Beaunit Corp.

National Labor Relations Board - Board Decisions

May 12, 1969

175 N.L.R.B. 931 (N.L.R.B. 1969)

LUXURAY OF INDIANA
Luxuray of Indiana, . a Division of Beaunit
Corporation and International Ladies' Garment
Workers' Union , AFL-CIO. Case 25-CA-3244
May 12, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On February 19, 1969 , Trial Examiner Marion C.
Ladwig issued his Decision in the above-entitled
proceeding , finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner 's Decision. The
Trial Examiner also found that the Respondent had
not engaged in certain other alleged unfair labor
practices . Thereafter , the Respondent filed
exceptions to the Decision and a supporting brief.
The General Counsel filed limited exceptions , a brief
in support thereof, and a brief in support of the
Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
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 , the exceptions and briefs, and
the entire record iwthis case, and hereby adopts the
findings , conclusions, and recommendations of the
Trial Examiner ,' as modified below.'
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, and hereby orders that the Respondent
Luxuray of Indiana, a Division of Beaunit
Corporation, Franklin , Indiana, its officers, agents,
successors , and ' a§signs, shall take the action set
'The Respondent excepts to the Trial Examiner's credibility findings. It
is the Board's established '_policy not to overrule a Trial Examiner's
credibility findings unless , as is not the case here , a clear preponderance of
all the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products , Inc., 91 NLRB 544; enfd . 188 F .2d 362 (C.A. 3). We
conclude that the Trial Exalitiner"s credibility findings are not contrary to
the clear preponderance of all the relevant evidence and, accordingly, we
find no basis for disturbing those findings.
'The General Counsel has excepted to the Trial Examiner's failure to
find additional violations of Section 8(a)(l) of the Act . We find , however,
that the Trial Examiner did,consi4er such other allegations in determining
the totality of the Respondent 's unlawful conduct , and inasmuch as further
findings would be merely c̀umulative , and would add nothing to the
remedy, we find it unnecessary to pass on such additional allegations.
931
forth in the Trial Examiner ' s Recommended Order,
as so modified.
1. Substitute the following for subparagraph 1(d)
of the Trial Examiner's Recommended Order:
"(d) In any like or related manner interfering
with, restraining , or coercing employees in the
exercise of their rights to self-organization , to form,
join , or assist International Ladies ' Garment
Workers' Union, AFL-CIO, or any other labor
organization , to bargain collectively through
representatives of their own choosing, and to engage
in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities except insofar
as these rights could be affected by any contract
with a labor organization , if validly made in
accordance with the National Labor Relations Act,
whereby membership therein is a condition of
employment after the 30th day following the date of
such contract or the beginning of such employment,
whichever is later."
2. Change the heading of the notice from
"NOTICE TO ALL MEMBERS " to "NOTICE TO
ALL EMPLOYEES."
3. Substitute the following for the fifth indented
paragraph of the notice:
WE WILL respect the rights of our employees to
self-organization to form , join , or assist any labor
organization , to bargain collectively in respect to
terms or conditions of employment through said
Union or any representatives of their own
choosing or to refrain from such activity and WE
WILL NOT interfere with, restrain, or coerce our
employees in the exercise of these rights , except
insofar as these rights could be affected by any
contract with a labor organization , if validly made
in accordance with the National Labor Relations
Act, whereby membership therein is a condition
of employment after the 30th day following the
date of such contract or the beginning of such
employment , whichever is later.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Trial Examiner: This case was
tried at Indianapolis , Indiana, on January 9, 1969,
pursuant to a charge filed on September 26, 1968,' by
International Ladies' Garment Workers' Union,
AFL-CIO, herein called the Union, and pursuant to a
complaint issued on October 30. The primary issues are
whether the Respondent , Luxuray of Indiana , a Division
of Beaunit Corporation, herein called the Company -
which called no defense witnesses at the trial - (a)
threatened to close the plant and move the machinery in
reprisal for union activity , (b) engaged in
coercive interrogation , and (c) instituted a
discriminatorily-motivated system of giving warning
notices to employees , in violation of Section 8(a)(1) of the
National Labor Relations Act, as amended.
'All dates , unless otherwise indicated , refer to the year 1968.
175 NLRB No. 158
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record , including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by the General Counsel and the Company,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE UNION
INVOLVED
The Company, a New York corporation with its
principal office in New York City, operates a plant in
Franklin , Indiana , where it is engaged in the manufacture,
sale, and distribution of women ' s apparel and related
products , and from where it ships annually products
valued in excess of $50,000 directly to points outside the
State. The Company admits , and I find , that it is engaged
in commerce within the meaning of Section 2 (6) and (7) of
the Act, and that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Threats to Close or Move the Plant
The Union began its organizational drive at the
Company ' s Franklin plant in May, met with interested
employees on July 8 and selected an in-plant committee,
and filed a petition for an election on August 27. The
election , held on November 7, resulted in a vote of 48 to
37 in favor of union representation . The Company's
objections to election conduct were pending at the time of
trial herein.
About August 1, Floorlady Ida Carney (an admitted
supervisor) went to the sewing machine where Alene
Bailey was working and talked to her about the Union.
According to Bailey ' s undisputed testimony, which I
credit, Carney told her that "If the Union gets into the
factory , the factory would close." (Thelma Smithey, an
employee sitting directly behind Bailey , credibly testified
that she overheard "Ida Carney tell Alene that if the
Union got in that the plant would close.") Sometime
later , when Bailey was wearing a union pin, Carney talked
to her about wearing it, and stated that the Company
"will not see the Union get into this plant."
About September 11, another admitted supervisor,
Floorlady Hattie McMillan , went to employee Rae Jean
Parson ' s machine . She first talked about Parson 's husband
being in the hospital , and (in Parson ' s words) "she said
that she knew I had to work , and then she started in
about the Union . . . . She said , `If I were you , I'd think
awful hard about this thing you girls . . . have started.' "
Later in the conversation , McMillan "said, `I also know
that $50 a week isn't very much, but it ' s better than
nothing. But I 've worked here a long time , and I 'd like to
continue working here until I retire , but if the girls keep
on the way they have , then I won 't be able to do that.' . .
. She said she knew that her and other girls ... live alone
and they depend on the factory for their support , and that
if things kept on the way they . . . are, that they would
end up moving the factory."
Also in September, when Floorlady McMillan saw
employee Margaret Callon wearing a union pin, she
"asked me what it was that I was wearing ." Upon being
told that it was a union pin, McMillan said , "Oh, that'll
be your job . . . . They' ll close the place down." Later in
the month , when some of the sewing machines were being
crated and shipped from the plant (as discussed below),
Floorlady McMillan talked to two other employees about
the future of the plant . She told employee Wilma Caudill,
"It looks like I'm not only going to lose my girls , but I'm
going to lose my machines as well ." When asked what she
meant , she said , "Well, they're shipping them out."
Caudill said, "Maybe we'll get new machines ." McMillan
responded , "Oh, no ," and that she was getting "too old to
look for another job" and she hoped they took her with
the machines . Similarly , McMillan told employee Anna
Lou Williams she hoped that when the Company moved
the machines out, "that they ship me out with them"
because " I won 't have a job unless I do go with them."
Rusco Waltz , an employee who testified about crating
sewing machines for shipment, credibly testified that in
two or three discussions he had with Plant Manager
Donald Dugan about the Union, Dugan stated "that if the
Union did come into the plant , why, the plant would be
moved."
These threats , to close down or move the plant in
retaliation for the employees ' union activities , were made
by the plant manager and other supervisors , whom the
employees would regard as spokesmen for the Company. I
find that the threats were clearly coercive , and that in
making them , the Company violated Section 8(a)(1) of the
Act.
B. Threat to Move the Machinery
Sometime in September , a company engineer and three
other persons went to the second-floor production area of
the plant . In full view of the employees , they took
measurements of the building , examined the fans and the
air conditioner , looked through some blueprints , went to
all the machines and took down the serial numbers, and
took pictures of employees at work and pictures of the
machines . Plant Manager Dugan and one or more others
went outside and took pictures of the building.
Several days later , when Floorlady McMillan was
commenting about losing the machines and having no job
unless she went with the machines , the Company assigned
mechanics and helpers to place cardboard boxes on nine
of the sewing machines . Four of the machines were then
removed to the basement , where Plant Manager Dugan
instructed employee Waltz to build plywood boxes for
shipping the machines . The remaining five machines (in
cardboard boxes ) were left upstairs , in the view of the
employees , for about a month . Then four of the five
machines were removed to the basement and shipped in
plywood boxes.
The Company gave no explanation for taking down the
serial numbers of all the production machines, or for
having nine of the machines placed in cardboard boxes
(unsuitable for shipping), and leaving five of the boxed
machines "on display" before the employees for several
weeks. The Company does not deny that Floorlady
McMillan made the contemporaneous statements that the
boxed machines would not be replaced , and that she
would have to go with the machines if she was to have a
job. Neither does the Company deny that the statements
were made by the plant manager and two floorladies that
the plant would be closed or moved, nor that the action
was taken by the four persons in the production area,
suggesting that the Company was planning to dispose of
the machinery or the plant. In the absence of defensive
evidence, I draw the inference that the Company was
seeking to intimidate the employees , even if it had a
legitimate reason for shipping eight of the machines
during the election campaign . Accordingly , I find that the
LUXURAY OF INDIANA 933
Company coerced the employees by threatening to move
(or sell) the production machinery in retaliation for the
union activity, in violation of Section 8(a)(1) of the Act.
C. Coercive Interrogation
On September 4, the Union held its first general
meeting of company employees. The next day, Plant
Manager Dugan called employee Rosco Waltz into the
office, stated that "he had been informed that I did attend
the meeting," and "asked me why that I had attended the
meeting ." In the private conversation, Dugan talked
against the Union, and informed Waltz "that if the Union
got in, the plant would be moved." This interrogation,
accompanied by the threat to move the plant, was clearly
coercive.
Earlier, about July 10 (2 days after the Union met with
some interested employees and selected an in-plant
committee), Plant Manager Dugan interviewed and hired
employee Margaret Callon. In the private conversation
with her in his office, Dugan (in Callon's words) "told me
if I was going to vote, or if I was for the Union, would I
come and tell him." She made a promise that she would.
In its brief, the Company contends that this "is no more
than a request that Dugan be permitted to give a rebuttal
to the Union's argument, and is not coercive." However,
under all the circumstances, I find that the inducement of
Callon's promise to reveal to the Company any future
support of the Union interfered with her Section 7 rights.
In making this finding, I take into consideration Dugan's
September 6 posted notice to all employees, expressing the
Company's "100%" opposition to the Union and stating,
"Believe me when I tell you that it is to your best interest
not to support the Union or get involved. YOUR
FUTURE IS AT STAKE." (I find it unnecessary to pass
on the allegations that this notice, and Vice President R.
C. Reinhardt's October 1 antiunion speech, were
independently coercive.) I also take into consideration the
aforementioned threats of retaliation for the union
activity, including Floorlady McMillan's threat in
September to Callon herself about a union pin, "Oh,
that'll be your job." In the face of such strong company
opposition to union organization, Callon's exercise of her
statutory right to decide whether or not to support the
Union would necessarily tend to be restrained by the
pre-employment inducement of her promise to reveal her
decision to management. Accordingly, I find that this
interrogation concerning her future decision, as well as the
later interrogation of Waltz on September 5, was coercive
and violated Section 8(a)(1) of the Act. I find it
unnecessary to rule on other alleged interrogation and
threats.
D. Warning Notices
On October 15 (3 weeks before the election), six
employees were absent from work without giving notice to
the Company of their intended absence. One of them was
Martha Doty, who had been selected on July 8 as acting
chairman of the in-plant organizing committee. (Since
September, Doty had worn over her dress at work a
bright red union smock, prominently displaying printed
copies of the union label.) The following day, October 16,
the Company gave each of the six employees a "warning"
notice, stating "Absent - didn't report 10/15." The
Company did not ask any of them why they had been
absent, and there is no evidence that the Company was
aware that they had been absent in order to give affidavits
to a Board agent.
Previously, written warnings had not been given.
However following this incident, the Company made a
practice of issuing warning slips, primarily for being late
or absent without calling in.
On October 25 (9 days after the first warnings were
issued), employee Margaret Bland objected to signing a
warning for "talking," telling Sewing Room Supervisor
Rheta Cook, "I didn't talk any more than anyone else."
Cook "said that it was all right for me to sign. She said,
`You don't think me or [Plant Manager] Don [Dugan].
would hurt you. It's all to get Martha Doty to sign one.' .
.. She said it would be torn up in my face after it was all
over." Later, when Bland was returning to her machine,
Floorlady Ida Carney told her, "You don't think Don and
Rheta would do anything to hurt you; we're only using
you as our little guinea pig. . . . Don't worry. . . You
know that was ... to make Martha Doty sign hers."
Doty refused to sign such a warning for "talking." She
credibly testified that before this, she had always been
permitted to talk - that in the 15 years she had worked
there, "They didn't tell us not to talk or to stop talking,"
but only "not to talk too loud."
The General Counsel argues in his brief that "In a final
effort to chill unionism at its plant, the Respondent
instituted . . . a discriminatory system of warning notices
because of the employees' union activities," and that it is
clear from Bland 's testimony "that Respondent was
attempting to build a case for the discharge or other
discriminatory treatment of the main union supporter and
chairman of the Union's in-plant committee, Martha
Doty." In its brief, the Company contends that the
warnings were justified, and that there is "no evidence
that they were not issued without regard as to whether the
employee was union or nonunion." The brief ignores the
allegation about fabricating a pretext.
The remarks to employee Bland by the two supervisors,
Cook and Carney, clearly indicated that at the time
(October 25, 9 days after the first warning notices were
issued ), the Company was inducing Bland to sign a
"talking" warning to assist in building a case against
Margaret Doty. I therefore find that these remarks, made
shortly before the election and implying that the union
supporter would be discharged or discriminated against
because of her union activity, interfered with the
employees' Section 7 rights, in violation of Section 8(a)(1)
of the Act.
However, I find that the evidence does not establish
that in instituting the warning system on October 16, the
Company was discriminatorily motivated. The six
employees had absented themselves from work, without
giving the Company any notice. The mere fact that union
leader Doty was one of the six absent employees does not
prove that the Company was at that time motivated by a
desire to build a case against her, rather than to fulfill a
business requirement of discouraging such mass,
unannounced absences.
CONCLUSIONS OF LAW
1. By threatening to close or move the plant, and to
move or sell the machinery, in retaliation for the
employees' union activity; by engaging in coercive
interrogation; and by indicating that it was fabricating a
pretext for discharging or discriminating against a union
supporter, the Company engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1)
and Section 2(6) and (7) of the Act.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The General Counsel failed to prove that the
Company violated the Act by instituting a system of
warning notices before the election.
insofar as it alleges violations of the Act not specifically
found herein.
THE REMEDY
Having found that the Respondent has committed
certain unfair labor practices , I shall recommend that it
be ordered to cease and desist from such conduct and
from any like or related invasion of its employees ' Section
7 rights, and to take affirmative action, which I find
necessary to remedy and to remove the effect of the unfair
labor practices and to effectuate the policies of the Act.
RECOMMENDED ORDER
Respondent , Luxuray of Indiana, a Division of Beaunit
Corporation, its officers, agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Threatening to close down or move the plant, or to
move the machinery, if the employees support a union.
(b) Coercively interrogating any of its employees.
(c) Telling any employee that it is fabricating a pretext
for retaliating against an employee for engaging in union
activity.
(d) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its Franklin , Indiana, plant copies of the
attached notice marked "Appendix."' Copies of such
notice , on forms provided by the Regional Director for
Region 25 , after being duly signed by an authorized
representative of the Respondent , shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken by the Respondent to ensure that the notices are
not altered, defaced , or covered by any other material.
(b) Notify the Regional Director for Region 25, in
writing , within 20 days from the date of the receipt of this
Decision , what steps the Respondent has taken to comply
herewith.'
IT IS ALSO ORDERED that the complaint be dismissed
'In the event that this Recommended Order is adopted by the Board, the
words "This Notice is Posted by Order" shall be substituted for the words
"Pursuant to the Recommended Order of a Trial Examiner " in the notice.
In the further event that the Board 's Order is enforced by a decree of a
United States Court of Appeals , there shall be added to the words "This
Notice is Posted by Order of the National Labor Relations Board" the
words "as Enforced by the United States Court of Appeals."
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 25 , in writing, within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board:
WE WILL NOT threaten to close down or move the
plant because you support the International Ladies'
Garment Workers' Union, AFL-CIO.
WE WILL NOT threaten to move the machinery
because of your union support.
WE WILL NOT unlawfully question you about union
activities.
WE WILL NOT say we are building a case against an
employee for supporting the Union.
WE WILL NOT unlawfully interfere with your union
activities.
Dated By
LUXURAY OF INDIANA,
A : DIVISION OF BEAUNIT
CORPORATION
(Employer)
(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.
Any questions concerning this notice may be directed to
the Board's Regional Office, 614 ISTA Center, 150 West
Market St., Indianapolis , Indiana 46204, Telephone
317-633-8921.