Empire Shirt Trimming Co., Inc.

National Labor Relations Board - Board Decisions

Feb 7, 1979

240 N.L.R.B. 626 (N.L.R.B. 1979)

626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Empire Shirt Trimming Co., Inc. and Senice Employ-
ees International Union Local 579, AFI-CIO.
Cases 10-CA 12251. 10 ('A 12999, 10 ('A
12312, and 10-CA 12313
February 7. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING NI) MI- MBIK S JNKINS
ANI) PNItlL.
On September 12, 1978, Administrative Law Judge
Irving M. Herman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended. the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings. and
conclusions I of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Empire Shirt Trimming
Co., Inc., Hapeville, Georgia, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order.
XRespondent has excepted to certain credibilit' findings inad h tihe
Administrative Law Judge. It is the Board's esta;hblished polic , not to over-
rule an Administrative Law Judge's resolutions with resnect I rcdihtli
unless the clear preponderance of all of the relevant evidence conslnc
.
s L,
that the resolutions are incorrect. Sltandarrd Ir H D li Pdi i. lt . 91
NLRB 544 11950)1 enfd. 188 F.2d 362 (3d (ir. 1951) We he ..ircIfulli
examined the record and find no hasis for reersing his findings
DECISION
STATEMENT OF THE CASE
IRVING M HERMAN. Administrative Law Judge: This case
was heard before me on March 29-April 1, 1977, at Atlan-
ta, Georgia. Complaint issued November 9, 1976 ,. based
on consolidated charges filed by Service Employees Inter-
national Union, Local 579, AFL-CIO. in September and
October and duly and timely served upon Respondent,
'All dales ire n 1976 unless otherle sl;lted.
240 NLRB No. 92
Empire Shirt Trimming ('o.. Inc. The complaint alleges in
substance that Respondent violated Section 8(a)(l I) of the
National Labor Relations Act, as amended (29 U.S.C. Sec.
151. ct veq.), herein called the Act, by interrogation, threats.
and promises and grants of benefit: and violated Section
8(a)(3) by discharges on July 21 and by certain layoffs in
September and October.?
Upon the entire record,3 including my observation of the
witnesses, and after due consideration of the briefs filed on
behalf of General Counsel and Respondent, I make the
following:
FINDINGS AND CONCL.LUSIONS
I RESPONDENT-S BUSINESS
Respondent is a New York corporation with an office
and place of business at Hapeville, Georgia, where it is
engaged in shirt trimming. During the calendar year pre-
ceding issuance of the complaint, Respondent sold and
shipped finished products valued in excess of $50,000 from
its Hapeville plant to customers located outside Georgia.
At all material times, Respondent has been an employer
engaged in commerce within the meaning of Section 2(2),
(6). and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Charging Union is a labor organization within the
meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Facts
1. Organization
For some period commencing about the latter part of
June 1976, card signatures were solicited by a union organ-
izer from among Respondent's employees waiting at a bus
stop a short distance from the plant. On at least one such
evening when Charles Waters, head cutter and a bus rider.
was present. 4 he stated that although a union was "a good
thing," he was a supervisor. He testified that he knew at the
time he was not a supervisor but "was running off at the
mouth." and that he never mentioned the incident to any-
one because he did not "want to get involved." The solici-
tation continued until some time in July when enough sig-
natures had been obtained for the filing of a representation
petition. The Union wrote Respondent on July 22, offering
to prove its majority status and requesting negotiations.
The same day it filed a representation petition. A Board
election was held September 24. the Union winning 30-5,
with 6 challenged ballots, in a unit of 46 eligibles. The
]:.llolqh ih fou.ll IciIal. Ill,. iaiiie idiiduaals as the are Illeln-
tiioncdl ill (li ricgl,it. Loiiisel lw eed out os f cour t levec the deflnilti c
idclltillC;i( 111 if IIhc cnilplo) ccs ff lcted h\s he Sepltnlher an;d O tolhcr Ia-
offs 1 tile . llplliilc stlle If iiIies 111iw S rC fonid ill these respectls
;I ilol. iii lie IIirani i li .ic hhcii 1lted aiIId korieCed
NA,,ildin toi o'gmini/er Ilirtficld W lcrs v as prese ll h n ,he first
[q'pfoIc1'" Cd" l npil cc tld S1Cr.11CTlt dMl thereafter
EMPIRE SHIRT TRIMMING CO. 627
Union was certified as bargaining representative October
4.
Waters' Status
Waters' name was not included in the list of bargaining
unit employees furnished by Respondent for purposes of
the representation proceeding; and in the post-certification
bargaining, according to business agent Masson. whom I
credit. Respondent's counsel. Salter, stated that all persons
omitted from this roster were excluded from the unit I The
list contained the names of eight cutters, three of whom
(McClenton, Bowden, and Ernest Williams) appeared as
General Counsel's witnesses and associated Waters with
Edwards as part of management)
McClenton. shop steward, testified that in addition to
cutting and making occasional visits to other departments.
Waters spends about half his time checking all the cutters'
work and has corrected him in his work as well as repri-
manded two bias department employees for improperly
preparing bundles for cutting: and that Waters also has
given him permission to take time off. Bowden confirmed
Waters' checking the cutting line to be sure the work is
right and the cutters have the material to work with and
anything else they need. According to him, Waters' own
cutting is confined to times "when the work gets behind
and we try to push the work out," at which times even
Edwards does some cutting. Bowden testified further that
while he would ask Edwards for a wage raise, he would go
to Waters with any other request. including a transfer to
another department. but he did not know whether Waters
would make the decision himself or take the matter up with
Edwards.
Edwards, an admitted supervisor, testified that in Au-
gust-September, he was in charge of about five employees
in the bias department and five in the die shop in addition
to the eight cutters, and that he also takes customer orders
and does front office work as well as occasionally operat-
ing a cutting machine. He testified further that he spends
"a lot of time" on the cutting line but that for the periods
he is not there a head cutter is needed "to oversee things."
Waters' testimony was that if any problem is raised by a
cutter, he refers it to Edwards, and if Edwards is not
around, he goes to Plant Manager Hicks or Assistant Man-
ager Scott and then relays their orders. He denied that he
has power to grant leaves of absence and, specifically that
he ever did so for McClenton without checking with Hicks
or Scott, but in response to the question. "Why couldn't
[McClenton] go see [Edwards] himself?" he stated. "I won-
dered that sometimes myself because half of the time then
do go to [Edwards] and ask [Edwards]. Why they)' come to
me I don't know. I asked a thousand times. wh, don't you
go see [Edwardsl;: not me because I'm just. you know., a
head cutter." Unlike the unit employees. he does not punch
Sahltr. hiho later lestlicd. Iid no1 t .iddres. thi, latiir
i' Althiough Bowdenll tcliheld lhil in oTI ct iters.i llI h u ell Icrhhltod II\.,
icrs Ioi he tillkin is I I .l}il icir Irahc r t ei.ln ii Iti ( ntIps iI'I. leC id IIll
[led both I dv. rd5 and &.I r..t ."hcdidlin~l ,p tihe cuttm, d .1.llmcli
and descrihcbl d ilcrs is "the 1lx lch l tih pel i' fil 11I the t11llile ide1 .l
Incnl" hcslde, l:dM lid'.
a timeclock but is salaried.' but, like Hicks, he shares their
fringe benefits; and he testified that he spends virtually all
his time in the cutting department, and 75 percent of it., on
the average, actually cutting. He acknowledged, however.
that when he would "come around" if the men were dis-
cussing the Union, "they'd quit talking." He testified he
did not know if he would be covered by any agreement
reached in the bargaining.
Hicks testified that the only people working for him
whom he considers supervisors are Edwards and Scott. He
admitted, however, after some hedging as to what consti-
tutes "supervisory type meetings." that whereas, when he
has a problem in the bias department or in the die shop he
consults only Edwards. when he has a problem in the cut-
ting department he consults Edwards and Waters: and he
conceded that the following statement in his investigative
affidavit was correct: "When I need to meet with my sup-
ervisors, I meet with Scott, Charles Waters and Marvin
Edwards. I do not meet with Eloise."
2. The July 21 layoff
At the close of the day on July 21, Respondent suddenly
laid off 10 employees. 8 from the fusible department and
the other 2 from the die shop,'0 allegedly because of a lack
of work due to the loss of an important account. Three of
these employees gave testimony. Mitchell and Gwendolyn
Gay testifying that they had been told by Scott at the time
of their hire that the jobs would be permanent. Mitchell
testified that on one occasion when she was talking to the
Union representatives at the bus stop, Waters was present.
Mitchell and Gay had each signed a union card.l 2 Mitchell
testified that when the layoff was announced by Scott one
of the girls asked if it would be permanent and Supervisor
Edwards, who was present, replied that the girls were not
crazy. According to Gay and King, Edwards' remark was
in response to the question as to why they were being laid
off. and what he said was, "You know why, you are not
crazy." Carter testified that it was her question at a later
date, as to why Respondent had laid the employees off in
July and started hiring new people just "a week or so
later," that evoked Edwards' statement. Edwards neither
denied having made the statement nor attempted to ex-
plain it.
The three girls testified, based upon their brief experi-
ence, that there had been plenty of work available until
lIc t tified. h,imecr. hal he malkc up das Illat he hs been ahseni
5 hi li e le a.. i ork ulth the unit crnplo,\c , it 5 p.m, he orks S.aturdja%
;tli thle upcrsi-r w hen ,i.rk shcduled It) go out n f rlda. has hbeen
dcI.mcd
I s .. It Iot' i ll i a h e (icncraJI Counsel coen.ed.s 1i not supers lyor
bhilt II I... iiildltl hc -slmuid lllitlbltei h) Rcsepondenl on the Iheor thai he
ilm .lJ ' i, c r . ( lie i Bc.el l,. Bt0rh l. (ra.,. (iveridoI',i (;a,. [ .nI
Phum. I'iIll,. 'iin Rh %lihell, ad inda w Aoodle'
I( Il.ll i Hrrc .tcr inl R llph (i,L
lhe Is( prcxis . I It .if i d ,.urrc'd lear Il 1976
(.i l II t tii Cm cd l t .r tl :hnm - ,IIcl.l \'llCle { In l tileee .i. d,[1 1 >l-
Illlllt)iln t Ii ll d [c i PtC - ilr II i presuililhil\ ( ain r (allCCcdJ .i dls-
diIl , ' I I I I t il IL' (t hi ' I cdtlti in In l) II 3ur . I l Il m dc p.lrIlniletI.
tit/). I crt e 1i i 1 id Ii. m' It t i Jil ' i 1 i l t Imtl ix h I t hird IllCegcd dl.criill-
IIte I, sli tie
t
s Kiim
E M PIR E S H I R T T R I M IN G C O ~ ~~ ~~ ~ ~ .6
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that time.'3 Carter testified that she had noticed the work
piling up and that right after the layoff the shelves were full
of work and so were two or three tables on the outside of
the shelves.14 The three laid off testified further that they
had never been called back to work although Respondent
commenced the hiring of new employees for the fusible
department shortly after the layoff. 5S During this period.
according to Mitchell, she made numerous calls to Scott.
only to be told that he did not need anyone. In this connec-
tion, she testified as follows:
Q. Did Mr. Scott-withdraw that.
In these telephone calls in which you inquired about
employment, was the Union mentioned at any point?
A. Was the Union?
Q. Yes.
A. Yes.
Q. Well who mentioned it or what was said?
A. Well, okay, when I would call him, uh, let me
see, Scott asked me, he said, you know, you all have
been trying to get a Union in and I played dumb and
I said no, and he said, yes, you are, the day we had the
vote for the Union on the job, he said he seen me out
there, and I told him he didn't.
McClenton testified that on August 27 he was called to
Hicks' office and, in the course of the conversation in
which Hicks engaged in certain other 8(a)(l) conduct, in-
fra, Hicks asked him if he (McClenton) could break up the
Union. He asked Hicks why he had effected the layoff. and
Hicks replied he had "fired" the employees because they
had brought the Union in and this would "scare ev-
erybody," but that he would rehire them if McClenton
helped break the Union up. Hicks' testimony did not dis-
pute this. Ford (an alleged discriminatee in the October 5
cutback in hours) testified that a week or two before the
election she was told by Eloise Harris, floorlady of the
department, that Hudesman, Respondent's owner and sec-
retary-treasurer. had said that he could close down a de-
partment or lay several people off if he had to and that he
would do so if the Union came in, just as he had done
before with another union. Stanfield testified that when
Scott hired her on August 7 he told her that others were
trying to get a union in but he hoped she would not pay
attention to them because if everything went right she
would be a regular employee.
Hudesman testified that one of Respondent's largest cus-
tomers, Haskell Lining Corporation, had complained of
"poor work" by Respondent "for the past two or three
months," culiminating in the following letter dated Friday,
I ay had worked a 40-hiour week regularly. plus ne Saturd:lN. Iince her
hire on June 15. King. also hired June IS. had worked o)ertTllnC 11 Sur-
day and ahout two evenings. Mitchell clalmed on direct C\;ean.ial toi
have worked about 18 hours overtime since hel hire on[ June 24. hut lC-
knowledged on cross that her timeca;rds show ed onl 3 3 4 hour, of scl-
time.
14 According to Iloise arris. the fusible work is kept ln a table that 1ian
girl can see as she goes to the hathrlulm "I hey Just aIhou can tell CI hell
work is slow. Thes know how mans orders we hasec iand Veerxthic "
I" At least three emplohees were hired August 7 (Ford. nderlon. .iand
Stanfield: Bright and others were hired August 21 New hire, i Aust
totaled 10 or II Ford and Stnfield testified that Scott tld heii I subh-
stance in their emplounymcnt intersles that simec emplocc ere rc ll tI1
get a union in and the (reipan], was oppoutin it
July 16. from Haskell's chairman to Hudesman. who re-
ceived it Monday, July 19:
As you no doubt know, we have had nothing but
major problems doing business with your company on
built up collars and also on linings.
These problems have become so severe that we are
losing many of our customers on the built ups because
of terrible quality in placing the parts correctly, in se-
paration after fusing and also in the poor placement of
stays.
We, therefore, wish to put you on notice that we are
buying our own fusing presses and spot welding ma-
chines and will be discontinuing any business with you
on the built up collars.
We are sorry that this has come to such a serious
break between our companies. However, we are
forced to do this because of the amount of customers
we are losing through the inferior quality of work.
Hudesman thereupon informed Hicks by phone and or-
dered him to cut back his help. He followed up the next
day with this telex memorandum to Hicks:
As per our conversation, have you cut the fusing dept
in half yet? Also did you do the same in the die shop?
Haskell wants its orders out for shipment by end of
the week. As I told you there are no more orders to
follow. I'll call if anything breaks loose.
Hicks passed the order on to Scott the following day, and,
as stated above, the layoff occurred at the close of business
that day. Selection of the individuals in the fusible depart-
ment was made by Scott, "strictly on seniority." according
to him, virtually all being within the 90-day probationary
period. Brewster and Gray, however, were discharged at
the same time, Edwards using the occasion to rid himself of
two employees who had long posed disciplinary and atten-
dance problems and who had been seen selling liquor on
the job. Edwards testified that he tolerated them as long as
there was work for them to do but chose them when the cut
had to be made although he had not otherwise planned to
fire them.
It is not clear whether Haskell actually bought the ma-
chines mentioned in his letter. 6 At any rate 50 percent of
his business had been owned since the spring of 1976 by a
David Cassidy of Chelsea Industries, a large company with
60-70 plants doing about $300 million worth of business a
year. In "August or September," testified Hudesman, after
having discontinued his relationship with Respondent,
Haskell was forced to sell his remaining share of the busi-
ness to Cassidy and to continue as an employee of Cassidy.
Asked to state what occurred that caused the hiring of new
people in Respondent's fusible department, Hudesman's
testimony continued:
A. Mr. Haskell was forced out of his own company
and Mr. Cassidy took over completely. Then, he ap-
proached me and told me, let's start over again from
the beginning. They had the same office help, the
same salesmen: so they had the same accounts, that
Mr. Haskell had and we went over the whole thing
A\ tfiii rnc ,, ci ti .iibout 521).6()X). a pol welder $3.(X)0 $5.(XX)
EMPIRE SHIRT TRIMMING CO. 629
and we both made promises to each other to keep
business well and try to improve so therefore he then
started getting orders for us again. Actually, from the
same accounts which we had with Mr. Haskell and
started filling in for our plants.
Q. When do you recall the orders started coming
in?
A. When?
Q. Under the new arrangement?
A. Around August I would say. I know we were
talking about it and they started coming around Au-
gust.
Jt DrE HERMAN: Do you remember when in August?
A. That's hard. No. I don't remember.
JUDGE HERMAN Well, do you have any records?
A. Yes. We have records but we keep them month-
ly in production but we have records in the office.
daily records but I know during the month of August
the work started coming back in.
Q. Has the account, the Haskell Textile account
A. Well.
Q. Remained in existence to this day? Do you still
have the account?
A. Yes, we still have it now. Excuse me for a mo-
ment. Here we have a monthly dozens report and I
can read it right off and this is how I know it's in the
month of August. In July we had two thousand dozen
approximately. August eleven thousand dozen and
September fourteen thousant (sic) dozen: October
three thousand dozen.
Q. That was under this new business arrangement
with the other fellow having taken over?
A. Right. This is only that one account. That's the
way I can tell.
Hudesman testified further that it "may have been more
than 2 or 3 weeks" before he ordered the restaffing of the
department. Scott, however, testified that he commenced
his hiring efforts about August I when he was informed by
company headquarters that there was enough work to war-
rant It.
Hudesman also testified that he told management at
Hapeville "if possible to get some of the old help: it will be
a lot easier for you than starting with brand new employees
because then it's murder." Scott testified that he called
Mary Powers to return to work (which she did) 17 and
"tried to get in touch with all of them." The only other
person he may have attempted to call himself, however.
was Linda Woodley, but he did not reach her.' s In other
cases, he testified, the girls did not have phones or the
phone numbers he had were incorrect. 19 He also testified
t Ihe (iGeneral (Counsel a.ickl ledged that M1 rx Po uer. ; t facl, I
called. Indeed. the complalint aillage her ;i ai .ili f tIhe slheqlcil I.
off,.
Rerspondent oserl.ales Sctls ies`lliOll a .sr1il 1n .rlt \Owl t ,kdlc\
"l in filu recalled S" oll testifid In hln ne1111t111 1r foill,
Q (all silu renlienihcr .1n othe rnam or il ae of pcOpir WI \Il-
self caliled' Ans iother girl r rls oihcr hll N.lar P f.,s
s h'ern l oa. is hid reeriiber I tilk I cd I., ', In
tuch ll ith Ith inda Vi.fl vl I helc .111ad I didn't ..i ,, ;lll-er
on direct that he "told some of the people that was still
working with me in the fusing department if they see them
to tell them to call me." On cross, he stated he thought he
asked Eloise Harris to make some calls She did not work
in the fusible department at that time, however, and she
did not corroborate his testimony. 20
3. The 8(a)( I) conduct
Over 30 allegations of violations of Section 8(a)( 1). span-
ning the August-September period up to the day of the
election, September 24 ,2 are supported by the testimony of
II employee witnesses, many of whom impressed me most
favorably for their candor. Among these were:
(a) Patricia Carter, who testified that Hicks, in the
course of an address to the employees in the lunchroom on
company, time about midway in the campaign. promised
better benefits if they' voted the Union down.
(b) Renee Ford, who testified that Eloise Harris told her
shortly before the election that the Union would do them
no good and that Hudesman, the owner of the Company,
had said that he could close down a department or lay
people off if he had to and that if the Union came in he
could and would do it, that he had done it before and
would again.
(c) Karen Anderson, Ford's sister, who essentially cor-
roborated Ford's testimony and further testified to an ear-
lier occasion when Eloise Harris told another employee.
Edna Howard, that a union could not do anything for the
employees and then turned around and asked Anderson
how she was going to vote. She also testified that Hicks
asked her a few days before the election how she and her
sister liked their jobs and what she thought about the
Union; she gave him a noncommittal answer and he asked
if there was anything she wanted to tell him; she said no,
and he said he would appreciate anything she could do for
them.
Substantially confirming Carter's account of the lunch-
room meeting where McClenton and Bowden, as well as
Edwards and Hicks himself who, while stating he could
make no specific promises when asked for written guaran-
tees "if they went company," testified,
I told them there would be better benefits which I was
sure of: which I had reasons for saying that because
we had discussed an incentive plan before I ever got
the notice about a union.
However. Hicks did not mention the incentive plan to the
employees. Between September 18 and September 20 he
also sent the following letter to all unit employees:
-\i sc. t .c girl u h, had n phone ((iuendo n (I;, ) left her olIher'
iuihcil uilih he ( lpilpian hut she receied no call.
i he .aine pr;igr.;ph if Ilhe cnmplaint alleging the Jul) "la. off- ao1
illev. Ihie l.oiff f O()tl I himn;las nd Jerr' Cross n Septernher 28 and he
f;illure i rcIil ihleinl hereafler Respondent's m mion to dlsmslls .1 I these
[l it lie cIIi. tsla,na f (encral ( ull,ts .scae-in-chief as ranted .uh
(elcl.l ( {S ,iiasels'i ikIIl
[)Cspic erita i .lIrlnia .ixc 1 il he dates hueen coimpl.ain and lesri-
1iI\ ia,lll 1r i the ll[ riOtlUs 8(iu )( I allerltiun. a ll e. Cdence not obhlected
hi , I)tlcl u I apoad his beell omnas dered a1 properi hefore e C(f I ga~,
I /lai, hpi/,lpl ( ,,1 i'mll ltr 229 \i RB 279, 28(1) 1977) 4rreimt Bt,/-c!
ilittl/,lu tiii I ,, , ...i i,.i \ / R B. 366 1- d 81. 821 (8th (ir 1966,.
EMPIRE SHIRT TRIMMING CO.
.... ... i _ ._ .
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union wants you in it. Why? So it can charge
you dues and fines for its own pockets. So it can do all
of your talking for you.
Don't believe all the Union says-get it in writing.
The Union won't put it in writing because it can't de-
liver.
Empire Shirt gives you: The Union gives you:
Wages Strikes
Good Working
Conditions Dues
Medical Benefits Fines
Pension Checkoffs
40 Hours of Pay Disputes
Overtime Nonsense Meetings
Consider yourself and your family. You can't afford
this Union: your family can't afford this Union: the
families of your fellow workers can't afford this
Union.
Ask the DeKalb County sanitation workers - the
Union left them nothing -no wages and no unem-
ployment money.
The company doesn't just make promises: it acts.
After the election, you will make more money without
the Union. Let me prove it to you.
There are plenty of Unions around if I don't follow
through. Think for yourself. I hope you VyoT. No
Hicks admitted he was "sure" he "spoke to a few people"
individually about the election during the campaign. In re-
spect to one of these, McClenton, the Union steward he
testified:
Q. All right. At a different point in time did you
have a discussion with Mr. Herman McClenton?
A. Yes.
Q. Could you please describe any promises of bene-
fits that you made that day or at that meeting?
A. It was basically, basically the same-basically
the same as what happened in the lunch room except I
was just talking to one person. It wasn't a group.
McClenton's testimony was that in the course of his pri-
vate conversation with Hicks, which was held in Hicks'
office, where Edwards had ordered him to go. Hicks also
asked him if he thought he could "break the Union up."
and when he said he probably could, flicks said he wanted
him to, and then came the promise of better benefits if he
succeeded; McClenton then asked why there had been the
July 21 layoff, and Hicks replied, as noted above, that
those people had not been laid off but fired, and that if the
Union were voted in, there would be more layoffs and the
equipment would be torn down and shipped to New York
where Respondent has another plant.
Nor did Hicks deny the various acts of interrogation he
was alleged to have engaged in. In addition to Anderson's
testimony in this respect, noted above, Skrine and Suggs
also so testified. The occasion involving Skrine arose when
he asked Hicks for a raise. flicks said his hands were tied
because of the Union but asked him if he had signed a
card. Skrine acknowledged he had in order to improve con-
ditions, and Hicks replied that "if the Union got in it
would be a shitty place to work." Suggs was asked by
Hicks if he signed a card when he went to Hicks' office for
a pencil. Suggs admitted he had, and Hicks said. "no hard
feelings, let's keep it between you and me, man to man."
Eloise Harris denied Barbara Harris' testimony that she
warned of the Hapeville plant's moving to New York, testi-
fying that she only told the girls that nobody could guaran-
tee them 40 hours' pay. Edwards also testified that in re-
sponse to the employees' talk of a union-guaranteed
40-hour week, he told them that this was impossible if there
was not enough work even though Respondent "used to
make work for people." His testimony continued:
You know, like if it was slow you could sweep the
floor or anything but I probably did say you'll be
working two days if we ain't got no work. If we got the
union, we couldn't afford to keep everybody because
we don't have no work.
And Edwards admitted warning employees of other conse-
quences of a union victory, testifying as follows:
Q. (By Mr. Salter) Mr. Edwards, did you ever say
to the employees that working conditions would get
worse? If the union got in?
A. Let me Could I answer that question in my
own words?
Jtc,-. HERMAN: Go ahead.
A. Okay. On the cutting line we got people that
they go out to lunch and come back eating on working
hours. 1:00. They stay out and play basketball and go
down town and when they get back at 1:00 they want
to eat lunch: their sandwich and all and go get drinks
and I told a couple of them if you're going to have a
union, you got to first get right yourself. You cannot
be-if there's going to be a union, there's not going to
be eating up on the cutting line. You know. Having a
party and they stop and go get a drink. They can stop
and go get cookies out of the machine: that's on work-
ing hours they can stop and go use the telephone or
whatever they want to do. I was just bringing out a
few points there, that could be changed if they had a
union. They couldn't be floating around eating during
working hours.
Q. Mr. Edwards, did you want, prior to the elec-
tion, did you want the union in the plant? In your own
words.
A. Actually, it didn't make any difference to me
because-in a way it would be hard on them-
Q. Can you describe that.
A. You know, the working conditions. Like I said.
they would have to tighten up on the work: that I
would have to you know--instead of being a friend, or
one of the guys, I would, you know. most likely I
would have to push the production. I would have to
get my regular production up. I didn't have no objec-
tion to the union coming in.
tie also admitted telling the employees that such had in-
deed been the experience the last time there was a union in
the plant some years before.
EMPIRE SHIRT'l RIMMING CO. 631
Suggs testified that Edwards said "that if the Union get
in it would be hard" and Respondent "would start laying
off and . . . the days would be cut to about two and a half
days a week." 22 Stiggers. Skrine. and Bowden gave similar
testimony concerning Edwards' threats of harsher working
conditions.2 3 Skrine also testified that about a week before
the election Edwards told him that although Hudesman
might agree to a date for signing a contract. he could he
somewhere else when the time came. Edwards did not deny
this testimony.
Nor, despite Edwards' denial that he promised any em-
ployee more money if the Union lost the election, did he
deny two such specific promises attributed to him in con-
versations testified to by Ernest Williams and Stiggers. One
conversation occurred the morning of the election when
Edwards told Williams that he was a fast cutter and that
fast cutters make more money in the absence of a union.
The Stiggers conversation the day before the election in-
volved an acknowledgement by Edwards that a $14 check
Stiggers had received, apparently as compensation for a
work-related injury that idled him for at least 2 weeks, was
inadequate, and a promise that if the Union did not come
in he would try to better it for Stiggers. Edwards' only
comment on this testimony was that he had no recollection
of the conversation "because I don't have anything to do
with checks" and that he did not know if it was an employ-
er's check or an insurance check.
On the morning of the election, Edwards displayed to
the employees the Union's contract with a nursing home
because:
I was trying to show them that you know this guy here
has been there three years and he was making some-
thing like two dollars an hour for a period of three
years and he still was about two sixty. I don't think it
was-the highest paid man there was about three dol-
lars and this union was there for a whole year.2 4
Finally, the General Counsel cites Skrine's testimony in
support of the allegation that Respondent granted mone-
tary rewards to induce rejection of the Union. Skrine testi-
fied that a week before the election, after Hicks told him
that he could not get a raise at that time because of the
Union, Hicks asked him how much he wanted, Skrine said
25 cents, Hicks told him to multiply that by 40 and he
would give it to him out of his own pocket starting the
following week; and that the next payday, the Friday prior
! Although Suggs admitted that Edwards did not sa! In so ill.nll ords
that this would be because of the l nlon, his tenlmons was thu I:dw.rds'
remarks were in response to his (Suggs cormmlt about aL llilI iltr in
the next da\'s election
' Springer. alleged hb Skrlne to hae been present aon the oc.,isll uhen
Edwards so spoke to him. as not quest ioned ii1 all con.erniil piclell
events. He testified. hov ever. that mnimedilltel? fillohuing the elctLion. Ion
the next da 5. Edwards pulled the plug on h Springers') rid,. ,kIIi! "1-,
more radio" and that permlsslin to plug IIt hack inl a.s I1tit ietl tllll .1 da!
or twio later Skrine. Springer's elliw shippine lerk. sinfliriled Ihls e I ll-
mons. and Edwards did not dens i. but (;encral (oulnsel hii lcitllr .1
leged it in his complaint nir argued the point in hi, brief
4 About a da earlier dwards had show*,n he epl!iees i1 op\ il lthe
Union.' anual report filed with lthe I hor )epartimenit to iforil Ilci
"what their mones would go for: heir Llnlon dues. \ou ko, and 1hll [ hc
people sit back and li\e off the little people. their nlllne ou know Rc-
spoindent had hliained the reporl snlle 2 CeekC prc'ioil,\
to the election, Hicks came by as Skrine was mo\ ving some
cartons, asked whether a cigarette pack on one of the car-
tons was Skrine's and brought it over to him, and Skrine
found a $10 bill inside the cellophane wrapper. Hicks de-
nied the incident.
4. Eloise Harris' agency status
Sometime in August. Eloise Harris. who had worked for
Respondent some 9 years, was transferred from the bias
department to the fusible department and made floorlady.
Her new duties, according to Assistant Plant Manager
Scott, were "to set up the machines in the afternoon and
issue the work out in the mornings and if a girl needs work
she brings it to them so that they never have to leave their
machines. She keeps the work flowing." She has continued
to punch the timeclock, and sometime she works at a ma-
chine but "Most of the time she's rotating around within
the department issuing out work." She reports for work
shortly after 7 a.m. Scott and Hooks are usually there by
that time. The other fusible department employees do not
clock in until 7:55. These employees usually go out for
lunch or eat in the lunchroom. Harris rarely eats in the
lunchroom, but usually lunches at one of the machines
where Flournoy Hooks, Scott's "backup" man in the fusi-
ble department. also customarily eats.
In introducing Harris to the fusible employees on the
occasion when she became floorlady, according to Car-
ter.25 Scott told them that they were to accord her the same
respect they give him and Hooks. Ford corroborated this.
as did Barbara Harris. and it was not denied. Ford under-
stood that as floorlady, Harris was "something like a super-
visor but not as much authority as [Scott] or Mr. Hooks
had." While Hicks .ould not recall any particular "supervi-
sory meetings" attended b Harris, he testified that she
"may" participate in such meetings "if it pertains to some-
thing to her job." In this connection. Carter testified that
when Scott once brought her to Hicks' office to talk about
her production, Harris was called in to report on it; and
Harris admitted that she "ha[s] had occasion" to discuss
the girls' shortcomings with Scott. Anderson testified to
one such occasion when. after talking to Scott about a col-
lar Anderson had worked on, Harris brought it back to
Anderson and told her to redo it. Carter also testified cred-
ibly that Harris once put her on a different type of work
within the department and that Harris was the one who
called her back to work after a layoff in October.2? Bright
testified that on a few occasions when she asked Harris for
permission to leave early because of illness. Harris told her
to go ahead and clock out and said that she would tell
Scott about it. Harris admitted that she intercedes with
Scott when a girl comes to her with a personal problem.
but denied that she authorizes leave until Scott approves.
- ( i. i 11ci ls Ihlc l,ii i scrl S i l the fiehis e d.lcptlil ritIl other IliI
I k1 l alO\ II -kx
'r SI.tnhlield lte fld' ., t,) ,I .umlIt1 pho1lic t.1ll l 11 lI.lirri-
EMPIRE SHIRT TRIMMING CO. 31
> B -- -
632 DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
5. Postelection layoffs
a. Fusibhle Department
Respondent laid off at least nine employees from its fusi-
ble department around September 28 for about a week.2
Within the next 2 to 3 weeks virtually the same employees
plus about another dozen from the same department
were put on rotating 2-1/2 day shifts that lasted a week or
two, thus cutting their work week in half during this period.
Hudesman and Hicks testified that these layoffs were
necessitated by a seasonal decline in the workload which
Respondent claims had existed "since the beginning of
September." 29 And Edwards testified that he knows when
work is slack because he is "in the office a lot," and that
work was only "fair" in August, it was "down" in Septem-
ber, and it was "slow" in October; in fact, "It was slow all
through that time." However, a monthly summary of pro-
duction figures for the fusible department introduced by
Respondent shows the following:
THE FUSIBLE DEPARTMENT
Scott. as the immediate supervisor of the fusible depart-
ment, selected those laid off, and, particularly in the Octo-
ber layoff, apparently followed an understanding between
Respondent's counsel and union representative Cox in the
selection. In this connection. Ford testified:
We asked to speak to him at his desk and we went
back there and asked him. we wanted to know why
they mixed the groups in laying us off like taking some
of the most senior girls and laying them off along with
some of the new ones and keeping some of the newer
ones and rotating it like that and he said it was so that
they could rotate us all and keep us all, keep the newer
ones trained on the job and then when work picked
up, they they could call us all back and we would all
still have our jobs.3'
Ford also testified to having observed work (style H-
535) being shipped out directly after cutting during the pe-
riod of the layoffs instead of being sent to the fusible de-
partment for fusing as had uniformly been done thereto-
fore.32 But Edwards testified without contradiction that
style H-535 came in two fabrics, the one in dacron being
fused but not the one in cotton.
b. The cutters
Work Completed No. of N
Mo/yr Total Dozens Dept. Emrps. Mb
No. of
*hehl
9/75 490
10/75 5,668
11/75 3,463
12/75 6,852
1/76 13,236
(before lavoff of 11)
2/76 8,301
3/76 12,309
4/76 13,936
5/76 9,872
(before layoff of 3)
6/76 14,394
7/76 8,973
(before layoff of 8)
8/76 15,095
9/76 23,225
(before layoff of 4)
10/76 4,510
(pending as of Oct. 12,
working at half-week)
7
7
9
18
19
8
14
17
14
21
20
23
26
22
two shifts
'..We'd. The testimony concerning the cutters' layoff 33 was pro-
vided by two witnesses. McClenton testified that about 2-
4 3 months after the election, he, Jack Curry (another cutter),
4 "and a couple others" were laid off, and he specified Er-
6 nest Williams,3 4 adding "there was some that was laid off
9 before us and then a week later we got laid off." According
9 to McClenton, the layoff was effected by Edwards, who
said they would be called back when the work came in, and
10 they were recalled 2 days later. The only other firsthand
1 5 testimony as to such a layoff came from Skrine, a spreader
1 6 and shipping clerk who had signed a union card and at-tended union meetings. 35 His entire testimony in this re-
15 spect was:
16
16
17
20
Q. Were you affected by any lay off after the recent
election?
A. Yes.
Q. We have stipulated the election was on Septem-
ber 24, when was it that you were laid off?
A. It might have been, let's see-I really can't re-
call.
carl) part of September w.as that he "was tr!ling to V;in an electionl ti -
wards testified similarly
8 Respondent was unable to explain the reference to la l;sof of 4f i the
third column in September 1976.
Bright testified that when Scott told the girls about the rollilig shift,.
he "explained" hw it would work and she at least "understood [he vI ere
going to be continuing to work." C'arter essentills corrioborated thli
' Shipping clerk Springer testified hat he never sla ain H' S35 coll C t's tlils btell -I it tI 21 3.22' i do/ell. spet xc . tsl tvtct
111t11 -\L5,iLls I ill Ice is{!- A .ti ten/cd the 3-itonth perodl \tiLtst ),Octcr
1)-;'7 LI~ ",o . th, hldl,itlllg 1N, 1111n i 11hn ,a l n l hlx cltfmlgC~
EMPIRE SHIRT RMMING CO.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"because of the amount of customers we are losing through
the inferior quality of work"-and all this without even
knowing whether its current customers would suffer from
the inept efforts of the same "terrible" employees initially
responsible for the break or from inexperienced ones
whom it was "murder" to train.
In all the circumstances I am unable to believe Respon-
dent's account of the motivation behind its action of July
21 and its failure to recall the fusible employees thereafter.
I find, on the contrary, that they were discharged in an
effort to discourage the union activity.
Brewster and Gray are in a slightly different category
but still victims of discrimination. While crediting the un-
contradicted testimony that they provided Respondent
with sufficient cause for their discharge, I note Edwards'
further testimony that but for the cutback in work he
would have continued to retain them. Since the "layoff" of
July 21 is found unlawful and not motivated by a work
deficiency, it follows that the inclusion of Brewster and
Gray was similarly unlawful.
B. The Postelection Layoffs
A layoff following an election does not necessarily con-
stitute effectuation of preelection threats thereof. It is one
thing to threaten or indeed to actually discriminate so as to
influence an election. It is quite another thing to execute
the threats after the Union's selection simply in order to
punish the employees despite the concomitant injury to the
business resulting from a shortage of personnel. Nor does
every layoff constitute an unwarranted departure from a
general policy to "make work" when business is slow. In-
deed, at least one substantial layoff occurred in this very
plant before the Union's appearance notwithstanding that
policy.
But both the preelection conduct and the "make work"
policy are relevant to resolution of the factual issue of
whether the postelection layoffs 45 were unlawfully moti-
vated. And what poses particular difficulty to accepting
Respondent's position is the weakness of the evidence to
support its claim of a business decline which it asserts was
a seasonal event and had existed since the beginning of
September. The only documentary evidence produced by
Respondent in this connection shows September to have
been by far the best month in the year covered, with the
fusible department's volume exceeding August's, the sec-
ond ranking month, by some 54 percent.
Moreover, the fairly short duration of the layoffs (only 2
days in the case of the cutters) 46 indicates that they might
well have been avoided under the existing "make work"
policy. Hicks' testimony suggested at one point that this
policy had been discontinued when they moved from their
previous location to the larger plant at Hapeville. And Ed-
wards, too, at one point attributed the change to the in-
creased employee complement. But Edwards' testimony
quoted supra, as well as that of the employees, shows that
the "make work" practice persisted after the move and that
4s Including the October rotations
46 B contrast. the January layNoff had run "'for quite a spell." accordilng I,
Edw;ards, extending in some cases for 3 months.
its threatened extinction hinged on the outcome of the elec-
tion. I find, therefore, that its ultimate discontinuance was
a consequence of the election.
Accordingly, the postelection layoffs, including the shift
rotations in October, violated Section 8(a)( I) and (3) of the
Act.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act by
coercing its employees in the exercise of their union activi-
ties as found above.
4. Respondent has violated Section 8(a)(3) of the Act by
laying off Mary Powers and discharging Gloria Beverly,
Barbara Gay, Gwendolyn Gay, Lynn Jones, Phyllis King,
Ruby Mitchell, Linda Woodley, Charles Brewster, and
Ralph Gray on July 21, 1976; by laying off certain of its
fusible department employees and cutters in September or
October following the representation election held Septem-
ber 24, 1976; and by reducing the hours of certain of its
fusible department employees in October 1976 by' rotating
them on half-weekly shifts.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
In order to remedy, the unfair labor practices found
herein, my recommended Order will require Respondent to
cease and desist therefrom, and, in view of their serious
nature and variety, to cease and desist from infringing
upon the Section 7 rights of its employees in any other
manner, and to post the usual notices. Moreover, in order
to effectuate the policies of the Act, my recommended Or-
der will require Respondent to offer Gloria Beverly, Barb-
ara Gay, Gwendolyn Gay, Lynn Jones, Phyllis King, Ruby
Mitchell, Linda Woodley, Charles Brewster, and Ralph
Gray full reinstatement to their former jobs, or, if those
jobs no longer exist, to substantially equivalent positions
without prejudice to their seniority or other rights and priv-
ileges, dismissing, if necessary, any employees hired after
July 21, 1976, to fill any of said positions; and to make
whole said employees, Mary Powers, and all employees
discriminatorily laid off or reduced in hours after Septem-
ber 24, as found above,4 7 for any loss of earnings each may
have suffered by reason of such discrimination by payment
' Despite counsels' understanding that definitive identification of the in-
dividuals affected b the postelection layoffs would await the compliance
stage (fn. 2. upora). and despite General Counsel's failure, apparently with
Ihaunderstandiig in mind, to prove the involvement of every employee
ni;lmed i par. 24. 24(at. and 25 of the complaint. his brief urges awards of
hackpas for the entire respective groups, and also urges that the amount of
hackpa\ for each such employee be fixed herein based on approximations
tof the time lost and on equality fo distribution because of "only inconse-
quential variations" among them. I see no justification for bypassing the
cusntollar compliance stage at which the specific amount due each employ-
cc ill he determined. especially since the identity of the recipients remains
there t be resolved
EMPIRE SHIRT TRIMMING CO. 637
to him or her of a sum of money equal to that which he or
she would have earned from the date of discharge or lav-
off, as the case may be, to the date of a valid offer of
reinstatement, less net earnings during such period, and
interest thereon. to be computed in the manner prescribed
in F. W. Woolworth Company 90 NLRB 289 (1950). and
Florida Steel Corporation, 231 NLRB 651 (1977).48
Upon the foregoing findings of fact and conclusions of
law, and the entire record herein, and pursuant to Section
10(c) of the Act I hereby recommend the following:
ORDER 49
The Respondent. Empire Shirt Trimming Co.. Inc..
Hapeville. Georgia. its officers. agents, successors, and as-
signs. shall:
I. Cease and desist from:
(a) Discharging. laying off. reducing the hours of. or
otherwise discriminating against any employee to discour-
age union or other concerted activity protected b Section
7 of the National Labor Relations Act, as amended.
(b) Coercively interrogating an employee concering his
or any other employee's union activities. views, or sympa-
thies.
(c) Threatening its employees with loss of existing or
prospective benefits in the event they choose or retain the
Service Employees International Union. Local 579, AFL
CIO. or any other labor organization as their collective
bargaining representative.
(d) Threatening to close down or move the plant or a
department thereof, or to lay off or reduce the hours of its
employees, in the event of a union victory in an election.
(e) Threatening not to sign a contract with said Union.
or threatening that electing or retaining the Union or any
other labor organization as bargaining representative
would otherwise be futile.
(f) Promising benefits to its employees in the event of a
union loss in an election.
(g) In any other manner interfering with, restraining. or
coercing any of its employees in the exercise of their rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Gloria Beverly. Barbara Gay. Gwendolyn
Gay. Lynn Jones. Phyllis King. Ruby Mitchell. Linda
Woodley, Charles Brewster. and Ralph Gray full reinstate-
ment to their former jobs or, if those jobs no longer exist,
to substantially equivalent jobs. without prejudice to se-
niority or other rights and privileges, dismissing. if neces-
sary, any employee hired after July 21, 1976. to fill any of
said positions: and make them whole, together with Mary
Powers and all employees discriminatorily laid off or re-
duced in hours after September 24. 1976, for any loss of
pay suffered by reason of the discrimination against them
in the manner set forth in the section of this Decision enti-
tled "Remedy."
(b) Preserve and, upon request. make available to the
Board or its agents. for examination and copying. all paN-
roll records, social security records. timecards, personnel
records and reports, as well as all other records necessary
to analyze and compute the amount of backpay due here-
under.
(c) Post at its place of business in Hapeville, Georgia,
copies of the attached notice marked "Appendix." so Cop-
ies of said notice, on forms provided by the Regional Di-
rector for Region 10. after being duly signed by an author-
ized representative of Respondent. shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by an) other material.
(d) Notify the Regional Director in writing, within 20
days of the Order, what steps Respondent has taken to
comply herewith.
See, generally Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
In tIhe ecnt n ecepnion .are filed as pros ded h Sec 102.4t of the
Rule, .lid Rngl lln. oef the anonal L.ahbor Relations Board, the findings.
coiclusiilnsl. and recoimmended Order herein hall. as prosided n Sec.
10248 of Ihe Rule and Regulations. he adopted h he Board and become
it, findings,. concluslon, and Order, and all oectiilions hereio shall he
deerned ,J ., ed for ill purpioses,
'1i h Ihe e.ent that hi. Order is enforced hb a judgment of a i Inited
Staite (llrl of Appeals. the u.ords in the notice reading "Posled bh Order
of the Nitin.al .Labor Relations Board" shall read "Posled Puruant to a
Judgmnt of Ithe riled States Cmirt oif Appeals nforclng ain Order of the
N.all.il ILhibt Rclalions Board''
APPENDIX
NoIicF To EPLOYFES
POSTED BY ORDER OF I HE
NATIONAI LABOR REI.ArioNs BOAR)
An Agency of the United States Government
WE whIL NOT discharge. lay off, reduce the hours of.
or otherwise discriminate against any employee to dis-
courage union or other concerted activity protected by
Section 7 of the National Labor Relations Act.
WE ILL NOT coercively interrogate any employee
about his or her union activities. views, or sympathies
or about the union activities. views, or sympathies of
any other employee.
WE WILL NOT threaten our employees with loss of
any benefits if they choose or keep the Service Em-
ployees International Union. Local 579, AFL-CIO, or
any other union, as their collective-bargaining repre-
sentative.
WE W.t Nori threaten to close down or move the
plant or any department. or to lay off or reduce the
hours of our employees, in the event of a union victory
in an election.
WE WILL NOT threaten not to sign a contract with the
Union or threaten that electing or keeping this Union
or any other union as bargaining representative would
otherwise be useless.
WE WILL NOT promise benefits to our employees in
the event of a union loss in an election.
WE 'ull Isol coerce, restrain, or interfere in any
other way with out employees' exercise of their rights
guaranteed under the National Labor Relations Act.
E M PIR E S H I R T T R IM IN G C O ~ ~~ ~~~~~ ~~.6
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wti w.. offer Gloria Beverly. Barbar Gay, Gwen-
dolyn Gay, Lynn Jones, Phyllis King, Ruby Mitchell,
Linda Woodley, Charles Brewster. and Ralph Gray
full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent jobs, with-
out prejudice to seniority or other rights and privi-
leges. and pay them backpay for any loss of pay suf-
fered by reason of their discharge.
W-. wl.Lt also pay backpay to Mary Powers and to
all employees discriminatorily laid off or reduced in
hours after September 24, 1976, for any loss of pay
suffered by reason of the discrimination against them.
EMPIRF SHIRr TRIMMIN(i CO. INC