Lebanon Apparel Corp.

National Labor Relations Board - Board Decisions

Aug 3, 1979

243 N.L.R.B. 1024 (N.L.R.B. 1979)

I)F.('ISIONS OF NATIONAL LABOR RELATIONS BOARD
Lebanon Apparel Corporation and International La-
dies' Garment Workers Union, AFL-CIO. Cases 5
CA 9022 2 and 5 CA 9212'
August 3, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) MEMBERS JENKINS
ANI) MURPtHY
On February 23. 1979, Administrative Law Judge
Norman Zankel issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
Charging Party filed exceptions and a supporting
brief, and Respondent filed a reply brief in support of
Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, 2 and
conclusions3 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
The inclusion of Case 5 CA 9064 in these proceedings appears to be in
error. The Regional Director on February 10. 1978. issued an order with-
drawing the notice of hearing in that case, which he further ordered that the
complaint "insofar as it relates to Case 5 (CA 9064 be and it hereby is dis-
missed." We have therefore amended the caption to delete it. In view of our
dismissal of the complaint herein, and absent exceptions by Respondent oir
objection during the hearing, we find it unnecessary to address other proce-
dural aspects.
2 The General Counsel and (bharging Party have excepted to certain credi-
bility findings made by the Administrative law Judge. It is the Board's
established policy not to overrule an administrative law judge's resolutions
with respect to credibility unless the clear preponderance of all of the rel-
evant evidence convinces us that the resolutions are incorrect. Standard Des
Wall Products, Inc. 91 NLRB 544 11950L. enfd. 188 F.2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis foir reversing his
findings.
I Chairman Fanning and Member Jenkins adhere to the view expressed in
their dissenting opinion in Essel. Internaional, Inc, 211 NLRB 749 1974).
that the phrase "working time," standing alohne. conveys an ambiguous
meaning to employees, and that a rule against solicitation "during working
time" is therefore presumptively invalid. In their opinion. the cogency of this
approach is indeed highlighted by the fact that here Respondent itself be-
lieved it necessary to inform the employees on Novembnher 10 that the rule
against solicitation was not meant to include "your breaks or lunch periods.
or before and after working hours." Accordingly, (Chairman Fanning and
Member Jenkins would find Respondent's no-solicitation rule invalid until
modified on November 10 but affirm the Administrative aw Judge In the
absence of a Board majority for that interpretation.
DECISION
SIAIIMI:NI OF IIlI (ASI:
NORMAN ZANKiEI. Administrative Law Judge: These
cases were heard before me on November 14 16. 1978. at
Abingdon. Virginia.
All the charges herein were filed by International l.adies'
Garment Workers' Union. AFL ('CIO (hereinafter called
the Union). The charge in C'ase 5 CA 9022 2 was filed on
November 21, 1977: in Case 5 CA 9064 on December 13.
1977:' and in ase 5-CA-9212 on February 13. 1978. On
March 27. 1978. the charge in Case 5-('A-9212 was
amended. On August 17. 1978 the Regional Director for
Region five of the National Labor Relations Board (herein-
after called the Board) issued an order consolidating cases,
amended complaint, and notice of hearing. The complaint
alleges that Lebanon Apparel Corporation (hereinafter
called the Employer) committed violations of Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended (hereinafter called the Act).
In essence, the complaint alleges the Employer engaged
in a variety of conduct which interfered with, restrained.
and coerced employees in the exercise of their rights guar-
anteed by Section 7 of the Act. Additionally, it is alleged
the Employer discriminatorily terminated the employment
of its employees Lisa Hubbard. Mary Shreve. Hazel Bostic.
Frances Musick Shelby Rhea, and Elizabeth A. Taylor be-
cause they engaged in union activity.
The Employer filed a timely answer to the complaint ad-
mitting certain allegations but denying the substantive alle-
gations and denying that it committed any unfair labor
practice. All issues were fully litigated at the hearing; all
parties were represented by counsel and were afforded full
opportunity to examine and cross-examine witnesses, to in-
troduce evidence pertinent to the issues, and to engage in
oral argument. Post-hearing briefs have been received from
the Board's counsel fr the General Counsel. from the Em-
ployer's counsel and from counsel for the Union. Those
briefs have been carefully considered.?
Upon the entire record, and from my observation of the
witnesses and their demeanor in the witness chair, and
upon substantial, reliable evidence. "considered along with
the consistency and inherent probability of testimony"
(Universal Camera Corp. v. N..R.B., 340 U.S. 474. 496
(1951)). I make the following:
FINI)IN(;S AN) ( ()N(.L:S()NS
1. IeL tMI'IOYIR S H:SI NESS
The Employer, a Virginia corporation, is engaged in the
manufacture and distribution of clothing. It maintains its
plant in Lebanon, Virginia. I)uring the 12 months immedi-
ately preceding the issuance of the consolidated amended
complaint (a representative period), the Imploer sold and
All dates hereinafter refer to 1977 unless otherwise stated
2 The Fmployer's unopposed posl-hearing motion io correct the official
transcript is hereby granted
243 NLRB No. 136
1024
LEBANON APPAREL CORPORATION
shipped in interstate commerce products valued in excess of
$50.000 to points located directly outside Virginia.
The Employer admits, the record reflects, and I find that
it is an Employer engaged in commerce within the meaning
of Section 2(2). (6). and (7) of the Act.
II. TIlE ABOR OR(iANIZA II )N INVOI 'EFD
No party contends that the Union is not a labor organi-
zation within the meaning of the Act. In view of' this, and
because the record reflects that the Union exists and func-
tions, in whole or in part. for the purpose of admitting em-
ployees to membership and dealing with their employers in
matters appropriate for collective bargaining I find the
Union is a labor organization within the meaning of Section
2(5) of the Act.
Ill. Tit AlI.tE(EI) UNAIR I ABOR PRA('II( IS
A. Credibility
There are significant conflicts between the testimony of
the General Counsel and employer witnesses. The 8(a)(I)
allegations are virtually totally dependent upon which of
the witnesses presented the most accurate narration of inci-
dents.
Where conflicts in testimony exist in critical areas be-
tween the witnesses for opposing parties. I accept the ver-
sions presented by the Employer's witnesses. This determi-
nation is based upon my observation of the demeanor of
the witnesses, the weight of the respective evidence pro-
vided by them, established or admitted facts, inherent prob-
abilities, and reasonable inferences which may he drawn
from the record as a whole. N.L.R.B. v. Walton Manujfac-
luring Company and Loganiville Pants Co. 369 U.S. 404
(1962): Gold Standard Enterprises. Inc.. 234 NLRB 618
(1968); Warren L. Rose Castings, Inc. dlb/al & W Cast-
ings, 231 NLRB 912, 913 (1977). This is not to say that I
have totally discredited each of the General Counsel's wit-
nesses. "[N]othing is more common in all kinds of judicial
decisions than to believe some and not all." of what wit-
nesses testify. N.L.R. B. v. Universal Camnera Corporation,
179 F.2d 749, 754 (2d Cir. 1950).
The principal employer witnesses, Geoffrey B. Boden-
horst and Joe Gillespie, Jr.. the Employer's vice president
and manager, respectively, were direct, comprehensive, cer-
tain, clear, concise, and precise when relating relevant
events. In many respects, the Employer's records received
in evidence support their testimony. Similarly, Supervisors
Betty Taylor' and Eva Fields were direct and sure when
presenting their testimony. Taylor, in part, was supported
by documentary evidence. Fields' testimony was limited in
length and content. Fields unequivocally denied engaging
in the interrogation alleged in complaint paragraph 5(a).
Fields is supposed to have unlawfully interrogated em-
ployee Deborah Musick.4 Fields recalled remarks concern-
ing the Union made to her by Musick in January. 1978.
' This supervisor is not to he confused with alleged discriminatee Elizabeth
A. Taylor. They are not the same individual.
4 Deborah Musick is not related to alleged discriminatee Frances Musick.
Fields related the conversation with certaint. Fields testi-
fied the conversation was initiated by D. Musick. On the
other hand. D. Musick claimed that it was Fields who initi-
ated a Union conversation and it occurred in late October.
However, D. Musick could not recall either the date or time
the conversation is supposed to have occurred. In all other
respects. the testimony of D. Musick was as direct as that of
Fields.
Fields testified, without contradiction or challenge. that
in October, shortly after union activity became overt. Gil-
lespie instructed the supervisors to have no conversations
concerning the Union with employees. Chronologicall. I
find this directive to have been given some time in late
October. I consider it improbable that a supervisor would
have disobeyed a superior's instruction so close to the time
D. Musick places the alleged unlawful conversation. Dur-
ing cross-examination. D. Musick acknowledged her inabil-
ity to recall even whether the conversation occurred in the
morning or evening. She ascribed this recall problem to the
passage of time, saying, "ll]t's been a long time.' In this
context, and considering the probable circumstances. I ac-
cept Fields' narration over that of D. Musick.
In contrast to the demeanor, consistency. and the other
elements (described above) I have used to assess credibility.
I have relied upon a number of other factors which f per-
ceive diminish the reliability of the principal General (Coun-
sel witnesses. Some. but not all. of these actors are de-
scribed belo,.
Bostic was prone to exaggeration. When examined b the
General Counsel. Bostic testified she had not received any
warning concerning herjob before her termination. She re-
peated this at the beginning of her cross-examination. She
was then shown a warning notice dated August 2. l.ater in
her testimony, Bostic acknowledged to me that she did not
disagree with the comments upon her termination notice to
the effect that she had been a low producer. In this connec-
tion. Bostic testified. "' knew I hadn't been making produc-
tion."
In an apparent effort to create the basis for an inference
of union animus, Bostic testified her job was changed
shortly after her name appeared on a mailgram listing the
names of employees on the Union's organizing committee.
As will be seen below, that mailgram was dispatched hby the
Union to the Employer on November 2. Bostic's testimon
was directly contradicted by her production records (Resp.
Exh. I I) which, combined with an uncontradicted explana-
tion by Gillespie, show that Bostic (also known as Breed-
love) actually had been transferred on October II. This.
contrary to Bostic's assertion, was before the mailgram.
Complaint paragraph 5(l) alleges the Employer refused
to grant employees' requests to leave work early because of
their Union affiliation, sympathies, and activities. Em-
ployee Rosa Jones was produced by the General (counsel to
prove this allegation. Jones. in part. testified that another
employees. Virginia Breeding, had been granted time off to
permit her to obtain automobile license tags. Breeding did
not testify. However, Breeding's timecard for the period in
question (Resp. Exh. 6) shows Breeding left early all that
week. Supervisor Taylor credibly explained Breeding was
permitted to leave early so she could be at her home when
her child returned from school. Jones testified Breeding told
1025
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her she was leaving early to get her license tags. I am asked
to accept Jones' testimony as the basis for making an ad-
verse inference against the Employer. In view of the docu-
mentary evidence. I cannot do so. Breeding's timecard, cou-
pled with Taylor's testimony, refutes Jones' implications.
Jones, when being examined by union counsel, expanded
the scope of a required response by volunteering that an
antiunion co-employee had defective work but "never had a
warning notice." Jones identified the coworker as Randy
Ball. According to Jones, Ball was "not a very good sewer."
It is unrefuted that Ball was unsympathetic to the Union.
Jones' observation that Ball received no warnings is contra-
dicted by documentary evidence. Thus, Jones' termination
slip indicates she was employed until December 15. On De-
cember 6 (see Resp. Exh. 12) Ball received written warning
for defective work.
Jones was self-contradictory. In an effort to dispel Jones'
direct testimony tending to show disparate treatment
toward Jones regarding her request for a leave of absence.
the Employer's counsel asked Jones whether Gillespie told
her to advise him when she was ready to return to work.
(Gillespie had already granted Jones' request for a volun-
tary layoff.) Jones first responded, "[njo, he didn't." Jones
then vastly expanded her response to the employer coun-
sel's questions. Jones concluded her response volunteering
events unresponsive to the question asked. Jones clearly
sought to convey an impression in her expanded answer
that Gillespie was avoiding her. Thus, Jones said she had
received a "little run around. Mr. Gillespie was always busy
or he's always gone or he can't come to the phone or some-
thing." After all this, I cautioned Jones to be more respon-
sive and requested her to again answer whether or not Gil-
lespie instructed her to call him when she was ready to
return to work. Jones' response to me was a total contradic-
tion of her earlier answer to the Employer's counsel.
Finally, at the hearing I observed Jones parrying with the
Employer's counsel during her cross-examination. My re-
view of the official transcript confirms these earlier impres-
sions. Upon all the foregoing, I simply cannot rely upon
any of Jones' testimony except where it is corroborated by
employer witnesses testifying upon the same subject matter.
Hubbard was unsure of events and exhibited a propen-
sity to present herself in the best possible light. Hubbard
testified that she first contacted the Employer about return-
ing to work after her layoff approximately 3 weeks after it
occurred. During cross-examination, she conceded that she
told the Board's investigating agent she made that first con-
tact only one week after the layoff.
Additionally, Hubbard had a letter resigning her union
membership submitted to Gillespie. She did not, however,
submit that letter to the Union. Obviously, this procedure
was designed to induce the Employer to believe Hubbard
was no longer a union adherent. If I were not concerned
with evaluating credibility of witnesses, this incident could
be passed over lightly. It could be said that Hubbard was
understandably trying to use all means to revive her em-
ployment. Her instinctive action therefore could be excused
by mitigating circumstances albeit she concocted a fabrica-
tion. In the serious circumstances before me, Hubbard was
presented to support the General Counsel's claim that Gil-
lespie conditioned Hubbard's reinstatement upon her with-
drawal from the Union. This matter is not alleged as an
unfair labor practice in the complaint. Apparently it is of-
fered to demonstrate the Employer's union animus. Unde-
niably, Hubbard was confronted at the hearing with the
same problem she had with Gillespie. Now, she must ap-
pear believable in order to preserve her opportunity to re-
turn to work for the Employer. In view of my observations
of her in the witness chair, her testimonial uncertainty and
her demonstrated effort to fabricate to regain her job, I
place little significance upon Hubbard's testimony in cru-
cial areas. In this connection, the General Counsel has
noted the similarity in language used in Hubbard's letter of
resignation to that which is contained in a letter from Gil-
lespie to the production employees by which he advised
them how they might repudiate their authorization cards.' I
agree that the language in the two documents is similar.
However. Hubbard testified she personally did not hear
Gillespie say that her withdrawal from the Union was a
condition of reemployment. Instead. Hubbard testified that
another employee. R. Eads (Hubbard's aunt) is the one who
had the conversation with Gillespie. Eads was continuously
employed by the Employer at all times material and
through the hearing dates. Eads did not testify. I draw no
adverse inference from Eads' failure to testify. This, how-
ever, does not enhance Hubbard's credibility. Gillespie's
letter was distributed to all employees. Presumably. Eads
received a copy. (Hubbard had already been laid off before
Gillespie's letter was distributed.) In this context, the simi-
larity in language between Hubbard's and Gillespie's letters
is not necessarily attributable to Eads' report to Hubbard as
to what might have transpired between Eads and Gillespie.
It isjust as likely that Hubbard was in receipt of Gillespie's
letter and copied from it. Hubbard could have obtained a
copy from Eads or any other employee still employed. In-
deed. I find it more probable that Hubbard copied some of
Gillespie's language from his letter than that her union res-
ignation was couched in language related to her by Fads. It
is more likely that verbatim transcriptions occur from ob-
servation of the printed word than from what may have
been heard from some other person.
Frances Musick. in part, was produced by the General
Counsel to support the allegations of complaint paragraphs
5(h) and (i). In essence, these paragraphs allege 8(a)(l) vio-
lations by a change in working conditions of the bundlers
and issuing of warnings to discourage the union activity of
the employees. Also, F. Musick's testimony bears upon the
Employer's motivation for the terminations.
F. Musick was not identified as a member of the Union's
organizing committee on either of the mailgrams sent by
the Union to the Employer. In salient part, F. Musick testi-
fied that she was given a warning for poor performance
when bundlers Mills. Shreve, and Combs received a warn-
ing. Shreve and F. Musick are alleged discriminatees. F.
Musick further testified she asked Gillespie why he gave her
a warning. She testified that Gillespie told her the Employer
had no complaints about her work but that he "had to give
. . [Musick . . . one [a warning] in order to give the rest
one." Also, Musick testified that when she received her ter-
' The contents of this letter are not the subject of any unfair labor practice
allegation before me.
1026
I FBIAN()N A'PPARI.I ( RI'()RA I I()N
mination ncti.e which indicated she was being terminaeted
as part of a reduction in force, Gillespie said "I1 hate to do
this to yo. F:rances. but I don't have no other choice."
Gillespie testified he did not recall whether he had a con-
versation with F. Musick ater she received her writen
warning. lie did recall that he spoke with all the employees
assembled together earlier that day. It was Supervisor
Horne who actually delivered the warning slip. Gillespie
said he would have remembered telling F. Musick that he
had no other choice but to give her a warning in order to
give one to the other employees. Gillespie said such a state-
ment would be "contrary to everything else I had done that
day."
Gillespie did recall speaking with F. Musick around the
time she received her termination svhp. During that conversa-
tion. Gillespie recounted that he told her "we were going to
have a reduction in force due to the fact that we didn't have
any more blouses and I was sorry, but that I had no other
choice."
Considering all the above in total context I conclude F.
Musick was confused and interjected her perception of
what she heard. Gillespie's account of what occurred on the
day the warnings were given is logical. It would be unlikely
for him to have been apologetic in any way after giving an
oral reprimand to the group of employees. Sequentially. his
account rings true. It is unrebutted that Horne actually de-
livered the written warning slips. This delivery was made
later in the day, sometime after Gillespie spoke with the
group of employees. Thus, Gillespie could not have been
present at the time F. Musick claimed she received her writ-
ten warning. Accordingly. I find that Gillespie did not say
the things ascribed in him by F. Musick at the time she
received her written warning.
Gillespie's version of what he said to Musick when giving
her the termination slip is plausible. The words he used do
not necessarily reflect the unlawful motivation urged by the
General Counsel. It is not unusual for an employer effectu-
ating a layoff to do so in compassionate terms. I conclude
the words he used were as he testified. I find those words
express regret at having to implement the layoff. This con-
clusion is buttressed by the testimonial and documentary
evidence which shows the layoff affected 28 employees. Of
these. only five are alleged discriminatees. Of these five.
only two. Shreve and Bostic. had been identified in the
mailgrams as members of the Union's organizing commit-
tee. In this framework. I conclude F. Musick incorrectly
testified that she had two separate conversations with Gil-
lespie and that his version of what occurred is the most
reliable.
The last conclusion is fortified by F. Musick's vague rec-
ollection of her testimony regarding the allegations in com-
plaint paragraph 5(a). During her cross-examination. F.
Musick could not recall either the date on which the alleged
unlawful conversation with Supervisor Fields occurred or
even the time of day they spoke. Fields. as already noted.
was sure and direct.
Upon all the foregoing I find F. Musick an unreliable
witness compared to those of the Employer who testified
upon the same subjects.
Elizabeth A. Taylor was imprecise and less than candid.
As a General Counsel witness. Taylor's direct examination
was otlered to support the allegations t ctllpla.int para-
graphs 5(d) (g). [tach of these allegations arose out of ( ;
conversation between la',or and ilodellhorsL. D)uring her
direct examination. Taylor lestified as to i single conlers;a-
tion with Bodenhorst on )ecember 2. losweser, oin cross-
examination. aylor indicated she actually had twio con. er-
sations with Bodenhorst that da. In realit 5 . one conversa-
tion was on December I and a second ; as on I)eceimber 2.
Taylor's testimony is punctuated with .ariations of material
matters. For example. she was asked to describe the alleged
interrogation (complaint paragraph 5(d)) by Bodenhorst. In
doing so she provided at least two versions. aylor altered
her formulation of the question allegedly asked bh Bodeln-
horst fromn whether laylor was "pianning on joining the
Union tlo whether Taflor was "being talked to about join-
ing the nion." later in her testimony. Ta,lor presenllng
still another ersion. to it: that Bodenhors asked her
whether she "had been talked into joining the Ilnion."
Moreover. . a10or's testimony was flawed in another
respect. She ;as asked whether she as; all alrc ' %arIOus
company policies. In relesant part. Taylor testified she w.as
not aware of the Employer's rule requiring emplo\ecs to
call the office to report the reason for an extended ahbsnce.
Also. she disclaimed knowledge of the rule which pro\ ided
for termination of employment after an absence o1f 3 dlas
without complying with the call-in rule. That rule i the
third among seventeen numbered paragraphs on a docu-
ment entitled "Company Rules" dated Januar% 9. 174.
That document had been posted on emnplo',e bulletin
boards. Taylor testified she had not seen "an: notices like
that on the bulletin board." However. she ackilos iedged
that she read notices advising of legal holidays and aca tion
eligibility. I find such selective recall diminishes F. a\. lor's
credibilit.
E. Taylor was not candid. She demonstrated an eagerness
to answer questions on direct examination without regard
for the truth. An example is the following excerpt from the
official transcript:
(By Mr. Mc(all)
Q. Prior to the layoff of the four employees I just
named. did the spreaders and cutters help the bundlers
bundle?
A. From then until the second of December. That's
the last day I worked.
Q. My question was, prior to the layoff oft Hubbard,
Shreve and transfer of Mills and the layoff ft' Musick.
did the cutters and spreaders help the bundlers bundle'
A. Oh yes. they did.
Q. Prior to the layoff of these people
JUIDGE ZANKEI.: Do you understand the word
"prior"?
WirNLss: Does that mean after the girls lay off?
JUI)iGE ZANKEL: No, it means before.
WIrNEss: No. they weren't allowed to bundle. [Em-
phasis supplied.]
This excerpt shows E. Taylor was willing to answer ques-
tions although she did not understand their meaning.
Finally. there exists a blatant example of E. Taylor's un-
reliability as a General Counsel witness. She described at
length her discourse with Bodenhorst where he allegedly
1027
(I)(ISIO()NS ()1 NA I IONAI ABO()R RIlA I I)NS BO()ARI)
made slatlleiiints iolatisc of Section 8(a)(I) on I)ecemher
2. Based upon he- Ispionses diuring direct exmnination. one
could easily couclude iriu ilt it, evidence of eCach of the
four complaint allegations to which that testimony was ad-
dressed. Bodenhorst testified concerning his conversations
with E. Taylor. In effect. he repudiated all her testimony in
material respects. After presenting his version of what oc-
curred, he produced his handwritten notes of the material
confrontation with F. aylor. Bodenhorst wrote those notes
immediately after Taylor left his offlice on )ecember I. lie
thereafter retained the notes in Taylor's personnel file.
Those notes were received in evidence as Respondentl's Ex-
hibit 25 over the General ('ounsel's objection. I received
that exhibit for the explicit purpose of' assisting in resolving
the clear credibility issue which had developed between
Bodenhorst and . Taylor through their oral testimony. I
have not considered the contents of' Bodenhorst's notes to
prove the substance of what is contained in them. They are,
however, corroborative of his oral narration at the instant
hearing. Accordingly. those notes have been used ais but
one element, considered along with the Iilctors already de-
scribed relative to E. Taylor, by which I conclude Taylor is
not as reliable a source of' facts as Bodenhorst.
Shreve demonstrated a desire to cast her testimony in a
light most favorable to the General Counsel. Thus, she did
not hesitate to testify that she received no written warnings
before her name appeared on the Union's first (October 26)
mailgram. Although Shreve technically is correct. this testi-
mony is fallacious and distorted. The record reveals the
Union's October 26 mailgram was dispatched at 1:20 p.m.
that day. It could not have been received by the Employer
before October 27. A copy of that mailgram was contained
in a union flyer distributed among employees alfter work on
October 27. That distribution occurred after Shreve re-
ceived her warning. Gillespie candidly testified he recalled
the mailgram was received "a day or two" after its dispatch.
Bodenhorst recalled positively the mailgram was received
on October 28. I credit Bodenhorst's certain recall. From
the foregoing it is clear the first time the Employer could
have had knowledge of Shreve's position on the Union's
organizing committee was when the flyer was distributed
after Shreve's October 27 workday. Accordingly, I find
these circumstances do not support the inference of em-
ployer knowledge of Shreve's union activities prior to issu-
ing her warning. I consider this distortion of evidence to
adversely impact upon Shreve's credibility.
Additionally, Shreve demonstrated extremely selective
recall on crucial matters. For example, she testified that she
had not seen the "Company Rules" (described hereinabove)
posted on the employee bulletin board. However, she re-
called seeing the rule pertaining to a prohibition against
food or drinks in the production area. She claimed she saw
that rule posted separately at the entrance to the produc-
tion area. That rule is the first among the 17 numbered
items. It stretches credulity to subscribe to Shreve's denial
of having knowledge of any of the remaining 16 rules. Cer-
tainly, she at least glanced at them. She testified that what
she saw on the bulletin board "got a lot of items." I infer
her selectivity is attributable to a desire to distort her testi-
mony.
Yet anllother ieni reveals such ;an intentioll. As carlier
indicailed, tile mployer deflndts the alleged discrlinu;lrtor
tIcrminations oln econonmic grounds. Related to that conelln-
lion is the nrployer's assertion itI wts plagued with quialit
control problems in certain segments of its production op-
eration. Shreve first denied any knowledge of quality con-
trol problems before the union activity became overt. I)ur-
ing cross-exa;lmination Shreve admitted that Bodenhorst
had addressed the employees about management's concern
over the quality of production weeks before the LInion's
first mailgram.
Alice Mills. too, was not fully candid. She as called by
thle (eneral ('otunsel to estif'. inltr. al(. as to the isolation
of prounlion emlployecs fromn the others (see colmplaint para-
graph 5(11)). Mills' name appeared on the tInion's October
26 mailgramll. During her direct examination. Mills testified
that immnedialel's alter that mailgram. she and Shreve were
required to work together as a teamln. Mills further testified
that ornie earlier had not permitted her to work together
with Shreve. Mills claimed that I lorne "usually separated"
theml. ronm this testimony I am asked to infier that the
dispatch of the October 26 mailgram stimulated an unlaiw-
ful policy change because Mills and Shreve were the onl,1
bundlers identified as members of the Ulnion's organlilng
committee. Interestingly. careful examination o Mills' di-
rect testimony shows that she did not testil' that all other
bundling employees. also, were paired. I find this omission
to he a factual distortion. (onsidered in the light of the
Eimploy er's explanation (to be discussed. in/rai) regarding
the reason for pairing the bundlers. I conclude this is a
material omission which tends to make Mills' testimony
suspect.
Without plroliferating tll is lrcadv extended discussion re-
garding credibility. some lew observations are in order re-
garding the critical employer wiitnesses.
In a mnai or attack against (iillespie's credibility the Gen-
eral ('ounsel. in their brief, argue that (iillespie's testimony
is "so blatantly contradictory" he cannot be credited. This
argument is based upon what General Counsel describes as
Gillespie's testimony to the effect that "prior to . .. Ithe
Employerl getting the . .. blousel ... contract the bundlers
put out 25(X) dozen garmncyl per week . . . and that. during
the time that . . . the Employer] . . . was working on . . .
Ithatl . . . contract. the bundlers put out 2.500 dozen gar-
menu.s per week." The General Counsel then noted that Gil-
lespie "testified that 'blouses generally' bypass the cutting
department which is where the bundlers work." I'he argu-
ment is made that this testimony reveals no additional work
was added to the bundlers during the period when the Em-
ployer worked on blouses. This testimony was adduced dur-
ing Gillespie's cross-examination.
During his direct examination, Gillespie testified as fol-
lows:
(By Mr. Sturges):
Q. Why did you have reduction in force?
A. Because we lost a blouse contract with Lucky
Winner.
Q. And how many dozen blouses had you been
making a week?
A. Approximately 500 dozen a week.
102()8
1.1IIAN)N ,'f'\Rf I ()RI)RA I ION
). \Xild how, illans do/c1 othlrl gotfds \ere oitll
making week'?
A. Approxinlmatel 2(K(X) dozen in the unilorills.
(). So when \ou lost tilt hblouse contracl-;t, did l
still mllilntiln the same olume )lo uniftril work'?
A. Yes, we did.
I find no contradiction h (Gillespic bhieteen the lesti-
mony provided during direct and cross-examinat lion. In
both instances. (illespie was consistent in saiing that the
Employer produced 2500 dozen total garments during the
period it had the blouse contract. Ihat suin consisted of
2.000 dozen of' niiOrms and 5(X) dozen blouses. I place no
significance upon Gillespie's acknowledgeICmentl that bhlouses
hbypassed the cutting department. The General ('ounsel, in
observing that that is the location where bundlers worked.
has made an unwarranted assumption from the testimonx
that the blouses bypassed the bundlers. actuall,. this as-
sumption is refuted by at least one of tile ( eneral ('ounsel's
own witnesses. E. T'aylor testified that the hundlelrs "ere
required to do 2.50( dozen a week." Thus. Talor's testi-
mony, in conjunction with (illespie's. establishes that bun-
diers worked on blouses. The total numbher of' garments
bundlers were required to produce is identicall to the nuni-
her Gillespie claimed had been produced. Accordingl I
conclude that the fact blouses bypassed the cutting depart-
ment merely connotes that cutting department eplosees.
other than bundlers. needed to perform no regular function
on blouses. In this context I reJect the General ('Counsel's
proposition that Gillespie was self-contradictor.
As to Bodenhorst and Fields. I have previously noted
several examples which lead me to conclude that each is a
more reliable witness than those presented bh the General
Counsel to testily upon the same subjects.
Supervisor Betty Taylor appeared as an emploxer wit-
ness. She impressed me with her sincerity. She was candid.
Where she had no present recollection of events at the hear-
ing. she readily admitted this fact. In contrast, the General
Counsel witnesses presenting opposing testimony provided
responses to questions even when they were unsure of the
facts or had hazy recollection.
Employee Edna Combs also was called as a witness by
the Employer. She was careful to respond only to facts of
which she was certain. In general, Combs' testimony was
forthright and spontaneous. Combs was unshaken on cross-
examination. I credit her.,
B. Introductlion'
The events herein emanate from the Union's efforts to
organize certain employees of the Employer. The campaign
began in the fall.
On September 29, Gillespie wrote each employee in-
volved. His letter reveals the Employer was aware organiz-
ing was in progress. Gillespie indicated the Employer's gen-
I In view of the above-described testimonial discrepancies. I place little
significance upon the fact thai D. Musick and Mills were current employees
of the Employer when they testified. Cf. Si Anne's Home. Division of DePaul
Communit' Health Center, 221 NLRB 839, 844 (1975.
The facts presented in this section are a composite of the credited lesil-
mony, unrefuted evidence, and documentarN exhibits.
ciil olppositoll t) unlliliitill. Alter oulltiitinug Ile rca..lr s
lo l lt I tiplhxer pIin.ii ilh ellter flOesed i s'l t i
solici;tation. ;is 1ilo s: "'You 1itl 11. durillg s orkin
inlC, enallge in union organizing acitl\ltles. \n'ne liio
does so allli thercbh neglects his on w ork r inlerteres
ilil tile work of thers i subject to discplinarx action up
to and Incllding dichiarge.'." lhe letter endled ith a stale-
nlenl of the mplol er's belief that a U111011 l was 1un neessa;r
and an invitation to obtain urther infolrnmation rolll super-
In mid-()ctober. the bundlers had several specilic coin-
plaints concerning their w;ages and working conditions, At
that timne the bundlers mel w ith hBodenhollrst tO liscuss these
cmlliintse. IhI Ilioldl hn theo r C wll r dissatIlliled Ilh Itheir
treatslent bhi their upcr\ ilso, lorne. ind Ihe ,l askcd for a
a;lge increase.
As alread) noted. on ()ctober 26 the l on i lipaltchd ll its
first mililgraml which identified the follo nl mg emploccs as
ellbers of' the lni oln's orga;inlig conlllittee: ( aril BHall.
Herth;l Ilufifnan, Rosa Jones. Alice Mills. )ehorah MNlsick.
Ma;r\- Sclhree, and )eboralh W\!att. Ihe Hlcr containinll a
falcsimile copy f' the October 26 mailgrani Wls dlstributed
bI th' I iion at the nd of the nit t en t Octobr 27 w\rkdal \. Nei-
tleCl tIhe mailgram; itself nol the fler :\as rceiced bI the
Imnplitser until October 28.
O()n No\ ember 2. the t!rion dispatched its econd mail-
gra;n. As indicated, this mailgranm expanded the I nion's
commnittee h repeating all the nilmes contained i i its irst
mailgrani and adding the following: Martha Barton. Ilazel
Bostic. Edna l las lor. Ilizabeth A. las\lor. and (iarnett
I'homlpson. he Emplo er acknowledges receipt of tile sec-
onld lmailgralm on Nociselln 6.
'Ihe limplo er had a progressive discipline polic wilchl
provided for an ora;l Alarning Iollowed b t o s rillten warn-
ings hefore all emnplo)ee \as suh iec to terminiation. In the
course oft the LJnion's campaign the Lmplo yer experienced
serious quality control problems. On October I 1, one of its
customers. Kress Ulniform (Conpan), wrote the Employer
complaining ofl mnsnlallthing of sizes and excessive numbers
of returns. As a result. todelnhorst and Gillespie activ ely
participated, together with the departmental supervisors in
seeking out the cause of the poor production. In conse-
quence, the numbers, of written warnings issued to emplo s-
ees markedly increased. hus, the record reflects that only
seven written warnings were issued in calendar year 1976.
Twenty-two such warnings were issued between January I.
1977. and September 16, 1977. No written warnings were
given between September 17 and October 2. Eighteen writ-
ten warnings were issued from October 3 to December 6. Of
this latter number. eight warnings were issued to bundlers.
No warnings were issued from December 7 to December
31.
In addition to the quality control problems, some time in
late October or early November the Employer lost its
Lucky Winner blouse contract. As a result it was decided to
consolidate the work force wherever possible and conduct a
reduction in force by laying employees off for lack of work.
The layoffs began on November 4. On that date employee
Mary B. Chafin was laid off. On November 7 the Employer
laid off l)arlene Tignor. Also on November 7. Mills was
transferred from her bundling job to be a sewing machine
1 )29
I)I('lISI()NS () N II()NAI. IAB()R RI I.\ l IONS B(OARI)
operator ()n Noemniher . Iluhhard was laid oif. Slireve.
Bostic, anid . Musick were laid oill'on Novembelnr It. Also,.
on November 10. eLmployees Stella Anderson, .laynelle lios-
tic, and Farmer and (;lenda lelton ere laid ofif.
After November 0,). the layotls continued. 'the layoffs
occurred as follows: November I I five employ ees: Novcim-
her 14. three employees; November 16. three employvees
November 17. 18, 21. and 22. one employee on each date;
and November 23. two employees. Alleged discriminatee
Rhea was the single employee laid off on November 22.
E. Taylor was terminated on February 2. 1978. ior
absenting herself in excess ol 3 days without calling in or
requesting a leave of absence.
C. Inter/'rence, Restrain, and (oerion
It is alleged in paragraph 5(a) of the complaint that on or
about October 26, Fields interrogated employees concern-
ing their union activities. As indicated. D. Musick testified
Fields approached her at her work station. There. Fields
asked if Musick had been visited by the Uinion. Musick
testified she said yes. According to Musick. Fields then told
Musick not to get involved.
I have already noted that Fields unequivocally denied
she had any such conversation with Musick. For reasons
previously stated. I credit this denial. Additionally. Fields
testified, without contradiction, that she and Musick spoke
in January 1978. Fields credibly testified Musick called
Fields to her work station. uring that conversation,
Musick admitted to Fields that Fields had not previously
said anything to her about the Union.
Fields was consistent in her narration of the JanuarN con-
versation through cross- and redirect examination.
The January conversation described by Fields occurred
after the charge (5 CA 9022 2) had been filed. That charge
contained the subject matter of Fields' alleged involvement
in unfair labor practices. When this is considered in the
context of the widespread layoffs. it is reasonable to assume
D. Musick was apprehensive over her job tenure. I have
found the October conversation did not occur as described
by Musick. Accordingly. I conclude it is plausible that
Musick spoke with Fields in January as described by Fields
in order to extricate herself (Musick) from her inaccurate
assertions.
Upon the foregoing, I conclude that Fields did not inter-
rogate D. Musick, as alleged, and find no merit to the alle-
gations of complaint paragraph 5(a).
Complaint paragraph 5(b) asserts the Employer unlaw-
fully promulgated and maintained a discriminatory no-so-
licitation rule as "set forth in a letter dated September 29,
1977." This allegation refers to the no-solicitation language,
the full text of which appears hereinabove. As noted, this
no-solicitation statement appeared in Gillespie's September
29 letter to the employees.
The General Counsel concedes the presumptive validity
of the rule.' On its face, it limits union solicitation to "work-
ing time" in accord with the teaching of Essex. Interna-
tional, Inc.. 211 NLRB 749 (1974). However, the General
Counsel argues that the evidence effectively rebuts the pre-
' The Union claims the rule itself is invalid.
stniliptill of' vialidity. l (teneril ( 'oirlnsl relics u1lon tvo
g tlluIIds: I) trIat the "new'" iule wlis published onl Selticni-
her 29 'af Ier lle advent of te ('mnun tiganluzltiing Lca i-
paignl'' and (2) the evidence reals a d.,pisparl.te application
of Ilie rule thereafter.
A no-solicilatilon rule had been inaintt;ined bh the I1m-
ploier at least since J;inuar 9 1974. 1he "('o)liant
Rules" which had been posted contained the l'ollowing lan-
guage in paragraph numbered 6: "There will bhe no solicit-
ing in the fctory without the M langer' s authorization."''
On or about November 10, (iillespie addressed the em-
ployees over a loudspeaker. In material part he told them
"there is to he no solicitation for or against the Union dur-
ing working hours by anyone. This does notit. however. in-
clude your breaks or lunch periods, or before and after
working hours."
TIhere is no evidence that any einplloee was disciplined
lir breach of the rule.
Regarding implementationl Shreve and . a lor testi-
fied they observed specific incidents of' solicitatiotn ior
c;auses other than the Ulnion. IThere is no direct evidence
that any ofl the Einploer's managerial officials was aware
of' such solicitation. Also, there is no evidence to reflect
whether or not that solicitation wails widespread. (iillespie
denied having kno ledge of ans such solicitation.
In t.\c'x Islcrtalhlortl[ , the Board atllilotinced a clear dis-
tinction between the terms "working hours" and "working
time." Working hours refers to the period of' time from the
beginning to the end of a work shift. Working timte is inter-
preted as the period of time spent in the performatnce of
actual job dutllies. 'he Board concluded "the use of'.
[working timel... in a no-solicitalion or no-distribution
rule would clearlyI convey the meaning to employees that
they were free to engage in solicitation or distribution dur-
ing lunch and break periods which occur during their
working hours.'" 211 NlRB 750. From this. I conclude
that whatever may have been the effect of' the Fmployer's
1974 no-solicitation rule, there is nothing invalid about the
rule which was promulgated on September 9 in Gillespie's
letter. Evve International clearly provides license to em-
ployers to use the phrase "working time." Moreover. even i'
it is arguable that any part of the Employer's September 29
rule is ambiguous. I conclude that Gillespie's oral loud-
speaker announcement vitiates such a contention. The
loudspeaker announcement explicitly defines the param-
eters of the Employer's rule and makes it consistent with
the rule of' Es'e' International.
There is no factual basis on which to conclude the rule
was implemented in a disparate manner. The evidence at
best, shows some types of' nonunion solicitation. Shreve and
E. Taylor were bundlers. As noted, Gillespie disclaimed
awareness of any solicitation. Horne, the bundling supervi-
sor did not testify. Neither Shreve nor E. Taylor produced
9 The General Counsel's brief argues that the 1974 no-solicitation rule is
invalid under ErLe. Internulronal. I., because it is ambiguous as to, whether
employees reely may engage in solicitation during nonw(orktime. his argu-
ment is superfluous. There is no allegation in the complaint that any rule
prior to September 29 is or as unlawful. Such a theory was not advanced
orally at the hearing. Accordingly. I have discarded the General Counsel's
assertions as to the earlier rule in my consideration ol the allegation. con-
cerning the September 29 rule.
I.EBANON APPAREL CORPORATION
evidence that any supervisor observed the solicitation
which they identified. There is no evidence the solicitation
was conducted in the presence of any supervisor. In these
circumstances, I deem it improper to infer the Employer
had knowledge of the nonunion solicitation. Absent such
knowledge, there is no predicate for finding the rule was
discriminatorily applied.
Also, I find that the September 29 rule was not estab-
lished solely as a response to the union activity. Such a
finding depends upon a narrow and literal reading of the
rule. Such analysis takes the September 29 rule out of con-
text. As indicated, historically (at least since 1974) the Em-
ployer maintained a rule prohibiting solicitation in general.
The reference to the rule on September 29 was made within
a document enumerating the Employer's position on union-
ization and the employees' rights to organize. In this pos-
ture, and considering the existence of the earlier rule, I con-
sider the September 29 reference to no-solicitation as but an
amplification of the extant no-solicitation rule. The Septem-
ber 29 pronouncement is not perceived as a promulgation
of a new directive.
The decisional authority cited by the General Counsel
and Union is distinguishable and inapposite. Thus, in Ho-
siery Corporation of America. 175 NLRB 180 (1969). super-
visors participated in solicitation for nonunion causes. This
fact forms the basis for imputing knowledge to the em-
ployer. Similarly, in Champagne Co/or, In(c. 234 NLRB 82
(1978), there existed clear evidence of employer knowledge
of solicitation for nonunion causes. The rule found unlaw-
ful in Mangurian's, Inc.. 227 NLRB 113 (1976). was estab-
lished for the first time in direct response to a union's orga-
nizing campaign. No prior no-solicitation rule existed.
Supervisors actively participated in antiunion solicitation in
the case of Mission I 'alle' Mills, a suhsidulri of l'esl Point
Pepperell, 225 NLRB 442 (1976). Finally, there was evi-
dence that widespread nonunion solicitation vsas common-
place in Publishers Prinring Co.. Inc.. 233 NLRB 1070
(1977). Additionally, in this latter case there was undisput-
ed evidence that the Employer permitted such solicitation
and the rule was so broad that it encompassed solicitation
during nonworktime.
Upon all the foregoing, I find no merit to the allegations
of complaint paragraph 5(b).
In complaint paragraph 5(c) it is alleged that the Em-
ployer announced a wage increase on November 21 to be
effective in December in order to "dissuade its employees
from seeking" union representation.
The record reveals that in mid-November the Employer
announced a wage increase to be effective December 5. The
increase was in fact put into effect as scheduled. Minimum
wages of employees were raised from $2.50 to $2.75 per
hour.
The General Counsel and Union contend that wage in-
crease was announced and implemented to discourage em-
ployees from engaging in union activity. The Employer as-
serts the increase conformed to its preexisting policy of
maintaining the minimum wage of its employees at or
slightly higher than the minimum wage requirement of the
Fair Labor Standards Act.
The evidence shows the Employer indeed maintained its
employees' wages at least at the FLSA standard. The FLSA
was amended to raise the minimum wage effective May I.
1974. January 1, 1975, January 1, 1976. and January 1.
1978. In pursuance of its policy the Employer took the tfol-
lowing action. No wage increase was granted to correspond
to the 1974 FLSA minimum wage effective date because
the employees' wages already were 15 cents above the Fed-
eral minimum. On January 9. 1974. the Employer raised the
minimum for its employees to $2.15. The minimum wage
legislation effective January I. 1975. required $2.10 as a
minimum. On January 6. 1976. the Employer increased its
minimum to $2.30. This sum precisely coincided with the
Federal minimum wage effective January 1. 1976. On Au-
gust 24. 1977. the Employer raised its minimum wage to
$2.50. This brought the Employer's minimum wage once
again above that required by law.
I take official notice that the FLSA legislation which was
to become effective January 1. 1978 w\as signed into law on
or about November I. 1977. At that time. it was clear the
Federal minimum wage would be $2.65 effective Januar 1.
1978. Thus, the December 9 increase once again raised this
Employer's minimum wage slightly above the legal require-
ment.
This issue is not free from doubt. "It is well settled that
the granting of wage increases and, or benefits during
Union organizational activity is not per ce unlawful." (cn-
tralia Fireside Heaulh, 1,1(. l/hb/a The Firesicl House O/ 'en-
tralia, 233 NLRB 139. 140 (1977). Thus, each case must be
determined upon its peculiar circumstances.
Applying a mechanistic approach. the above facts sup-
port the finding of a violation with respect to the granting
of wage increases. It is noted that the increases in 1974 anid
1976 were granted earl! in Januar. likew`cisc. the eflective
dates of the FLSA legislation in the eas 1975 and 1976
also were in January. Thus. it is argued b the General
Counsel and Union that the Employer digressed froim its
former practice of' making its wage increases etctl c in
January. -The change in past practice. occurring in the
midst of the nion's organizing campaign, supports a pre-
sumption the wage increase in issue is unlawful.
Despite the above. I find the Employer's defense persua-
sive. First. it is factually incorrect to say the Employer his-
torically granted wage increases )nli/ in the month of Janu-
ary. On August 24, 1977. the Employer raised the minimnum
wage for its employees to 20 cents above the then-existing
Federal law. Also, Gillespie's explanation that the Employ-
er's policy was to keep its employees abreast of. and above.
the Federal minimum is supported by analysis of the previ-
ous increases it granted to employees. Thus, both the 1974
and August 1977 wage increases placed the Employer's
minimum wage above that prescribed by FLSA. Accord-
ingly, I find the evidence supports the Employer's asserted
preexisting policy.
In my deliberations of the wage increase issue I have
considered two additional factors: ( I ) The absence of anti-
union motivation, which I shall find hereinbelow, respect-
ing the alleged discriminatory terminations: and (2) all my
other findings that the atmosphere at all times material was
free of other unfair labor practices. Assuredly. the Decem-
ber 9 wage increase as an accelerated event. This appear-
ance. however. gives rise to mere suspicion. I consider this
suspicion disspelled with the recognition that earlier wage
1031
I)('ISIONS OF NATIONAL LABOR RELATIONS BOARD
increases were not necessarily given in the months identical
to the effective dates of minimum wage legislation and were
not always given in January. Viewing the record as a whole.
I find the evidence sufficient to rebut any presumption of
illegelity with respect to the disputed wage increase.
Without intending criticism of the General Counsel's and
Union's causes, I have observed that many of the issues
litigated, and arguments made thereon, strongly suggest the
Employer was engaged in a highly sophisticated scheme to
defeat unionization among its employees. In my opinion, to
adopt the General Counsel's formulation of its attack upon
the December wage increase effectively renders nugatory
such a heinous plan. Such wisdom ascribed to the Em-
ployer surely would have caused it to defer the wage in-
crease until January 1978. It is unlikely that well-versed
managers, or their consultants, would have perpetrated so
blatant an offense.
Upon all the foregoing, I conclude the allegations of
complaint paragraph 5(c) are not supported by a prepon-
derance of the evidence. Accordingly, I find no merit to this
aspect of the complaint.
As earlier indicated, the allegations of paragraph 5(d) (g)
arise out of a confrontation between Bodenhorst and .
Taylor on December 2. Those allegations accuse Boden-
horst of having engaged in unlawful interrogation. advising
employees that their union status would be recorded in per-
sonnel files and used against them in future employment
possibilities, unlawfully providing an address to which em-
ployees could send union resignations, and requesting cop-
ies of such resignations.
E. Taylor's name appeared on the Union's November 2
mailgram. As background to her confrontation with Boden-
horst it is noted that on or about October 26 she had a
disagreement with Horne and Gillespie concerning her du-
ties. As a result, Taylor signed a union authorization card.
As noted, I credit Bodenhorst's testimony that the con-
versation with Taylor out of which these allegations arose
occurred on December 1. On that date, Bodenhorst spoke
to E. Taylor who was in his office with other employees.
There, he informed them of the wage increase. Taylor testi-
fied Bodenhorst asked if she planned on joining the
Union.' ° Taylor claimed she answered no. She testified she
then asked Bodenhorst if a permanent record in her person-
nel file would be made indicating that she joined. Boden-
horst is supposed to have responded that such a record was
kept but if an employee resigned union membership there
would be no effect upon obtaining future employment.
On November I , Gillespie distributed a letter to all em-
ployees which, in relevant part, stated "employees who
have signed union cards have asked how they can get their
card back. Employees are entitled to know their rights in
respect to these cards." Gillespie's letter continues, provid-
ing two methods of revocation. The first is to physically
request return of the authorization card: second, to address
a letter to the Union. Gillespie's letter contained suggested
language for such a letter to the Union. Gillespie's letter
01 find this testimony, alone. illogical. It is undisputed the Employer had
prior knowledge she was a member of the organizing committee. There is no
reason for Bodenhorst to have put this question to her on December I.
ends with the suggestion that the employees sign and date
the letter to the Union "and keep a copy of it."
Taylor further testified Bodenhorst asked her (in Decem-
ber) whether she still had the Union's address. (Apparently.
this referred to Gillespie's November I I letter). Taylor said
she replied she did not have it, whereupon Bodenhorst gave
it to her.
As already indicated, I adopt Bodenhorst's testimony of'
what occurred between him and Taylor. It is unlikely
Bodenhorst would have spoken to E. Taylor as she claimed.
There were other employees present, according to Taylor's
testimony. Their presence reduces the probability Taylor's
account is accurate. Bodenhorst testified Taylor came to his
office. She advised him she believed her joining the Union
was an error. She said she was concerned that she might
lose her job. Taylor referred to the difficulties she had with
tlorne and Gillespie on October 26. She told Bodenhorst
she felt she was talked into joining the Union by other em-
ployees who were aware of her work problems. Taylor then
asked how she could retract her authorization card. Boden-
horst reminded her of Gillespie's November I 1 letter which
contained the Union's address.'" Tayvlor said she did not
have a copy of Gillespie's letter and asked Bodenhorst for
one. Bodenhorst said he did not have one bhut did orally
give Taylor the address. Taylor then asked if there would
be anything in her personnel file to indicate she had signed
a union card but later resigned from the Union. Bodenhorst
assured her the Employer kept no such information on rec-
ord.
Upon the credited evidence, it requires no extensive
analysis or discussion to conclude none of the subject alle-
gations are meritorious. Rather than Bodenhorst asking
Taylor if she had been talked into joining the Union. I find
that Taylor told Bodenhorst she felt as if she had been
induced to join the Union by other employees and the cir-
cumstances of her problems with orme and Gillespie.
Also, I find Bodenhorst told Taylor no record of union aft-
filiation aits maintained by the Employer. Accordingly. I
conclude the urden of proof has not been sustained as to
complaint paragraphs 5(d) and (e).
As to complaint paragraph 5(f). I find the Employer was
not responsible for any) employee revoking authorization
cards or resigning from union membership, even if such
actions actually were taken by any of the employees.' 2 I
note no evidence was adduced to refute the statement in
Gillespie's letter to the effect that employees had inquired
itas to how to repudiate their interest in the Union. Also,
there is no evidence the Employer initiated or sponsored
such activity among the employees. Rather the facts indi-
cate only that the Employer provided information in re-
sponse to empioyee requests and/or questions posed in a
similar vein. There is no credible evidence the Employer
exerted any tpe of compulsion. Mere acquiescence in repu-
diation activities initiated by employees is not ground for
finding a violation. Mosher Steel Co(nponr', 220 N LRB 336
(1975); Sa/,t',tt T7ruilv, Inc., 216 NLRB 951, 961 (1975): cl'.
11 Another discrepancy appears in Taylor's recollection. She testified. in
effect. the publication b (Gillespie o1 the Union's address occurred but I
week beolre her December conversation with Bdenhrs.
1 t has been noted that even E. Taylor did not foirward her revocatiin
letter to the Union
1032
LEBANON APPAREL CORPORATION
Sunflower Novrelt BagRs. Inc., 225 NI.RB 1331. 1336 (1976),
where assistance in employee resignations was given in a
context pervaded by other unfair labor practices and a
threat the employees might lose their jobs. In Hatteras
Yachts, AMF Incorporated, 207 NLRB 1043. fii. 1 (1973),
resignation letters were signed in the Employer's personnel
office so that the Employer was made aware of the union
affiliation of its employees. In Rogers Furniture Sales. Inc.,
207 NLRB 68. 70-71 (1973), employees signed a with-
drawal petition as a condition to regaining or retaining their
job. I conclude none of the predicates for finding a violation
based upon rendering assistance for revocation as repudi-
ation exists herein.
Upon all the foregoing I find no merit to the allegations
of complaint paragraph 5(f).
With respect to complaint paragraph 5(g) E. Taylor did
not testify Bodenhorst asked her to give him a copy of her
union resignation. This allegation apparently rests upon
Taylor's testimony that a copy of her revocation letter ad-
dressed to the Union was delivered to Bodenhorst. If this is
correct, the evidence reveals that delivery was purely volun-
tary. No other General Counsel witness presented evidence
that such a request was made by Bodenhorst on or about
"December 2." Thus the record is bare evidence in support
of this allegation. Accordingly. the allegation contained in
complaint paragraph 5(g) has no merit.
Complaint paragraph 5(h) asserts that on or about Octo-
ber 28. the Employer unlawfully changed working condi-
tions of employees by denying them the use of helpers, in-
structing them to stop talking with others, and isolating
them because of their union activities. This allegation stems
from the Employer's activities to improve its qualit) control
problems.
A synthesis of the testimony given by Shreve and Mills
indicates that on or about October 28. Horne told them
thereafter their work would be performed as a team. in
pairs. Also, other employees known as tiers who had for-
merly assisted the bundlers were removed from the func-
tion. According to Shreve and Mills. Horne told them not
to talk. In view of the discussion concerning this matter
contained in section III. A. supra, I discount the self-serving
portions of Shreve and Mills' testimony.
I credit Gillespie. He testified at length concerning the
quality control problems suffered by the Employer at the
end of October and into November. These problems were
characterized as extraordinary. Corroborating Gillespie's
evaluation is a letter from Kress Uniform Company. Gilles-
pie and Bodenhorst investigated and determined the bun-
dling section was responsible. Bodenhorst and Gillespie dis-
cussed the problem with the bundlers who complained the
tiers were at fault. Thus, it was decided to remove the tiers
from the bundling area and make more careful observation
of the employees permanently assigned there. As part of
this observation it was decided the bundlers should be
paired off. The General Counsel's brief asserts it was only
Shreve and Mills who were segregated in this manner. I
have already indicated in the section on credibility, above,
that this assertion is incorrect. All the bundlers were
teamed.
It is argued that the team concept is not as effective an
instrument of observation as the Employer suggests. It is
urged permitting the bundlers to work individually is the
more appropriate method of spotting work detects. Such
argument. in my opinion, intrudes upon management deci-
sions. Considering the undisputed fact that bundlers had
been assisted by tiers, it is not unreasonable to assume pair-
ing would lend to a more efficient operation. In any event I
will not engage in an evaluation of the reasonableness of
the Employer's program of work surveillance.
I find more persuasive the evidence. replete in the record,
that the quality control problems existed as claimed b the
Employer. There is considerable confirmation that Boden-
horst, Gillespie. and Houiie were active participants in seek-
ing relief. The entire bundling section was paired. Union
proponents Shreve and Mills were not alone segregated.
Indeed, it is not a certainty that the Emploer een was
aware that Shreve and Mills were members of the Union's
organizing committee when the pairing occurred. Viewed in
a light falorable to the General Counsel, the evidence
shows the pairing began on October 28. This was the same
date the Union's first mailgram was received hb the m-
ployer. Thus. there is no sure way to say the pairing re-
suited from the Employer's having received information
that Shreve and Mills. in particular. were engaged in union
activity. Therefore, even assuming it were concluded Shreve
and Mills actually had been segregated in a disparate man-
ner and from all other bundlers. the record does not sufli-
cientls establish prior Employer knowledge of their involve-
ment with the Union.
I conclude the record does not establish the iolations
alleged in complaint paragraph 5(h) b a preponderance of
evidence.
Complaint paragraph 5(i) alleges the Emploxer unlaw-
fulls issued oral and written warnings for poor ork to
dissuade them from seeking union representation and be-
cause of their union activities.
In pursuit of the Employer's el'orts to cure the qualit,
control problems. illespie spoke to the bundlers as a
group on October 27. As already indicated, he orall
warned those employees about their work performance. He
displayed detective work to them. Later. orne a ( t Gilles-
pie's direction) delivered written warnings to Mills, Shreve,
Musick. and Combs. I have already found the warnings
were given before the Employer received the Union's first
mailgram.
Mills was given two additional written warnings, dated
October 31 and November 4. Each such warning was for
defective work. Mills testified the cited work was indeed
hers.
Also, Rosa Jones, a sewing machine operator whose
name appeared on the Union's first mailgram. received two
written warnings. They are dated November I and 21.
Jones acknowledged the work described in her warnings
was hers and that it had been defective.
As earlier described, the parties stipulated to the numbers
of warnings issued employees. Those statistics reflect a sig-
nificant increase in the number of warnings given employ-
ees at the time the Union was engaged in its organizing
campaign. The critical period encompassed by the stipula-
tion is October 3 to December 6. During that time a total of
18 warnings were given. Only eight of those were to bun-
dlers and two were Jones'. Thus, eight other warnings had
been issued to employees not at all involved in this proceed-
ing.
1033
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees Carol Ball and Deborah Wyatt worked with
Jones in the same department under Supervisor Taylor.
Ball and Wyatt are identified as members of the organizing
committee in the Union's first mailgram. No evidence was
adduced to show that either of them received warning no-
tices after the Employer received that mailgram. I conclude
the situations of Ball and Wyatt constitute strong evidence
militating against the inferences of unlawful conduct sought
by the General Counsel.
Upon my description of the warning issue contained in
the credibility section, supra, the fact the warnings were
issued for admittedly defective work; the absence of cogent
evidence to show the union activists were the sole recipients
of the warnings; and the indisputable quality control prob-
lems in existence, I find the Employer had justifiable cause
for issuing the warnings in question. Accordingly. I find
there is no merit to the allegations in complaint paragraph
5(i).
In complaint paragraph 5(j) it is alleged that on or about
October 31, Gillespie and Bodenhorst unlawfully harassed
employees "by continuously observing them as they
worked" because of their union activities. The only witness
testifying on this subject was Shreve.
She claimed that the degree of supervision over her and
other bundlers increased immediately after dispatch of the
Union's first mailgram.
Gillespie and Bodenhorst readily admitted that they were
present in the bundling section and that they maintained a
watchful eye over those operations. Each testified this was
pursuant to their concern over the quality control problems.
Mills testified the bundlers complained to Bodenhorst in
mid-October that they had been criticized for their work
performance. It was during this conversation that (as earlier
observed) the bundlers disclaimed responsibility and placed
the blame on other employees. Mills testified that Boden-
horst responded by telling the bundlers he would visit the
bundling section to apprise himself of the situation.
I find that the bundlers' work was subject to more strin-
gent observation at or about the time alleged. Mills' testi-
mony supports the Employer's contention that observation
was part of the Employer's determination to ameliorate the
quality control problems. No evidence was adduced which
contravenes this contention. The instant allegation is based
upon inference which I find not warranted from the record
as a whole. Accordingly, I find the increased observation of
the bundlers' activities did not constitute unlawful harass-
ment and was unrelated to the union activities of any em-
ployee. Thus, the allegations in complaint paragraph 5(j)
are without merit.
It is claimed in complaint paragraph 5(k) that on or
about November 3, Supervisor McCracken assigned more
arduous work to employees because of union activity. Nei-
ther the General Counsel nor Union specifically argues this
allegation in the briefs submitted. Without such argument.
I am hampered in my review of the evidence. No General
Counsel witness explicitly claimed an assignment of more
arduous work. However, as indicated in the credibility sec-
tion above, Bostic testified she was transferred from one job
to another immediately after dispatch of the Union's sec-
ond mailgram. If this is the basis for the subject complaint
allegation I find the allegation fails. In relevant part, I have
discredited Bostic's recollection of the event. The Employ-
er's records show Bostic's job change occurred 3 weeks be-
fore the second mailgram.
In any event, the General Counsel adduced no direct evi-
dence that the job to which Bostic had been transferred was
more onerous than her earlier position. Gillespie credibly
testified many machine operators preferred to perform Bos-
tic's new job to her old one. In this context. I conclude the
record is bare of evidence which reveals even that the job to
which Bostic had been transferred was more arduous than
the one she vacated.
Upon all the foregoing, I find there is no support in the
record for the allegations in complaint paragraph 5(k).
Complaint paragraph 5(l) alleges that on or about Octo-
ber 31 Gillespie, and on or about November 2 and 10 Su-
pervisor Taylor, refused to grant employee requests to leave
work early because of their union activities. This allegation
rests upon the testimony of Rosa Jones.
As earlier indicated, Jones testified she asked Supervisor
Taylor for permission to leave work early on October 31.
Jones told Taylor she (Jones) wanted to obtain her automo-
bile egistration tags. It is undisputed that Taylor granted
Jone,' request. Later that day, Taylor withdrew her permis-
sion Taylor told Jones that Gillespie said Jones could not
leave early. Jones further testified all her requests to leave
early had been granted before the Union began its organiz-
ing.
Supervisor Taylor credibly testified it was the Employer's
policy for supervisors sometimes to convey early leave re-
quests to Gillespie. Supervisors did have some discretion to
authorize employee early leave requests when the workload
was low. When the workload was heavy supervisors cus-
tomarily relayed an employee's request to leave early to
Gillespie.
Supervisor Taylor credibly testified she told Jones she
(Taylor) "guessed it would be all right" to leave early for
the automobile tags. Taylor said she then consulted with
Gillespie, who adivsed her the license tag office would re-
main open beyond the 4 p.m. quitting time. Gillespie in-
structed Taylor to so inform Jones. Taylor returned to
Jones and advised her the request to leave early was denied
by Gillespie. It is not clear whether Taylor also advised
Jones the tag office would be open after 4 p.m)3
Gillespie credibly testified he asked a clerical employee to
telephone the tag office after Taylor told him of Jones' re-
quest. As a result, Gillespie learned the tag office would
remain open for business after Jones' work shift. In all other
respects, his testimony was corroborative of Taylor's.
I have already discussed the evidence regarding Jones'
testimony to show disparate treatment between her and
Breeding. To reiterate my conclusion I find the evidence
does not support the assertion of such disparate treatment.
During her direct examination, Jones testified to no re-
quests to leave work early on the November 2 and 10 dates
specified in the subject complaint paragraph. However,
during cross-examination she testified she asked Supervisor
" Jones denied Taylor so advised her. Taylor was not asked whether she
so informed Jones. I do not consider this omission critical and it needs no
resolution. The important fact is that Jones was not permitted to leave early.
1034
I.lEBAN()N APPAREL (CORPORA ION ()
Taylor for a leave of absence during the slack Christmas
season. She told Supervisor Taylor she was on her way to
see Gillespie t ask for a leave of absence. Jones then testi-
fied she spoke with Gillespie. She told him her husband was
ill, that he ran his own business. that work was slow at the
instant Employer. and that Gillespie was "letting people off
all the time"; and she asked Gillespie for a leave of absence
so she could work for her husband during the Christmas
season. According to Jones. Gillespie told her he could not
grant her request for leave of absence but would give her a
layoff slip instead. Jones testified also that Gillespie said he
would call her when the Employer's work picked up. Fi-
nally, Jones testified Gillespie never called her: that she
attempted several times to speak with him in and after
January 1978, but to no avail. Jones made her request for a
leave of absence on December 15. The record shows em-
ployee Diana Willis requested and was granted a leave of
absence on December 5. There is no evidence that Willis
was a union supporter.
Gillespie acknowledged Willis had been granted a leave
of absence. However, he denied Jones requested a leave of
absence. Gillespie testified that Jones merely asked to be
"off' from work. Gillespie recalled Jones told him of her
husband's illness and that Jones "needed to fhe of to help"
her husband during the Christmas season. Gillespie denied
Jones said she desired to return to work with the Employer
after that season.
The foregoing makes it clear that the Employer denied
Jones' request to leave early on October 31. At that time the
Employer was indisputably aware that Jones was a member
of the Union organizing committee. These matters are sug-
gestive of a violation. Nonetheless. I conclude the denial of
time off to get the license tag is nonviolative of Section
8(a)( 1).
There is no evidence regarding the workload in Jones'
work section when she made her request. Supervisor Tay-
lor's description of the Employer's leave early policy stands
unrefuted. Thus. Taylor's discussion with Gillespie con-
cerning Jones' request is presumed to result from the exis-
tence of a heavy workload. That Gillespie asked a clerical
employee to telephone the license tag office is consistent
with the observation of a heavy workload. Had the work-
load been light, there would have been no need for him to
weigh a production need against the personal need of an
employee. Having satisfied himself that the tags could have
been obtained outside of the Employer's working hours,
Gillespie judged the greatest need to be that of maintaining
Jones at her work station. In fact. Jones did obtain her
license tags after work that day. I should not, and will not,
disturb Gillespie's managerial judgment. To do so would
ignore the totality of the instant record. As amply illus-
trated throughout this Decision to this point. there exists no
basis for making inferences against the Employer. In the
absence of more persuasive evidence than exists herein to
support such inferences, I conclude the evidence shows Gil-
lespie acted reasonably in denying Jones' request to leave
early on October 31.
The foregoing description of evidence relative to com-
plaint paragraph 5(l) shows absolutely no requests by em-
ployees to leave work early on November 2 and 10. Accord-
ingl. I find no merit to that part of this complaint
para graph involving those dates.
The narration involving Jones' pre-('hristmas request for
time off appears above despite the fact that it was not al-
leged as a violation in the C'omplaint. This incident is rel-
eant to the issues of disparate treatment and employer
motivation for the conduct of its supervisors. First, I find no
evidence of disparate treatment arising from this incident. I
credit Gillespie's denial that Jones asked him for a /carel o/
absence. In general. I have noted in the credibility section
some reasons w hy I do not rely upon Jones' testimonyl
There is further reason to credit Gillespie's account of what
occurred between Jones and him. Thus, Gillespie testified
that employees were automatically terminated in accord-
ance with the Employer's leave of absence policy. he rec-
ord shows this polico was brought to the attention of the
employees and had existed at least since Februars 27. 1974
(Resp. Exh. I). Other documentary evidence supports Gil-
lespie in this regard. Thus. employee termination records
reveal that on July 1. 1976. May 23. 1977. August 8. 1977.
and September 2. 1977 employees had been terminated be-
cause then "never asked for a leave of absence" and had
absented themselves from their work without hing com-
plied with the EmploNer's rules which required them to call
in at frequent intervals. In this posture. it is speculative to
assume what response Gillespie would have given .lones m
December had she actually asked for a leave /of abwl)nct'. In
an atmosphere which I find to be generally free of other
unfair labor practices it would be conjecture for me to im-
pute an unlawful design to what occurred hetueen illespie
and Jones in December.
Upon all the foregoing. I find there is no preponderance
of' evidence in this record to support any part of the allega-
tions contained in compllint paragraph 5( 1).
D. Dterimritai iot
I. The facts
The General Counsel contends Hubbard. Shreve, Bostic,
F. Musick. Rhea, and E. Taylor were terminated for dis-
criminators reasons. The Employer defends that all hut E.
Taylor were laid off as part of a reduction of force which
resulted from the loss of the blouse contract. Further. the
Employer asserts E. Talor was terminated automatically
because of her failure to comply with the Employer's posted
call-in policy which required employees to call the Em-
ployer when absences exceeded 3 days.
Undeniably, the Employer lost the blouse contract. Gil-
lespie's uncontroverted testimony shows that blouse pro-
duction began to diminish substantially at the beginning of
October. In the second week of October, no blouses were
produced. In October's third week, blouse production was
greatly diminished. Beginning with the last week of October
(before the Union's first mailgram as dispatched) absolutely
no blouses were produced. This situation continued until
April 1978. 1 have alread, found the loss of the blouse
contract evoked the layoffs. The uncontroxertible eidence
shows a decision was made to reduce the employee comple-
ment by 15-20 sewing machine operators and 3 employees
1035
I)[E('ISIONS OF NAIIONAL IABOR RELATIONS BOARD
in the cutting department.' 4 The layoffs of all the alleged
discriminatees, except F. Taylor. came virtually concurrent
with the dispatch of the Union's first mailgram. Employees
were selected for layoff based upon their production earn-
ings in a job classification or in seniority order if they were
not paid on an incentive basis.
F Musick and Shreve were the least senior bundlers.
Hubbard was formally classified as a machine operator
since October 4, the date she first worked for the Employer.
At her layoff, she had been temporarily assigned to the
bundling section. These three employees were the only bun-
dlers laid off.
Bostic. and employees Chafin L. Willis and Helton were
laid off from Supervisor McCracken's section. Bostic and
Helton had the lowest production earnings in their classifi-
cation.
Rhea and employees Cook, Jones, A. Rosnok. and D.
Tignor were laid off from Supervisor Walden's section.
Each was classified as a trainee (though Rhea had some
earlier experience in the work of her classification) and had
lower earnings than other employees in their classification
as collar stitchers.
As noted earlier, the reduction in force resulted in the
layoff of 16 other employees (not mentioned immediately
above) in a variety of other job classifications and supervi-
sors' areas. Thus, of the 28 employees laid off, only 5 are
alleged discriminatees. The names of only three of these five
appeared on either union mailgram.
When examined in a light most favorable to the General
Counsel. the evidence of' a prima facie case as to each al-
leged discriminatee, except E. Taylor. may be summarized
as follows:
Bostic. Her name appeared on a union mailgram dis-
patched approximately I week before her layoff;
Mills and ShreLe. They were two of the three bundlers
laid off. The name of each appeared on a union mailgram;
Hubbard. After her layoff she prepared a letter to the
Union requesting the return of her authorization card. This
letter (as already described) was delivered to the Employer.
Although Hubbard was one of the three bundling section
employees laid off, there is no evidence in the record to
show Hubbard did anything to provide the Employer
knowledge of her union activity or interests before her lay-
off. Her name does not appear on either union mailgram:
F Musick. Her layoff occurred so the Employer could
"get" to Shreve's and Mills' names in effectuating the lay-
offs;
Rhea. The Employer suspected her of having drawn an
anti-Employer cartoon on a union flyer which was distrib-
uted a day before her layoff. The flyer portrayed the Em-
ployer in uncomplimentary terms.
Rhea was widely known in the plant as a good cartoonist.
Gillespie acknowledged he was aware of this reputation.
Rhea went to Gillespie's office to receive her final check on
the day of her layoff. The union flyer depicting the cartoon
lay on top of a paper file on Gillespie's desk. In fact. Rhea
did not draw the cartoon. In his office. Gillespie told Rhea
' The bundlers were employed in a section of the cutting department.
she was laid off for lack of work and could collect unem-
ployment. The cartoon was not metioned b either G(illes-
pie or Rhea.
E. Taylor's prima fiacie case is established by the follow-
ing evidence. She was the most senior bundler. (aylor was
not laid off as a result of the reduction in force.) Her name
was on the Union's second mailgram. Taylor left work on
December 2. Later that day. Taylor learned she needed an
operation. On December 5 she entered a hospital. On the
same day, she called the Employer's office clerical and in-
formed her she had a medical problem. tit is not clear
whether she specifically said she needed an operation.)I5 On
December 6 Taylor had an operation.
E. Taylor called in to the Employer again on December
22 and January 3. 1978. On each occasion she reported her
condition to the office clerical.
On February 6. 1978, Taylor visited the plant, where she
spoke to Gillespie. She told him she was ready to work.
Gillespie told Taylor she had been terminated because she
did not know where she was. In Taylor's presence, the office
clerical confirmed to Gillespie that Taylor called in on De-
cember 22 and January 3. Further, the evidence reveals
Taylor had been absent for sickness at other times during
her employment and a call by her to the Employer's office
clerical had been sufficient to maintain her employee status.
Nonetheless. Gillespie said Taylor's job was no longer
available.
The Employer cites the following in its defense. Taylor
did not request a leave of absence. It points to evidence
previously discussed to the effect that the Employer consis-
tently implemented its call-in rule by automatic termination
of employees who absented themselves tfor extended periods
without having requested leaves of absence. In fact, docu-
mentary evidence shows that employee N. Robinson was
terminated on July' 1,. 1976. because she "never asked for a
leave of absence." Robinson had been replaced when ready
to return to work. Also, employee L. Garrett was termi-
nated on September 2. 1977. apparently because she ex-
tended her absence beyond 9 days originally requested and
did not "request a leave of absence." As previously ob-
served, other documentary evidence was adduced to show
the Employer uniformly implemented the call-in rule.
2. Analysis
It is well established that an employer may discharge an
employee for good reason, bad reason, or no reason at all.
Borin Packing Co., Inc., 208 NLRB 280 (1974); Associated
Press v. N.L.R.B., 301 U.S. 103 (1937); Edward G. Budd
Manufacturing Company v. N.L.R.B., 138 F.2d 86, 90 (3d
Cir. 1943). cert. denied 321 U.S. 778 (1944).
It is General Counsel's burden to establish a particular
motivation on the part of an employer-a discriminatory
motivation. Support for a finding of unlawful motivation
"is augmented (when) the explanation of the (terminations)
offered by the respondent (does) not stand up under scru-
'' In view of my analysis of the Employer's defense. inra. it is not crucial
to know what was said between Taylor and the clerical employee.
1036
IIBANON APPARIl. (ORPORAIION
tins 1. KR B. s. Bird Iahwihc ( onipliv. 161 F.2d 589.
592 ( s ('ii 1947).
\ lair assessment of all the record evidence persuades me
the Elmploser's defense does withstand scrutiny. I have con-
sidered all the relevant evidence and arguments thereon.
Though each of these is not mentioned below, none has
been discarded from consideration.
The General Counsel's case rests upon inferences of un-
lawful motivation. The basis of such inferences max he,
inter alia, expressions of, or conduct amounting to. interfer-
ence, restraint. and coercion in iolation of Section 8(a)( ):
also, by adverse personnel action imposed upon employees
which, by the timing, reasonably can be laid to an employ-
er's knowledge of union activity in general or of those em-
ployees in particular. Thus, coincidence in union activity
and terminations of employees is a strong factor supporting
an inference of unlawful motivation. ,McGraw-Edison (omn-
pamy v. N.L.R.R 419 F.2d 67 (8th Cir. 1969): V l.R.R. v.
Haro F Berggren & Sons. Inc-., 406 F.2d 239. 245 (8th Cir.
1969). cert. denied 396 U.S. 823.
As to all the alleged discriminatees. except E. Taylor. the
litigation herein arguably creates a violation of Section
8(a)(3). This is so because the alleged discriminatory layoffs
followed on the heels of dispatch of the Union's mailgrams.
For the Employer to prevail. it must demonstrate the
terminations were not, in any way, related to the union
activity. The terminations would be unlawful even if only
partially motivated by discriminatory animus. Florida
Medical Center, Inc. dbla L.auderdale Lakes General Hos-
pial, 227 NLRB 1412. 1414 (1977); N.L. R.B v. Danl etl al.,
207 F.2d 165, 167 (9th Cir. 1953). Thus, the issue before me
is to determine. from the totality of evidence, whether the
asserted reason for the various terminations actually moti-
vated them. Signal Deliveor Service, Inc.. 226 NLRB 843
(1976).
I conclude the record as a whole supports the Employer's
defense. The principal factors dictating this conclusion are:
a. The evidence clearly shows the loss of the blouse con-
tract occurred at a time purely coincidental to the dispatch
of the Union's first mailgram. The undisputed evidence re-
flects dimunition of work even before that mailgram was
dispatched:
b. The layoffs occurred generally throughout the plant.
The reduction in force encompassed several departments.
not only those in which known union proponents worked.
Thus, the General Counsel's emphasis upon the fact that
three of the alleged discriminatees came from the bundling
section is misplaced;
c. There is a total absence of direct evidence that the
Employer engaged in an antiunion campaign. First, I have
already found no substance to any of the Section 8(a)(l)
allegations. Additionally, it is uncontested that the supervi-
sors were advised to engaged in no union discussion with
employees and apparently followed that advice:
d. Only 3 of a total of 12 employees named in the mail-
grams were laid off. Alleged discriminatees F. Musick's and
Rhea's names did not appar in either mailgram.
The record further shows that at least six of the employ-
ees identified as members of the Ulnion's organizing com-
mittee were still employed by the Employer at the hearing
dates. No es dence was presented to show Shre. Bostic. or
1. Talor (named in the mailgrams) maintained a greater
position ,of preeminence in union actisities than the other
members of the organizing committee.
I consider the above extremely convincing indicators that
the defense is valid. Accordingly. I find there exists substan-
tial evidence to negate an) inference of illegalit, w hich mal!
be derived rom the timing of the la.offs of each alleged
discriminatee except E. Taylor.
As to E. ITaylor. the General ('ounsel's prima /lInic case i
hut superficialls appealing. The evidence suggests E. I as lor
was treated in a disparate manner. Specificalls. the record
aftirmatively shows E. Taylor had not been disciplined in
the past because she merely called in to the Emploer's
office clerical when Taylor was required to he absent flr
illness. Nonetheless. I find an important element missing.
There is no evidence whatever of the duration o an o'
Taslor's earlier absences for illness. Thus. the General
Counsel's evidence does not establish a standard b' hich I
can measure whether her termination in Fehruars 1978 as
a deviation from past practice. If that could he demon-
strated, then there might be a basis for making an inference
that Taylor's termination was attributable to emploser
knowledge of union activity.
On the other hand, there is evidence adduced b the Im-
ployer which tends to negate the finding of disparate treat-
ment. That evidence consists of the arious termination
slips (discussed supra) which shows Emploer's call-in pol-
ics had been uniformly applied in situations akin to la)-
lor's. Accordingly, I conclude that no matter how unreason-
able the automatic termination appears, this circumstance
alone, does not suffice to prove antiunion motivation. Dur-
ing an organizational campaign an employer must proceed
as it would have had the union not been on the scene.
Stump Motor Comrpalnr I., 208 N RB 431. 433 (1974):
Sinclair & Rus.h, Inc.. 185 NI.RB 25 (1970): T'e (atl Rubh-
her (Conpani'. 182 N LRB 95 (1970); c('orrnict Long-
meadow Sone Co.. Inc., 158 N RB 1237 (1966hh). No ei-
dence was presented to show whether or not the Union tiled
a petition for a representation election at the Board. Even
assuming the Union's organizational campaign continued
to the time E. Taylor was informed of her termination I
conclude the Employer treated her as it had others in the
past without regard for the existence of the IJnion's orga-
nizing campaign.
I sum. I conclude there is no sound basis in this record to
discredit the Employer's defense as to an) of the alleged
Section 8(a)(3) violations. I find the laxoffs of L. Hubbard.
M. Shreve. H. Bostic, F. Musick. and S. Rhea to have oc-
curred solely for economic reasons: and the termination of
E. Taylor to have resulted solely from the Employer's uni-
formly stringent application of its call-in and leave-of-ah-
sence rules.
Upon the basis of the foregoing findings of' fact and the
entire record in this proceeding I make the fiollowing:
CON(I.'SIONS ()t- I.A
I. Lebanon Apparel Corporation is an emplo'er en-
gaged in commerce within the meaning of Section 2(2). (6).
and (7) of the Act.
10)7
I)I('ISIONS OF NATIONAL. I.ABOR RELATIONS BOARD
2. International l.adies' Garment Workers' nion.
A F. ('10. is a labor organization within the meaning of'
Section 2(5) of the Act.
3. The mployer has not committed any of the unfair
labor practices alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law.
and the entire record in this case. and pursuant to Section
10(c) of the Act. I hereby issue the following recommended:
ORDER *'
The complaint herein is dismissed in its entirety.
16 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of' the National labor Relations Board. the findings.
conclusions, and recommended Order herein shall. as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall he deemed
waived for all purposes.
1)38