United Garment Workers Of America, Afl-Cio

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 411 (N.L.R.B. 1989)

GARMENT WORKERS
United Garment Workers of America, AFL-CIO
and Warren Sherlock. Case 3-CA-14240
June 15, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On March 2, 1989, Administrative Law Judge
Edwin H . Bennett issued the attached decision.
The Respondent-Union filed exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and has decided to
affirm the judge's rulings, findings,' and conclu-
sions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, United Garment Workers of America,
AFL-CIO, Hermitage, Tennessee, its officers,
agents, successors , and assigns , shall take the action
set forth in the Order , as modified below.
Substitute the following for paragraph 2(f).
"(f) Notify the Regional Director for Region 3 in
writing within 20 days from the date of this Order
what steps the Respondent has taken to comply."
1 The Respondent has excepted to some of the judge 's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings
2 The judge's recommended Order is modified to correct an inadven-
tent error.
Thomas Sheridan, Esq., for the General Counsel.
Richard H. Markowitz Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
EDWIN H. BENNETT, Administrative Law Judge. A
hearing was held before me on September 1, 1988, on the
complaint that Warren Sherlock had been fired by his
employer, the United Garment Workers of America,
AFL-CIO (the Respondent Employer also is a union and
at times will be referred to in that capacity) in reprisal
for his having engaged in concerted activities and be-
cause of his intent to file charges with the National
Labor Relations Board (Board) pursuant to the National
Labor Relations Act (Act). Sherlock filed the instant
411
charge on March 9, 1988, and the formal complaint
issued on April 7, 1988.
The Respondent denies it violated Section 8(a)(1) and
(4) of the Act as alleged and asserts that it had just cause
to fire Sherlock.
On the entire record , including my observation of the
demeanor of the witnessses , and after due consideration
of the briefs filed by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent , a labor organization with its head-
quarters in Hermitage, Tennessee, represents employees
in bargaining with employers located in various States
and it annually collects and receives dues and fees in
excess of $250,000 transmitted directly to its headquar-
ters from constituent Locals and members located out-
side Tennessee . It is admitted , and I find, that Respond-
ent is an employer engaged in commerce within the
meaning of Section 2 (2), (6), and (7) of the Act.
II. THE UNFAIR LABOR PRACTICES
Sherlock began work for the Union as an International
representative in 1976 and was 1 of 17 such employees at
the time of his discharge in March 1988 . During his
career he also served as an executive board member and
from August 1986 to August 1987 he had been the direc-
tor of organizing , a position that involved him in orga-
nizing plants throughout the country . When he did not
occupy that position his work as an International repre-
sentative was in a northeastern area (Vermont to Mary-
land) servicing the locals in that area by performing such
tasks as negotiations , arbitration , grievance handling and
contract administration , and organizing.
On or about August 12, 1987, at the Union 's conven-
tion , Earl Carroll defeated Sherlock in an election for
the post of general president . Calvina Little was reelect-
ed secretary/treasurer . Within a day or two of the elec-
tion the three of them conferred to discuss Sherlock's
future role . Carroll announced that he was replacing
Sherlock as director of organizing and that Sherlock
would return to the northeast area as an International
representative. Sherlock observed that he could not be
occupied full time servicing the locals in that area inas-
much as another International representative , Jeffery
Roberts, was employed in that territory. Carroll respond-
ed that Roberts eventually might be converted into a
full-time engineer doing timestudies , a task he then per-
formed part time . In the meantime, Carroll informed
Sherlock to devote half his time organizing new plants.
The discussion was rather generalized and Sherlock re-
quested that Carroll particularize his new duties in writ-
ing so there would be no misunderstanding , a request
later repeated in writing.'
On August 26 Carroll wrote to Sherlock and Roberts
apparently as a followup to the earlier conversation. Al-
1 The account of the meeting is based on Sherlock 's testimony which is
credited , for reasons more fully discussed below, wherever it differs or
vanes from that of Carroll 's and Little's.
295 NLRB No. 47
412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
though Carroll did not particularize Sherlock 's duties as
requested this was the only written reply ever given to
Sherlock regarding his new duties . In the letter to Sher-
lock, Carroll repeated that Sherlock no longer would
function as director of organizing but instead he was
being reassigned to his previous territory consisting of 9
locals in Pennsylvania, New York, and Connecticut with
496 members . Carroll acknowledged that the service
aspect of the job would require about 2 weeks a month
"which would mean about 50% of your time could be
spent in organizing."
To Roberts , Carrol wrote "that I have reassigned
Warren to service the Local Unions he took care of
prior to your employment . This work will not be enough
to keep him busy so he will be organizing in the north-
east area . I want you to assist him when you are not
busy doing engineering work for the Union." Carroll
also stated his intention to discuss with Roberts, at some
future point, the possibility of Roberts doing engineering
work 100 percent of his time.
Sherlock was then receiving $558 a week . In the letter,
Carroll wrote that he would reduce his salary to $435
when his term in office as an executive board member
expires (this was to, and did, happen in December 1987).
In fact, and without any discussion about the matter,
Carroll only reduced Sherlock's salary to $485 which
was the salary he received until his discharge.
Following receipt of the letter, Sherlock met with
Roberts to discuss the status of the Locals and by late
September or early October he proceeded to get in-
volved in the organizing phase of his new assignments.
Sherlock credibly testified that he carried out his duties
in accordance with his past practice and the generally
accepted practice of the Union's International representa-
tives . He divided his time among the various functions as
required . Thus, in some weeks his organizing activities
occupied him 2 days while in other weeks he would
spend 5 days in that endeavor. He met with employees,
surveyed plants, and spoke to management officials. By
his own estimate (substantially corroborated by Respond-
ent's records), he spent from 10 to 14 days in organizing
activities in the period between his reassignment and dis-
charge in March 1988 . It is undisputed that neither Car-
roll nor Little expressed disapproval over the manner,
method , or amount of work , whether organizing or serv-
ice work, all of which was entered by Sherlock on the
weekly reports he was required to submit. Although the
format of these reports was changed in January 1988 to
reflect more detail , Little had requested that they not be
"too long and complicated." In any event Sherlock duly
reported his activities and Respondent never expressed
any discontent until the litigation of this case . In fact not
even the discharge letter expressed a reason for that
action , let alone an explanation of Sherlock 's failings,
real or imagined.
In late January 1988 (all dates hereinafter are in 1988
unless otherwise stated) Sherlock heard that raises had
been given to other international representatives . He dis-
cussed this with Lucy Gibby, another representative and
the one who had nominated Sherlock for union presi-
dent, who advised that she too had learned of the same
reports . They agreed that both of them would inquire in
their next weekly reports whether or not they too would
receive raises . On the weekly report for February 6,
Sherlock referred to increases having been given in the
past during January and he asked "if there will be in-
creases given this year to staff members."
On March 1 , not having had a reply , Sherlock wrote a
certified letter addressed to Carroll and Little in which
he referred to the fact that although both he and Gibby
had inquired about a raise , neither of them had received
one or even an answer . He further noted that other staff
had received a 5-percent increase and that "we hope" it
was an oversight that they did not receive one. He
stated , "should we not receive a reply to this letter by
March 11 , 1988 we shall have no other option than to
file charges against the International Union ." The letter,
which bore Sherlock's address and his signature, had
Gibby's name typed under his on the signature line and a
copy was noted as having been sent to her. Sherlock tes-
tified that he had in mind to file a charge either with the
Board or Department of Labor depending on the re-
sponse, at which time he would investigate further as to
the appropriate agency.
The letter was delivered to the union office on March
3 (although Respondent disputed the authenticity of the
union agent's signature on the post office return receipt,
Carroll admitted receiving the letter on that date) and by
letter of that same date Carroll wrote Sherlock as fol-
lows: "This is to advise that as of week ending March
12, 1988 your services will no longer be required. En-
closed here with is two weeks serverance pay." Sherlock
received this discharge notice on March 7.
Little had been away from the union office between
February 26 and March 6. On her return she learned
from Carroll of Sherlock's discharge . She questioned
whether Carroll had notified Roberts so that he could
cover a planned visit by Sherlock to Barnsboro , Pennsyl-
vania, the week of March 12. Carroll said he had failed
to inform Roberts and that Little should do so, where-
upon she telephoned him on March 7. I credit Roberts
that during that phone conversation he asked why Sher-
lock had been fired, and Little replied that it was Car-
roll's decision because of "the letter Warren had sent in
regarding wages" and that "anybody who's threatening
to file charges . . . doesn't belong in the organization
anyway." Roberts mentioned to Little that Sherlock
somehow had brought the discharge on himself but he
was unable, at the hearing, to explain what he meant by
this ambiguous remark and it must remain as one of
those unexplained mysteries of human behavior. Re-
spondent's proposed inference that Roberts must have
believed Sherlock was not performing his job is no more
valid than a finding that he thought the discharge related
to Sherlock's having opposed Carroll for union president
or to the March letter Sherlock sent to Carroll asking for
a raise. Little's denial that she uttered the remarks
quoted is rejected.
In crediting Roberts over Little I have taken into ac-
count the testimonial demeanor of both witnesses , incon-
sistencies in other of Little's testimony discrepancies be-
tween Little and Carroll , and the fact that Roberts has
placed himself in an unenviable , if not precarious, posi-
GARMENT WORKERS
tion by his testimony . Then too, I have considered that
Respondent 's reason for the discharge are so transparent
that I would find a violation even without Roberts' testi-
mony .2 with that testimony of course , General Counsel's
case is unshakable.
Respondent 's Defense
We turn then to Respondent 's reason for firing Sher-
lock. Significantly, no reason ever was given to Sher-
lock, an indication in itself, as experience teaches, that
the true reason is being masked . At the hearing, Carroll
and Little testified that the only reason was their discov-
ery that Sherlock failed to perform organizing duties as
required and thus was not working full time . However,
there is some mystery as to just when either or both
made this discovery. According to both Carroll and
Little it is her job to examine the weekly reports and
starting in November 1987 she began to notice how little
organizing work was being accomplished by Sherlock.
Nevertheless, Little conceded she waited until mid-Feb-
ruary to tell Carroll at which time she also suggested
they fire Sherlock because Roberts was capable of doing
all the work. Despite this extreme remedy, Little did not
explain having waited several months to bring the matter
to Carroll's attention . Furthermore , her surprise on being
told by Carroll that he had taken this very action during
her absence from the office between February 26 and
March 6 is itself surprising if indeed she had urged such
a drastic measure for a veteran employee . An action so
sudden that, as noted previously , Carroll failed to pro-
vide for coverage of Sherlock's commitments.
Although Carroll supported Little's testimony that he
was told in mid-February of Sherlock's failings, to which
he replied he would look into the matter, he did not cor-
roborate Little's added comment that Sherlock should be
fired. Rather and somewhat inconsistently, Carroll testi-
fied that following Little's information in mid-February
he proceeded to investigate and he determined that Sher-
lock should be fired for not doing any organizing. How-
ever, Carroll aslo testified that he discovered this state of
affairs by himself in December 1987 and January 1988
when he reviewed Sherlock's reports . No explanation is
offered by Carroll for his failure to tell this to Little in
mid-February or why he admittedly said he would look
into the matter if indeed that matter already had been
looked into by him, or why he failed to notify Little that
he had decided to discharge Sherlock, an action recom-
mended by Little.
Adding further to this puzzle is that Little testified
that on February 23 Carroll reported to the executive
board "that we have a couple of people that 's not maybe
pulling their share of the work and we are going to have
to do something about it ." Sherlock was not referred to
by name and indeed the reference to more than one per-
haps unsatisfactory employee causes us to question not
only whether or not Sherlock was one of the intended
2 A scrawled note by Little of bits and pieces of her phone conversa-
tion with Roberts omitting the disputed remarks was rejected as evidence
of the fact that such remarks were not made . This document is not sub-
ject to any exception to the rule against hearsay but in any event it ad-
mittedly does not purport to be a complete account of the conversation.
413
targets, but if he was, why no action was taken with re-
spect to the other equally perhaps nonproductive repre-
sentative . Furthermore , this statement allegedly made by
Carroll is inconsistent with Little's testimony that she
concluded from examining the weekly reports that only
Sherlock was not performing satisfactorily . The murki-
ness of Respondent 's assertion is compounded further by
Carroll who failed to mention in his testimony that he
made any report at all to the executive board.
Thus, Respondent 's case would have Carroll purport-
edly learning of Sherlock's failings on his own either in
December 1987 or January 1988, or as a result of Little's
information in February 1988. We would have Little as-
sertedly recommending his discharge in February yet
being surprised to learn of it in March , and Carroll, at
least according to Little, telling the executive board that
two unnamed representatives maybe were not doing
their work which would require that unspecified action
be taken against them at some unstated time . This cre-
ated such urgency, Respondent would have us believe,
that Carroll had to discharge Sherlock without informing
Little and without arranging to cover Sherlock's ap-
pointment . And yet, despite the purported seriousness of
Sherlock 's failings , Carroll allowed several months to
elapse without taking any corrective action . And, not
only did he not warn or even notify Sherlock of the
problem he awarded him a $50-a-week increase in salary
beyond the amount he had determined in August 1987 to
be appropriate . I must conclude that Respondent offers
us a fictional scenario.
In rejecting Respondent 's assertion that it had a valid
business justification for terminating Sherlock, I do not
overlook that in fact Sherlock did not engage in a signifi-
cant amount of organizing activities . However, the
record is equally clear that no one in the Union appears
to have performed any differently than Sherlock or
achieved any better results than Sherlock in terms of pe-
titions filed, plants organized or authorization cards se-
cured (the criteria Respondent urges as the measure of
work effort). The last plant organized prior to Sherlock's
discharge was early in 1986 in Liberty, Kentucky, and
Sherlock worked on that campaign , and the first plant
organized after his discharge was in July 1988 in
Camden, Tennessee . Such results hardly corroborate Lit-
tle's testimony that Sherlock , of all the representatives,
was not working hard as an organizer.
Respondent also sought to demonstrate that Sherlock
was not even able to obtain authorization cards so as to
permit the holding of a Board election . Here too the
record shows that the Union as a whole fared very
poorly in this respect . Thus, between an election held
sometime in 1986 at a firm called Angelica, organized in-
cidentally by Sherlock, and an election in July 1988 at
the HD Lee Company, the Union did not participate in
any Board election . Therefore, to the extent Respondent
seeks to measure work effort by results, the record re-
futes the claim that Sherlock was any more deficient
than any other union organizer, including Sherlock's re-
placement as director of organizing , Carroll.
Finally, we come to Respondent 's additional explana-
tion for terminating Sherlock, his admitted delay in
414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
transmitting per capita dues from the locals he serviced
to headquarters . At the hearing and in its brief Respond-
ent argued that for 6 months Sherlock was delinquent in
forwarding to the Union dues he had collected from the
locals, thereby potentially jeopardizing death benefits
and other membership privileges . In December 1987 and
January and February 1988 Carroll wrote what appears
to be form letters to Sherlock advising him of such delin-
quencies with respect to some of the locals under his ju-
risdiction for the months of September 1987 through Jan-
uary 1988 . Sherlock readily acknowledged his tardiness
in forwarding these moneys which he kept in separate
and specially earmarked bank accounts for each local
pending transmittal.
This explanation for the discharge of Sherlock is with-
out any merit and deserves little discussion . Not only
was it never advanced as a reason to Sherlock (for that
matter neither was his alleged failings as an organizer)
but there is not one shred of record evidence , documen-
tary or testimonial , that Carroll based his discharge deci-
sion , in whole or in part, on such conduct . Nor is there
even a suggestion that employees suffered actual harm as
a result of the delay in sending in the funds . According-
ly, there is no basis to conclude that Sherlock 's actions in
this regard , such as they were, were viewed with any
degree of seriousness by Respondent in reaching the dis-
charge decision or were, in any sense , relevant to that
decision.
Final Conclusions
The legality of the discharge action under consider-
ation here is to be measured by the standards set forth in
Wright Line, 251 NLRB 1083 ( 1980), enfd . 662 F.2d 899
(1st Cir . 1981), cert . denied 455 U.S. 989 ( 1982) (ap-
proved in NLRB v. Transportation Management Corp.,
462 U .S. 393 (1983)). If the General Counsel meets the
burden of making a prima facie showing by a preponder-
ance of the evidence that protected activity was a moti-
vating factor in the decision to discharge an employee,
the burden shifts to the employer to demonstrate that
such discharge would have occurred even in the absence
of that protected conduct. Under this standard , the dis-
charge of Sherlock violated the Act.
Respondent fired Sherlock the same day it received
Sherlock 's letter which on its face apprised Respondent
of Sherlock's protected conduct, a letter which I con-
clude motivated that discharge . Sherlock 's request, in
conjunction with coworker Gibby and on behalf of both
of them , for a pay raise constitutes concerted activity
protected by Section 8(a)(1) of the Act within the ration-
ale of Meyers Industries,3 and Respondent does not con-
tend to the contrary . See Oakes Machine Corp., 288
NLRB 456 ( 1988) (finding protected a letter from more
than one employee complaining about a condition of em-
ployment).
I find incredible the testimony of Carroll that Sher-
lock's letter was not delivered on March 3 until several
hours after he dictated the discharge letter earlier in the
same day. Although his secretary could have corroborat-
8 Meyers II, 281 NLRB 882 (1986), enfd. sub nom Prill v. NLRB, 835
F.2d 1481 (D.C. Cir. 1987).
ed the time of day that the letter was dictated to her she
failed to testify and there is no explanation for that fail-
ure. Although that testimony would not necessarily es-
tablish the time of delivery of Sherlock's letter , at least it
might have supported Carroll that he dictated the dis-
charge letter precisely between 9 and 9 :30 a.m. "It is
well settled that failure to bring forward available evi-
dence creates a presumption that, if produced, it would
have exposed facts unfavorable to the party." Whitin Ma-
chine Works, 100 NLRB 279, 285 at fn. 9 (1952), citations
omitted.
But even apart from this adverse inference , the flimsy
and insubstantial reasons asserted for the discharge, as
analyzed above, would cause me to reject Carroll's testi-
mony . Under the circumstances of the discharge the
probability of events unfolding as Carroll testified is too
remote and improbable to be believed in the absence of
strong supporting evidence . And finally, Carroll 's testi-
mony is rendered clearly untrustworthy by the credible
testimony of Roberts that Little admitted to him that
Sherlock was fired because of the contents of his March
3 letter.
The General Counsel's case for unlawful discharge
therefore is compelling . Having found that Respondent's
explanations are not genuine, if not pretextual , it follows
that the burden has not been met of demonstrating that
Sherlock would have been fired in the absence of his
protected conduct . In reaching this conclusion I have
considered the weaknesses and inconsistencies in Re-
spondent 's purported reason as well as the fact that by
raising a totally unfounded reason (the failure to remit
dues timely) we are justified in inferring that none of the
reasons proffered are valid . "An unfavorable inference
can be drawn from an employer's shifting explanations
for its treatment of an employee ." State County Employ-
ees AFSCME Louisiana Council 17, 250 NLRB 880, 886
(1980) (see fn . 38 and cases cited therein). Furthermore,
my determination that the stated motives are false per-
mits us to "infer that there is another motive . More than
that [the ALJ] can infer that the motive is one that the
employer desires to conceal an unlawful motive-at least
where, as in this case , the surrounding facts tend to rein-
force that inference." Shattuck Denn Mining Corp. v.
NLRB, 362 F.2d 466 at 470 (9th Cir. 1966). Therefore,
the discharge of Sherlock because he concertedly sought
pay raises for himself and another employees violated
Section 8(a)(1) of the Act.
Sherlock's letter also announced that he and Gibby
would "file charges" against the Union if the raises were
not granted . I find that Respondent fired Sherlock be-
cause of this statement in the letter as well as for his con-
duct in seeking the pay raise, there being no reason to
differentiate between the two forms of conduct in assess-
ing Respondent 's motive . This finding is confirmed of
course by Little's statement to Roberts that anyone
"filing charges ... doesn't belong in the organization."
The General Counsel alleges that a discharge so moti-
vated is prohibited by Section 8(a)(4) even though Sher-
lock did not expressly state that the charges would be
brought before the Board . Citing Oates Machine, supra,
the General Counsel argues that the reference to filing
GARMENT WORKERS
charges need not specify the Board by name if a "broad
statement . . . would include, by reasonable implication,
proceedings within the ambit of the National Labor Re-
lations Act," Oakes Machine, supra at 457, and that such
rule is applicable to the discharge of Sherlock. I agree.
In Oakes an employee was fired because he com-
plained to a state agency about health and safety condi-
tions . A coworker thereafter was fired because of his an-
nounced intention to testify on behalf of the discharged
employee "in court if necessary ." The Board concluded
that such statement received statutory protection (inas-
much as a supervisor uttered the protected remark only
rights under Section 8(a)(1) rather than Section 8(a)(4)
were implicated). Although not explicit in the Board's
decision , it appears that since the original discharge
might have been the subject of a Board charge , the su-
pervisor 's testimony similarly would have been before
the Board . In the instant case the circumstances are no
less compelling than in Oakes for bringing Sherlock's
remark within the umbrella of statutory protection.
Sherlock testified that he purposely left vague the
agency to be contacted , leaving open the option of going
to the Board or Department of Labor depending upon
the response he and Gibby might receive . Carroll testi-
fied that he thought only the Department of Labor
might be contacted because the letter referred to the fact
that Sherlock and Gibby ran for union office as a reason
for denying them pay raises . The only other reason
stated in the letter for the lack of raise was the specula
tion that it was an oversight. In determining the reasona-
ble implication of Sherlock's statement neither the testi-
mony of Sherlock or Carroll should be dispositive.
Rather, all the circumstances must be taken into consid-
eration.
All the individuals involved are seasoned, experienced,
and sophisticated union officials . The fact that Sherlock
did not specify an agency by name is a clear indication
that more then one agency was reasonably intended. By
using a term of art familiar to union officials , i.e., filing
charges, it is reasonable to conclude that any agency in-
volved in protecting workers' rights, not only union offi-
cials' rights, was contemplated , and in that case any
union official would reasonably know that certainly the
Board would be such an agency . Here, Respondent 's fail-
ure to grant a pay raise to Sherlock and Gibby arguably
could have been motivated by any number of reasons in-
cluding their internal union activity or their having acted
in concert in writing the letter and seeking the raise.
Little, an experienced union official, informed in labor
parlance and practice must have been aware that Sher-
lock's statement included the real possibility of Board
charges . Indeed , her threat , which was as broadly
phrased as Sherlock 's statement , can only be viewed as
encompassing an intent to dissuade the filing of charge
with any agency handling employee complaints about
conditions of employment and was not confined to the
Department of Labor. Just as it is warranted to infer that
Sherlock's statement reasonably contemplated Board
action , so too is the inference justified that Little's threat
similarly intended to reach the filing of Board charges.
In fact, as Sherlock astutely recognized , Respondent's
response to his letter informed the course of action there-
415
after followed . Sherlock 's discharge triggered the filing
of the instant charge, an option Sherlock testified he con-
sidered when he deliberately wrote his letter to Carroll
without specifying the type of charge he would file.
Accordingly, Respondent 's discharge of Sherlock vio-
lated Section 8(a)(4) of the Act as alleged . Grand Rapids
Die Casting , 279 NLRB 662 (1986), enfd . 831 F.2d 112
(6th Cir. 1987). It also is alleged in the complaint, and I
find , that Little's statement to Roberts that anyone filing
charges does not belong in the organization is a threat to
discharge employees in the event they invoke the proc-
esses of the Board , and therefore an independent viola-
tion of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. By threatening employees with discharge because
they filed or intended to file charges with the Board, Re-
spondent violated Section 8(a)(1) of the Act.
3. By discharging Warren Sherlock because he en-
gaged in concerted activity for the purpose of mutual aid
or protection, Respondent violated Section 8(a)(1) of the
Act.
4. By discharging Warren Sherlock because he stated
his intention to file charges with the Board , Respondent
violated Section 8(a)(4) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it be or-
dered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the purposes of
the Act. Having found that Respondent discharged and
failed to recall Warren Sherlock in violation of Section
8(a)(1) and (4) of the Act, I shall recommend that Re-
spondent be ordered to offer him immediate and full re-
instatement to his former position of employment or if
that position is not available , to a substantially equivalent
position without prejudice to his seniority or other rights
and privileges previously enjoyed.
I shall also recommend that Respondent be ordered to
make Sherlock whole for any loss of earnings he may
have suffered from the date of his discharge to the date
he is offered reinstatement . His loss of earnings shall be
computed in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).4
I shall also recommend that Respondent expunge from
its files any reference to the discharge of Sherlock and
notify him in writing that it has done so , and that evi-
dence of his discharge will not be used as a basis for
future personnel action against him. Sterling Sugars, 261
NLRB 472 (1982).
4 Under New Horizons, interest is computed at the "short-term Federal
rate" for the underpayment of taxes as set out in the 1986 amendment to
26 U.S.C. § 6621
416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
It appears that the International representatives are as-
signed to service locals and otherwise conduct union
business in various geographical areas which might cause
them not to visit the Union 's headquarters in Tennessee
during the posting period . Although not requested by
General Counsel , it seems prudent to provide for mailing
of the notice to the homes of these employees who oth-
erwise might not become aware of its contents. This
might be the only effective means of reaching these em-
ployees and it is particularly important in light of Little's
threat to Roberts and the need to assure employees who
are affected by that threat that their access to the Board
will be protected.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed5
ORDER
The Respondent , United Garment Workers of Amer-
ica, AFL-CIO, its officers, agents , successors , and as-
signs, shall
1. Cease and desist from
(a) Threatening employees with discharge because
they file or intend to file , charge with the Board.
(b) Discharging or otherwise discriminating against
employees because they engage in concerted activity for
the purpose of mutual aid or protection.
(c) Discharging or otherwise discriminating against
employees because they intend to file charges with the
Board.
(d) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of their
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to Warren Sherlock immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position , without prej-
udice to his seniority or other rights and privileges, in
the manner set forth in the remedy section of this deci-
sion.
(b) Make whole Sherlock for any loss of pay he may
have suffered by reason of Respondent's unlawful dis-
charge in accordance with the remedy section of this de-
cision.
(c) Expunge from its files any reference to the dis-
charge of Sherlock and notify him in writing that this
had been done, and that evidence of his unlawful dis-
charge will not be used as a basis for future personnel
action against him.
(d) Preserve and, on 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 or useful to the analysis of the amount
of backpay due under the terms of this Order.
S If no exceptions are filed as provided by Sec 102 .46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall , as provided in Sec. 102.48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
(e) Mail a copy of the attached notice marked "Ap-
pendix"s to all International representatives at their
home addresses , and post it at its facility in Hermitage,
Tennessee . Copies of the notice on forms provided by
the Regional Director for Region 3, after being signed
by Respondent's authorized representative , shall be
posted by it, in conspicuous places , including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
the notices are not altered , defaced , or covered by any
other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
6If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT threaten employees with discharge be-
cause they file, or intend to file, charges with the Board.
WE WILL NOT discharge or otherwise discriminate
against employees because they engage in concerted ac-
tivity for the purposes of mutual aid or protection.
WE WILL not discharge or otherwise discriminate
against employees because they intend to file charges
with the Board.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
rights guaranteed in Section 7 of the Act.
WE WILL offer Warren Sherlock immediate and full
reinstatement to his former position or, if that job no
longer exists , to a substantially equivalent position, with-
out prejudice to seniority or other rights and privileges,
and make him whole, with interest, for any loss of earn-
ings he may have suffered because we unlawfully fired
him.
GARMENT WORKERS 417
WE WILL expunge from our files any reference to the discharge will not be used as a basis for future personnel
discharge of Warren Sherlock and we will notify him actions against him.
that this has been done and that evidence of his unlawful
UNITED GARMENT WORKERS OF AMERICA,
AFL-CIO