Scenic Sportswear

National Labor Relations Board - Board Decisions

Apr 21, 1972

196 N.L.R.B. 493 (N.L.R.B. 1972)

SCENIC SPORTSWEAR
Scenic Sportswear and International Ladies' Garment
Workers' Union, AFL-CIO. Case 10-CA-9128
April 21, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On January 26, 1972, Trial Examiner Myron S.
Waks issued the attached Decision in this proceeding.
Thereafter, the Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner and hereby orders that
Scenic Sportswear, Chattanooga, Tennessee, its offi-
cers, agents , successors , and assigns , shall take the
action set forth in the Trial Examiner's recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MYRON S. WAKS, Trial Examiner: This matter was heard
on December 2, 1971, pursuant to a charge filed August 3,
1971,1 and a complaint issued on October 4. The complaint
alleges that the Respondent violated Section 8(a)(1) when
on June 29 it announced and granted wage increases and
three paid holidays to its employees for the purpose of
thwarting the Union's organizational campaign and that
Respondent further violated Section 8(a)(1) when on July 20
it engaged in surveillance of its employees ' union activities.
Respondent in its answer admitted certain allegations of the
complaint but denied that it had committed any unfair la-
bor practices. All parties were afforded full opportunity to
be heard , to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues.2
Upon the entire record in the case including my observa-
tion of the witnesses , and after due consideration of the
briefs filed by the General Counsel and Respondent, I make
the following:
1 Unless otherwise indicated, dates referred to herein occurred in 1971
2 Respondent 's motion at the close of the hearing to dismiss the complaint,
which was taken under advisement , is disposed of in accordance with the
decision herein.
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
493
Respondent is a Tennessee corporation with an office
and plant located in Chattanooga , Tennessee , where it is
engaged in the manufacture and sale of ladies' sportswear.
During the past calendar year, Respondent sold and ship-
ped finished products valued in excess of $50 ,000 directly
to customers located outside the State of Tennessee. Upon
these admitted facts, I find that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The pleadings establish, and I find, that International
Ladies' Garment Workers' Union, AFL-CIO, the Charging
Party herein, is a labor organization within the meaning of
Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
The operative facts in this case are substantially undis-
puted. Scenic Sportswear has been engaged in operations
since 1966 at the Chattanooga plant. Its president, Robert
Behar, has been in charge of the plant since that date. In
1968 Scenic Sportswear became a subsidiary of Athlone
Industries; Behar has remained the chief officer for Scenic
since that association. At the times relevant herein Nicholas
Romita was assistant to the president of Scenic.
1. The alleged granting of benefits to interfere with the
Union's campaign
From 1966 to 1968 the basic wage scale at Scenic Sports-
wear has followed the Federal minimum wage rate of $1.40
and in 1968 the basic wage scale was raised to $1.60 in
accordance with the Federal minimum requirements?
On March 4, Behar called the management consulting
firm of Huddleston, Ballew, Simmons and Co., which spe-
cializes in employee surveys, to conduct a survey of his
employees. The purpose of the call, as stated by Behar, was
to determine what his employees expected from a growing
company to make them work better and to do it in a way
that preserved the employees' anonymity in stating their
views. As Behar explained, he was in a position to improve
benefits for the first time economically, and after having
many employees with him for several years he could sense
that they wanted additional benefits. He turned to the idea
of a survey which insured the employees' anonymity in ex-
pressing their views since it was difficult to determine the
employees' desires by confronting them personally. Behar
at a time when he was working for another company had
encountered Ballew who then was engaged in conducting a
similar survey. Ballew returned Behar's call on March 5.
Behar told Ballew that he wanted to determine how he was
getting along with his employees, that he wanted to do
something for his employees, and that he wanted a survey
done so that the Company could learn what direction to
take in personnel management. Ballew proposed a survey
such as they had done in the past and Behar agreed. On
March 10, a survey _proposal setting forth its advantages was
mailed to Behar. On March 19, Ballew called Behar and
asked if Behar had received the proposal and if there were
any questions about it. Behar at that time said he would let
3 In addition to the basic wage rate, production workers on piece rates
received an incentive wage rate.
196 NLRB No. 72
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ballew know about going ahead with the survey . On April
14, Behar telephoned to say he accepted Ballew 's proposal
to conduct the survey . The following day Ballew wrote that
he would visit the Company to conduct the survey on Apnl
29 and 30 and that he would see Behar on April 29 . On April
29, Ballew met with Behar , Romita , and the Company's
supervisors to make certain that they understood what Bal-
lew was trying to do in the conduct of the survey and what
they were hoping to gain from the results of the survey. As
Ballew explained , the survey is conducted confidentially to
determine the management needs within the Company. The
survey is arranged to learn from each employee through an
unsigned questionnaire what the employee's likes and dis-
likes about the Company were and what the employees
would like to see done to make the Company a better place
in which to work . The confidentiality of the survey is main-
tained by having the questionnaire returned to the consult-
ing firm , whose property it becomes . The employer never
sees the individual questionnaire of an employee.
The survey was conducted on April 30 . The employees
were called together and Ballew was introduced to the em-
ployees by Behar . Behar in introducing Ballew explained
that Ballew was from a company that Respondent had hired
to learn what the employees wanted "in the wa1y of improve-
ments and benefits that [he] could give them .' After intro-
ducing Ballew to the employees , Behar left.
Ballew explained the survey to the employees . He told the
employees they were to indicate what they liked and dis-
liked about the Company and what they would like to see
done to make it a better place to work . Ballew further ex-
plained that the Company needed their ideas to decide on
the direction it should take in employer-employee relation-
ships. At that time Ballew stated to the employees that the
question was always raised regarding the effectiveness of a
survey and pointed out that an employer who conducts such
a survey does not normally go to the expense or the trouble
to have a survey made unless the employer intends to do
something about what is complained of in the survey. Bal-
lew also told the employees that when the survey was over
he would return and tell them the results of the survey.
After conducting the survey , Ballew returned to his office
in Memphis and ran the questionnaires through data pro-
cessing and came up with what he termed the "survey report
analysis"-i.e., the raw tabulation of the employees' an-
swers and comments . The survey report analysis was re-
ceived by Behar on May 17 . On May 21, Ballew called
Behar , asked him if he had a chance to read over the survey
report analysis , and pointed out that there were some ob-
vious problems in the areas of employee favoritism from
supervisors and wages and benefits . Ballew told Behar that
he would cover these problems at a later meeting which was
set up for , and held , June 3 and 4 at Chattanooga.
Prior to June 1971, so far as the record discloses, there
was no attempt by any union to organize Respondent's
employees . On June 2 , Behar encountered Milford Allen,
the union representative , for the first time . On that date
Allen came through the receiving door of the Company to
Behar 's office an introduced himself as a representative of
the Union . He told Behar that it was his understanding that
the Respondent did not have a union contract and asked
whether Behar was doing "union contract work." When
Behar said he was not , Allen asked if he could inspect
Respondent's garments to see if it was using union labels.
Behar ordered Allen to leave in no uncertain terms. There
was nothing in the conversation that led Behar to believe
that Allen was organizing his employees or that he intended
to do so. ,
On June 3 , Ballew , as planned , visited Respondent 's plant 23 that the Union obtained 10 signature cards.
to discuss the survey and his recommendations with Behar.
Ballew had extensive conversations with Behar that day and
also spoke to each of the supervisors individually . Ballew at
that time made his recommendations to Behar based on the
survey. These included , inter alia, that a wage differential be
set up between new hires and employees who had been there
for some time . Respondent was then hiring at $1.60 an hour
and it was Ballew 's recommendation that employees be ad-
vanced to $1.65 an hour and thereafter to $1.70 an hour
after set periods of time . Ballew also recommended that
Respondent put into effect three paid holidays at that time
with the view to adding additionaFholidays later . Also, since
one of the biggest problems that surfaced through the sur-
vey was the problem of favoritism and because in one de-
partment there were relatives working for a supervisor,
Ballew recommended that no relatives of supervisors be
hired and that at least employees not be placed under the
supervision of their own relative . Behar and Ballew dis-
cussed putting Ballew's recommendations in a written re-
port ; Ballew told Behar he would submit a written report,
as was his company 's practice , to Behar . Behar replied that
he would wait for the written report to put the recommenda-
tions into practice.
Also on June 4, Ballew reported the results of the survey
to the employees , told them that their complaints were un-
der discussion , and that the employees would be informed
as to what would be done . Ballew did not indicate "that
anything would be done on a specific date or time other
than the fact that-We implied that obviously things would
be done , that the survey had served a useful purpose."
On June 8 , Allen handed out standard union leaflets out-
side the Company's receiving door where the employees left
the building . The complaint alleges, and so far as this record
discloses , this was the start of the Union 's organizing cam-
paign .4 As Allen was passing out the union leaflet on that
date , Behar walked to the door and told Allen he was stand-
ing on private property . When Allen replied that he was
standing on a public sidewalk , Behar insisted that it was his
property and that he was going to call the police . Behar then
left, but no police appeared . Behar later that day picked up
a copy of the union leaflet from the street.
On or about June 16, the written report of the survey
results and Ballew 's recommendations (which were essen-
tially the same as those which were made to Behar during
Ballew's June 3 and 4 visit) were sent to Behar, who received
it on or about June 17.
According to Behar he had one "crucial" decision to
make with regard to implementing Ballew's written report.
This decision related to the complained of favoritism dis-
closed by the survey and the recommendation which fo-
cused on the situation of five employees working for a
supervisor who was a relative . Behar testified that he did not
feel that there was favoritism being shown these employees
and he was reluctant to lose good employees . Behar, howev-
er, spent the next week locating jobs for the five employee-
relatives involved with other employers in the city and on
Friday, June 25 , he laid them off. The following Monday or
Tuesday, Behar received a number of inquiries regarding
the reason for his action and on or about Tuesday, June 29,
he made the announcement to the employees that because
they felt there was favoritism shown to these employees they
would "all be better off" as a result of his action in laying
off the five employees . At the same time Behar announced
and put in effect the increase in the minimum base pay
recommended by Ballew's report , as well as the three paid
Additionally the parties stipulated that it was between June 8 and June
SCENIC SPORTSWEAR 495
vacations. The wage increase provided for a 5-cent increase
above the hiring rate of $1.60 an hour for employees who
had been employed for 3 months and 5 cents more after 6
months of employment. These increases in the base hourly
wage affected 25 of Respondent's 75 employees since the
others were already receiving $1.70 or more as a base hourly
rate.
2. The alleged "surveillance" of employees'
union activities
On July 20 , five women employees of Respondent were
sitting on the steps of the church across from Res pondent's
plant eating their lunch . Union Representative Allen joined
the employees and started to talk to them . About 5 minutes
later Romita came up to where Allen was talking to the
employees and was asked by Allen what he was doing there.
Romita replied that he was there "to see that you don't tell
these girls a bunch of lies." Allen then stated to Romita "I'm
not telling these girls a bunch of lies, I 'm telling them the
benefits of a union ." Romita replied that he knew the union
benefits , that the Union had closed two p lants where he had
worked which were both under ILGWU contracts. When
questioned about this , Romita identified the plants in-
volved . Allen then mentioned the raises and three paid hol-
idays the Company had given the employees and asked
Romita why the Company had not taken this action "before
the Union came to town .' Romita replied that the Company
had been planning this for a long time . During the above
conversation between Allen and Romita , five male emplo -
ees including Goins , Behar 's son-in-law, approached the
church steps . Romita waved for the employees to go back
but they came up to where Allen and Romita were standing.
Romita then said something to the five employees (the rec-
ord does not reveal what) and they returned to the plant.
Shortly thereafter, at the end of the 30-minute lunch period,
the women employees also returned to the plant, as did
Romita.
3. Analysis , additional findings , and conclusions
It is settled law that where benefits which are promised
to, or conferred on, employees by an employer are con-
ceived or accelerated to undermine a union 's attempt to
organize or gain the su port of its employees , such employer
conduct is violative of Section 8(a)(1) of the Act. On the
other hand , if the promised or conferred benefits were not
conceived or accelerated for the purpose of counteracting
the union 's organizational efforts but are merely coinciden-
tal in their timing , the employer does not violate the Act by
its conduct . See N. L.R.B. v . Exchange Parts Co., 375 U.S.
405. Thus , the determinative factor is the employer 's motive
or purpose in granting a benefit to its employees-for if the
employer's granting o1 benefits would have occurred wheth-
er or not the union s organizational campaign was in prog-
ress such conduct by an employer would not be unlawful.
The General Counsel does not contend the contrary. As
General Counsel stated at the hearing : "[Respondent's
Counsel] is correct in saying that had the employer not
granted the wage increase when he would have granted it
otherwise it would be against the purposes of the Act. It is
the General Counsel 's contention that absent the union's
presence it would not have granted the wage increase and
the paid holidays at that time."
It is the conclusion of the Trial Examiner that the prepon-
derance of the evidence in this record fails to establish that
the Respondent either conceived or accelerated the granting
of wage benefits and holidays to interfere with the Union's
organizational campaign. I find that Respondent, who em-
barked on an independent survey of his employees with the
purpose, inter alia, of improving employee benefits, would
have pursued the recommendations of the Ballew firm
whether or not the Union had appeared on the scene. Con-
tact with the Ballew firm was initiated some 3 months before
the Union's attempt to organize the employees started. The
survey had been completed, Behar had received Ballew's
oral recommendations, and a summary report of the survey
was given to the employees, all prior to the initiation of the
Union's campaign on June 8. Furthermore, Behar's indica-
tion to Ballew that he would follow through on the oral
recommendations of Ballew upon receipt of the customary
written report was just what occurred. Moreover, far from
accelerating action on Ballew's recommendations upon
learning that the Union was organizing on June 8, Behar did
not implement the written recommendations which he re-
ceived on June 17, until he was able, during the following
week, to arrange job placement for the five relatives of one
of his supervisors in accord with the "favoritism" com-
plaints disclosed by the survey and Ballew's written rec-
ommendations. Furthermore, so far as the record discloses
Respondent has followed the recommendations received
from the Ballew firm in all respects. Not only were the
benefits conferred precisely whatBallew recommended and
the recommendations regarding favoritism dealt with, but
Respondent has continued to follow through on Ballew's
other recommendations-e.g., by having a personnel policy
manual prepared for the employees. While the actual bene-
fits were not announced until after the Union had started
its organizational activities, the employees had been in-
formed prior thereto of the purpose of the survey, as well
as the results thereof, and it had been indicated to them that
some action would be taken relative to their complaints.
Moreover, while the Employer's conduct on June 8, as well
as the later incident which occurred on July 20, may be
considered as evidencing Respondent's opposition to the
Union's efforts, I find this conduct insufficient to overcome
the substantial evidence pointing to the conclusion I reach
that the economic benefits granted to the employees on
June 29 were not unlawfully motivated but reflected the
culimination of Respondent's purpose through the survey to
improve its employer-employee relations in the plant. In
sum, I find that the Respondent's action in announcing and
granting economic benefits to the employees on June 29
would have occurred even if the Union had not started to
organize Respondent's employees and, therefore, did not
violate Section 8(a)(1) of the Act. See Divco-Wayne Indus-
tries, 154 NLRB 974, 977.5
The only other act of Respondent's which the General
5 In reaching the foregoing conclusion I have considered the fact that one
of the possible benefits referred to in the survey proposal submitted by
Ballew in March (which suggested a variety of benefits that might now from
the survey regarding employer-employee relations) was that "Unions cannot
exist where management listens to employee complaints and grievances and
solves them." The fact that this was considered a possible potential benefit
at some indefinite future date does not detract from my finding that
Respondent's motive in granting economic benefits to his employees was not
unlawful. To adopt the General Counsel's contrary view would impede man-
agement in seeking by such methods as independent surveys to improve
employer-employee relations even when no union activity was taking place,
such an extension of Exchange Parts, supra would be entirely unwarranted.
In this regard the General Counsel's reliance on Crown Tar and Chemical
Workers, 154 NLRB 562, enfd. 365 F.2d 588 (C.A. 10), is misplaced In Crown
Tar it was admitted that the decision to grant a wage increase was to thwart
the anticipated union campaign following a demand for recognition at a
sister company, and the unilateral granting of wage increases involved there-
in followed the establishment by the union of majority status at the Respon-
dent Company
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel alleged as unlawful was Romita 's conduct on July
20. The General Counsel alleged such conduct to be unlaw-
ful surveillance in violation of Section 8(a)(1). While
Romita's actions on July 20 were openly undertaken, Romi-
ta was admittedly at the employees ' gathering with the un-
ion organizer for the purpose of observing the interchange
between Allen and the Respondent 's employees and inject-
ing himself into Allen 's discussion with the employees.
Romita 's intrustion in the gathering between Allen and the
employees during the lunch hour was not a casual happen-
stance . Romita deliberately walked over to where Allen was
speaking with the employees . Romita 's very presence, as
well as his stated intention to intrude in the exchange be-
tween Allen and the employees , would tend to inhibit the
employees ' free and open discussion with Allen, as Romita
must have known . Moreover, Romita 's purpose to disrupt
and preclude Allen from freely discussing union representa-
tion with the employees is further evidenced by Romita's
efforts to keep additional employees from joinin the
group-first by waving them away as they approached and
later by speaking to them privately and causing them to
leave.
Whether or not properly characterized as "surveillance,"
Romita 's conduct which was designed to, and had the effect
of, disrupting and interfering with Allen 's attempts to meet
with the employees and freely discuss with them union rep-
resentation constituted, I find , unlawful interference with
the employees ' Section 7 rights and , as such, was violative
of Section 8(axl) of the Act. Under Section 8 (a)(1) an em-
ployer is prohibited from interfering with , restraining, or
coercing employees in their right to engage in self-organiza-
tion . The proscription of Section 8(a)(1) precludes an em-
ployer from inhibiting employees in the exercise of their
right to receive information and to engage in open discus-
sions with a union organizer.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above , to the extent they have been found to be unfair labor
practices , occurring in connection with the Respondent's
operations described in section I, above, have a close, inti-
mate , and substantial relationship to trade , traffic , and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V THE REMEDY
It having been found that Respondent violated Section
8(a)(1) of the Act , I shall recommend that the Company
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
On the basis of the foregoing findings of fact, and upon
the entire record in this case, f make the following:
CONCLUSIONS OF LAW
1. The Company is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Company by announcing and granting benefits to
its employees on or about June 29 did not engage in unfair
labor practices within the meaning of Section 8(a )( 1) of the
Act.
4. The Company by interfering with and disrupting the
Union's attempt to freely discuss union representation with
its employees engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act , which unfair labor
practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact , conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:6
ORDER
Scenic Sportswear, its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interfering with or disrupting the Union 's attempts to
meet off company premises with Respondent 's employees
and freely discuss union representation.
(b) In any like or related manner interfering with, re-
straining , or coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which will effec-
tuate the purposes of the Act:
(a) Post at Scenic Sportswear copies of the attached no-
tice marked "Appendix."7 Copies of said notice , on forms
to be provided by the Regional Director for Region 10, after
being duly signed by an authorized representative of Re-
spondent , shall be posted by Respondent immediately upon
receipt thereof and be maintained by it for 60 consecutive
days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted . Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered , defaced , or covered by any other
material.
(b) Notify the Regional Director for Region 10, in writ-
ing, within 20 days from the receipt of this Decision, what
steps Respondent has taken to comply herewith.8
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges unfair labor practices not specifically
found herein.
6 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall , as provided in Sec . 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions and Order , and all objections thereto shall be deemed
waived for all purposes.
7 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" shall 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."
8 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 10, in writing, within 20 days from the date
of this Order , what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees
these rights:
To engage in self-organization
To form , join, or help unions
SCENIC SPORTSWEAR
To bargain collectively through a representative
of their choosing
To act together for collective bargaining or oth-
er aid or protection
To refrain from any or all of these things.
WE WILL NOT interfere with or disrupt the attempts of
International Ladies ' Garment Workers ' Union, AFL-
CIO, or any other union to meet off company premises
with our employees and freely discuss union represent-
ation.
WE WILL NOT in any like or related manner, interfere
with , restrain , or coerce you in the exercise of the above
rights.
SCENIC SPORTSWEAR
(Employer)
Dated By
497
(Representative) (Title)
This is an offical notice and must not be defaced by
anyone.
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 direct-
ed to the Board's Office, Peachtree Building, Room 701, 730
Peachtree Street, NE., Atlanta, Georgia 30308, Telephone
404-526-5760.