Lockwoven Company

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1362 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lockwoven Company and ARK Garment Company
and St. Louis Joint Board, International Ladies'
Garment Workers Union, AFL-CIO. Case 14-CA-
11413
September 28, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On May 29, 1979, Administrative Law Judge Da-
vid S. Davidson issued the attached Decision in this
proceeding. Thereafter, Respondent and the Charg-
ing Party filed exceptions and supporting briefs.
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,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.2
plaint alleges that Respondent threatened striking employ-
ees with loss of accrued seniority if they did not return to
work, attempted to induce employees to abandon the
Union and deal directly with Respondent, promised bene-
fits to employees, and attempted to undermine employee
support for the Union by inducing and assisting employees
to withdraw union authorization cards. The complaint also
alleges that Respondent unlawfully discharged employee
Rosie Lee Kimble and failed and refused to recall striker
Florine Seay to her former position. Finally, the complaint
alleges that Respondent by its unfair labor practices under-
mined the Union's majority status among Respondent's
production and maintenance employees and prevented the
holding of a fair election. The complaint alleges that Re-
spondent's conduct violated Section 8(a)(1), (3), and (5) of
the Act. Respondent denies the commission of any unfair
labor practices.
A hearing in this case was held before me in St. Louis,
Missouri. on July 26, 27, and 28, 1978. At the conclusion of
the hearing, oral argument was waived. The parties have
filed post-hearing briefs.
Upon the entire record in this case and from my observa-
tion of the witnesses and their demeanor, I make the follow-
ing:
FINDINGS AND CONCIUSIONS
I. THE BUSINESS OF RESPONDENT
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 Respondent, Lockwoven Company and
ARK Garment Company, Overland, Missouri, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative 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 relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir, 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 Member Truesdale agrees with his colleagues that bargaining is war-
ranted herein: however, he would date the bargaining obligation from April
5. 1978, the date of the Union's demand for recognition with a majority
showing. Contrary to his colleagues, therefore, he would not adopt the por-
tion of the Administrative Law Judge's recommender Order which dates the
bargaining obligation from April 12, 1978, the date on which Respondent's
unfair labor practices occurred. Idak Convalescent Center of Fall River, Inc.,
d/b/a Crawford House, 238 NLRB 410 fn. 1 1978) and Chandler Motors,
Inc., 236 NLRB 1565 fn. 5 11978).
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge: The
charge in this case was filed by St. Louis Joint Board, Inter-
national Ladies' Garment Workers Union, AFL-CIO,
herein referred to as the Union. on May 2, 1978. The com-
Lockwoven Company and ARK Garment Company, a
trading name utilized by Lockwoven Company, engage in
the manufacture, sale, and distribution of burial garments
at Overland, Missouri. During a representative calendar
year, Respondent purchased and received goods and mate-
rials valued in excess of $50,000 which were shipped di-
rectly to its plant from points located outside the State of
Missouri. I find that Respondent is an employer engaged in
commerce within the meaning of the Act and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
II. rHiE ABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III. THE ALLE(EI) UNFAIR LABOR PRACTICES
A. The Facts
1. The union's activities at Respondent's plant
In the early part of January 1978' union organizer Ruth
Smith passed out leaflets to Respondent's employees as they
left work. The leaflets contained cards to be mailed back to
the Union by employees who were interested in organiza-
tion. Respondent's president, Bernard Bearman, was aware
of the handbilling and saw one of the leaflets but took no
responsive action at that time.
i All dates referred to herein ccurred in 1978. unless otherwise indicated.
245 NLRB No. 178
1362
LOCKWOVEN COMPANY
After the Union received six cards from interested em-
ployees, Smith met on March 11 with employees Creme-
zella Allen, Alvin Deckard, Florine Seay. Melwida Peters,
Gwendolyn Clay, and Lee Dora Wince. Smith gave them
blank union authorization cards to take back to other em-
ployees and she explained to them that it was necessary to
get a majority of the employees in the plant to sign the
cards in order to authorize the Union to represent them.
Smith met with employees again on March 29 and April
4. By the end of the April 4 meeting, the Union had re-
ceived 21 signed authorization cards from Respondent's 39
production and maintenance employees.'
On April 5 the Union by telegram notified Respondent
that it had been designated by a majority of Respondent's
production and maintenance employees to represent them
as their exclusive bargaining agent, demanded recognition
by Respondent, requested a meeting for the purpose of ne-
gotiations, and offered to present Respondent evidence of
the authorizations given to the Union by the employees.
On April 6 Respondent by telegram replied that it
doubted the Union's claim to represent a majority of the
employees, that it was not interested in reviewing the au-
thorization cards, and that any further pursuit of the
Union's claim should be directed toward an NLRB elec-
tion.
On the same day, by mailgram, the Union advised Re-
spondent that employees Alvin Deckard, Geneva Adams,
Cremezella Allen, Melwida Peters, Alice Wagner, and
Kathy Hogenmiller had volunteered their services as non-
paid members of an in-plant organizational campaign com-
mittee.'
Shortly after reviewing the Union's demand for recogni-
tion, Respondent's President Bearman called a meeting of
the production and maintenance employees in the plant
and read to them the telegram he had received from the
Union and Respondent's reply. He told the employees that
he was rather shocked and hurt to receive the telegram be-
cause they were one big family, could take care of matters
themselves, and did not need any outsiders coming in to tell
them what to do. Bearman told the employees that this was
something they had to do on a personal basis and that he
hoped they would consider carefully their signing of the
cards because it was a show of their interest either way. He
also told them that no one was forced to sign cards and that
they could get them back if they wanted. Bearman told the
employees some of the advantages they had working for
Respondent, including the fact that the plant was air-condi-
tioned, there was a parking lot, and if women had to leave
work for any reason, they could return and he could usually
find a job for them. Bearman also told them that it would
' The parties have stipulated that all production and maintenance employ-
ees employed by Respondent at its facilities on Walton Road in Overland,
Missouri, excluding office clerical employees, professional employees, guards
and supervisors as defined in the Act, homeworkers and all other employees
constitute an appropriate unit for the purposes of collective bargaining
within the meaning of Sec. 9(b) of the Act.
3On Apnl 5 each of the named employees gave written authorization to
the Union to advise Respondent and others that they were serving as volun-
teer unpaid members of the committee.
not make any difference, that the plant was open, and that
it was their choice to decide what they wanted to do. 4
2. The strike
On April 10 in the late afternoon the Union held a meet-
ing attended by about 21 of Respondent's employees, orga-
nizer Smith. and Union regional director Glenn Clay. Clay
advised the employees that the Union's request for recogni-
tion had been denied and that Respondent had suggested
that the Union go to the NLRB for an election. Clay said
that their options were to petition for an election or to dem-
onstrate to Respondent that the Union represented a major-
ity by striking. By voice vote the employees decided to
strike, with no expressed opposition. At this meeting two
additional employees signed union authorization cards.
These, along with two other cards signed between April 4
and 10, raised the total number of authorizations in the
Union's possession at this time to 25.
The next morning, Tuesday April II. the strike began.
All but four employees stayed out of work, and a number of
the striking employees picketed at Respondent's plant en-
trance.
The next day, Wednesday April 12. was payday, and
Bearman instructed office employees to notify the striking
employees that their checks would be ready at the usual
hour around 2:30 or 3 p.m.. and to tell them that he wanted
to talk to them. That afternoon union organizer Smith, ac-
companied by a group of employees including Alvin
Deckard, Cremezella Allen, and several others, went to Re-
spondent's office to request the employees' paychecks.
Bearman met them at the door, and Smith told him they
were there to get the employees' paychecks. Bearman told
Smith that she could not enter because she was not an em-
ployee. Smith replied that she was on the organizing com-
mittee and was entitled to represent the people. Bearman
said that if the employees wanted to come in, sit down, and
talk with him, they could have their checks. Smith led the
group back to the picket line where she told the other em-
ployees present that no one was to go in without a repre-
sentative.'
Later that day, Respondent mailed the paychecks to the
striking employees with the following letter:
'These findings are based on a composite of the testimony of Florine
Scay, Gwendolyn Clay, Rosie Lee Kimble, Loretta Mathis, and Bernard
Bearman, which contains no basic conflicts. While only Kimble testified that
Bearman mentioned that the employees could get their cards back, Bearman
testified that he asked employees to consider their signing of cards. As the
Union had already made its demand and had asserted that it had majority
status, I credit Kimble that Bearman in effect asked the employees to recon-
sider their signing of cards by telling them they could get them back.
' Although Bearman conceded that he instructed his office staff to tell
employees that he wanted to talk to them when they came for their checks.
he denied that he conditioned giving the checks to the employees at this time
on their willingness to listen to him. However. Deckard, who was clearly not
hostile to Respondent at the time of the heanng. testified on direct examina-
tion that Bearman told employees he would give them their checks if they
would come in the plant without Smith. While Deckard equivocated after
cross-examination by counsel for the General Counsel and the Union fo-
cused on this aspect of his testimony. Cremezella Allen. who as also an
employee of Respondent at the time of the heanng. testified to the same
effect as Deckard's direct testimony. In these circumstances. I do not credit
Bearman's denial and find that Bearman refused to give employees their
checks unless they: entered the plant to talk with him without Smith
1363
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This letter is to inform you that in order to meet the
needs of its customers, Lockwoven Company requires
that you return to work at the regular time on Mon-
day, April 17th. If you do not arrive for work on that
date, the Company will begin the process of hiring re-
placements in order to carry out the work necessary to
meet its customers demands.
When such a replacement is hired, you will not be
fired or terminated; rather, you will take a seniority
position behind the replacement, and you will not be
able to return to your job until either the job position is
vacated by the replacement or the work force is ex-
panded. (Emphasis in original)
We hope that you will accept our invitation to re-
turn to work, thus making the implementation of our
replacement program unnecessary. You have per-
formed well for the Company in the past and our cus-
tomers have been the beneficiaries of that service; but
in order to continue to give our customers the same
kind of service in the future, it is imperative that you
return to work on Monday morning at the appropriate
time.
A day or two later, while the picketing was in progress,
strikers Cremezella Allen and Geneva Adams entered the
plant and talked with Bearman. Allen asked Bearman what
he had to offer to them, and he replied that "he couldn't
promise us anything at the time until the picket line was
down; and after the picket line was down, then he would
talk with us and he would do what he thought he could for
us, and that . . . he would like to see all of us return to
work.6
3. The meetings between Bearman and Deckard on April
15 and 16
On Thursday, April 13, Alvin Deckard visited Plant Su-
pervisor Al Schuchman at his home. According to Deckard,
he told Schuchman that he was tired of the way things were
going and was dissatisfied with the way the Union was
treating him. Deckard said that he wanted to see about
going back to work and that he would like to talk to Bear-
man but would not go to the factory.' Thereafter Schuch-
man called Deckard to tell him that Bearman would meet
him the next day at a restaurant.
On Friday April 14, Deckard met with Bearman and
Schuchman. According to Bearman and Deckard, at this
meeting Deckard asked if he could get his job back and
whether there would be any retaliation. They testified that
Bearman told him that he could come back to work and
there would be no retaliation. According to Bearman,
Deckard told him that there were others who were dissatis-
fied with the strike and might also want to come back to
work, and Bearman said that there was work that needed to
be done and that he would welcome as many as wanted to
return.
On the following morning, Saturday April 15, Deckard
telephoned Bearman and asked if he could meet with him
6 Allen so testified without contradiction.
'Only Deckard testified to this conversation. Schuchman was not called as
a witness.
again. Bearman agreed, and on this occasion Deckard went
to the plant accompanied by his wife and daughter. Ac-
cording to Bearman, Deckard, and Mrs. Deckard, the con-
versation was essentially the same as at the meeting on the
previous day. At the end of the meeting Deckard told Bear-
man that he was going to visit Cremezella Allen at her
home to talk to her about his returning to work and that he
might call some others. Bearman testified that whenever
during the course of these meetings Deckard tried to ask
him about improvements which might be made, Bearman
told him that he could not discuss it with him and did not
want to hear anymore. However, he also conceded that in
an affidavit given by him during the investigation of this
case, he stated that in response to Deckard's statement that
employees were asking what was going to happen to them
in the future. Bearman said that the employees were going
to have to trust him, that Respondent had been responsive
to their problems in the past, and that once the Union's
claim was resolved, Respondent would be happy to address
itself to employees' problems individually or in a group.8
4. Deckard's visit to Allen and his telephone
conversations with other employees on April 15
After taking their daughter home, the Deckards went to
Allen's house, arriving there at midday. While there,
Deckard told Allen that Bearman had some promises of
things that he would do for the employees, and Deckard
asked her to write the items down because he wanted her to
tell the other employees about them. She told him to write
them down himself and gave him a pencil and paper.
Deckard did not say that the promises were conditioned on
getting rid of the Union. The items on Deckard's list were:
1. Base Rate increase.
2. Piece Work increase.
3. More paid holidays.
4. Summer picnic paid by company.
5. Pension papers will be brought in Monday or
Tuesday.
6. some new equipment.
7. No retaliation against anyone. (sic)
8. appoint a mediator to represent you in shop.
9. Work will be handled equally on dress side.
After completing the list, Deckard told Allen that he
wanted to contact some of the other employees, and she
gave him two or three names and telephone numbers that
she knew. The Deckards left Allen's home, leaving with her
the list of items Allen had written.9 After they left, Allen did
sMrs. Deckard testified similarly.
9 Allen so testified. The Deckards testified to a different version of their
meeting with Allen. According to them. Deckard told Allen he intended to
return to work on the following Monday, Deckard asked Allen what the
employees wanted in order to go back to work, Allen began to tell him, and
one of them suggested writing it down. According to them, Allen asked if
Deckard was going to take the list back to Bearman, and Deckard replied
that it would do no good because Bearman could not do anything because of
the Union and he knew that Bearman would say. According to Deckard, he
asked Allen for the names and telephone numbers of other employees be-
cause he would have materials all over the place if he returned to work and
started cutting and wanted to call some of the others to see what they
thought about going back to work. I have credited Allen's version and not
the Deckards'. There are inconsistencies both internally within their testi-
1364
LOCKWOVEN COMPANY
not call any of her fellow employees to tell them what
Deckard had told her.
After leaving Allen's house, the Deckards returned to
their home, where, according to them. Mrs. Deckard made
several typewritten copies of the list of the items Deckard
had written down and left at Allen's house. During the af-
ternoon Deckard telephoned Florine Seay. Deckard asked
her how long she could stay out on strike and said that
there was going to be trouble at the plant if they remained
out. She asked what he meant, and he said the union people
were going to make trouble for them, that some of the
women were suffering. Seay told Deckard that she could
stay out as long as anyone else. Deckard then said that he
would stay out with them but would not be with them on
the picket line any more. She asked what he meant, and he
said he would stay out of work as long as they all would but
that someone was going to get hurt. Deckard told her that
"the boss" had offered cutter Lee Fince a raise, was going
to give another employee a raise, was going to provide two
more paid holidays, and was going to give the pieceworkers
a raise. Seay asked Deckard how he knew, and Deckard
told her to thrust him. She repeated her question, and he
said he talked with the boss. She then said she had heard
that he had been to Al Schuchman's house and asked if he
had been out on the line with them and then reported what
they did outside the plant back to the boss. Deckard denied
the charge, repeated that the boss had said it, and said that
she would have to trust him about it. Seay called Deckard a
doublecrosser and accused him of disloyalty. She told
Deckard there was no way he could tell her what the boss
had said unless he had talked with the boss, and he told her
that he had talked to Schuchman. She told Deckard that
she was not interested and not to bother her, and she hung
up. Seay did not tell any other employee about her conver-
sation with Deckard over that weekend. '
That afternoon Deckard also telephoned Gwendolyn
Clay. In their conversation Deckard told her that he had
been told the employees would get several things if they
returned to work. These were new machine heads, a better
pension plan, and an increase in pay. He also said that
cutter Lee Fince would be able to make more money, that
the dresses would be given out evenly so that other employ-
ees would have the opportunity to make more money, and
that there would be a picnic given at the plant. Deckard did
mony as well as between their versions. There is a fundamental implausibil-
ity to Deckard's testimony as to his reasons for visiting Bearman on April 14
and 15 and again on April 16 as well as in the testimony as to what was said
at those three meetings. In addition, Deckard was at times evasive and testi-
fied to failures of recollection in areas in which his testimony otherwise
indicated his recollection should have been clear. Furthermore, Deckard's
claim of ignorance of what the employees wanted is inconsistent with his role
in the organizing campaign up to the beginning of the strike. His version of
how the list came to be written is inconsistent with his leaving it with Allen.
and the very wording of item 5 on the list indicates that it was a list of
promises and not demands. I have concluded that neither Bearman nor the
Deckards told the whole story of the reasons for the series of meetings be-
tween Bearman and Deckard, what was said at them, or what happened at
Allen's house.
to I have credited Seay rather than Deckard. While Deckard denied recall-
ing that he said some of the things attributed to him by Seay, he testified
only that he received a "terrific cussing" and a threat from Seay without
describing further his version of their conversation. He was otherwise pa-
tently evasive in his answers to questions about what he told employees
about benefits. I have found his testimony generally unworthy of credit.
not say who told him these things nor did he mention
whether the Union would be in or out if the employees
returned and were given these improvements."
Deckard conceded that he telephoned one or two other
employees in addition to Clay and Seay, and that he might
have called some employees before he visited Allen.'2
That evening Smith telephoned Deckard and asked him
how he was feeling.' In the course of their conversation,
Deckard told her that he was going to work on the follow-
ing Monday and complained about the way the Union was
conducting the strike.
5. Deckard's meeting with Bearman on April 16
On Sunday April 16, Deckard again called Bearman and
arranged to meet him at Bearman's office. Bearman's son
Tom and Deckard's wife were present. According to Bear-
man and the Deckards' 4 Deckard again indicated that the
reason for the meetings was that he wanted to make certain
that it would be all right for him and others to return to
work the following morning and that there would be no
retaliation. According to them, after Bearman reassured
Deckard, one of the Deckards asked how the employees
could go about getting their union authorization cards
back, Bearman called his lawyer at home for advice and
then told Deckard that employees had the right to request
the Union to return their authorization cards if they wished.
According to Bearman and the Deckards, during this meet-
ing Deckard told Bearman he had a list that Allen gave him
of things the employees wanted to talk about which he laid
on Bearman's desk, but Bearman refused to talk about it,
and Deckard left it there.
6. The return to work by a number of employees and
their requests for the return of union authorization cards
On April 17 about 16 to 20 of the striking employees,
including Deckard, returned to work. Others including Cre-
mezella Allen, Florine Seay, Gwendolyn Clay, and Rosie
Lee Kimble remained out of work and continued to picket
at the plant.
Shortly after the employees came to work, Bearman met
with them in the lunchroom. Bearman welcomed the em-
ployees back and told them a story about a married couple
who had problems which they did not discuss until a jolt
brought them into the open. He then told them that their
marriage could be saved but that with the cloud hanging
over them, which Respondent had not initiated, Respon-
dent could not address itself to their problems until the
" I have credited Clay who so testified. Deckard testified that he men-
tioned to Clay that he had talked to Allen about some of the things that
women wanted at the plant. While he denied mentioning to Clay the list he
had given to Allen, he was evasive when questioned about it. His version of
his conversation with Clay is no more credible than his other testimony, and
I do not credit it.
12 Seay and Clay were the only witnesses other than Deckard to testify to
his telephone conversations. Several employees testified that Deckard did not
call or talk to them over that weekend.
', Deckard had left the picket line on Friday after telling Smith that he
had seen a doctor and was not well. She had heard in the interim that
Deckard had voiced dissatisfaction with the Union's handling of the strike.
'' Tom Bearman did not testify.
1365
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
question of union representation was resolved. Bearman
said that he assured and promised the employees that just
as he had kept his word in the past he would immediately
address himself to their problems when the question of
union representation was legally resolved. Bearman then
told the employees that he had been asked how they could
get their union authorization cards back and said that they
had the right to do so by writing letters to the Union. Bear-
man told them that it was their option and that they were
free to do it or not to do it as they saw fit, adding that he
could not do the employees any good until they got their
cards back."
A short time after the meeting, Deckard came to Bear-
man's office and said that employees were asking him for
some paper, pencils, and envelopes. Bearman gave them to
him. Deckard's son, Tom, also took some into the plant."
Deckard brought the paper into the plant and left it near
employees' work areas. During the course of the morning a
number of the employees wrote letters asking for the return
of their authorization cards which they placed in envelopes
and handed to Deckard or left at his work station. After
Deckard collected the letters, he brought them to Bearman
and asked Bearman to mail them by registered mail.'7 Bear-
man took them personally to the post office where he had
them registered with return receipts to be sent to the em-
ployees' return addresses which appeared on the envelopes.
Bearman paid the costs of the mailing for which Respon-
dent reimbursed him, and he retained all the registry re-
ceipts. Bearman mailed about 15 or 16 letters that day. The
next few days he mailed 10 to 15 additional letters by certi-
fied mail.
7. The termination of the strike
On Tuesday evening, April 18, Smith met with about six
of the striking employees and told them that the Union had
sent the following message to Respondent:
This is to advise you that as of the close of business
today, the St. Louis Joint Board, International Ladies
1' With one exception, Bearman so testified when called initially by the
General Counsel as an adverse witness. Although he testified that one of the
group asked him on Monday morning about getting the cards back, from his
description of the question asked at that time it appears that it was asked
only after Bearman raised the subject of withdrawing cards. Esther Brown,
who asked that question, testified that she did so after Bearman asked for
their cards back and said that "He couldn't do us any good until he got our
cards back." When Bearman was recalled as a witness by Respondent he
testified first that he broached the subject as he originally testified, and then
that someone in the group raised the question. Of the other witnesses, only
Deckard testified that the subject was introduced by a question from the
group. I find Bearman's initial version more credible than his later version
and that of Deckard, and specifically credit Brown that Bearman linked his
opening remark to withdrawal of the cards.
6 Although Bearman testified initially that he believed the purpose of
Deckard's request was to enable employees to write letters to the Union
requesting the return of their authorization cards, he later testified that he
supplied the materials without knowing the purpose for which they were
wanted. I find the latter version patently incredible in the light of the meet-
ing which preceded Deckard's request and doubt that either Deckard or
Bearman was completely candid in describing how the materials came to be
supplied.
'? Although Bearman and Deckard testified that Deckard asked that the
letters be sent by registered mail, Bearman also testified that his lawyer told
him that they should be sent by registered mail, indicating that Bearman was
not merely responding to Deckard's insistence when he registered the letters.
Garment Workers Union, AFL-CIO, is terminating
strike activity directed against you. On behalf of all
those workers who supported the Union during the
course of the strike, the Union makes request on their
behalf to return to employment with you under the
same wages, hours and working conditions as applies
to all employees presently working. The Union hereby
offers to assist you to return those workers still out to
full employment. Would you please advise us when the
remaining workers may be able to return to work.
The termination of the strike does not suspend or in
any way alter or revoke the Union's prior demand to
recognition as the collective-bargaining representative
designated by a majority of the employees.
Smith advised the employees to wait for notification from
Respondent as to when they would return to work. The
next night Gwendolyn Clay and Allen were called by Re-
spondent and arranged to return to work.
Allen returned to work on Thursday, April 20. That
morning Bearman went to Allen's work station and called
her and two or three others together. He told them that they
had the right to request the return of their union authoriza-
tion cards if they wanted to but that it was up to them.
Allen said that she wanted to withdraw her card. Bearman
supplied them with paper and envelopes, and while Bear-
man waited she and the others wrote letters which they
gave him to mail."
After Bearman left Allen and the others, he went to
Gwendolyn Clay's work station and asked her if she would
write a letter to the Union to get her card back. Bearman
told Clay that as soon as the employees got their cards back
he could go ahead and do what he wanted to do for the
employees. Bearman gave her paper, an envelope, a pen,
and a copy of the letter given him by another employee.
Clay wrote the letter and gave it to Bearman.'9
8. The announcement of the 4th of July holiday
On Friday, April 21, Bearman held a meeting with the
employees in the shop. At that time he announced that the
annual vacation shutdown would be the first 2 weeks in
July and told the employees that the Fourth of July would
be a paid holiday. In previous years the employees had not
received extra pay for the Fourth of July when it fell during
the vacation shutdown. Bearman told the employees that
the decision had been made in January to grant the addi-
tional holiday and that they were therefore entitled to it. He
also told them that it had been discussed as much as a year
ago and that he knew that it was a problem for the employ-
ees.20
' Allen's and Bearman's versions of what he said were essentially the
same. Bearman testified that before he talked to Allen someone told him that
Allen wanted to write a letter, but that person was not indentified, and there
is no evidence otherwise that Allen raised the matter before Bearman ap-
proached her.
1 Clay so testified. Bearman was not questioned specifically about what he
told Clay but testified that he told all employees essentially the same thing.
Because I have found elsewhere that Bearman was less reticent in his re-
marks than he testified and because of the testimony of Esther Brown that
Bearman made a remark similar in effect at the meeting on April 17, 1 have
credited Clay.
20 Bearman's testimony as to what he told the employees was not contra-
dicted.
1366
I.OCKWOVEN
According to Bearman, the subject of pay for the Fourth
of July had been brought up by employees from time to
time, most recently after the previous Fourth. He testified
that in January he, Tom Bearman, and Al Schuchman had
decided to make the Fourth of July an additional paid holi-
day, whether or not it came during the vacation shutdown,
but did not then announce the decision. Bearman did not
explain why the additional paid holiday was not announced
at that time but testified that they also discussed whether to
close down the first or last 2 weeks in July at the same time
and did not tell employees they were considering these al-
ternatives because it was the company's custom not to an-
nounce the vacation period until about 2 months to a
month and a half before the vacation period.
At the April 21 meeting one of the employees, Charles
Johnson, asked if everyone would get a raise, and Bearman
told him that he could not discuss it then. Bearman also
said that in February they had started working on raises.
which some employees had received, but when the matter
of union representation came up they had to stop until after
it was settled to get around to the others."
9. The termination of Rosie Lee Kimble
Rosie Lee Kimble worked for the Respondent briefly in
1975 and quit. About 3 to 4 weeks before the strike began,
Kimble was again hired by Respondent as a sewing-ma-
chine operator, and she worked until the strike started.
Kimble received Respondent's April 12 letter inviting her to
return to work on Monday, April 17, but did not return to
work that day.
On April 19, the day after the strike ended, Kimble re-
ported to the plant in the morning. Supervisor Schuchman
told her not to start work but to see Bearman. Kimble
called Bearman on the next day and asked about her pay-
check but did not discuss returning to work with him at that
time. On the next day, April 21, she spoke with Tom Bear-
man and asked him if she was fired. Tom Bearman replied,
"No, not at the present, just replaced."
In June, several weeks before the hearing in this case,
Tom Bearman called Kimble and told her that he was offer-
ing her job back if she was not working. He said nothing
about the work she would be doing, her pay, or whether the
offer was meant to be in full satisfaction of her claim to
reinstatement rights. Kimble told him that she was working
and gave no further explanation. She did return to work."
21 There is confusion in the testimony as to whether this exchange oc-
curred on April 17 or April 21. In his affidavit Bearman confused the two
meetings, and Gwendolyn Clay, who did not return to work until after April
17, testified that she was present when Johnson asked about raises. I find that
it occurred at the April 21 meeting. Both Loretta Mathis and Marjorie Ward
testified that Bearman referred to the February increases. Although Bear-
man denied that he indicated that further increases would be discussed after
the union problem was resolved, Mathis testified otherwise. Gwendolyn Clay
teatified simply that Bearman answered affirmatively when Johnson asked
about raises. While I have found Clay otherwise a credible witness, I do not
credit Clay's uncorroborated testimony, that Bearman answered with a sim-
ple affirmative, and find that her version reflects a compressed recollection
and interpretation of Bearman's statements described by Mathis. I have
credited Mathis, who was employed by Respondent at the time of the hear-
ing and clearly not hostile to it.
Tom Bearman was not called to testify as a witness, and all of Kimble's
testimony as to her conversations with Schuchman, Tom Bearman, and Ber-
nard Bearman after the strike is uncontradicted and credited.
1367
On June 15 Respondent sent the following letter to
Kimble:
On Tuesday, April 11, 1978, you began your partici-
pation in a work stoppage against Lockwoven, Inc. On
Friday, April 14th, 1978, Lockwoven advised that eco-
nomic strikers would be replaced. On Monday. April
17th. 1978, the majority of economic strikers returned
to Respondent and no replacements were required.
You did not so return on Monday, April 17th, 1978,
and did not present yourself until on or about Wednes-
day, April 19th, 1978.
As of that presentation you were advised that be-
cause of your substandard productivity as a Sewer
your job was no longer available to you.
In a determination that we regard as both improper
and unfounded upon both facts and the law, the Na-
tional Labor Relations Board, Region 14, issued a
Complaint on Monday, June 12th, 1978 in the Lock-
woven, Inc., proceedings. Without any admission as to
any legal requirement, Lockwoven, by this letter, un-
conditionally offers you the opportunity to resume
your assignments as a Sewer. Your position as Sewer
will be held available to you from Friday morning,
June 16th, 1978 at 7:00 a.m. until Monday afternoon,
June 19th, 1978 at 3:30 p.m. Your failure to accept
such work assignment will be treated as a rejection or
abandonment of that work opportunity on your part.
This return to work will have no effect or bearing on
service crediting for vacation or any other service re-
lated benefit.
We have advised you that your Sewer output was
substandard. We will be looking for improvement in
your sewing output consistent with that output ob-
tained by all other operators."
On June 16 the Union wrote Respondent: 24
St. Louis Joint Board, International Ladies Garment
Workers Union, AFL-CIO, which the General Coun-
sel for NLRB has determined to be the collective-bar-
gaining agent and spokesman for all production and
maintenance employees, has been advised that you
have made inadequate and improper offers of re-em-
ployment to the discriminatees set out in paragraph 6
of the General Counsel's complaint. And the fact that
you went directly to those employees to make the offer
instead of proceeding through their spokesman, the
collective-bargaining representative, further adds to
the impropriety of such offer.
It is not a sufficient offer of reinstatement to suggest
to Florine Seay that she could return, but only to a
different job where she could not earn incentives, and
to maintain in her old position a replacement worker.
Similarly, an offer of reinstatement is incomplete
and improper where you condition the offer to Rosie
Kimble on the condition that she was not working else-
21 Kimble testified that she did not receive this letter and did not recall
receiving any letter like it. There is no evidence that the letter was in fact
received.
4 It appears both from its content and timing that the union letter was
prompted by Tom Bearman's oral offer to Kimble and an oral offer to Seay
described below and not by Respondent's June 15 letter to Kimble or a
similar letter to Seay set forth below.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where. Your failure to inquire further or without con-
ditions offer her her prior job, makes the reinstatement
offer inadequate, and the Union's position will be that
backpay shall continue.
Please convey all future offers of reinstatement to
the collective bargaining representative.
Respondent did not reply to the Union's letter or make
further contact with Kimble about her intentions, her new
employment, or its offer.
Kimble was not replaced by any other employee as of the
time of the hearing and her job remained vacant.
10. The replacement of Florine Seay
Florine Seay worked for Respondent for 25 years before
the strike began. Seay worked principally as a presser of
women's clothing for which she was paid at piece rates or at
a straight hourly rate, depending on the nature of the work
being performed. Her hourly rate was $2.65 an hour. Dur-
ing her employment Seay also worked at other jobs and had
worked at most of the jobs in the plant as a fill-in. In 1978,
before the strike, Seay's gross weekly earnings fluctuated
between $135 and $158.
On April 19, the day after the strike ended, Seay called
Bernard Bearman in the afternoon and told him she was
ready to return to work. Bearman told her only one thing
that stood in the way of her return, which was that he had
hired someone else and had replaced her. Bearman told her
that if he ever got an opening he would call her and let her
know. She thanked him, and Bearman said, "I'm sorry Flo-
rine, I just didn't know."25 Seay's replacement was Betty
Vaughan, who was still working for Respondent at the time
of the hearing. Vaughan was hired to press at the starting
rate of $2.75 an hour and started work on the morning of
April 1926
On June 15 Tom Bearman called Seay and offered her a
job to come back to do draping and run the pinking ma-
chine, which she had previously operated. He told her that
it would pay $3 an hour and that she had until the follow-
ing Monday to return. Seay asked if she would get her va-
cation pay if she came back, and he said that she would.
She asked what would happen if she did not return to work,
and he said that he did not know. Tom Bearman asked her
if she was going to come back, and she asked him if she had
to give her answer at that time. He told her that she did not,
but that if she reported on Monday, Respondent would
" Seay so testified. Bearman initially testified that Seay called on April 25
or 26 and that he did not recall whether he or his son spoke to her. Later he
testified that the first inquiry about her job from Seay was about April 26
and that he spoke to her at that time. In the light of Bearman's initial
uncertainty as to whether he ever spoke with Seay and the absence of any
indication as to what refreshed his recollection between his two appearances
as a witness, I have credited Seay and not Bearman.
6 Bearman testified that he believed Vaughan was hired on April 18. the
day after the employees started to return to work and before he received
notice later that day from the Union that the strike was terminated "because
she started that morning." Her timecard, however, shows that she started to
work the following morning, and there is no evidence to show that she was
hired before she reported for work. Moreover, in Respondent's June 15 letter
to Kimble, it asserted that as a majority of the strikers returned to work on
April 17, no replacements were required.
know that she had accepted the job and that if she did not
report they would know that she rejected it.
As indicated above i.t connection with Kimble's termina-
tion, on June 16 the Union sent Respondent a letter taking
issue with the adequacy of the offers of reinstatement to
both women. Thereafter, Seay received the following letter,
dated June 15. from Respondent:
On Tuesday, April I 1th, 1978, you began your par-
ticipation in a work stoppage against Lockwoven, Inc.
On Friday, April 14th, 1978, Lockwoven advised
that economic strikers would be replaced. On Monday,
April 17th, 1978, the majority of economic strikers re-
turned to their employment and for such employees no
replacements were required.
You did not so return to work on Monday, April
17th, 1978, and did not represent yourself until on or
about April 26th, 1978. And as of your April 26th,
1978, unconditional offer to return to work, a replace-
ment had been hired for your position.
On or about May 8th, 1978, Irma Shaw retired from
her position as a draper.
In a determination that we regarded as improper
and unfounded upon both facts and the law, Region 14
of the National Labor Relations Board, on Monday,
June 12th, 1978, issued a Complaint in the Lockwoven
matter.
Without any admission as to any legal obligation or
requirement, Lockwoven by this letter hereby uncondi-
tionally offers you the opportunity for a position as a
Draper at our Lockwoven facility on Walton Avenue,
in full satisfaction of the National Labor Relations
Board's requirement for reemployment as set out be-
tween Field Agent Donald E. Gardner and our attor-
ney in the week of Monday, June 12th, 1978.
Your position will be held available from Friday,
June 16th, 1978 at 7:00 A.M. until Monday afternoon,
June 19th, 1978, at 3:30 P.M. Failure on your part to
accept such work assignment during this period will be
regarded as a rejection and/or abandonment of such
work opportunity on your part and such rejection or
abandonment will be acknowledged to you and the
National Labor Relations Board. Your return will
have no effect or bearing on service crediting for vaca-
tion or any other service related benefit at Lockwoven.
According to Seay, she read the letter to state that she
would not receive vacation pay and other benefits from Re-
spondent but would start in as a new employee which she
did not want to do after 25 years' service. Seay discussed
the letter with union representative Smith, and they decided
that Smith would write the following reply, dated June 19,
to Respondent:
St. Louis Joint Board, International Ladies' Gar-
ment Workers, AFL-CIO, today received from Florine
Seay your letter of June 15, 1978, which attempts to
vary and change the terms of your son's earlier tele-
phone offer made directly to Ms. Seay that same date.
In Tom Bearman's offer there was no requirement that
Ms. Seay return 'in full satisfaction of the NLRB re-
quirement for reemployment,' and Tom Bearman fur-
ther went on to promise Ms. Seay that if she would
1368
LOCKWOVEN COMPANY
announce her intention of returning, she would he en-
titled to full vacation credit and pay.
It now appears that the offer of re-employment, oth-
erwise unsatisfactory for its failure to return the dis-
criminatee to her prior job, now becomes additionally
improper by your requirement that Ms. Seay acknowl-
edge that it constitutes a full release from liability. You
wholly misunderstand the General Counsel's com-
plaint and demand for re-instatement if you truly be-
lieve that you can provide Ms. Seay with a lesser job
and thereby avoid further liability.
Although Ms. Seay had originally intended to return
to work in response to Tom Bearman's call, now that
you have added these wholly unacceptable conditions
and changed the terms of the offer, Ms. Seay will rely
upon the compulsions of the law to obtain what she is
fully and duly entitled to.
The balance of your self-serving letter of June 15.
1978 is rejected out of hand. Without limiting this
statement, you should know that the General Counsel
of the National Labor Relations Board does not idly
issue complaints. Complaints are issued only after
thorough investigation and the General Counsel would
not have found that Lockwoven acted improperly
without having substantial evidence that was adduced
as a result of full investigation. We demand that you
change your ways and avoid bearing the shrouds of
violative conduct charged by the General Counsel.
Respondent did not reply to either letter sent it by the
Union, but on June 19, the same day the Union's second
letter was sent, Seay called Tom Bearman to talk to him
about the letter she had received. She told him that he had
told her she was going to get her vacation pay and that the
letter said something different. She asked him if she would
get her pay or not. Bearman asked, "Florine, do you want
to work or not?" She asked if she could talk with him for a
minute and he asked her to hold for a minute. She asked if
he was busy, and he said that he was. She then said that she
would call him back, but did not do so.27
B. Concluding Findings
I. The alleged 8(a)( ) violations
a. The April 12 letter to the employvees
The General Counsel contends that Respondent's April
12 letter to employees illegally threatened employees with
loss of accrued seniority if they did not return to work by
April 17.25 Respondent contends that its letter only advised
the employees of its intentions to replace economic strikers
as permitted by law.
" Seay's testimony as to her conversations with Tom Bearman was uncon-
tradicted.
2 The complaint does not allege that Respondent engaged in any violation
of the Act before April 12. The Charging Party, but not the General Coun-
sel, contends that Respondent also violated Section 8(a)(l) by Bearman's
refusal to hand out paychecks to employees on April 12 unless they entered
the plant without Ruth Smith so that Bearman could talk to them. Inasmuch
as Respondent promptly mailed the paychecks due the employees, I reject
Respondent's contention.
The critical language in the letter is the following:
When such a replacement is hired. you will not be
fired or terminated; rather you will take a seniority
position behind the replacement. and you will not be
able to return to your job until either the job position is
vacated by the replacement or the work force is ex-
panded.
The question to be decided is what is meant by "rather
you will take a seniority position behind the replacement."
If that clause had been omitted the remainder of the state-
ment would have been lawful. However, the addition of
that clause conveys an additional and unlawful message.
Whatever Respondent's intent, seniority had meaning to
employees apart from the right to reinstatement and at the
very least affected employees' eligibility to receive service
connected benefits. Taking a seniority position behind re-
placements, who were to be hired starting April 17, would
mean that those employees who were replaced would have
less seniority than their replacements upon reinstatement
and thus would lose credit for past service. Whether or not
Respondent intended to threaten loss of seniority, that is
what it communicated. Furthermore, the inclusion of differ-
ent language to the same literal effect, discussed below, in
Respondent's June 15 letters to Kimble and Seay substan-
tially undermines any contention that Respondent did not
intend to make such a threat.
I find that the quoted statement in the April 12 letter to
all employees threatened them with loss of seniority rights if
they did not return to work on April 17 and violated Sec-
tion 8(a)(1) of the Act. 9
b. Bearman's statements to Cremezella Allen and Genetva
A dams
The General Counsel contends that Bearman's state-
ments to Allen and Adams, when they went to the plant to
speak to him a day or two after the strike started, also
violated Section 8(a)(1). At that time, when Allen asked
him what he could offer them, Bearman told them he could
offer them nothing until the picket line was down and that
after it was down he would talk to them and do what he
thought he could for them. Bearman urged them to return
to work. Despite Bearman's denial that he could offer any-
thing. he indeed offered to talk to them and do something if
they' stopped picketing and returned to work. Neither Bear-
man's disclaimer that he could make no offer nor the fact
that this offer was nonspecific removes its coercive impact.0
I find that Bearman's statements to Allen and Adams were
promises of unspecified future benefits which violated Sec-
tion 8(a)(1) of the Act.
c. The promises made by Deckard
The General Counsel contends that Respondent is re-
sponsible for the conduct of Alvin Deckard on April 15 in
attempting to induce employees to abandon the strike and
promising them improved benefits. Respondent contends
'2 Laher Spring and Electric Car Corp. 192 NLRB 464 (1971)
0
Rale'y's Inc., 236 NLRB 971 1978)
1369
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that there is no evidence to support the conclusion that
Deckard was at any time Respondent's agent.
The evidence shows that Bearman and Deckard met
twice on April 14 and 15 before Deckard's visit to Allen
and his telephone calls to Seay and Clay and that they met
again the next morning. The evidence also shows that at the
last of those meetings Deckard gave Bearman a copy of the
list of items he had left with Allen the previous day. Yet
both testified that Deckard and Bearman met all three
times simply so that Deckard could assure himself that he
could return to work without retaliation.
I agree with the contentions of the General Counsel and
the Charging Party that the testimony of Bearman and the
Deckards as to the three meetings is patently lacking in
candor. The claim that three meetings were held for the
identical purpose after Respondent sent its April 12 letter
strains credulity beyond its breaking point. Beyond that,
the testimony of both Bearman and the Deckards is not
believable in other respects. Deckard in particular was in-
consistent and evasive and claimed lack of memory at criti-
cal moments. Bearman's testimony varied between his first
and second appearances on the witness stand, and the three
witnesses were not consistent with one another in a number
of respects. Mrs. Deckard's testimony was at times inconsis-
tent with her husband's, and she also claimed lack of atten-
tion or memory at critical points which greatly diminished
her reliability as a witness to the conversations between her
husband and Bearman and between her husband and Al-
len. Accordingly, I do not credit the versions of Bearman
and the Deckards as complete or accurate descriptions of
what happened at the meetings between Bearman and
Deckard or as establishing the truth of their testimony as to
the limited discussion of benefits at those meetings. More-
over, although Deckard denied that he was seeking to in-
duce other employees to return to work and Bearman de-
nied that he knew Deckard was leading a back to work
movement, they conceded that they talked about their con-
cern over whether there would be other employees in the
plant to work with the materials Deckard would cut if he
returned to work and that Deckard told Bearman his inten-
tion to visit Allen. Their denials in this respect are patently
false. The acknowledgement of concern over whether others
would work coupled with Deckard's activities in contacting
other employees and the fact that he told Bearman of his
contacts warrants the inference that Deckard not only
sought to induce other employees to return to work but that
he and Bearman discussed his efforts and that Bearman
knew what Deckard was doing.
The General Counsel contends that discrediting the testi-
mony of Bearman and the Deckards that Bearman made
no promises to Deckard warrants the inference that the op-
posite was true, i.e., that such promises were made, and that
when Deckard made the contact with Allen and other em-
ployees on April 15, about which Deckard informed Bear-
man on April 15 and reported back on April 16, Bearman
made him his agent for that purpose and in effect ratified
his actions.
In Associated Musicians of Greater New York, Local 802,
American Federation of Musicians, AFL-CIO (Dante Cater-
ers, Inc.), 212 NLRB 645, 646 (1974), the Board affirmed a
holding that uncontradicted testimony does not have to be
credited, but found that discrediting a denial does not con-
vert it into affirmative evidence that the denied conduct
occurred." Rather, the Board concluded, any inference that
the opposite occurred must be drawn from all the surround-
ing circumstances.
Here, the surrounding circumstances are compelling.
Deckard visited Bearman on Friday and Saturday. On Sat-
urday he told Bearman he was going to visit Allen and went
almost immediately to her house. At her house he left her a
list of items which he told her had been promised by Bear-
man, got telephone numbers of other employees, and asked
her to make some calls. Later that afternoon he called Seay
and Clay. While he did not refer to the list as such in talk-
ing to them, he told them that Respondent would do at
least some of the things on the list. The following morning
he again visited Bearman and gave him a copy of the list,
clearly telling Bearman something about it. Although he
testified that he told Bearman that the list contained items
the employees wanted, consistent with his testimony as to
what happened at Allen's house, the latter testimony was
not only discredited but it is contradicted by Allen's testi-
mony that Deckard represented the items on the list as
things which Bearman would do for the employees. Having
discredited Deckard's testimony that he told Bearman that
the list represented what the employees wanted, the sur-
rounding evidence warrants the inference that Deckard told
Bearman what had happened at Allen's house and that the
list represented what he had told Allen that Bearman prom-
ised he would do for the employees. The inference is further
warranted that in Deckard's earlier conversations with
Bearman they discussed not only the fact that Deckard
would make calls and visit Allen but also what Deckard
would say to the others when he did so. 2
In conclude, therefore, that Bearman knew both what
Deckard intended to do and what he had done in contact-
ing Allen and other employees and at the very least con-
doned Deckard's conduct if indeed he did not actively en-
courage it. I find therefore that Respondent is responsible
for the statements made by Deckard to Allen, Seay, and
Clay. I find further that in each case Deckard made prom-
ises to them of improved benefits for the purpose of induc-
ing them to abandon the strike and return to work and
thereby violated Section 8(a)( ) of the act.
d. The April 17 meeting with employees and the solicitation
of employees to withdraw their authorization cards
The General Counsel contends that in Bearman's re-
marks to employees on their return to work on April 17 and
his subsequent conduct, Bearman made unlawful promises
" Cf. N.L.R.B. v. Walton Manufacturing Company & Loganville Pants Co.,
369 U.S. 404, 408 (1962); Dyer v. MacDougall, 201 F.2d 265, 269 (2d Cir.
1952).
n' I note in this regard that Bearman in an affidavit and Mrs. Deckard in
her testimony conceded that Bearman told Deckard the employees would
have to trust him, that Respondent had been responsive to their problems in
the past, and that once the Union's claim had been resolved Respondent
would be happy to address itself to employees' problems individually or in a
group. While I am persuaded that the conversations between Bearman and
Deckard were not limited to this vague promise of future action, there is
merit to the General Counsel's contention that Bearman's affidavit admits a
promise of future benefits.
1370
LOCKWOVEN COMPANY
of benefits to employees and undermined employee support
for the Union by inducing employees to withdraw their au-
thorizations for the Union to represent them. Respondent
contends that Bearman made no promises and that such
assistance as he gave employees in withdrawing their autho-
rization cards was a permissible response to employee re-
quests for assistance.
I have found above that when Bearman addressed the
employees that morning he told them among other things
that just as he had kept his word in the past he would
immediately address himself to employees' problems when
the question of union representation was legally resolved.
Although Bearman testified equivocally that employees
then asked about getting their authorization cards back, I
have found that it was at this point that Bearman intro-
duced the subject and told the employees what to do. Al-
though Bearman described his approach as completely
evenhanded, the testimony of Ester Brown establishes that
there was a connection made between Bearman's initial
statement and his remarks about withdrawal, with Bear-
man telling employees that he could not do them any good
until they got their cards back. Thus, Bearman by his initial
remarks held out the promise of improvements when the
union matter was resolved and then equated resolution of
the matter with withdrawal of their authorization cards.
Bearman's participation thereafter was also hardly passive.
He provided the paper, envelopes, pens, pencils, and the
postage, and even personally took the time to register the
first batch of letters at the post office. He kept the registry
receipts which left him both with proof the letters were
mailed and proof of the identity of those who wrote the
letters. Two days later, after Allen and Clay returned to
work, without any direct request from them, Bearman went
to them and solicited them to withdraw their authoriza-
tions, making a remark to Clay similar in effect to his April
17 remark that he could do the employees no good until he
got the cards back.
I find that Bearman's remarks to the assembled employ-
ees on April 17 contained an unlawful promise to satisfy
their complaints and dissatisfactions as soon as the employ-
ees freed Respondent to act by removing the basis for the
Union's claim to represent them.
I further find that Respondent unlawfully induced em-
ployees to withdraw their authorization cards by raising the
matter with them, coupling it with the promise to take ac-
tion after the union matter was resolved, actively assisting
them in every phase of writing and mailing the letters, and
soliciting employees directly to write withdrawal letters. 3
The evidence does not support Respondent's contention
that it merely responded to employee requests for assist-
ance, and on the record before me it is immaterial whether
the employees be deemed to have written their letters on
company time or on their own time, as Respondent con-
tends, because those who testified were paid on an incentive
basis.
] Hilton International Co., d/b/a San Jeronimo Hilton Hotel, 187 NLRB
947 (1971); cf. Gilbert International, Inc., 213 NLRB 538 (1974.
e. The announcement of the additional paid holiday
There is no dispute that on July 21 Bearman announced
to the employees that theN would receive holiday pay for
the July 4th holiday, even though it came within Respon-
dent's vacation shutdown period. It is also uncontradicted
that at the time Bearman announced the holiday he told
them that the decision to give them this benefit had been
made the previous January. Respondent contends that this
was the fact and that it was therefore not unlawful to an-
nounce a benefit which Respondent decided to grant before
the Union arrived on the scene, and indeed that it would
have been unlawful to withhold such a benefit.
Whether or not Respondent's action was lawful depends
on whether Bearman is to be believed as to when the deci-
sion was made. I conclude that he is not. Although this was
allegedly a joint decision made with the participation of
Tom Bearman and Schuchman, neither of them, both man-
agement officials and both witnesses to this and other
events material to this proceeding, was called as a witness.
The inference is drawn that if called their testimony would
not have been favorable to Respondent. Moreover, Respon-
dent's explanation for delaying the announcement until the
vacation period was announced is not persuasive. Bearman
concededly knew more than a year before that Respon-
dent's failure to pay employees for the Fourth of July was
of concern to them. Indecision as to when the shutdown
would occur was hardly a reason to defer announcing a
benefit employees would receive whenever it occurred. In
the absence of any corroboration of the testimony of Bear-
man, whom I have discredited elsewhere as to when the
decision was made, and bearing in mind that additional
holidays were included among the benefits which Deckard
told Allen and Seay that Respondent would grant, I find
that the grant of the paid holiday on the Fourth of July),
violated Section 8(a)(1) of the Act and was made shortly
after the employees returned to work as a sign of Bearman's
good faith in telling them that Respondent would be re-
sponsive to their needs once the union matter was resolved.
I find further that Bearman's response to Johnson at the
July 21 meeting, like his earlier remarks on July 17, prom-
ised additional benefits after the matter of union represen-
tation was settled.
2. The alleged 8(a)(3) violations
a. The termination of Rosie Lee Kimble
The General Counsel contends that Kimble was termi-
nated because of her union activities. Respondent contends
that Kimble was terminated because her production was
poor. Respondent also contends that there is no evidence
that Respondent had knowledge that Kimble played any
role in the organizing campaign other than that of an ordi-
nary member of the group.
There is evidence that in the 4 weeks Kimble worked
before the strike her piecework earnings were $68.37.
$72.61, $94.30, and $80.13, respectively, in contrast to her
weekly minimum pay of $106. There is also evidence that
other employees were terminated in 1978 for substandard
earnings, although in each of the examples given the piece-
work earnings of the terminated employees were less than
1371
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kimble's and none of the terminated employees worked
more than 2 weeks before being discharged. There is no
evidence to show how Kimble's earnings during her initial 4
weeks compared to those of other new sewers who were not
discharged.
The facts that Kimble was retained for 4 weeks before
the strike and was never warned that her production was
insufficient alone indicate that Kimble's job was not in
jeopardy when the strike began, and indeed there is no
claim that any decision to discharge Kimble was made be-
fore April 17. To the contrary, when Kimble asked Tom
Bearman on April 21 if she had been fired, he said that she
had not been, and Kimble was sent the same form letter
urging her to return to work on April 17 that was sent to all
employees, including the statement "you have performed
well for the Company in the past." Surely such a letter
would not have been sent to an employee whose termina-
tion had already been decided. The conclusion is inescap-
able that if Kimble had entered the plant on April 17 with
the others who returned to work that day, she would have
been promptly put to work, and the inference is strong that
it was Kimble's failure to report for work on April 17 rather
than the previously ignored low production which caused
Respondent to belatedly discharge her. That inference is
supported by Respondent's June 15 letter to Kimble offer-
ing her reemployment after issuance of the complaint in
this case. That letter reviews her participation in the strike,
Respondent's warning that strikers would be replaced after
April 17, and her failure to return to work on April 17, all
irrelevant if Kimble were discharged for cause without re-
gard to her participation in the strike and her failure to
return to work. While Kimble may not have been known to
Respondent as a union activist before the strike, her contin-
ued adherence to the strike after, as Respondent put it in
the June 15 letter, a majority of the strikers had returned,
clearly established the strength of her commitment and fur-
nished the motivation for her termination. I find that
Kimble's discharge violated Section 8(a)(3) and (1) of the
Act.
The question remains as to the effect if any to be given
Tom Bearman's telephone call to Kimble on June 15 and
Respondent's letter of the same day. I find that neither con-
stituted a valid offer of reinstatement. Bearman's offer was
conditioned on her not having other employment and thus
was inadequate to terminate Respondent's obligation to re-
instate her. Although the Union in its June 16 letter ob-
jected to Tom Bearman's offer on that ground, Respondent
chose to ignore the letter.
Apart from the fact that the record does not establish
that Kimble received Respondent's June 15 letter, that let-
ter also failed to constitute a valid offer of reinstatement. It
purportedly unconditionally offered Kimble "the opportu-
nity to resume her assignments as a Sewer" and then inscru-
tably informed her "This return to work will have no effect
or bearing on service crediting for vacation or any other
service related benefit." If this was meant to convey that
Kimble was being offered reinstatement to her former job
without loss of seniority or other privileges, there was cer-
tainly a more direct and clearer way to say it. Indeed, if
Kimble's return to work would have no effect or bearing on
service crediting for vacation or other benefits, then it
would follow that her prior service credits would not be
restored since they were canceled by her discharge. Only if
her reinstatement affected or had bearing on her service
crediting would her prior seniority and benefits be restored.
Again, when Seay by telephone and the Union by its June
19 letter protested the similar conditions attached to Seay's
reinstatement. Respondent chose to ignore them and did
not clarify its intent. Neither Respondent's June 15 letter
nor Tom Bearman's earlier telephone call to Kimble termi-
nated Respondent's continuing obligation to reinstate
Kimble and make her whole for the discrimination against
her.
b. The fiilure to reinstate Florine Seay
The General Counsel contends that Respondent's failure
to reinstate Seay at the end of the strike violated Section
8(a)(3) of the Act. Respondent contends that she was re-
placed before she requested reinstatement and therefore
had no right to reinstatement until her job again became
available. Although the evidence was disputed as to when
Seay first called Respondent to seek reinstatement, resolu-
tion of that issue is not critical, for on April 18 Respondent
received the Union's telegram notifying Respondent that
the strike was terminated and requesting reinstatement on
behalf of all strikers. Whether or not Respondent had any
obligation to recognize or bargain with the Union at that
time, the request by the Union, which had called the strike,
was a valid request for reinstatement on behalf of the strik-
ing employees, and after receiving the Union's telegram on
April 18, Respondent was no longer free to replace the em-
ployees who had remained on strike that morning. 4
The evidence as to Vaughan, the alleged replacement for
Seay, shows that she started work on the morning of April
19. There is no evidence to show that any commitment to
employ her was made before that morning. Thus, even
though Vaughan started work before Seay called Bearman
on April 19, Vaughan had not replaced Seay before the
Union's request for reinstatement on Seay's behalf, and Re-
spondent was obligated to recall Seay to her former posi-
tion on April 19 rather than to hire someone else to fill it
that morning."
The question remains whether Respondent fulfilled its
obligation to Seay by Tom Bearman's offer to her on June
15 and its June 15 letter to her. I find that it did not. Since
Seay was not replaced, she was entitled to reinstatement to
her former job. That job was never offered to her. More-
over, even if Bearman's telephonic offer had been adequate,
Respondent's letter changed the terms of the offer, contain-
ing the same inscrutable sentence as the letter to Kimble.
3 W C. McQuaide, Inc., 220 NLRB 593, 609, fn. 23 (1975). enfd. as modi-
fied 552 F.2d 519 (3d Cir.); American United Inns, Inc. d/bla Ramada Inn,
201 NLRB 431, 435 437 (1973).
35 Apart from the fact that Seay was not properly replaced, despite Bear-
man's indication of regret to Seay when she called on Apnl 19, Respondent's
failure to offer her any employment until June 15 would itself appear to have
been discriminatory. Seay was an experienced employees who had worked at
many jobs in the plant over a period of years. Despite Respondent's need for
additional help after the strike, which Bearman conceded, and despite his
April 6 statement to employees that he could usually find jobs for employees
who left Respondent and wanted to return, Seay was offered nothing until
the complaint in this case issued.
1372
I.OCKWOVEN COMPANY
Although Seay's circumstances were different that Kimble's
in that she had been replaced rather than discharged, I find
that the message conveyed to Seay was the same. The April
12 letter conveyed that those who were replaced would
stand behind their replacements in seniority, and the June
15 letter conveyed that reinstatement would not affect
Seay's service credits, thus leaving her behind her replace-
ment or a new employee. Although Seay failed to call Tom
Bearman back after he told her he was too busy to talk
when she tried to speak to him about it, the Union con-
veyed in its two letters the substance of Seay's and the
Union's concern over the adequacy of the offers of rein-
statement. The second of those letters was sent on the same
day that Seay spoke to Tom Bearman. Respondent did not
reply either to the Union or directly to Seay, thus allowing
the Union's construction of Respondent's offers to stand
unchallenged. Even if Respondent did not wish to commu-
nicate with the Union, if Respondent's offer had been oth-
erwise intended, it would have been simple enough for Re-
spondent to communicate directly with Seay to tell her that
its offers had been misconstrued and to convey in clear
language what it intended.
I find that the June offers to Seay were inadequate be-
cause neither offered her reinstatement to her former job
and earning potential and because the June 15 letter contra-
dicted Tom Bearman's oral assurance that her service cred-
its would be restored. Accordingly, I find that Respondent's
obligation to reinstate Seay was not ended by its June offers
to her.
I find that Respondent refused to reinstate Seay to her
former job following termination of the strike despite the
fact that she was not replaced before a valid request for her
reinstatement was made, thereby violating Section 8(a)(3)
and (1) of the Act.
3. The alleged refusal to bargain
The General Counsel contends that Respondent violated
Section 8(a)(5) of the Act because the circumstances in this
case make slight the possibility of erasing the effects of Re-
spondent's unfair labor practices and ensuring that a fair
election could be conducted among its employees. Without
conceding that it engaged in any violations, Respondent
contends that any unfair labor practices which can be
found in this case could have had little effect on the ability
of employees to vote freely and do not warrant entry of a
bargaining order).6
At the outset, there is no question that at the time the
strike started on April I , the Union represented a majority
of Respondent's employees in an appropriate unit. As I
have found, after the start of the strike Respondent engaged
in a series of unfair labor practices, and by the time the last
was committed the strike was over and most of the employ-
ees had written letters to the Union asking to withdraw
their authorizations.
X Respondent contended at the heanng that the subjective impressions of
employees as to their ability to vote freely in any future election should have
been explored and contends that employee turnover since the strike and the
hearing makes a bargaining order unnecessary. Neither of these factors is
relevant to determining whether a bargaining order should issue. Capitol
Foods, Inc., dbla Schulte's IGA Foodlner, 241 NLRB 855 (1979).
Respondent sought to show at the hearing that employ-
ees returned to work and withdrew their support for the
Union because of their dissatisfaction with the Union's
handling of the strike rather than because of Respondent's
unfair labor practices. There is some indication that a few
employees may have only weakly supported the Union and
returned to work even before April 17. But the return to
work by a number of employees, which signalled the failure
of the strike, came about on the day when Respondent's
April 12 letter told employees that it would be their last
opportunity to return to work before being replaced. The
inference is strong that the letter, which threatened loss of
seniority to replaced strikers, was a cause of the large-scale
return to work on that day.3"
In any event, the issue in this case is not why the employ-
ees returned to work but whether the effect of the unfair
labor practices had a tendency to undermine the Union's
strength and to impede any further election. It is not neces-
sary to find that it would be impossible to hold a fair elec-
tion through the use of traditional remedies but to find that
the possibility "though present, is slight." 8 Here, two em-
ployees were discriminated against following the strike.
Seay was denied reinstatement on the ground that she had
been replaced, although the offer to return to work made by
the Union on behalf of the remaining strikers had been
received when her replacement was hired, and she was not
offered any employment although Respondent needed help
and claimed a record of finding work for employees who
left and wanted to return. Kimble was discharged on a pre-
text after she too failed to return to work. The discrimina-
tion against Kimble and Seay contained an implied threat
to other employees against their job security and livelihood
in the event of future union activity on their part, and that
threat is one of the strongest deterrents to such activity.'9
Such discrimination following the inducement of Respon-
dent's employees to withdraw their union authorization
cards accompanied by the promise that Respondent would
be responsive to employee wishes as soon as the union mat-
ter was resolved made it clear that only one resolution of
the union matter could benefit employees, namely, discon-
tinuation of their efforts to organize.
As has been said elsewhere: 4°
The mischief in Respondent's conduct is more than
its tendency to have an immediate impact upon the
employees seeking representation; the harm lies in the
tendency of such conduct to imprint upon the fabric of
the employment relationship Respondent's determina-
tion-so strongly expressed-that the employees shall
not have an opportunity to freely choose whether to be
represented and its intention to punish employees if
the choice is not to Respondent's liking. Once the fab-
s? While there is reason to suspect that Deckard may have made promises
to employees other than Allen, Seay, and Clay, there is no evidence that
Deckard spoke in a similar vein to any employee who returned to work on
April 17.
a' N L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 614 (1969).
)3 As has been recognized for many years, discriminatory discharges go to
the heart of the Act and justify remedial orders broad in scope. N. LRB. v.
Entwistle Manufacturing Company, 120 F.2d 532 (4th Cir. (1941).
4o S & M Grocers, Inc., S. Cook Enterprises, Ltd., and Cook's Supermar-
kets, 236 NLRB 1594, 1609 (1978).
1373
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ric is contaminated, it does not so easily wash clean.
The employees do not forget their past experience.
New employees are reminded of what happened to
their predecessors. Respondent may not here contend
that having prevented a free election when one could
have been held, it is entitled to an election now, after it
has disorganized the electorate.
Here Respondent's determination not to have its employ-
ees represented was not expressed in words as strong as in
the cited case, but its actions conveyed the message clearly.
The grant of the Fourth of July holiday showed what would
be done for those who rejected a union and relied on Re-
spondent's promises. The discharge of Kimble and the re-
fusal to reinstate Seay showed what would happen to those
who did not. Those lessons were not likely to be quickly
forgotten. I find that Respondent's unfair labor practices
undermined the Union's majority, made the possibility of a
free and fair election slight, and warrant a finding that Re-
spondent violated Section 8(a)(5) of the Act by refusing to
bargain with the Union on and after April 12, 1978, the
date Respondent's unfair labor practices began.4 '
V. THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
As I have found that Respondent unlawfully discharged
Rosie Lee Kimble and refused to reinstate Florine Seay, I
shall recommend that Respondent be ordered to offer them
immediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent jobs,
without prejudice to their seniority or other rights and
privileges. I shall further recommend that Respondent be
ordered to make them whole for any loss of earnings they
may have suffered as a result of the discrimination against
them by payment to each of them of the amount they nor-
mally would have earned from April 19, 1978, the date on
which they should have been reinstated, until the date of
Respondent's offer of reinstatement, less net earnings to
which shall be added interest to be computed in the manner
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977).4 2
As I have also found that Respondent unlawfully refused
to bargain with the Union, I shall further recommend that
Respondent be ordered to bargain collectively with the
Union as representative of its production and maintenance
employees.
Upon the basis of the above findings of fact and the en-
tire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Lockwoven Company and ARK Garment Company
constitute an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
41 Trading Port, Inc., 219 NLRB 298 (1975).
u See generally, Isis Plumbing & Healing Co., 138 NLRB 716 (1962).
2. St. Louis Joint Board, International Ladies' Garment
Workers Union, AFL CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All production and maintenance employees employed
by Respondent at its facilities on Walton Road in Overland,
Missouri, excluding office clerical employees, professional
employees, guards and supervisors as defined in the Act,
homeworkers and all other employees, constitute a unit ap-
propriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. At all times since April 12, 1978, the Union has been
and now is the exclusive representative of the employees in
said unit for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
5. By threatening employees with loss of seniority if re-
placed while on strike, promising them improved benefits,
soliciting and assisting employees to revoke their union au-
thorization cards, and granting employees an additional
paid holiday, Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act.
6. By discharging Rosie Lee Kimble and refusing to rein-
state Florine Seay because of their union and concerted
activities, Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(3)
and (1) and Section 2(6) and (7) of the Act.
7. By refusing since on or about April 12, 1978, to recog-
nize and bargain collectively with the Union as the exclu-
sive representative of the employees in the unit described in
paragraph 3, above, while engaging in conduct which un-
dermined the Union and prevented a fair election, Respon-
dent has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER43
The Respondent, Lockwoven Company and ARK Gar-
ment Company, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Threatening employees with loss of seniority if re-
placed while on strike.
(b) Promising employees improved benefits and granting
additional paid holidays in order to discourage them from
engaging in union activities.
(c) Soliciting and assisting employees to revoke their
union authorization cards.
(d) Discharging, refusing to reinstate, or otherwise dis-
criminating against employees in regard to hire or tenure of
employment, or any term or condition of employment, be-
cause they become members of or engage in activities on
behalf of St. Louis Joint Board, International Ladies' Gar-
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
1374
LOCKWOVEN COMPANY
ment Workers Union, AFL CIO, or any other labor or-
ganization.
(e) Refusing to bargain concerning rates of pay, wages,
hours of employment, or other conditions of employment,
with St. Louis Joint Board, International Ladies' Garment
Workers Union, AFL CIO, as the exclusive representative
of all employees in the appropriate unit described in para-
graph 3 in the section of this Decision entitled "Conclusions
of Law."
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to engage
in or refrain from engaging in any or all of the activities
specified in Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively
with the above-named Union as the exclusive representa-
tive of the employees in the appropriate unit described in
paragraph 3 in the section of this Decision entitled "Con-
clusions of Law" and upon request embody in a signed
agreement any understanding reached. However, no provi-
sions of this Order shall in any way be construed as requir-
ing Respondent to revoke any increases in benefits hereto-
fore granted to employees in the unit aforesaid.
(b) Offer Rosie Lee Kimble and Florine Seay immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights or privileges,
and make them whole for any loss of earnings they may
have suffered as a result of discrimination against them in
the manner set forth in the section of the Decision entitled
"The Remedy."
(c) Preserve and upon request make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records rel-
evant and necessary to a determination of compliance with
paragraph (b) above.
(d) Post at its Overland, Missouri, place of business cop-
ies of the attached notice marked "Appendix." ' Copies of
said notice on forms provided by the Regional Director for
Region 14, after being duly signed by Respondent's repre-
sentative shall be posted by it immediately upon receipt
thereof and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other mate-
rial.
(e) Notify the Regional Director for Region 14, in writ-
"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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
ing, within 20 days from the receipt of this Decision what
steps have been taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF tll
NATIONA. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with loss of
seniority if they are replaced while on strike.
WE WILL NOT promise our employees improved
benefits or grant additional paid holidays in order to
discourage them from engaging in union activities.
WE WILL NOT solicit or assist our employees to re-
voke their union authorization cards.
WE WILL NOT discharge, refuse to reinstate, or other-
wise discriminate against our employees in regard to
their hire or tenure, or any term or condition of em-
ployment, because they become members of or engage
in activities on behalf of St. Louis Joint Board. Inter-
national Ladies' Garment Workers Union, AFL-CIO,
or any other labor organization.
WE WILL offer Rosie Lee Kimble and Florine Seay
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiv-
alent jobs, without prejudice to their seniority or other
rights and privileges, and WE WILL make them whole
for any loss of earnings they may have suffered as a
result of the discrimination against them.
WE WILL, upon request, recognize and bargain col-
lectively in good faith with St. Louis Joint Board, In-
ternational Ladies' Garment Workers Union, AFL-
CIO, for the unit described herein with respect to rates
of pay, wages, hours of work, and other terms and
conditions of employment, and WE WILL upon request
embody in a signed agreement any understanding
reached. The bargaining unit is:
All production and maintenance employees em-
ployed at our facilities on Walton Road in Overland,
Missouri, excluding office clerical employees, profes-
sional employees, guards, and supervisors as defined
in the Act, homeworkers, and all other employees.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights to engage in or to refrain from engaging in
any or all the activities specified in Section 7 of the
Act. These activities include the right to self-organiza-
tion, the right to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of
their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection.
LOCKWOVEN COMPANY AND ARK GARMENT
COMPANY
1375