Shirt Shed, Inc.

National Labor Relations Board - Board Decisions

Sep 22, 1980

252 N.L.R.B. 292 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shirt Shed, Inc. and Indiana Joint Board, Retail,
Wholesale and Department Store Union, AFL-
CIO. Case 25-CA-10353
September 22, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On June 23, 1980, Administrative Law Judge
Herzel H. E. Plaine issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and counsel for the
General Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Shirt Shed,
Inc., Wabash, Indiana, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order, except that the at-
tached notice is substituted for that of the Adminis-
trative Law Judge.
I Respondent has 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT issue disciplinary warnings to
employees for alleged production or attend-
ance deficiencies, or take other reprisal or
threaten discharge or reprisal against employ-
ees, because of their participation or leadership
in concerted protected activities under the Na-
tional Labor Relations Act, because of their
revival or suspected revival of union activities,
because they talk about the Union, or in order
to discourage the union activity or member-
ship of employees.
WE WILL NOT interrogate employees con-
cerning the filing of charges, or union charges
on their behalf, with the National Labor Rela-
tions Board or concerning communications
with Board agents regarding such charges or
Board complaints, and WE WILL NOT pressure
employees to obtain withdrawal of any such
charge or complaint, or threaten reprisal
against employees unless the withdrawal is ob-
tained.
WE WILL NOT coercively interrogate em-
ployees concerning their past union activities
or whether the Union has a good chance to
unionize the plant in the future.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in
Section 7 of the National Labor Relations Act.
WE WILL expunge from the employment
record of Vicki Weeks the disciplinary warn-
ings of October 16 and November 6, 1978,
which we unlawfully issued to her.
SHIRT SHED, INC.
DECISION
STATEMENT OF THE CASE
HERZEL H. E. PLAINE, Administrative Law Judge:
The case involves the issuance by Respondent, which is
engaged in the business of printing and selling T-shirts,
of two successive warnings to an employee, allegedly be-
cause of her activity for the Charging Party (the Union),
in violation of Section 8(a)(3) and (1) of the National
Labor Relations Act, as amended (the Act), and further
charged violations by Respondent of Section 8(a)(l) of
the Act for alleged interrogation of and threats to em-
ployees because of their union or protected concerted ac-
tivities, and of Section 8(a)(4) of the Act for alleged in-
terference with Board processes.
The complaint was issued on December 20, 1978, and
amended on March 23, 1979, on a charge filed by the
Union on November 13, 1978.
Respondent has denied that the warnings were dis-
criminatory, and that it engaged in interrogation of em-
ployees concerning their Union activities or desires, or
252 NLRB No. 42
292
SHIRT SHED, INC.
threatened employees because of union or protected con-
certed activities.
The case was heard at Wabash, Indiana, on March 23
and April 16 and 17, 1979. The General Counsel and Re-
spondent have filed briefs.
Upon the entire record of the case, including my ob-
servation of the witnesses and consideration of the briefs,
I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation that maintains its principal
office and place of business at Wabash, Indiana, where it
prints, sells, and distributes T-shirts.
In the year prior to issuance of the complaint, a repre-
sentative period, Respondent purchased and caused to be
delivered to its Wabash plant goods valued in excess of
$50,000 directly from points outside Indiana.
As the parties admit, Respondent is an employer
within the meaning of Section 2(2), (6), and (7) of the
Act.
As the parties also admit, the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Respondent's Business Operations
Respondent prints legends and designs on already
manufactured T-shirts and sells the printed shirts to
wholesale or retail outlets,
The production process starts in the office with the
outlets' orders for the types, sizes, and colors of shirts
and the kind of legend or design (or both) to be printed
on the shirts. These orders are delivered to the "print
prep" department where the various types of prints are
set up in sections. The prints are essentially paper,
backed with plasti-sol, showing the legends or designs or
both, which are eventually pressed onto the shirts by a
mechanical press.
In print prep, about five or six women employees go
through the sections of prints picking out the kind and
number of prints to match each order. The orders, and
prints belonging to each order, are then delivered by the
print prep employees to the employees in the "shirt
prep" department, which constituted in 1978 usually
about 10 female employees.
In shirt prep, the various T-shirts purchased by Re-
spondent have been taken from boxes and laid out (usual-
ly by an employee or employees doing just layout) in
sections and rows by style, size, material, and color, with
a basic division between adults' and children's sizes and
styles.
The employees in shirt prep take the orders and
matching prints delivered from print prep, and go
through the sections of laid out shirts selecting the
number of shirts, in styles, sizes, and colors to corre-
spond with the order and prints in each case. The shirt
preppers pile the shirts with the corresponding order and
prints into handcarts. The full carts are then moved by
the shirt preppers to the press floor, where the prints are
pressed onto the shirts.
From the press floor, if the orders require it, the print-
ed shirts are moved to the pin-ticketing department,
where a machine puts a small ticket on each shirt show-
ing the name of the selling outlet (e.g., K-Mart stores)
and the retail selling price. The shirts are then moved
into the shipping department, where they are boxed and
shipped out.
In the shirt prep department each employee is expect-
ed to initial orders completed by her and to keep an indi-
vidual count (on pieces of paper) of the number of
dozens of shirts prepped daily by her. At the end of the
day the employee gives her count to the leadgirl (Mary
Bryant) and she gives the several counts to the supervi-
sor (Frances Johnstone), who writes them down and
keeps a file of them. From this record, the supervisor
can thus be aware, on a daily basis, of the total rate and
individual rates at which shirts are prepped.
Respondent was going through a rapid growth period
before and after the events of the case, according to
Richard Sutton, who had been in sales and in charge of
plant production and of personnel in his approximate 4-
1/2 years with Respondent prior to the hearing. In early
1975 Respondent had about 25 employees and in April
1979 about 300 employees. At the time of the June 1978
Board election there were about 120 employees.
The production employees were hourly paid and usu-
ally worked a 40-hour week in 4 10-hour days, Monday
through Thursday, from 7 a.m. to 5:30 p.m. Thus, Friday
and Saturday work was regarded as overtime work by
Respondent, and paid for at time-and-a-half rates if the
employee had already done his 40 hours that week.
However, Respondent experienced some slack periods,
as in August through mid-October 1978, when orders
were down, and the production employees worked less
than 40 hours a week. A dispute arose in mid-October
1978, when a sudden rush in orders developed and Re-
spondent insisted on the 40-hour rule before paying over-
time even though the previous reduction in regular hours
was not the fault of the employees (discussed further,
infra).
Respondent's top active supervision comprised Presi-
dent James (Jim) Moore, and Executive Vice President
William (Bill) Hensley. Responding to them and more
particularly to Hensley, were Richard Sutton, who, from
the summer of 1977 to about July 1978, was in charge of
production, and, from about July 1978 till April 1979,
was director of personnel, and became director of build-
ings and facilities in April 1979. Succeeding Sutton in
July 1978 as supervisor of production, according to Vice
President Hensley, was Dick Hazeltine, who, after about
8 months in that position, was discharged in February
1979, said Hensley. Installed as an assistant personnel di-
rector to Sutton in mid-October 1978, was Kathleen
(Kathy) Winslow, who became personnel director in
April 1979 when Sutton became director of buildings
and facilities.
Supervisor of the shirt prep and print prep depart-
ments was Frances Johnstone. She apparently regarded
Vice President Hensley as her supervisor (and her rela-
tionship to Sutton and Hazeltine to whom she was seem-
293
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ingly responsible when they were production supervisors
was left unclear by the testimony.
All of the foregoing named supervisory personnel
were admitted supervisors within the meaning of the
Act.
B. Background of Union Organization and
Respondent's Counteractions
Respondent's employees were not unionized.
Commencing near the end of April 1978, employee
Vicki Weeks was responsible for inviting the Union to
commence organizing the employees, and took the lead-
ing role among the employees in stirring interest in
bringing the Union into the shop.
Employee Weeks arranged for an initial meeting at her
home of about eight employees and two union repre-
sentatives on Friday, April 21, 1978,2 where the employ-
ees were told how a union operated, expressed their in-
terest, and signed union representation cards (see G.C.
Exh. 13 for Weeks).
On the following Monday, April 24, beginning early
before the 7 a.m. start of work, employee Weeks com-
menced the solicitation of union card signatures which
was carried on then and thereafter in the front break
room of the plant before and after working hours and in
the plant parking lot at lunch and other nonworking
times.
A second meeting, attracting more employees, was
held at Weeks' home 2 weeks after the first meeting, at-
tended by a third union representative, Linda Courtney.
Additional meetings were held thereafter, at weekly or 2
week intervals, at the Rubber Workers hall or a Holiday
Inn until the election at the end of June. Notice of the
meetings was given by passing word around the plant or
an occasional written notice.
In the organizing, employee Weeks was assisted by
employees Darlene Moore, Betty Persley, and Cora Mir-
acle. Weeks and they engaged in discussions with other
employees in the plant breakroom and parking lot in
nonworking hours, continued the solicitation of card
signing, and distributed union literature in the plant park-
ing lot usually between 6 and 7 a.m., assisted by the
union representatives.
On one of the latter occasions, President James
Moore's mother, Hazel Moore, who also worked in the
plant, came out of the plant into the parking lot where
the several employees including Weeks were handing out
union literature, and, addressing employee Weeks, told
her that she and the others were engaging in illegal ac-
tivity and would have to get off the property. Weeks de-
clined to stop or leave saying their distribution of hand-
bills in nonworking hours was not illegal. Vice President
Hensley, who was aware of the incident, testified that
Hazel Moore was not a supervisor, and that he never in-
structed her to tell employees to stop distributing union
handbills in the parking lot.
I There were other departmental supervisors, such as for the print
floor, shipping, direct screen (direct printing on shirts). and art depart-
ments, of equivalent rank with Supervisor Johnstone, but they were not
involved in the events of this case.
2 The dates hereinafter are 1978 unless otherwise stated.
Vice President Hensley himself was directly aware of
the union activity and of employee Weeks' role, from the
beginning. Hensley testified that he knew, by April 23, of
the signing of union cards by employees; and Weeks tes-
tified, without contradiction, that on an occasion when
she and employee Darlene Moore were distributing
union literature in the parking lot, Hensley came out and
stayed about 15 minutes, talking with them. Other super-
visors, such as then- Production Supervisor Sutton (later
the personnel director), testified to knowledge of em-
ployee Weeks' union activity.
Respondent lost no time in countercampaigning. On
April 28, Respondent called a meeting on company paid
time of all employees of the departments concerned with
shirt production, art, and shipping. As described by em-
ployee Eva Morris (who was opposed to the Union) and
employee Vicki Weeks (who, of course, favored the
Union), it appeared that President James Moore and
Vice President Bill Hensley presided, and that Moore
told the employees that he knew some of them were par-
ticipating in the union campaign but that they did not
need the Union, they were just starting to roll in their
new facility, and he did not think there were that many
problems needing correction to cause them to look for
outside assistance.
President Moore said he wanted to know what the
problems were, and in response various employees men-
tioned problems with the condition of the breakroom, its
ventilation, and the food and drink supplier. Moore said
that those would be corrected. A question was raised as
to favoritism shown certain employees. Moore said he
was not aware of it but would look into the subject and
eliminate favoritism. Question was raised about Friday
overtime having been made mandatory (in an 8-week
period in the fall of 1977) and that overtime pay had not
been uniformly paid. According to employee Morris,
President Moore replied it was not intended to be man-
datory, and he would see that henceforth overtime was
not made mandatory; and Vice President Hensley stated
that if employees who were asked to do overtime had
not reached their regular 40 hours for the week because
of company fault, the employees would nevertheless get
the full overtime rate for the Friday-Saturday hours.
President Moore noted in connection with his reply, that
if the Union were in the plant, there could be a union
contract clause for discipline for not working overtime.
Lastly, President Moore told the employees that the
shirt business was very competitive and that if the Union
came in it would hurt business, there could be a strike
for more wages that would back up orders and cost
money to settle, with an increase in prices and not neces-
sarily more money or benefits for the employees, and
might put him out of business.
Respondent followed up this initial meeting in two
ways. First, over the ensuing period of the union cam-
paign, Respondent sent a series of 10 letters to each em-
ployee, from May 18 through June 29 (G.C. Exh. 12),
pointing out various alleged hazards to the employees
and employer of bringing in the Union (with heavy em-
phasis on the possibility of strikes and results flowing
294
SHIRT SHED, INC.
therefrom) and urging that the employees vote against
being represented by the Union.
Second, using two hired labor relations consultants
(Little and Goodman), Respondent ran a series of com-
pulsory weekly meetings, on company paid time, assem-
bling the employees in smaller groups than the company
meeting of April 28. In the course of using a question
and answer technique, as described by employees Morris
and Weeks, the consultant (Little) insinuated questions
bordering upon impropriety, if not improper, such as
asking employees why they thought the Union could do
better for the employees than the Company could (with-
out payment of dues by the employees), and what are
your problems so that we can make the Company aware
to correct them. These were followed by explanations of
a handbook, in preparation, on wage scales and behavior
guidelines, derived, it was said, from guidelines of other
nonunion factories; and suggestions that, with the Union,
employees might be fired if they did not work overtime
because the Union usually provided for this in its con-
tracts, or might be fired if they failed to attend union
meetings in Ft. Wayne, since there was no local in
Wabash. Again, there was heavy emphasis on the effect
of strikes on orders and business, and pleas to give the
company a chance to work out problems without the en-
cumbrance of the Union. s
During the union campaign, employee Weeks, worked
for Respondent on the shirt presses. She was already one
of the senior employees (in terms of service) having
started employment with Respondent on the presses,
August 1, 1975. Some time after her hiring, she had
moved onto the press floor as floor inspector or supervi-
sor, and when Vice President Bill Hensley joined Re-
spondent in April 1977, Weeks was doing that job. Like-
wise when Richard Sutton moved into the job of pro-
duction supervisor in the summer of 1977, Weeks was in-
spector or supervisor of the press floor, who became re-
sponsible to Production Supervisor Sutton. Sutton de-
scribed her performance as adequate.
In October 1977, Vicki Weeks came to Vice President
Hensley seeking a transfer to other work because, she
said, the burden of extra hours was too heavy for her
and her family. According to Hensley, a new oper-
ation-pin-ticketing-was about to be installed on an ex-
perimental basis to meet a large order request for such
service, and he suggested that Weeks become the coordi-
nator or supervisor of pin-ticketing. She assumed that
function in October 1977. Again, according to Weeks, by
March 1978 the burden of extra hours required in super-
vision was too much for her, and she took a sick leave
for the first two weeks of April 1978, returning about
April 14, in mutual agreement with Hensley to a regular
employee's job on the presses. 4 This occurred before her
union activity began later in April.
3 None of this testimony was contradicted; but none of Respondent's
counteractions were the subjects of unfair labor practice charges, or com-
plaints and no unfair labor practice findings are required or made. The
actions do constitute background for the events alleged in the charge of
November 13 and the amended complaint of December 20.
' Vice President Hensley indicated in his testimony that the pin-ticket-
ing work had begun to drop and he felt there was no need for a full-time
coordinator or supervisor in pin-ticketing, and he made no replacement in
the job.
During the union campaign, in May, Respondent
issued written disciplinary warnings to employees Vicki
Weeks and Darlene Moore. Both employees testified,
without contradiction, that, prior to the advent of the
Union, Respondent had not issued such warnings; and
there was no evidence of similar warnings in the period
of the campaign to others than the two union activists.
The warning to employee Weeks was issued by super-
visors Sutton and Johnstone on May 17 for alleged drop
in Weeks production count for May 16 and the morning
half day of May 17. According to the warning (G.C.
Exh. 16) and Supervisor Frances Johnstone, who was
temporarily out of her department (shirt prep and print
prep) to assist Production Supervisor Sutton on the press
floor, Weeks had dropped from the expected daily rate
count of 80 dozen to 58 dozen for May 16, and 28 dozen
for the first half day of May 17. Weeks testified that she
had always made her rate before then (and there was no
evidence to the contrary, or that Respondent used any
prior production records as a basis for the warning) and
that she was on an unusual order involving the pressing
of "glitter" on polyester shirts which required more run-
ning time of the press than other type orders." In the
afternoon of May 17, when she went on a more usual
order, said Weeks, her production rate went back up to
the expected 40 dozen (for the half day). She protested
the disciplinary action without avail.
The warning to employee Darlene Moore, who was
also working on the presses at that time, was given on
May 15, also by Supervisors Sutton and Johnstone
(Resp. Exh. 4), because of alleged improper pressing of
10 shirts returned to Moore. Employee Moore testified
that she was concerned that it was not necessarily her
work and when she discovered that two other pressers,
Joline Arvin and Joyce Fitts, had each received back a
rejected cart of shirts at the same time without any
warning or reprimand to either of them she protested to
Supervisor Johnstone. According to Moore, Johnstone
told her she should have known better (than the other
two employees) because at one time she (Moore) had
been an inspector.6 Johnstone did not dispute Moore's
testimony.
The Union had filed a petition for election on May 2,
and the Union and Respondent had agreed on May 26 to
a Stipulation for Certification Upon a Consent Election
among the full-time and part-time regular production and
maintenance employees. The election was held on June
29. The vote was 96 against the Union, 18 for the Union,
and 9 challenged ballots. The Union filed objections to
the election but dropped them without disposition on the
s Supervisor Johnstone, who did not normally work in the press de-
partment, claimed that Respondent did not use glitter on polyester; but
employees Cora Miracle and Bernice Gressley, who worked in the press
department, both testified to putting glitter print on polyester. It was es-
tablished that whatever was used for the print, it required more press
time on polyester.
6 Neither the May 15 warning to employee Darlene Moore nor the
May 17 warning to employee Vicki Weeks were the subjects of a charge,
or alleged in the complaint to have been unfair labor practices, and I
make no finding that issuance of the warnings constituted unfair labor
practices. However, because of their apparent discriminatory nature the
May 1978 warnings comprise part of the background for the events of
this case.
295
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merits, and the result of the election was certified on
July 18, 1978.
C. Postelection Warnings to Employee Weeks
1. Warning of October 16
Employee Weeks testified that after the election held
at the end of June 1978 many employees received pay
raises but she did not. She talked to Production Supervi-
sor Dick Hazeltine (who succeeded Sutton in July when
Sutton took the job of personnel director), calling atten-
tion to her seniority and job performance. Hazeltine told
her she was making 5 cents per hour more than any em-
ployee on the presses, based on the pay given her in
April when she had resumed work as a press operator,
and could not pay her more.
In a second talk with Production Supervisor Hazeltine
in August, with Supervisor Johnstone present, employee
Weeks was offered a job in Johnstone's shirt prep depart-
ment, as the only way she could earn more money be-
cause the job paid more than her press job. She had not
worked in shirt or print prep before but took the transfer
after mid-August and went to work immediately in shirt
prep, with the first few days constituting her on-the-job
training. Weeks was told, she said, that the expected pro-
duction rate count was between 500 and 600 dozen shirts
per day. Mary Bryant, Supervisor Johnstone's lead girl,
gave Weeks her brief training, and Bryant and Johnstone
were both satisfied that Weeks was doing very well, as
they so testified.
Employee Weeks continued to do well right through
her first evaluation on September 25 by Supervisor John-
stone, 5 weeks after her start. The evaluation (G.C. Exh.
3) rated Weeks' performance as satisfactory, without any
comments indicating that Johnstone had any reservations
or doubts, such as she not infrequently added to "satis-
factory" evaluations, compare "satisfactory" evaluations
of employee Doris Stambaugh (G.C. Exh. 15a, "still
trying to bring her rate up"), or of employee Kay Copp
(G.C. Exh. 15b, "must try to keep her rate up more, or
of employee Linda Register (G.C. Exh. 15c, "talked to
her about the errors she has been making. She said she
would try harder not to make them. She takes them in
spells.").
In this period, from mid-August through September 25
and extending through about the first 2 weeks in Octo-
ber, Respondent's orders had dropped in volume and, as
Supervisor Johnstone confirmed, the employees in shirt
prep did not work many 10-hour days or 40-hour weeks,
and, of course, no overtime days. Shirt production was
down and the women filled some of their time by clean-
ing up the floor, laying out incoming shirts from boxes,
and so on.
The daily production records (see G.C. Exhs. 14, 4, 5,
6, and 7) show that while employee Vicki Weeks did not
usually equal the two top producers in shirt prep, em-
ployees Loretta Hayslett (called Tooter) and Barb Car-
penter, Weeks was in the second tier of producers such
as employee Eva Morris, and not in the lowest group.7
? In addition to the drop in orders, and therefore overall drop in pro-
duction, there were also factors that caused daily variances in individual
performances in shirt prep regardless of whether orders were up or
On Wednesday, October 11, the employees were told
of a large K-Mart order that had come in, with a dead-
line, and that they were expected to work on Friday,
October 13, an overtime day, with intimations of more
Fridays as the work progressed. They were also told
that part of Friday's work would be at "straight time,"
the regular hourly pay rate, and not the overtime rate,
because they would not have completed 40 hours by
Thursday night. The overtime announcement was by
Production Supervisor Hazeltine.
The shirt prep employees were apparently upset by
the pay announcement and caucused among themselves,
according to employees Morris and Weeks, to determine
whether they wanted to come in without full overtime
pay and, if they refused, did they risk a penalty. Accord-
ing to employee Morris, the employees turned to em-
ployee Weeks as the knowledgeable person. Weeks
checked Respondent's handbook (newly issued following
the June 29 election) and concluded that while Friday-
Saturday overtime was "expected" if the employee was
requested to work overtime by 5:30 p.m. of the preced-
ing Wednesday, it was not required, that is, failure to
report would constitute an absence only if the employee
had made an agreement beforehand to work overtime.8
The shirt prep employees asked three of their number,
employees Weeks, Morris, and Loretta Hayslett (popu-
larly known as Tooter), to speak to Respondent for
them. When Supervisor Johnstone asked the shirt prep
employees on Wednesday afternoon if they were work-
ing overtime Friday, the spokesmen protested that it was
unfair to deprive the employees of overtime pay for a
fault that was not theirs. Johnstone arranged for the
three employees to meet with Vice President Hensley
and herself on Thursday, October 12.
In the meeting during working hours, which lasted
about 2 hours, as described by employees Weeks and
Morris (without contradiction by Vice President Hensley
or Supervisor Johnstone), they protested, as employee
spokesmen, Respondent's intention not to pay for the full
overtime at overtime rates. Weeks and Morris sought to
remind Hensley that he had promised the employees (at
the outset of Respondent's campaign against the Union)
that the employees would not be penalized on overtime
pay if they had not achieved 40 regular hours in the
week due to no fault of theirs. However, according to
employee Morris, Hensley said he did not recall such a
promise, that the employee handbook required 40 hours
of regular time in the week to qualify for overtime pay,
that he was going to go by the book, and he would like
them to come in on Friday.
Employee Weeks reminded Vice President Hensley
that the handbook did not require overtime, but rather
down. For example, adult shirts were heavier and bulkier and had more
variations in sizes than children's shirts, and orders for adult shirts there-
fore took longer to assemble than orders for children's shirts. Large
orders for a few sizes and styles as distinguished from small orders for a
variety of sizes and styles could be processed faster (pro rated) without
as much time spent in walking around. Orders requiring color assembly
took a larger time to process than orders without the color.
I Respondent, through Vice President Hensley, later agreed, and stated
at the hearing that employee Weeks' reading and interpretation of the
rule (handbook, G.C. Exh. 9) had been accurate.
296
SHIRT SHED, INC.
stated that it was expected though not required if the
employee did not agree to come in. She urged making an
adjustment for the employees on the issue of the several
hours overtime pay rate.
In reply, Hensley conceded that the handbook did not
require overtime and that if the employees did not agree
to come in on Friday they would not be in trouble, it
would be an excused absence. However, he said again,
he was going to live by the letter of the handbook, and
asked if the girls were coming in on Friday. Weeks an-
swered they could not talk for all the girls without re-
porting Hensley's position to them. He said okay.
After the meeting, all of the shirt prep employees cau-
cused again to hear and discuss the report of their three
spokesmen. They then took a vote on a written ballot,
according to employee Weeks, voting 7 to 3 against
working on Friday, October 13.9
Employee Weeks resumed work on Monday, October
16. At the end of the day she was taken to the personnel
office by Supervisor Johnstone, where they met with
Personnel Director Sutton. Weeks was given a written
warning (G.C. Exh. 2, labeled "second notice"), stating
for "coming down in production," and "used to get a lot
more dozens per day than she has lately,"
There was dispute in the testimony as to what was
said on both sides at the meeting, but the ultimate fact
emerging from the total testimony and records is that
Respondent had keyed its warning to employee Weeks'
production for October 12, the day when Weeks had
guided and led her fellow employees in their protest to
management of Respondent's overtime pay policy and
declination of the overtime work on October 13.10 Octo-
ber 12, though it was a 10-hour day for most of the de-
partment, according to Supervisor Johnstone, it was an
8-hour-or-less day for employees Weeks, Morris, and
Hayslett, because of their meeting with Vice President
Hensley. However, said Johnstone, she was dissatisfied
with the production of all three employees but gave the
warning only to employee Weeks." Indeed, Johnstone
conceded that she gave no other written production
warnings to any shirt prep department employee, either
before the warning of October 16 to Weeks or after it,
going into the early months of 1979. 2
Supervisor Johnstone claimed at the hearing that she
recommended to Personnel Manager Sutton, and with
him gave, the October 16 warning to employee Weeks
because Weeks had gone from a 900 dozen worker to a
m The production record for October 13 (see G.C. Exh 14) showed
that only 4 of the usual 10 to 12 employees of the shirt prep department
worked that day, and that employees Weeks, Morris, and Hayslett were
not among those who worked.
10 Personnel Manager Sutton, who accepted responsibility for issuing
the warning on alleged recommendation of Supervisor Johnstone, under-
scored this fact when he testified he had the records before him but made
no comparisons between employee Weeks and other employees and other
times.
AL Employee Weeks (Vicki) had 323 dozen for that day, October 12,
employee Morris (Eva) had 400 dozen, employee Hayslett (Tooter), had
510 dozen.
1s The case of employee Joline Arvin, referred to by Johnstone, was
not comparable. Arvin was discharged in September 1978 after three
prior warnings for making mistakes in preparing orders, for doing what
she was told not to do, and finally for gross misconduct on the work
floor.
300 dozen worker in the less than 2-month period in
which she had then worked in shirt prep.
This claim was not true. Vicki Weeks' highest day
after her start in mid-August was August 21, a 10-hour
day, when she produced in the 800 dozen range along
with five other employees who produced in the 800's or
better, all doing children's shirts, which was concededly
faster moving work. 13 In the days that followed, that
were rarely 10-hour days, Vicki Weeks continued to pro-
duce at a rate that was in the medium range below two
more or less consistently higher producers (see discus-
sion above). Hence she earned the "satisfactory" rating
in the September 25 appraisal of her work by Supervisor
Johnstone (G.C. Exh. 3 already discussed). Weeks' pro-
duction on September 25 (G.C. Exh. 5), which was in-
cluded in the September 25 appraisal, was illustrative.
The two top numerical performers that day were Tooter
Hayslett and Barb Carpenter who produced in the 700
dozen range. Vicki Weeks produced in the 600 dozen
range.
Thus, on employee Weeks' record there was no com-
plaint, and no apparent basis for complaint, about her
production as of September 25.
Supervisor Johnstone, at the hearing, began to tear
down her own credibility when she sought to sustain her
statement that there had been a gradual deterioration in
employee Weeks' production from her start in August to
September 25, but nevertheless gave Weeks a "satisfac-
tory" appraisal, withholding any comments on the ap-
praisal indicating reservations or doubts. When confront-
ed with contemporary appraisals of three other employ-
ees she had marked "satisfactory" but with notations on
need to improve production (see G.C. Exhs. 15a, b, and
c discussed above), Johnstone conceded she might have
done the same on the appraisal of Weeks, but then
hedged, saying Weeks had performed in a generally satis-
factory manner and that Weeks had not dropped enough
in production that it could be written on paper. Further,
Johnstone claimed that she did not note any reservations
regarding Weeks' satisfactory performance so as not to
jeopardize a merit raise in pay; but then conceded that
Weeks was not eligible for a merit raise, since she had
been given a raise in pay when she transferred into the
job less than 2 months earlier. Johnstone also added that
her notes of reservation on the contemporaneous "satis-
factory" appraisals of other employees could have hurt
their getting pay raises, but admitted that in fact such did
not happen.
Looking at the several work days between September
25 and October 16, Weeks continued her performance
along the pattern of the previous weeks. Illustrative is
October 11, an 8-hour day, where her count was below
the two leading producers who performed in the over
500 dozen and 400 dozen range, respectively, and Weeks
was grouped with four others who produced in the over
300 dozen range. On the next day, Thursday, October
12, which appears to be the day that Respondent actual-
'3 G.C. Exh. 6, and see fn. 7, supra. At that time, there was another
Vicky-Vicky Williams-in the group whose count was in the 900
dozens. Employee (Tooter) Hayslett's count was over 1,000 dozen that
day.
297
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ly focused upon in giving the warning, and which for
Weeks was no more than an 8-hour day, she again pro-
duced in the over 300 dozen range (323 dozen) which on
an 8-hour basis was over 40 dozen per hour.' 4 This com-
pared favorably with three others who produced in the
40-dozen-per-hour range in a 10-hour day, and exceeded
four others who produced less than 40 dozen per hour in
total time ranging from 10 hours downward.
On employee Weeks' next working day, Monday, Oc-
tober 16, a 10-hour day, Weeks produced 664 dozen,
which again was in the second tier of production, just
below three leading producers in the 900, 800, and 700
range each, and above six others who ranged from over
500 dozen downward. Weeks production on this day,
October 16, was without knowledge or intimation that
she was going to be given a disciplinary warning con-
cerning her alleged drop in production at the end of the
day. Obviously, in discussing the warning with Weeks
and giving it to her, Respondent did not take into ac-
count the figures of October 16, which was a substantial
increase for Weeks (and her coworkers) over the gener-
ally lower figures for the previous week. Nevertheless,
Respondent has taken credit, in its brief, for providing
the spur to increased performance by Weeks that day by
handing her the warning at the end of the day!
Likewise, production by employee Weeks on October
17, also a 10-hour day, was almost identical with Octo-
ber 16, 682 dozen, but behind two leaders in the over
700 dozen range; yet Respondent claims again that its
warning to her was the spur, when it would appear that
there was no substantial increase over the previous day,
when production had increased for causes not related to
any warning. (The production figures for October 16 and
17 are in G.C. Exh. 14 or Resp. Exhs. 1 and 2).
Lastly, at the hearing, after the discrediting of Re-
spondent's claims respecting the basis for its warning of
October 16 had begun to take shape, Supervisor John-
stone shifted to another reason for the warning. She tes-
tified, on recall on redirect testimony elicited by Re-
spondent, that she really should have issued the warning
to employee Weeks for excessive talking, but failed to
explain why she had not done so or had not included the
alleged fault in the warning.
2. Unfair labor practice findings
In my view of the evidence, there was no justification
in the production record of employee Weeks for the
warning of October 16. Respondent's reasons did not
stand up. Just as Respondent's first warning of May 17 to
Weeks appeared to have been stimulated by her leader-
ship in then-current union activity, this second warning
of October 16 was directly related to her leadership on
October 12 in the concerted protected activities of the
employees protesting the rate of overtime pay. In neither
case was there a substantiated record of dereliction or
shortcoming justifying the warning, and Respondent's
'" Someone who apparently added the hourly dozen rate shown on
the sheet, G.C. Exh. 4, which calculation does not appear on any of the
other production sheets in evidence, erroneously used 10 hours as the di-
vider and incorrectly marked her at 32.3 dozen per hour, though her
having been away for a meeting during the day was clearly shown on the
sheet.
pretext leaves only the inference that the real reason for
the warning of October 16 was the unlawful reason of
attempting to discourage the employees, and employee
Weeks in particular, from engaging in protected concert-
ed activities under Section 7 of the Act, in violation of
Section 8(a)(l). Vic Tanny International v. N.L.R.B., 622
F.2d 237 (6th Cir. 1980).15
There is additonal and independent evidence of a con-
temporaneous violation of Section 8(a)(1) of the Act that
contributes to a finding that the warning of October 16
to employee Weeks also violated Section 8(a)(3) of the
Act.
Employee Darlene Moore testified that in the first
week of October she was engaged in discussion by Pro-
duction Supervisor Dick Hazeltine concerning an evalua-
tion of her work and a 10-cent merit increase in pay.
Moore testified, without contradiction,t' that Hazeltine
moved the discussion into a comparison of good things
and bad things under unions and noted Respondent's op-
position to the Union, which he professed not to under-
stand. He went on to say that he had heard that employ-
ee Vicki Weeks, and some of employee Moore's friends,
were talking union before the time period after the elec-
tion was up; and to tell Vicki and the other friends to
refrain from talking about the Union "on company time
or any time before April (1979) or they would be subject
to discharge."'l
Employee Moore answered Supervisor Hazeltine that
she would tell employee Weeks and the others what he
had said, and Moore testified that she reported the con-
versation to Weeks.
Production Supervisor Hazeltine's warning and threat
to employee Moore, intended for dissemination to em-
ployee Vicki Weeks and other employees who had been
sympathetic to supporting the Union, was a threat of dis-
"I The earlier like warning of May 17(though not charged or found to
have been an unfair labor practice) sheds additional light on the frame of
mind and purpose of Respondent to repress and discourage protected
concerted activities of its employees (at that time to organize a union)
and the leadership therein of employee Vicki Weeks.
l' Supervisor Hazeltine did not testify and Respondent made no show-
ing of unavailability of Hazeltine.
' Respondent's counsel cross-examined employee Moore on the state-
ment attributed to Supervisor Hazeltine in a series of "questions" that
were counsel's recital of what Moore had purported to say on direct,
asking each time was that correct. But, when counsel reached the above-
quoted warning and threat he rephrased it saying he "told you that you
should tell Vicki . . . that if she did not refrain from union activities on
company premises during working hours that she could get fired," the
witness answered, "correct," and counsel went on to another subject.
Counsel's restatement of the direct testimony was partially correct but
omitted the reference in the warning to such activities not only on com-
pany time but at "any time." Seemingly the omission was not detected by
the witness or opposing counsel, and from the style of examination I do
not adopt the view that witness Moore had retracted or repudiated what
she said on the subject in her direct testimony.
Accordingly, I reject Respondent counsel's contention in his brief that
Supervisor Hazeltine told employee Moore only what was an application
of the company rule against solicitation of union membership or distribu-
tion of union literature during working time. If the latter were the pur-
port of the warning and threat conveyed to Moore (and I do not agree
that it was), the company rule was too broadly drawn to survive legal
scrutiny or enforcement, Republic Aviatrion Corporation v. N.L.R.B., 324
U.S. 793 (1945); Sroddard-Quirk Manufacturing Co., 138 NLRB 615, 616-
623 (1962); Essex International, Inc., 211 NLRB 749, 750 (1974); Joseph
Horne Co., 186 NLRB 754, fn. 1 (1970).
298
SHIRT SHED, INC.
charge of employees who would openly espouse the
Union again. It was in itself coercive and a violation of
Section 8(aXl1) of the Act.
Coming contemporaneously with the October 16 disci-
plinary warning, given directly to employee Weeks as a
result of her participation and leadership in the concerted
activities of the unorganized employees, the threat trans-
mitted by Supervisor Hazeltine and intended principally
for Weeks indicated a further purpose of Respondent in
the October 16 disciplinary warning to discourage em-
ployees, and employee Weeks in particular, from affiliat-
ing with or supporting the Union. Thereby, the warning
of October 16 also violated Section 8(aX3) of the Act.
Keller Manufacturing Company, Inc., 237 NLRB 712,
713-714 (1978); Niagara Falls Memorial Medical Center,
Inc., 236 NLRB 342, 343 (1978).
3. Warning of November 6
Three weeks after the written warning of October 16,
Respondent gave employee Vicki Weeks another written
disciplinary warning at the end of the day, Monday, No-
vember 6 (G.C. Exh. 8), allegedly for failing to call in on
Tuesday (October 31) and Friday (November 3) of the
previous week that she would be absent those days.
Employee Weeks testified that Friday, November 3,
was the fourth overtime Friday since overtime had been
resumed on October 13. She had not worked on Friday,
October 13, had worked on Friday, October 20, and had
not worked on Friday, October 27. When overtime for
Friday, November 3, was announced in advance, leadgirl
Mary Bryant came around asking the shirt prep employ-
ees individually if they were going to work the overtime
day, and Weeks told her she was not. According to
Weeks, Bryant noted down the no, but told Weeks to tell
a supervisor the reason. Vice President Hensley came
through the shirt prep area on Thursday, as he had been
doing for the past several Thursdays since the overtime
dispute (and he so testified), inquiring individually of the
employees if they were working on Friday so that he
could plan production for Friday and Saturday. When he
asked employee Weeks, she answered she could not
come in, she had to see her doctor on Friday, he had no
Saturday office hours, and she did not want to use a reg-
ularly scheduled workday for such a visit. He replied
that he understood.'
Employee Weeks went to the doctor on Friday, No-
vember 3. When she returned to work, before 7 a.m. on
Monday, November 6, she brought in a note from her
doctor saying she had visited him on Friday, and handed
the doctor's note to Supervisor Johnstone before starting
to work. The existence of the doctor's note was men-
tioned in the warning given to Weeks at the end of the
day.
At the beginning of the previous week, Monday, Octo-
ber 30, employee Weeks was sick, her son telephoned in
to the plant for her, and she did not work. On Tuesday,
October 31, she was still sick, she said, and slept through
the morning. No telephone call was made to the plant.
'" Hensley did not deny the conversation with Weeks, but claimed
only that he did not make notes of his survey. Employee Eva Morris tes-
tified she was present when Weeks told Hensley she had to go to the
doctor on Friday.
She returned to work on Wednesday, November 1.
Nothing was said to her about any failure to telephone in
on Tuesday.
At the end of work, Monday, November 6, employee
Weeks was summoned to Personnel Manager Sutton's
office and, with Supervisor Johnstone also present, was
told by Sutton that she was being warned, first, for not
coming in or calling in on the previous Tuesday. She re-
plied she was out ill on Monday, and her son had called
in (which was acknowledged as true), and was not aware
when her sickness c ntinued that she was obliged to call
in each day. (Respondent's handbook is ambiguous on
this subject stating only that failure to call in absent on 3
consecutive days is subject to discipline.)
Personnel Manager Sutton then asked what about the
second failure to call in, for being absent the previous
Friday. Employee Weeks answered that Friday was not
a workday because she had not agreed to work that
overtime day and there had been no unexcused absence
on her part. (As already discussed previously, this was a
correct reading of Respondent's handbook rule on over-
time days; indeed there was no handbook obligation to
provide a reason for declining overtime or to bring in an
excuse, as Weeks had done, no doubt in an excess of cau-
tion.)
Personnel Manager Sutton agreed, at the hearing, that
the Friday absence was an "excused" absence and that
there was no justification for giving the warning to
Weeks for not calling in or coming in on Friday. 9
However Personnel Manager Sutton, after hearing em-
ployee Weeks' answer, did not tell her that he agreed
there was no justification for warning her about Friday's
absence or lack of call. Instead he said to her, according
to Weeks, "Well let's try for chronic absenteeism. We'll
go for that," and wrote down in the reason on the warn-
ing which he handed her "Bib," which is the numbered
handbook paragraph for discipline of chronic absentee-
ism (G.C. Exh. 9). There was no basis for this item of
the warning. 20
The matter of the alleged failure to call in sick on the
second day (October 31) of the 2-day illness was, as Per-
sonnel Manager Sutton finally conceded, the one alleged
rule infraction with which the warning of November 6
was ultimately concerned. Yet it was apparent that
whereas this lapse (if it was a lapse) by employee Weeks
was her first of the kind and the object of almost imme-
diate written disciplinary warning, Respondent was not
19 He agreed it was an excused absence because of the doctor's excuse,
which was not necessarily the correct reason; but the doctor's excuse did
buttress the correct reason, to wit, the absence of any agreement by em-
ployee Weeks to work that Friday.
2o Manager Sutton admitted that he did not know at the time he gave
the warning or thereafter what employee Weeks' attendance record was,
but because Supervisor Johnstone may have said that Weeks missed pre-
vious days of work, thought it was a good idea to jot down on the warn-
ing the possibility of chronic or excessive absenteeism, hence the refer-
ence to the possible handbook violation. He further claimed that he
added the notation to the warning after the interview, but changed his
testimony to say he did not recall whether the notation was on the warn-
ing when he handed it to employee Weeks at the end of the interview.
Weeks testified it was on the warning, and the notation was on the copy
admitted in evidence (G.C. Exh. 8). I do not credit Sutton's denials con-
cerning the inclusion of chronic absenteeism in the interview and warn-
ing.
299
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enforcing the call-in rule and this interpretation of it in
other cases. For example, as revealed by the testimony of
Supervisor Johnstone and then Assistant Director of Per-
sonnel Kathleen Winslow, employee Joan Davis called in
(apparently ill) on March 7, 1979, and then failed to call
in (as noted on the absentee record kept by Johnstone,
G.C. Exh. 10) on March 8, 9, and 10. According to
Winslow, employee Davis was not given a warning be-
cause she needed medical leave, for which she later
brought in verification, that retroactively excused the ab-
sences without call-in. Employee Cora Miracle testified,
without contradiction, that on at least two contemporary
occasions, once in 1978, once in 1979, she was absent for
3 consecutive days without any call-in and was not disci-
plined or warned.
4. Unfair labor practice finding
Respondent's disciplinary warning to employee Weeks
on November 6 was issued not only without foundation
but discriminatorily. Like the predecessor contemporane-
ous warning of October 16, the alleged basis for the
warning was a pretext to cover Respondent's real pur-
pose, which was to discourage its employees, and em-
ployee Weeks in particular, from further engaging in
protected concerted activities and renewal of union orga-
nizational activities. As such, the issuance of the warning
of November 6 was in violation of Section 8(a)(3) and (1)
of the Act. G. Q. Security Parachutes; Inc., 242 NLRB
508 (1979).
D. Postelection Interrogation and Threats
Indicating her distress and anger with the warning in-
terview of November 6, employee Weeks declined to
sign the warning notice saying it was unjust, and, when
she asked for the opportunity to write down her views
of it, was told she could not, that there was no room for
her views on the notice. 21
On November 13, the Union filed its charge with the
Board in this case, citing the discriminatory disciplinary
warnings of October 16 and November 6 given to em-
ployee Weeks. A copy of the charge was simultaneously
served on Respondent.
When Vice President Hensley received the copy of
the Union's charge, he sent for employee Weeks, and he
so testified. According to Weeks, Hensley told her he
was concerned because of the charge and asked her to
drop the charge. She said she did not know the proce-
dure, or if she could drop the charge. Hensley called his
lawyer, and then told Weeks that she could not drop the
charge, it was the Union's charge, and that she should
get in touch with Union Representative Linda Courtney
and ask her to have the charge dropped. Hensley asked
Weeks if a National Labor Relations Board representa-
tive had been in touch with her, and she answered, "no."
The discussion ended when Weeks said she would see
Union Representative Courtney and talk to her. Weeks
"1 According to Vice President Hensley and Assistant Personnel Man-
ager Winslow, Winslow sought out employee Weeks several days there-
after and suggested to Weeks that she could write to Respondent listing
practices she felt were unfair and give the list to Winslow. Weeks testi-
fied that she decided against writing anything, since Respondent already
knew her views.
further testified that at no time in the conversation with
Hensley did he assure her that she did not have to talk to
him on the subject he raised, or assure her that her job
would not be affected if she declined to talk.
Vice President Hensley claimed that in discussing his
receipt of the Union's charge with employee Weeks he
did not ask her to drop the charge or get the Union to
drop it. The only concern he expressed, he said, was
why she, Weeks, had not used internal means of commu-
nicating her complaint of unfair treatment to him. He ad-
mitted in his testimony that he already knew from Per-
sonnel Manager Sutton and Supervisor Johnstone the
substance of Weeks' complaints of unfairness; but he did
not tell that to Weeks, nor, as he further admitted, did he
ask her what her problems or complaints were (exhibit-
ing no real interest in direct internal communication if
that was what he truly had been talking about to
Weeks). In my view, Hensley's version of the discussion
with Weeks was not true, and I credit the account by
Weeks.
On December 20, the Board complaint against Re-
spondent, based upon the Union charge, was issued, and
Vice President Hensley received Respondent's copy. He
testified that he stopped by employee Weeks' workplace
on the shop floor. According to employee Weeks, Hens-
ley was visibly upset, and told her he was upset because
he had received the Board complaint and she had not
done anything to get the union charge dropped. Weeks
replied that she had talked to union Representative
Courtney and to the Labor Board representative and had
learned from them that she could not control the drop-
ping of the charge. Hensley answered that she did not
know how messy it would be, and pressed her again to
cause the charge to be withdrawn. Weeks told Hensley
she did not think it had to be messy, and that in fact she
was being treated differently from other employees and
was being harassed. He retorted that, according to the
records, Respondent's actions against her were justi-
fied.22
Vice President Hensley again denied that he pressed
employee Weeks to seek withdrawal of the Union's
charge, saying that all he did was ask Weeks again why
she had not used the internal means of communication to
submit to him the problems or complaints she had
(which admittedly he already knew). I find Hensley's
denial and explanation incredible, and I credit the testi-
mony of Weeks.
Employee Weeks testified that in late February 1979
she gave notice to Respondent that she was resigning her
job in March. Shortly after giving the notice, Weeks was
given a verbal warning by Assistant Personnel Manager
Winslow, allegedly for talking too much. Weeks resigned
her job on March 13, 1979.
21 Employee Eva Morris testified that she was on the work floor that
day in late December when Vice President Hensley came by to talk to
employee Weeks for the purpose, as Weeks told her when Hensley left,
of pressing Weeks to get the charge before the Board dropped. Morris
said she did not hear the conversation but observed that whereas Hensley
was usually good natured and smiling when he accosted employees on
the floor, on this occasion he was visibly angry and scowling in talking
to Weeks.
300
SHIRT SHED, INC.
Two employees connected with work on the shirt
press floor, Cora Miracle and Bernice Gressley, testified
that they attended a union meeting on Friday, February
16, 1979, at the end of the workday, at Country Snack, a
small restaurant in Wabash. The participants sat at a
table in the open dining room of the restaurant. Partici-
pating were about five employees, including Miracle,
Gressley, and Vicki Weeks, plus two former employees,
and Union Representative Linda Courtney. Another em-
ployee of Respondent, identified as Terry of the Art De-
partment, came into the restaurant and sat at another
table but did not join the meeting, according to Miracle
and Gressley.
The following Monday morning, employees Miracle
and Gressley were called to Vice President Hensley's
office. Earlier in the prior week the two employees had
asked for a meeting with Hensley because of problems
the two (especially Gressley) were having with Produc-
tion Supervisor Hazeltine.
As the meeting in Vice President Hensley's office
opened, employee Gressley started to discuss her prob-
lem with Supervisor Hazeltine. Vice President Hensley
broke in with a comment, according to both Miracle and
Gressley, that he understood both of them had been in-
volved with the Union in the past year. Gressley replied,
she said, that she had not passed out union literature or
union cards but had attended two Union meetings in
order to listen and make up her own mind on supporting
the Union. Miracle testified that she gave a similar
answer. According to Gressley, Hensley commented he
wished there were more employees like them.
Gressley resumed relating her problem, which (as Vice
President Hensley summed it up in his testimony) was
the unfairness of being written up for low production on
the shirt print floor when she was dividing her time be-
tween the print floor and pin-ticketing. According to
both employees, Hensley said he was going to leave
Gressley's record as it was for the time being, but she
was not to worry, the matter would be taken care of and
things would be different on the floor in a couple of
weeks. With that assurance, Hensley terminated the
meeting, and walked them to the door.
As he walked with them, according to both employ-
ees, Vice President Hensley asked them what was their
opinion of the Union getting into the plant in the current
year. Employee Miracle answered that the Union had a
good chance of getting in if Production Supervisor Ha-
zeltine continued to work on the floor. 23
In his testimony on the meeting, Vice President Hens-
ley denied making any mention of, or inquiry about, the
Union or union activities or sentiment in the plant.
Indeed, he claimed, when employee Gressley opened the
discussion she volunteered the information that union ac-
tivity was going on in the plant; and he responded, he
said, that he was not interested that there was union ac-
tivity in the plant and did not concern himself with
union activity in the plant, but wanted to know only
what happened between her and Supervisor Hazeltine.
2" Vice President Hensley testified that he had had other complaints
about Supervisor Hazeltine's performance as a supervisor and discharged
him later in the month. Employees Gressley and Miracle testified that
Hazeltine's discharge was on the following Friday.
In the same testimony, Vice President Hensley con-
ceded that as a matter of fact he was interested, as the
management representative, in knowing if there was
Union activity going on in the plant. In my view, Hens-
ley's version of the discussion with the two employees is
a further instance of his contradictory testimony and lack
of credibility on the key issues in which he was in-
volved. I credit the testimony of employees Miracle and
Gressley.
Unfair labor practice findings: Respondent's actions in
interrogating employee Weeks concerning the filing of
the union charge and communicaticn with a Board agent
in this case, pressuring her to obtain withdrawal of the
charge and resultant Board complaint (relating to dis-
criminatory disciplinary warnings to her), and threaten-
ing her with reprisal (things could get "messy") if she
did not obtain the withdrawal, was interference with
Board process and access to Board process, in violation
of Section 8(a)(1) and (4) of the Act. Nash v. Florida In-
dustrial Commission, 389 U.S. 235, 238 (1967); N.L.R.B.
v. Scrivener d/b/a AA Electric Company, 405 U.S. 117,
124 (1972); Sure-Tan Inc. and Surak Leather Co., 234
NLRB 1187, 1191 (1978). The protection of Section 8(a)
(4) of the Act applies even though the charge was not
filed by the employee but by the Union on her behalf,
Burnside Steel Foundry Company., 69 NLRB 128, 136
(1946); Briggs Manufacturing Company, 75 NLRB 569,
585 (1947); Waukegan-North Chicago Transit Company,
225 NLRB 833, 848, fn. 22 (1976).
Respondent's questioning of employees Miracle and
Gressley as to their past Union activities and whether
the Union had a good chance to unionize the plant in the
future was coercive interrogation, in violation of Section
8(a)(l) of the Act. The Board has recently reiterated that
interrogation, concerning an employee's union sympa-
thies or reasons for supporting a union, need not be ut-
tered in the context of threats or promises to be coer-
cive; that probing such views, even of employees who
have openly declared prounion sympathies, reasonably
tends to interfere with the exercise of employee rights
under the Act, and consequently is coercive; and that in-
quiry into an employee's views toward a union or union-
ization in general, even ostensibly questioned "out of
curiosity," reasonably tends to interfere with the free ex-
ercise of an employee's Section 7 rights, regardless of his
subjective state of mind. Paceco, a Division of Fruehauf
Corporation., 237 NLRB 399, 399-400 (1978).
CONCLUSIONS OF LAW
1. By issuing disciplinary warnings concerning alleged
deficiencies in production and attendance to employee
Weeks on October 16 and November 6, 1978, because of
her participation and leadership in concerted protected
activities of the unorganized employees and suspected re-
vival of union activities, and in order to discourage such
activities, Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act.
2. By threatening discharge of employee Weeks or any
employee who resumed talking about the Union on com-
pany time or any time before April 1979, Respondent en-
301
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act.
3. By interrogating employee Weeks concerning the
filing of the union charge and communication with a
Board agent in this case, pressuring her to obtain with-
drawal of the charge and resultant Board complaint, and
threatening her with reprisal if she did not obtain the
withdrawal, Respondent engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (4) of the
Act.
4. By coercively interrogating employees Miracle and
Gressley concerning their past union activities and
whether the Union had a good chance to unionize the
plant in the future, Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the
Act.
5. The unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It will be recommended that Respondent (I) cease and
desist from its unfair labor practices; (2) expunge from its
records the discriminatory disciplinary warnings of Octo-
ber 16 and November 6, 1978, given to employee Weeks;
and (3) post the notice provided for herein.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, there is hereby issued the following recom-
mended:
ORDER 2 4
The Respondent, Shirt Shed, Inc., Wabash, Indiana, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Issuing disciplinary warnings to employees for al-
leged production or attendance deficiencies, or taking
other reprisal or threatening discharge or reprisal against
24 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.
employees, because of their participation or leadership in
concerted protected activities or their revival or suspect-
ed revival of Union activities, or because they talk about
the union, or in order to discourage union activity or
membership of employees.
(b) Interrogating employees concerning the filing of
charges, or union charges on their behalf, with the Board
or concerning communications with Board agents re-
garding such charges or Board complaints, or pressuring
employees to obtain withdrawal of any such charge or
complaint, or threatening reprisal against employees
unless the withdrawal is obtained.
(c) Coercively interrogating employees concerning
their past Union activities or whether the Union has a
good chance to unionize the plant in the future.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Expunge from its records the disciplinary warnings
of October 16 and November 6, 1978, issued to employee
Weeks.
(b) Post in Respondent's plant at Wabash, Indiana,
copies of the attached notice marked "Appendix." 25 Im-
mediately upon receipt of said notice, on forms to be
provided by the Regional Director for Region 25, Re-
spondent shall cause the copies to be signed by one of its
authorized representatives and posted, the posted copies
to be maintained for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
"s In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of The National Labor Relations Board."
302