Smith would not
have been discharged had he not testified for the General
Counsel in these proceedings. Cf. Wright Line, supra.
By discharging Smith on June 6, 1989, the Respondent
violated Section 8(a)(1) and (4) of the Act. See Parker-Robb
Chevrolet, 262 NLRB 402 (1982). See also Kessill Food
Markets, 287 NLRB 851 (1987).
It having been found that the discharge of Smith was in
violation of Section 8(a)(1) and (4) of the Act, in that the
warnings given Smith on May 30, 1989, were utilized to sup-
port the unlawful discharge of Smith and were pretextual. I
find that the warnings were also in violation of Section
8(a)(1) and (4) of the Act.
Disparate treatment is obvious. Although other employees
were tardy, Smith was singled out as the technician to re-
ceive a warning; although there must have been other techni-
cians whose employees produced deknits, because at the time
the plant was running 40 percent deknits, Smith was singled
out as the technician to receive the warning. As for absentee-
ism, Smith was not guilty; as for the guard threat, that warn-
ing had grown stale and the alleged misconduct was not re-
peated.
2. Case 11–CA–13458
The charge in Case 11–CA–13458 was filed by the Union
on August 11, 1989, and was served on the Respondent on
August 11, 1989. A complaint and notice of hearing was
issued on September 27, 1989. Among other things the com-
plaint alleges that Margaret Gail Rogers was discharged on
July 20, 1989, because she cooperated with the Board by
giving an affidavit and testimony in a Board proceeding in
violation of Section 8(a)(1) and (4) of the Act.
The Respondent filed a timely answer denying that it had
engaged in the unfair labor practices alleged.
On August 7, 1989, this case was consolidated with Cases
11–CA–13055, 11–CA–13276, and 11–CA–13364 which ap-
pear in this caption. This case together with Case 11–CA–
13364 was heard in Mullins, South Carolina, on December
4–6, 1989.
Each party was afforded a full opportunity to be heard, to
call, to examine and cross-examine witnesses, to argue orally
on the record, to submit proposed findings of fact and con-
clusions, and to file briefs. All briefs have been carefully
considered.
Thereafter, on January 26, 1990, the General Counsel filed
counsel for the General Counsel’s amendment to motion to
reopen record and to amend complaint and set hearing date.
Among other things the amendment alleged that Rogers, hav-
ing been returned to work on September 19, 1989, was again
unlawfully discharged on November 27, 1989. The motion
was granted on February 12, 1990, and the amendment was
allowed. Hearing was set for March 12, 1990, on which date
the hearing was held in Mullins, South Carolina.
All parties were afforded full opportunity to be heard, to
call, examine and cross-examine witnesses, to argue orally
on the record, to submit proposed findings of fact and con-
clusions, and to file briefs. All briefs have been carefully
considered.
a. Discharge of Margaret Gail Rogers on July 20, 1989
Margaret Gail Rogers testified in these proceedings on
May 25, 1989. At the time she was on maternity leave which
had commenced on March 3, 1989. A son was born to her
on May 19, 1989.
Rogers was a knitting machine operator; she was well
trained and held a record as a good employee. Park had of-
fered her a supervisory job. When Rogers returned from ma-
ternity leave on July 20, 1989, the Respondent withheld em-
ployment until September 19, 1989. After she was returned
to work, Rogers was again discharged on November 27,
1989. The General Counsel claims that the Respondent’s fail-
ure to return Rogers to work on July 20, 1989, and her dis-
charge on November 29, 1989, was because she had ap-
peared as a witness in these proceedings.
Usually pregnancy leave lasted from 4 to 6 weeks which
for Rogers extended to June 30, 1989. However, the doctor
did not release her to return to work until July 20, 1989.
562 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
45 Prior to her delivery Rogers had experienced difficulties which were
brought to the Respondent’s attention. Park told her ‘‘work when you can.’’
She was transferred to the finishing department where the work was less stren-
uous.
46 Thomas remembered that Rogers brought her baby to the plant, however,
she denied that Rogers gave her a date on which she would return to work.
Thomas’ credibility was not enhanced by her answers to questions at least 15
times ‘‘can’t remember,’’ ‘‘I am not sure,’’ ‘‘I don’t recall,’’ ‘‘can’t say,’’ or
words to that effect.
47 Jones remembered Rogers bringing her baby to the plant but did not re-
member discussing her returning to her job. Jones also remembered some tele-
phone calls. According to Jones, one of the conversations concerned whether
Rogers would be given a job in finishing, the job she held when she went
on maternity leave. Thomas put Rogers on hold. Thomas contacted Pulley who
said there was no job. Thomas relayed this information to Rogers. Later, an-
other conversation occurred between Rogers and Jones regarding whether Rog-
ers would return to finishing or knitting. Rogers had asked to speak with Park.
Jones brought the matter to Park’s attention who instructed Jones to tell Rog-
ers that she ‘‘could return to knitting.’’ Jones passed on Park’s response to
Rogers. Jones conceded that there was ‘‘no question’’ that Rogers wanted to
return to work.
48 Rogers testified that she brought the doctor’s excuse to the plant on July
20, 1989. Barbara Lee impliedly told Thomas that was the case. Barbara Lee
Rogers experienced complications with her pregnancy. She
testified, ‘‘a few weeks after I had the baby, I began internal
hemorrhaging myself. That was what led to the hysterectomy
later down the line.’’45
Around the last part of May Rogers visited the plant with
her baby. Thomas inquired of Rogers when she was return-
ing to work. Rogers testified:
I said, ‘‘I don’t know. My next appointment with the
doctor is July 20th.’’ I said, ‘‘he will release me then,’’
because I had to have a cesarian [sic] and I was hemor-
rhaging before the baby was born, and I was having
problems. I said, ‘‘as soon as he releases me again, I’ll
be back and that will be around the 20th or whatever
he tells me then, I’ll let you know.’’ She said, ‘‘well,
let me know exactly—whatever when the doctor tells
you, you let me know.’’46
Park also saw the baby.
According to Thomas the Respondent required a statement
from the doctor that a person on maternity leave is ‘‘fit and
capable’’ of going back to work. Thomas testified that al-
though she knew Rogers was on maternity leave and wanted
to return to work on July 1, 1989, she did not phone her
after July 1, 1989, to inquire about her condition even though
she had called and had been calling another employee, Leslie
Bowens, who had overstayed her maternity leave to inquire
whether she intended to return to work. Thomas knew Rog-
ers wanted to return to work. Work would have been avail-
able for Rogers on July 20, 1989, when she reported for
work. Other persons were phoned by Thomas and were
hired. None were experienced knitting operators as was Rog-
ers.
Between the time Rogers appeared at the plant with her
baby on July 20, 1989, Rogers visited the plant several times
concerning her insurance premium payments. On June 19 or
20, 1989, Rogers talked to Wanda Bowman, insurance rep-
resentative trainee; Tammy Jones, payroll clerk; and Thomas
and Bobbie Lee, assistant personnel manager. When asked
when she was coming back to work Rogers replied, ‘‘[A]s
soon as the doctor releases me.’’ Rogers asked Jones whether
she could speak to Park for the purpose of asking him
whether she could work in the finishing department until her
baby was older. According to Rogers, she met with Park and
he said, ‘‘I’ll see to it Roger gets you a position over there.’’
Later Jones phoned Rogers and told her that Park said that
there wasn’t anything for her in finishing. During the con-
versation Jones asked Rogers when she was returning to
work. Rogers replied, ‘‘my next appointment is July 20th at
Doctor Wu’s and he would tell me then when I should return
back to work.’’ Jones said that she would ‘‘relay the mes-
sage to Mr. Parks.’’ This phone conversation occurred
‘‘probably about the last of June.’’47
After Rogers delivered the baby, she began hemorrhaging.
Her doctor advised her to ‘‘just . . . take it easy, and . . .
wait awhile.’’ On July 20, 1989, Rogers appeared for her
doctor’s appointment at which time the doctor gave her a
statement dated ‘‘7/20/89’’ which indicated that she could re-
turn to work. Rogers carried the statement to the Respondent
and gave it to Thomas. Thomas took the statement into the
office. After a considerable length of time Thomas returned
and handed the doctor’s statement to Rogers. Thomas re-
ported that Park was considering whether to rehire her. Rog-
ers sat in the lobby for 3 hours at which time Thomas told
her to go home and she would advise her of the decision the
next day. The next day Thomas phoned Rogers and told her
that the Respondent would not return her to work. Rogers
asked for a reason. Thomas replied that she would ask Park
and suggested Rogers phone her the next day. Rogers phoned
Thomas but she would not talk with Rogers, however, Rog-
ers was able to talk with Barbara Lee to whom Rogers
voiced the opinion that she had been fired because she testi-
fied. Barbara Lee said that she would talk to Park. The next
day Barbara Lee gave Rogers a message that Park said Rog-
ers had not been fired. ‘‘They’re looking for a place to put
you.’’ Thereafter Rogers received no response to her phone
calls. Rogers then decided to go to the plant. She saw Park
in the parking lot. Park also saw her, however, when she
asked to see Park, the answer was no. This occurred around
August 8, 1989.
Rogers filed a charge with the Board on August 11, 1989.
On September 19, 1989, Rogers was put back to work.
Thomas testified on cross-examination that Barbara Lee
told her that ‘‘they was trying to figure out why Ms. Rogers
did not come to work when she was supposed to. Why did
she wait so long, until July 20th to bring the excuse stating
that she was supposed to come back to work July the 20th.’’
(Emphasis added.) ‘‘. . . it had something to do about dou-
ble checking the doctor’s excuse.’’
Thomas further testified that a job would have been avail-
able on July 20, 1989, and that she had approved leave for
employees beyond the initial date they were expected to re-
turn to work.
According to Thomas, Rogers was first discharged and
then later Barbara Lee said she was not discharged. Rogers
was the only employee who was terminated for overstaying
maternity leave.
Park testified that he was the person who made the deci-
sion not to allow Rogers to return to work on July 20. His
reason was as follows:
Because she was supposed to return to work with a
doctor’s statement for that extended 20 days from 1st
of July until the 20th of July, but she did not bring in
doctor’s excuse.48
563KUNJA KNITTING MILLS U.S.A.
was not called as a witness. I credit Rogers. I do not believe Park; his reason
was false.
49 Park left the employment of the Respondent on February 27, 1990.
50 Park testified that he was given the number from his assistants ‘‘five (5)
times in two (2) years.’’
Park admitted that he knew that Rogers wanted to come
back to work after her pregnancy.
Conclusions and Reasons Therefor
The credible record establishes that Rogers presented a
doctor’s excuse or statement on July 20, 1989, to the Re-
spondent. Thus, the reason given by Park for Rogers dis-
charge ‘‘Because she was supposed to return with a doctor’s
statement for that extended 20 days from 1st of July until the
20th of July, but she did not bring the doctor’s excuse’’ was
false.
Accordingly, I find that by its refusal to return Margaret
Gail Rogers to employment on July 20, 1989, and its dis-
charge of her violated Section 8(a)(1) and (4) of the Act.
In the case of Best Products Co., 236 NLRB 1024, 1025
(1978), the Board opined: ‘‘In Shattuck Denn Mining Cor-
poration v. N.L.R.B., 362 F.2d 466, 470 (9th Cir. 1966), the
court stated that where the trier of fact finds that an asserted
motive for discharge is false he can infer that there is another
motive. ‘More than that, he can infer that the motive is one
that he employer desires to conceal—an unlawful motive–-
at least where the surrounding facts tend to reinforce the in-
ference.’’’
Having considered all the credible and relevant evidence
in this case, I find that the Respondent discharged Rogers on
July 20, 1989, because she testified as a witness in the pro-
ceedings on May 25, 1989, on behalf of the General Counsel
and gave testimony adverse to the Respondent’s position.
b. Discharge of Margaret Gail Rogers on November
27, 1989
Pursuant to the order reopening record dated February 12,
1990, as noted, a further hearing was held on March 12,
1990, at Mullins, South Carolina.
This hearing primarily concerned whether Margaret Gail
Rogers was unlawfully discharged by the Respondent on No-
vember 27, 1989, in violation of Section 8(a)(4) of the Act.
Rogers first testified on May 25, 1989. Thereafter, as I
found, supra, she was discharged on July 20, 1989, by the
Respondent for giving testimony in this proceeding.
In September 1989 Rogers received a certified letter from
the Respondent requesting her return to employment. Rogers
went to the plant pursuant to the letter where she talked to
the personnel assistant, Barbara Lee. Lee told Rogers to
come back to work on the A shift. (Rogers had worked on
the A shift.) However, when Rogers returned to work Lee in-
formed her that there were no openings on the A shift. Rog-
ers was then assigned to the B shift. According to Rogers,
assignment to the B shift caused an inconvenience in obtain-
ing babysitters. She did not have this problem when she
worked the A shift.
After returning to work, according to Rogers, the Koreans
were ‘‘hostile.’’ On one occasion Rogers was told by Super-
visor Kim that she could only visit the bathroom on
breaktime. This requirement, which did not apply to other
employees was later rescinded. Additionally she was moved
from machine to machine which caused a lowering of her
earnings.
Rogers worked about 3 weeks when she became ill. The
last day she worked, October 9, 1989, she ‘‘couldn’t hardly
walk.’’ She returned to Dr. Wu on October 10, 1989, her day
off, for an exploratory examination. After the exploratory ex-
amination Dr. Wu ascertained the cause of Rogers’ distress
and placed her immediately in the hospital and performed a
hysterectomy (Rogers had not anticipated such happening).
The next day when Rogers ‘‘woke up from surgery’’ she
called the plant and talked to Giles Campbell, her supervisor.
Campbell said he would report her absence but she should
also inform Frozana Thomas. Rogers phoned Thomas from
the hospital room. Rogers related that she was in the hospital
for an operation. Thomas advised Rogers to procure a doc-
tor’s excuse so that there would be no problems about her
leave ‘‘this time.’’ Rogers asked Dr. Wu’s nurse to mail an
excuse to the Respondent which was accomplished on Octo-
ber 13, 1989. Thereafter when Thomas was released from the
hospital she ‘‘carried’’ another doctor’s excuse to the Re-
spondent because Thomas had said she had not received the
doctor’s excuse mailed by Dr. Wu’s nurse, Ms. Blackburn.
(The first excuse was in the Respondent’s files.) Rogers was
granted medical leave until November 27, 1989.
On November 27, 1989, Rogers returned to the plant both
to pay her insurance and go back to work. Thomas saw Rog-
ers waiting to pay her insurance and asked her to come in
her office where Thomas informed Rogers that she was fired.
Rogers asked ‘‘Why?’’ and Thomas answered, ‘‘. . . you
knew your job wasn’t guaranteed with us to start with.’’
Rogers asked for a statement. Thomas gave her the following
statement dated November 27, 1989:
To whom it may concern:
Margaret G. Rogers was hired Feb. 22, 1988 as an
[sic] full time employee. As of Nov. 27, 1989, Ms.
Rogers was terminated.
Prior to Rogers testifying on May 25, 1989, she had no
apparent problems with medical leaves. Nor had she received
any warnings or reprimands regarding any of her medical
leaves.
Yong Suk Park49 testified that he participated in the dis-
charge of Rogers. He testified that he was ‘‘concerned about
the number of medical leaves she had taken.’’50
Park further testified, ‘‘In Margaret Rogers case it wasn’t
lay off. It was terminate . . . . according to our policy we
don’t have to necessarily hire her back after her leave. We
don’t guarantee the ones who have been on leave.’’
On cross-examination Park testified:
Margaret Rogers has been a good employee in terms
absentees [sic] and occasionally she came to stop [sic]
management including myself and make good sugges-
tions for the betterment of the plant operation and over-
all speaking Margaret Rogers is an asset employee—
she has a good skill, but she had a problem with the
medical leave and to me even though she was an excel-
lent employee, she had too many leaves and then she—
after her fourth leave she wanted to come back, but I
stopped it because I said that’s four (4) too many, but
564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
51 Thomas did not give this significant information to Rogers which raises
the inference that it was Park’s afterthought.
52 Rogers’ supervisor told her that she would ‘‘have a position, when you
come back, if they grant you a leave of absence.’’
you see my lawyer advised me to have her back and
so I put her back and right after she was asking for an-
other medical leave and I thought to myself, this is too
much and this time I rather not have her back.
Apparently on second thought, Park testified, ‘‘but she’s
not really terminated. We may or may not call her back later.
She’s not actually terminated. She’s not on a termination sta-
tus.’’
Later in his testimony, Park testified, ‘‘I told my assistant
[Thomas] . . . the reasons for—the reason that we don’t
have her back here is because of the number of leaves.’’51
‘‘What I told her is don’t have her back . . . . I didn’t tell
her terminate her . . . . I gave her reason, because of num-
ber of medical leaves.’’
Rogers was the only employee who was ever discharged
for taking too many medical leaves.
On November 27, 1989, the date Rogers sought to return
to work, the Respondent was laying off employees. However,
these employees who were being laid off were seasonal or
temporary employees whereas Rogers was a permanent em-
ployee. Having been granted sick leave it would appear that
her return to employment normally would have occurred.52
Park’s vacillation regarding the manner Rogers was treated
when she attempted to return to work creates a strong infer-
ence that his motive was ulterior. In this respect it is unclear
in his testimony whether he discharged her or laid her off.
Moreover, he volunteered that had she been ‘‘completely
healed’’ and ‘‘healthy’’ ‘‘it is a possibility we’ll have her
back.’’ This indeed seems a strange comment for him to
make because he made no effort to ascertain whether she
was in that state when he discharged her. Additionally be-
cause she was an asset and an excellent employee she was
the kind of employee most employers would have shown le-
niency under the circumstances revealed in the record. Thus
it seems Park utilized Rogers’ absence for medical reasons
as a pretext for her discharge. Her discharge was clearly a
continuation of the Respondent’s course of conduct which it
had chosen to punish employees engaging in activities which
were protected by Section 8(a)(4) of the Act. Accordingly,
I find that by its discharge of Rogers on November 27, 1989,
the Respondent violated Section 8(a)(4) of the Act. I am con-
vinced that Rogers would have been put back to work had
she not testified in these proceedings. Cf. Wright Line, supra.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act,
and it will effectuate the purposes of the Act for jurisdiction
to be exercised here.
2. By interfering with, restraining, and coercing employees
in the exercise of rights guaranteed by Section 7 of the Act,
the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1).
3. By unlawfully discharging Chyrel Burroughs on Sep-
tember 20, 1988; Michael Moody, on October 3, 1988; Ste-
ven Anthony Smith on October 5, 1988; and Gena Heming-
way, on October 5, 1988, the Respondent has engaged in un-
fair labor practices within the meaning of Section 8(a)(1) and
(3) of the Act.
4. By discharging Margaret Gail Rogers on July 20, 1989,
and on November 27, 1989, and by discharging Lester Smith
on June 6, 1989, for giving testimony in these proceedings
for the General Counsel, the Respondent violated Section
8(a)(1) and (4) of the Act.
5. The aforesaid unfair labor practices are unfair practices
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I recommend that it cease and desist
therefrom and take certain affirmative action designed to ef-
fectuate the policies of the Act. Having also found that the
Respondent unlawfully discharged Chyrel Burroughs, Mi-
chael Moody, Steven Anthony Smith, Gena Hemingway,
Margaret Gail Rogers, and Lester Smith and has failed and
refused to reinstate them in violation of the Act, it is rec-
ommended that the Respondent remedy such unlawful con-
duct. In accordance with Board policy, it is recommended
that the Respondent offer the above-named persons imme-
diate and full reinstatement to their former positions or, if
such positions no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or any other rights
and privileges previously enjoyed, dismissing, if necessary,
any employees hired on or since the date of their discharges
to fill the positions, and make them whole for any loss of
earnings they may have suffered by reason of the Respond-
ent’s acts here detailed, by payment to them of a sum of
money equal to the amount they would have earned from the
date of their unlawful discharges to the date of valid offers
of reinstatement, less their net interim earnings during such
periods, with interest thereon, to be computed on a quarterly
basis in the manner established by the Board in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest to be com-
puted in the manner prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]