Rockingham Sleepwear, Inc.

National Labor Relations Board - Board Decisions

Jun 11, 1971

191 N.L.R.B. 69 (N.L.R.B. 1971)

ROCKINGHAM SLEEPWEAR, INC. 69
Rockingham Sleepwear , Inc. and International Ladies'
Garment Workers Union , Upper South Department.
Case 5-CA-4682
June 11, 1971
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
On February 17, 1971, Trial Examiner Wellington
A. Gillis issued his Decision in the above-entitled pro-
ceeding, 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 at-
tached Trial Examiner's Decision. He further found
that Respondent had not engaged in certain other un-
fair labor practices alleged in the complaint and recom-
mended that such allegations be dismissed. Thereafter,
the Respondent filed exceptions to the Decision and a
supporting brief and the Charging Party filed a memo-
randum in support of the Trial Examiner's Decision
and recommended Order.
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 powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the
entire record in the case,' and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WELLINGTON A. GILLIS, Trial Examiner: This case was
tried before me at Charlottesville, Virginia, and is based upon
a charge filed on March 6, 1970, by International Ladies'
Garment Workers Union, Upper South Department, here-
inafter referred to as the Union; upon the complaint, issued
on May 28, 1970, by the General Counsel for the National
Labor Relations Board, hereinafter referred to as the Board,
against Rockingham Sleepwear, Inc., hereinafter referred to
as the Respondent or the Company, alleging violations of
Section 8(a)(1) and (3) and Section 2(6) and (7) of the Na-
tional Labor Relations Act, as amended (61 Stat. 136), and
upon an answer timely filed by the Respondent denying the
commission of any unfair labor practices.
At the hearing, all parties were represented by counsel, and
were afforded full opportunity to examine and cross-examine
witnesses, to introduce evidence pertinent to the issues, and
to engage in oral argument. Subsequent to the close of the
hearing, timely briefs were filed by counsel for all parties.
Upon the entire record in this case, and from my observa-
tion of the witnesses, and their demeanor on the witness
stand, and upon substantial, reliable evidence "considered
along with the consistency and inherent probability of tes-
timony" (Universal Camera Corp. v. N.L.R.B., 340 U.S. 474,
496), I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Virginia corporation with its principal
office located in Elkton, Virginia, and a plant located at Min-
eral, Virginia, where it is engaged in the manufacture, sale,
and distribution of womens' pajamas, dresses, sportswear,
and related wearing apparel. During the 12-month period
immediately preceding the issuance of the complaint, the
Respondent purchased and received materials and supplies
from points outside the Commonwealth of Virginia valued in
excess of $50,000, and, during the same period, Respondent
shipped to points outside the Commonwealth of Virginia,
finished products valued in excess of $50,000. The parties
admit, and I find, that the Respondent is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
International Ladies' Garment Workers Union, Upper
South Department, is a labor organization within the mean-
ing of Section 2(5) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the Re-
spondent, Rockingham Sleepwear, Inc., Mineral, Vir-
ginia, its officers, agents successors, and assigns, shall
take the action set forth in the Trial Examiner's recom-
mended Order.
' The Respondent's motion requesting oral argument is denied as the
record, including the exceptions and briefs, adequately presents the issues
and positions of the parties
III. THE ALLEGED UNFAIR LABOR PRACTICES
Issues
1. Whether, on specified dates in February, March, and
April 1970, certain of the Respondent's supervisors threat-
ened and interrogated employees in violation of Section
8(a)(1) of the Act.'
2. Whether, in discharging employee Lucy Jones on Febru-
ary 14, 1970, the Respondent did so because of her union
activities in violation of Section 8(a)(3) of the Act.
' The complaint alleged certain conduct on the part of one John Johnson
constituted unlawful interrogation violative of Section 8(a)(1) of the Act
During the course of the hearing, after certain testimony had been elicited
concerning the supervisory status, or lack thereof, of Johnson, the General
Counsel agreed, and the Trial Examiner so ruled, that paragraph VI (b) I
of the complaint attributing unlawful conduct to Johnson, and any tes-
timony relating thereto, be struck.
191 NLRB No. 18
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Facts
Alleged 8(a)(1) Violations
The Union, under the campaign leadership of its organizer
Harold Burkholder, first initiated an organizing drive of the
Respondent's Mineral, Virginia, plant in May 1969, where
the Respondent employed some 125 employees. It was
aborted after a 2-week period and not reactivated until the
latter part of January 1970.2
Lucy Jones, the sole alleged discriminatee herein, testified
that a few weeks before her discharge on February 14x3 while
on her 10 a.m. break outside the plant, she stopped and talked
for 2 or 3 minutes with supervisor Ruby Wood. During the
conversation which included no reference to the Union,
Wood asked Jones "had anyone been to see you yet?" A
negative reply by Jones ended the conversation. Contrary to
the testimony of Jones, who on direct examination volun-
tarily testified that the word "union" was not used by Wood
and later, when questioned on it, emphasized that such was
the case, employee Mary Ann Butler testified that she heard
Wood ask Jones if she had been visited by the Union. Wood
did not recall talking with Jones on this occasion. Because
Butler's testimony also varied from that of Jones as to the
place where this supposedly occurred, and also, because I
found Butler's demeanor on the witness stand to be less than
candid, I do not credit her testimony on this point. Further-
more, in the absence of any indication, either circumstantial
or otherwise, that Wood was referring to the Union on this
occasion, I find without merit that the General Counsel's
assertion that this inquiry constitutes unlawful interrogation
violative of Section 8(a)(1) of the Act.
One morning, during the first week of March, John Add-
ington , plant manager for the Respondent, delivered a short
2-or 3-minute speech over the plant intercom, during which,
according to employee James Brooks, Addington stated that
he understood that a union was trying to get in and that he
wanted to state the position of the Company. He then said
that "the Company had lost $70,000 last year and they were
already paying the pay scale and that the Company would
definitely shut down if the Union came in." Addington added
that "he felt that we had a pretty good Company to work
with. That we did not need a union in his opinion and anyone
that wasn't satisfied should quit and leave right then."
Employee Vivian Vause, who admitted not hearing every-
thing on this occasion because the intercom "messes up" and
"you end up asking someone what the rest of it was," testified
that Addington stated that "he wanted to make it clear, if we
brought the Union in, that they'd close the factory. And that
if he found out who was responsible , it was their job." Mary
Ann Butler, when questioned on this, testified that she heard
everything and that Addington said that he knew that the
Union had been around talking to the girls "and that the girls
could sign the union cards if they wished to, but, if the Union
came in the doors of Rockingham would be closed." Con-
trary to Vause, Butler testified that she did not hear Adding-
ton say anything about discharging anyone responsible for
the union. Butler did corroborate Brooks to the effect that
Addington stated that "if the Union came in, the Company
would have to close ... that we could not operate under
union scales."
Supervisor Wood and David Addington, assistant plant
manager , both testified to the effect that on this occasion,
Addington told the employees that, while not speaking for
i Unless otherwise noted, all dates refer to the year 1970.
3 Jones first testified this occurred 2 weeks before her discharge, and later
testified that it occurred 2 weeks before she started work on Lady Manhat-
tan shirts, which would place it 4 weeks before she was discharged.
Rockingham, in his personal opinion, if the Union came in,
the plant would close and, therefore, nobody would have jobs.
Furthermore, Addington stated that the employees could
sign union cards if they wanted to, that he would not fire them
for signing cards.
For some reason, known only to the Respondent, Adding-
ton was not questioned on this speech, and, accordingly, the
first-hand account of the person to whom the coercive re-
marks are attributed is lacking. Notwithstanding a weak at-
tempt to tie in the threat of closing with an economic justifica-
tion for doing so, coupled with an affirmative stand that
employees would not be fired for signing union cards, the fact
remains that employees throughout the plant were informed
by their plant manager that the Company would definitely
shut down if the Union came in and nobody would have jobs.
This constitutes a threat within the proscription of Section
8(a)(1) of the Act, and I so find.
While having not the slightest idea in what month it took
place, Brooks testified that sometime during the spring of
1970, in the course of a general conversation, Wood told him
that the day before Mr. Hendrick, Respondent's president,
made a statement that he would not sign the union contract,
that the Company would shut down. In view of Brooks'
extreme uncertainty as to when incidents occurred, including
this one, and Wood's credited denial that she at any time in
her discussions with Brooks talked about the plant closing
down, I find that it did not occur and therefor does not
support the April 16 complaint allegation.
Brooks testified that in May, John Addington told him that
"just about everyone that had already signed union cards and
that they would bring them back to the Company and tell
them about it and that the Union would bring these cards
back and they could be used against the person that signed
it." Addington emphatically denied having made this state-
ment to Brooks. Addington testified that, on two similar
occasions, however, in March and April, Brooks told him
that the Union ought to be run out of town, that the girls
would be crazy to sign union cards, to which Addington
replied that there was nothing he (Brooks) can do if they sign
cards, just forget about it.
Brooks also testified to a conversation in February with
employee Wayne Marshall and David Addington while the
three were walking down an aisle at the plant. Brooks testified
that at some point David Addington stated that he did not
think "we were going to have any problems with the Union,
there wasn't too many women in the factory that was for the
Union." When Brooks allegedly disputed Addington's state-
ment, the latter stated that it did not make nay difference,
that Hendrick would never sign a union contract ... that the
building would be closed, but, that the doors would be left
open for someone to work ... that didn't want to join the
Union, go along with the Union." While Wayne Marshall
was not called to testify in this proceeding, David Addington
denied that he made any such statement at any time to
Brooks concerning closing the plant rather than dealing with
the Union.
Brooks, who had been discharged by the Company and
subsequently rehired and whose wife had also been dis-
charged by the Company in 1969, was most unimpressive in
recalling even approximate dates, if not outright evasive, as
to his alleged union conversations with company manage-
ment. He admitted on cross-examination that, with reference
to the several union conversations he had with people in the
Company, most of them occurred within 2 or 3 months of the
hearing, which is subsequent to any complaint allegations.
Brooks further admitted that such union conversations as
took place always were casual and an outgrowth of general
conversations. While undoubtedly the subject of the Union
ROCKINGHAM SLEEPWEAR, INC.
came up on one or more conversations during this period, in
view of the credited denials by Wood and the two Adding-
tons, I find Brooks' version not to be accurate, and accord-
ingly, that his testimony does not support any of the 8(a)(1)
allegations of the complaint.
Former employee, Mary Ann Butler, while not stating
where or who were present, also testified that around the first
of March, Addington stated that "the girls could sign the
cards if they wanted to, that they knew they had a job there,
but, if the Union came in, it would be closed." Notwithstand-
ing Butler's lack of candor generally, as her testimony in this
regard stands unrefuted and substantiates that which Add-
ington expressed over the plant intercom about this same
time, I find such remark by Addington to constitute a threat
to close the plant if the Union came in, and, therefore, viola-
tive of Section 8(a)(1).
The Discharge of Lucy Jones
Lucy Jones, the sole alleged discriminatee in this proceed-
ing, was first employed by the Respondent in June 1966 and
continued in the Respondent's employ until her discharge on
February 14, 1970. Until approximately 2 weeks before her
discharge, Jones had worked at a variety of jobs, most re-
cently as a utility girl, performing various sewing functions
as needed in several different sections under any one of three
supervisors. Thus, when working in the tree coat section
under John Johnson, Jones tacked loops and collars on flan-
nel pajamas . When working for supervisor Frances Nelson,
Jones did back seams and seam stitches on pajama pants.
And, when working for supervisor Ruby Ebbs, Jones' job
involved buttonholes, buttons, bows, and ruffles on cotton
pajama tops. However, most of her employment with the
Respondent was spent working on buttons and buttonholes.
On or about January 31, at a time when work was slack in
the pajama section where she working as a utility girl, Add-
ington transferred Jones to Supervisor Ruby Wood's blouse
department where she was assigned the job of putting buttons
on cuffs of Lady Manhattan blouses. At this time, Addington
told Jones, who had been earning about $14 a day, that, as
she was an experienced button girl, she should make $75 a
week or more. Jones was the only girl responsible for putting
buttons on cuffs of Lady Manhattan blouses, and worked on
the 7 a.m. to 4 p.m. shift, Monday through Friday, and 4
hours on Saturday. For the 2 weeks in February that she
worked Jones was paid according to the number of shirts she
did, and received two paychecks of $80.80 before withhold-
ing.
Toward the end of this 2-week period, specifically on
Wednesday evening, February 11, Lucy Jones signed a union
card while being visited at her home by union organizer
Burkholder. At the same time, Jones accepted half a dozen
union cards to distribute among the girls at work. The follow-
ing day, Thursday, Jones approached employee Lola Timber-
lake in the ladies restroom during the 2:30 p.m. break and
asked her to sign a card. With no one else present, Jones asked
Timberlake what she thought about the Union and was told
by Timberlake that she did not know, that no one had been
around to visit her.
During the day on Thursday, Margaret Seay, one of the
employees in the blouse department, had talked to some of
the girls complaining about some union men following her
home the night before, and scaring her by remaining outside
her home. While returning to their machines following the
same 2:30 p.m. break, Jones, who had heard Seay's story and
not believe it, went out of her way to stop by Seay's machine
after the bell had rung. Jones touched Seay on the shoulder
and asked her what she was raising so much hell about. When
Seay asked Jones how she would like it if men followed her
71
home and scared her, Jones accused Seay of telling a "g-d-
lie." Seay denied it, saying that they had followed her home.
She told Jones she would prove it to her (which she did later
that evening). Jones then went on to her machine.4
About quitting time on Thursday, according to Addington,
Seay reported the incident to him, telling him that she and
Jones had had an argument over whether some union men
were at her house the night before, and that Jones had called
her a liar for stating that they had been there.'
On Friday, another incident occurred involving Jones and
her supervisor, Ruby Wood. Around 11:45 a.m., Wood
passed Jones' machine on her way to the shipping depart-
ment, and, when at a point some 20 feet away, Jones yelled,
in a real loud voice, "Hey, Ruby Wood." Supervisor Wood
stopped, and Jones called her again in similar fashion. Wood
looked back and continued on walking.'
It is difficult to construct the sequence of what actually
occurred Saturday morning, February 14, because of partly
conflicting testimony by the two Addingtons, Ruby Wood,
and Lucy Jones. It appears, however, that on this morning,
assistant plant manager David Addington arrived at the plant
around 7:15 a.m. and immediately went to the pressing de-
partment. Around 8 a.m., he noticed a number of Lady Man-
hattan shirts hanging on the line prior to shipment with cuff
buttons out of alignment. During the next half hour, out of
some 20 dozen he inspected, he found '7 or 8 dozen that were
faulty. He put the bad shirts on a rack and rolled them over
to the button department, where he had a girl start to remove
the buttons and reset them.
John Addington's version of the sequence of events, con-
structed primarily on cross-examination, is that upon arriv-
ing at the plant sometime after 7 a.m., Ruby Wood "told me
that Lucy had got out of hand and yelled at her."' Later,
between 8 and 9 a.m., the younger Addington approached
him and, showing him one or two blouses, told him that
"we've got some bad buttons and we was [sic] behind." When
Addington expressed his-hope that it was just a few, his son
told him that he made a random check and that "about all
of them have to be gone over, that there were numerous
dozens of them." Addington then went down to the shipping
department to see for himself' After checking "several of
them back on the rack" for 10 or 15 minutes, Addington went
back to the office, determined from the records that the work
involved was the work of the week February 9 through 14,
and that Jones was the operator responsible. He then talked
with Wood on the floor, telling her that he "probably" was
going to have to fire Jones because of her bad work "and all
her other incidents." From there, Addington went to Jones'
machine, around 9 a.m., and, giving her no reasons, told her
that he "had to let her go" and to come to the office.
Jones testified that when she went to work at 7 a.m. that
morning she told Addington she wanted to see him about her
check. Around 9:10 a.m., following break time, she men-
tioned this again and Addington said he would see her. A few
minutes later, about 9:20 a.m., Addington stopped by Jones'
machine, and, after a short discussion concerning an apparent
To the extent that Jones' version of this differs from the above recita-
tion, which is based upon the credited testimony of employee Brenda Bar-
low, who witnessed it, it is not credited.
Seay was not called upon to testify in this proceeding
Wood was not questioned on this incident. The above account is taken
from the testimony of an employee witness, Doris Wright. Jones' testimony
is consistent with Wright's version, except that she estimated Wood to have
been some 50 feet away at the time.
' Addington testified this was all that was told him, and that he did not
ask for any details Oddly, Wood made no mention in her testimony of
reporting the yelling incident to Addington at any time.
8 Addington first testified that he went directly to Jones' machine.
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
misunderstanding concerning her weekly check , Addington
told her he was going to have to let her go because of "dis-
turbances in the plant ." Addington left and went to another
machine where Jones asked him if that meant that she were
fired. Addington replied in the affirmative and requested that
she come to his office . With that, Jones went back to her
machine, picked up her tools, and went to Addington 's office.
A few minutes later , in the office , according to Addington,
he told Jones that he had given her a final warning several
weeks before, that she had broken the rules three times that
week, and that he had to let her go. In giving Jones her check,
Addington , according to his testimony , said "I don't know
whether you are union or nonunion . I don 't care. I have to
let you go." According to Jones, Addington commenced by
telling her that he had warned her before about causing dis-
turbances in the plant and then accused her of hollering at
Supervisor Wood and creating the incident with Margaret
Seay. Notwithstanding Jones' protestation that she had done
nothing wrong, Addington told her that he was going to have
to let her go. Addington then said , according to Jones, that
he did not know whether she were for the Union or not, that
it did not make any difference to him , and, handing Jones her
check , added that he wished her luck.
Only the testimony of Wood and Mary Ann Butler, both
of whom were present on this occasion, reveals that Adding-
ton said anything specifically about bad work . Wood, cor-
roborated by Butler , testified that Addington told Jones "that
he would have to let her go on account of the bad work and
disturbances on the floor and for hollering at me."
Following Jones' discharge, in addition to the 7 or 8 dozen
blouses that had been found to be faulty early that morning,
100 of the 190 dozen in the lot involved were returned to be
reworked . This entailed 3 days' work for several people.'
Conclusion
The General Counsel asserts that the Respondent dis-
charged Lucy Jones on February 14 for discriminatory rea-
sons relating to union activity. The Respondent contends that
she was terminated for cursing Margaret Seay, for yelling at
Ruby Wood , and because of her bad work.
Before treating the crucial issue raised by the pleadings, it
is necessary to dispose of two preliminary matters, the first
a prerequisite to a finding in favor of the General Counsel,
and the second, an important assertion relied upon by the
Respondent 's defense.
Contrary to the position taken by the Respondent, the
General Counsel asserts that Addington had knowledge of
Jones' union sentiments at the time of effectuating her dis-
charge. I find the record to support the General Counsel. I
do so, first because of the uncontroverted fact that the Thurs-
day evening before, Margaret Seay reported the argument
about the union men to Addington , apprising him of the fact
that it had stemmed from Jones ' stand that the union men
were not at Seay's house.10 Secondly , I rely upon Addington's
admission that Lola Timberlake had told him about Jones'
approaching her. While it is true that Addington did not
directly mention the Union in this regard , the fact that his
answer was in reply to counsel 's question concerning his
knowledge of Jones' union activity , coupled with the fact that
Jones had in fact approached Timberlake concerning her
signing a union card , compels the inference that such was the
, David Addington testified that five employees worked on the faulty
cuffs, whereas , supervisor Wood testified that only three employees re-
worked the cuffs
30 Addington also admitted that Seay subsequently informed him that she
had checked with the Union and found that she, rather than Jones , had been
correct as to the "union-following" incident
gist of her report to Addington . Thirdly, unanswered is the
question of why , out of a blue sky with no apparent reason
therefor, Addington , in his terminating remarks to Jones,
made known his ostensible indifference to whether she were
union or not. The logical presumption is that Addington was
aware of the fact that Jones was interested in the Union and
that he was attempting to convince Jones that such activity
was not the basis for his decision to discharge."
Finally, when first asked by Respondent 's counsel on direct
examination if he knew whether Jones was in favor of any
union, Addington's evasive reply was "I didn't know what
Lucy 's problems were and didn 't didn't care. I never at any
time tried to find out what my operators do...... When
Respondent 's counsel immediately restated the same ques-
tion , Addington's unresponsive reply was "Well some girl
... Lola Timberlake came to me and said that she ap-
proached her and I said I didn 't want to hear anything about
it, about her trying to tell girls what to do or something like
that. I said I am not interested in what Lucy is doing or
anybody." Only on the third try, when again asked the same
crucial question concerning his knowledge of Jones' union
membership , did Addington finally give a 'direct negative
reply.
For these reasons, I am convinced and so find , that Add-
ington at the time of his decision to terminate Lucy Jones was
well aware that she was a union supporter and had in fact
solicited in support of the Union."
The second matter, one heavily relied upon by the Re-
spondent in in support of its decision to discharge Jones,
relates to the assertion that Jones had recently been given a
final warning about staying at her machine. In this regard
Addington testified that for 3 years he had been calling Jones
down for leaving her machine and talking with the girls
during work time. On one recent occasion ,' which Charlie
White placed during the summer of 1969 , Addington asked
White, a nonsupervisory lead production man, to talk to
Jones about leaving her machine . Addington further testified
that, sometime around the middle of January , having seen her
in the pajama section "standing over the machines talking to
the girls and laughing and carrying on" he told White that
he wanted him in his office and for him to bring Jones with
him. There , in the presence of White, according to Adding-
ton, he told her this was her final warning.
Jones denied Addington 's assertion of continued warnings,
and testified that Addington had talked to her only once,
about 2 months before her discharge, about'leaving her ma-
chine. She denied the January office warning by Addington
or that he gave her a final warning at any time. White on
direct examination corroborated Addington's testimony that
he was giving Jones one more chance "about this bad work
and not staying at the machine."" Also contrary to Adding-
ton's testimony, White testified that on this occasion he hap-
pened to go to Addington 's office to ask for some timecards,
and that he arrived while Addington was in the process of
warning Jones. In view of the fact that this testimony con-
tradicted that sworn to by White in his pretrial affidavit,'" I
" While, as noted above, I question the accuracy of certain testimony by
employee Mary Ann Butler, she testified with respect to this incident that,
while writing Jones' check pursuant to Addington 's directive , Addington
was telling Jones "that he was not firing her because he knew she was union,
he was firing her for hollering at Mrs . Wood, for cursing Margaret Seay and
for bad work."
" I therefore do not credit the testimony of Addington to the contrary.
" Addington, in his testimony, had not mentioned anything about bad
work during this alleged conversation.
1d White could not adequately explain John , called Lucy into the office
and warned her that if she did not stop leaving his statement in his pretrial
affidavit to the effect that "I do not remember any incident recently that he,
ROCKINGHAM SLEEPWEAR, INC.
find it worthless and of no corroborating value.
Wood, in an apparent corroborative attempt, testified un-
convincingly that she walked up behind Addington while he
was talking to Jones and overheard him tell Jones that this
was her last chance. Contrary to Addington, however, Wood
testified that this occurred in the tree coat department rather
than Addington's office.
Under the circumstances, I credit Jones' denial as to this
alleged final warning, and, contrary to the unconvincing and
uncorroborated testimony of Addington, I find that no such
final warning occurred.
In turning now to the facts pertaining to the termination
of Lucy Jones, and the issue concerning the legality or illegal-
ity of the discharge, it must be borne in mind that the test in
this regard is not the severity of the alleged misconduct. Nor
does it evolve about the question of what another person
might have done under the same circumstances, for it is well
established that the Trial Examiner may not, indeed must
not, substitute his judgment concerning the merits of disci-
pline for that of the Respondent. Accordingly, the sole ques-
tion determinative of this crucial issue herein is whether, on
the facts in the record, Addington, in deciding to discharge
Lucy Jones early on the morning of February 14, did so for
the reasons he asserted, or whether these were merely a pre-
text for an ulterior reason.
Addington's testimony as to the reasons he, and he alone,
terminated Jones is that (1) she caused commotion in the
plant in cursing Margaret Seay, (2) she yelled at supervisor
Ruby Wood, and (3) she turned in bad work. Apart from the
fact that Addington's testimony generally, and particularly as
it related to Jones, was far from convincing, I have strong
reservation that these in fact were the true considerations
underlying Addington 's determination.
Jones was one of the more experienced employees in the
plant, certainly tenure wise, with little, if any, prior complaint
concerning her work. In fact, Jones' credited testimony re-
veals that, upon her transfer to Lady Manhattan blouses 2
weeks before her discharge, Addington told her that he was
satisfied with the work she had been doing.
On Thursday night, Addington learned of the Seay inci-
dent from Margaret Seay who, it would appear, was merely
reporting the matter rather than complaining about it. That
Addington did not concern himself unduly about the brief
incident is reflected in his own testimony when he testified
that "Well, she [Jones] had went [sic] to Margaret Seay which
I never take seriously, I didn't see it. But, she went and talked
to Margie and they said she cursed her out." That Addington
investigated the matter as he testified "maybe Saturday some-
time" by talking with employee Brenda Barlow, the only
witness to the affair, is questionable. Barlow, although placed
on the stand by the Respondent for the sole purpose of testify-
ing to the Seay incident, was not questioned concerning any
alleged discussion with Addington on the matter." At no
time, before or during the brief discharge conversation, did
Addington ask for Jones' side of the story or even admonish
Jones in any detail concerning the incident, other than to
refer to the commotion on the floor. Finally, the fact that the
incident occurred on the way back from break and lasted but
a minute or two and with but one other person hearing it,
hardly places it in the category of having caused a commo-
tion.
Mr. John, called Lucy into the office and warned her that if she did not stop
leaving her machine she would be fired I was never present for such a
warning."
11 This, coupled with the fact that Seay was not even called as a witness
in this proceeding, leaves Addington's testimony in this regard uncor-
roborated and not worthy of belief
73
Concerning the Wood "yelling" incident relied upon by
Addington, viewing the facts in a light most favorable to the
Respondent, the most that Addington knew of this is that
sometime Saturday morning Wood told him that "Lucy had
got out of hand and yelled at her." He knew nothing more,
if that. Other than with reference to the final discharge con-
versation, Ruby Wood did not testify to anything connected
with the alleged "yelling" incident, not even corroborating
Addington's testimony that she mentioned the matter to
Addington on Saturday morning, or that she reported it to
him at any time.i6
Finally, with respect to the bad work, there is no question
but that Jones was responsible for the buttons on the Lady
Manhattan cuffs being out of alignment and that her error
caused some 100 dozen blouses eventually to be reworked.
However, notwithstanding Respondent's assertion to the
contrary, I am not convinced that at the time that Addington
decided to discharge Jones, based upon a random check by
David Addington in finding 7 or 8 dozen that were faulty, he
was aware of the magnitude of Jones' error. In any event, it
appears quite significant, I feel , that the evidence fails to
reveal that at any time Addington apprised Jones as to the
nature of her bad work. In fact, his testimony on this is
confined to his having told her merely that she had broken
the rules three times that week, without even telling her what
the three rules were or that turning in bad work was one of
them." Thus, Addington not only made no investigation as
to the cause of Jones' bad work, he did not confront her with
it, or, as was the case of the two other incidents, even ask for
an explanation." Thus, concluding what appears to have been
an extremely brief, one-sided conversation with an un-
precipitated reference to the Union, I find, on the record as
a whole, that Addington, well aware of Jones' union senti-
ments if not outright membership," and consistent with his
subsequent open stand against the union organizational
effort , was motivated by union considerations in dis-
criminatorily discharging Lucy Jones on this date.20 As such,
Respondent's conduct constitutes an unfair labor practice in
violation of Section 8(a)(3) of the Act.
Upon the basis of the above findings of fact and upon the
entire record in this, case, I make the following:
CONCLUSIONS OF LAW21
1. Rockingham Sleepwear, Inc., is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Ladies' Garment Workers Union, Upper
South Department, is a labor organization within the mean-
ing of Section 2(5) of the Act.
11 In fact, Wood testified that at 7:30 a.m., an hour before Addington
discharged Jones, he told her he was going to have to get rid of Jones "on
account of the bad work and disturbance on the floor." This, incidentally,
is at least one-half hour before Addington testified that he even knew of the
bad work
17 Even the final warning Addington assertedly referred to dung this
brief discharge conversation, and which I have found was in fact not given,
was allegedly based upon Jones' being away from her machine, and had
nothing to do with bad work
11 Addington admitted that "I didn't talk to Lucy about anything before
I fired her."
11 There is no showing that Addington was aware of the identity of any
other employee union adherents in his plant, if such there were.
'0 Addington's testimony inconsistent with my finding in this regard is
hereby discredited.
21 Respondent's motion to dismiss various portions of the complaint,
renewed at the close of hearing upon which I reserved ruling, is hereby
granted to the extent that such is consistent with my findings and conclu-
sions herein.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By discriminating in regard to the hire and tenure of
employment of Lucy Jones, thereby discouraging member-
ship in and activity on behalf of a Labor union, the Respond-
ent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act.
4. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed by Section 7
of the Act, the Respondent has engaged in, and is engaging
in, unfair Labor practices within the meaning of Section
8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
6. Other than as found, the Respondent has committed no
violations of the Act.
IV. THE EFFECT UPON COMMERCE OF THE UNFAIR
LABOR PRACTICES
The activities of the Respondent set forth in section III,
above, occurring in connection with the operation of the
Respondent described in section I, above, have a close, inti-
mate and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V THE REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices, it is recommended that it cease
and desist therefrom and that it take certain affirmative action
which is necessary to effectuate the policies of the Act.
It having been found that the Respondent discriminatorily
discharged Lucy Jones on February 14, 1970, thereby violat-
ing Section 8(a)(1) and (3) of the Act, it is recommended that
the Respondent offer the above-named individual immediate
and full reinstatement to her former job, or if that job no
longer exists, to a substantially equivalent position without
prejudice to any rights and privileges to which she is entitled,
and make her whole for any loss of pay she may have suffered
by reason of our discrimination against her, by making pay-
ment to her of a sum of money equal to the amount she would
have earned from the earliest date of the discrimination to the
date of the offer of reinstatement, less net earnings during said
period to be computed on a quarterly basis in the manner
established by the Board in F W. Woolworth Company, 90
NLRB 289, and shall include the payment of interest at the
rate of 6 percent to be computed in the manner set forth by
the Board in Isis Plumbing & Heating Co., 138 NLRB 716.
In this regard, it is further recommended that the Respondent
preserve and, upon request, make available to the Board or
its agents for examination and copying, all payroll records
and reports, timecards, and all other records necessary to
compute the amount of backpay.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:22
11 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 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.
ORDER
Respondent, Rockingham Sleepwear, Inc., its officers
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, or activity on behalf of
International Ladies' Garment Workers Union, Upper South
Department, or any other labor organization, by discharging
or refusing to reinstate any of its employees, or in any like
manner discriminating in regard to the hire or tenure of
employment, or any term or condition of employment, in
violation of Section 8(a)(3) and (1) of the Act.
(b) Threatening its employees with closing of the plant in
the event the Union came in.
(c) In any manner, interfering with, restraining, or coerc-
ing its employees in the exercise of their right to self-organiza-
tion, to form, join, or assist International Ladies' Garment
Workers Union, Upper South Department, or any other la-
bor organization, to bargain collectively through representa-
tives of their own choosing and to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all such
activities.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Offer Lucy Jones immediate and full reinstatement to
her former job, or if that job no longer exists, to a substan-
tially equivalent position without prejudice to any rights and
privileges to which she is entitled, and make her whole in the
manner and according to the method set forth in the section
entitled "The Remedy."
(b) Notify immediately the above-named individual if pres-
ently serving in the Armed Forces of the United States of the
right to full reinstatement upon application after discharge
from the Armed Forces in accordance with Selective Service
Act and the Universal Military Training and Service Act.
(c) Preserve and, upon request, make available to the
Board or its agents for examination and copying, all payroll
records, social security payment records and reports, time-
cards, and all other records necessary to compute the amount
of backpay due under the terms of this recommended Order.
(d) Post in conspicuous places at its Mineral, Virginia
plant, including all places where notices to employees are
customarily posted, copies of the attached notice marked
"Appendix."23 Copies of the notice, on forms provided by the
Regional Director for Region 5, shall, after being duly signed
by an authorized representative of the Respondent, be posted
by it, as aforesaid, immediately upon receipt thereof and
maintained for at least 60 consecutive days thereafter. Rea-
sonable steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 5 in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.24
IT IS ALSO ORDERED that the complaint herein'be dis-
missed insofar as it alleges violations of the Act not specifi-
cally found.
23 In the event that the Board's 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" whall be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
21 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 5, in writing, within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith."
ROCKINGHAM SLEEPWEAR, INC. 75
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
All our employees are free to become, remain, or to refrain
from becoming or remaining, members of International La-
dies' Garment Workers Union, Upper South Department, or
any other labor organization.
WE WILL NOT threaten our employees with the clos-
ing of the plant in the event the Union comes in.
WE WILL NOT in any like manner interfere with, re-
strain or coerce our employees in the exercise of their
Section 7 rights.
WE WILL NOT discharge and refuse to reemploy, or
otherwise discriminate against employees in order to
discourage membership in or support of International
Ladies' Garment Workers Union, Upper South Depart-
ment, or any other labor organization, or infringe in any
like manner upon the rights guaranteed in Section 7 of
the Act.
WE WILL offer Lucy Jones immediate and full rein-
statement to her former job, or if that job no longer
exists, to a substantially equivalent position without
prejudice to any rights and privileges to which she is
entitled, and will make her whole for any loss of pay she
may have suffered by reason of our discrimination
against her.
Dated By
ROCKINGHAM SLEEPWEAR,
INC
(Employer)
(Representative) (Title)
WE WILL notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement upon application after dis-
charge from the Armed Forces in accordance with the Selec-
tive Service Act and the Universal Military Training and
Service Act.
This is an official notice and must not be defaced by any-
one.
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.
Any questions concerning this Notice or compliance with
its provisions, may be directed to the Board's Office, Federal
Building, Room 1019, Charles Center, Baltimore, Maryland
21201, Telephone 301-962-2822.