Phillips-Van Heusen Corp.

National Labor Relations Board - Board Decisions

May 31, 1967

165 N.L.R.B. 1 (N.L.R.B. 1967)

Phillips-Van Heusen Corp. and Amalgamated
Clothing Workers of America, AFL-CIO.
Cases 15-CA-2784 and 15-CA-2784-3.
May 31,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On January 11, 1967, Trial Examiner Frederick U.
Reel issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices
alleged in the complaint, and recommended that
these allegations be dismissed. Thereafter, the
General Counsel and the Respondent filed
exceptions to the Trial Examiner's Decision and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, with the following modification:
The Trial Examiner found that the layoff of
Myrtice Donaldson was not violative of Section
8(axl) and (3) of the Act. We do not agree. From the
evidence before us, we think it clear that she lost her
job because of her union activities.
Mrs. Donaldson joined the Union in August 1965.
The Respondent was well aware of her union
sympathies. When Donaldson and some other
employees protested the "partiality" shown against
them by one of the group leaders, her supervisor
informed her that somebody had told him that she
was "for the Union."
Mrs. Donaldson was an employee of long standing,
having worked continuously for the Respondent
since 1952 except for a period of 16 months in
1957-1958 when she was unable to work because of
illness . She was also one of Respondent's more
versatile workers, having worked, during her
employment with Respondent, at 11 different
operations. In prior years, except for a brief period of
3 weeks in 1963, she had not been laid off during the
seasonal layoffs, but instead had been given work at
some other operation at which she had acquired
skill. As late as 2 weeks before her layoff she was
assured by Supervisor, Snyder that when layoffs
occurred she would be transferred to the group
working on collars. Nevertheless, on November 17,
1965, she was told that the Respondent had nothing
for her to do and was laid off. She was assured, at
this time , that as soon as something was available
she would be recalled.
In February 1966, Mrs. Donaldson contacted
Snyder and was told that it would be some time in
April before she could be reemployed. And on
April 4 the Respondent recalled another employee,
Marceille Austin, who had been laid off with
Donaldson in November 1965. Donaldson was not
recalled although Snyder requested it because,
according to Respondent, her hostile attitude at her
"exit interview," at the time of ^ her layoff in
November, had earned the enmity of Personnel
Director Reeder. On May 13 she visited the
Respondent's office and again applied for
employment. Snyder told her that, he had nothing for
her to do, and on this occasion , in contrast to his
prior conversation with Mrs. Donaldson, he told her
that he did not know whether he ever would have
employment for her. When she asked to be trained
on a new operation she was refused. She then asked
Snyder for a recommendation so that she might
obtain employment elsewhere. Snyder agreed and
entered the office of Personnel Director Reeder.
Shortly thereafter Reeder came out of the office and
told Donaldson that any recommendation he would
give her would not be one which she would want to
show anyone.
On these facts we are convinced that Donaldson
was laid off in November 1965 because of her union
activities . Her long period of service, her varied
skills , and the fact that she had not been selected for
layoff in prior years persuade us that she was chosen
because of her union sympathies. The Respondent
contends that the failure to recall her was because of
her "belligerent" manner at the exit interview
conducted by Reeder. But obviously this had no
bearing on her layoff since that decision had been
made prior to the interview. Moreover, unlike the
Trial Examiner, we do not'believe that her statement
at the exit interview , to' the effect that she hoped to
be able to find another job and did not intend to
return to Respondent 's employment, would generate
such bitter hostility in Reeder that he would not
permit her reemployment 4 months later,
particularly when her supervisor specifically
requested her. On the contrary we find that the
refusal to rehire her for this reason was pretextual
and this reinforces our belief that her layoff in
November was caused by her union activities. We
find, therefore, that the layoff and the subsequent
failure to recall employee Donaldson was in violation
of Section 8(a)(1) and (3) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
165 NLRB No. 11 1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Phillips-Van
Heusen Corp., Geneva, Alabama, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as herein modified:
1. Paragraph 2(a) is amended to read:
"(a) Offer to reinstate Grace Eldridge, Mary
McGowin, and Myrtice Donaldson to their former or
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and
make them and Minnie Lou Parrish, Sebie Lee
Hughes, and Loreen Shiver whole in the manner
described in the portion of the Trial Examiner's
Decision entitled "The Remedy" for any loss of
earnings suffered by reason of the discrimination
against them."
2. Paragraph 2(b) is amended by adding the name
of Myrtice Donaldson.
3. The first indented paragraph of the attached
notice is amended to read:
WE WILL offer Grace Eldridge, Mary
McGowin, and Myrtice Donaldson their former
jobs and pay them and Minnie Lou Parrish,
Sebie Lee Hughes, and Loreen Shiver for wages
they lost as a result of their discharge or delayed
recall from layoff.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FREDERICK U. REEL, Trial Examiner: This case, heard
in Geneva, Alabama, on October 24-27, 1966, pursuant to
charges filed the preceding February 14 and April 29 and a
complaint issued July 21, presents questions as to whether
Respondent, herein called the Company, exceeded
permissible limits in its efforts to prevent the Charging
Party, herein called the Union, from organizing at the
Company's Geneva plant, and whether the Company in
laying off or discharging any or all the 11 employees
named in the complaint was motivated in so doing by the
employees' support of the Union. Upon the entire record,'
including my observation of the witnesses, and after due
consideration of the briefs filed by the Company and by
General Counsel, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATION INVOLVED
The pleadings establish, and I find, that the Company, a
corporation authorized to do business in Alabama,
operates a men 's shirt factory in Geneva, from which it
annually ships products valued in excess of $50,000 to
points outside the State, that the Company is engaged in
commerce within the meaning of Section 2(6) and (7) of the
I Typographical errors in the transcript have been noted and
corrected.
Y Snyder did not testify as to when he began this practice, but
by October 11, 1965, when he interviewed Mildred Adams, he
Act, and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Even before the Company was aware of any organizing
effort among its employees at the Geneva plant, it had
embarked on an antiunion campaign designed to prevent
any union from successfully organizing the employees.
Thus, Cecil Reeder, who became personnel manager on
July 13, 1965, testified that he did not learn of any union
activities until September 3, 1965; and Ed Snyder,
supervisor of the sport shirt department since March 1965,
testified that he first heard of the organizing efforts in
August or September. Yet Snyder also testified that when
he interviewed applicants for employment he usually told
them that "we don't feel the'Company needs a union in
this plant."' And Reeder testified that beginning in July
1965, at each of his weekly "gripe" meetings attended by
supervisors and by a number of employees (different
employees each week), he regularly set forth the company
policy of opposition to union organization even though the
subject of "unions" was not otherwise raised in any of the
meetings prior to September 1965. Notwithstanding their
employer's opposition, however, a number of employees,
during the period between April and October 1965, signed
union cards and engaged in other activities promoting the
Union's efforts to organize . This case concerns primarily
the discharges or layoffs of 11 of these prounion
employees. The question with respect to each is whether
the Company in discharging or laying her off was
motivated in significant part by the employee's union
activity (as General Counsel contends) or whether the
Company's action arose from the employee's poor work or
low production or from the annual seasonal need to lay off
surplus help (as the Company contends). We turn first,
therefore, to a discussion of the 11 alleged discriminatees,
and then to a consideration of other company conduct
alleged in the complaint to interfere with, restrain, or
coerce employees in the exercise of their statutory rights.
B. The Discharges and Layoffs
1. Grace Eldridge
The Company hired Mrs. Eldridge in 1951 or 1952, and
she worked for 6 to 7 years in various jobs including
pressing cuffs and center fronts and creasing pockets
and collar bands. Following an extended absence caused
by an illness followed by pregnancy, she returned to work
in January 1959. From then until her discharge on
September 7, 1965, she performed such operations as
examining and notching collars, turning and stitching
collars, creasing bands, hemming and sewing on patches,
and other work where she was needed; her experience
included performing 14 separate, operations, and
experience in every department. She was absent because
of pregnancy for 5 or 6 months early in 1962, and missed 1
or 2 months late that year and again in 1964 because of
illness. The Company contends that on two occasions,
once in 1960 or 1961 and again in 1963, Eldridge walked off
the job without notice. Eldridge testified that on the first
"hoped" he had acquired sufficient experience in this matter so
that he could tell from the interview whether the applicant was for
or against a union
PHILLIPS-VAN HEUSEN CORP.
occasion she had left at lunch time because of a sick baby;
she reported this to the plant manager that afternoon; he
told her to come back as soon as she obtained a babysitter;
and she did as directed. On the second occasion Eldridge
advised her supervisor at 9 or 10 a.m. that she was
leaving.'
Eldridge signed a union card about July 1, 1965. On the
morning of Friday, September 3, she and nine other
employees went to the office of Plant Manager Martin,
where with Eldridge acting as chief spokesman-they
advised Martin that they had signed union cards. Martin
told the 10 employees that he was "surprised," and
questioned them as to whether they knew what having a
union would mean, why they were in favor of it, and how
much money it would take out of the city and State. The
plant was closed for the Labor Day weekend of
September 4, 5, and 6. On Tuesday afternoon,
September 7, the first working day after the meeting in
Martin's office, Ed Snyder, Eldridge's supervisor, advised
her that she was being laid off "for two or three days" for
lack of work.
Eldridge has since made repeated efforts to get
employment with the Company, but without success. On
two occasions in September 1965, when she returned to
look for work, she saw Barbara Anderson, an employee
from another department, operating her machine. In
September and again in February she indicated to the
Company a willingness to take employment in the laundry,
but her applications were refused, and on the latter
occasion Snyder told her the Company "wasn't hiring in
the laundry." Finally in May 1966, she saw Plant Manager
Martin, and asked him for a job. Her testimony continues:
I told him I needed to go back to work, I needed to
work. He said that I was a real good operator but he
said, you know, you have messed yourself up. I said
how? And he just kept repeating, you know that you
messed yourself up. He again told me I was a good
operator but I messed myself up.
Martin admitted telling Eldridge that "she had messed
herself up." According to Martin, he referred to Eldridge's
having "walked out of the factory twice without warning
whatsoever." On cross-examination Martin was unable to
place one of these episodes in time, stating that it occurred
prior to his arrival, and "remembered" that the other
occurred "shortly after [he] came on shortly before," but
at any rate in 1963.
Eldridge in her previous years with the Company had
been laid off only once because of slack work, and on that
occasion her supervisor had sent for her to return when
work resumed. The record shows in the year following
Eldridge's discharge the Company hired over 70
employees for the "operating" department in which
Eldridge had had wide experience and over 90 for the
laundry. The Company contends that under a new process
it has no need for Eldridge's services as a band creaser,
and more specifically that when band creasing is done in
her old department (sport shirts) Supervisor Snyder uses
Barbara Anderson, who is one of three band creasers
employed in the dress shirt department. This testimony is
somewhat hard to reconcile with other testimony of
Snyder that-except for emergencies caused by
absences-only one employee. Clemmens, who bands
3 The record does not indicate how long Eldridge was off the job
on this occasion, except that she clearly was reemployed by 1964,
when she lost 2 months because of illness
4 Of the 10 employees who went into Martin's office in a group,
5 are alleged to be subsequent victims of discrimination, 2
3
collars, is interchanged between his department and the
dress shirt department. Eldridge had been employed for
several months creasing bands with the "new" process.
Snyder also testified that he had no reason to doubt that
Eldridge could do 14 operations in the plant. He
volunteered that he had a "lot of girls who can do it," then
said he had "one in particular," and finally stated that he
could "name two or three."
On the foregoing facts I find that the Company
discharged Eldridge because of her union activity This
discharge occurred the first workday after Eldridge had
been the spokesman for 10 employees who apprised the
plant manager of their support of the Union. His reference,
months later, to the fact that Eldridge "had messed herself
up," I find referred to her union activity, and not to
episodes which occurred years before, particularly as at
least one of them and perhaps both had antedated the
plant manager's own tenure. In the light of Eldridge's long
and varied experience with the Company (and her
statement that she always "made production" stands
undenied), the Company's failure to retain her or transfer
her to some other job is all but incomprehensible on any
basis other than resentment over what appeared to be her
leadership of the union group.
2. Mary McGowin
Mrs. McGowin, who had been among those
accompanying Eldridge on the September 3 meeting in
Martin's office, was discharged on October 28,4 2 weeks
after she and Joyce Driggers (whose layoff on November 1
is discussed below) handed out union leaflets at the door of
the plant. The Company contends that McGowin's
employment terminated because the seasonal change to
short-sleeve production necessitated a layoff of cuff
sewers and McGowin's production rate was low.
McGowin was employed by the Company in March or
April 1960, and worked for 4 years in the cutting
department, after which she transferred to the dress shirt
department as a "final examiner." In April 1965, after a
year as a final examiner, she asked to be trained as a
machine operator, and was given the job of sewing cuffs
which she held (with occasional transfers back to final
examining when she was needed there) until October 28.
McGowin's support of the Union was outspoken and
known to the supervisors, culminating in the leaflet
distribution on October 13 when Plant Manager Martin
remonstrated with her, stating, "Mary you can't do this,"
to which she replied, "Yes, I can, Herb. I am on the
outside and it is after 4:00 o'clock Here, have one."
When McGowin's supervisor, Cecil McDuffy, notified
her on October 28 that the Company had no more cuff
sewing for her to do, he urged her to get a job elsewhere,
stating that the Company did not wish to keep her because
of her low production. _ Again on November 8, when
McGowin, accompanied by Joyce Driggers, applied to
Plant Manager Martin for work, including laundry work if
available, Martin told them they would not work there
anymore. On November 16, when McGowin again sought
employment, McDuffy told her she was fired, a view
confirmed to her that day by Personnel Director Reeder,
by Works Manager George Lindenmuth, who was superior
(including McGowm's husband) later quit voluntarily, and 3 have
had continued employment at the Company since that date Cf
N L R B v {G C Nabors Company, 196 F.2d 272, 276 (C A. 5),
cert denied 344 U S 865, Nachman Corp v N L R B , 337 F 2d
421, 424 (C A 7)
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Snyder and McDuffy in the company hierarchy, and by
Plant Manager Martin.
McDuffy testified that McGowin averaged only $1.17 per
hour or 8 cents below the required minimum, the lowest of
any of the cuff sewers, and that three others similarly
employed were laid off shortly after McGowin. All but
McGowin, however, were recalled to work in the spring of
1966. McDuffy admitted that McGowin was the only one of
the group he told to look for a job elsewhere, but he
explained that the others had made production minimums.
Asked "how many [experienced] employees have you told
to go look for another job because they were low
producers," he replied, "several of them that were not
making production," but under further prodding he could
name only two.
Although the circumstances may give rise to the
suspicion that McGowin's termination on October 28,
1965, was the result of her outspoken support of the Union,
I find that in view of the evidence as to her low production
and of the need for cutting back on cuff sewers the
General Counsel has not sustained his burden of proof that
the Company acted unlawfully at that time in laying her
off. But the Company, as will appear, had a practice of
rehiring its laid-off employees,5 and McGowin had given
several years of apparently satisfactory service in other
departments. Moreover, in the spring and summer of 1966
the Company hired new employees as "final examiners,"
work which McGowin had performed before her transfer
to a sewing job. On this record, I find that while the
Company had lawful cause for laying McGowin off, it was
McGowin's aggressive prounionism which led the
Company to set its face against ever reemploving her.
Accordingly, I find that by discharging McGowin, rather
than merely laying her off, the Company violated Section
8(a)(3) and (1) of the Act. Of course, any backpay due
McGowin would start to run only from the time when she
would have been recalled, a date which can be settled in
"compliance" proceedings. See N.L.R.B. v. Cambria Clay
Products Company, 215 F.2d 48, 56 (C. 6), and cases there
cited.
3. Joyce Driggers, Myra Phillips, Minnie Lou Parrish, and
Sebie Lee Hughes
These four employees, although laid off and offered
recall on different dates, jointly present a difficult issue in
this case, the extent to which their layoffs were occasioned
by the Company's mistaken belief, reflected in a formal
warning notice to each of them that they had engaged in
union activity during working time. On October 14, 1965,
Personnel Director Reeder read to each of these
employees separately, and thereafter placed in their
respective personnel folders, the following notice, signed
by him:
This is to advise you that we have definite information
that you have been harassing a fellow worker talking
about labor unions during work hours to the point of
interfering with this fellow worker's efficiency of
production. We are giving you notice that such
activities and discussions during work hours will not
5 Indeed, it was official company policy to give "preferential
consideration to former employees with a good record of service
and of attendance " Company booklet, "You and Your
Company," G C Exhs 3 and 6, p 14 Compare Judge Learned
Hand's succinct observation , "Seasoned men are better than
green hands ," N L.R B v. Remuigton Rand, Inc., 94 F 2d 862,872
(C A 2), cert denied 304 U S. 576, 585.
be tolerated, and that any further incidents of this
nature will result in your dismissal.
Each of the employees at the time of receiving the notice,
and again (except for Hughes) on the witness stand, denied
having engaged in the alleged harassment during working
hours. The Company introduced into evidence an unsworn
statement signed by an employee attributing such
harassment to the four employees, but this establishes
only that the Company had a basis for believing them to be
guilty; on the record before me there is only hearsay
opposed to their competent testimony of their innocence.
If, therefore, the Company's belief that any of them
engaged in misconduct contributed in any significant part
to any of the decisions to lay any of them off, the layoff was
unlawful, under the test established inN.L.R.B. v.Burnup
and Sims, Inc., 379 U.S. 21. But the company witnesses
steadfastly maintained that the selections for layoff were
made without regard to the warnings or to the personnel
files. As the warnings were issued in mid-October and the
layoffs ranged from November 1, 1965 (Driggers), to
January 14, 1966 (Phillips), the timing gives some support
to the company testimony, which might otherwise be
suspect in the light of the Company's open hostility to the
Union. Moreover, as will appear below, a similar warning
was given union adherent Barbara Shirah on October 20,
1965, but her employment was not affected until her
discharge in February and she was rehired in April. On the
other hand, when employee Parrish was recalled to work
on May 2, 1966, Personnel Director Reeder expressly
cautioned her against carrying on union activities during
working hours (an offense she again denied ever having
committed), and it would not seem unreasonable to infer
that if this subject was brought up by the personnel
manager at the time of recall, it had played some role in
the selection for layoff.6
Considering the four employees separately, the first to
be laid off was Joyce Driggers, who was laid off
November 1, 1965, and recalled on April 25, 1966.
Driggers had enjoyed intermittent employment with the
Company since 1953, having worked for 11 months that
year, for a period in 1954-1955, for 9 months in 1958, for a
year in 1959, and from May 31, 1965, to November 1, 1965.
In all these periods Driggers' job had been that of "final
examiner." She was outspoken in her support of the
Union, and had often made her views known to company
supervisors. Shortly after she had been warned for
allegedly soliciting during working hours, Driggers had
occasion to ask Personnel Director Reeder why he was so
opposed to the Union. In the course of their discussion,
according to Driggers, Reeder urged her to get her card
back and to work for the Company as hard as she was
working for the Union, adding that if she did not get her
card back "the Company has no choioe but to fire you."
Reeder corroborated Driggers as to much of the
conversation, but denied making any statement about her
regaining her card or about her being fired if she did not.
The credibility issue here is a difficult one; Reeder himself
twice referred to Driggers' attribute of sincerity, and this
quality was manifest on the witness stand. On the other
hand, it seems highly unlikely that Reeder would openly
6 Reeder corroborated Parrish as to his introduction of this
subject at the time of her recall . Parrish also attributed to Reeder
a statement at this interview that she had been selected for layoff
because of her union activity, but Reeder denied making such a
statement and the probabilities of the situation lead me to credit
his denial and to find that Parrish misconstrued his remarks.
PHILLIPS-VAN HEUSEN CORP.
threaten to discharge an employee for failure to withdraw
from the Union. I am inclined to think that Reeder did urge
Driggers to transfer her allegiance, and that he mentioned
getting her card back, but that the threat to discharge was
unspoken and represented Driggers' interpretation of the
end to which Reeder's comments were directed.
Triggers was laid off on November 1, a little over 2
weeks after she and Mary McGowin openly distributed
union leaflets at the plant doors. On November 1 Driggers'
supervisor, Snyder, told her that she was being laid off
because "short sleeves were coming in and they just didn't
need [her] any more." Snyder also referred at that time to
Driggers' difficulties in "making production," although he
admitted that she had done so the last few weeks. Snyder
then sent her to Works Manager George Lindenmuth for
an interview, in the course of which Lindenmuth asked her
"off the record" why she was "working for the Union so
hard." A brief discussion of the Union then ensued in the
course of which, according to Driggers, another employee,
Mildred Adams, entered the room in tears and
Lindenmuth, after asking Adams to wait outside,
replied to Driggers' question as to why Adams was being
fired, "I don't know, she is not for the Union."7
Lindenmuth concluded the interview by saying, "I have to
do what they tell me to do."
As noted above, Driggers accompanied McGowin to the
plant on November 8 in an unsuccessful effort to obtain
reemployment, and Plant Manager Martin told them to
find jobs elsewhere as they "wouldn't be working there
any more." However, late in April 1966, about 2 months
after a charge was filed in her behalf, Driggers was
reemployed.
Driggers admitted on cross-examination that the
Company customarily laid off final examiners in the fall
and recalled them in March or April. Records introduced
by General Counsel establish that no final examiners were
hired during the period Driggers was out of work. She also
admitted that except for the last few weeks in the fall of
1965 she had failed by rather small margins to "make
production"; i.e., her piecework earnings were slightly
less than the statutory minimum wage. Driggers'
supervisor, Snyder, testified that she, Wanda Jackson, and
Sebie Lee Hughes were the three lowest producers and
that he selected them for layoff for that reason, but the
Company produced no records to document this
assertion.8
Driggers' case seems as "close" as any I have ever
encountered. Her vigorous espousal of the Union's cause,
the Company's open hostility to the Union, the warning
erroneously issued to her, the reference to those warnings
when Parrish was rehired, the observation of Lindenmuth
in the final interview anent Adams' discharge-these
factors, among others, would support a finding of
discriminatory motivation. Moreover, we know that
"Motive is a persuasive interpreter of equivocal conduct,"
(Texas & N.O.R. Co. v. Brotherhood, 281 U.S. 548, 559),
and also that it is permissible to draw an inference adverse
to the Company from its failure to produce substantiating
records concerning Driggers' comparative production.
5
N.L.R.B. v. Wallick, 198 F.2d 477, 483 (C.A. 3)-citing
2 Wigmore, Evidence, §285; see also United States v.
Johnson, 288 F.2d 40, 45 (C.A. 5), and cases there cited in
footnote 4. As against all this, however, stand the stark
facts that Driggers' sole experience was as a final
examiner; she admittedly did not "make production" for
much of her employment; her layoff and recall dates
coincided, according to her own testimony, with the normal
slack period; and no one was hired in her place. On
balance, I conclude that in my judgment General Counsel
did not establish Driggers' case by a preponderance of the
evidence (the standard binding upon me), although I
recognize that reasonable minds could differ on this and
that a contrary finding would find substantial support in
the record.
Minnie Lou Parrish was laid off on November 26, 1965,
and rehired on May 2,1966. She had been employed by the
Company since 1950, and since 1962 or 1963 had been
primarily engaged in inserting cuffs. She testified that she
was "in and out" during the winter months when the
Company was producing short sleeves but that prior to the
winter of 1965-1966, she had never missed more than 2 to
3 weeks at a time, as she would be called in to hem short
sleeves, set plackets, and do repairs. When Parrish
returned to work in May 1966 she was given a new
timecard; on previous occasions when she returned, her
old timecard had been in the rack. Parrish, as noted above,
had received a warning on October 14 for soliciting for the
Union during working hours, and vigorously denied that
she had done so, both at that time and again on the witness
stand. Also as noted above, Personnel Director Reeder
referred to this matter when Parrish was rehired.
According to Parrish's supervisor, Snyder, he laid her
off along with Loreen Shiver (discussed infra) and Vivian
Cullifer (not identified as a union adherent) because with
the advent of short sleeves he did not need cuff inserters,
and they, unlike his other cuff inserters, were not
experienced on other available work. He testified:
Q. What happened to the other cuff inserters that
you had?
A. They all moved to different jobs on which they
made production.
Q. Could you tell us why these other girls were
moved to these other jobs and Vivian Cullifer and
Minnie Lou Parrish and Loreen Shiver were not
moved but were laid off?
A. Well, the other girls, as I said, were moved to
other jobs because they were experienced on those
jobs. Two girls moved to setting pockets. One girl
made lapels. One girl was a yoker. Another girl was a
sleever.
Vivian Cullifer was not experienced in any other
job. Minnie Lou Parrish was experienced on other
jobs, but we did not perform these jobs at this time.
We didn't do this anymore. It was the same case with
Loreen Shiver.
Q. What job was it that you haven't done that you
were speaking of?
A. Well, Minnie Lou Parrish set plackets on
T Lindenmuth did not recall the Adams episode and specifically
denied making the last statement quoted above I credit Driggers,
noting that Adams was in fact fired the day that Adams testified to
seeing Driggers in Lindenmuth 's office at the time, and that
Lmdenmuth might well have forgotten the episode as he did not
fire Adams himself, had left the Company 6 months before the
hearing, and had no reason to refresh his recollection with respect
to Adams who was not named in the complaint as an alleged
discnmmatee.
s The records that were introduced, dealing with hinngs and
layoffs, are hopelessly inadequate So far as they show, for
example, Hughes was never laid off or rehired , and Jackson was
apparently not laid off until August 1966 The testimony shows
that this was a second layoff for Jackson, and that Hughes was
laid off in December 1965 and recalled in July 1966.
299-352 0-70-2
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
placket sleeves, and we do not make placket sleeves
anymore, or vanapress shirts. She hand beveled
sleeves the old way without a folder, and we do not
hand bevel sleeves that way anymore.
Loreen Shiver also hand beveled sleeves without a
folder, and, as I say, we don't do that anymore. She
put grippers on fronts, and I don't put-make
grippers in my unit on fronts or collars.
The records introduced in evidence do not refer to Vivian
Cullifer. They do show the hiring on December 28 of an
operator to set pockets; of two employees to "folder join"
on January 7 and 18, 1966; of an employee to run collars on
January 4; and of eight operating employees in March to
do such operations as hemming tails and cuffs, banding
collars, and running 'cuffs. They also show the hiring of
Barbara Steward on April 14 to do the same work from
which Parrish had been laid off.
On balance I find that in Parrish's case, unlike that of
Driggers, General Counsel carried his burden of proving
discrimination against her. Her case differs from Driggers'
because of Parrish's long tenure, her proven ability to do
other jobs besides that from which she was laid off, the
hiring of other new employees to do work which, at the
least, she could have been trained to do, the difference in
the treatment accorded her on this layoff from that in other
years-both in the length of the layoff and the destruction
of her timecard-and the express reference to her union
activity when she was rehired. However, in view of the fact
that Parrish had been laid off in other years, her backpay
may not run from the date of layoff but may be subject to
some diminution, a matter which (as in the case of
McGowin, supra) can be settled in compliance
proceedings.
Sebie Lee Hughes started working for the Company in
1942 during her summer vacations from high school, and
worked there full time in 1944 and 1945, from 1953 to 1958,
and from 1960 until laid off on December 9, 1965. As noted
above, the personnel director read her a written warning
on October 14, 1965, arising out of her alleged union
solicitation , at which time Hughes told him, "just because
[he] had it written down on that paper doesn't make it
true."
During her employment Hughes, except for a brief
period in 1943, had been a final examiner.a In the years
preceding 1965, when the Company changed to short
sleeves in the fall, she had been given work examining
short sleeves. The Company contends that Hughes, Joyce
Driggers, and Wanda Jackson were the final examiners
laid off in the fall of 1965 when the Company changed to
making short-sleeves shirts because they were the three
lowest producers. Although no production records were
introduced, company counsel implied that Driggers'
production was the lowest of the three and Driggers was
laid off over a month before Hughes. But Driggers was
recalled in April, and the Company hired at least four new
final examiners (Peggy Seay, Louise Galloway, and Inez
Senn are referred to in the transcript, and Joan Benefield is
listed in the exhibits)" between then and the recall of
Hughes on July 18, 1966. Ed Snyder, Hughes' supervisor,
0 For 2 weeks before her layoff in December 1965, Hughes had
been engaged in repairing shirts made in Puerto Rico This
appears to be the work on which Shirah and Driggers were put the
following April
10 Benefield and Galloway were both hired May 3, Seay on
April 20, and Senn on May 4. Benefield left on May 27 Driggers
was rehired April 25 but was not placed on final examining for a
week or so, and then in the dress shirt section.
testified that he decided to hire Seay and Senn, new
employees, because Hughes had not been making
production. But this circumstance did not prevent the
rehiring of Jackson as well as Driggers. (I note that at the
time of Driggers' recall an unfair labor practice charge had
been filed in her behalf, whereas Hughes was not named in
a charge until after Driggers' recall.)
General Counsel makes out a strong case for a finding of
discrimination against Hughes at the time of her layoff. In
contrast to Driggers, Hughes enjoyed considerable
seniority in her department, and in previous years Hughes
had not been laid off when the change to short-sleeved
production occurred. Nevertheless, and with the same
misgivings which I entertain over having sustained the
Company with respect to Driggers' case, I find that the
December 9 layoff of Hughes was motivated by legitimate
economic considerations arising out of the changeover to
short sleeves and her production record. I cannot,
however, account for the failure to recall Hughes in April
and May when new final examiners were hired, on any
basis other than her union activity of which the Company
was aware, as is shown by Reeder's warning to her the
preceding October. While her union activities were less
vigorous than those of Driggers, who was recalled at that
time, it seems likely that the pendency of a charge in
Driggers' case and the apparent need to escape or
minimize liability caused the Company to distinguish
between Driggers and Hughes. I therefore find that on
May 3, 1966, when the Company hired Louise Galloway
and Joan Benefield as final examiners, it discriminated
against Sebie Lee Hughes because of her union activity.
Myra Phillips was hired in March 1965 and proved to be
an excellent hemmer of shirt tails, until her layoff the
following January. After she had made several fruitless
efforts to obtain reemployment, the Company offered a job
in July 1966, but by that time she was otherwise occupied.
The issue is whether her union activity, of which the
Company was aware, including the unfounded warning
which Reeder gave her in October 1965, was a
contributing factor to her layoff in January or to delay in
recalling her."
According to Phillips' supervisor, Ed Snyder, Phillips
was particularly good at hemming the tails of sports shirts,
whereas one Elizabeth Alverson, senior to Phillips in
employment, was not qualified at that task but was just as
good as Phillips in hemming the tails of dress shirts.
Therefore, according to Snyder, he laid Alverson off
during the fall of 1965 but in January 1966 when sports
shirts "finally ran out," he thought it fair to recall the more
senior employee and lay Phillips off. This version, to which
Snyder testified, is substantially the same as the
explanation he gave Phillips in January.
Again General Counsel makes out a strong case,
growing out of the Company 's union animus , its knowledge
of Phillips' union activity, the somewhat bizarre
explanation that her work as a hemmer of sports shirt tails
was so appreciably better than Alverson's but that they
were equal on dress shirt tails, and the unusual solicitude
for seniority which Snyder displayed on this occasion. On
" The Company's records, introduced in evidence by the
General Counsel, show that Phillips was hired to "hem tails" on
February 29, 1966 This entry is simply inexplicable in the light of
her testimony, not otherwise contradicted, that she was off the
payroll after January 14 1 must perforce disregard the exhibit, the
accuracy of which is questionable in other respects as well
Phillips is also shown as "separated" in January and again in
April; only the first of the separations accords with the testimony
PHILLIPS-VAN HEUSEN CORP.
the other hand, the explanation, though unusual, was at
least consistent, and the action against Phillips occurred 3
months after her alleged union solicitation came to the
Company's attention. Perhaps the very originality of the
explanation carries its own conviction to me. At any rate, I
am not persuaded that General Counsel carried his burden
of proof that the layoff of Phillips was discriminatory.
4. Jeanette Teate
Mrs. Teate worked at the plant from 1958 to 1964 as a
cuff setter or sleeve inserter (i.e., her job was to put sleeves
into cuffs), was laid off in the early fall of 1964 when the
short sleeves season began, and was recalled in January
1965 to sew silk cuffs. In the late spring of 1965 she was
moved to a job as final examiner in the dress shirt
department, and she was employed at that work on
August 23 when she had to go to the hospital for 1 week.
She sent word to the Company that she would be back on
September 1, but the Company sent word back that she
was not to return until called. On September 3, while still
not back at work, Teate joined the group that went to Plant
Manager Martin's office and advised him of their support
of the Union.
After leaving Martin's office that day, Teate went to her
supervisor, Cecil McDuffy, and asked if she could go to
work. An argument ensued concerning Teate's status, and
they returned to Martin's office, where Martin told Teate
not to be alarmed as she was laid off every year at this
time.
Teate continued her active support of the Union during
the following weeks, and in October on one occasion
handed out union leaflets next door to the factory. On
several occasions in November, Teate returned to the
plant to seek work. On November 12, the second of these
visits, Personnel Director Reeder told Teate, "You won't
ever work here again," although 4 days before he had told
her she might be recalled in 2 or 3 months. When she
remonstrated that neither McDuffy nor Martin had fired
her, Reeder replied, "Well, I am in charge of all absentees,
and . there is a lot being out of work that will find
themselves in the same position you are in." Reeder then
told her that she had not been "making production" and
"was costing the Company money" so that "they had to let
[her] go." He then added that he knew Teate was
"following someone else's instructions" by applying for
work, and concluded "I don't care whether you like what I
say or whether the Union likes what I say or who likes
what I say." On Teate's next visit to the plant, on
November 16 with Mary McGowin, Plant Manager Martin
told them he wanted them to find out what the Andalusia
plant had, as "anything they had, Van Heusen had more
and better." (The reference apparently was to a shirt
factory which the Union had organized in a nearby town.)
Reeder also told McGowin and Teate on this occasion:
"You just assume you have been laid off. You have been
fired all the time."
In April 1966, when Reeder arranged for the
reemployment of Driggers, he asked Driggers to get in
touch with Teate, but at that time Teate was employed
elsewhere, and advised Plant Manager Martin that she
would not be in. Late the following August Teate accepted
reemployment at the Company.
12 Again the records introduced in evidence are so painfully
inadequate and inaccurate that their failure to substantiate
McDuffy's testimony cannot be taken as definitely repudiating it
The records show that Teate was discharged September 20,1965,
7
Cecil McDuffy, Teate's supervisor, testified that Teate
and two other final examiners, Clara Cullifer and Judy
Whitaker, were laid off in the fall of 1965 and recalled the
following spring in a normal seasonal layoff occasioned by
the changed from long to short sleeves.i2 Personnel
Director Reeder, who apparently was not involved in
Teate's layoff in September, testified that he told her when
she applied for reinstatement that fall that he "didn't feel
she would be brought back." According to Reeder, he
"had no intention of bringing her back at the time ...
because of her production record, her absentee record,
and the fact that several concessions had been made
trying to find a job that she could be happy on, and from all
apparent sources she was unhappy with all of them where
attempt had been made to place her." Reeder testified
that Teate was later rehired because her supervisor
needed experienced help and said "a few dozen is more
than no dozens." On cross-examination, Reeder answered
that he did not know whether Teate had "made
production" since her return to work.
I find and conclude that Teate's layoff in September was
for lawful economic reasons. The complaint alleges that
she was discharged on November 12, when Reeder told
her she would never return to work. I find that in so saying
Reeder was motivated by his antipathy to the Union of
which Teate was an avowed supporter. But the following
April, after the filing of a charge in Teate's behalf, the
Company was ready to rehire her, and the proof
establishes that no one was hired for her work between the
date of her discharge and the date she declined
reemployment. No useful purpose would therefore be
served by providing any affirmative relief in Teate's case.
5. Myrtice Donaldson
Mrs. Donaldson had been employed by the Company
from September 1952 to her layoff on November 17, 1965,
except for a period of 16 months in 1957-1958 when she
was ill. She signed a union card in August 1965. Early in
November of that year Donaldson and several other
employees went to their supervisor, Ed Snyder, to
complain that a group leader, one Snelgrove, had been
"showing partiality" against them and had said they were
prounion. At this point Snyder said to Donaldson, "Well,
somebody had told me you were for the Union." Donaldson
replied that they were not there to talk about the Union.
Donaldson was laid off on November 17, ostensibly
because of the change to short sleeves. Only once before,
in 1963, had Donaldson been laid off for this reason, and
then only for 3 weeks; in other years she had been moved
to other work.
At the time of her layoff Donaldson was engaged in
hemming cuffs, one of several operations in which she had
experience. Another cuff hemmer, Marceille Austin, was
laid off with Donaldson on November 17, but was recalled
April 4. Donaldson, however, despite several attempts to
get work in the winter and spring of 1966 was never
rehired, although Snyder told her when she was laid off
and again in February that he expected to call her back. In
May Snyder told her he did not know when he would call
her back, but said that he would write her a letter of
recommendation. On this occasion Personnel Director
and rehired October 4, 1965, both fictional entries, and as to
Whitaker and Cullifer show only that Whitaker was discharged on
June 3, 1966.
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reeder told her that any letter he would write would be
one she would not want to show anyone.
Snyder testified, with corroboration by Reeder, that in
April 1966 Snyder wanted to recall both Austin and
Donaldson, but that Reeder vetoed the latter's recall
because of the hostile attitude she displayed during her
"exit interview" with him in November, when she said (in
what Reeder characterized as a "kind of belligerent"
manner) that she never intended to return to the Company.
On cross-examination Reeder conceded that Donaldson
had expressed the hope that she would find another job
and that if successful she would not come back.
On this record I find that Donaldson's layoff (along with
Austin) in November 1965 was for lawful economic
reasons. The question is whether Reeder, when he vetoed
Snyder's effort to recall Donaldson at the time of Austin's
recall, was motivated by union animus or by irritation over
Donaldson's remarks at her exit interview in November.
The issue is not an easy one, for Reeder's hostility to the
Union was deep, and Donaldson's attitude at the exit
interview, as described by Reeder under cross-
examination, would strike me as understandable and not
calculated to provoke such longstanding resentment. On
the other hand, Reeder's capacity for harboring
resentment may be considerably in excess of what I regard
as average, and Donaldson's union activity appears to have
been relatively minor. Also I note that General Counsel
had identified, but did not introduce, a notation made by
Reeder at the time of the exit interview. Under all the
circumstances, I find that General Counsel failed to carry
his burden of proof that Reeder's conduct with respect to
Donaldson's reemployment sprang from his hostility to the
Union.
6. Loreen Shiver
Hired by the Company in 1956, Mrs. Shiver continued
her employment there, except for a pregnancy leave and
other brief absences, until her layoff on November 26,
1965. She signed a union card in the summer of 1965, a
fact which the Company already knew on October 18 on
which date she advised her supervisor, Ed Snyder, of her
union membership.
Shiver also refused to sign an antiunion statement
circulated by group leader Snelgrove, not a supervisor.
Myra Phillips later saw that statement on Supervisor
Snyder's desk. On November 26, Shiver's group leader
told her that Shiver and Minnie Lou Parrish, like Shiver a
cuff inserter, were being laid off for about 2 weeks as the
short-sleeve season had begun but two big orders were
coming through on which she expected to need them. The
other cuff inserters were transferred to other jobs.
Shiver returned to the plant on December 3 and asked
Snyder if he had a job on any shift for her, but he "just
laughed and said no." On some later date in December
when she telephoned Snyder he said, "You can keep
calling, but as far as I am concerned now, you can get you
another job, if you can." In February Shiver saw Reeder
without success, and during the ensuing 3 months she
called the plant four or five times to no avail, but Reeder
finally called her at the end of June and offered her a job
effective July 18 which she accepted.
The Company's explanation of Shiver's case is that at
the time short-sleeve production started in the fall of 1965
several of the cuff inserters were moved to other jobs but
Shiver and two others (Parrish and one Vivian Cullifer)
were unsuited for other work then being performed.
Apparently (and Shiver's testimony confirms that offered
by the Company in this respect) other operations Shiver
had performed in previous years had become more
automated or had been abandoned.
I cannot find that Shiver's layoff was discriminatory,
particularly in the light of her testimony that Vivian
Cullifer, a cuff setter who was also laid off, was an
employee of greater seniority and (so far as this record
shows) was not a union adherent. The question remains
whether the delay in rehiring Shiver was attributable to
her support of the Union.
Shiver had nearly 10 years of continuous employment,
in the course of which she had not only been a cuff inserter
but had also set collars, sewed labels, notched collars,
closed cuffs, hemmed sleeves (under a former process)
and put grippers on collars and fronts (an operation no
longer performed in Snyder's sport shirt department).
During these years she had never been laid off for any
period comparable to the layoff from November 25, 1965,
to July 18, 1966. During this period the Company hired,
inter alia, a cuff inserter (Stewart on April 14), an
employee to hem cuffs (Adams on March 28), several
employees to tack sleeves, several employees to run cuffs,
an employee to sew labels (Pryor on May 17), and
employees to face sleeves. In view of Shiver's experience,
it is clear that she performed some of these operations,
and in view of the variety of tasks she had done, it is a fair
inference that she could have been trained for at least
some of the others. I cannot account for the difference in
the treatment accorded her in this period from that given
her in prior years except on the basis that the Company
was less disposed to call her back on this occasion because
of her union activity. I therefore find discrimination in the
failure to recall Shiver at an earlier date, and leave to
subsequent proceedings or negotiations determination of
the date on which she should have been recalled.
7. Barbara Shirah
Mrs. Shirah had worked for the Company from July
1959 to December 1962, and from August 1963 to her
discharge (here in issue ) on February 8, 1966. She was
rehired April 27, 1966, but quit August 9, 1966, to undergo
an operation. Between April 27 and August 9, 1966,
however, she was employed at a lower rate of pay than she
had previously received.
During her employment Shirah had been employed as a
final examiner and (at the time of her February discharge)
as a skip sampler. Shirah joined the Union early in
October 1965, and apprised the Company of this fact some
2 weeks later.
Shirah's discharge on February 8 was effected by
Works Manager George Lindenmuth, who (in great
agitation , according to Shirah) accused her of passing bad
work, said he was tired of being blamed for her mistakes,
and fired her on the spot. There is some conflict in the
testimony as to the extent to which Lindenmuth had
previously discussed this problem with Shirah, but she
admitted to some criticism about 2 weeks before her
discharge. It is also far from clear that Shirah was in fact
responsible for not detecting the faulty work with which
Lindenmuth confronted her on February 8. Furthermore,
as shown below in the discussion of 8(a)(1) violations, the
Company was displeased with Shirah for her support of
the Union. Finally, in October, 1 week after Personnel
Director Reeder had warned Driggers, Parrish, Phillips,
and Hughes for alleged union soliciting on company time,
he read a similar warning to Shirah , and (as in the case of
the earlier warnings ) the only competent testimony in the
PHILLIPS-VAN HEUSEN CORP. 9
record establishes that Shirah was not guilty of the
offense.
Notwithstanding these facts, I am of the view that on
this record General Counsel has not established that
Shirah's discharge in February is attributable to her union
activity. Lindenmuth's visible anger on that occasion,
whether or not justifiably directed at her, appears
attributable to the faulty workmanship he had unearthed.
Her union activity had been known for some months, and
other opportunities for firing her for questionable work
had arisen . Moreover, she was taken back only 10 weeks
later , although this may be in part explained by the filing of
an unfair labor practice charge in her behalf. As to the
alleged failure to pay her her former wages, the record
shows that after a few weeks on Puerto Rican repairs she
was placed on final examining where the opportunity
existed for piece rate earnings in excess of her former
wage. The case as to Shirah should therefore be
dismissed.
8. Annie Faye Nowling
Mrs. Nowling, hired as a button sewer on July 9, 1962,
was discharged on March 8, 1966, allegedly for faulty
work. On that day her supervisor discovered about 30
dozen shirts on which Nowling had sewed the buttons in
the wrong position. Nowling had signed a union card in the
summer of 1965, and during that summer her husband (an
employee at an aircraft plant in that area) handed out
union leaflets in front of the company plant and obtained
signatures to authorization cards. The record does not
show that any company supervisor saw Nowling's husband
so engaged or, for that matter, knew him to be her
husband. On the night before Nowling's discharge a union
representative visited her at her home. Sometime after
Nowling's discharge she told her supervisor, Cecil
McDuffy, that she knew why she was fired, and he replied
"It wasn't altogether that." Nowling then said that if he
wanted to know anything about the Union to asked the
Sasser family, a reference which remained unconnected
throughout the record. Nowling herself participated in no
union activities.
Under these circumstances I find that General Counsel
has not sustained his burden of proof as to Nowling's
discharge. Her union activity was miniscule and there is
meager evidence of company knowledge of her support of
the Union." The strongest and strangest point in the
matter is the cryptic exchange between Nowling and
McDuffy after her discharge. He admitted on the witness
stand that he told her on this occasion "it wasn't altogether
that," but claimed that he was referring to some
absenteeism the preceding October as the other factor in
addition to the bad work on March 8. This explanation is
all but incredible, and gives rise to a suspicion that both
McDuffy and Nowling were talking about her union
membership as the factor in addition to the allegedly poor
work, but on so cryptic a record, it remains a suspicion and
gives no basis for a finding. The case as to Nowling must
therefore be dismissed.
C. Other Interference, Restraint, and Coercion
As noted above, the record leaves no room for doubt that
the Company had a deep and abiding hostility to the
Union's efforts to organize the plant. Hostility to
organization is not of itself an unfair labor practice, and
the statute expressly permits employers to state their
views, arguments, and opinions, providing they refrain
from threats or promises. Thus the fact that Personnel
Director Reeder was making antiunion statements at the
weekly meetings, even before he knew of the attempt to
organize and even if the subject was not germane to
matters discussed at the meetings,14 establishes no
violation of Section 8(a)(1). On the other hand, the
discrimination against several employees because of their
union activity constitutes unlawful interference, restraint,
and coercion, and indeed warrants the issuance of an
order interdicting any future violations of Section 8(a)(1)
and (3). N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 536
(C.A. 4). The specific additional violations of Section
8(a)(1) found below are therefore cumulative. Conversely
the findings that in certain respects the Company has not
violated Section 8(a)(1) establish only a failure of proof on
this record, so that if in the future the Company should (for
example) grant a wage increase to discourage unionism the
conduct would violate the order against interference,
restraint, and coercion.
General Counsel alleged in his complaint over 30 acts of
interference by named supervisors as well as
discriminatory application of a no-solicitation rule and the
granting of benefits to induce employees to refrain from
union activity. With respect to some of these allegations,
however, General Counsel offered no evidence. I discuss
below only those matters as to which General Counsel
claims, and I find, some semblance of support.
The complaint alleges several acts of unlawful
interrogation by Plant Manager Martin. On September 3,
when 10 employees led by Grace Eldridge went to Martin's
office to advise him they had signed union cards, Martin
"said okay" and then "began to ask what the Union could
give [them] that the Company had not already granted."
Under all the circumstances, I do not regard this inquiry as
other than a normal response to a discussion the
employees themselves initiated. On October 4 Mary
McGowin and another employee went to Martin's office to
enlist his assistance in curtailing the activities of one Dolly
Daughtry, an employee who McGowin said had been
harassing her about McGowin's support of the Union. On
this occasion Martin asked McGowin why she felt about
the Union as she did, why she wanted the Union, and what
she expected to get from it. Although this episode falls
closer to the prohibited line in that Martin opened the
issue sua sponte, as it were, 'such "interrogation" of an
avowed union supporter from management which had
made no secret of its hostility to the Union does not in my
judgment rise to the level of "interference, restraint and
coercion" but is merely the prelude to a legitimate airing
of views, arguments, or opinions.
I find the scales tip the other way, however, with respect
19 Five months before Nowling 's discharge one Faubie Tyler, a
rank-and-file employee, mentioned to George Lindenmuth, while
he was talking to Barbara Shirah, that "the pocket setters, nearly
all of the collar closers, and Mary Clyde Free and Annie Faye
Nowling were all for the Union " Lindenmuth had a high regard
for the accuracy of Tyler's information , for he told Shirah that
Tyler "could pick out who was for the Union Just the same as she
could pick out who was pregnant when they walked in . she
never misses " But this is too remote in time from Nowling's
discharge to shed appreciable light thereon.
14 Reeder's hostility to unions is reminiscent of the elder Cato,
who we are told concluded every speech with the phrase
"Carthage must be destroyed ," no matter how irrevelant it was to
the remainder of his discourse
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the third episode involving Martin, his conversation with
Barbara Shirah on October 20. Shirah, who had signed a
union card on October 7, told her supervisor, McDuffy, and
his superior, Lindenmuth, of this fact on the morning of
October 20. That afternoon Plant Manager Martin came to
her while she was at work, leaned over her worktable, and
said, "I just want to ask you one question: Why?" Shirah
inquired, "Why what?" to which he replied, "Why did you
do it?" Again Shirah inquired, "Do what?" and Martin
answered: "Sign that card." Even if this episode stood
alone, I should consider it an infringement of Shirah's
right to be free of interference in her union activity. It
differs from the other episodes involving Martin in that
here he initiated the discussion and the tenor of his inquiry
was one of hostility rather than of a mere seeker of
information for purposes of legitimate discussion. In any
event, the episode did not stand alone. On the same day,
Reeder gave Shirah a written warning that she would be
discharged for union soliciting during working hours (an
offense she denied having committed), and McDuffy came
to her and said he was "hurt" that she signed a card for a
union run by crooks, hoodlums, and drunks. Lmdenmuth
the following day asked her if she slept well at night,
adding: "I don't see how, telling us one thing and do
another," a reference to her having earlier told
management she had not signed with the Union. Thus
Martin's interrogation of Shirah, viewed from the
standpoint of the employee, was but one in a series of four
badgerings to which management subjected her within 24
hours after learning of her signing a union card. And the
coercive impact is not lessened by management's
awareness that at this time of the year the employees were
all concerned as to whether they would be affected by the
seasonal change to making short sleeves (see Snyder's
testimony anent Donaldson), or by the fact that Shirah,
who had returned from 'sick leave in July 1965, had
previously told both McDuffy and Martin that her nerves
were upset by the harassing tactics of antiunion
employees, who had been bothering her at work
concerning her alleged union activity and her husband's
union activity at another local company. Viewed in context
of the entire record, Martin's interrogation of Shirah was
coercive and violated the Act.
Five employees testified to conversations with Works
Manager Lindenmuth which, General Counsel alleges,
involved violations of the Act. One of these was Shirah,
and as just noted Lindenmuth's inquiry on October 21 as
to whether she slept well at night was part of a concerted
coercive attack upon her. Employee Patricia Harris
testified that in mid-September Lindenmuth approached
her at work and said he was surprised at her. Harris
"asked him what for, and he said because he had heard
that [she] was for the Union." Harris (in response to a
leading question directing her attention to union cards, a
question I permitted when her recollection appeared
exhausted) further testified as follows:
I asked him who told him, and he wouldn't tell me,
and I didn't tell him that I had already signed one, but
I told him I had one and he told me that if I would give
him the one I had that he would tell me who told him.
Lindenmuth admitted asking Harris whether she thought
the Union would benefit the Company, and testified that
she denied signing a card, and that he said no more to her.
Both Lindenmuth and Harris had left the Company at the
time of the hearing. While both may be disinterested
witnesses , I am inclined to credit Harris' detailed version,
and I regard her as the more likely to have a clear
recollection of the episode. The episode smacks of
"interference" although it does not fit the Board's pigeon
holes of "surveillance" and "interrogation." Lindenmuth
had no "business"-no provocation or legitimate
occasion-for engaging Harris in a discussion about her
union membership. Employees have the right to be left
alone in these matters, limited only to management 's right
to express views, arguments , or opinions . Lindenmuth on
this occasion was not engaging in such permitted activity
but in petty harassment, a violation of the Act.
On the other hand, I find no violation of the Act in
Lindenmuth's "interrogation" of employee Myra Phillips
on September 24. On this occasion Phillips called
Lindenmuth to her machine and informed him of her union
membership. Lindenmuth responded with a series of
arguments against organization , and the debate continued
in a friendly vein for several minutes. Phillips initiated the
matter and in effect invited the discussion, so that my
ruling here is similar to that involving Martin and the
deputation in his office. Lmdenmuth on this occasion also
asked Minnie Lou Parrish her reasons for signing a union
card. Parrish, however, had been brought into the
conversation by Phillips, and had made her support of the
Union known to the Company several weeks before.
Lindenmuth's conversation with her, after his opening
question, was likewise confined to views, arguments, and
opinions.
In November Lindenmuth asked employee Daisy Tate
whether she had signed a union card, and on her
affirmative reply, asked if she wanted to withdraw it. On
another occasion Lindenmuth asked Tate if she had any
questions about the Union and in response to her reply
that she did not understand it and knew nothing about it,
Lindenmuth asked her if she wanted to walk picket lines,
and pointed out that in contrast to the situation at a nearby
organized plant, "we give y'all a raise and we promise you
in the next two years another raise." The first of these
conversations appears violative of the Act, because the
employer, uninvited, invaded the employee's privacy in
union matters to inquire into her membership and to
suggest she relinquish it. Lindenmuth's observation anent
the pay raise, however, merely reminded Tate of an
announcement as to future raises which the Company had
made the preceding June before it was aware of any union
campaign. An employer may without violating the Act
accurately call to an employee's attention benefits already
existing or previously announced.
Finally, with respect to Lindenmuth, it was he who, as
noted above , asked Driggers in an interview at the time of
her layoff why she was working for the Union so hard, and
at the same time commented with respect to another
dischargee that he did not know why she was being fired
as she was not for the Union. I have previously found (with
considerable misgivings ) that the layoff of Driggers was
not an unfair labor practice. But for Lindenmuth to make
these statements at such a time could only give rise to a
belief by the employee that union activities were
considered in determining whom to discharge. I therefore
find a further violation of Section 8(a)(1) in Lindenmuth's
statements on this occasion.
Turning to Personnel Director Cecil Reeder, as already
noted, he issued warning notices to several employees that
they had been soliciting for the Union on company time
and would be discharged if the offense were repeated. The
sole competent testimony in the record with respect to at
least three of these employees, Driggers, Parrish, and
Phillips, is that they had not committed the infraction with
PHILLIPS-VAN HEUSEN CORP. 11
which they were charged. Under the reasoning of N.L.R.B.
v. Burnup and Sims, 379 U.S. 21, taking adverse action
against an employee (whether by discharge as in the case
or by placing a warning notice in her file as in this) violates
Section 8(a)(1) if the action is founded on a belief that the
employee has engaged in unprotected activity, the belief
arises out of the employee's adherence to the Union, and
the proof affirmatively establishes that the employee did
not engage in the unprotected activity.
Reeder also violated Section 8(a)(1) when he urged
Driggers to stop working for the Union, and to get her card
back. Other allegations with respect to Reeder concern his
antiunion statements at his weekly meetings, but in
general I find his comments there to fall within the
protected area of views, arguments, and opinions.
Cecil McDuffy admitted that on one occasion in August
he approached Mary McGowin at her machine, told her
that he had heard that she and her husband, who was
likewise employed at the Company, were supporters of the
Union, and asked if this was true. She answered falsely
that they were not for the Union and the next day went to
him to tell him the truth about her support of the Union.
McDuffy replied that that was her privilege. On another
occasion McDuffy told McGowin to stop giving out union
cards during working hours. McGowin denied the offense,
and McDuffy said he had witnesses to prove it. McGowin
asked to confront the witnesses, whereupon McDuffy went
to another employee, asked her if McGowin had been
giving out cards, and on receiving a negative answer
apparently let the matter drop. McDuffy also admitted
"jokingly" telling employee Ola Mae Teate on one
occasion that she could "still get her union card back."
The point of jest eludes me, as McDuffy by his own
testimony was not at the time engaged in any union
discussion with anyone. Daisy Tate, an employee who was
in layoff status at the time of the hearing, testified that
McDuffy on one occasion pressed her for a decision as to
whether she was withdrawing from the Union; McDuffy
denied this testimony, but on the whole record, including
fate's disinterest (and indeed her position as a laid-off,
employee might well make her eager not to antagonize
management) and McDuffy's admitted comment to Teate
some months before, I am inclined to credit Tate.
Other allegations of interference are likewise leveled at
McDuffy, but are denied in his testimony. I see no need to
extend this lengthy decision by resolving those credibility
issues. I find that McDuffy's harassing of McGowin and
Tate interfered with their Section 7 rights and, as noted
above, I have also found other violations of Section 8(a)(1)
in acts of discrimination and other interference, restraint,
and coercion. Further findings as to McDuffy's conduct
would add nothing to the order recommended below. The
same comment holds for the violations attributed to
Supervisor Orson Pridgen and denied by him. Crediting
the employees' version against that of Pridgen would add
nothing to the order, and I therefore find it unnecessary to
discuss the statements attributed to him or his denials
thereof.
Turning finally to Supervisor Ed Snyder, the testimony
of former employee Mildred Adams is that in the course of
interviewing her for employment Snyder asked her if she
was working for the Union and (following her reply in the
negative) what she thought about the Union. She told him
she did not know what to think of it, whereupon Snyder
advanced various reasons for opposing the Union. Snyder,
admitting the latter part of the conversation, denied asking
the specific questions as to whether Adams was working
for the Union and what she thought of it. He further
testified that it was "evident" to him that Adams was not
for the Union or working for the Union. His testimony
continued:
Well, you talk to a girl and explain to her the way the
company feels about the union and the position the
company takes with the union , and the girl is down
there for one reason, to get a job. Nine times out of ten
she will say, well, I am not for the union . You can
usually tell by the forcefulness of their tones what
they mean.
I credit Adams version of her interview with Snyder. The
latter's own testimony, it seems to me, contains within
itself the strongest reason for forbidding interrogation into
union affiliation at the time of hiring, a peculiarly sensitive
moment when the employee is particularly sensitive to
pressure. See N.L.R.B. v. National Plastic Products
Company, 175 F.2d 755, 760 (C.A. 4), and contrast the
same court's holding as to "casual" interrogation in
N.L.R.B. v. Hande & Dauch Paper Company, 171 F.2d 240.
I therefore find that Snyder's admitted practice of
ascertaining in employment interviews the pro- or anti-
union views of the applicant violates Section 8(a)(1) of the
Act.
In addition to the violations of Section 8(a)(1) by
individual supervisors, and the "derivative" violation of
that section arising out of the discriminatory discharges of
failures to recall, General Counsel alleges that the
Company violated that section by granting wage increases
and other benefits to induce employees to abandon the
Union, and that it applied its no-solicitation rule in
discriminatory fashion The wage and other benefits
applied to nine other plants in the South in addition to the
one here involved, and the decision to effectuate these
areawide benefits was made at company headquarters in
Pennsylvania. There is no suggestion in the record that
union campaigns were underway in the other southern
plants. Under all the circumstances I find that the granting
of these benefits was unrelated to union activity. To be
sure, the supervisors at this plant used the fact of these
increases in campaigning against the Union, but this falls
under the heading of views, arguments, and opinions as a
reference to benefits already existing or announced is not
a proscribed "promise of benefit."
General Counsel admits in his brief that the no-
solicitation rule, prohibiting solicitation on company time,
"is valid in form," but contends that "it was adopted for a
discriminatory purpose and enforced in a discriminatory
way." The record is not clear as to when the rule was
adopted, although a special announcement indicating its
applicability to union solicitation was posted on a plant
bulleting board in September. Under the circumstances, I
cannot find that the basic rule was adopted for a
discriminatory purpose. Also, although there is evidence
that employees circulated antiunion petitions and made
private collections on company time, the record is devoid
of evidence that the Company was aware of these
infractions of its rule, at the time they occurred. In one
respect, however, I find the claim of discriminatory
application fully sustained. As noted above, the Company
issued warnings to several prounion employees for alleged
violations of this rule. Indeed, the notice posted in
September expressly recited:
WHOEVER IS CAUSED TROUBLE IN THE PLANT, OR PUT
UNDER PRESSURE TO JOIN THE UNION SHOULD LET
THE COMPANY KNOW, AND WE WILL SEE TO IT THAT
THIS IS STOPPED.
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NO PERSON WILL BE ALLOWED TO CARRY ON UNION
ORGANIZING ACTIVITIES OR ANY OTHER OUTSIDE
ACTIVITIES IN THE PLANT DURING HIS WORKING
HOURS. ANYBODY WHO DOES SO AND THEREBY
INTERFERES WITH HIS OWN WORK OR THE WORK OF
OTHERS WILL BE DISCHARGED.
Implementing this policy, Personnel Director Reeder was
ready to credit complaining employees and to discredit the
denials of those accused, and was careful to obtain written
accusations from the nonunion complainants. But when
prounion employees complained of being harassed on the
subject by employees who shared the Company's hostility
to the Union, the record is clear that the Company's
approach was that it could not control the tongues of its
employees, and that the victims in those cases should just
ignore their tormentors. This palpable difference in the
Company's response to employee complaints of being
bothered while at work establishes a discriminatory
application of the no-solicitation rule, in violation of
Section 8(a)(1).
CONCLUSIONS OF LAW
1. By discriminatorily laying off Grace Eldridge on
September 7, 1965, and by discriminatorily delaying the
1966 recalls of Mary McGowin, Minnie Lou Parrish, Sebie
Lee Hughes, and Loreen Shiver because of their support
of the Union, the Company 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.
2. By coercively interrogating employees with respect
to their union membership, by soliciting them to withdraw
from the Union, by implying that union membership was a
factor in determining whether to discharge an employee,
by issuing warnings and threats of discharge based on a
mistaken belief that an employee had solicited for the
Union on company time, and by discriminatory application
of its no-solicitation rule, the Company engaged in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(1) and Section 2(6) and (7) of the Act.
THE REMEDY
I shall recommend the customary cease-and-desist
order for violations of this magnitude, and the customary
order directing that the discriminatees be offered
reinstatement and backpay, the latter to be computed
under the formulas approved in F.W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating
Co., 138 NLRB 716. As already noted, backpay for
McGowin, Hughes, Parrish, and Shiver will start to run on
the date they would have been offered recall but for their
union activity, not from the date of separation. I shall
further direct that the warning notices issued by Reeder to
Driggers, Parrish, and Phillips be expunged. There is no
direct testimony before me that Shirah and Hughes were
innocent of the offense charged, and under Rubin Bros.
Footwear, Inc., 99 NLRB 610, 611, the burden of proof of
their innocence rested on General Counsel. See N.L.R.B.
v. Plastic Applicators, Inc., 369 F.2d 495 (C.A. 5); N.L.R.B.
v. Laney & Duke Storage Warehouse Co., 369 F.2d 859
(C.A. 5). Finally, I shall direct the posting of the usual
15 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board's Order is enforced by
notice, but upon my observation of the witnesses, and
because of the fact that the notice may be posted pursuant
to my recommendation , I shall not include therein the
"Armed Forces" references . For further explication as to
this, see B.Y.D. Company, 157 NLRB 978, TXD,
footnote 6.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in this case, I recommend,
pursuant to Section 10(c) of the Act, issuance of the
following:
ORDER
Respondent, Phillips-Van Heusen Corporation, its
officers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee because of membership or activity in
Amalgamated Clothing Workers of America, AFL-CIO, or
any other labor organization.
(b) Coercively interrogating employees as to their union
activity, soliciting them to withdraw from the Union,
implying that union membership is a factor which can
affect an employee's tenure, issuing warnings of discharge
to employees based on false charges of soliciting for union
membership during company time, discriminatorily
applying a no-solicitation rule, or in any other manner
interfering with, restraining, or coercing any employee in
the exercise of his right to join or assist a labor
organization.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to reinstate Grace Eldndge and Mary
McGowin to their former or substantially equivalent
positions , without prejudice to their seniority or other
rights and privileges, and make them and Minnie Lou
Parrish, Sebie Lee Hughes, and Loreen Shiver whole in
the manner described in the portion of the Trial
Examiner 's Decision entitled "The Remedy" for any loss
of earnings suffered by reason of the discrimination
against them.
(b) Notify Grace Eldridge and Mary McGowin if they
are serving in the Armed Forces of the United States of
their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(c) Remove from the personnel files of Joyce Driggers,
Myra Phillips, and Minnie Lou Parrish, the warning
notices given them on October 14, 1965.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(e) Post at its plant at Geneva, Alabama, copies of the
attached notice marked "Appendix."15 Copies of said
notice, to be furnished by the Regional Director for
Region 15, after being duly signed by an authorized
representative, 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
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
PHILLIPS-VAN HEUSEN CORP.
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 15, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.16
16 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL offer Grace Eldridge and Mary McGowin
their former jobs and pay them and Minnie Lou
Parrish, Sebie Lee Hughes, and Loreen Shiver for
wages they lost as a result of their discharges or
delayed recalls from layoff.
All our employees have the right to join or assist
13
Amalgamated Clothing Workers of America,
AFL-CIO, or any other union . They also have the
right not to join or assist any union.
WE WILL NOT take or threaten to take any action
against them for engaging in union activity, coercively
question them as to their union activity, ask them to
withdraw from a union , imply that union membership
is a factor which can affect an employee's tenure of
employment, threaten them with discharge because
of false reports that they have violated our rule
against solicitation on company time, discriminatorily
enforce that rule, or in any other manner interfere
with, restrain , or coerce them in the exercise of their
rights under the Act.
Dated By
PHILLIPS-VAN HEUSEN
CORPORATION
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, T6024 Federal
Building (Loyola), 701 Loyola Avenue, New Orleans,
Louisiana 70113, Telephone 527-6391.