Lion Uniform

National Labor Relations Board - Board Decisions

Feb 11, 1980

247 N.L.R.B. 992 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lion Uniform, Janesville Apparel Division and Oil,
Chemical and Atomic Workers International
Union. Cases 10-CA-12938, 10-CA-13089, and
10-CA-13284-2
February 11, 1980
ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On June 8, 1978, Administrative Law Judge Mi-
chael O. Miller issued the attached Decision and
Order Approving Settlement Agreement in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief, and Respondent filed an
answering brief. In its answering brief, Respondent
made certain representations which it asked the Board
to consider along with the Decision of the Administra-
tive Law Judge. The Board thereafter issued a Notice
To Show Cause why Respondent's representations
should not be accepted as true. Subsequently, the
General Counsel and the Charging Party filed briefs,
and Respondent filed an affidavit in response to the
Notice To Show Cause. Respondent also filed a brief
in opposition to the General Counsel's and the
Charging Party's responses to the Notice To Show
Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and various responses to the Notice To Show Cause
and has decided, for the reasons set forth below, to
reject the Administrative Law Judge's acceptance of a
unilateral settlement agreement proposed by Respon-
dent. Instead, we shall remand this case for a further
hearing on the merits of the alleged unfair labor
practices.
1. As background to our decision, we note the
following: In May 1977, Respondent's employees at its
Lake City, Tennessee, facility, the location involved
herein, began an organizing campaign. As a result of
these organizing efforts, a representation election was
conducted at Respondent's facility on July 14, 1977.
The election resulted in the certification, on August
26, 1977, of the Charging Party as the collective-
bargaining representative of Respondent's employees.
In this proceeding, the Charging Party and the
General Counsel allege that, from the inception of the
employees' organizing efforts at Lake City, Respon-
' As noted, one of the complaints alleged that the removal of the firecoat
line and the attendant abolishment of the jobs of the Lake City employees
247 NLRB No. 123
dent engaged in a number of unfair labor practices.
Specifically, on August 17, 1977, a charge was filed by
the Charging Party alleging a number of 8(a)(1)
violations, including threats to close, threats to dis-
charge, and threats to cancel plant expansion plans
and improvement of working conditions because of
employee support for the Charging Party. An informal
settlement of this charge was approved on August 29,
1977, and a notice was posted at Respondent's facility
on September 6, 1977. On November 14, 1977,
however, the Regional Director set aside the settle-
ment agreement due to the filing of another charge
alleging various violations of Section 8(a)(1) and (5) of
the Act. Also, allegedly in response to various unfair
labor practices, Respondent's employees went on
strike on October 12, 1977. Shortly thereafter, on or
about October 24, 1977, Respondent "temporarily"
moved its firecoat product line from Lake City to a
plant in Beattyville, Kentucky, thereby eliminating the
Lake City employees' jobs. Then, on November 17,
1977, a complaint issued alleging various 8(a)(1)
violations, and an 8(a)(5) violation based on certain
unilateral changes in the employees' working condi-
tions. On February 8, 1978, the Regional Director
issued another complaint, arising out of a charge in
another case, alleging additional violations of Section
8(a)(1) and (3) of the Act. This complaint alleged the
October 24, 1977, transfer of Respondent's firecoat
line from Lake City to the plant in Beattyville,
Kentucky, and the subsequent loss of the Lake City
employees' jobs as a violation of Section 8(a)(3) of the
Act.
These various complaints were consolidated for
hearing in this proceeding. At the outset of the
hearing, however, Respondent expressed its will-
ingness to withdraw its answer and to admit all the
allegations of the complaints, provided that the
Board's order would permit Respondent to reopen its
Lake City plant with a product line, i.e., knit shirts,
different from the firecoat line which it had operated
at Lake City for a number of years.' Thereafter, at the
hearing, the Administrative Law Judge refused to hear
any evidence of the unfair labor practices alleged,
other than by offers of proof. Instead, he limited the
hearing to two issues: (1) whether sewing of knit shirts
was substantially equivalent employment to the manu-
facture of fire coats; and (2) whether Respondent had
sufficient justification for refusing to return its fire
coat line from Beattyville to Lake City.
Thereafter, in his Decision, the Administrative Law
Judge concluded, despite Respondent's admission of
the various unfair labor practices alleged, that it was
not "feasible" to return the firecoat line to Lake City
because increased demands for firecoats had caused
were union motivated and in siolation of the Act. Respondent's proposed
settlement admitted these actions as violations.
992
LION UNIFORM, JANESVILLE APPAREL DIVISION
Respondent to expand its operation at Beattyville to
such an extent that Respondent's Lake City plant
could no longer accommodate the firecoat operation.
The Administrative Law Judge also found that the
work which Respondent was proposing for the Lake
City employees, while not work on firecoats, was
"substantially equivalent" to the work they had
previously performed.2 Accordingly, the Administra-
tive Law Judge approved the settlement agreement
over the General Counsel's and the Charging Party's
opposition.
Both the General Counsel and the Charging Party
then filed exceptions to the Administrative Law
Judge's Decision. Subsequent to these exceptions,
Respondent filed an answering brief in which it made
various representations. Respondent claimed that it
had lost the proposed knit shirt line to which the
Administrative Law Judge had referred in his Deci-
sion. But Respondent also claimed that the Lake City
plant was then under full production; that the Lake
City employees who had struck Respondent were
either working or had stated that they did not desire to
return to work for Respondent; that the Lake City
employees had been paid backpay, if due; and that the
employees were then engaged in manufacturing polar
coats rather than firecoats under conditions fully
negotiated with the Charging Party.
To ascertain the validity of these later assertions by
Respondent, the Board thereafter issued a Notice To
Show Cause why the Board should not accept as true
such representations in considering this case. All
parties filed responses to the Notice To Show Cause.
The General Counsel and the Charging Party ap-
peared to concede that the Lake City plant was then
operational, and that all employees who had struck
were either working or had been offered work at Lake
City, but neither responded to the representation that
the employees had been paid backpay. Both the
Charging Party and the General Counsel appear to
dispute that Respondent was then engaged in produc-
tion under terms negotiated with the Charging Party.
Respondent responded to the show cause order with
additional information, indicating that, since the
Administrative Law Judge's Decision, Respondent has
continually utilized its Lake City facility to produce,
at one time or another, "seasonal" items, such as knit
: While in his Decision the Administrative Law Judge generally compared
the work which the employees had been doing at Lake City, i.e., work on
firecoats, with the work Respondent was then proposing at the hearing for the
Lake City employees, i.e., work on knit shirts, the Administrative Law Judge
noted that his conclusion that Respondent was offering "substantially
equivalent" work was not based on the exact nature of the garment to be
manufactured at the Lake City plant. See fn. 3 of his Decision.
' To avoid any possibility of misunderstanding, we further underline at the
outset that our discussion here, of necessity, is predicated on the assumption
that the General Counsel is also prepared to carry his burden of proof with
respect to the allegations of the complaints. Indeed, such a starting point is
required for the limited purpose of passing on the acceptability of a proposed
settlement. That is not to say, however, that our discussion herein should be
shirts, polar coats, and rainwear. The case stands in
the present posture.
2. As stated above, we disagree with the Adminis-
trative Law Judge's acceptance of this settlement. We
note at the outset, however, that, for the sake of
analyzing the settlement, we accept as true Respon-
dent's admission of the various unfair labor practices
alleged. We realize that, in a subsequent hearing on
the merits, those unfair labor practice allegatiions will
have to be specifically proven.'
In setting aside the settlement, we have taken
cognizance of the fact that, prior to their interest in
the Union, Lake City employees had worked on
firecoat production for some 4 or 5 years, and that
work, as shown by the record and as found by the
Administrative Law Judge,
was steady and reliable. There were few layoffs
and employees were able to stay with one
machine for long periods of time. They knew the
garments, their machines and the work which
was expected of them.
Of even greater moment, it appears that, prior to
the advent of the Union, Respondent planned the
expansion of firecoat production at the Lake City
facility. However, the General Counsel alleges, and
Respondent by withdrawing its answer is willing to
concede, that, when the Union appeared on the scene,
Respondent's president told employees "that he had
plans to expand that plant, would do so if there was no
union in the picture, but would not do so in the face of
an organizing effort." Such a statement clearly consti-
tutes an unfair labor practice. Respondent thereafter
promptly moved its firecoat production line from
Lake City when it became clear that its Lake City
employees, who had by then selected union represen-
tation, would continue to insist on the exercise of their
Section 7 rights.' Now Respondent asks, in exchange
for its admission of all the unfair labor practices
alleged, that this Board refrain from requiring the
reestablishment of the firecoat production line at the
Lake City facility. In this connection, Respondent
urges that reestablishing the firecoat line at Lake City
is not "feasible" and would work a hardship on
Respondent, and that, in any event, Lake City
read as indicating a predisposition on our part to judge this case on its ments.
Quite the opposite is true, for, as indicated above, we would remand this case
to the Administrative Law Judge for hearing. Only after such a hearing would
we be prepared to pass on the merits of the case.
4 We note the instant complaints allege not only that the removal of the fire
coat line was unlawful, but also that Respondent violated the Act by
interrogating employees about their union activities; by threatening employees
that selection of the Union would be futile: and by threatening employees with
discharge, loss of wage increase cancelled of plans for plant improvement and
expansion, and with plant closing because of their union activities. The
complaints further allege unlawful promises of benefits and unilateral changes
after the certification. By its agreement to withdraw its answer, Respondent
has admitted these allegations.
993
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees have been given "sustantially equivalent"
employment.
We continue to adhere to the well-established
principle that, in cases involving discriminatory con-
duct, the restoration of the status quo ante is the
proper remedy unless the wrongdoer can demonstrate
that the normal remedy would endanger its continued
viability.' In the instant case the Administrative Law
Judge concluded that it would not be "feasible" to
transfer back the firecoat line because Respondent had
hired new employees and purchased additional equip-
ment at the Beattyville plant. This reasoning ignores,
however, Respondent's admission that, prior to the
advent of the Union it planned precisely this expansion
of the firecoat production line for its Lake City
facility, and that the initial transfer of the fire coat
production line from Lake City was discriminatorily
motivated. Moreover, there is not a shred of record
evidence that resuming firecoat production at Lake
City would endanger the economic viability of Re-
spondent. Thus, for example, there is no evidence on
this record that Respondent could not expand its Lake
City plant-as it originally planned to do-or lease
additional production facilities in Lake City. Nor is
there any evidence that the labor market in Lake City
is insufficient to support an expanded operation.'
Finally, to the extent a reinstatement remedy will
impose a financial burden on Respondent, its admitted
unlawful conduct is the root cause of that burden.
Hence, if there is any hardship to be borne, it is only
fair that the wrongdoer and not the innocent Lake
City employees should bear it.'
Nor was the Administrative Law Judge on any
sounder ground in accepting Respondent's representa-
tion that the Lake City employees have been offered
"substantially equivalent" employment and that a full
remedy, which would include reestablishment of fire
coat production, should be denied for that reason also.
Thus, as found by the Administrative Law Judge, and
as discussed previously herein, the production of
firecoats had long provided Lake City employees with
steady and, by Respondent's own admission, expand-
ing employment which was not seasonal in nature.
However, since the unlawful removal of the firecoat
line from Lake City to Beattyville, the Lake City
employees have been engaged only in the production
of seasonal items, with all the uncertainty that the
production of such items generally entails. Indeed, the
Charging Party asserted in its response to the Board's
Notice To Show Cause, and Respondent has not
denied, that there have been curtailments of available
hours of employment at Lake City since Lake City
went into the production of these seasonal items.
Thus, the available evidence indicates that Lake City
employees' continued employment is now contingent
on Respondent's ability to secure short-term con-
tracts, in contrast to the steady employment afforded
by working on firecoats on a long-term basis which
these same employees enjoyed before the advent of the
Union.
In sum, if we were to accept this settlement, we
would invite employees to conclude: (1) that it is best
to think twice before engaging in protected activity,
but for which they would now have steady and secure
employment; and (2) that the vindication of statutory
rights does not necessarily include a return to the
status quo ante, at least when a respondent offers to
trade its admission of past wrongs for the Board's
agreement to abjure the need for a full and adequate
remedy. This is a result at once at odds with the
interest of these employees and with the Board's
obligations under the statute.' Consequently, we shall
set aside the settlement agreement and remand this
proceeding for further hearing on the merits of the
complaint's allegations, after which the Administra-
tive Law Judge shall prepare a Supplemental Deci-
sion.9 Accordingly,
It is hereby ordered that the Administrative Law
Judge's approval of the settlement agreement hereto-
fore discussed be, and it hereby is, reversed.
IT IS FURTHER ORDERED that the above-entitled
proceeding be, and it hereby is, remanded to the
Regional Director for Region 10 for further appropri-
ate action.
'R d H Masonry Supply, Inc.. 238 NLRB 1044, fn. 3 (1978), and the cases
cited therein. See also Sunflower Novelty Bags. Inc.. 225 NLRB 1331 (1976).
'See, generally. Townhouse T V. d Appliances. 213 NLRB 716 (1974).
' Weltronic Company. 173 NLRB 235 (1968). relied on by the Administra-
tive Law Judge, is inapposite, as that case involved only an 8(a)(5) failure to
bargain over a closing and not, as here, an alleged violation of Sec. 8(a)(3).
" See, generally, Jack C. Robinson doing business as Robinson Freight Lines.
117 NLRB 1483 (1957).
' Also, we would permit the General Counsel to amend the relevant
complaint contrary to the Administrative Law Judge's ruling at fn. 2 of his
Decision. The Administrative Law Judge there confused what the General
Counsel wished to allege. The General Counsel did not seek to allege as a
violation a refusal to bargain about the return of the firecoat line. This issue
had been the subject of an earlier charge allegation which the Regional
Director had dismissed. Rather, the General Counsel wished to allege the
removal of the fire coat line as an 8(a)(5) violation. This we would permit the
General Counsel to do now.
Finally, although we have a grave concern for the speedy resolution of
matters brought before the Board, we do not believe that this interest can or
should be furthered at the expense of statutory rights. It is this principle which
has guided our decision here.
DECISION AND ORDER
APPROVING SETTLEMENT AGREEMENT
STATEMENT OF THE CASE
MICHAEL 0. MILLER, Administrative Law Judge: These
cases were heard on May 15 and 16, 1978, in Clinton,
Tennessee, upon charges and amended charges filed on July
994
LION UNIFORM, JANESVILLE APPAREL DIVISION
19, August 3 and 17, September 19, and November 30,
1977,1 by Oil, Chemical and Atomic Workers International
Union, herein the Union, and duly served upon Lion
Uniform, Janesville Apparel Division, herein Respondent or
the Employer. Complaints, an order consolidating cases, and
notices of hearing were issued by the Regional Director for
Region 10 of the National Labor Relations Board on
November 17 and on February 9, 1978. The complaints
alleged that Respondent had engaged in and was engaging in
certain acts in violation of Section 8(a)( ), (3), and (5) of the
National Labor Relations Act, as amended. Respondent's
timely filed answers admitted in part and denied in part the
allegations of the complaint.
As will be discussed in greater detail infra. at the outset of
the hearing Respondent offered, by way of settlement, to
withdraw its answers and to submit itself to the issuance of a
formal order with the usual remedies provided by the Board
for the violations alleged and to comply therewith, provided
that such a remedy would permit it to reopen the Lake City
plant with a product line different from the firecoat line
which it had produced at that plant for the past several
years. The General Counsel and the Union opposed the
proffered settlement and objected to withdrawal of the
answers on the basis that nothing short of return of the
firecoat line would remedy the alleged unfair labor practices.
Based on the foregoing contentions, and noting that if
Respondent were correct long and difficult litigation could
be avoided and employees more quickly returned to gainful
employment and that the alleged unfair labor practices
would be fully remedied and the purposes of the Act thereby
effectuated, I permitted litigation limited solely to the issues
raised by Respondent's proposed settlement.
At the conclusion of the hearing, I ruled that I would
accept the settlement, over the objections of the General
Counsel and the Charging Party, and granted Respondent's
motion to withdraw its answers. The parties were informed
that I would issue a Decision and Order based on the facts
adduced at the hearing and the allegations of the complaints
which were deemed to be admitted to be true in the absence
of answers. All parties waived the filing of briefs.
On the basis of the entire record,' I make the following:
All dates are 1977 unless otherwise specified.
: At hearing the General Counsel sought to amend the complaint in Cases
10-CA-12938 and 10-CA-13089 to allege the removal of the firecoat line as a
unilateral action in violation of Sec. 8(a)(S) of the Act. Noting the abrupt
change in the theory after many months in which these complaints were
pending, and noting that the Regional Director had dismissed an identical
allegation against Respondent in Case 10-CA-13405 on March 22, 1978. 1
denied the General Counsel's motion to amend. That ruling is adhered to
herein.
'Subsequent to the close of hearing, Respondent submitted what purported
to be an affidavit of its vice president of manufacturing, R. Sydney Burns,
indicating a change in the product line with which it intended to replace the
transferred firecoat line. As my ultimate conclusions herein are not based on
the exact nature of the garment to be manufactured in the Lake City plant. I
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY AND THE UNION'S
LABOR ORGANIZATION STATUS
Respondent is an Ohio corporation with an office and
place of business in Lake City, Tennessee, where it is
engaged in the manufacture of clothing. During the past
calendar year, a representative period, Respondent sold and
shipped goods valued in excess of S50,000 from its Lake City
plant directly to points outside the State of Tennessee. I find
that Respondent is now, and has been at all times material
herein, and employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ADEQUACY OF THE SETTLEMENT AGREEMENT
A. The Unfair Labor Practices, the Election, and the
Strike
By withdrawing its answers, Respondent has admitted the
following violations of the Act, as alleged in the complaints:
Interrogating employees concerning their union member-
ship, activities, and desires, in May through June; threaten-
ing employees that selection of the Union would be futile,
and with discharge, loss of wage increases, cancelation of
plans for plant improvement and expansion, and plant
closing if the employees selected the Union as their collec-
tive-bargaining representative, in May through July;' and
promising employees employment for themselves and their
relatives, and promising them the establishment of a griev-
ance committee, if they reject the Union, in May, June, and
July.
All of the foregoing unfair labor practices had been the
subject of an earlier informal settlement agreement, which
had been set aside by the Regional Director.
On August 31, Respondent unilaterally changed working
conditions by: (1) limiting the use of restrooms, (2) institut-
ing a written warning system, (3) instituting rules concern-
ing reporting in after absences, (4) restricting the use of plant
telephones, (5) restricting employee freedom in talking or
moving about the plant, and (6) changing past practices
regarding sending out for lunches and sending employees
home when work was short. It also admits threatening
find it unnecessary to consider this affidavit. It is therefore placed in the
rejected exhibit file as Resp. Exh. 2 (Rejected).
' The General Counsel adduced evidence in support of his contention that
the firecoat line should be brought back to Lake City to the effect that.
immediately after the start of the organizing effort, Respondent's President.
Clarence Lapedes, told the Lake City employees that he had plans to expand
that plant, would do so if there were no union in the picture, but would not do
so in the face of an organizing effort. A similar statement was attributed to
Plant Manager Ray Roaden. This evidence stands undenied. The General
Counsel also tendered evidence, by offers of proof which were rejected, to
establish that a supervisor had told an employee that, if the Union came in,
Lapedes would close the plant, get rid of the firecoat line, and reopen. hiring
back those who had voted against the Union.
995
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees with discharge if they supported the Union, on
August 12.'
On July 14 a majority of Respondent's employees in a unit
appropriate for collective bargaining within the meaning of
Section 9(b) of the Act,6 in an election conducted under the
supervision of the Regional Director for the Region 10 of the
Board, selected the Union as their collective-bargaining
representative. The Regional Director certified the results of
that election on August 26.
On October 12 Respondent's employees began a strike,
which for the purposes of this settlement agreement Respon-
dent admits to have been caused or prolonged by the unfair
labor practices described above.
On October 24 Respondent temporarily moved its firecoat
line, which work had been done in Lake City, from that
plant to its plant in Beattyville, Kentucky. On January 5,
1978, Respondent made the transfer of that line to Beatty-
ville permanent.
Respondent admitted that by removing the firecoat line it
abolished the jobs of the unit employees because of their
union or protected, concerted activities in violation of
Section 8(a)(3) of the Act.
B. Respondent's Offer
As noted, Respondent offered, in order to settle this
matter, to withdraw its answers, thereby admitting the
allegations of the complaints, and to resume business
operations at its Lake City plant, albeit with a product line
other then the firecoats which it had produced at that plant
for the last 4 or 5 years, reinstating the employees to their
"former" or "substantially equivalent positions" as soon as
the striking employees made an unconditional offer to return
to work.' The work which it had in mind to bring into the
plant was the manufacture of knit shirts; however, it
indicated that as product lines changed, it was possible that
other products would be manufactured in that plant by these
employees. It further agreed that it would bargain with the
Union regarding the startup of production and all conditions
of employment, including production standards, to assure
that the employees would have their "former" or "substan-
tially equivalent positions." Respondent contended that
"cutting and sewing" was the former job of these employees,
whether that cutting and sewing was on firecoats or shirts,
and that, even if it were not, a requirement that it return the
firecoat line to Lake City would impose upon it an
unreasonable burden, thereby making the work on the
firecoats no longer available and warranting the offer of
In regard to this allegation, and in support of its argument that the
settlement did not provide an adequate remedy, the General Counsel made an
offer of proof to the effect that on October 12, the day the strike began, Ray
Roaden asked Linda Strong why they were striking, and she told him that
they wanted nine machines brought back which had been taken out on
October 9. He told her that they had not been used and were going to another
plant, which she disputed. He told her that there was a substantial quantity of
work to be done and asked that everyone come back with no reprisals being
taken. He then said that if they did not come back they would be discharged.
The offer of proof was rejected as not being relevant to the limited issue under
litigation.
The unit consists of:
All production and maintenance employees, including truckdrivers,
employed by Respondent at its Lake City, Tennessee, plant, but
excluding all office clerical employees, professional employees, guards,
and supervisors as defined in the Act.
substantially equivalent employment, i.e., cutting and sewing
work on other garments, such as shirts.
The General Counsel and the Union opposed the prof-
fered settlement, asserting that the work of manufacturing
the firecoats was still available, that no unreasonable burden
prevented the return of the work to Lake City, that the
employees were entitled to reinstatement upon uncondition-
al offer to their former jobs, and that those former jobs
involved the manufacture of firecoats, not shirts.
C. The Burden of Resuming Firecoat Production at
Lake City
The Lake City plant is 16,000 square feet in size. When
the firecoat line was last in that plant, the plant was
occupied to capacity and problems were being created by the
storage of materials around and under the machines, where
they did not belong. In order to meet production require-
ments and delivery obligations when the employees struck
on October 12, Respondent first attempted to continue
operations with replacements. This it was unable to do even
though it secured a restraining order limiting the picketing
around its plant. It then unsuccessfully attempted to secure a
subcontractor to temporarily perform the work. Finally, on
October 24, after notifying the Union of its intent to do so, it
temporarily moved the line, machines and all, to a recently
acquired plant in Beattyville, Kentucky, approximately 100
miles from Lake City, Tennessee.
The Beattyville plant is a more modern building of 54,000
square feet. Subsequent to the move, production of the
firecoats increased from approximately 600 to 800 coats per
week at Lake City (with a maximum of about 1,000, with
extensive overtime) to the current production of 1,100 to
1,200 per week at Beattyville. The line now fully occupies
about 30,000 square feet in the new plant.
Because of the growth of the firecoat line since its
temporary transfer to Beattyville, it has become physically
impossible to return that line to the smaller Lake City plant.'
Therefore, unlike the situation presented in Bruce E.
Kronenberger and Herbert Schoenbrod d/b/a American
Needle & Novelty Company, 206 NLRB 534 (1973), cited by
the General Counsel, this Respondent would suffer an undue
hardship if required to restore the status quo ante by
reinstituting the firecoat line at Lake City. In this regard, the
instant situation is more akin to that presented in Weltronic
Company, 173 NLRB 235 (1968). In that case, involving the
unilateral transfer of unit work to another of the employer's
plants, the Board found that space had been cramped at the
' On the second day of the hearing herein, the Union made an unconditional
offer, on behalf of all employees, to end the strike and return to work.
' There is, apparently, no second-shift operation at either plant. Respon-
dent's vice president for manufacturing, Sydney Burns, testified, without
elaboration or contradiction, that multishift operations are neither practical
nor acceptable in the garment industry. He also testified that because of the
delivery requirements and the duplication of machines and supervision which
would be required, splitting the line into two plants was not feasible.
The General Counsel adduced evidence that Respondent had announced
plans to expand the Lake City plant prior to the advent of the Union and had
threatened to curtail these plans in the event of a successful organizational
effort, in support of his contention that Respondent should be required to
move its line back to Lake City. Suffice it to say that there appears to be no
Board authority which would require an employer to undertake a capital
expansion program to accommodate the remedial provisions of its Order.
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LION UNIFORM, JANESVILLE APPAREL DIVISION
original plant and that respondent, as here, had been
motivated, at least in part, by economic considerations in
transferring the unit work. It therefore did not require the
respondent to physically return the transferred work and
permitted it the option of having the old employees perform
their former jobs at the new plant, 3 miles away. In the
instant case, transferring the employees to the new plant is
not feasible, but alternate work, which is the same or similar
to what they were doing, is available at the original plant.
D. "Former" or "Substantially Equivalent Emloyment"
Respondent offered to resume operations at the Lake City
plant on the employees' unconditional offer to return to
work, manufacturing knit shirts (and other garments). This
work, I find, is at least "substantially equivalent" to the
work previously performed (and is therefore satisfactory
compliance with a Board order requiring reemployment
inasmuch as the former work is no longer available) if it is
not, in fact, the employees' "former" work.
That there are distinct differences between firecoats and
knit shirts is obvious. The shirts are generally made of a
single layer of lightweight fabric with multiple layers only at
the collar and cuffs. The firecoats are heavy garments made
of multiple layers of fire retardent material, with flaps,
pockets, and, on some models, removable liners. Knit shirts,
which may have buttons, do not generally require the brads,
snaps, and rings found on the fire coats. Nonetheless, the
manufacture of both requires that fabric be spread and cut,
the edges of the fabric be serged (stitched to prevent
unraveling), pieces such as collars, cuffs, and pockets be
sewn together, and the various components of the garment
assembled and sewn. The machines used to manufacture
both garments are at least similar and, in many cases, are
identical. For example, while no machine inserting brads
(the rivetlike metal fasteners frequently found on pocket
corners on denim jeans) is used in making knit shirts, the
operation of that machine is essentially the same as the
sewing machine which inserts a tack stitch and which is used
on both coats and shirts.
Moreover, as Respondent pointed out, the Lake City plant
has not always made firecoats. Until 4 or 5 years ago,
various garments including jeans, zip suits (coveralls) and
jackets were made in that plant. It is, according to the
testimony of Mr. Burns, the nature of the garment industry
that different products are made within any given plant,
depending on the season and the market. Indeed, at
Respondent's other plants various types of garments, from
pants to caps, are made, with the same employees being
retrained as necessary to go from one to the other.
The work on the firecoats was steady and reliable. There
were few layoffs and employees were able to stay with one
machine for long periods of time. They knew the garments,
their machines, and the work which was expected of them.
The General Counsel has asserted that the work on knit
shirts (or other garments) will not be the same or substan-
tially equivalent because some employees will have to learn
to operate different machines, become familiar with new
production standards, and may be more subject to layoffs
because the new product lines might not be as steady as the
old. However, even prior to the advent of the Union, these
employees had no assurance that they would not be required
to work on a product other than the firecoats and that such a
change might not require them to learn new machines,
standards, and tasks. Moreover, in regard to the fears of
layoffs or reduced earnings because of different production
standards, I am satisfied that so long as Respondent
complies with the requirements of this Order and its
obligation to bargain with the Union, the employees will
suffer no diminution in these aspects of their employment.
E. Conclusion
For the reasons set forth above, I conclude that Respon-
dent's offer of settlement will provide a remedy virtually
identical to that which might have been achieved after
complete litigation of this matter and the issuance of a
complete decision (assuming that the General Counsel were
to prevail on all allegations) and that it will effectuate the
purposes of the Act to accept this settlement. Accordingly, I
adhere to my ruling permitting withdrawal of Respondent's
answers, and approve the settlement.
Ill. THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)( ), (3), and
(5) of the Act, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It having been found that Respondent's employees began
a strike on October 12, 1977, which strike was caused or
prolonged by Respondent's unfair labor practices, and it
having been found that Respondent transferred its firecoat
line from its Lake City plant and discriminatorily abolished
the jobs of the unit employees because of their union and
protected, concerted activities, Respondent shall offer each
of the unfair labor practice strikers immediate reinstatement
to his or her former position or, if such job no longer exists,
to a substantially equivalent position, consistent with the
terms of this Decision, without loss of seniority or other
rights or privileges, discharging if necessary any replace-
ments hired. Noting that equipment necessary to operate the
Lake City plant was removed when the firecoat line was
removed, that no unconditional offer to return to work was
made by or on behalf of the employees until May 16, 1978,
that resumption of operations will require replacement of the
machines and equipment of the Lake City plant, and that
Respondent had indicated at hearing that such replacement
and startup might take a few weeks, it is reasonable to
require that Respondent be required to make these employ-
ees whole for any loss of earnings they would have earned
from the date that the plant is reequipped for production,
but not later than June 19, 1978, to the date of Respondent's
offer of reinstatement. Any backpay found to be due shall be
computed, with interest, in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 651 (1977).9
'See, Generally. Isis Plumbing A Heating Co., 138 NLRB 716 (1962).
997
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"A violation of Section 8(a)(3) goes to the very heart of
the Act." It therefore warrants that Respondent be further
required to cease and desist from infringing in any other
manner upon the rights guaranteed employees by Section 7
of the Act. Pan American Exterminating Co., Inc., 206
NLRB 298, fn. 1 (1973); Entwistle Manufacturing Company,
23 NLRB 1058, enforced as modified 120 F.2d 532 (4th Cir.
1941).
Inasmuch as Respondent's unfair labor practices included
the unilateral change of working conditions, imposing more
stringent rules on the activities of the employees while at
work, and establishing a written warning system, Respon-
dent will be required to revoke the rules which it unilaterally
established on August 31, 1977, and revoke and expunge
from employees' files and personal records any warnings
given pursuant to these rules and written warning system.
CONCLUSIONS OF LAW
1. Lion Uniform, Janesville Apparel Div., is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Oil, Chemical and Atomic Workers International
Union is a labor organization within the meaning of Section
2(5) of the Act.
3. All production and maintenance employees, including
truck drivers employed by Respondent at its Lake City,
Tennessee, plant, but excluding all office clerical employees,
professional employees, guards and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. Since August 26, 1977, the above-named labor organi-
zation has been and now is the certified and exclusive
representative of all employees in the aforesaid appropriate
unit for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By interrogating its employees concerning their union
membership, activities, and desires; by threatening employ-
ees that selection of the Union would be futile; by threaten-
ing discharge, loss of wage increases, cancellation of plans
for plant expansion or improvement, and plant closing if the
employees selected the Union as their collective-bargaining
representative; and by promising employees employment for
themselves and their relatives and the establishment of a
grievance committee if they rejected the Union, Respondent
has engaged in unfair labor practices within the meaning of
Section 8(aX)(I) of the Act.
6. By removing the firecoat line from its Lake City plant
and discriminatorily abolishing the jobs of unit employees
because of their union or protected, concerted activities,
Respondent has engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
7. By unilaterally altering working conditions, Respon-
dent has engaged in unfair labor practices within the
meaning of Section 8(aX5) and (1) of the Act.
'" 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 Sect. 102.48
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the basis of the entire record, the findings of fact,
and the conclusions of law, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER"'
The Respondent, Lion Uniform, Janesville Apparel Divi-
sion, Lake City, Tennessee, its officers, agents, successors,
and assigns, shall:
I. Cease and desist from:
(a) Interfering with, restraining or coercing its employees
in the exercise of the rights guaranteed them in Section 7 of
the National Labor Relations Act by:
(I) Interrogating employees concerning their union mem-
bership, activities, and desires.
(2) Threatening employees that selection of the Union as
their bargaining representative would be futile.
(3) Threatening employees with discharge if they join or
engage in activities on behalf of the Union.
(4) Threatening employees with plant closure or cancella-
tion of plant expansion and improvements if they select the
Union as their collective-bargaining representative.
(5) Promising employees and their relatives employment if
they reject the Union as their collective-bargaining represen-
tative.
(6) Soliciting employees to influence other employees to
vote against the Union.
(7) Threatening to withhold wage increases from employ-
ees because of their activities on behalf of the Union.
(8) Promising employees that we will establish a grievance
procedure if they reject the Union as their collective-bargain-
ing representative.
(b) Discouraging membership in the Union or any other
labor organization by abolishing the jobs of any of its
employees or in any other manner discriminating in regard
to hire or tenure of employment or any other term or
condition of employment.
(c) Refusing to bargain collectively with the Union as the
exclusive collective-bargaining representative of the employ-
ees in the appropriate unit described below by unilaterally
changing the terms and conditions of employment. The
appropriate unit is:
All production and maintenance employees, including
truck drivers, employed by Respondent at its Lake City,
Tennessee plant, but excluding all office clerical em-
ployees, professional employees, guards and supervisors
as defined in the Act.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exerciise of their rights to self-
organizatiion, to form labor organizations, to join or assist
the Union or any other labor organization, to bargain
collectively through representatives of their own choosing
and to engage in other concerted activities for the purposes
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
998
LION UNIFORM, JANESVILLE APPAREL DIVISION
of collective bargaining or other mutual aid or protection or
to refrain from any and all such activities.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Offer each of the former unfair labor practice strikers
immediate reinstatement to his or her former position or, if
such job no longer exists, to a substantially equivalent
position, consistent with the terms of this Decision, without
loss of seniority or other rights or privileges, discharging if
necessary any replacements hired, and make each of these
employees whole for any loss of earnings he or she would
have earned from the date the plant is reequipped for
production, but not later than June 19, 1978, to the date of
Respondent's offer of reinstatement, with interest as pre-
scribed in The Remedy section of this Decision.
(b) Revoke the work rules and written warning system
established unilaterally and without notice to the Union on
August 31, 1977, and expunge from the files and personnel
records of all unit employees all warnings issued pursuant to
the unilaterally established rules and written warning sys-
tem.
(c) Meet with the Union upon request at reasonable times
and places and bargain in good faith with respect to rates of
pay, wages, and hours of employment, and embody any
understanding reached in a signed agreement with the Union
as the exclusive representative of its employees in the
collective-bargaining unit described above.
(d) Make all relevant books, records, and documents
available to the Board or its agents for inspection and/or
copying at any and all of its locations to assure compliance
with the provisions of this Order.
(e) Post at its Lake City, Tennessee, facility, copies of the
notice to employees attached hereto and marked "Appen-
dix."" Copies of said notice, on forms provided by the
Regional Director for Region 10, after being signed by
Respondent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 10, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
" In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended, gives
all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative of
their choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with,
restrains, or coerces employees with respect to these
rights. More specifically;
WE WILL NOT interrogate our employees concerning
their or other employees' union membership, activities,
and desires.
WE WILL NOT threaten our employees that selection
of the Union as their bargaining representative would
be futile.
WE WILL NOT threaten employees with discharge if
they join or engage in activities on behalf of the Union.
WE WILL NOT threaten employees with plant closure
or cancellation of plant expansion and improvements if
they select the Union as their collective-bargaining
representative.
WE WILL NOT promise employees and their relatives
employment if they reject the Union as their collective-
bargaining representative.
WE WILl. NOT solicit employees to influence other
employees to vote against the Union.
WE WILL NOT threaten to withhold wage increases
from employees because of their activities on behalf of
the Union.
WE WILL NOT promise employees that we will
establish a grievance procedure if they reject the Union
as their collective-bargaining representative.
WE WILL NOT unilaterally and without notification
to or consultation with the Union announce and make
changes affecting employees' terms and conditions of
employment.
WE WILL NOT abolish or move employees' work
because of their membership in and activities on behalf
of the union or because they engage in concerted
activities with other employees for the purposes of
collective bargaining and other mutual aid and protec-
tion.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights to self-organization, to form labor organiza-
tions, to join or assist the Union, or any other labor
organization, to bargain collectively through represen-
tatives of their own choosing, and to engage in other
concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
WE WILL revoke the work rules and written warning
system established on August 31, 1977, and WE WILL
remove from their files and personnel records any
warnings given to employees because of these rules and
written warning system.
WE WILL offer each of the former unfair labor
practice strikers immediate reinstatement to his or her
former position or, if such job no longer exists, to a
substantially equivalent position, without loss of senior-
ity or other rights and privileges, discharging if neces-
999
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sary any replacements hired, and WE WILL make each
of these employees whole for any loss of earnings he or
she would have earned from the date the plant is
reequipped for production, but not later than June 19,
1978, to the date of our offer of reinstatement, with
interest.
WE WIL. meet at reasonable times and places with
the Union and bargain in good faith with respect to
rates of pay, wages, hours of employment, or other
terms and conditions of employment, and embody any
understanding reached in a signed agreement with the
Union.
LION UNIFORM, JANESVILLE APPAREL DIVISION
100(