Scottex Corp.

National Labor Relations Board - Board Decisions

Nov 24, 1972

200 N.L.R.B. 446 (N.L.R.B. 1972)

446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Scottex Corporation and Central States Region,
International Ladies' Garment Workers' Union and
Textile Workers' Union of America, Party to the
Contract. Case 16-CA-4545
November 24, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On July 18, 1972, Administrative Law Judge'
Sidney J. Barban issued the attached Decision in this
proceeding. Thereafter, the Respondent, the Charg-
ing Party, and the Party to the Contract all filed
exceptions and briefs in support thereof. In addition,
the Charging Party filed a brief in support of the
Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Scottex Corpora-
tion, Carrollton, Texas, its officers, agents, succes-
sors, and assigns, shall take the actions set forth in
the recommended Order.
i The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
2 The parties have excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully
examined the record and find no basis for reversing his findings
3 The Respondent and the Party to the Contract made requests for oral
argument Those requests are hereby denied as, in our opinion, the record,
exceptions, and briefs adequately present the positions of the parties
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Trial Examiner: This matter was
heard at Dallas, Texas, on February 15, 16, and 17, 1972.
The complaint, issued on December 27, 1971 (all dates
hereinafter are in 1971 unless otherwise noted), based upon
a charge filed November 5, alleges that the above-named
Respondent violated Section 8(a)(1) and (2) of the Act by
rendering unlawful aid, assistance , and support to the
above-named Party to the Contract (herein called TWUA),
and by threatening employees against engaging in activities
on behalf of the above-named Charging Party (herein
called ILGWU), and violated Section 8 (a)(1) and (3) of the
Act by discriminating against its employees through
making membership in TWUA a condition of employ-
ment . Respondent's answer denies the commission of any
unfair labor practices , but admits allegations of the
complaint sufficient to support the assertion of jurisdiction
under current standards of the Board ($50,000 annual
interstate outflow), and to support findings that ILGWU
and TWUA are labor organizations within the meaning of
the Act.
Upon the entire record in this case , from observation of
the witnesses , and after due consideration of the briefs filed
by the General Counsel , the Respondent , ILGWU, and
TWUA, the Trial Examiner makes the following:
FINDINGS AND CONCLUSIONS
1. SUMMARY OF FACTS AND THE ISSUES
Respondent has for some time operated textile manufac-
turing plants in New York at which plants Respondent has
had collective-bargaining agreements with TWUA cover-
ing certain of the operations, while other operations in
those plants have been subject to bargaining agreements
between Respondent and ILGWU. In December 1970,
Respondent began operations at a facility located at Cedar
Hill, Texas, with a floor space of 10,000 square feet.
Respondent's first employee at Cedar Hill was Virginia
Johnson, assertedly recruited for that operation by TWUA
from a local plant represented by that Union. Johnson
shortly became president of the TWUA local. The General
Counsel contends, and Respondent denies, that during the
period material to this case Johnson was also a supervisor
for Respondent at its Texas operations.
On February 8, when only three employees were
employed at Cedar Hill, Respondent entered into a
collective-bargaining agreement with TWUA covering the
operations at that facility. Respondent soon sought larger
quarters and acquired plant facilities at Carrollton, Texas,
with floor space of over 200,000 square feet. About August
10, at a time when there were about five unit production
employees in two job classifications at Cedar Hill,
Respondent and TWUA signed a letter agreement extend-
ing the Cedar Hill bargaining agreement to Carrollton.
However, the move from the Cedar Hill plant to the new
facility was not made until October. Cedar Hill was
thereafter closed down. Within a month after the move, 20
to 25 employees were hired. At the time of the hearing,
Respondent employed approximately 52 nonsupervisory
employees in about 9 different classifications.
Beginning in June and running through October,
ILGWU Representative John Vickers had several conver-
sations with Virginia Johnson, whom he contacted con-
cerning Respondent's operations, during which Johnson
made several admissions upon which General Counsel
relies. Respondent and TWUA dispute the admissibility of
this evidence. About November 1, ILGWU also leafleted
200 NLRB No. 75
SCOTTEX CORPORATION
the Carrollton plant, leading to certain responses by
Respondent which the General Counsel contends inter-
fered with the employees' rights under the Act.
1. The General Counsel contends, in effect, that Cedar
Hill was at all times an experimental "pilot plant," to be
used for training purposes only, with limited functions and
few employees, and that Respondent's purpose was to
establish a larger permanent plant, eventually employing as
many as 300 employees, with a wide range of functions
necessary to producing finished textile fabrics; that
Carrollton "was a new plant, far different from the facility
in Cedar Hill in terms of size, purpose and production";
and that by "recognizing the TWUA and extending the
Cedar Hill contract with TWUA [to Carrollton] at a time
when the Carrollton plant was not in production and
Respondent did not employ a representative complement
of employees," Respondent gave illegal aid and assistance
to TWUA in violation of the Act.
The General Counsel does not attack the validity of the
Cedar Hill agreement with TWUA, which was executed
more than 6 months before the filing of the charge in this
matter, and which, therefore, by reason of the provisions of
Section 10(b) of the Act, may not be considered as an
unfair labor practice.
2. General Counsel further contends that Respondent
aided and assisted TWUA, and violated the Act, (a) by
assertedly requiring employees to agree to join the TWUA
and/or sign checkoff authorizations in favor of TWUA as
a condition of employment, (b) by actions of the alleged
supervisor, Johnson, in soliciting support for TWUA, (c)
by Johnson's activities in serving as president of the
TWUA local while occupying the position of supervisor,
(d) by Johnson's asserted activities in representing TWUA
in contract negotiations with Respondent, and (e) by
asserted conduct on the part of Johnson and other
supervisors assertedly interfering with or coercing employ-
ees in respect to their contacts with or support of ILGWU.
Respondent and TWUA dispute these contentions.
A Johnson's Supervisory Status
Johnson was employed by Respondent on December 10,
1970 At Cedar Hill, she was an instructor of the knitter
trainees. She assigned work, told employees which ma-
chines and operations they were to work on, and moved
them from machines and operations to other machines and
operations. Johnson inspected the employees' work and
corrected them. They were instructed to call Johnson if
they had trouble with their machines or their work. She
performed minor adjustments to the machines.
Johnson's position changed somewhat after the move to
the Carrollton plant. When Respondent set up the work at
Carrollton on a three-shift basis, Johnson was assigned to
I This clearly occurred between October It, when Ida Hillhouse was
employed, and November 1, when Edna Elder was hired The former was
trained by Johnson, the latter was trained on the first shift by Head Knitter
Betty Owens
2 Thereafter, at a time when ILGWU was on strike against Respondent
in New York, Buchanan and Carl Neal, a supervisor, told Alverson that
Johnson was not a supervisor The circumstances of this conversation are
not set forth in the record
3 General Counsel suggests that this was Lemoyne Carey, who was
447
the second shift, and was no longer used as an instructor of
trainees.' On the second shift, where her title is head
knitter, Johnson continued to assign the employees to
machines and operations, and moved them to other
machines or operations. Johnson drew up the employees'
break schedule and posted it. On one occasion, Johnson
criticized Susanne Hauerwas for her use of the break
period. After making assignments , Johnson moved around
among the girls, watching their work, correcting them,
admonishing them if they seemed to be playing around and
not attending to their tasks, even threatening that those
who did not perform properly would be discharged. When
the employees had problems with their machines and their
work, they called upon Johnson first. She assisted the girls
with their problems and continued to make minor
adjustments to the machines. Johnson made reports to
higher supervision with respect to the employees. While at
Carrollton, according to the undenied and credited
testimony of Armella Alverson, Earl Moyer, an admitted
supervisor and agent of Respondent, spoke to Alverson
about a complaint Johnson had made about Alverson,
advising Alverson that Johnson was "over her," that he
wanted Alverson "to get along with her, and not to make
any waves," that Johnson would have the last say whether
Alverson worked or didn't work.2
On one occasion, when an employee identified by
Hauerwas only as "Le' 13 had made an error causing her
machine to be out of commission for 2 days, Johnson
gathered the girls together to look at the error. Johnson
told them that this "was a stupid thing to have happen,"
that "the girl didn't know what she was doing," and that if
anyone else committed such an error, she would be fired.
It was apparently this same worker who was referred to
in a conversation between Johnson and Armella Alverson,
identified by Alverson as "Lamone." Johnson told Alver-
son that "she was going to have to get rid of [this
employee ] because she was too old, and she didn't need to
be working there." This employee was discharged about 2
days later.4 On another occasion, Johnson stated to
Alverson, with respect to some girls who had been late,
that "they didn't need to be working there if they were
going to be coming in late." The employees thereafter quit.
It is also noted that when Hauerwas was called to a
terminal interview with Moyer, on the first shift, at which
she was discharged on the basis of a written report from
second shift supervision, Johnson was also present during
the first part of the interview.
Johnson was not called as a witness. The only witness for
Respondent was Howard Buchanan, who was first em-
ployed by Respondent on August 30, and is the general
manager of Respondent's Texas division. He asserted that
Johnson is not considered a supervisor and does not have
supervisory authority. He stated that she is a head knitter
terminated on November I After consideration of the list of Respondent's
employees, and the testimony of Armella Alverson and John Vickers noted
hereinafter, I am satisfied that this must be the employee referred to
4 As discussed hereinafter , in a conversation with John Vickers about the
last of October, Johnson told Vickers that she was going to have to fire one
employee, named "Le," who wasn't doing her job properly At this point,
according to Johnson, she had been advised by Earl Moyer to give this
employee another chance
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the second shift, paid at about the same rate as head
knitters on the first and third shift. He testified that her
duties, and those of the other head knitters are to assist the
knitters on her shift with their problems, that she
customarily roamed around making sure that the knitting
machines are working properly. At some times material to
this matter, according to Buchanan, Johnson reported to
the shift supervisor, Max Yelverton, who was responsible
to the superintendent of knitting (probably Earl Moyer,
whose title was not identified), who reported to the plant
manager (at that time apparently Carl Neal), who in turn
was responsible to General Manager Buchanan .5 Buchan-
an, however, admittedly has not had firsthand opportunity
to observe Johnson at work or the actual day-to-day
relationship between Johnson and the employees on the
second shift.
The evidence set forth above and the record as a whole is
convincing that, at the very least, Johnson responsibly
directs the work of employees on the second shift on her
own initiative, and reprimands them for deficiencies in
their work and conduct, reports on their work and conduct
to higher supervision, which reports form a substantial
basis for personnel action by supervision, and makes other
decisions requiring independent judgment which affect the
employees' work and employment. To the extent that
Buchanan's testimony is to the contrary, it is not credited.
It is therefore found that Johnson, at times material to this
proceeding, was a supervisor within the meaning of Section
2(11) of the Act. See N L.R.B v. Roselon Southern Inc., 382
F.2d 245 (C.A. 6, 1967).
In addition to the above, the record establishes that the
following were managerial personnel for whom Respon-
dent was responsible: Max Goldman, Meyer Goldman,
Jerry Goldman, and James DeCamp, who apparently was
at one time a plant manager at Cedar Hill.
B. Respondent's Operations in Texas and
Bargaining Relationship With TWUA
There is no question that Respondent's purpose has been
to set up operations in Texas for the manufacture of textile
fabrics. It is also clear that a number of knitters were
trained at Cedar Hill to that end. It is difficult to see what
other purpose was achieved there. Thus it appears that
there were very few knitting machines set up at that
facility. Respondent opened Cedar Hill about the begin-
ning of 1971. Through the end of August, Respondent did
not employ more than three knitter trainees, two knitters
(including Johnson), and/or two employees in the category
of general help in any 1 week. No other classification of
employee was employed at Cedar Hill (other than clericals
and supervisors).
As has been noted, on February 8, Respondent entered
into a collective-bargaining agreement with TWUA. It was
signed on behalf of the union by two officials and by
5 In respect to this asserted line of authority, Linda Ann Alverson
testified that on one occasion, when Yelverton was piqued at being
overruled with respect to a personnel decision, he complained that
Respondent gave Johnson more authority than it gave him and would be
more likely to listen to her
6 Among other matters, it has a detailed seniority system and provisions
under which employees can be transferred temporarily from job tojob, and
permanently from department to department, although the agreement
Johnson. At the time, Respondent employed three employ-
ees including Johnson, classified as knitters and knitter
trainees. The bargaining agreement provided for the
following classifications: creelers, knitters, yarn handler,
general help. For so small an operation, the agreement is
remarkably full and complete .6 However, apparently
because of the restrictions of Texas law, the agreement
contains no provision requiring membership in the TWUA,
but did provide for the deduction of dues and initiation
fees from an employee's wages upon submission of written
authorization by the employee in the form attached to the
agreement.
By sometime in August, Respondent had acquired larger
quarters for all operations at Carrollton, located about 32
miles from Cedar Hill. By the end of August employees
were being interviewed and hired at Carrollton, though
they were then sent to Cedar Hill for training.
TWUA, by letter dated August 10, referring to the fact
that "over the past several months" Respondent had
discussed with TWUA "the Company's plans to move
from your present quarters in Cedar Hill, Texas to a more
permanent location," requested agreement from Respon-
dent that the contract in effect at Cedar Hill would be
continued "and be applied in its entirety at the Company's
successor plant in Carrollton, Texas." 7 Respondent signed
the agreement as requested.
As previously noted, the move from Cedar Hill to
Carrollton did not occur until sometime in October. About
six production employees were then transferred to Carroll-
ton. From General Counsel's Exhibit 6(a) it would appear
that in October, Respondent employed unit workers in
only the following categories: knitters, knitter trainees,
general help, junior mechanic, and examiner. Shortly after
the move, the work force began to expand.
About the first of November, TWUA negotiated an
amendment to the TWUA bargaining agreement with the
Respondent which expanded the job classifications cov-
ered and granted wage increases. This was agreed by
Respondent although the original agreement continued in
force by its terms until February 1974, and contained no
reopening clause. Johnson was among those representing
TWUA in these negotiations and signed the agreement on
behalf of that Union. The amendment to the bargaining
agreement, which is dated November 2, establishes the
following classifications covered by the agreement: Creel-
er, knitter, general helper, yarn handler, head knitter,
knitter trainee, examiner, mender, junior mechanic.
In a document dated February 1, 1972, TWUA and
Respondent signed another amendment to the TWUA
agreement. Johnson again signed on behalf of TWUA. In
this agreement the wage structure was again changed and
the following additional job classifications added to those
covered by the agreement, Slitter, washer/framer/beamer,
recognizes at another place that Respondent at that point had only one
department
7 TWUA based its claim that the agreement should cover the operations
at Carrollton upon language in the agreement stating that the contract was
between "Scottex Corporation (for its Cedar Hill, Texas plant) and its
successors, assigns and subsidiaries hereinafter referred to as the 'Employer'
or 'Company' and Textile Workers Union of America, AFL-CIO
SCOTTEX CORPORATION 449
drugman , spotter. These latter were identified as dyeing and
finishing classifications.
At Cedar Hill , the employees made only unfinished
griege goods . When Buchanan was hired on August 30, he
was informed that it was management's intent to produce
dyed and finished fabrics at its Texas operations , and these
latter operations were instituted at Carrollton in Decem-
ber.
At the time of the hearing, there were about 52
employees in classifications covered by the TWUA
agreement at Carrollton.
C. Vickers' Conversations With Johnson
As previously noted, Vickers, the ILGWU representa-
tive, had several conversations with Virginia Johnson
concerning the operations at Cedar Hill and Carrollton,
beginning June 30 and continuing through October 26. In
the earlier conversations, according to Vickers' testimony,
Johnson told Vickers how she was assertedly recruited by
TWUA representatives to go to work for Respondent; that
DeCamp, the plant manager, had told her that the plant
was going to be larger, much larger; that the new plant
would be located about 2 miles south of Cedar Hill; that
Cedar Hill was a pilot operation which would only train
knitters for the larger plant, which, she had heard from Mr.
Goldman, would eventually employ 300 people8; that she
participated in the preparation of the original TWUA
contract proposal, and its negotiation with Respondent;
and that at the time, Respondent employed only three
employees at Cedar Hill, all training to be knitters. Vickers
testified that when he spoke with Johnson on October 4,
she said that Cedar Hill had been closed down, and that
seven employees, including herself, had been transferred.
When Vickers first spoke to Johnson, she told him that
she was a knitter in charge of training new employees. On
October 26, she told Vickers, as he testified, that she had
been made a supervisor on the night shift, that she was
responsible for the girls, and for checking on their work;
that she found some were lazy, not as good as they should
be; and that she would have to fire one, Le, who wasn't
doing her work properly; that she further said that Moyer
had told her to give the girl another chance
Respondent and TWUA objected to this testimony as
inadmissible hearsay. The General Counsel and ILGWU
urged its acceptance on the grounds that Johnson was a
supervisor within the meaning of the Act, and on the basis
that she was president of the TWUA local which,
assertedly, occupied an identity of interest with Respon-
dent. In respect to this latter contention General Counsel
has referred me to that body of the law of evidence which
treats with the admissibility of "vicarious admissions." See
Wigmore on Evidence, vol. IV, sec. 1077 (3d edition); see
also, McCormick on Evidence, secs 244, et seq.; Jones on
Evidence, vol. 2, chap. IV. I have reconsidered the rulings
8 The General Counsel offered in evidence certain newspaper articles
purportedly quoting Respondent's chief salesman in Texas which apparent-
ly projected similar or higher levels of employment These were rejected It
is clear that these articles came to the attention of Respondent's
management It is disputed whether Respondent thereafter disavowed these
statements Both Respondent and ILGWU have attached to their briefs
photocopies of pages of the transcript of an arbitration proceeding in which
this matter was discussed In order to preserve these for the record,
admitting this evidence in light of the authorities and the
arguments of the parties.
Johnson has been found to be a supervisor within the
meaning of the Act quite apart from her admissions to
Vickers. This, however, does not justify the receipt of the
hearsay evidence as to the circumstances under which she
was recruited to come to work for Respondent prior to the
time she became a supervisor, and as to that testimony,
upon reconsideration, it is rejected and stricken.9 Though I
have considered other parts of her admissions to Vickers, I
have not given them any weight unless supported by other
independent evidence or the record as a whole. Thus, her
admissions that Cedar Hill was a pilot plant training
employees for a larger operation is supported by testimony
of Buchanan and is consistent with the record generally, as
is the testimony that she was given to understand that the
operation was in a status of continuing expansion. Her
statements as to the number of employees employed at the
time of the execution of the TWUA agreement and at the
time of the transfer to Carrollton generally are supported
by the record. Likewise, her admissions of participation in
the negotiation of the TWUA agreement are consistent
with her execution of that document on behalf of that
Union, and her participation in subsequent bargaining
with Respondent on behalf of TWUA.
D. Respondent's Hiring Practices
Until well after the time that Buchanan became General
Manager of Respondent's Texas operations, it appears to
have been Respondent's normal practice to hand each
applicant for employment, among other papers (such as
employment application, W-2 forms, insurance papers,
etc.), a copy of a check-off agreement to be executed in
favor of TWUA. From testimony given at the hearing, it is
clear that many, if not most, of the applicants understood
this to be an agreement to join TWUA in 45 days, at the
end of the probationary period. However, in fact, until
about November, Respondent began deduction of dues
and fees for TWUA from the pay of such employees
beginning about a week after they were employed.
Buchanan testified that this occurred due to a clerical error
in New York, where the pay was made up. Such money
deducted during the first 45 days of a worker's employ-
ment was thereafter refunded by Respondent about the
first part of November.
Annie Louise Crow, who was interviewed for employ-
ment by Moyer, and was hired by him, was directed to go
to the office to sign the forms referred to above. Moyer
specifically advised her of the TWUA form, stating,
according to Crow, "I could sign a card, would I agree to
sign a card after I was there 45 days to join the Textile
Union. And I agreed."
Sylvia Susanne Hauerwas, when applying for employ-
ment, was taken to the office by Moyer to fill out the
Respondent's brief is hereby received as TX Exh 1, and the ILGWU brief is
received as TX Exh. 2 1 have given no weight to these newspaper articles or
to issue as to whether they were disavowed
9 I am satisfied that no such identity of position between the TWUA
local and Respondent has been shown that would justify holding that
admissions of the president of the local should be taken as admissions of
Respondent , within the authorities cited
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forms. Moyer told her, "I guess you know that this is a
Union shop and you will have to join the Union." He
asked if she had any objections, to which Hauerwas replied
in the negative , stating that she had never worked in "a
Union place" before.
When Anna Renee Elder applied for employment,
Moyer told her "that they had a Union, that I had to join
the Union is the way he told me."
Ida Louise Hillhouse was handed the forms , including
the TWUA form, by Sam Goldman, who told her to fill
them out. When she questioned the union form , he told
her, "Sign it . It is an agreement to join the Union... .
You want to join the Union ." Hillhouse replied that it
didn ' t matter to her , she had never belonged to a union
before
Armella Peggy Alverson testified that during her
employment interview , Sam Goldman told her , "You know
this is a Union shop ," and asked if she was interested.
None of the testimony set forth above was denied by
either Moyer or Goldman, nor was any explanation offered
with respect to their failure to testify. Upon consideration
of the demeanor of these witnesses , as well as the record as
a whole, their testimony as set forth above is credited.io
General Manager Buchanan testified that after he was
employed, he changed Respondent's procedures so that
applicants for employment were not given TWUA check-
off forms to execute with their applications for employ-
ment . He stated that he informed his supervisors and those
who dealt with applicants for work to advise applicants
that they had the right to join or not join the union, and
not encourage membership in TWUA
Linda Alverson, who was employed on November 10,
testified that when she applied for employment , she was
handed an authorization card for TWUA with the other
papers. Carl Neal, the plant manager, at the time explained
"they had a union in, told me who they were, and he said,
`You don't have to join if you don't want to, but . . . the
Union and the Company gets along real well together.'
And he said, `If I was you, I would but,' he says, `you don't
have to if you don't want to.' "
During negotiations for an amendment to the TWUA
agreement, Susanne Hauerwas, on inquiry, was told that
she didn't have to belong to TWUA, but that "if I did not
belong to the Union that I would not have the protection
that it afforded, you know, the protection that the Union
could give me I wouldn't have it."
According to summaries of its records submitted by
Respondent at the request of General Counsel, a number
of employees in the unit never signed TWUA authoriza-
tions or had dues deducted from their pay on behalf of that
union.ii Both before and after the move to Carrollton,
Virginia Johnson went around among the employees
seeking signatures to TWUA check-off authorizations. To
those girls who had already signed such authorizations,
Johnson stated that it was necessary because the original
authorizations had been misplaced. A number of the
employees refused to sign cards for Johnson.
is In crediting these witnesses , I have carefully considered their
testimony on cross -examination which Respondent argues as a basis for
discrediting them
E. Respondent 's Opposition to ILGWU
About the first of November, ILGWU representatives
appeared on Respondent's parking lot for the purpose of
passing out leaflets about quitting time for the afternoon
shift . Johnson instructed the employees not to leave the
plant . Buchanan and Sam Goldman told the girls that they
should not talk to the ILGWU men, that they were "on the
property illegally." Johnson advised the employees that
they could tear up the ILGWU papers and break their
pencils. While the employees were waiting in the plant,
TWUA Representative Boartfield arrived. Johnson told
him that Goldman was upset over the appearance of the
ILGWU and wanted Boartfield to call him immediately.
Johnson gave Boartfield a telephone number to call
Goldman. Thereafter, Boartfield told the waiting employ-
ees that the ILGWU was leafleting the plant , that they
should not accept anything, just roll up their windows and
drive past . Some employees said they were curious and
wanted to see what the ILGWU had to say. One stated that
she was not going to take anything if it was going to
interfere with her job, or cause her to be fired . Boartfield
assured them that they could take the leaflets without fear
of being discharged. A number of the employees did accept
leaflets as they left the plant.
On one or more occasion, Johnson questioned Anna
Renee Elder at her work as to whether "another union"
had been out to see her. Johnson said that Elder was "not
to talk to them, to shut the door in their face , that I aught
have a possibility of losing my job if I had anything to do
with them." This occurred about the first of December.
About the same time , Supervisor Yelverton told Linda Ann
Alverson that "if he caught anybody talking in favor of the
Garment Workers Union that he would personally see that
they got fired."
At various places in its brief, Respondent argues, in
effect, that Alverson should be discredited or her testimony
be given no weight because she was assertedly "hostile,"
was not discriminated against , gave allegedly contradictory
testimony , and no "substantiating proof" was assertedly
presented. Respondent states that it was unable to produce
Yelverton as a witness because his whereabouts were
unknown. From my observation of Alverson, and careful
study of her testimony, I do not find that her testimony
thus carries within itself the seeds of its own destruction, as
indicated by Respondent. Though Respondent here de-
nominates her "hostile ," it is noted that elsewhere
Respondent argues that her testimony concerning her
employment interview with Plant Manager Neal, noted
above, is favorable to Respondent. Also, while Alverson, in
another connection , testified that she was not told that she
would have to join TWUA in order to be hired, or that she
would be fired "if she quit the Union," I do not find that so
inconsistent with her testimony with respect to Yelverton
that the latter must be discarded. On the other hand, I find
her testimony consistent with Johnson's statement to Elder
set forth above, as well as Respondent's general animus to
I I Some of the authorizations executed by employees were lost In some
cases, dues were deducted though Respondent could not locate the
employee's authorization
SCOTTEX CORPORATION 451
the appearance of the ILGWU at the plant . Alverson's
testimony as set forth is therefore credited
II. ANALYSIS AND CONCLUSIONS
A. The Contracts Between Respondent and TWUA
Inherent to the right of employees under the Act to freely
choose their own bargaining representative , and not have
such representative foisted upon them , is the requirement
that at the time the choice is made the operation in which
they are employed shall be in substantially normal or
expected production and the group of employees forming
the electorate shall be fairly representative of the anticipat-
ed employee complement . Thus a bargaining agreement
executed before a substantially normal complement of
employees is at work , or at a time when the employer's
operations are incipient , merely preliminary , or insubstan-
tial, tends to foist that union and that agreement upon the
working force to be hired , and deprives the employees of
the freedom of choice guaranteed by the Act See the
excellent analysis by Trial Examiner Theeman in Ltanco
Container Corp., 173 NLRB 1444, at 1447-8
B. The February 8 Agreement
Without question, at the time the original TWUA
agreement was executed, on February 8, covering the
Cedar Hill plant, neither Respondent's work force nor its
operations were representative of Respondent's anticipated
Texas operations. At that time, a little over a month after
the operation began, Cedar Hill employed three persons in
only two classifications-knitter and knitter trainee. It is
further evident that at no time was the operation at Cedar
Hill more than a preliminary step on the way to
Respondent's goal At no time did that operation consist of
more than a very few employees in two or three
classifications and a very few knitting machines. In fact,
the record strongly indicates that Cedar Hill was used
principally, if not entirely, as a training operation. It is
noted that of the four basic job classifications provided for
in the original TWUA agreement, two (creeler and yarn
handler) were never filled at Cedar Hill
It is manifest that from the outset Respondent's intent
was to establish an operation in Texas to produce finished,
dyed textile fabrics on a scale beyond the capacity of the
Cedar Hill plant Thus the acquisition of the Carrollton
plant, a few months after beginning at Cedar Hill, was
clearly the result of Respondent's almost immediate quest
for larger, more permanent quarters in which to achieve its
production purposes. The letter agreement between Re-
spondent and TWUA, dated August 10, confirms this.The
move from Cedar Hill took place in October, at which time
about six production employees were transferred to
Carrollton. By December, dyeing and finishing operations,
never performed at Cedar Hill, were in force at Carrollton.
At the time of the hearing in this matter, as previously
noted, Respondent was employing more than 50 employees
12 Respondent did not call as witnesses management officials in a
position to know Respondent's anticipated employee complement and
production goals at the Texas operations (a clearly critical issue in the case),
leading to the conclusion that their testimony would be detrimental to
in nine unit classifications . There are about 45 knitting
machines available or in operation . Every indication is that
the operations will further expand.
Though the conditions under which the original TWUA
bargaining agreement was executed fall far short of those
required under the Act for a valid agreement , nevertheless
the General Counsel agrees that the Board is precluded by
Section 10(b) of the Act from finding that agreement
violative of the Act because the charge in this matter was
filed more than 6 months after the execution of the
agreement . He does contend , however , that by its action in
extending the original agreement to the Carrollton opera-
tion , at a time when Carrollton was not in operation and a
representative complement of workers was not employed,
Respondent , within 6 months of the filing of the charge,
interfered with the rights of its employees to freely choose
their bargaining representative and allegedly assisted
TWUA in violation of the Act.
C. The August 10 Agreement
The record in this case is convincing that it was the
Respondent's desire to deal with TWUA for its Texas
operations , and that in pursuance of that object it sought to
have its employees to join that Union and further sought to
discourage them from joining or assisting ILGWU. The
August 10 letter agreement extending the Cedar Hill
bargaining agreement to the Carrollton operations was of a
piece with this course of conduct. Respondent and the
TWUA clearly regarded the August 10 agreement as
essential to the effectuation of a TWUA bargaining
contract covering the Carrollton operations and the
employees to be employed there. Contrary to the self-
serving assertion by TWUA in the letter agreement, the
original agreement by its terms was limited to Cedar Hill
and was not necessarily transferrable to Carrollton located
some 32 miles away. The fact that the Respondent and
TWUA felt that there was need for a new agreement
indicates their concern over this.
It is further clear that at the time Respondent entered
into this new agreement , neither Respondent 's operations
nor its work force, either at Cedar Hill or at Carrollton,
was representative of its anticipated normal operations. On
the date of the letter agreement, indeed, no production
operations were being performed at the Carrollton plant. If
any of Respondent 's employees were engaged there at the
time, they were employed only in preparing that facility for
Respondent's future occupancy, which did not occur until
2 months thereafter. As previously noted, at the time of the
letter agreement Respondent employed only five persons
(including Johnson) in two work classifications (knitter
and general help), who were not producing the finished
fabrics contemplated to be made at Carrollton. Although
we do not know what the normal operation at Carrollton
may ultimately be 12, at the time of the hearing Respondent
employed more than 50 employees in about 9 unit
classifications, including dyeing and finishing operations
Respondent's position The tenor of the record as a whole indicates a steady
expansion beyond the situation at the time of the hearing in this matter To
the extent that Buchanan 's evasive comments on the issue tend to the
contrary, they are not credited
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not in existence at either Cedar Hill or Carrollton when the
August 10 agreement was executed.
Respondent and TWUA, citing a number of authorities,
argue, in effect, that the move to Carrollton was merely the
relocation of the Cedar Hill plant and that the execution of
the August 10 agreement was only a formality acknowledg-
ing the extension of the Cedar Hill agreement to the
relocated facility. The General Counsel and ILGWU, on
the other hand, cite countervailing precedents justifying a
contrary position. Among the welter of legalisms pressed in
this case, however, certain indisputable realities stand out
rather clearly. Cedar Hill, at the time the August 10
agreement was signed, remained in the same incohate,
preliminary, nonrepresentative state that had existed when
the February 8 contract was executed. Manifestly the
continued application and enforcement of that agreement,
even at Cedar Hill, and certainly its reaffirmation at that
time by the August 10 letter agreement, could only serve to
frustrate the employees' right of free choice of representa-
tives guaranteed by the Act, and to further impose upon
them the Respondent's choice of such representative, in
contravention of the policies and purposes of the Act.
Moreover, Carrollton was not Cedar Hill transplanted.
Cedar Hill was intended, and was used, as a preliminary
operation, in preparation for the real thing. Carrollton was
to be the real thing, the complete operation, as anticipated
from the outset, removed from the operation at Cedar Hill
in almost every aspect: purpose, production function,
distance, size, equipment, number of employees, as well as
employee skills and work functions. 13
Nor was the application of the Cedar Hill agreement to
Carrollton a mere formality. The original agreement, as
noted, was limited to Cedar Hill. Its application to
Carrollton involved an affirmative act of the parties to the
original agreement, as they acknowledged in the August 10
letter agreement.14
By entering into the August 10 letter agreement, the
Respondent effectively reaffirmed its recognition of
TWUA as the bargaining representative of the employees
expected to be employed at Carrollton, and thereby, in
effect, executed a new bargaining agreement with that
Union to cover its new operations at Carrollton. Since that
was done at a time when there were no operations at that
plant, and neither a representative nor substantial part of
the anticipated normal employee complement was em-
ployed, the employees were foreclosed from any free
choice of their own bargaining representative, in violation
of their rights under the Act.
Inasmuch as this action of Respondent occurred within
the 6-month period prior to the filing of the charge in this
matter, the Board is therefore not precluded by Section
10(b) of the Act from determining whether this conduct
constitutes an unfair labor practice, quite apart from the
13 It is instructive to note that Cedar Hill remained stagnant for more
than 8 months after its inception , with approximately the same employee
complement and equipment , and almost no skilled classification of workers
In 4 months at Carrollton , the work complement and equipment increased
about ninefold , if not more , and the job classifications have tripled
14 Respondent suggests in its brief that it would have been subject to
unfair labor practice charges if it had refused to agree to the extension of the
Cedar Hill agreement to Carrollton However , if Respondent had actually
desired to have a Board determination of TWUA's representative status at
the time , it might have secured a decision from the Board by filing a petition
original execution of the TWUA agreement. See, e.g.,
Distribution Centers of Detroit, Inc., 197 NLRB No. 1
(illegal domination of and assistance to union shown, inter
aka, by reexecution of agreement during 6-month period
after charge filed); Sheet Metal Workers Union, Local 216
(Associated Pipe and Fitting Manufacturers), 172 NLRB 35
(". . . acts of continued enforcement of the contract within
the six month period . . . constituted a new `entering into'
the agreement...." See fn. 4 of Board decision); Kennedy
v. Sheet Metal Workers, Local 108, 289 F. Supp. 65 (D.C.
Calif.); Cf. Shumate v. N.L.R.B., 452 F.2d 717 (C.A. 4)
(reaffirmation of illegal fines by acts within 6-month
period not barred by Sec. 10(b)).i5
For the reasons stated, and upon the record as a whole, it
is found that Respondent, by entering into the August 10
bargaining agreement with TWUA covering its anticipated
operations at Carrollton, and by thereafter executing
amendments to that agreement relating to working
conditions at Carrollton, gave aid and assistance to TWUA
in violation of Section 8(a)(2), and interfered with,
restrained, and coerced its employees in the exercise of
their rights under the Act in violation of Section 8(a)(1) of
the Act
D. Respondent's Conditions of Employment and
Related Assistance to TWUA
The record shows that applicants for employment with
Respondent in its Texas operations were handed check-off
authorizations in favor of TWUA, or agreements to join
TWUA at the end of their probationary periods, to be
executed at the same time as their applications for
employment and other normal employment papers. This
procedure which continued until at least about the middle
of November, could logically lead the applicant to
conclude that it was necessary to execute the agreement to
join TWUA and have dues and fees checked off in favor of
that Union in order to be employed. In addition, the
evidence shows that when questions were raised concern-
ing this TWUA form, management officials and supervi-
sors encouraged the applicants to sign the TWUA form. In
some instances applicants were directed to sign the form.
Respondent's bargaining agreements with TWUA, as
heretofore noted, did not require membership in that
Union as a condition of employment.
Also, at least until November, Respondent regularly
deducted dues and fees for TWUA from the pay of
employees from whom it had check-off authorizations (and
seemingly from some from whom it had none) within less
than 30 days after their employment. At about the first of
November, Respondent reimbursed those employees for
the moneys deducted for TWUA during the first 45 days of
their employment, but retained those deducted beyond the
under Sec 9 of the Act
is While, in Local Lodge No 1424, I A M. (Bryan Mfg Co.) v N LR.B,
362 U S 411, the Supreme Court held that a bargaining agreement valid on
its face, executed more than 6 months before the filing of charges attacking
it, could not be invalidated merely because it was thereafter maintained
within the 6-month period , the Court made it clear that its decision was
limited to the situation there presented , stating " . we need not go beyond
saying that a finding of a violation which is inescapably grounded on events
predating the limitations period is directly at odds with the purposes of the
10(b) proviso." 362 U S at 422 (Emphasis supplied.)
SCOTTEX CORPORATION 453
probationary period and continued such deductions
thereafter.
By its hiring practices noted above, by encouraging and
directing applicants to sign forms agreeing to join and pay
fees and dues to TWUA, and by deducting dues for
TWUA within 30 days of the hire of employees, Respon-
dent aided and assisted TWUA in violation of Section
8(a)(2) of the Act, and interfered with, restrained, and
coerced employees in the exercise of rights under the Act,
and discriminated against those employees, in violation of
Section 8(a)(1) and (3) of the Act. See Western Building
Maintenance Co., 162 NLRB 778; see also, Shreveport
Packing Corp., et al., 196 NLRB No. 78.16
In addition to the above, the following give further
evidence of support and assistance to TWUA at the
Carrollton plant:
1. Johnson, a supervisory employee, and president
of a local of TWUA, solicited check-off authorizations
for TWUA from employees on a number of occasions
while at work. In addition, despite Johnson's anoma-
lous position, Respondent continued to deal with her as
a representative of the employees, thus putting Respon-
dent on both sides of the bargaining relationship.
2. After ILGWU became active at Carrollton in
November, Johnson questioned an employee as to
whether ILGWU had been to see her, and suggested
that she shut the door in the face of representatives of
that other Union and not talk to them, stating that the
employee might lose her job if she had anything to do
with them. About the same time, Supervisor Max
Yelverton told another employee that he would see to it
that anyone talking in favor of the ILGWU would be
fired.
3. When ILGWU appeared on the parking lot of
the Carrollton plant with leaflets, about the first of
November, Johnson, General Manager Buchanan, and
Management Official Goldman told the employees not
to take the leaflets or talk to the ILGWU representa-
tives. Johnson suggested that the employees "break
their pencils," a fairly graphic way of advising
employees not to sign ILGWU designations.
Respondent, by reason of Johnson's solicitation of
authorizations for the TWUA while she was a supervisor
and threat that employees might lose their jobs if they had
anything to do with the ILGWU, and by Yelverton's threat
that employees speaking in favor of ILGWU would be
discharged, interfered with the rights of its employees in
violation of Section 8(a)(1), and aided and assisted the
TWUA in violation of Section 8(a)(2). See, e.g., Shreveport
Packing Corp., et al, supra. Respondent further violated
Section 8(a)(2) by dealing with Johnson, a supervisory
employee, as a representative of TWUA and the employees
in respect to the bargaining relationship between that
16 In coming to these conclusions, the Trial Examiner has considered the
fact that Respondent does not have in its possession authorizations from a
number of employees whom it hired for whom deductions for TWUA were
not made , that some employees refused Johnson ' s request to sign
authorizations after originals were assertedly lost (which may account for
the absence of such forms from Respondent 's files), that there is no
evidence that any employee was discharged for not joining TWUA, and
that some employees beginning in November were told that they did not
have to j oin or remain in TWUA (though encouraged to do so), as well as
other similar matters urged in Respondent 's brief These matters , neverthe-
Union and the Respondent, thus resulting in Respondent
being represented on both sides of the relationship, and
depriving the employees of their full right to representa-
tion. See, e.g., E.E.E. Co., Inc., 171 NLRB 982.
While the remaining evidence set forth in the items
above have been considered insofar as it sheds light upon
Respondent's animus toward ILGWU at its Texas opera-
tions, and its preference for TWUA, I do not consider that
they were fairly alleged as separate violations of the Act,
and inasmuch as they would, for the most part, not require
any different remedy than the violations previously found,
I find it unnecessary to pass upon these matters as
independent violations of the Act.
E. Related Litigation
During the pendency of this matter Respondent has
called my attention to the decision and opinion of Judge
Hill in Youngblood v. Scottex Corporation, 80 LRRM 2619
(D.C. Tex., 4/19/72), denying the General Counsel's
request for a 10(j) injunction in the situation involved in
the present case (though finding " `reasonable cause' to
believe unfair labor practices have occurred") and to the
decision and opinion of Judge Tyler in Textile Workers
Union of America, et al. v. Scottex, (D.C.N.Y., 6/20/72).
This latter case involved requests by TWUA and ILGWU
to have the Court enforce each of two separate, incompati-
ble arbitration awards. The first arbitration award was
granted upon a grievance of ILGWU that Respondent's
establishment and maintenance of the Carrollton plant
violated article 24 of the bargaining agreement between
ILGWU and Respondent covering Respondent's New
York operations. This provision of the agreement reads as
follows:
The Employer shall cause all the work for which his
shop, factory or mill shall have facilities and suitable
machinery and equipment to be performed in his own
shop, and he shall not cause any such work to be made
or obtain such fabrics outside of his own shop unless
the workers of his own shop are fully supplied with
work, and then only in shops or from firms which are
under contractual relationship with the Union and
which comply with the terms thereof.
As stated by Judge Tyler, "After hearings, the impartial
chairman [Mintzer] entered an award in which he agreed
substantially with the Local 155 [ILGWU]; required that
within 60 days . . . [Respondent] would cease all knitting
operations at its Carrollton plant; and that upon failure to
comply with this direction, [Respondent] would be liable
to Local 155 in damages at the rate of $2,000 per
week. . . ... 17
The second arbitration award was issued upon a
grievance of TWUA under the bargaining agreements
less, do not obviate the conclusion reached, that Respondent's conduct, in
the context of this case, clearly tended to obstruct the free exercise of rights
under the Act, discriminated against the employees, and illegally aided and
assisted TWUA
it it would appear that at the time of this award Respondent's employees
were "fully supplied with work" within the meaning of art. 24, inasmuch as
Judge Tyler found that both in 1959 , when Respondent gave notice "that it
planned to commence operations in Texas" and "today both of [Respon-
dent's ] Brooklyn plants are in full operation with no layoff, and the same is
true at the Carrollton plant indeed, [Respondent] claims without refutation
(Continued)
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considered hereinabove, after Respondent notified TWUA
that it would close its Texas plant. In respect of this, Judge
Tyler states, "After hearings, arbitrator Wildebush found
as a fact that [Respondent] . . was contrained by the
Mintzer award to close down its Carrollton operation.
Thereupon, Mr. Wildebush rendered an award enjoining
Scottex from closing its Texas plant. Further, he provided
that if [Respondent] disregards his award, Textile Workers
may come before him again for the purposes of proof and
assessment of damages."
During the course of the proceedings, Respondent filed
charges with a regional office of the Board charging that
article 24 (set forth above) was a "hot cargo clause" illegal
on its face under the provisions of Section 8(e) of the Act.
It appears that the Regional Director refused to issue a
complaint on the charges because the agreement involved
had been signed more than 6 months prior to the charges.
There is no indication Respondent appealed this ruling.
After the Mintzer award, Respondent filed amended
charges with the Regional Director. In this instance, the
Regional Director refused to issue a complaint on the
ground that he was bound by the Mintzer award.18
Respondent has appealed this ruling. It appears that this
appeal is still pending.
Judge Tyler ordered "the parties here to submit their
differences in tripartite proceedings before an impartial
arbitrator .. ," and gave the following direction to the
impartial arbitrator:
In addition to questions or issues heretofore indicat-
ed, I note specifically that the tripartite impartial
arbitrator will be required to explore another substan-
tial legal issue as to whether or not the Mintzer
construction of Article 24 of the Local 155 collective-
bargaining agreement is correct. Put differently, Scot-
tex has raised a serious question as to whether or not
the Mintzer construction of Article 24 constitutes a
violation of Section 7 and 8(a) of the National Labor
Relations Act as amended. 29 U.S.C. §151 et seq. In
the absence of circumstances such as fraud, this court
would ordinarily lack authority to inquire into the
correctness of Mintzer's award. See United Steel
Workers v. Enterprise Wheel, 362 U.S. 593 (1960).
Because the awards are in direct conflict, however, the
impartial arbitrator will have to inquire into the
correctness of Mintzer's award in an attempt to resolve
the controversy.
The parties have not argued the applicability of these
decisions to the current matter. I have carefully considered
both. I find Judge Hill's decision on General Counsel's
request for a 100 injunction inapplicable to the present
proceeding, in which the facts have been considered on
their merits. In the absence of any express indication by
Respondent, its contention as to the application of Judge
Tyler's decision to the issues before me is unclear, unless
there is an implicit suggestion intended by Respondent that
here that it has added a total of about 150 employees as a result of the start
up of its Texas operation "
18 But Cf International Brotherhood of Boilermakers, (Bigge Drayage
Company), 197 NLRB No 34, and especially Chairman Miller's concur-
rence
19 In addition to the fact that under Board precedents art 24 reads much
decision in this matter should be deferred to the arbitration
ordered by Judge Tyler.
Assuming that the purpose in bringing Judge Tyler's
decision to my attention is to suggest deference to the
arbitration process, I find it to be without merit. None of
the proceedings had to date suggests that the arbitrators
have been concerned with rights of the employees under
the Act, nor (with the exception of Judge Tyler's direction
that the validity of the New York agreement be consid-
ered) does it appear likely that special attention to
employee rights under the Act will be granted in the future.
Indeed , the crucial issue in this case-the validity of the
TWUA agreement and, in fact , the right of TWUA to
bargain for the Texas employees in the first place-have
apparently not been considered by the previous arbitrators
at all, and are unlikely to be considered in the future. This
is not in criticism of the arbitrators , or the arbitral process,
which is geared to rights and obligations grounded in the
contractual process, not to the resolution of wide-ranging
legal problems involved in effectuating governmental
policies derived from the Act in which the Board has
particular responsibility and expertise.19
For the reasons stated , I believe the Court decisions to
which I have been referred inapposite to the resolution of
the issues before me.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. TWUA and ILGWU are labor organizations within
the meaning of Section 2(5) of the Act.
3. Respondent, after May 5, 1971, by recognizing and
dealing with TWUA as the collective-bargaining represent-
ative of the employees employed at its Texas operations
and entering into, maintaining, and enforcing collective-
bargaining agreements with TWUA with respect to the
wages, hours, and conditions of employment of such
employees, by maintaining employment practices and
engaging in other conduct encouraging, directing, or
coercing employees at its Texas operations to join and pay
fees and dues to TWUA, by threatening employees with
reprisal for joining or assisting ILGWU, by recognizing,
negotiating, and dealing with a supervisor at its Texas
operations as a bargaining representative of its employees
on behalf of TWUA, as set forth hereinabove, gave aid,
assistance, and support to TWUA in violation of Section
8(a)(2) of the Act, and interfered with, restrained, and
coerced its employees in violation of Section 8(a)(1) of the
Act, and by its employment practices and other conduct
causing employees to join and assist TWUA, referred to
above, also violated Section 8(a)(3) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
like clauses that have been previously condemned by the Board, it would
also appear that insofar as that article forbids the Respondent to open other
plants unless they are placed under contract to ILGWU, this may well
constitute a prehire agreement illegal under other precedents previously
discussed
SCOTTEX CORPORATION 455
THE REMEDY
It having been found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1), (2),
and (3 ) of the Act, it will be recommended that Respon-
dent cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
In order that the employees at the Texas operations may
be restored as nearly as possible to the rights which they
would have enjoyed absent Respondent 's actions in
violation of the Act, it is appropriate that Respondent be
ordered to withdraw and withhold all recognition from
TWUA as the collective-bargaining representative of any
of its employees at its Carrollton plant, or other Texas
operations , and cease giving any force or effect to any
collective -bargaining contract with TWUA covering such
employees , or to any modifications , extensions , supple-
ments , or renewals of such contract or contracts , unless
and until TWUA shall have been certified as the
bargaining representative pursuant to a Board - conducted
election among such employees of Respondent in a unit or
units appropriate for collective bargaining.20
Nothing in the Recommended Order set forth hereinaft-
er, however , shall be construed to require the Respondent
to vary or abandon any wage, hour, seniority , or other
substantive feature of the relationship between Respondent
and its Texas employees , inuring to the benefit of such
employees , which may have been established pursuant to
any such contract , or to prejudice the assertion by the
employees of any rights they may have under such
contract, or any established practice in regard to wages,
hours of employment , or conditions of employment.
General Counsel and ILGWU urge that Respondent be
ordered to reimburse employees from whose pay dues and
fees were checked off in favor of TWIJA. The record in
this matter justified a presumption that those employees
authorizing such checkoffs did so by reason of Respon-
dent's direction, encouragement , solicitation , the inclusion
of the checkoff papers with other employment papers,
and/or because of the fact of the invalid agreement with
TWUA providing for such checkoff , and did not do so
freely and voluntarily . It is appropriate that Respondent be
ordered to reimburse employees for dues and fees
deducted from their pay for TWUA pursuant to such
authorizations not freely and voluntarily given.21 Reim-
bursement shall include interest on the monies due, to be
computed in the manner set forth in Seafarers International
Union of North America, 138 NLRB 1142, fn 3
ILGWU also requests a number of other specialized
remedial provisions to assist in dissipating the effect of
Respondent 's special treatment of TWUA, and to give
ILGWU "a fair opportunity to effectively communicate
with the employees ," including ILGWU use of Respon-
dent's bulletin boards , access by ILGWU nonemployee
20 ILGWU urges that the Trial Examiner order that any such Board-
conducted election not be conducted until after a 6-month " insulation
period " It seems to me that the Board's Regional Director would be in the
best position, in the first instance, to determine when an election may be
held free from the effects of the unfair labor practices found herein, and I
am satisfied to leave this matter to his informed discretion, subject to the
Board's rules and practices in these matters
21 If a compliance hearing becomes necessary, Respondent will have an
opportunity to show by probative and objective evidence, if it desires, which
organizers to factory parking lots and plant approaches for
solicitation and literature distribution , provision for read-
ing of the notice attached hereto by Respondent or a
Board agent to the employees dunng working hours,
provision for Respondent 's mailing the notice to each
employee, opportunity for ILGWU to speak to employees
on Respondent 's property during working hours, and
Respondent 's furnishing lists of employees and their
addresses to ILGWU, to be kept current for 1 year.
It does appear to the Trial Examiner upon consideration
of this entire matter that nonemployee ILGWU organizers
should be permitted reasonable access to employee parking
lots and other areas maintained by Respondent outside its
Texas plants where employees may normally be met and
may receive communications . Also, considering the fairly
constant turnover of employees shown by the record, in
light of the assistance rendered TWUA, the request that
ILGWU be furnished the names and addresses of the
employees on a current basis appears justified . These two
special provisions should suffice to afford the employees
with an opportunity to hear what ILGWU has to say so
that the employees may make an informed decision with
respect to representation . Such lists shall be kept current
for a period of 6 months from the time the first list is
furnished to ILGWU, or until the date a Board election
may be conducted among the employees concerned if that
occurs earlier. The remaining requests of ILGWU for
special remedial provisions are rejected.
Upon the foregoing findings of fact and conclusions, and
the entire record, pursuant to Section 10(c) of the Act, I
hereby issue the following:
RECOMMENDED ORDER22
Respondent, Scottex Corporation, its officers, agents,
successors, and assigns, shall:
I Cease and desist from:
(a) Recognizing or contracting with Textile Workers'
Union of America, or any of its locals, as the representative
of any of its employees at Carrollton, Texas, or at other
Texas operations, for the purpose of dealing with said
organization concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of
employment, unless and until said labor organization shall
have been certified as such representative pursuant to a
Board-conducted election among Respondent's employees
at such location or locations.
(b) Giving effect to, performing, or in any way enforcing
in whole or in part, any collective-bargaining contract with
Textile Workers' Union of America, or any of its locals,
relating to grievances, labor disputes, wages, hours of
employment, rates of pay, or other conditions of employ-
ment, covering employees at the Carrollton plant, or at
other Texas operations, unless and until said labor
individuals may have been members of TWUA before employment with
Respondent, or otherwise demonstrated a free and voluntary choice in
joining TWUA and authorizing deductions in its behalf
22 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
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization shall have been certified as representative of
the employees covered by such contract pursuant to a
Board-conducted election among such employees, in
accordance with the provisions of the section of this
Decision entitled "Remedy."
(c) Recognizing, negotiating, or dealing with any of its
supervisors as a representative of Textile Workers' Union
of America, or any other labor organization, or as
bargaining representative of its employees within the
meaning of Section 9(a) of the Act.
(d) Contributing support or assistance to Textile Work-
ers' Union of America, or any other labor organization, or
discriminating with respect to the hire, tenure, or condi-
tions of employment of any employee, by engaging in the
practice of furnishing prospective employees, job appli-
cants, or newly hired employees prior to the expiration of
30 days after their hire, with membership application, or
check-off forms, in favor of any labor organization, or by
coercively directing, encouraging, or requiring any such
employees to join or assist or execute authorizations in
favor of any labor organization.
(e) Checking off membership fees or dues in favor of
Textile Workers' Union of America, or any of its locals, for
employees at Carrollton, Texas, or any other Texas
corporation, pursuant to any authorizations executed prior
to the date of compliance with this Recommended Order.
(f) Making express or implied threats of reprisal if its
employees join, support, or select International Ladies'
Garment Workers' Union, or any other labor organization,
as their bargaining representative.
(g) In any like or related manner assisting, supporting, or
interfering with the administration of Textile Workers'
Union of America, or its locals, or otherwise interfering
with, restraining, or coercing its employees in the exercise
of their rights to self-organization, to join, form, or assist
any labor organization, to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or
all such activities.
2. Take the following affirmative action which it is
found will effectuate the purposes of the Act:
(a) Withdraw and withhold all recognition from Textile
Workers' Union of America, and any of its locals, as the
collective-bargaining representative of any of its employees
at Respondent's Texas operations unless and until such
organization shall have been certified as such representa-
tive pursuant to a Board-conducted election.
(b) Reimburse all present and former employees for all
fees and dues deducted from their pay pursuant to
authorizations in favor of Textile Workers' Union of
America executed prior to the date of compliance with this
Recommended Order, in accordance with the provisions of
this Decision as set forth in the "Remedy" section
hereinabove.
(c) Permit nonemployee organizers of International
Ladies' Garment Workers' Union reasonable access to
employee parking lots and other areas maintained outside
Respondent's plant or plants in Texas where employees
may be normally met and receive communications, for the
purpose of providing that organization an opportunity to
have oral and written communication with Respondent's
employees.
(d) Furnish International Ladies' Garment Workers'
Union with lists of names and addresses of its employees at
its Texas operation engaged in production, maintenance,
and related activities, in accordance with the provisions of
the "Remedy" section of this Decision.
(e) Post at its plant in Carrollton, Texas, copies of the
attached notice marked "Appendix."23 Copies of said
notice to be furnished by the Regional Director for Region
16, after being duly signed by an authorized representative
of the Employer, shall be posted immediately upon receipt
thereof and be maintained by it for 60 consecutive days
thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of the receipt of this
Decision what steps the Respondent has taken to comply
herewith.24
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" 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 "
24 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 16, 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
WE WILL NOT recognize or deal with Textile
Workers' Union of America, or any of its locals, as the
exclusive bargaining representative of employees at our
Carrollton, Texas, plant, or at any other of our Texas
operations, unless and until that union has been
certified as representative of our employees after an
election conducted by the National Labor Relations
Board.
WE WILL NOT give any further effect to any
collective-bargaining agreements we have with Textile
Workers' Union of America covering employees at our
Carrollton plant, or any other Texas operations, and
WE WILL NOT enter into any more contracts with that
union covering our Texas operations, unless and until
that union has been certified by the National Labor
Relations Board as the bargaining representative of our
Texas employees.
WE WILL NOT engage in a practice of encouraging or
requiring membership in Textile Workers' Union of
SCOTTEX CORPORATION 457
America, or any other union, by givingjob applicants,
prospective employees, or new employees checkoff
authorizations, or agreements to join Textile Workers'
Union of America, or any other union, as part of our
employment procedures, and WE WILL NOT coercively
direct, encourage, or require any employee to sign any
such authorization in favor of any union.
WE WILL NOT check off any dues or fees from
employees' pay for Textile Workers' Union of America
at our Texas operations except on lawful authorizations
signed after that Union has been certified by the
National Labor Relations Board as the bargaining
representative of those employees.
WE WILL NOT recognize or deal with any of our
supervisory employees as the collective-bargaining
representative of any of our production and mainte-
nance employees, or as the agent or representative of
any union which may represent any of our employees
WE WILL NOT threaten any of our employees with
harm or reprisal if they loin, assist, or select Interna-
tional Ladies' Garment Workers' Union as their
collective-bargaining representative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our Texas employees in their
right to join or assit any labor organization, to bargain
through representatives of their own choosing, or
engage in concerted activities for the purpose of
collective bargaining or other mutual aid, or to refrain
from any or all such activties.
WE WILL reimburse our Texas employees for any
fees or dues deducted from their pay for Textile
Workers' Union of America pursuant to authorizations
not freely and voluntarily given by the employees in
favor of that union , in accordance with the applicable
Order of the National Labor Relations Board or its
Trial Examiner issued after a hearing on charges and a
complaint against the Company under the National
Labor Relations Act.
Dated By
SCOTTEX CORPORATION
(Employer)
(Representative) (Title)
This is an official 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 concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Room 8-A-24, 819 Taylor
Street, Fort Worth, Texas 76102, Telephone 817-334-2921.