Springfield Garment Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 1, 1965

152 N.L.R.B. 1043 (N.L.R.B. 1965)

SPRINGFIELD GARMENT MANUFACTURING COMPANY 1043
Hence, it is a reasonable inference that the favorable modification of the deductible
clause in April 1964 could not have been such a total surprise to employees as to
warrant the inference that they considered it a new form of largesse from the
Employer in return for a vote against the Union.3° Moreover, if the limitation
claimed by General Counsel were put on the Employer, and he cited the pendency
of the Union's representation petition in answer to employees' questions about failure
to receive a long-promised benefit, he would run the risk of a charge of coercive with-
holding of benefits like that facing Respondent here after it had expressed some doubt
about payment of vacation pay for reasons found above.
Even if I had agreed with the contention of General Counsel at the close of his.
case-in-chief, I would still be compelled to dismiss the allegation as to the insurancer
benefit, in view of the cogent proof adduced by Respondent on which I have concluded
that its later conduct did not violate the Act or interfere with the election. For the
above reasons, I recommend that the Union's objection No. 1 to the election be
overruled.
Considering all of Respondent's conduct in issue here, the most that can be said for
it is that the occurrence of all of it in the period of a little over 1 month before the
second election arouses some suspicion that Respondent may have acted to influence
employees in that election, but the suspicion is weakened by the cogent explanatory
facts adduced by Respondent as found above, tending to show that its conduct was
in part an exercise of business judgment, in part the honoring of past commitments
to employees, and in part legitimate free speech within the meaning of Section 8(c)'
of the Act, and that all of it amounted to less than such interferences with the employ-
ees' freedom of choice in the election as would warrant its cancellation.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. Respondent has not engaged in any unfair labor practices as alleged in the com-
plaint in Case No. 26-CA-1830.
4. Respondent has not engaged in any conduct which improperly influenced or
interfered with employees in making their choice of bargaining representative in the
election of May 27, 1964, which would warrant the setting aside of that election.
RECOMMENDED ORDER
I recommend that the complaint in Case No. 26-CA-1830 be dismissed and that
the Union's objections Nos. 1 through 6 to conduct affecting the results of the election
of May 27, 1964, in Case No. 26-RC-2020 be overruled, and that the Board certify
the results of that election.
30A somewhat similar situation involving normal dealings with grant of benefits to
employees during a representation case was found legitimate by the United States Circuit
Court of Appeals, 10th Circuit, in J. S. Dillon & Sons Stores Co., Inc. v. N.L.R.B., 338
F. 2d 395.
Springfield Garment Manufacturing Company and Amalgamated
Clothing Workers of America , AFL-CIO. Case No. 17-CA-
92413. June 1, 1965
DECISION AND ORDER
On March 8, 1965, Trial Examiner Sydney S. Asher, Jr., issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in certain unfair labor practices and recommending that
it cease and desist therefrom and take certain affirmative action, as set
forth in the attached Decision. The Trial Examiner further found
that the Respondent had not engaged in certain other unfair labor
152 NLRB No. 109.
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices alleged in the complaint. Thereafter, the Respondent and
the General Counsel filed exceptions to the Trial Examiner's Decision
and supporting briefs.)
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
,delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this case, including the
exceptions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondent, Springfield Garment Manu-
facturing Company, Springfield, Missouri, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the Trial Exam-
iner's Recommended Order, as so modified :
1. Delete paragraph 2(b) of the Trial Examiner's Recommended
Order and the "note" paragraph of the attached Appendix.
'The General Counsel's exceptions relate to the Trial Examiner's dismissal of the com-
plaint's allegation that Allen Care] was unlawfully discharged.
TRIAL EXAMINER'S DECISION
On March 20, 1964, Amalgamated Clothing Workers of America, AFL-CIO,
herein called the Union, filed charges against Springfield Garment Manufacturing
Company, Springfield, Missouri, herein called the Respondent. Amended charges
were filed on April 20 and second amended charges on May 21, 1964. On May 22,
1964, the General Counsel 1 issued a complaint alleging that since early January 1964
the Respondent, by certain specified conduct, interfered with, restrained, and coerced
its employees; that on or about March 4 and April 10, 1964, respectively, the Respond-
ent discharged employees Robert Blackburn and Allen Carel, and that on or about
April 22, 1964, the Respondent forced Willie Fay Carel to terminate her employment
with the Respondent; that at all times since the Respondent has failed and refused to
reinstate or rehire the said employees; and that the Respondent took these actions
because of each respective employee's interest in and activity on behalf of the Union,
and to discourage union activity. It is alleged that this conduct violated Section
8(a)(1) and (3) of the National Labor Relations Act, as amended (61 Stat. 136),
herein called the Act. Thereafter the Respondent filed an answer admitting that it
discharged employees Robert Blackburn and Allen Carel, but denying that it dis-
charged Willie Fay Care], and denying the commission of any unfair labor practices.
Upon due notice, a hearing was held before Trial Examiner Sydney S. Asher, Jr.,
from July 8 to 15, 1964, in Springfield, Missouri. All parties were represented and
1 The term General Counsel refers to the General Counsel of the National Labor Rela-
tions Board and his representatives at the hearing.
SPRINGFIELD GARMENT MANUFACTURING COMPANY 1045
participated fully in the hearing. During the course of the hearing, by agreement of
the parties, I visited the Respondent's plant. After the close of the hearing, the Gen-
eral Counsel moved to reopen the record and remand the case to the Regional Direc-
tor, so that it could be consolidated with Case No. 17-CA-2479. The motion was
denied. Thereafter the Respondent filed a brief and the General Counsel filed a brief
and a supplemental letter. All have been duly considered.
Upon the entire record in this case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
The complaint alleges, the answer admits, and it is found that the Respondent is,
and at all material times has been, an employer engaged in commerce as defined in
the Act, and its operations meet the Board's jurisdictional standards; 2 and that the
Union is, and at all material times has been, a labor organization within the meaning
of the Act.
A. Introduction
During all material times the Respondent employed a total of approximately 450
employees at 3 locations in Springfield, Missouri. The two main buildings are sepa-
rated by an alley about 20 feet wide. The north building houses one sewing line, the
pressing department, a shipping dock, the cafeteria, and general offices. The south
building houses the other sewing lines, the cutting room, and the general manager's
office. The shipping department is located in a separate building approximately 11/2
miles away.
So far as the record shows, the Respondent has never recognized or bargained with
any union as the representative of its employees. As far back as 1944 unions had
tried, without success, to organize the Respondent's employees.3 In 1959 the Union
lost an election conducted by the Board among the Respondent's production and
maintenance workers (Case No. 17-RC-3143). About early January 1964 the Union
began a renewed attempt to organize these employees. On April 9 4 the Union filed
with the Board three representation petitions: Case No. 17-RC-4461, seeking a unit
of cutting room employees; Case No. 17-RC-4462, seeking a unit of pressing depart-
ment employees; and Case No. 17-RC-4463, which petitions for a unit of shipping
department employees. To date, no elections have been held on these petitions
because of the pendency of the instant proceedings.
The events with which we are here concerned took place during the Union's cur-
rent campaign. The Respondent's officials became aware of this campaign almost
from the beginning. They were opposed to the unionization of the Respondent's
employees and did not conceal their opposition. Joseph H. George, the Respondent's
president, testified that he was very much against the Union in his place of business
and that, if asked, he would inform employees that he "was not in favor of" the
Union. Early in March, Grover D. McKinney ("Joe Mac"), the Respondent's gen-
eral manager, made an antiunion speech to the assembled employees of the shipping
department during working hours. These matters are not related critically, but merely
as statements of fact. The Respondent had, of course, a legal right to exhibit antago-
nism toward the Union, so long as it took no action proscribed by the Act.5 But,
as the United States Court of Appeals for the Fifth Circuit has said- ". . . antiunion
bias and demonstrated unlawful hostility are proper and highly significant factors for
Board evaluation in determining motive." 6 Let us bear this in mind as we now con-
sider the various events and issues in this case.
2 The Respondent is, and at all material times has been, engaged in the manufacture
and wholesale distribution of men's wearing apparel at three locations in Springfield,
Missouri. The Respondent annually receives at its plants from sources outside the State
of Missouri materials valued at more than $50,000 The Respondent annually ships from
its plants to destinations outside the State of Missouri products valued at mote than
$50,000
3 See Case No. 17-R-999 (1944) and Case No. 17-R-1522 (1946-47). Neither of
these resulted in an election.
4 All dates hereafter refer to the year 1964 unless otherwise noted.
5 N.L R B. v. T. A. McGahey, Sr.; et at, d/b/a Columbus Marble Works, 233 F. 2d
406, 409 (C.A 5) , and N.L R B v. Superex Drugs, Inc., et at , 341 F. 2d 747 (C A. 6).
s N.L R.B. v. Dan River Mills, Incorporated, Alabama Ditision, 274 F 2d 381, 384
(C.A. 5).
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Interference, restraint, and coercion
1. Interrogation
a. By McKinney
The complaint alleges and the answer denies that McKinney interrogated employees
in late February and in late March regarding "their interest in and activity on behalf
of the Union" and in late April "concerning their prospective testimony relative to
the pending unfair labor practice charge."
During the last week of February Willie Fay Caret, an employee in the sewing
room, handed blank union application cards to two of her fellow employees during
working hours. This matter was reported to Jewell Taylor, sewing room supervisor,
who in turn reported it to McKinney. McKinney summoned Caret to his office and,
in Taylor's presence, asked Caret if she had passed out union cards on company time,
adding that such conduct violated a company rule. Caret admitted that she was in
favor of the Union, but denied passing out cards on company time. McKinney asked
Caret• "What do you have against us?" and she answered: "I don't have anything
against you guys." McKinney queried. "Well, why are you doing this to us?" Carel
responded: "I have my reasons." 7
The General Counsel maintains that on this occasion McKinney "interrogated
[Caret] at some length . . about passing out cards and why she was supporting the
Union." However, McKinney had reason to believe that Caret was carrying on union
activities during working hours, and therefore had a right to ascertain, through ques-
tioning her, whether this were so This is especially true where, as will be developed
below, such conduct contravened an existing valid company regulation By way of
contrast, Caret's reasons for sympathizing with the Union were not a legitimate mat-
ter of concern to McKinney, and he went beyond permissible bounds when he sought
to elicit information from her on this subject I conclude that McKinney's conduct
on this occasion was violative of Section 8(a) (1) of the Act.
Early in March, a few days after the above-described incident, McKinney
approached Allen Caret, husband of Willie Fay Caret, while he was working McKin-
ney asked Caret what he and his wife had against the Respondent and against
McKinney and George. Caret replied that they had nothing against the Respondent
McKinney then inquired: "Well, why is your wife passing out cards . and why is
she pushing the Union?" Caret responded "Well, we feel like we want a little more
job security." 8 The General Counsel contends that in this conversation McKinney
further engaged in illegal interrogation. I agree As in the questioning of Willie
Fay Caret a few days earlier, McKinney had no right to inquire of the Carets' motives
in supporting the Union Accoidingly, I find that this interrogation of Allen Carel
by McKinney constituted an additional violation of the Act.
About March 18, during a break, McKinney called to his office Burt Groesbeck, an
employee in the cutting department, and asked him what was the attitude of the
people in the cutting room toward the Union Groesbeck replied "Well, it looks
like to me about a hundred percent " 9 1 agree with the General Counsel that
McKinney's questioning of Groesbeck on this occasion about the attitude of the
cutting room employees toward the Union, in the context of other interrogation
described above, constituted further interrogation proscribed by the Act
As will be more fully developed below, Allen Caret was discharged on April 10.
On April 20 the Union filed with the Board amended unfair labor practice charges
against the Respondent, based in part upon Caret's discharge A few days later
McKinney approached Floyd Burks, an employee who had witnessed Allen Caret's
discharge. According to Burks' undenied testimony, which I credit, the following
conversation ensued
Well, he [McKinney] asked me if I remembered back to the day that Al [Carell
was fired and I told him yes, that I did. And he asked me if I recalled that Al
handed these pamphlets on company time and I told him yes, it was about 8:30
S These findings of fact are based primarily upon the testimony of Care] To the ex-
tent that the testimony of Caret conflicts with that of McKinney or Taylor, I credit
Caret's version as the more accurate
8 These findings of fact are based upon Carol's testimony McKinney denied question-
ing Carol about his or his wife's union activities I do not credit this denial
O These findings of fact are based upon Groesbeck's testimony McKinney testified
about two conversations with Groesbeck and denied that the Union was mentioned in
either I do not credit his denial in this respect
SPRINGFIELD GARMENT MANUFACTURING COMPANY 1047
in the morning . He asked me if anyone had said anything to me about acting
directly for Al, or anything, and I told him no, not exactly, except that a few
days after Al was fired that he asked me if anything came up would I be willing
to tell what happened and I told him yes, that I would. And he [McKinney]
said, well, he was just checking because he wouldn't want to call on anyone he
knew that was acting directly.
I cannot agree with the General Counsel that such interrogation is proscribed by the
Act. In the light of charges then- pending before the Board concerning Carel's dis-
charge, McKinney-who had not been present when Carel was fired-had a legitimate
reason for seeking to ascertain the true facts from Burks-who had been present.
Furthermore, in order to evaluate Burks' description, McKinney could properly go
into Burks' relationship with Carel. To hold otherwise would, in my opinion, unduly
hamper the preparation of a defense by one accused of committing unfair labor prac-
tices. Such a result would not further the ends of justice and fair play. Accordingly,
I find that no violation of the Act was committed by McKinney on this occasion.10
b. By Mary Brown
The complaint alleges that Mary Brown (described as "shipping department super-
visor" and an agent of the Respondent) illegally interrogated employees in late
February and early April. The answer denies that Mary Brown was "shipping depart-
ment supervisor" or an agent of the Respondent, or that she committed any unfair
labor practice.
In view of the dispute as to Mary Brown's status let us turn to the evidence regard-
ing her duties and authority. There are, and at all material times have been, approxi-
mately 15 employees working in the shipping department under Jason Brown, ship-
ping department foreman, an admitted supervisor. His wife, Mary Brown, is billing
clerk in the shipping department. She is hourly paid and her duties are to type
invoices and bills of lading. McKinney testified that Mary Brown had no authority
to hire or fire, or to recommend hiring or firing, or to direct the work force in any
way." McKinney further testified that about 3 years before the hearing he had
appointed William King, an employee, as second in command of the shipping depart-
ment, to supervise in Jason Brown's absence Wanda Collins, a shipping department
employee, testified that at a time not specified Jason Brown stated, in answer to an
inquiry, that "when he wasn't around that Mary was supposed to tell [the employees]
what to do " Although Jason Brown testified, he did not touch upon the authority of
either King or Mary Brown. Neither King nor Mary Brown testified
The General Counsel has the burden of proving Mary Brown's supervisory status.
The only credited testimony to support his position is the undenied testimony of
Collins regarding what Jason Brown had told her However, there is no adequate
evidence as to how often or how long Jason Brown is absent from the shipping depart-
ment. This being so, it is unimportant whether his stand-in is King or Mary Brown.
In either event, the second in command was not shown to have anything more than a
sporadic authority to supervise, insufficient to support a finding of supervisory status.
I conclude that the General Counsel has failed to establish that, at any material time,
Mary Brown was a supervisor within the meaning of the Act Her conduct was
therefore not attributable to the Respondent. Accordingly, no useful purpose would
be served by determining the nature or extent of Mary Brown's activities
c. By Wise
Jeff M. ("Speedy") Wise was pressing department supervisor on the night shift.
Sometime in March he asked employee Howard Joe Stafford if Stafford were "going
to the union meeting." Stafford replied that he did not know whether he would or
not.12 In the context of other unlawful questioning of employees by the Respondent,
I find that Wise on this occasion illegally interrogated Stafford concerning his union
activities.
10 See May Department Stores Company, a Corporation, d/b/a Famous-Barr Company,
70 NLRB 94, 95-96, enfd 162 F. 2d 247 (C.A. 8), cert denied 329 U S 808.
11 In February or March McKinney held a conference with Mary Brown and three
other employees of the shipping department. Wanda Collins, one of the employees
present, testified that during this conference McKinney stated that Mary Brown had the
right "to tell us (the other employees) what to do." McKinney denied making such a
statement. I credit his denial in this respect
12 The findings of fact regarding this conversation are based upon Stafford' s undenied
testimony. Although Wise testified, he did not mention this incident.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Threats
a. By Wire
The complaint alleges, and the answer denies, that early in January Wise threatened
employees "with reprisals should they select the Union as their collective-bargaining
representative or engage in activity on behalf of the Union." Vola Moore, an
employee of the pressing department on the night shift, testified that shortly after
January 1 she was talking to Don Farmer (presumably a fellow employee) in the
plant, that they had said that if the Union had been in they would have had paid
holidays for Christmas and New Year's and that Wise walked by and, overhearing,
stated that they were working 5 nights a week and Jethro (a competitor) was union
and they were only working 3 nights. Wise denied the incident; Farmer did not
testify. Assuming, without deciding, that the event took place substantially as related
by Moore, I am of the opinion that Wise did not thereby violate the Act. The record
does not show that his statement concerning Jethro was a distortion of the truth. I do
not look upon Wise's words as constituting a threat of reprisal or, as the General
Counsel describes it in his brief, "indicating that if a Union came in Respondent would
reduce the workweek to three days." Rather, I view them merely as an argument
concerning the value of unions As such they were an expression of opinion pro-
tected by Section 8(c) of the Act.13
b. By Brashears
Edith Brashears is, and at all material times has been, a floorlady-supervisor in the
sewing department and an agent of the Respondent The complaint alleges, and the
answer denies, that late in April Brashears "threatened employees with reprisals
should they select the Union as their collective-bargaining representative or engage
in activity on behalf of the Union." On or about April 24, during a break period,
employee Audrey Ann Jackson signed a union application card at the behest of Helen
Colvard, a fellow employee. Brashears asked Jackson what she had signed and upon
learning that it was a union card remarked that Jackson would be discharged for that.
Shortly afterwards-still during the break-Taylor came over to Jackson and
informed her that she would not be discharged for signing a union card during a
break, saying: "As far as I am concerned your break time is yours to do with as you
please." Either before or after Taylor's statement, Jackson obtained the signed card
from Colvard and tore it up.14 Jackson signed another union card at her home some
time later.
The General Counsel contends that Brashears threatened reprisals for protected
activities during nonworking time. But the Respondent argues that the threat was
"neutralized" within minutes after it was uttered. I agree. Taylor promptly and
effectively retracted the statement made by her subordinate. Any coercive effect
from the momentary unfair labor practice was thereby eradicated. This is under-
scored by the fact that, soon after this incident, Jackson signed another union card.
Under the circumstances it would not, in my opinion, effectuate the policies of the
Act to conclude that Brashears' threat constituted an unfair labor practice
3. The no-solicitation and no-distribution rule
The complaint alleges, and the answer denies, that in April McKinney "threatened
to lay off employees because of their interest in and activity on behalf of the Union."
The complaint further alleges, and the answer denies, that in early April McKinney
"promulgate'[d] a rule forbidding solicitation for the Union or distribution of literature
on behalf of the Union." Both refer to an incident which occurred in the shipping
department on April 29 about 4 p.m. In a conversation between McKinney and
Allen Carel, an employee, Carel asked whether he would be discharged if he were to
pass out union literature during working hours. McKinney replied that he would
discharge Care] if Care] did so.15
The Respondent had no written rules of any kind. A number of employees, wit-
nesses for the General Counsel, testified that they had never heard of any no-
solicitation or no-distribution rule. However, other employees, witnesses for
is Compare Union Carbide Corp. v. N.L R.B, 310 F. 2d 844 (C.A. 6) ; and Granwood
Furniture Company, 129 NLRB 1465, 1471.
34 The findings of fact regarding the events of April 24 are based upon a synthesis
of the testimony of Jackson and Taylor. Neither Colvard nor Brashears testified
15 These findings of fact are based upon a synthesis of the testimony of Allen Care],
McKinney , and Jason Brown, who was also present.
SPRINGFIELD GARMENT MANUFACTURING COMPANY 1049
Respondent, testified that for many years the Respondent has had a rule (announced
orally) forbidding union activities-whether soliciting, passing out cards, or distribut-
ing literature-during working hours. On this point I credit the Respondent's wit-
nesses as the more accurate. Accordingly, I find that the rule was promulgated some
years ago, well beyond the 6-month limitation period. The General Counsel argues,
however, that each new mention of the rule constituted a new promulgation and that
McKinney's answer to Carel's question on April 9 was a separate and distinct promul-
gation within the statutory 6-month period. I cannot agree. Rather, I look upon
the rule as having been continuously in effect since its original promulgation more
than 6 months prior to the service of the charge herein. I conclude that any finding
of an unfair labor practice based upon the promulgation of the rule is barred by Sec-
tion 10(b) of the Act. The legality of such promulgation is accordingly not prop-
erly before me for decision.l6
The General Counsel further contends that McKinney's reply to Allen Carel on
April 9 constituted an illegal enforcement of the rule because McKinney acted "for
the discriminatory purpose of curtailing union activity." In his brief the General
Counsel candidly admits: "There is little question that Respondent's no-solicitation
rule was limited to working time and is presumptively valid." The burden is, of
course, upon the General Counsel to overcome this presumption by showing that the
rule was not necessary to maintain production and discipline. The Board has stated
that the test is the purpose of the rule.17 In support of his contention that the pur-
pose was illegal, the General Counsel relies upon (1) the Respondent's union animus;
(2) antiunion talks by the Respondent on company time; (3) publication of the rule
only during times of union activity; (4) publication of the rule "only to one of the
most active union proponents"; and (5) the Respondent's allowing solicitation for
other items. So far as the Respondent's union animus and antiunion talks are con-
cerned, it is well settled that these do not necessarily impugn the validity of a no-
solicitation or no-distribution rule.18 Regarding publication of the rule, the record
shows that over a period of time the Respondent orally announced the rule to a large
number of its employees. It is true that, on company time, McKinney, during the
1963 World Series, encouraged employee participation in a baseball "pool" and in
the same year made a 15-minute speech in behalf of the United Fund. Moreover,
collections for gifts to supervisors had also been permitted during working hours.
Taylor testified that such solicitation took place "not too often ... maybe once every
two weeks, or once a month, or something like that." Employee Helen McDonald
estimated that they occurred "quite frequently" but did not elaborate. In a recent
case holding that the presumption of validity of a rule forbidding solicitation on com-
pany time had been overcome,'9 the Board majority stressed the fact that "the aggre-
gate time spent in soliciting for gambling activities, selling tickets, and collecting for
gifts far exceeded the time spent in solicitation on behalf of the Union." There is no
such evidence in the instant case. Here, the record does not reveal the total amount
of time devoted to these activities or their effect, if any, upon production. Further-
more, the weight of the evidence convinces me that commercial solicitation during
working time was prohibited by the Respondent at all material times 20 Moreover
on one occasion in 1958, while explaining the rule to assembled employees, McKinney
stated that they "couldn't work and talk union, the company coluldn't make it if [the
10 See Higgins Industries, Inc , 150 NLRB 106
"The Win H Block Company, 150 NLRB 341. But compare the language of the
court in The Welch Scientific Company, Inc. v. A7 L R.B., 58 LRRM 2237, 2240 [340 F.
2d 199] (C A. 2), rehearing denied February 3, 1965. "It is the tendency of an em-
ployer's conduct to interfere with the rights of his employees protected by Section 8(a) (1),
rather than his motives, that is controlling " [ Emphasis supplied ]
is IV.L R B. v. United Steelworkers of America, CIO (Nutone Inc ), 357 U.S. 357
Walton Manufacturing Company, 126 NLRB 697, enfd. 289 F. 2d 177 (C A 5) , and
James Hotel Company, a Corporation, d/b/a Skirvin Hotel and Skirvin Tower, 142
NLRB 761, at 762-763.
10 The Wm. H Block Company, supra But note the language in Harris Paint Com-
pany, a wholly-owned subsidiary of Bernz-O -Matic Corp , 150 NLRB 72 , regarding "the
novel contention that a foreman cannot put a stop to talking on working time if a union
is the topic of conversation "
20 Some of the General Counsel 's witnesses testified that such solicitation was permitted.
A number of rank-and-file witnesses for the Respondent testified to the contrary. On
this matter , I consider the Respondent 's witnesses more persuasive , especially Mary Lou
Jones and Marcella Baty.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees] were going to sit and visit and talk about the Union " 21 [Emphasis
supplied.] This demonstrates the Respondent's concern with the possibility that
union solicitation on company time might have an adverse effect upon production.
Under all the circumstances here present, I conclude that the General Counsel has
failed to establish that on April 9 the no-solicitation and no-distribution rule was
unnecessary to maintain production or discipline, or that McKinney's affirmative
answer to Allen Carel's question was discriminatorily motivated. It follows, and I
find, that McKinney's conduct in this respect was not shown to have been violative
of the Act.22
4. Surveillance
a. By Hankins
In January Reba Hankins, floorlady-supervisor of the trim line in the sewing depart-
ment, found union literature lying on the machines when she came to work in the
morning. She directed Helen McDonald, service girl for the trim line, "to keep [her]
eyes and ears open, that there was a rumor that someone on the trim line was trying
to help the Union get in ... that someone was leaving literature lying on the machines
before work." 23
The General Counsel contends that such instructions constitute illegal surveillance.
By way of defense, the Respondent's brief maintains that (1) McDonald was a super-
visor, (2) Hankins "was referring to possible violation of the no-solicitation and
no-distribution rule during working hours"; and (3) this was "an isolated occur-
rence" which was not "serious enough to constitute a violation of Section 8(a) (1 )."
As to McDonald's status, her duties were to "keep the [operators on the trim line]
supplied with work and material at all times." Hankins testified without contradic-
tion that "when I am not there she [McDonald] takes my place." There is no evi-
dence as to how often or how long Hankins is absent Therefore McDonald's alleged
supervisory authority exists (if it exists at all) only sporadically. I conclude that
McDonald is not, and was not at any material time, a supervisor as defined in the
Act.24 As to the possible violation of the no-distribution rule, the literature had
been placed on the machines before work, and the rule clearly applied only during
company time. Moreover, Hankins told McDonald someone was placing literature
"on the machines before work." [Emphasis supplied.] Finally, Hankins knew that
no company rule was being violated, for she testified
TRIAL EXAMINER' Assuming it had been an employee who did that, would
that have involved any violation of a company rule2
The WITNESS- No, not if it was before reporting to work time.
Insofar as the Respondent argues that Hankins' conduct was isolated and not serious
enough to constitute a violation of the Act, the short answer is that Hankins' conduct
did not occur in a vacuum Rather it took place in the context of the Respondent's
illegal interrogation of employees, as described above I conclude that Hankins
directed McDonald to spy upon the union activities of her fellow employees and to
ascertain and report back to her, if possible, the identity of the person "on the trim
line [who] was trying to help the Union get in " Such conduct illegally interfered
with the employees' right to engage in union activities free of surveillance and there-
fore violated Section 8 (a) (1) of the Act.
b. By Jason Brown
The complaint alleges, and the answer denies, that in April Jason Brown "engage[d]
in, attempt[ed] to engage in, and/or create[d] the impression of engaging in, sur-
veillance of employees' activity on behalf of the Union." During lunch hour one
day in March or April, a union representative was talking to some of the employees
21 This finding of fact is based upon the undenied testimony of Eva Mae Justice, an
employee who attended
22 Compare Mallory Plastics Company, a division of P. R. Mallory d Co , Inc, 149
NLRB 1G49.
23 The findings of fact with regard to this conversation are based upon McDonald's
testimony, substantially corroborated by that of Hankins
24 Even if, contrary to the above, McDonald were a supervisor, the result would not
be different, for instructions of the nature existing here, given by a superior supervisor
to a subordinate supervisor, are violative of the Act See Cold Spring Granite Com-
pany, 101 NLRB 786, footnote 3
SPRINGFIELD GARMENT MANUFACTURING COMPANY 1051
across the street from the shipping department . Wanda Collins and Linda Dewhirst,
employees of the shipping department , entered the plant. Collins testified.
As we walked in, Jason Brown was sitting to the front of his chair and peering
out the front of the building , and it looked like he was looking across the street
to where George Ryan [the union representative ] and the boys are... As we
walked up on him, he turned around and saw us, or he turned towards us and
slid back in his chair and looked around to see if anyone was watching him ...
he turned and glanced at us and turned back and slid down in his chair and
then just sat there and kind of looked around to see if we were still watching.
I remember he looked back at us and then he looked towards the window, and
then he looked at Mary [Brown] and Max '[unidentified].
Collins also testified that she could not tell whether Brown had his eyes open when
she first entered the plant, and that from where Brown was sitting in the plant "you
can see across the street clearly." According to Collins, nothing was said. Dewhirst
did not testify . Brown did not recall the incident, but denied any attempt at surveil-
lance He testified that, from his chair , if one looked out the plant window as
described by Collins , "You might see a blur or something , but you couldn 't identify
anybody or anything."
In his biief , the General Counsel states:
Admittedly , a supervisor is not required to look the other way when a union
meeting is being held outside the plant. On the other hand , a supervisor may
not by his actions indicate that he is so closely observing such union activity
as to discourage it. Such is the instant case Brown was not merely sitting in
his chair looking out the window He was intently sitting on the edge of his
chair giving the appearance of close observation of the union activity.
A perusal of Collins' testimony on the subject convinces me that it is too vague to
prove what the General Counsel claims for it. Even accepting the fact that Brown
looked out the window and saw the union organizer talking to employees , this would
be insufficient to support a finding of intentional surveillance or deliberate creation
of the impression of surveillance . Bearing in mind that the Union chose to carry
on its activities directly across the street from the Respondent's plant, I conclude
that the General Counsel has failed to establish that Brown 's actions on this occasion
violated the Act.25
5. McKinney 's speech of April 9
The General Counsel introduced detailed evidence relating to an announcement
made by McKinney to the assembled employees of the shipping department on
April 9. The General Counsel 's brief says of this evidence - "Although not spe-
cifically alleged , it is submitted that this constitutes a threat in violation of Section
8 (a) (1) and since fully litigated , should be included in the decision " The General
Counsel produced two witnesses to testify about this particular announcement and
stated on the record during the hearing that this testimony had been elicited in sup-
port of a contention that the announcement violated Section 8(a)(1) of the Act.
The Respondent called three witnesses to explain the announcement and the circum-
stances leading up to it. I conclude that the matter was either covered in the com-
plaint or closely related to other matters included in the complaint , and in any event
was fully litigated at the hearing . In this posture of the case it is my duty to pass
upon the issue.26
The facts are as follows: On April 9, between 12.15 and 1 p in, McKinney
summoned the shipping department employees to a meeting and announced that
there was going to have to be a layoff of from three to five employees in the depart-
2, H d H Manufacturing Company, Inc , 87 NLRB 1373 , at 1388-1389 ; Roxanna of Texas,
The, 98 NLRB 1151, 1162 ; and R. d J. Underwear Co, Inc, 101 NLRB 299, footnote 2.
26 Monroe Feed Store, 112 NLRB 1336 , 1337; Ford Radio d Mica Corporation, 115
NLRB 1046 , 1074 , remanded on another point 258 F 2d 457 ( C A 2), Supplemental
Order 122 NLRB 34, Texas Natural Gasoline Corporation, 116 NLRB 405 , 411, enforce-
ment denied on another point 253 F. 2d 322 (C A. 5) , Mid -South Manufacturing Com-
pany, Inc. 120 NLRB 230, 247 ; Carolina Mirror Corpoiation, 123 NLRB 1712, foot-
note 1, and Snperio fool it Die Co, 132 NLRB 1373. 1382, enforcement denied on
another point 309 F. 2d 692 ( C A. 6). Courts appear to differ on this matter. Com-
pare N L R.B . v. I.B.S. Mfg. Co et at, 210 F . 2d 634, 637 (C A. 5 ), and N L R.B. v.
E it B Brewing Company, Inc , et at., 276 F 2d 594, 298-299 (CA 6), cert. denied 366
US. 908 , with NLRB v Puerto Rico Rayon Mills , Inc, 293 F. 2d 941, 947 ( CA. 1).
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment, due to slack work. He stated that he did not know whether the individuals
to be laid off should be selected according to departmental seniority or by job
seniority, and that this determination should be made by the employees. One and
perhaps two employees volunteered to be laid off, but McKinney declined the offer.
After a discussion of seniority, and speculation as to how the Union would have
handled the problem, McKinney closed the meeting by asking the employees to let
him know their decision.` 1 Later that afternoon McKinney asked Allen Carel
whether the employees had reached a decision, and Carel replied that the employees
wanted departmental seniority to govern. McKinney responded that that was his
decision, also, and showed Carel a list of the employees to be laid off.28 Howevei,
no layoff took place.
The General Counsel contends that the announcement of a layoff was a "threat"
or "scare tactic" designed to discourage the shipping department employees from
suppoitmg the Union, or in retaliation for their having joined the Union, and was
therefore violative of the Act. He bases his claim upon (1) the Respondent's union
animus; (2) the timing of the announcement within an hour after the shipping depart-
ment employees had been seen by McKinney conferring near the plant with a
representative of the Union; 23 (3) McKinney appeared to be upset when he made
the announcement; and (4) no layoff in fact took place. The Respondent, con-
versely, denies that McKinney's announcement constituted a threat or was illegally
motivated. It contends that production slacked off considerably after mid-January;
as a result, by April, there was less work for the shipping department. George testi-
fied that he discussed with the Respondent's principal customer the possibility of
putting the shipping department on a 3- or 4-day week, but the customer objected on
the ground that this would delay the receipt of his orders. On the morning of
April 9 George conferred with McKinney and Jason Brown, and decided that four
or five people would have to be dropped in the shipping department. He left it up
to McKinney to decide which individuals should be laid off. However, George's
decision to cut down the shipping department was never effectuated . On April 10,
as will be more fully described hereafter, Allen Carel was discharged, and a few
days later another shipping room employee took a 1-week vacation. Shortly after
that, two other employees of the shipping department quit; they were not replaced
for approximately 2 months. Meanwhile, on or about April 15, the Respondent's
principal customer unexpectedly requested an inventory of his goods on hand This
required that the shipping room employees count from 50,000 to 70,000 pairs of
pants of different styles, sizes, and colors. According to George's testimony, as a
result of the inventory, combined with the resignations, "at the end of the two-week
or three-week period it was no longer necessary to lay the people off."
While the timing of McKinney's announcement, at first blush, seems suspicious,
the facts support the Respondent's contention that work was slacking off in the
shipping department at this time For in March the night shift in the pressing depart-
ment had been laid off 30 And about the same time or shortly after, work in the
sewing department had been cut down to only 4 days per week. Moreover, George's
explanation for the fact that no layoff ever materialized in the shipping department-
a fortunate and unexpected change in circumstances leading to a reappraisal of the
decision-is plausible and internally consistent. It was not weakened, to any sub-
stantial extent, on cross-examination. On the facts before me, I am therefore con-
vinced and find that the General Counsel has failed to prove by a fair preponderance
of the evidence that McKinney's announcement was made in bad faith, or constituted
a threat or scare tactic calculated to thwart union activities.
C. The discharge of Robert Blackburn
1. Facts
a. The technique of leg pressing
In the Respondent's pressing department the pressers work in two-man teams.
the pants are first worked upon by a leg presser and then by a topper. The leg
27The findings of fact regarding this meeting are based upon a synthesis of the testi-
mony of McKinney, Jason Brown, and two employees who were present: Allen Carel and
Eldon Miller.
The findings of fact regarding this conversation are based upon Carel's testimony
29Although the representation petitions were filed with the Board on that day, this
may have occurred later than McKinney's speech. At any rate, the General Counsel does
not rely upon this fact.
$u There is no contention that this layoff was illegally motivated.
SPRINGFIELD GARMENT MANUFACTURING COMPANY 1053
presser's machine has two pedals on the floor, one for the vacuum and the other to
lower or release the head, and two levers on the head, one for steam and the other
for extra pressure. Normal leg pressing procedure begins with the head of the
machine up. It calls for the leg presser first to spread one leg of the pants on the
machine, smoothing out the wrinkles, then bring the head down to about an inch
above the pants, and then pull the steam lever. This is known as presteaming.
Next, the head is released and goes up again. Then the head is brought all the way
down, andothe vacuum lever pulled, after which the head is released and goes back
up. The entire procedure is repeated on the other leg of the pants At this point
the legs have been pressed and the pants are ready for the topper. If the topper is
caught up with his work and standing by his machine (next to the leg presser's), the
leg presser can simply hand the pants to the topper. If, however, the topper is behind
and is busy at the time the leg presser completes pressing the legs, the leg presser
is expected to hang up the pants by inserting them in the prongs of a rack near his
machine, provided for that purpose.
b. Blackburn's employment history, union activities, and discharge
Robert Blackburn began working for the Respondent in August 1962 and quit in
June 1963. He was rehired in August 1963. Throughout his employment he was a
leg presser in the pressing department on the night shift
In January or February 1964, Blackburn was "hitting" the pants only once, that
is, eliminating that part of the pressing process described above as "presteaming."
He was criticized by Wise and by Clifford Bolin, supervisor of the pressing depart-
ment, and told to "hit" the pants twice, in other words, to presteam them.
Late in January or early in February, Blackburn signed a union card. Thereafter
he obtained blank cards and talked about the Union to 25 of the approximately 30
employees then in the pressing department on the night shift. Some of this took
place at the plant during working hours. He succeeded in signing up "about a dozen
people from the night shift."
On the evening of March 4 Wise told Bolin that "if [he] got more than two or
three pair of pants ahead that [he] should hang the pants up [rather than laying them
on top of the rack] because Mr. McKinney was there that night." Blackburn "hit"
some pants once and some twice, and placed some on top of the rack, instead of
inserting them in the prongs. As McKinney entered the department, Blackburn was
making out his tally sheet, and his topper was standing idle, with no pants in the
rack to top. Blackburn resumed pressing and McKinney watched him. Then
McKinney walked over to Blackburn's machine and engaged Blackburn in con-
versation, during part of which Wise joined them. McKinney complained that
Blackburn was looking at the clock too often. Blackburn asked what was wrong
with his work. McKinney replied that Blackburn was only "hitting" the pants once,
and throwing them on top of the rack instead of hanging them in the prongs. There
followed a discussion of Blackburn's production, and Blackburn asked why the night-
shift pressers did not get paid as much as the day-shift pressers. The record is not
clear as to what McKinney replied. At the end of the conversation Blackburn
resumed pressing and McKinney and Wise left Blackburn's machine. A short while
later McKinney turned his head just in time to see Blackburn throw a pair of pants
onto the top of the rack. McKinney told him- "Why don't you just check out?"
Blackburn asked: "Are you firing me?" McKinney responded: "Yes, I am."
Blackburn then checked out and left the plant.31 He has not been rehired.
2. Contentions of the parties
The complaint alleges that the Respondent discharged Blackburn on or about
March 4, and since then has failed and refused to reinstate him because of his
"interest in and activity on behalf of the Union, and to discourage union activity."
In support of this allegation, the General Counsel describes Blackburn as "the prin-
cipal[union] organizer in the night pressing department ... a known union pusher,"
and argues: "Admittedly there is no direct evidence of Respondent's knowledge
concerning Blackburn's union activity. Nonetheless, such knowledge can and should
be inferred from the facts in this case." He maintains that the ostensible or pur-
ported reasons for Blackburn's discharge were in fact mere pretexts to permit the
31 The findings of fact with regard to the events of March 4 are based upon a synthesis
of the testimony of Blackburn, McKinney, Howard Joe Stafford, and Gene Foust, em-
ployees who witnessed part of the events. Wise also testified about these events, but
his testimony Is full of inconsistencies and self-contradictions and is not relied upon.
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent to rid itself of an active union supporter. This, he urges, is shown by
the fact that other pressers only "hit" the pants once and laid the pants over the
rack instead of hanging them in the prongs, but were not disciplined for this.
The answer admits that Blackburn was discharged, but denies that the reason
therefor was correctly stated in the complaint. At the hearing the Respondent con-
tended that it had "lust cause" for the discharge. It pointed out that Blackburn had
previously been warned about his method of pressing and his defective work. And
it further denied any knowledge of Blackburn's union activities. In its -brief, the
Respondent maintains that "Blackburn purposely disregarded operating instructions
which had been communicated to him," and urges "that the discharge of Robert
Blackburn [was] motivated solely by his insubordination and improper work, rather
than from union activity."
3. Conclusions
Undoubtedly, Blackburn's interest in the Union was more than average. But
McKinney, Bolin, and Wise denied that, at the time of Blackburn's discharge, they
knew of or suspected his union activities. The General Counsel seeks to meet this,
in part, by arguing that the Respondent's knowledge of Blackburn's prounion sym-
pathies can be assumed from the small size of the plant. I cannot agree. Aside from
the question of whether such a presumption would be strong enough to overcome
the positive testimony of McKinney, Bolin, and Wise,32 the Board has never yet
applied the so-called "small plant rule" to a plant as large as this one-over 400
employees-in a community the size of Springfield-population in the neighborhood
of 100,000. Indeed, the Board has refused to apply the presumption to a much
smaller plant (about 275 employees) in a much smaller community (approximately
25,000 population) 33 But, argues the General Counsel, there were only about 30
employees on the night shift with Blackburn. However, the Board has held that
"the small plant rule is based upon the size of the plant, not the size of the depart-
ment or appropriate bargaining unit." 34 It follows, and I find, that the small plant
presumption is not applicable in the instant case.
The General Counsel urges that the circumstances here-that most or all of
Blackburn's union activities took place at the plant-compel a conclusion that Bolin
or Wise must have learned of or suspected Blackburn's activities. I am not per-
suaded. Even if some supervisor had chanced to see Blackburn talking to a fellow
employee, it does not necessarily follow that he would know or learn that the topic
of conversation had been the Union. On this subject, Blackburn himself testified:
Q. (By Mr. MCCALLA.) Do you recall any occasion where you talked to
any of these employees and handed them authorization cards when Mr. Wise
was in the plant?
A When Mr. Wise, no. He could have been. I don't remember his being
there.
Q. When you talked to these people did you ever talk to them during work-
ing hours?
A. Yes.
Q. Was Mr. Wise usually there during working hours?
A. He was usually in the building that contained the pressers. [Emphasis
supplied.]
He was further examined on this subject as follows:
TRIAL EXAMINER: ... concentrating on the period prior to the time of your
firing and up to the very moment of your firing, when you were distributing
union cards can you ever recall seeing a supervisor observing you?
The WITNESS: No, sir.
TRIAL EXAMINER: You cannot recall any such instance?
Furthermore, Blackburn admittedly carried on some of his union activities during
working hours, in violation of the valid company rule described above. The Respond-
ent was quite zealous in enforcing this no-solicitation and no-distribution rule. Thus
sz See Hadley Manufacturing Corporation, 108 NLRB 1641, 1650.
as Tennessee Packers, Inc., Frosty Morn Division, 143 NLRB 494, 508, enfd. 339 F.
2d 203 (C.A. 6).
84 The J. S. Dillon & Sons Stores Co., Inc., 144 NLRB 1235, 1240-1241, enforcement
denied 338 F. 2d 395 (C.A. 10). At oral argument before me, the General Counsel urged
that this part of the Dillon decision should be reexamined. Such a request should
properly be addressed to the Board rather than to the Trial Examiner.
SPRINGFIELD GARMENT MANUFACTURING COMPANY 1055
McKinney warned both Willie Fay Carel and Allen Carel not to embark upon
such projects during working time, and Jason Brown reprimanded two employees
because he believed (mistakenly) that they were engaged in a discussion of the
Union during working time. In this context, it is likely that had Bolin, Wise, or
McKinney caught Blackburn committing a violation of the rule, they would immedi-
ately have taken disciplinary action-a reprimand at least. The fact that Blackburn
was never individually warned against union activity on company time, in my
opinion, is strong evidence that he was never apprehended while so engaged.
For the reasons set forth above, I am convinced that the record falls short of
establishing facts from which it can reasonably be inferred that any management
representative learned of or suspected Blackburn's activities on the Union's behalf.
It follows that the General Counsel has failed to prove company knowledge, an
essential element of a discriminatory discharge, no prima facie case has been pre-
sented that Blackburn's discharge was in any way related to the assistance he
rendered to the Union.35 In this posture of the case, I deem it unnecessary to explore
the Respondent's defense that Blackburn was discharged for just cause36
D. The discharge of Allen Carel
1. Facts
Allen Carel began to work for the Respondent in the middle of 1962 as an order
picker in the shipping department. In February 1964 he signed an application card
for the Union. He solicited a number of his fellow employees to sign cards and
informed them of meetings and other union activities
Early in March Carel informed Jason Brown, his immediate supervisor, that he
was for the Union" and that he was stating this for his own protection; Brown made
no comment. The next day, as previously described, McKinney sought out Carel and
illegally interrogated him concerning the reasons why Carel and his wife were
supporting the Union's campaign.
As has been set forth above, on April 29, about 4 p.m , in Jason Brown's presence,
Carel asked McKinney whether he would be discharged if he were to pass out
union literature during working time, and McKinney replied in the affirmative.
Carel protested that he had the right to pass out union literature during working
time, and "he had to prove his rights." McKinney disagreed and urged Carel: "Don't
make a test case out of it ... please don't do it." Thereafter McKinney instructed
Brown: "Discharge him '[Carel], if he passes out literature on company time." 37
On the morning of April 10 Carel came to work with some union pamphlets in
his hip pocket, partially exposed. Shortly after the workday began Care], carrying
an order, approached Floyd Burks, a fellow employee, who was at his work station
by a shipping table. Carel laid the order down,38 took two of the union leaflets
from his pocket, gave one to Burks, and threw the other across the table to Eldon
Miller, another employee who was standing near the table. At this moment Jason
Brown approached, and Burks said- "Oh, oh, you have had it, there is Jason."
Brown told Carel: "Al, you have been warned, I am going to have to fire you."
16 Skyline Homes, Inc. v. N.L.R.B., 323 F. 2d 642, 645 (C A. 5) ; Laboratory Equipment
Corporation, Carl E. Schultz, et al., a Co-Partnership, d/b/a Leco Plating Company, 146
NLRB 1247. The J. S. Dillon & Sons Stores Co., Inc., supra; Tennessee Packers, Inc.,
Frosty Morn Division, supra; Phoenix Newspapers, Inc., 142 NLRB 827; Wausau Con-
crete Company, Inc., 142 NLRB 33; Diamond Ginger Ale, Incorporated, 125 NLRB 1173;
and Hadley Manufacturing Corporation, supra.
° e N L.R.B. v. T. A. McGahey, Sr., et al., d/b/a Columbus Marble Works, 233 F. 2d
406, 412-413 (C.A. 5) ; Laboratory Equipment Corporation, et al, supra; Lawson Milk
Company, 136 NLRB 538, 546, enfd in part 317 F. 2d 756, 760 (C A. 6) ; Wausau Con-
crete Company, Inc, supra, at 35, especially footnote 5 of the Intermediate Report; Ten-
nessee Packers, Inc., Frosty Morn Division, supra; and The J. S. Dillon & Sons Stores
Co., Inc, Supra. See the opinion of Jones, C. J., in Skyline Homes, Inc. v. N.L.R.B.,
supra, at 646: "Without significant evidence that Overman or Kreischer knew of any in-
dividual union participation, and a failure to show that he struck at a suspected group
of employees, his reasons for laying off these people were his business. It is not the
place of the Board or the courts to interfere with the managerial prerogative "
$7These findings of fact are based upon a synthesis of the testimony of McKinney and
Brown
Is Carel admitted that, "strictly speaking," it was not necessary for him to take the
order to Burks. I so find
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Caret asked: "Why are you doing it, Jason, why don't you let Joe '[McKinney] do
it?" Brown answered "No, no, I am going to have to let you go." 30 After this,
Caret approached McKinney and told McKinney that Brown had discharged him for
"passing out this literature." McKinney asked- "Did you do it9" When Caret
replied "Yes," McKinney remarked that there was nothing he (McKinney) could
do about it.40 Carel then left. He was rehired by the Respondent in his old job
approximately 7 weeks later, and was so employed at the time of the hearing.
2. Contentions of the parties
The complaint alleges that the Respondent discharged Allen Carel on or about
April 10, and since then has failed and refused to reinstate him because of his
"interest in and activities on behalf of the Union, and to discourage Union activity."
The General Counsel puts forth "two alternative theories" regarding Carel's dis-
charge. The first is that Caret was discharged for violating the Respondent's no-
solicitation and no-distribution rule, and because the rule was illegal, it follows that
the discharge must be considered as discriminatory The second is that Caret was
not, in fact, discharged because he violated the rule; rather the violation was seized
upon by the Respondent as a "pretext" to cover up the real reason for the dis-
charge; namely, that Carel was "a known union organizer." Therefore, urges the
General Counsel, even should the rule be held to be valid, the discharge was dis-
criminatory. The General Counsel also takes the position that, although Care]
was rehired by the Respondent at his old work, this was premised upon a condition,
and therefore Caret has never been unconditionally restored to his former job.
The answer admits that Carel was discharged, but denies that the reason was dis-
criminatory. The Respondent maintains that "the sole motive for the discharge of
Allen Caret was his deliberate and defiant violation of the valid no-solicitation and
no-distribution rule, on company time and in the working area." In addition, the
Respondent apparently denies that Carel's reinstatement was conditional.
3. Conclusions
As to the General Counsel's first theory, it has already been determined that the
Respondent's long-standing no-solicitation and no-distribution rule was valid There-
fore the Respondent had a right, in the interest of plant discipline, to insist that the
employees comply, and to discipline them if they refused to do so. That is exactly
what was done here.41
The General Counsel's alternative theory is based upon the ground that Caret's
violation of the rule was a mere excuse, and that the real reason for the discharge
was Carel's interest in the Union. Unquestionably Carel was a strong union pro-
ponent, and this was known to the Respondent. Indeed McKinney's interrogation
of Carel in March as to what Caret and his wife had against the Respondent, described
above, displays a certain amount of pique against Caret personally arising from his
prounion activities. But standing alone this does not make out a prima facie case.
The General Counsel additionally relies upon his contention that Brown was "so
anxious [to discharge Care]] that he did not even wait to determine if Caret had
in fact violated Respondent's no-solicitation rule." More specifically, the General
Counsel maintains that Brown was more than 15 feet away from Caret when he
discharged Carel, and at that distance could not have been able to ascertain that
the pamphlet which he saw Caret hand to Burks was in fact union literature; "nor
did Brown subsequently check to see what Caret had distributed." But this fails to
take other facts into consideration. For example, on the previous evening, in
Brown's presence, Caret had made it clear that he intended to pass out union litera-
ture on working time because he believed that he had a right, protected by law, to
do so. Moreover, Brown testified that he had seen the union literature sticking out
of Carel's pocket earlier on the morning of April 10, and that later, when he dis-
99 The findings of fact with regard to the events of April 10 are based primarily upon
Allen Carel's testimony. This was corroborated in substantial part by the testimony of
Brown, Burks, Miller, and Maxine Nivens, an employee in the shipping department at
the time of Carel's discharge. Although various witnesses differed with respect to certain
details, all substantially agreed on the essential facts ; namely, that during working hours
Carel either handed union literature to another employee, or else laid it down in front
of another employee, and was almost immediately discharged by Brown, who reminded
Carel that he had been warned.
40 The findings of fact regarding this conversation are based upon McKinney's un-
denied testimony.
41 Compare Canton Cotton Mills, 148 NLRB 464.
SPRINGFIELD GARMENT MANUFACTURING COMPANY 1057
charged Carel , he was close enough ("within eight feet of it") to see the letters
"A.F.L.-C.I.O." on the pamphlet . Finally, when Brown told Carel: "Al, you have
been warned ," Carel did not protest that what he had handed Burks was not union
literature . In this context , I credit as reasonable and probable Brown 's further
testimony that, at the time he discharged Carel, he was "convinced " in his own mind
that the pamphlet which Carel had distributed was union literature
One other matter deserves mention. It will be recalled that on the evening of
April 9 McKinney requested Carel: "Don't make a test case of it . . . please don't
do it." This is not the likely conduct of an employer seeking a pretext to rid him-
self of an unwanted employee. Rather it is the plea of one anxious to avoid a
showdown which might , in the interest of plant discipline , force the reluctant dis-
charge of an employee who had performed his work in a satisfactory manner. I
therefore reject the General Counsel 's theory of pretext as unsupported by the
record.42 Instead I conclude , in agreement with the Respondent , that Carel was
discharged because, after warning, he distributed union literature on company time,
in violation of a valid company rule. Such a discharge does not contravene the
provisions of the Act . Accordingly , it is unnecessary to decide whether or not
Carel's rehire was conditional.
E. The separation of Willie Fay Carel
1. Facts
a. The operations of the sewing lines
Up to November 1963 the Respondent's sewing department consisted of five
separate lines, numbered 1 through 5. The operations performed in each line were
the same, the only difference being the experience, speed, and skill of the operators.
New operators were usually started on line 5, and could in time work their way up
through the various lines, the speediest being line 1. Conversely, operators who
were unable to keep up with the speed required by the line they were in were trans-
ferred to slower lines. Operators were hourly paid, and were afforded an oppor-
tunity to earn a bonus at the end of each week. This bonus was measured by the
amount their line's daily average production for the week exceeded a stated quota.
Therefore all the operators on a given line received a bonus that week, or none did.
In November 1963 the operators who worked on trim (pockets, flies, bands, and
similar items) were removed from their respective lines and assembled into a sixth
line. Their basic functions did not change, only their location. The purpose of the
new trim line was to supply the other five lines with trim 43 Each operation on the
trim line (for example, back pocket trim) was assigned a quota, and an operator on
the trim line who attained her quota for a week, and who had not been absent during
that week, received a bonus equal to the bonus paid to line 1 for that week Although
the record is not too clear on this point, in applying this quota, Taylor apparently
made allowances for events beyond the operator's control, such as lack of work or
mechanical trouble. Sometime between the establishment of the new trim line and
April 22, the quota for back pocket trim operators had been set at 1,600 pairs per
day. Despite this 1,600 quota, because work was slow in March and April, any back
pocket trim operator who produced a daily average of 1,000 pairs during that period
and who was not absent all week received her bonus for that week.
Operators are expected to place their initials on each bundle on which they have
worked. When defective work is discovered, it is returned for repair to the operator
who originally worked on the garment. If, for some reason, the operator responsible
for the error cannot be identified, the repair may be done by a "pinch hitter" or a
supervisor.44 Repairing or reworking does not count toward an operator's produc-
42 The General Counsel cites Wellington Mill Division West Point Manufacturing Com-
pany, 141 NLRB 819, enforcement denied on this point 330 F. 2d 579 (CA. 4), cert
denied 57 LRRM 2276 [379 U.S. 882]. That case, however, is distinguishable on its facts.
43 The testimony of Esther Berry and Peggy Johnson, back pocket trim operators, in-
dicates that each back pocket trim operator was assigned to supply a particular sewing
line. However, Carel and Taylor testified that all back pocket trim operators sewed for
all lines. As there were five lines and only four back pocket trim operators , I credit
the testimony of Carel and Taylor in this respect.
44 This finding is based upon Taylor's testimony . I do not credit the testimony of
Peggy Johnson that, under such circumstances , the operators "would volunteer" and
"kind of took turns" doing the repairs.
789-730-66-vol. 152-68
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion. Therefore, if a large amount of work is returned to an operator for repair,
this necessarily has an adverse effect upon her production and lessens her chances
of earning a bonus.
b. Carel's employment history, union activities, and separation
Willie Fay Carel first came to work for the Respondent in the summer of 1962.
She was assigned to sewing buttons on line 5. A few days later she quit. She
returned to work in June 1963. At that time she became the back pocket trim
operator in line 4. When the new trim line was set up in November 1963, as related
above, she was assigned to that line, where she became one of the four back pocket
trim operators. Hankins was her immediate supervisor.
In February 1964, at the plant, Carel spoke about the Union to about 30 of her
fellow employees. Carel contacted two of them on working time; the remainder
during break periods. As has been developed previously, McKinney summoned
Carel and questioned her about passing out union cards on company time in violation
of a company rule; she denied having done so, but admitted that she favored the
Union; McKinney then illegally interrogated her concerning her prounion sentiments.
During this discussion, McKinney told Caret "If you want to work at a union plant
why don't you go over to Jethro."
As related above, Allen Care], husband of Willie Fay Care], was discharged for
violating the Respondent's no-solicitation and no-distribution rule on April 10. Up
to about that time, Willie Fay Carel's production had been substantially the same
as that of the other back pocket trim operators. But for the last 3 working days
during the week ending April 10 and for all 4 working days during the week ending
April 17, her production went down sharply, falling below the 1,000 pairs per day
figure, and she-alone among the back pocket trim operators-failed to receive any
bonus for those 2 weeks.45
On the following Monday, April 20, the sewing department did not work. On
April 21 Carel was absent. On that day Taylor prepared and signed a note which
read:
April 21, 1964
Willie Carol [sic]
Your production has fallen below your quota of 2000 for the last 6 weeks
if it dosnt [sic] improve considerably in the next week I will have to transfer
you to another job.
Signed
Jewell Taylor
On April 22, shortly after Carel came to work, Taylor handed her the note, saying:
"Your quota is going to be two thousand from this day on and if you don't make
your quota by Friday of two thousand you are automatically going to be changed
to another job." Carel showed the note to the other back pocket trim operators and
a discussion ensued. Hankins was called over and asked about the bonus. She left
but returned shortly and said : "Yes, girls, it does mean that your quota is 2,000 a
day." Katherine Buckner, a back pocket trim operator, replied: "Well, I am not
even going to try because the more you sew the more they asked of you." 46 Carel
worked for about 4 hours and produced 750 pairs in that time. She then told Hankins
and Lucille Ingler, the office manager, that she was quitting , and left the plant. On
May 25 Carel was rehired by the Respondent and assigned to cornering fronts on
line 5. She was still at that job at the time of the hearing.
2. Contentions of the parties
The complaint alleges , and the answer denies, that the Respondent "forced Willie
Fay Carel to terminate her employment" on or about April 22, and has since then
failed and refused to rehire her because of her "interest in and activity on behalf
45 Production figures of the back pocket trim operators" are set forth in Appendix A.
The finding of fact regarding Carel's failure to receive a bonus for 2 weeks while the
other back pocket trim operators received theirs is based upon Hankins' undenied testimony.
46 These findings of fact regarding the events of April 22 are based primarily upon
Willie Fay Carel's testimony Although Hankins testified, she did not mention these
events Buckner did not testify. Taylor admitted handing Carel the note and telling
her that 2,000 "was the quota."
SPRINGFIELD GARMENT MANUFACTURING COMPANY 1059
of the Union, and to discourage union activity." The General Counsel contends that
Carel's floorlady and other supervisors engaged in a "campaign of harassment
[against Carel] giving [her] more work, bringing back more work, and the like
which ... culminated with an order to increase her quota 25 percent and that this
was the final straw which forced her to quit her employment," and that this con-
stituted a constructive discharge. The General Counsel also contends that Carel's
low production "was partly due to a faulty machine."
The Respondent denies any harassment, maintaining that Carel was treated no
differently than her coworkers, that she voluntarily quit, and that her separation "had
nothing to do with her . . . alleged union activities." In addition, the Respondent
takes the position that Carel "simply had fallen below the production of the other
employees that were doing similar work . she was not threatened with a dis-
charge ... but was simply told that if she did not increase her work substantially ...
she would be transferred to another job." Finally, the Respondent describes Carel as
"a quitter" whose "major reasons for quitting were personal in nature" and charges
that she "deliberately created situations to foster this litigation."
3. Conclusions
Undoubtedly Carel's production dropped substantially during the last 2 weeks
before her separation on April 22. Apparently, the General Counsel takes the posi-
tion that this resulted from the Respondent's deliberate campaign of harassment.
Carel testified that, prior to her conversation with McKinney related above, she per-
sonally was not reprimanded about her work, although occasionally the work of all
the back pocket trim operators was criticized. However, this underwent a radical
change. After her talk with McKinney about the Union she individually was repri-
manded "sometimes every day, sometimes twice a week, sometimes three times a
week, and just before I quit every single day." Carel testified: "They would just
bring back my work and tell me that they wouldn't accept that kind of work .. .
they would just throw my work back in my face." Asked about the nature of the
complaints , Carel testified:
Well, I either wasn't sawing my trim just perfect, this is what they said, that I
had to get it perfect, meaning about one-fourth inch on this side of the lining
from the trim ... if it wasn't they would not accept it. If it was tucked under
a little too much, which I couldn't help because . the folders were on the
machine then, they wouldn't accept it. If it was the slightest bit crooked they
wouldn't accept it.
According to Carel, during this period she was required to repair "just about every
piece of my work," but in one instance was able to avoid repairs by proving that
someone else had done the defective work. Carel further testified that her work was
"thrown back in [her] face every day, day after day and then laughing about you
and letting all the whole factory know that they are on you continually." She added
that during this period her supervisors spoke to her "in a loud, harsh voice." All
this had its effect. Carel testified: "I was under a nervous strain, I couldn't sleep at
night, there was four nights in a row there that I did not get any sleep at all hardly."
Helen McDonald, service girl for the trim line, testified that, about 2 or 3 weeks
before Carel's termination , there were two instances when Hankins brought defective
work to Carel to repair which had not been worked on before by Carel, but by some
other operator. In the light of the testimony of Carel and McDonald, I conclude
that the General Counsel has established a prima facie case that, during the last
2 weeks of Carel's employment, the Respondent subjected her to a campaign of
heckling by imposing upon her a discriminatorily rigid standard of quality, by
requiring her to make excessive and unnecessary repairs ( including repairs on
defective garments for which she was not responsible ), and by using a loud, harsh
voice in addressing her 47
To meet this prima facie case, the Respondent produced evidence that about 2
weeks before Carel's termination, Edwina Richards, back pocket finisher on line 1,
complained that the trim on certain pockets had been sewn off center; investigation
disclosed that the work had been done by Carel. Presumably Carel was required
"I find that the General Counsel has not produced sufficient evidence to prove, prima
facie. that the machine assigned to Carel was defective.
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to repair the defective work.48 The Respondent also elicited from Taylor and
Hankins testimony that the back pocket trim operators had been working on defective
material containing holes and white streaks. Taylor warned them to watch for such
materials and to throw them out when discovered . Several days later, Caret again
let such defective material through, and was reprimanded for this.
The Respondent also relies upon evidence of Carel's mental attitude during this
period, as reflected in conversations with two witnesses . Irene Meyers , a restitcher
on line 2, testified that late in March, in the presence of several employees gathered
around a table in the cafeteria , Carel stated - "I don't know what my quota is and I
don't care ," and later added . "I don't intend to make it [the quota] ... my husband
said if they fire me because I don't make a quota he would quit and then they would
have to hire us both back." On cross-examination , Meyers could not identify any
other person who was present around the table at the time. Her uncorroborated
testimony regarding this incident did not impress me as accurate and I will base no
finding thereon . Peggy Johnson, a fellow back pocket trim operator on the trim
line, testified that on April 17 Carel "said something about quitting" and that she
said "she was nervous and upset." Johnson further testified on direct examination.
Q. Tell us what was said.
A. She [Caret] was upset because her husband had been fired and she said
something to me about it.
Q. Where did this occur?
A. At Springfield Garment on working hours . And she was upset and she
said she was going to quit and then she turned around and said no , she wasn't
going to quit , they would have to fire her before he [sic ] would quit.
Q. Did she say anything about the reasons she was going to use9
A. She said that she thought the reasons she was going to quit was because
of the union. If they fired her, they would have to fire her because of the union.
lEmphasis supplied.]
In my opinion , this does not bespeak an intention to quit. On the contrary it seems
to indicate a determination to try to "stick it out." On cross -examination , Johnson
testified:
Q. (By Mr. MCCALLA.) Were you in close contact with Willie every day
then9
A. Yes.
Q. On the basis of this close contact and your ability to observe Willie each
day, do you feel Willie was being harassed during that last two weeks?
A. My opinion is she was to some extent and she wasn't.
Q. (By Mr. MCCALLA.) You think she was in fact, harassed to some extent?
A. To some extent and that is all. I mean maybe by the tone of her voice,
but I didn't think she was pressuring or harshly riding Willie.
Q. (By Mr. MCCALLA.) But she was riding her to some extent?
A. By the tone of voice only.
* * * * * * *
Q. Then Reba [Hankins] did , in fact, talk in a rather angry tone to Willie?
A. Sometimes.
Q. This is all within the two weeks before Willie quit?
A. She talked angry to all of us during these two weeks.
Q. Is this the reason you think to some extent Willie was being harassed
because Reba Hankins did talk to her in a loud tone?
A. I imagine she was getting aggravated because Willie didn 't put out her
production , she gets aggravated with all of us for that.
I conclude that the evidence which the Respondent put forth by way of defense
is inadequate to overcome the General Counsel's prima facie case as to harassment.
In this connection it should also be noted that , according to Hankins ' undenied
testimony , although Carel was deprived of her bonus for 2 weeks because of low
production, at the same time a fellow employee, Buckner , was permitted to obtain a
bonus despite two absences in that week (see Appendix A). Under all the circum-
48 The findings of fact with regard to this incident are based upon the testimony of
McKinney, Taylor, and Hankins.
SPRINGFIELD GARMENT MANUFACTURING COMPANY 1061
stances I am convinced, and find, that the Respondent deliberately baited Carel
during the last 2 weeks of her employment, and that her drop in production was the
inevitable result.49
Let us turn next to the note penned by Taylor and delivered to Carel on April 22.
In the past nine instances in which Taylor had transferred operators to slower lines,
she had invariably done so orally. Her resort to a note for the first time in Carel's
case is explained by McKinney as follows:
I felt at the time that we were going to have some unfair labor practice charges
filed against us, and I felt at the time that very possibly that this very same person
could come up to us and tell us we could not warn her. I wanted it in writing
that we had warned her about production.
In view of the fact that unfair labor practice charges were then pending against the
Respondent, and Carel was a known union adherent, I accept as reasonable this
explanation for the use of a written, rather than an oral, reprimand.
Now let us examine the wording of the note itself. The Respondent's brief states
"the note clearly does not mandatorily require Mrs. Carel to achieve 2,000 units of
production." I cannot agree. As I read the note, although there is some ambiguity,
it may fairly be interpreted as meaning that the 2,000 pairs was a required amount
of production; otherwise any mention of the figure would have been unnecessary.
Moreover, at the time Taylor gave the note to Carel, she removed any lingering
doubt by warning that Carel must "make your quota by Friday of two thousand." 50
Furthermore the Respondent's brief contends that the back pocket trim operators
"were made aware of the 2,000 quota in January 1964." It is true that Taylor and
McKinney testified that in January they had set the quota for back pocket trim
operators at 2,000. But Taylor further testified:
Q. Did you then tell Reba Hankins the quota was going to be 2,000?
A. I don't remember.
Q. Did you tell any of the girls on the back pocket trim it should be 2,000?
A. No.
Q How were you going to tell the girls or communicate to the girls there
was going to be a 2,000 quota9
A. When out work got sufficient where we would have plenty of work for
the girls to get 2,000, 1 was going to try to enforce it, otherwise there was no
need for it. [Emphasis supplied.]
Q. (By Mr. MCCALLA.) When did you first decide to communicate this 2,000
quota?
A. I haven't never told them they were supposed to do 2,000 pair.
Q. You have never told them that?
A. No.
Q. You told Willie Carel that?
A. Yes, I told her that was the quota.
Q. That was the first time you communicated the increase in quota to any
of the girls on the trim?
A. Personally, yes.
Q. At the time you told Willie about this increase, did you tell any of the
other girls about it?
A. No sir.
In short, Taylor felt no "need" to announce the increased quota until such time as
there would be a sufficient supply of work to enable the operators to achieve the new
quota. And all witnesses agree that at the time Taylor handed the note to Carel
there was not enough work to permit the back pocket trim operators to meet their
current quota of 1,600 pairs daily (see Appendix A), much less a quota 25 percent
higher. Indeed there is no doubt, the Respondent's witnesses concede, and I find,
49 From my observation of Carel, I conclude that she is a highly sensitive woman who
would readily become upset by harassment . Indeed, she was so moved while relating
these facts on the witness stand that it was necessary to call a recess to enable her to
regain her composure . In view of the length of time she had worked for the Respondent
it is reasonable to assume , and I find, that her superiors in the sewing room knew of her
sensitivity.
so To the extent that Taylor denied making such a statement , her denial is not credited,
because, as will be shown below, she admitted telling Carel her quota was now 2,000.
1062 DECISIONS OF NATIONAL LABOR RELATIO NS BOARD
that the conditions existing on the trim line on April 21 and 22 made it absolutely
impossible for any back pocket trim operator to achieve a daily average production
of 2,000 pairs and that the Respondent's supervisors were well aware of this The
announcement 's unexplained timing therefore must be looked upon with great
suspicion, especially as the announcement was made to one particular operator
alone 51 This is underlined by the reaction of surprise and chagrin on the part of
Buckner when she learned of it. "Well, I am not even going to try." The suspicion
of discrimination against Carel grows into conviction when it is realized that the
note speaks of Carel's production as having "fallen below ... for the last 6 weeks "
As the Respondent's production figures show, and as Taylor must surely have known,
Carel's production had been down for only 2 weeks. (See Appendix A.) Finally,
the Respondent seems to imply that the note does not threaten any adverse action
against Care], while the General Counsel argues that the note threatened her with
transfer to a less desirable job. I agree with the General Counsel on this point It
is clear that, as Carel then had the opportunity to earn a bonus equal to that of the
fastest line, transfer to a slower line would have reduced her bonus-earning poten-
tial In any event, the very delivery of the note, as Respondent's counsel conceded
at oral argument, was "a form of disciplinary action."
In sum, the wording of the note itself constituted an additional and deliberate act
of harassment because (1) it threatened disciplinary transter to a less advantageous
job unless Carel achieved within a fixed time a quota which everyone concerned
knew to be impossible of attainment; (2) it singled her out to announce to her alone
an increase in quota at a time when there was apparent reason for such an
announcement: and (3) it misrepresented the time during which her production had
been low, deliberately multiplying that period by three. I therefore find that the
note was designed to scare Carel and to make her feel ashamed and inadequate. To
her previous loss of bonus for 2 successive weeks it added the specter of the loss of
future earning potential due to transfei This was assertedly done on the pretext
that Carel's production had fallen off when, in fact, as found above, the drop in
production had been fostered by the Respondent's campaign of harassment The note
supplied the final discouragement and was the cause of Carel's leaving her job. As
she described it, after reading the note and hearing Hankins' confirmation of the 2,000
quota, "I sat there at my machine and . . I worked just as hard as I could possibly
go and that morning I think I sewed about 750 and I just knew I couldn't make it
and I just walked out."
In view of the foregoing, I reject the Respondent's defense that Carel quit volun-
tarily, and conclude, instead, that for a period of 2 weeks, culminating in the note,
the Respondent deliberately made her working conditions intolerable and drove her
into involuntarily leaving her employment. Accordingly, in agreement with the
General Counsel, I find that she was constructively discharged.52
We now reach the question- why would the Respondent deliberately treat a satis-
factory employee in such a manner? The answer lies in the Respondent's reaction
to the attempted unionization of its employees, and the fact that Carel was known
to be a key supporter of the Union Her strong prounion feelings were revealed to
McKinney on the occasion of his illegal interrogation of her, during which he sug-
gested that she leave the Respondent's employ and go to work for Jethro, because
Jethro was a union plant. This clearly revealed his dissatisfaction with her prounion
attitude, and his desire to dispense with her services, if he could do so without dis-
charging her. In short, he sought to put the onus upon her to sever the employment
relationship. I conclude that Willie Fay Carel was constructively discharged on
April 22 in order that the Respondent could be rid of an active supporter of the
Union
THE REMEDY
It has been found that the Respondent interrogated its employees regarding their
own and other employees' union sympathies, affiliations, and activities, directed an
employee to engage in illegal surveillance of protected activities, and constructively
"Hankins' testimony that the increase of quota from 1,600 to 2,000 pairs per day
was announced earlier to all the back pocket trim operators is not credited
52 Compare N.L.R B. v. Tennessee Packers. Inc . Frosty Morn Div , 339 F 2d 203
(CA. 6) ; and Beiser Aviation Corporation, 135 NLRB 450. J C. Hamilton, et at, Co-
partners, d/b/a The J. C Hamilton Company, 104 NLRB 737, cited by the Respondent,
is distinguishable on its facts.
SPRINGFIELD GARMENT MANUFACTURING COMPANY 1063
discharged another employee because of her union activities. Because of the under-
lying purpose and tendency of this unlawful conduct, it is concluded that there exists
danger that the Respondent will in the future commit other unfair labor practices.
Accordingly, it will be recommended that the Respondent cease and desist, not only
from the unfair labor practices found, but also from in any other manner infringing
upon the rights guaranteed in Section 7 of the Act.
With regard to Willie Fay Care], who was constructively discharged in violation
of the Act, although she has returned to work for the Respondent, the General Coun-
sel contends that this did not amount to adequate reinstatement because Carel was
not rehired in a similar or substantially equivalent position. At the time of her
separation on April 22 Carel had been a back pocket trim operator on the trim line,
with a real opportunity to earn a bonus. When rehired by the Respondent she was
assigned to cornering fronts on line 5. There is ample undisputed testimony, and
it is found, that operators on line 5 rarely, if eves, are able to obtain any bonus. The
record therefore supports the General Counsel's contention that the job which Carel
now holds affords her less earning potential than, and is substantially different from,
the job she formerly occupied. Accordingly, it will be recommended that the
Respondent offer Willie Fay Carel immediate and full reinstatement to the position
she occupied on April 22, 1964, or a substantially equivalent position, without
prejudice to her seniority or other rights and privileges previously enjoyed. With
respect to backpay for Caiel, the Respondent argues that where an employer seeks
to thwart an employee's union activity while retaining the employee, and the
employee thereafter abandons his employment because of this unfair labor practice,
the employee (although perhaps entitled to reinstatement) is not entitled to back-
pay.53 However here, as found above, the Respondent did not seek to retain Carel
in its employ on April 22, but on the contrary acted to rid itself of her because of
her support of the Union The principle urged by the Respondent is therefore
inapplicable to the instant case. It will therefore be recommended that the Respond-
ent make Willie Fay Carel whole for any loss of earnings she may have suffered by
reason of the discrimination against her by paying to her a sum of money equal to
that which she would have earned from April 22, 1964, the date of the discrimination
against her, to the date of the offer of reinstatement, less her net earnings during
this period, with interest thereon at the late of 6 percent per annum It will be
further recommended that the Respondent preserve and, upon request, make avail-
able to the Board, payroll and other records to facilitate the computation of the
backpay due, and post appropriate notices.
It will also be recommended that the complaint be dismissed, insofar as it alleges
that the Respondent discriminated against Robert Blackburn and Allen Care], and
violated Section 8(a)(1) of the Act except as specifically found above.
Upon the basis of the above findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Springfield Garment Manufacturing Company is, and at all material times has
been, an employer within the meaning of Section 2(2) of the Act, engaged in com-
merce within the meaning of Section 2(6) of the Act.
2. Amalgamated Clothing Workers of America, AFL-CIO, is, and at all material
times has been, a labor organization within the meaning of Section 2(5) of the Act.
3. By discriminatorily harassing Willie Fay Care], and forcing her to leave her
employment, thereby discouraging membership in the above-named labor organiza-
tion , the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (3) of the Act.
4. By the above-described conduct, by interrogating its employees regarding their
own and other employees' union sympathies, affiliations, and activities, and by
directing an employee to engage in illegal surveillance of protected activities, thereby
interfering with, restraining, and coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
5. The above-described unfair labor practices tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce, and constitute unfair
labor practices affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
53 Citing J. W. Dlays, Inc., 147 NLRB 942
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. Except as specifically set forth in Conclusions of Law Nos. 3 and 4, above,
the General Counsel has failed to establish that the Respondent has engaged in or is
engaging in unfair labor practices within the meaning of Section 8(a)(1) or (3)
of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon the
entire record in this case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, it is accordingly recommended that the Respondent, Spring-
field Garment Manufacturing Company, Springfield, Missouri, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Amalgamated Clothing Workers of America,
AFL-CIO, or any other labor organization, by harassing its employees, by forcing
them to leave their employment, or by otherwise discriminating against them in
regard to their hire or tenure of employment or any term or condition of their
employment.
(b) Interrogating its employees concerning their own or other employees' union
sympathies, affiliations, or activities in a manner constituting interference, restraint,
or coercion in violation of Section 8(a) (1) of the Act.
(c) Ordering, soliciting, directing, or urging its employees to keep under surveil-
lance or to inform it about the union sympathies, affiliations, or activities of other
employees.
(d) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their rights under Section 7 of the Act, except as permitted by
Section 8(a)(3) of the Act, as amended.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act.
(a) Offer Willie Fay Care] full reinstatement to the position she held on April 22,
1964, or a substantially equivalent position, without prejudice to her seniority or
other rights and privileges previously enjoyed, and make her whole for any loss of
pay suffered because of the discrimination against her, with interest thereon at the
rate of 6 percent per annum.
(b) If Willie Fay Carel should currently be serving in the Armed Forces of the
United States, notify her of her right, after discharge from the Armed Forces, to full
reinstatement, upon application in accordance with the Selective Service Act and
the Universal Military Training and Service Act of 1948, as amended.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to compute the
amount of backpay due hereunder.
(d) Promptly upon receipt from the Regional Director for Region 17 of copies
of the attached notice marked "Appendix B," 54 cause such copies to be signed by
its representative and posted in conspicuous places at its plant in Springfield, Missouri,
including all places where notices to employees are customarily posted.
(e) Maintain such posting for 60 consecutive days, during which it shall take
reasonable steps to prevent such notices from being altered, defaced, or covered by
any other material.
(f) Notify the said Regional Director, in writing, within 20 days from the receipt
of this Decision,55 what steps it has taken to comply herewith.
It is further recommended that the complaint be dismissed, insofar as it alleges
that the Respondent discriminated against Robert Blackburn and Allen Carl, and
violated Section 8(a)(1) of the Act, except as specifically found herein.
511f this Recommended Order is adopted by the Board, the words "the Recommended
Order of a Trial Examiner" shall be stricken from the notice , and the words " a Decision
and Order" shall be substituted therefor . If the Board 's Order is enforced by a decree
of a United States Court of Appeals , the words "Decision and" shall be stricken from
the notice and the words "Decree of the United States Court of Appeals, Enforcing an"
shall be substituted therefor.
51 If this Recommended Order is adopted by the Board , the words "20 days from the
receipt of this Decision" shall be stricken, and the words "10 days from the date of
this Order" shall be substituted therefor.
SPRINGFIELD GARMENT MANUFACTURING COMPANY 1065
APPENDIX A
PRODUCTION OF BACK POCKET TRIM OPERATORS
Operator 1st day 2d day 3d day 4th day 5th day
Week ending 2/28/64
P Johnson ______-___ 1101 1110 1102 1102 1107
K Buckner __-______ 1109 1110 1123 1129 1115
E Berry--- --------- 1139 1357 1205 1289 1022+WP
W Carol------------ 1102 924 In office 1104 1047 961
1
Week ending 3/6/64
P Johnson ---------- 1102 1001 1107 1124
---------------
K Buckner - -------- 1120 1011 1107 1000-{- ----------
W Carel ------------ 1104 1002 1102 1101 ----------------
Week ending 3/13/64
P Johnson ---------- 1230+ 1304 1301W 430+ ----------------
K. Buckner ------_-_ 1320 1405 1600 500+ ---------------
W. Carol __________-_ 1188 1309 1115 machine
trouble
435+ ----------------
Week ending 3/20/64
P Johnson__________ 1247 612W 1062W 845W
---------------
K Buckner--------- 1601 638W 1230W 903W
W Carel____________ 1219 565W 1350W 915 ---------------
Week ending 3/27/64
P. Johnson ---------- 1316 1500 1609 845W
----------------
K Buckner_________ 1507 1610 1606 915W ___ ----
W. Carol ------------ 1212 1146 1350 903W ----------------
Week ending 4/3/64
P. Johnson ---------- 666W 744W 634W __________________
----------------
K Buckner--------- 1303 1246W 703W __________________ ----------------
W . Carol ------------ 682W 761W 600W __________________ ----------------
Week ending 4/10/64
P. Johnson__________ 1104 948 1102 1108W
----------------
K. Buckner --------- A A 1410 1325W --------------
W. Carel------------ 1113 831 649 757 ----------------
Week ending 4/17/64
P. Johnson -----_-__- 1163 1004W 1204W 705+2/4 bra ----------------
K Buckner __-______ 1601 1320 1607 746+2 hrs ----------------
W Carel____________ 739 700 957 810 ----------------
KEY -A-Absent, W-Waiting for work, +-Worked on another operation for number of hours.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to carry out the policies of the National Labor Rela-
tions Act, as amended , you are notified that:
WE WILL NOT discourage membership in Amalgamated Clothing Workers of
America, AFL-CIO, or any other union , by harassing our employees, by forc-
ing them to leave, or by otherwise. discriminating against them in regard to
their hire or tenure of employment or any of their, working conditions.
WE WILL NOT question our employees about their own or other employees'
union sympathies , affiliations , or activities in a manner constituting interference,
restraint, or coercion.
WE WILL NOT order, solicit, direct, or urge our employees to spy upon or
inform us about the union sympathies, affiliations, or activities of their fellow
employees.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, join, or
assist unions, to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from such activities, except
to the extent that such right may be affected by an agreement requiring union
membership as a condition of employment, as authorized in Section 8(a)(3)
of the National Labor Relations Act, as amended by the Labor-Management
Reporting and Disclosure Act of 1959.
WE WILL offer Willie Fay Carel immediate and full reinstatement to her
former or a substantially equivalent job, without prejudice to her seniority or
other rights and privileges previously enjoyed, and make her whole for any
loss of pay suffered because of the discrimination against her, with 6 percent
interest.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of any union, except to the extent permitted by Section 8 (a) (3)
of the National Labor Relations Act, as amended.
NOTE-If Willie Fay Carel should be currently serving in the Armed Forces of
the United States, we will notify her of her right to full reinstatement after dis-
charge from the Armed Forces, upon application, in accordance with the Selective
Service Act and the Universal Military Training and Service Act of 1948.
SPRINGFIELD GARMENT MANUFACTURING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Questions concerning this notice or compliance with its provisions may be
directed to the Board's Regional Office, 1200 Rialto Building, 906 Grand Avenue,
Kansas City, Missouri, Telephone No. Baltimore 1-7000, Extension 731.
Western Meat Packers, Inc. and Amalgamated Meat Cutters and
Butcher Workmen of North America, Local Union No. 634,
AFL-CIO
Western Meat Packers, Inc. and Keith Warenski . Cases Nos. 27-
CA-1603 and 27-CA-1629. June 1,1965
DECISION AND ORDER
On January 29,1965, Trial Examiner William E. Spencer issued his
Decision in the above-entitled proceeding, finding that the Respond-
152 NLRB No. 113.