National Garment Co.

National Labor Relations Board - Board Decisions

Apr 3, 1979

241 N.L.R.B. 703 (N.L.R.B. 1979)

NATIONAL GARMENT COMPANY
National Garment Company and Southwest Regional
Joint Board, Amalgamated Clothing & Textile
Workers Union, AFL-CIO, CLC. Cases 17-CA-
7616, 17-CA 7670, 17-CA-7791, and 17-RC-8276
April 3, 1979
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS PFNEFI.O, MURPHY, AND TRUESDALE
On December 27, 1978, Administrative Law Judge
James T. Youngblood issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
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.
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, National Garment Company,
Fayette, Missouri, its officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order, except that the attached notice
shall be substituted for that of the Administrative
Law Judge.
IT IS FURTHER ORDERED that the election held at
Fayette, Missouri, on June 30, 1977, in Case 17-RC-
8276 be, and it hereby is, set aside, and that Case 17-
RC-8276 be, and it hereby is, severed from Cases 17-
CA-7616, 17-CA-7670, and 17-CA-7791 and re-
manded to the Regional Director for Region 17 for
the purpose of conducting a new election.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
I Respondent has excepted to certain credibility findings made b 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 Dn, 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.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees con-
cerning their union and other protected activi-
ties, including their interest in and support for
the Union.
WE WILL NOT solicit employees to engage in
surveillance of union meetings of our employees,
and WE WILL Nor request these employees to re-
turn and report to us.
WE VWILL. NOT confer benefits upon our em-
ployees by repairing air-conditioning systems at
the Fayette facility to influence our employees'
selection of a bargaining representative.
WE WILL NOT confer benefits upon our em-
ployees by increasing their holiday pay to influ-
ence their selection of a bargaining representa-
tive.
WE VWIll.l NOT discourage our employees'
membership in Southwest Regional Joint Board,
Amalgamated Clothing & Textile Workers
Union, AFL CIO, CLC, or any other labor or-
ganization, by discharging or in any other man-
ner discriminating against our employees with
respect to their hire, tenure of employment, or
any other term or condition of employment.
WE WIILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of the rights guaranteed them in Section 7
of the Act.
WE WILl, offer John Blackwell immediate and
full reinstatement to his former position or, if
such position no longer exists, to a substantially
equivalent position, without prejudice to his se-
niority or other rights and privileges previously
enjoyed, and WE WILL make him whole for any
loss of pay he may have suffered by reason of our
discrimination.
NATIONAL GARMENT COMPANY
DECISION
STATEME'NT OF THE CASE
JAMES T. YOUNGBLOOD. Administrative Law Judge: The
several complaints issued herein, and consolidated for hear-
ing, allege that National Garment Company (herein called
Respondent or the Company) engaged in various acts and
conduct in violation of Section 8(a)( ) of the National La-
bor Relations Act, as amended, and discharged John W.
Blackwell because of his membership in or activities on be-
half of Southwest Regional Joint Board, Amalgamated
241 NLRB No. 109
703
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clothing & Textile Workers Union, AFL-CIO, CLC
(herein called the Union), or because of said employee's
other protected concerted activity. Additionally, Case 17-
RC-8276 was connsolidated for hearing with the complaint
cases because certain objections raised to the election held
on June 30, 1977, encompass acts and conduct also alleged
as unfair labor practices in the complaints. These matters
were referred to me for determination and decision. All par-
ties being present, this matter was heard before me in Boon-
ville, Missouri, in December 1977. Following the hearing
Respondent and the General Counsel filed briefs which
have been duly considered.
Upon the entire record, and from my observation of the
witnesses and their demeanor, and the briefs filed herein I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Missouri corporation engaged in the
manufacture of children's clothing and related products at
various facilities located in the State of Missouri, including
a facility located at East Elm Street, Fayette, Missouri.
In the course and conduct of its business operations
within the State of Missouri, Respondent annually pur-
chases goods and materials in excess of $50,000 directly
from sources outside the State of Missouri.
Respondent admits, and I find, that it is now and has
been at all times material herein an employer within the
meaning of Section 2(2) of the Act and engaged in com-
merce and in operations affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the Union is now
and at all times material herein has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
ItI. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Unlawful Discharge of John W. Blackwell
Blackwell was first hired by the Respondent in February
1974. In September 1974 he left the Respondent's employ
and was rehired as a markermaker in the cutting depart-
ment around July 6, 1976. He was discharged on March 23,
1977, allegedly for economic reasons because of an overall
cost-cutting program. Prior to 1974, for approximately 5
years, Blackwell was employed as a cutter at Salisbury
Manufacturing Company in Salisbury, Missouri, about 25
miles from Respondent's Fayette plant. During his employ-
ment at Salisbury Manufacturing, Blackwell was required
to belong to a union, and he was a steward in the cutting
department from 1970 through 1974. Blackwell testified
that the Salisbury Manufacturing plant is about 25 miles
from the Fayette plant and that when he applied for work
at National Garment, he filled out a job application indicat-
ing that he had worked at the Salisbury plant.' After the
Union began its organizational campaign at the Fayette
facility, Blackwell secured authorization cards and distrib-
uted them to the other employees. He also collected a few
of these cards after they had been signed and talked to his
coworkers about the Union. He said these conversations
would occur in the parking lot and sometimes in the break-
room. Blackwell also testified that he first learned about the
Union in mid-March 1977,2 when Brenda Nelson discussed
it with him. Blackwell also testified that during his conver-
sations with Brenda Nelson and other employees, to his
knowledge no management official observed these conver-
sations. On March 23 Larry Glidewell, the assistant man-
ager of the cutting department, told Blackwell to report to
Ray Darden's office. Ray Darden is the floor manager of
the cutting department. When Blackwell entered the office,
Darden told him that he would no longer be the mark-
ermaker because Larry Glidewell would be taking over the
job. Blackwell asked what would happen to him, and Dar-
den responded that he was terminated. Darden told Black-
well that the decision was made higher up, but he did not
identify anyone. Blackwell was the only markermaker em-
ployed by the Company at the time.
Respondent offered testimony from various company of-
ficials to the effect that in September 1976 the Company
began considering ways to cut cost and that one of the
items considered by the officials, including the plant man-
ager at the Fayette plant, was the elimination of certain
jobs by total elimination of the job or by consolidating it
with another job. Respondent argues that Blackwell was
discharged solely because his job was eliminated.
This record clearly establishes that the job was not elimi-
nated, but that Darden and Glidewell performed the job
functions at least for several weeks, until it was handed over
to another employee, who did it along with his other duties.
Respondent contends that Blackwell was discharged for
economic reasons and not because he was engaged in union
activities. In fact Respondent takes the position that it was
not even aware at the time of his discharge that Blackwell
had engaged in any form of union activities.
James McCleery, a former employee of Respondent, tes-
tified that he worked for Respondent between December
1975 and April 1977 in the cutting department and that the
last job he had was as an expeditor in the cutting room, and
Ray Darden was his immediate supervisor. McCleery testi-
fied that on March 23 he learned that Blackwell had been
discharged. Because he had some trouble with the employ-
ees in this department about his being an expeditor, he de-
cided to contact Darden to see if his job was in jeopardy.
He testified that on March 24 he went to Darden's office,
and they discussed the John Blackwell situation. Darden
told him that Blackwell was fired because he, Darden, had
been called up front and told to fire John Blackwell because
of his participation in the Union. He testified further that
Darden asked him if he had been participating in the
I assume that this evidence as put in by the General Counsel so that I
might draw an inference that Respondent had knowledge of Blackwell's past
union activities, as it must have known that the Salisbury plant was union
and that all employees had to join the union at that plant.
I Unless otherwise specified, all dates refer to 1977.
704
NATIONAL GARMENT COMPANY
Union, and when McCleery told him no, Darden stated
that he had nothing to worry about. McCleery also told
Darden that he had heard that the Union was just about six
votes short of having a majority of the employees signed up.
According to McCleery, Darden told him that Wilma
Blackwell, John Blackwell's wife, was also involved with
the union solicitation, but they could not prove that on her;
therefore she was not fired. McCleery also testified that
Darden told him that Blackwell had approached someone
on the other side of the plant, and from that person that he
had approached they had gone up the administrative line,
and that was the reason Blackwell was discharged.
McCleery stated that Darden did not name that individual.'
Ray Darden testified that he was the manager of the cut-
ting department at the Fayette plant and that he left the
employ of National Garment in September and went to
work for Dover Mills, a division of Andover Togs, in Pis-
gah, Alabama. While he worked at the Fayette plant of
Respondent, he supervised John Blackwell. He stated that
the decision to eliminate the job of markermaker was made
2 weeks before the actual termination of Blackwell and that
the decision was made at a meeting between Larry Martin,
the director of manufacturing; Loyd Blalock, plant man-
ager: and himself. He stated that he told Blackwell that his
job had been eliminated and that he was terminated.
Darden testified that he did not recall a conversation
with McCleery the day following Blackwell's termination.
However, he testified that he had a conversation with
McCleery practically every day. He did recall a conversa-
tion where Blackwell was mentioned and in which
McCleery informed him that he did not think I day's notice
was a sufficient notice for termination. He does not recall
whether he made any comment or not. He denied asking
McCleery if he was in favor of the Union. He denied men-
tioning Wilma Blackwell's name at all in the conversation
and also denied telling McCleery that he knew that Wilma
Blackwell was involved with the Union. He further denied
telling McCleery that Blackwell was discharged because of
his participation in the Union. Darden also denied asking
any employees about their sympathies for or activities on
behalf of the Union. He said that he talked to the employ-
ees about the Union, but that he only told them of his
personal feelings. He did not recall making any more spe-
cific statement than that.
Discussion and Conclusions
As indicated previously, Respondent contends that John
Blackwell was terminated purely for economic reasons. The
I McCleery testified that he left the employment of Respondent in April
1977 of his own volition. He also testified that, in the summer of 1977, he was
electrocuted, resulting in a cerebral concussion and a broken right clavicle.
As a result of this injury, he cannot remember anything for the months of
July, August, September, and part of October 1977. He testified that he had
given an affidavit to the Board and that he recalled everything that he had
stated in that affidavit, which was given prior to his accident. Those events
were clear in his mind, and he could remember them. He also testified that
the injury had very little effect on his memory concerning events that oc-
curred prior to the accident. The affidavit was dated May 18, 1977, and
supports the testimony of McCleery. The affidavit was offered into evidence
but was rejected, because the witness was available and testified. Addition-
ally, the General Counsel's motion, which he renewed in his brief, that the
affidavit be considered as the testimony of the witness is also denied, as I am
satisfied that the witness testified to his best recollection.
record reflects that the Union began handbilling around
March 2, 1977, and that shortly thereafter John Blackwell
began helping out the Union by getting employees to sign
authorization cards and talking to employees about the
Union. He testified that to his knowledge he was never ob-
served by any company officials in this union activity. Thus,
it would seem that the Company had no knowledge of
Blackwell's activities and that therefore it could not have
discharged him for such activities. Darden, the man who
actually terminated Blackwell, testified that he told him
that his job had been eliminated. Darden also testified that,
to the best of his recollection, he never mentioned anything
to Blackwell about his union activities. Darden's entire tes-
timony was evasive and vague, and he admitted that his
memory was very poor about the entire incident, including
his conversation with McCleery on March 24. 1 was not
impressed with Darden's testimony, particularly as much of
it was in response to leading questions, and in my view it
did not have a ring of truth.
In contrast, James McCleery, a former employee of the
Company and an uninterested witness, testified that on
March 24, the day following the termination of Blackwell,
he had a conversation with Darden. He testified that in this
conversation Darden told him that Blackwell had ap-
proached some employees at the plant concerning the
Union, and through that contact Blackwell's union activi-
ties became known to management. McCleery also testified
that Darden told him that Blackwell was terminated be-
cause of his participation in the Union. McCleery stated
that Darden asked him if he had been participating in the
Union, and when he responded, "No," Darden told him
that he had nothing to worry about so long as he was not
participating in the Union and that his role as expeditor
was safe.
McCleery testified that he had an injury in the summer of
1977 which resulted in a cerebral concussion and which
affected his memory. However, prior to the hearing, he read
his affidavit, which was given on May 18, 1977, and this
had completely refreshed his recollection. He testified to the
events contained in the affidavit and again reiterated that
the events as set forth in the affidavit were in fact true. I
have credited the testimony of McCleery because he was an
uninterested witness; he had no apparent grudge against
the Company because he testified that he quit the Company
in April of his own volition, and his testimony was forth-
right and sounded truthful.
Therefore, it is my finding that Respondent discharged
John Blackwell because of his union activities in an attempt
to discourage membership in the Union, in violation of Sec-
tion 8(a)() and (3) of the Act. Additionally, I find that
Darden interrogated James McCleery about his union sym-
pathies and activities on March 24, in violation of Section
8(a)( l) of the Act.
B. The 8(a)(1) Allegations
The complaint alleges that Respondent engaged in var-
ious violations of Section 8(a)(1) during the period from
March 24 until the election on June 30.
Wilma Blackwell testified that on the morning of April
27 she, Emma Rita Gannaway, Dana Strodtman, and
705
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carol Ann Gerding were at their work station talking about
how they will never get rich working at National Garment,
when Cappie Akeman, an admitted supervisor, approached
them and said, "Well, would a union help?" Blackwell said
they explained to her that they could not talk about the
Union on company time. Akeman said she knew that, but
"[W]ell, we want to get it out in the open. We want to know
what is going on." They explained to her again that they
really should not talk about the Union, and Akeman said,
"Well, if the Union gets in, and Mr. Rothbart [the owner]
does not sit down and negotiate, what are you going to do
then?" They informed her that they did not know.
Cappie Akeman testified that she did have a conversation
with Blackwell and the other employees in which the topic
of unions was discussed. She testified, however, that this
was in June and that she never asked any of the employees
how they felt about the Union. She said the only thing that
was discussed was that they asked her something about
wages and she said, "[W]ages could be lower or higher."
She testified that during this conversation, Pat Smith, a su-
pervisor, also joined in the conversation and commented
that wages could be either lower or higher or they could
stay the same. Pat Smith, an admitted supervisor, testified
that he remembers the conversation in question with the
employees and that it was in mid-June of 1977. He testified
that he was by his office, and he saw Akeman with the
employees, and he walked over to see what was going on.
And he said that they were talking about the Union and
wages. Smith said that he remembers that Cappie Akeman
stated that if the Union should come in, the wages could go
up, they could go down, or they might stay the same. He
said he took part in the conversation, and his comments
were the same as Akeman's. Like Akeman, he testified that
he knew very little about unions but that members of his
family were union members and that he had been told that
wages could go up or down or they could stay the same,
and he so informed the employees. He was asked how the
conversation ended, and he stated it was a stalemate. Smith
also testified that he spent about 35 percent of his time
talking to the employees about the Union. He stated that
the supervisors were instructed to circulate and to discuss
the Union with the employees and to answer any questions
they could about the Union.
Dana Strodtman testified to the conversation with Super-
visors Pat Smith and Cappie Akeman. She said she did not
do any talking; she only listened. She also thought that this
conversation occurred around the middle of May. What-
ever the date, it appears to be the same conversation that
Wilma Blackwell testified about. Strodtman says that Carol
Ann Gerding, Wilma Blackwell, and Emma Rita Ganna-
way were present during this conversation. She testified that
Akeman asked why they wanted a union and what they
thought a union could do for them. She said the employees
did not say much in response, and then Pat Smith joined
and wanted to know why they could not take their prob-
lems to them instead of bringing in a third party.
From my observations of the witnesses I credit the testi-
mony of both Blackwell and Strodtman, who seemed to be
very sincere employees and whose testimony was straight-
forward and had a ring of truth. The testimony of both
Akeman and Smith, however, was too pat and unimpres-
sive. Additionally, Akeman, when first asked if she was in
favor of the Union, testified that she did not know because
she did not know anything about the Union. On further
examination, she testified that she worked for the Company
and she was in favor of the Company and that she was
definitely against the Union. Therefore, it is my conclusion
that Akeman and Smith did interrogate these employees
regarding their sympathies and support for the Union.
Respondent argues that since the conversation took place
in the natural work location, with all parties involved ex-
pressing their opinions and beliefs without inhibitions,
threats, or coercion, the conversation could not logically
have been designed to force the employees to reveal their
union sentiments, since they were open and vocal union
supporters as evidenced by their comments that initiated
the conversations. I do not agree. As I understand the testi-
mony, these employees were talking about whether they
would get rich working for National Garment. They were
not discussing unions. It was Akeman who first raised the
question of unions by asking whether a union would help.
Moreover, from the testimony of both Strodtman and
Blackwell, this was the only time that they ever discussed
the Union with any supervisors, and it was apparent from
their testimony that they did not want to discuss the Union
with their supervisors. It is my conclusion that this is un-
lawful interrogation in violation of Section 8(a)(1) of the
Act, and I so find.
Employee Sandra Moore testified that she worked in the
cutting department of the Respondent and that her supervi-
sor was Ray Darden. She further testified that on April 18
she had a conversation with Ray Darden in the cutting
department. She said that her sister Kay Moore and Brenda
Nelson were also present. She testified that they were sitting
around their cutting table, and Mr. Darden came around
and asked them if they were hoping to be with the Union in
a couple of weeks. They told him they did not know. Dar-
den then said "[t]hat the Union can promise you anything."
' he employees replied that Mr. Rothbart had promised
them some things but that he never kept the promises. Dar-
den then told the employees that all the supervisors were to
go around and ask each employee the same question that he
did.
Darden testified that he was sure that he had a conversa-
tion with Sandra Moore in which unions were discussed
and that, while he did not remember, he could have had a
conversation with her where Kay Moore and Brenda Nel-
son were also present. Darden was not clear as to when the
conversation took place because he said he had several con-
versations with her. He places the conversation around the
last of March. Darden was asked if, during that conversa-
tion, he ever questioned the employee about what promises
the Union might have made to them. He said that he did
not recall questioning them but that he made some state-
ments that any promises the Union made should be evalu-
ated before decision was reached. He denied ever question-
ing any employee about his or her union sympathies or
activities.
As I credit the testimony of Sandra Moore over that of
Darden, it is my conclusion that Respondent did interro-
gate its employees regarding their sympathies and support
for the Union on April 18, in violation of Section 8(a)( ) of
the Act.
706
NATIONAL GARMENT COMPANY
Employee Diana Holmes testified that on or about May
3. 1977. she had a conversation with her supervisor, Pat
Crowley. She testified that Crowley asked her if she was
going to a union meeting that afternoon. She responded
that she did not know, and Crowley said. "Well, if you do
go, will you mind letting me know what is said?" Diana
responded that she did not think she was going and sug-
gested that Crowley go. Crowley said that she could not
attend. Diana Holmes responded, "Well, I cannot go ei-
ther." Supervisor Crowley testified that she never had a
conversation with Diana Htolmes regarding the subject of
union meetings and that she did not have a conversation
with Diana Holmes on May 3 about the Union. Crowley
testified that while in the quality lab one day., she heard
Judy Cole, Diana Holmes. and Cathy Boley discussing
whether they were going to a union meeting. She said that
she did not take part in the conversation. Crowley testified
that she was a personal friend of Judy Cole. but she was not
friendly with Diana Holmes. Crowley testified that several
employees did ask her about the Union, and she told them
that she was not in favor of the Union. She testified that she
may have talked to about three dozen people about the
Union, but only if they asked her questions.
Judy Cole testified that she was present when there was a
conversation about unions in the presence of Diana Holmes
and Supervisor Crowley. She says that she does not know
the exact date, but it was probably around May 3. This
conversation took place in the quality control lab. She testi-
fied that they were sitting around in the lab, and Diana
Holmes came in, and she asked Diana if she was going to
the union meeting and how she was going to vote. Diana
told her that she did not know which way she was going to
vote and that she did not know for sure if she was going to
the meeting. She said that Pat Crowley was there but that
she did not say anything.
Cole testified that she was an inspector in the quality
control lab and that she considered herself a friend of Su-
pervisor Pat Crowley. Cole testified that she is doing the job
that Pat Crowley was doing at the time of the incident but
that she is not a supervisor. Cole further testified that she
was not a supporter of the Union during the organizational
campaign, and in fact she was against the Union and at one
time (on the day of the election) wore a "vote no" sign on
her clothing. She stated that she was allowed to attend sev-
eral union meetings and that she attended a meeting just
before the election. Cole testified that after the first union
meeting someone called her a spy. and she was not allowed
at any more meetings except for those near the election.
Cole admitted she worked quite closely with Pat Crowley
on a daily basis, and she did discuss with Crowley what
happened in all of the union meetings and the comments by
individuals at these meetings. She was asked if Pat Crowley
had ever asked her questions about the union meetings, and
she said. "No. she didn't have to," apparently meaning that
she freely divulged everything she knew to Crowley.
Diana Holmes struck me as a straightforward witness.
Her testimony was to the point and was not equivocal. She
stated what she considered to be the truth, and her testi-
mony had a ring of truth. In contrast. Pat Crowley testified
that she had talked to possibly three dozen employees in the
plant about the Union. But she testified that she sat through
this entire conversation between Diana Holmes and the
other employee and did nt at any time ask any questions.
She stated that it was one of the employees who was asking
about going to the union meeting, She was corroborated by
Cole. Cole testified that the entire conversation consisted of'
employees discussing among themselves whether they were
going to the union meeting and whether they were going to
vote for the Union. She testified that Pat Crowley. the su-
pervisor, never spoke one word during this entire conversa-
tion. I do not accept the testimony of either Crowley or
Cole on this point. I credit the testimony of Diana Holmes.
I do this because Pat Crowley did not in any way impress
me as a reliable witness. Likewise, neither did Cole. Cole
freely testified that she was barred from some otf the union
meetings because they thought she was a spy. She freely'
testified that she did attend union meetings and reported all
the conversations to Pat ( rowley, the supervisor. She testi-
fied that she was friends with Pat Crowley, but she was not
friends with Diana Holmes. Under these circumstances, it is
my view that Cole's testimony was certainly bias. Further-
more, it is my view that by her attendance at meetings and
her reporting back to the supervisor demonstrate also that
she was not trustworthy. and apparently her fellow employ-
ees felt the same way. Under these circumstances. I do not
credit her testimony.
Accordingly. it is my conclusion that Supervisor Pat
Crowley did advise an employee to attend union meetings,
to engage in surveillance of said meetings. and to report to
Respondent the events that transpired at those meetings, in
violation of Section 8(a)( 1) of the Act.
Employee Brenda Noll testified that in the afternoon of
June 22 she had a conversation with Supervisor Nadine
Cherrington. Noll testified that Cherrington came to her
machine and asked her why she was so dissatisfied with the
Company and why the Company does not do what the
Union could do for them. She also said that once a union is
in, the supervisor would not be able to sit and talk with the
employees like they had before. She said that if they ran out
of work, she would not be able to be switched to another
job. she would be sent home.
Employee Glenda Gerding testified that on June 23 she
had a conversation with Supervisor Nadine Cherrington.
She testified that this conversation took place at her ma-
chine, and there was no one else present. She testified that
Supervisor Cherrington asked her what she thought of Mr.
Martin's4 speech that day and asked her what she had
learned from it or if she had learned anything from it. Ger-
ding told her that she had not learned anything that she did
not already know. Cherrington then asked her if she
thought things would get better after-all this. Cierding re-
sponded that she thought so. On cross-examination. Ger-
ding testified that she told Cherrington that she was in favor
of the Union when Cherrington said to her. "Well. I have
my side," and Gerding said, "Well, I guess you know I have
my side too."
Employee Betty McGuire testified that on the afternoon
of June 28, she had a conversation with Supervisor Cher-
rington. She said that this conversation took place at her
sewing machine, and she does not think that anyone else
was present during the conversation. She stated that Cher-
' arrN Martin is director of manufacturing for Respondent
707
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rington came up and sat down in a chair and asked her how
she felt about the Union. She told Cherrington that she
thought it would be a good idea, a good deal for the em-
ployees, and that it would help improve the working condi-
tions and that she was in favor of the Union. Cherrington
said, "Well we would like to know." Cherrington then
asked if she knew anything about this Union in particular.
Cherrington informed her that she thought that these little
textile unions were not nearly as powerful as the larger
unions. Nor were they able to get the benefits that the
Plumbers and Pipefitters union could. Cherrington went on
to discuss the various unions and also asked McGuire if the
place that she had worked before was union, because she
knew that it had gone bankrupt. McGuire told her no that
it was not union.
Supervisor Nadine Cherrington testified that she did
have a conversation on June 22 with Brenda Noll, but that
the only thing that she ever told employees was how she felt
about the Union. She said she would tell them that they
had a vote and they could vote the way they pleased. She
testified that she could not remember the conversation di-
rectly. She could not remember the time of day this conver-
sation occurred, and she could not say whether it was
morning or afternoon. She did not remember any com-
ments that were made during the conversation. She testified
that the Union was discussed very little in her department,
as it was a very quiet, secret thing. She said she was sure
that the topic of the Union was discussed in that conversa-
tion with Noll. She remembered being at Noll's machine,
and she remembered that something was brought up about
the Union, but she did not recall the exact words that were
said. She said that, to her knowledge, she did not at any
time question Noll about the Union. Cherrington also testi-
fied that she did not at any time ask Gerding about the
Union or activities on behalf of the Union. She specifically
denied that she ever asked Gerding if she had learned any-
thing from Mr. Martin's speech. She said that she remem-
bered having conversations with Betty McGuire and that
these conversations involved the subject of the Union. She
stated that one conversation took place at a time when she
was out on the floor urging the people to vote for the
Union, and she said to McGuire, "I know how I feel about
the Union, but you have your vote, and you vote the way
you please." Again, she did not know when that conversa-
tion took place. She did not remember the day or the
month. But she said she thought it was within a week or so
of the election. She said she told McGuire that in her opin-
ion they were better off without a union.
I credit the testimony of Brenda Noll, Glenda Gerding,
and Betty McGuire over that of Supervisor Cherrington.
These employees testified straightforwardly, and their testi-
mony definitely had a ring of truth. Cherrington, in con-
trast, was evasive and uncertain and could not remember
the dates of any of the particular conversations. She did
remember that the topic of unions was discussed, but she
could not remember specifically what was discussed. She
testified generally that she never interrogated any employee
about his or her sympathies on behalf of the Union. She
also testified that she never asked Glenda Gerding if she
had learned anything from Larry Martin's speeches. As in-
dicated, I have credited the testimony of the employees
over that of Supervisor Cherrington, and I find that by
questioning Brenda Noll about why she was unhappy with
the Company, Cherrington engaged in interrogation of Noll
concerning her interest in and support for the Union. I also
find that by questioning Betty McGuire about how she felt
about the Union, she engaged in interrogation of Betty
McGuire regarding her interest in and support for the
Union. Additionally. it is my conclusion that Cherrington's
questioning of Glenda Gerding about what she thought of
Larry Martin's speech given that day also constituted inter-
rogation of Gerding regarding her interest in and support
for the Union. In view of the several other incidents of
interrogation of employees about their union sympathies, it
is reasonable to assume that Cherrington intended to learn
from Gerding her union sympathies by her response to the
inflammatory antiunion speech by Larry Martin. It is my
conclusion that the question was intended to elicit from
Gerding her sympathies either for the Company or for the
Union. Therefore I find this to be interrogation concerning
her interest in and support for the Union and violative of
Section 8(a)(l) of the Act.
Several supervisors testified that they were instructed and
did in fact go among the employees and discuss the Union.
However, their testimony was that they never asked ques-
tions about the Union or the employees' sympathies for the
Union, but they merely answered the employees' questions
about the Union. The supervisors testified that they did in
fact tell the employees how they felt about the Union. It is
incredible to believe that these conversations sought by the
supervisors with the employees, and in which the supervi-
sors advised the employees of their feelings about the
Union, were designed for any other reason than to elicit
from the employees their union sympathies and their sup-
port for the Union.
The complaint which issued on September 6, 1977, al-
leged that during the week of May 30, 1977, Respondent
conferred benefits on its employees by repairing an air-con-
ditioner and installing a new air-conditioner at the facility,
in violation of Section 8(a)(1) of the Act.
In support of this allegation, the General Counsel offered
the testimony of Mrs. Blackwell, who testified that during
the last week of May 1977, she had a conversation with Mr.
Blalock, the plant manager. She testified that it was very
hot in the area where she was working, and she asked Bla-
lock if they could bring their own fans and have them put
over their tables where they were working. She testified that
Blalock refused. He told her that they were going to get a
new air-conditioner in by June 13, but since the Union
came by they will probably say we are trying to bribe you.
She testified that Blalock indicated that he did not know for
sure if they were going to put the air-conditioning in or not.
She testified that she had complained about the heat in her
area on various occasions. Plant Manager Blalock testified
that he never referred to the air-conditioning system as a
possible bribe as indicated by the testimony of Blackwell.
Respondent admits that there was a repair of an old air-
conditioner and that a new air-conditioner was installed.
However, Respondent's witnesses testified that the repair of
the old air-conditioning system and the installation of the
new system were first discussed in November of 1976.
The documentary evidence submitted by Respondent to
support the conclusion that the air-conditioning repair and
the new air-conditioning system were not considered as a
708
NATIONAL GARMENT COMPANY
result of the Union do not bear out that contention. All of
the documents are dated after February 25 and some as late
as March and April 1977. long after the Union had started
its organizational campaign and long after the employer
knew that the Union was engaging in a campaign at the
plant. In fact Ray Darden testified that he first learned that
there was a union on the scene in January 1977. It is my
conclusion that the attempt to fix the old air-conditioner
and the addition of the new air-conditioner in the plant, as
admitted by Respondent, were done solely for the purpose
of influencing the employees' selection of a collective-bar-
gaining representative and that this conferring of benefits
was violative of Section 8(a)(1) of the Act.
According to Mr. Martin, on March 16 he prepared a
memo and circulated it to the various plant managers
throughout the National Garment Company, including the
Fayette plant, in which it was stated that, effective April I,
all employees paid on piece rate would receive their average
hourly rate for the holiday. The memo further explained
that prior to April 1., holiday pay for employees paid on
piece rate was paid at the minimum wage. The memo fur-
ther stated that the improved benefits were made possible
by the cooperation and dedication of the employees. Martin
testified that this was sent to the various managers and was
to be posted on the bulletin boards. Martin testified that he
saw the document was posted, but he was not sure whether
it was posted during the organizational campaign. Em-
ployee Brenda Noll testified that she received holiday pay
for Memorial Day, and she did in fact receive their hour
average for 8 hours, rather than 8 hours at the minimum
wage. She testified that prior to Memorial Day, they had
always been paid on 8 hours' minimum wage. She testified
that prior to Memorial Day, no one had informed her that
there would be a change in the way the pay was computed.
Whether the change in holiday pay was communicated to
the employees, in my view, is of no importance. The impor-
tant thing is that there was a change after the advent of the
Union. And this granting of a benefit was done to interfere
with the employees' Section 7 rights and to dissuade them
from selecting the Union as their collective-bargaining rep-
resentative, in violation of Section 8(a)( 1) of the Act.5
Paragraph 5(c) of the complaint alleges that on or about
April 20 Respondent discontinued its previous practice of
allowing its employees to sell newspapers, cosmetics, and
other merchandise at the facility. In support of this allega-
tion, employee Brenda Noll testified that prior to the ad-
vent of the Union she was able to purchase newspapers and
I Larry Martin testified that during the Christmas season of 1976 he be-
came aware that the company policy was to pay holiday pay on the basis of
minimum wage. When he became aware of this policy, he discussed it with
Rothbart, who instructed Martin to study the matter and determine the
feasibility of paying employees on the basis of their average rate of pay.
Even though Martin may have become aware of the practice in the Christ-
mas season of 1976, he does not indicate when he discussed the problem with
Rothbart. But it is clear that is was not until March, after the advent of the
Union, that the Company changed its policy with regard to holiday pay. In
my view such benevolence on the part of this antiunion employer was only
for the purpose of influencing its employees in their selection of a bargaining
representative. In addition to the 8(aX I) and (3) conduct which I have al-
ready found, which demonstrates union animus on the part of this employer,
the speeches given by Martin to the assembled employees prior to the elec-
tion clearly indicate that this employer is antiunion and in m) view would go
to great lengths to influence employees in their selection of a bargaining
representative.
Avon and Tupperware products in the plant at any time,
even on company time. She testified that after the advent of
the Union this practice stopped. She further testified, how-
ever, that there was no restriction on the sale of any prod-
ucts of any kind during breaktime or lunchtime or before or
after work. She testified also that no management employee
or supervisor ever told her she could not purchase or sell
products on company time. She testified that she thought
this came from one of the employees. Because I am not sure
of what the practice was prior to the advent of the Union,
and I am not sure that there ever was a change, in view of
Noll's testimony that no supervisor or management em-
ployee ever told her that she could not purchase products
on company time, it is my conclusion that the evidence
submitted by the General Counsel on this allegation of the
complaint is insufficient, and I shall recommend that this
allegation be dismissed.
C. The Objections to the Elections
Pursuant to a Stipulation for Certification Upon Consent
Election, an election by secret ballot was conducted on
June 30 among the employees of Respondent in the agreed-
upon appropriate unit at the Fayette, Missouri, facility. A
majority of the valid votes were not cast for the Union.
Thereafter, on July 8, the Union filed timely objections to
conduct affecting the results of the election, serving a copy
thereof upon the Employer. There were approximately 20
allegations of objectionable conduct, many of which are
encompassed by the allegations of the present complaints.
And, as I indicated earlier, these allegations of objection-
able conduct were referred to an Administrative Law Judge
for hearing and decision. The violations of Section 8(a)(I)
and (3) of the Act as found herein do, in my view, create a
general atmosphere of fear and coercion, and they pre-
cluded the holding of a free election, and therefore it is my
conclusion that Respondent did engage in election interfer-
ence and that the Union's objections to this conduct affect-
ing the results of the election should be sustained.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth above, occurring in
connection with the operations of Respondent, have a close,
intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. Having
found that Respondent discriminatorily discharged John
Blackwell in violation of Section 8(a)( I) and (3) of the Act,
I recommend that Respondent be ordered to offer him rein-
statement and make him whole for any loss of earnings and
other benefits resulting from his discharge by payment to
709
DE('ISIONS OF NATIONAL LABOR RELATIONS BOARD
him of a sum of money equal to the amount he normally
would have earned as wages and other benefits from the
date of his discharge to the date on which reinstatement is
offered, less net earnings during that period. The amount of
backpay shall be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), with interest
thereon to he computed in the manner prescribed in Florida
Steel Corporation, 231 NLRB 651 (1977).6
CONC'LUSIONS ()F LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by:
(a) Interrogating its employees concerning their union
and other protected activities, including their interest in and
support for the Union.
(b) Soliciting employees to engage in surveillance of
union meetings of Respondent's employees and requesting
these employees to return and report to Respondent.
(c) Conferring benefits upon its employees by repairing
an air-conditioner and installing a new air-conditioner at
the Fayette facility to influence the employees' selection of
a bargaining representative.
(d) Conferring benefits upon its employees by increasing
their holiday pay to influence their selection of a bargaining
representative.
4. Respondent violated Section 8(a)(3) and (I) of the Act
by discharging John Blackwell because of his union activi-
ties.
5. 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 foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act. I hereby issue the following recommended:
ORDER7
The Respondent, National Garment Company, Fayette,
Missouri, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their union
and other protected activities, including their interest in and
support for the Union.
(b) Soliciting employees to engage in surveillance of
union meetings of Respondent's employees and requesting
these employees to return and report to Respondent.
I See, generally, Isis Plumbing & Heating Co.. 138 NLRB 716 (1962).
' 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.
(c) Conferring benefits upon its employees by repairing
its air-conditioning system at the Fayette facility to influ-
ence its employees' selection of a bargaining representative.
(d) Conferring benefits upon its employees by increasing
their holiday pay to influence their selection of a bargaining
representative.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaran-
teed them in Section 7 of the Act.
(f) Discouraging membership in Southwest Regional
Joint Board, Amalgamated Clothing & Textile Workers
Union, AFL CIO, CLC, or any other labor organization,
by discharging or in any other manner discriminating
against its employees with respect to their hire or tenure of
employment or any other term or condition of their em-
ployment.
2. Take the following affirmative action, designed to ef-
fectuate the policies of the Act:
(a) Offer John Blackwell immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of pay he may have suffered by reason of
Respondent's discrimination against him in the manner and
to the extent set forth in the section of this Decision entitled
"The Remedy."
(b) 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 neces-
sary to analyze the amounts of backpay due under the
terms of this Order.
(c) Post at its Fayette, Missouri, plant copies of the at-
tached notice marked "Appendix."8 Copies of said notice,
on forms provided by the Regional Director for Region 7,
after being duly signed by its authorized 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 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.
(d) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to commply herewith.
IT IS FURT'HER ORDERED) that the objections to the election
conducted on June 30 be sustained, that the election be set
aside and that the Regional Director for Region 7 at his
discretion set a date for a new election.
I 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.
710