Farris Fashions

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 547 (N.L.R.B. 1993)

547
312 NLRB No. 89
FARRIS FASHIONS
1 On July 2, 1992, Administrative Law Judge Elbert D. Gadsden
issued the attached decision. The General Counsel and the Respond-
ent filed exceptions and supporting briefs. The Charging Party filed
cross-exceptions and a supporting brief. The General Counsel, the
Respondent, and the Charging Party also filed answering briefs. The
Charging Party filed a reply brief to the Respondent’s answering
brief.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
The judge erroneously stated that employee Shirley Davis’ cred-
ited testimony was uncontroverted in reference to Supervisor Louise
Hill’s solicitation of employee orders for and distribution of ‘‘Vote
No’’ T-shirts. We therefore rely only on the judge’s assessment of
Davis’ demeanor in affirming his credibility finding about her testi-
mony.
3 We make the following corrections to errors in the judge’s deci-
sion:
1. In par. (c) of the Conclusions of Law, the judge states that the
Respondent violated Sec. 8(a)(1) by interrogating employees on three
occasions. The judge, however, only discussed and found a single
incident of unlawful interrogation (employee Vandergriff).
2. We amend par. (f) of the Conclusions of Law to state that the
issuance of a bargaining order is recommended in Case 26–CA–
14258 rather than in Case 26–RC–7323.
3. Contrary to a statement in the judge’s decision, court reporter
Carol Orman neither appeared nor testified at the hearing.
4. Contrary to a statement in the section of the judge’s decision
entilted ‘‘Appropriate Unit—Inclusion—Exclusion’’ the correct tally
of ballots was 202 votes against and 62 votes for unionization.
5. Interest on backpay due pursuant to the judge’s remedy shall
be computed as set forth in New Horizons for the Retarded, 283
NLRB 1173 (1987), not Florida Steel Corp., 231 NLRB 651 (1977).
Furthermore, in adopting the judge’s recommendation of a broad
cease-and-desist order, we rely on the legal standard of Hickmott
Foods, 242 NLRB 1357 (1979), not NLRB v. Entwistle Mfg. Co.,
120 F.2d 532, 536 (4th Cir. 1941).
4 We shall order that the election in Case 26–RC–7323 be set aside
and that the petition in that case be dismissed. We shall also modify
the judge’s remedy to include provisions for the expunction from the
Respondent’s files of references to the unlawful layoffs of employ-
ees Kay Vandergriff and Denise Armstrong.
Farris Fashions, Inc. and Amalgamated Clothing
and Textile Workers Union, Southwest Re-
gional Joint Board. Cases 26–CA–14258 and
26–RC–7323
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Issues presented for the Board’s review in this case
are whether the judge correctly found that: (1) the Re-
spondent violated Section 8(a)(1) by threatening em-
ployees with plant closure and the loss of jobs, interro-
gating an employee about her union activities, and by
polling employees concerning their antiunion senti-
ments; (2) the Respondent violated Section 8(a)(3) by
laying off employees Kay Vandergriff and Denise
Armstrong; and (3) the Respondent’s unlawful conduct
invalidated the results of an election held on December
14, 1990, and so adversely affected prospects of a fair
rerun election in the foreseeable future as to warrant
a remedial bargaining order.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,2 and conclusions3 and to adopt the rec-
ommended Order as modified.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Farris
Fashions, Inc., Brinkley and Hazen, Arkansas, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Insert the following as paragraph 2(b) and reletter
the subsequent paragraphs.
‘‘(b) Remove from its files any reference to the un-
lawful layoffs of Kay Vandergriff and Denise Arm-
strong, and notify them in writing this has been done
and that the layoffs will not be used against them in
any way.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
IT IS FURTHER ORDERED that the election in Case
26–RC–7323 be, and the same is, set aside, and that
the petition in Case 26–RC–7323 be dismissed.
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 pro-
tected concerted activities.
WE WILL NOT repeatedly threaten employees with
plant closure if they select the Union as their bargain-
ing representative.
548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten employees with loss of their
jobs if they select the Union as their collective-bar-
gaining representative.
WE WILL NOT coercively interrogate employees
about their union activities, interest, or sympathies.
WE WILL NOT poll employees concerning their
antiunion sentiments by asking them to sign a sheet for
or to collect antiunion shirts at a designated place by
us.
WE WILL NOT discriminatorily lay off employees be-
cause they actively and openly support unionization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
All our employees are free to become, or remain, or
refuse to become or remain, members of Amalgamated
Clothing and Textile Workers Union, Southwest Re-
gional Joint Board, or any other labor organization.
WE WILL, on request, bargain collectively and in
good faith with Amalgamated Clothing and Textile
Workers Union, Southwest Regional Joint Board, com-
mencing as of November 10, 1990, as the exclusive
collective-bargaining representative of the employees
in the appropriate unit described below with respect to
rates of pay, wages, hours of work, and other terms
and conditions of employment:
All production and maintenance employees, ware-
house employees, shipping employees and quality
control employees employed by us at our
Brinkley and Hazen, Arkansas facilities, but ex-
cluding all office clerical employees, salespersons,
plant clericals, professional employees, technical
employees, guards and supervisors as defined in
the Act.
WE WILL remove from the files of Kay Vandergriff
and Denise Armstrong any reference of their unlawful
layoffs, and notify them in writing this has been done
and that the layoffs will not be used against them in
any way.
WE WILL embody in a signed agreement any under-
standing reached with the Union on behalf of the
afore-described bargaining unit .
WE WILL recall Kay Vandergriff and Denise Arm-
strong to their former positions or, if those positions
are not available, to substantially equivalent positions,
without prejudice to their seniority or any other rights
or privileges previously enjoyed.
FARRIS FASHIONS, INC.
William D. Leavy, Esq., for the General Counsel.
Barry Fredericks, Esq., of Birmingham, Alabama, and Dan
Kennett, Esq., of Little Rock, Arkansas, for the Respond-
ent.
Carl Bush, Esq. and Scott Trotter, Esq., of Little Rock, Ar-
kansas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge. A
charge and an amended charge were filed on January 17 and
March 7, 1991, respectively, by Amalgamated Clothing and
Textile Workers Union, Southwest Regional Joint Board (the
Union or the Charging Party), against Farris Fashions, Inc.
(the Respondent). On March 8, 1991, the Regional Director
for Region 26 issued a complaint against the Respondent.
In essence, the complaint alleges that during a union orga-
nizing campaign, the Respondent interfered with, restrained,
and coerced its employees in violation of Section 8(a)(1) of
the Act as follows: On 14 occasions during speeches, in
meetings or in letters to employees, Respondent threatened
employees with plant closure, if they selected the Union as
their collective-bargaining representative; threatened employ-
ees on two occasions with loss of employment if they se-
lected the Union as their bargaining representative; interro-
gated employees on three occasions about their union activi-
ties, interest, or sympathies; polled employees concerning
their antiunion sentiments by asking them if they wanted an
antiunion T-shirt; that by laying off employees, Respondent
discriminated against the hire or tenure of employment of
employees because of their union activities, in violation of
Section 8(a)(1) and (3) of the Act; and that because of the
afore-described alleged violations, the Charging Party has re-
quested among other remedies, the issuance of a bargaining
order.
On March 25, 1991, Respondent filed an answer denying
the allegations as set forth in the complaint.
The hearing in the above matter was held before me in
DeValles Bluff, Arkansas, on June 3–6 and July 29–31, and
in Clarendon, Arkansas, on August 26–28, 1991. Briefs have
been received from counsel for the General Counsel, counsel
for the Charging Party, and counsel for the Respondent, re-
spectively, which have been carefully considered.
On the entire record in this case, including my observation
of the demeanor of the witnesses, and my consideration of
the briefs filed by respective counsel, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent has maintained offices
and places of business in Brinkley and Hazen, Arkansas (Re-
spondent’s facilities), where it has engaged in the manufac-
ture of clothing.
During the 12-month period ending December 31, 1990,
Respondent, in the course and conduct of its business oper-
ations described above, sold and shipped from Respondent’s
facilities products, goods, and materials valued in excess of
$50,000 directly to points outside the State of Arkansas.
During the 12-month period ending December 31, 1990,
Respondent, in the course and conduct of its business oper-
ations described above, purchased and received at Respond-
ent’s facilities products, goods, and materials valued in ex-
cess of $50,000 directly from points outside the State of Ar-
kansas.
The complaint alleges, the answer admits, and I find that
Respondent is now, and has been at all times material, an
549FARRIS FASHIONS
1 The above facts are not in conflict or dispute in the record.
2 All dates hereinafter referred to occurred in 1990 unless specified
otherwise.
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is now, and has been at all times material, a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background Information
Respondent is a corporation with facilities in Brinkley and
Hazen, Arkansas, where it is engaged in the manufacture of
clothing (primarily men’s flannel shirts and jogging shorts)
for the retail firm of Wal-Mart (principal owner Sam Wal-
ton).
Almost immediately after the Union commenced organiz-
ing the Respondent’s employees, Respondent’s principal
owner, Farris Burroughs Sr., made a captive audience speech
to employees on the validity of Respondent’s right to close
or remain in business, if the employees selected the Union
as their collective-bargaining representative. In support of
their position he cited a Supreme Court case as authority for
such right. Thereafter, Respondent’s principal owner, Farris
Burroughs Sr., made or authorized other such captive audi-
ence speeches and issued two antiunion letters to employees.
A few supervisors and some antiunion employees made
statements or arguments against unionization. The testimony
of what Respondent said in the meetings to employees is
somewhat conflicting, as well as the testimony of employees
versus that of supervisors and a few antiunion employees.
Employees testified that Respondent’s speeches threatened
plant closure, employees’ loss of work, and involved interro-
gation of employees about their union activities, and layoff
of employees, while the Respondent denies any unlawful
conduct.
A stipulated election agreement was approved by the Re-
gional Director and an election later held on December 14,
1990. The election results were 60 votes for the Union, 202
votes against the Union, and 23 undeterminative challenges.
The Union timely filed objections to the conduct allegedly
affecting the election results.
The answer admits that the following named persons occu-
pied the positions set opposite their respective names, and
that they are now, and have been at all times material, super-
visors of Respondent within the meaning of Section 2(11) of
the Act, and agents of Respondent within the meaning of
Section 2(13) of the Act:
Farris Burroughs Sr. Owner and Plant Manager
Ella Cook Assistant Plant Manager
Betty Dilworth Supervisor
Barbara Brooks Supervisor
Emma Cook Supervisor
Louise Hill Supervisor
The answer denies that the following named persons have
been and are now agents of Respondent within the meaning
of Section 2(13) of the Act:
Willie Ryland Mae Covington
Katherine Palmer John Deen Jr.
The answer admits that the following employees of Re-
spondent (the unit) constitute a unit appropriate for purposes
of collective bargaining within the meaning of Section 9(b)
of the Act:
All production and maintenance employees, warehouse
employees, shipping employees and quality control em-
ployees employed by Respondent at its Brinkley and
Hazen, Arkansas, facilities, but excluding all office
clerical employees, salespersons, plant clericals, profes-
sional employees, technical employees, guards and su-
pervisors as defined in the Act.1
B. Employee’s Union Organizing Activities and
Respondent’s Response Thereto
The uncontroverted evidence of record shows that on Oc-
tober 18, 1990, the Union, using members of its staff and
voluntary organizers, solicited signatures of Respondent’s
employees on authorization cards. All signed cards were
turned in to Marc Panepinto, the Union’s lead organizer, on
the date appearing on the card or the day thereafter. A ma-
jority of the signed cards were received by Panepinto for the
Union by late October 1990.2
Respondent’s owner, Burroughs Sr., acknowledged he be-
came aware of the Union’s organizing effort in a telephone
call on or about October 19–21.
He testified he immediately tried to learn how to give em-
ployees the 60-day warning notice of closing his plant under
the new law. He contacted Dan Ward, a small dealer in shirt-
making equipment, with whom he discussed selling his
equipment to learn how much he could get for it. Dan Ward
surveyed all of Respondent’s equipment by class, age, and
category but Respondent did not sell the equipment.
Dan Ward testified and corroborated Burroughs Sr.’s Octo-
ber 24 telephone call for an appraisal of equipment in con-
templation of selling the plant’s equipment because union or-
ganizing activities were in progress at his plant, and he was
examining his options. Ward told Respondent it could get
most of its money out of the equipment purchased from him.
He also said he kept his appraisal report for a month or two
after the Union was defeated in the election. Respondent did
not ask Ward to sell any of its equipment.
Company Speeches to Employees
Respondent’s owner, Burroughs Sr., testified he made
company-called meetings speeches on company time to em-
ployees shortly after he learned about the union organizing
effort in October. Employees who attended the meetings
where the speeches were made testified as follows:
Carla Hicks testified that in October or November, Bur-
roughs Sr. told them ‘‘if the employees didn’t stop messing
around with the Union, . . . he would shut the doors’’; that
‘‘he could afford the rent on the plant and he would turn it
into a chicken coop; that if they did not stop messing around
with Sam Walton, officer of Wal-Mart, who places orders or
contracts with Respondent to make shirts and shorts, that
Walton would pull his contract’’ with Respondent; and ‘‘that
550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
if the Union was voted in he would not bargain with the
Union.’’
Odessie Miller testified that in early November, Burroughs
Sr. told them ‘‘that if we kept messing around with the
Union people, that he would close his plant down if [sic] the
Union came in and turn it into a chicken coop and sell horse
manure’’; if we ‘‘kept messing around with these people,
Sam Walton, will not give Respondent anymore contracts if
the Union comes in.’’
Doris Grayson testified that in early November, Burroughs
Sr. told them if the Union was voted in he would close the
plant and turn it into a chicken coop and sell manure to
farmers.
Shirley Davis testified that on at least four occasions, start-
ing in late October, Burroughs Sr. told them ‘‘if the Union
came in . . . he could close the plant and he would do
that’’; that in his October speech, Burroughs Sr. told them
the Union could not do anything ‘‘for us’’; that near the end
of the campaign, Burroughs Sr. told them ‘‘I am not saying
that the company will close and I’m not saying the company
will not close’’; and in one meeting Burroughs Sr. said, if
the Union came in, Sam Walton ‘‘wouldn’t do business with
a Union company and that would cut our work if we didn’t
stop . . . letting the people [Union] in our house.’’
Mentry Bankston testified that in late October or early No-
vember, he told employees that Sam Walton ‘‘would not buy
shirts from him if the Union came in because he would have
to raise the salaries for employees . . .’’; that Walton
‘‘wouldn’t buy union goods; that three weeks before the
Union election he said if the Union came in he would turn
the plant into a chicken coop if he wanted to’’; and that ‘‘if
the Union came in, he would close the doors, that he had
the money to close.’’
Rosie White testified that prior to November 14, Burroughs
Sr. told them ‘‘he had the right, if the Union comes in, and
he would use that right to shutdown’’; that ‘‘he could turn
it into a chicken coop’’ and he said something about manure;
that he ‘‘could and would’’ shutdown if the Union came in
and that Respondent’s customer, Wal-Mart, would not buy
Respondent’s products if the Union came in.
Carolyn Adell testified that in early November, Burroughs
Sr. told 100 of the employees ‘‘if we keep messing with the
Union people, he . . . would close the plant down and turn
the factory into a chicken coop.’’
Kay Vandergriff testified that in October or November,
Burroughs Sr. in his first meeting with the employees told
them, in an angry manner ‘‘if we didn’t quit fooling with the
Union, he would close the plant and turn it into a chicken
coop and sell chicken manure.’’
Lois DeGunion testified that in October, Burroughs Sr.
was upset about the references to Walton—Wal-Mart in the
Union’s leaflet, and told them if they kept on something and
he would close the plant down and turn it into a chicken
coop. An employee asked, can we sell the eggs? which was
followed by some laughter from the audience.
Kimberly Ishmon testified that in October, Burroughs Sr.
asked the employees ‘‘where was the Union when there
wasn’t no jobs?’’; and that if the Union came in he was
going to close this place down and make it into a chicken
coop.
Denise Armstrong testified that in October, Burroughs Sr.,
while upset, told them that some workers had got involved
with the Union—that if they didn’t leave this union mess
alone, he would turn this place into a chicken coop.
In November, Burroughs Sr. presented to employees, an
accountant, a judge, and attorneys. The accountant showed
employees what he found Respondent could and could not fi-
nancially afford. Thereafter, Burroughs Sr. asked the ac-
countant, the judge, and the attorneys, ‘‘Can I afford a
Union?.’’ The accountant, judge, and attorneys replied, ‘‘No
he could not.’’ Burroughs Sr. stated he would not bargain
with the Union.
However, Burroughs Sr. denied he said he would not bar-
gain with the Union, but testified he said he did not have to
agree to anything that was not financially feasible for Re-
spondent, and that he ‘‘came here with nothing and would
leave with nothing.’’
Searcy Williams testified also that Burroughs Sr. told them
‘‘if you don’t stop messing with this union, you will be out
of a job.’’ I will close the plant down and turn it into a
chicken coop and sell chicken manure; that the week of Oc-
tober 22, he told them, ‘‘if we embarrass Wal-Mart enough,
Wal-Mart would cut off our contract’’; that the loss of Wal-
Mart’s business would mean the plant would close and em-
ployees would be without jobs. Burroughs Sr. denied he said
he would close the plant if a union came in.
With respect to the afore-described statements and speech-
es attributed to Burroughs Sr. denied that he ever told em-
ployees during the union campaign that he would close the
plant down.
He testified he did tell them on October 19 or 20 that he
had the right to close down according to the Supreme
Court’s decision in Textile Workers Union v. Darlington
Mfg. Co., 380 U.S. 263 (1965), because the union had been
telling the employees it was illegal for respondent to close
because of the union campaign.
A tape made during a visit by the Union to employees’
homes informed employees it was against the law for an em-
ployer to close down the business because of unionization (p.
108, (1) R. Exh. 5). This information appeared on union leaf-
lets.
Burroughs Sr. admitted that as soon as he heard about the
union organizing campaign he told employees he was think-
ing about giving a 60-day notice. However, he said he has
since changed his mind. The record, however, does not show
that he informed the employees that he had changed his mind
about the 60-day notice.
Respondent, Burroughs Sr., acknowledged he did not
know about the Darlington case until after the union cam-
paign started. He is not an attorney. He told employees he
felt like Milliken in the Darlington case.
C. Respondent’s Antiunion Letters to Employees
On December 6, Respondent offered letters to employees
pertinent parts of which are as follows:
We were just informed this week that another
ARROW shirt plant in Jasper, Alabama, will be closed
by the end of January. THE EMPLOYEES ARE OR
‘‘WERE’’ REPRESENTED BY THE ‘‘ACTWU.’’ This is just
another detail the union has not told you about. The
ACTWU will say ‘‘it is bad management.’’ Regardless
OF WHAT THE REASON. THE FACT IS, the union can not
551FARRIS FASHIONS
stop the company OR PROTECT EMPLOYEES’ JOBS if a
plant closes.
AT JASPER ALABAMA, OVER 520 EMPLOYEES ARE LOS-
ING THEIR JOBS. WHAT IS THE ACTWU GOING TO DO
ABOUT IT?—NOTHING. WHAT DID THE UNION DO FOR
EMPLOYEES AT THE OTHER ARROW SHIRT PLANTS THAT
CLOSED. LOSING OVER 2000 JOBS—nothing and what
would the union do for you if our plant closed—noth-
ing.
The union has told you that Farris Fashions, Inc.
can’t close the Company if a union is voted in. I am
not saying the Company will close and I am not saying
the Company will NOT close. I am saying that the
union has lied to you as the United States Supreme
Court said in a case involving this same union when a
company closed after the union was voted in:
Employer has the absolute right to terminate his
entire business for any reason he pleases, including
anti-union bias.
You should be aware of the Company’s right to
close. You have to decide whether you want to take the
chance of that happening here.
On December 14, 1990, you will have the oppor-
tunity to decide for yourself and I hope you decide to
VOTE NO! [G.C. Exh. 6.]
On December 10, Respondent offered its employees an-
other campaign letter which reads, in part, as follows:
TO ALL EMPLOYEES:
The ACTWU union organizers for several weeks
now have been going to your home and mailing you in-
formation to try and win your vote on Friday. It is now
time for me to point out the lies and misleading infor-
mation that the union has been trying to fool you with.
UNION SAID: ‘‘The company cannot close because
workers form a union-it is against Federal Law for the
company even to threaten to close.’’
FACT IS: THE SUPREME COURT SAID ‘‘EMPLOYER HAS
THE ABSOLUTE RIGHT TO TERMINATE HIS ENTIRE BUSI-
NESS FOR ANY REASON HE PLEASES, INCLUDING ANTI-
UNION BIAS. . . .’’ YOUR SUPERVISOR HAS A COPY OF
THE CASE LAW.
UNION SAID: ‘‘Plants close because of bad manage-
ment, not because workers form unions.’’
FACT IS: ALL PLANTS CLOSE BECAUSE OF MANAGE-
MENT’S DECISION GOOD OR BAD. PLANTS ALSO CLOSE
BECAUSE WORKERS FORM UNIONS [G.C. Exh. 7].
D. Intervention of the Mayor of Brinkley
John Deen Jr.: Two years mayor of Brinkley, Arkansas,
testified he has known Burroughs Sr. 14 or 15 years. On one
occasion in November, he called Burroughs Sr. and told him
he understood a union was expected at Respondent’s plant
and he was concerned about the impact of that on the local
community.
On December 8 or 9, Burroughs Sr. invited Deen out to
the plants office and told Deen that he had discussed the sit-
uation (union drive) with Wal-Mart, his sole customer for
whom Respondent manufactures shirts for $9 per dozen; and
that Wal-Mart had told him it was paying Respondent more
than it can buy shirts from foreign markets, but that Wal-
Mart is committed to the Buy America Program. Thereupon,
Burroughs told Mayor Deen he felt any increase in the cost
of his shirts to Wal-Mart (as a result of unionization) would
result in a loss of the Wal-Mart contract with Respondent,
and possibly force Respondent out of business.
Deen was asked if the following statement of his pretrial
affidavit was true:
He [Burroughs] asked me to come out to the plant and
visit about his concerns. He told me about the election.
And he told me that if the union was voted in, he
couldn’t see how he could keep the contract with Wal-
Mart and he was fearful he would have to close.
Mayor Deen testified that he volunteered to talk with Re-
spondent’s employees about his concerns with the local
economy and Burroughs Sr. had no objections, however, he
was not sure whether Burroughs Sr. asked him to talk to the
employees.
Mayor Deen testified that he accepted Burroughs Sr.’s in-
vitation to come to the plant. When he arrived at the plant,
he said Burroughs Sr. said let’s go out on the floor, and the
latter showed him new machinery he had recently purchased
for the plant. As they were returning to the office, the mayor
told Burroughs Sr. Deen had visited some of Respondent’s
employees.
Mayor Deen further testified that during the union cam-
paign, at the request of Burroughs Sr., he talked to Respond-
ent’s employees as follows:
I told them that we had lost jobs at Van Heusen and
also at Howard Industries, and that whenever I talked
to them about that, I said, ‘‘Now, you guys don’t want
to lose your jobs. You need your job more than you
need anything else.’’ I said ‘‘I don’t know whether this
will transfer into a loss of your job, but at least know
all the facts before you go into that vote.’’
Meeting of Brinkley Board of Directors
Thereafter, on December 11, Mayor Deen testified he
called a special meeting of the board of directors of the City
of Brinkley, during which meeting he discussed his prior
conversations with Burroughs Sr. that if unionization caused
Respondent to raise its prices to Wal-Mart, Respondent
would be without a contract, causing layoffs and potentially
closing the plant.
E. Tape Recording
Motions on Transcription of Tape
During the trial a controversy arose between the parties
over obtaining a transcription of one of Respondent’s speech-
es delivered to the employees during the union campaign.
Since some parts of the recorded tape are inaudible, the par-
ties agreed for the tape to be transcribed by the reporter tran-
scribing the instant proceeding, whose expertise was not
questioned, and is described in the General Counsel’s
posthearing brief. A copy of that transcription was sent to all
parties.
552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On October 3, 1991, counsel for the General Counsel filed
a motion with me for admission of the transcription (G.C.
Exhs. 202, 204) into evidence.
On December 3, 1991, counsel for Respondent filed a re-
sponse to the General Counsel’s motion for admission of
202, 204, objecting to the admission of Reporter Rita C.
Pigmon’s affidavit because Respondent did not have an op-
portunity to cross-examine Rita C. Pigmon; and that admis-
sion would be depriving Respondent of procedural due proc-
ess, since Respondent contends, another equally qualified re-
porter (Carol Orman) who did appear and testified in this
proceeding, provides an accurate transcription (R. Exh. C).
Counsel for Respondent submitted excerpts from both
transcriptions and pointed out certain language discrepancies
between the three transcriptions which are set forth in Re-
spondent’s motion.
After carefully examining and considering the General
Counsel’s Exhibits 202, 204 (transcription) along with Re-
spondent’s Exhibit C (transcription), and inaudible portions
of the tape, I find that most aspects of the substance of both
transcriptions constitute protected language under the First
Amendment.
However, both transcribers stated that due to inaudible
portions of the tape they could not certify their transcriptions
for accuracy, but did their best to provide as accurate a tran-
scription as possible. The substance of a great majority of the
transcriptions do not present a problem because it does not
present any relevant issues. The portions of the transcriptions
which present pertinent issues on free speech, are those as-
pects which present language discrepancies resulting substan-
tially from inaudible portions of the tape; and two tran-
scriptions, one not certified and one certified, presented to
Respondent by the General Counsel. Respondent cites the
following discrepancies between the two versions presented
by the General Counsel, and the one version presented by
Respondent’s transcriber:
General Counsel’s first version, p. 2:
I’m saying that I have the right,
I have the right, recognize that right and to use that
right. I don’t mean transfer it around. I mean shut it
completely down and liquidate the corporation.
General Counsel’s second version, p. 7:
I’m saying that I have a right, and I will properly
recognize that right, and use that right. All this busi-
ness, I don’t want it transferred around, I’m going to
shut it completely down and liquidate it, throw it away.
The italicized portion of the second version Respondent
contends differs from the first version, and the best tran-
scription that Respondent could make of the same portion is
as follows:
I’m saying that I have the right (inaudible) recog-
nized that right and to use that right—close the busi-
ness down—I don’t mean transfer it around, I mean
shut it completely down and liquidate the corporation.
Although the Respondent conceives these discrepancies as
significantly relevant, I do not. Even a substantial portion of
the credited testimony of record established that Burroughs
Sr. and other authorized or approved speakers for the Re-
spondent stated in essence and/or emphasized Respondent’s
position as follows:
It’s right, absolute right, and his right to use that right to
shut down his plant; that he has the right and will ‘‘prop-
erly,’’ [could have meant ‘‘probably’’] recognize or use that
right to close down business. To distinguish Respondent’s
probable contemplated shut-down from the employer in
Wiljef Transport v. NLRB, 946 F.2d 1308 (1991), Respond-
ent added: ‘‘I don’t want it transferred around, I am going
to shut it down completely and liquidate it, the corporation,
throw it away.’’
I find that even without the presence of every audible
word in the transcribed text of the speech, that the intelligi-
ble essence of what was said in the taped speech is clear and
essentially consistent with the credited testimony of record.
Consequently, General Counsel’s Exhibits 202, 204, and Re-
spondent’s Exhibit C are admitted in evidence. They are ad-
mitted, recognizing the imperfections conceded by both re-
porters and the minor discrepancies noted by counsel for Re-
spondent, which I have considered in evaluating both tran-
scriptions along with all the evidence of record.
The General Counsel’s transcribed tape recording of one
of the December 10 meetings shows that Burroughs Sr.
spoke after Ryland, and Ryland and Burroughs Sr. made,
inter alia, the following statements (G.C. Exhs. 202, 204):
RYLAND: [Reading from paper] The Board by a di-
vided vote found that Darlington had been closed be-
cause of the anti-unionism animus of Roger Milliken
and that to be in violation of Section 8(a)(3). The
Board’s determination in Deering-Milliken, as the status
of a single employer, the company has the absolute
right to close out a part or all of its business, regardless
of anti-union motives.
BURROUGHS: What the Supreme Court ruled is that
we have the right, we have the absolute authority. . . .
This decision went all the way to the Supreme Court
and they ruled that an owner has the right under the
terms of the qualifications. I meet those qualifications.
It’s a small corporation. All the stock is owned by me.
I own 55 per cent and my [sic] [wife] owns 45 per
cent. We don’t have to have a Board meeting. And I
feel the same way that this man felt. If the majority of
the people here vote no confidence in me, I feel the
same way he feels. I want everybody to understand, I
am not threatening, I’m saying that I have a right, and
I will properly recognize that right and use that right.
All this business, I don’s want it transferred around,
I’m going to shut it completely down and liquidate it,
and throw it away.
The next question is, am I strong enough financially
to do it. The books will be over Wednesday afternoon
at 3:30. Ask the man . . . Steve Elledge . . . Y’all can
ask him anything you want to ask him, including those
questions, ‘‘Can the man do it? Can the man do it fi-
nancially?’’
But let me tell you, if the majority of the people do
not want me here, then I will consider, consider exer-
cising my option, but I can walk away from here know-
ing that I did not let the other people down. . . . If I
have to do it, I will, ’cause if I have to do something
that drastic, I can walk away from here, thinking I did
553FARRIS FASHIONS
everything I could for the people who work hard. . . .
I’m not worried about a place to live, I don’t’ have to
worry about whether the groceries are coming in or
whether the kids are [inaudible] . . . I don’t have to
worry about that.
Let me tell you, those people, some them’s bad. I
looked at those people and I thought about the old beer
joint we started out in. I couldn’t face it. I felt that the
things would never be the same there. I worked hard
over there to get the thing going. I’ve worked hard. I’ve
saved my money, and I don’t have to put up with the
crap that the union puts out. . . . Any of you think I’m
kidding? Ask the accountant where [inaudible] . . . I
started out with nothing [inaudible]. (I’m leaving here
with nothing, I’m leaving.)
They ain’t [inaudible] nothing. They ain’t nothing
but insurance peddlers is all they are, insurance ped-
dlers.
Basically what the ruling says was, I have a right to
do this. I’m not saying that will but if someone [inaudi-
ble] and says ‘‘We have no faith in You,’’ what am I
supposed to do? . . . [G.C. Exh. 204.]
F. Radio Broadcast
A local radio station in Brinkley, Arkansas, broadcast a
news cast which in part announced as follows:
There is a possibility that Brinkley could lose as many
as 400 jobs from two local businesses as an apparent
direct result of union activities. Mayor John E. Deen
called a special meeting of the Brinkley Board of Di-
rectors to advise them of the situation at FASCO
Brinkley Motor Products and at Farris Fashions. . . .
Farris Burroughs, Sr., owner of the company has indi-
cated that he will cease operations if the union is voted
in. This company hires approximately 300 in Brinkley
and 15 in Hazen. . . . Farris Fashions is the largest
single employer in the county and the employees now
start at the minimum of $3.80. . . . The largest pur-
chase of Farris Fashions products is Wal-Mart.
G. Employee Designated Speechmaker of Respondent
On December 10, mechanic Willie Ryland spoke to four
or five groups of employees and the substance of what the
employees understood he said is described by employee wit-
nesses as follows:
Odessie Miller: After Supervisor Betty Dilworth told em-
ployees in her department to go to a meeting, Ryland read
portions of a Supreme Court decision, telling employees Bur-
roughs Sr. had ‘‘the absolute right, if he so desired, to close
the plant if the Union came in’’; that Burroughs Sr. was
‘‘not playing around, and that he would close it down if the
Union came in’’; and that Burroughs Sr. was present during
Ryland’s speech and he asked employees, ‘‘what makes you
think I would bargain with the Union if they came in and
I’m not bargaining with them right now.’’
Mentry Bankston: Ryland told a group of employees ‘‘he
knew Burroughs, Sr. very well and that he had the money
to do whatever he wanted to do. If he wanted to close the
plant, he’d do it.’’
Carolyn Adell: Supervisor Dilworth sent herself and other
employees to the breakroom where Ryland said, ‘‘Farris
could and would close the plant if the Union was voted in.’’
Kay Vandergriff: Burroughs Sr. and Supervisors Ella Cook
and Betty Dilworth were present when Ryland told employ-
ees ‘‘Farris had the prerogative to close the plant if the
Union came in, and that he would do it if the Union came
in.’’ I credit Vandergriff’s account that Cook and Dilworth
were present and the record does not show that they made
any response.
Doris DeGunion: Ryland read from a thing referring to a
previous trial in a similar circumstance, where they closed
the factory down, and the judge ruled that they could, and
Ryland said he felt that Farris would close the factory down
if the Union came in.
Denise Armstrong: With Supervisors Ella Cook and Emma
Cook present, Ryland told the employees Burroughs Sr.
‘‘could not afford the Union’’ and ‘‘he could do better if we
leave the Union alone’’; and that ‘‘Ryland never seen a hog
stay in an empty trough.’’ Ella Cook did not deny she was
present at the meeting and she did not respond to Ryland’s
statements.
Searcy Williams: Supervisors Ella Cook and Betty
Dilworth were present at a meeting of 30 to 40 laundry de-
partment employees when Ryland, told them ‘‘Farris was fi-
nancially able to close the plant down if the Union was voted
in, and he would close it if the Union should come in.’’ Nei-
ther Supervisors Cook or Dilworth denied they were present
at the meeting and neither responded to Ryland’s statements.
Even if Ryland testified that Burroughs Sr. was present
during three or four meetings with the employees on Decem-
ber 10, when Ryland expressed the opinion if the Union was
voted in the plant would close, he further testified that there
were three additional meetings after December 10 at which
Ryland alone spoke.
H. Speeches to Employees by Supervisors and Other
Employees of Respondent
Accounts of these speeches by employee witnesses are as
follows:
Odessie Miller: Barbara Brooks spoke to employees in late
November during working time. In the presence of Super-
visors Ella Cook and Betty Dilworth, ‘‘employee Barbara
Brooks told employees Burroughs Sr. would close the plant
down if the Union came in.’’ Supervisor Betty Dilworth de-
nied Brooks said Burroughs Sr. would close the plant.
Brooks talked about the Supreme Court’s decision in Dar-
lington, 380 U.S. 263. However, it is noted that Dilworth’s
denial is not corroborated by Supervisor Cook, while Brooks’
account is corroborated by employee Shirley Davis.
Shirley Davis: In mid- or late November, after being pro-
moted to supervisor November 12, Barbara Brooks told em-
ployees during worktime that Burroughs Sr. ‘‘would close
the plant down if the Union came in.’’
Shirley Davis: A month prior to the election employee
Barbara Brooks told employees that ‘‘the Union . . . didn’t
have any power they really couldn’t do anything for us . . .
just all talk.’’
Carla Hicks: Two days prior to the election, employees
Mae Covington and Katherine Palmer convened a meeting
with employees on company time, with the prior permission
obtained from Burroughs Sr. when Palmer told employees
554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Essentially, I credit the testimonial accounts of employees Carla
Hicks, Odessie Miller, Doris Grayson, Shirley Davis, Mentry
Bankston, Rosie White, Carolyn Adell, Kay Vandergriff, Lois
DeGunion, Kimberly Ishmon, Denise Armstrong, and Searcy Wil-
liams of the speeches on plant closure and/or loss of employment
statements delivered to them at company-called meetings on com-
pany time by either owner Burroughs Sr., Supervisors Ella Cook and
Betty Dilworth, owner designated employee speaker Willie Ryland,
and antiunion speakers Mae Covington and Katherine Palmer, be-
cause not only was I persuaded by their demeanor that they were
testifying truthfully but also for the following reasons: (1) their testi-
monial accounts are relevantly consistent or corroborative of one an-
others; (2) their testimonial accounts were partially acknowledged by
the Respondent and partially uncontroverted by the Respondent; (3)
and all of the afore-named General Counsel’s witnesses are currently
employed by Respondent. This being so, their testimony is adverse
to the Employer’s interest and is apt to be particularly reliable. Gold
Standard Enterprises, 234 NLRB 618 (1978). Additionally, I do not
credit the testimony of most recently appointed Supervisor Barbara
Brooks’ denial that the plant closing and loss of employment state-
ments by herself and management were not delivered to the employ-
ees, because not only was I not persuaded by her demeanor that she
was not testifying truthfully and accurately, but parts of her account
are contradicted by statements in her affidavit previously given to
the Board. Moreover, she acknowledged that she was in the back of
the group of employees in several of the meetings and possibly
could not hear all that was said. According to her testimony she con-
tinued to say she never heard, rather than what was said, or what
was not in fact said. Moreover, Barbara Brooks is no longer in the
employ of the Respondent and her account as a former supervisor
is probably bias in favor of management.
‘‘if she was Respondent and had made the company pros-
perous as Burroughs did, she would close it too’’; that ‘‘she
believes that if the Union comes in . . . Farris would close
the plant.’’ Cook made no comment nor did she disavow
Palmer’s statement.
Mentry Bankston: About a week before the election, em-
ployees Covington and Palmer convened employees in the
breakroom on worktime in the presence of Supervisors Ella
Cook and Betty Dilworth. Palmer told the employees it was
one sided (meaning they did not want any contrary views).
Palmer asked employees to change their minds and vote
‘‘no’’ because she felt strongly that Burroughs Sr. would
close the plant if the Union came in; that they should listen
to Burroughs Sr. and stop campaigning for the Union be-
cause she had worked at a unionized plant where the doors
closed and she did not want to lose her job; and that some
of the current employees did not have any training for any-
thing else, that the only thing they knew how to do was to
make shirts. Dilworth nor Cook spoke during the meeting.
The record shows that although present, Supervisors Ella
Cook and Betty Dilworth made no comment and I credit
Bankston’s account because I was persuaded by her de-
meanor that she was testifying truthfully. Moreover, her ac-
count is corroborated by employee Carla Hicks.
Doris Grayson: During a meeting in December, Palmer
told employees she had been previously involved in a union
and had lost her job on account of the union; and that if the
Union is voted in, ‘‘Farris would close the plant.’’ Palmer
told employees to think about their family first before they
voted for the Union. Palmer denied she said Burroughs Sr.
would close the plant and Mae Covington corroborates her
account in this regard.
In November, Grayson said Supervisor Dilworth met with
employees and told them if the Union comes in Farris had
the right to close the plant and that he would close it if the
Union was voted in. I do not find that the record shows Su-
pervisor Dilworth denied making the above statement, but
presuming she denied it, I nevertheless credit Grayson’s ac-
count because I was persuaded by her demeanor that she was
telling the truth, and because her account is consistent with
the credited accounts of other employee witnesses who were
present.3
Respondent’s Witnesses
Barbara A. Brooks: Employed August 1990–June 1991 in
cuff making and made supervisor of quality control in No-
vember, testified she participated in the meetings in which
Mae Covington and Katherine Palmer spoke. She never
heard anybody state that Farris Burroughs Sr. would close
the plant if the Union came in, or that employee union sup-
porters could lose their job. She did not hear any supervisor
interrogating employees about where they stood on the
Union. Instead, Covington and Palmer were saying they did
not think the employees needed a union, and they were mak-
ing a mistake to elect one. While I credit the latter statement
by Brooks, I discredit her previous statements for the same
reasons I discredited her account in footnote 3, supra.
At the Willie Ryland meeting, Brooks said Ryland read
from the Darlington case in response to union literature
which told employees it was illegal for employers to close
business because the employees organized a union. she ac-
knowledged Supervisor Ella Cook was present during the
meeting.
Brooks said she was present when Ryland spoke and never
heard him say Burroughs Sr. would close the plant or he
would fire employees who supported the Union. However,
on cross-examination about her affidavit she admitted she
heard Burroughs Sr. say something about turning the plant
into a chicken coop. Although she testified the statement was
made in response to a question by an employee, when shown
her affidavit where she previously stated no question was
asked by an employee, as to what would happen to the plant
if it closed, she said she was towards the back of the crowd
and possibly could not hear everything.
Brooks said she was also present at the meeting where Su-
pervisor Betty Dilworth spoke but never heard Dilworth say
anything about the plant will close. Again, because Brooks
did not hear Dilworth’s remark does not mean the remark
was not made. This is especially so since Brooks acknowl-
edged she was in the back of the employees.
Burroughs Sr. testified he never told employees he had de-
cided to close his plant if they went union because he knew
it was unlawful to tell them that. He said if the election had
gone the other way (the Union had won) he would have
taken the $81,000 loss spent on new machinery and would
have gone out of business. The latter statement refers to after
the fact (the election) and is self-serving and of no credible
value.
Supervisor Dilworth testified she attended the meeting
where Barbara Brooks talked and said Brooks did not say
anything about the plant closing; but that they did talk about
the Darlington case. She said she did not attend the meeting
where Mae Covington and Palmer spoke and she denied she
ever stated, while returning from a meeting, that Burroughs
Sr. was going to close down. Although I do not credit
555FARRIS FASHIONS
Dilworth’s account of the Brooks meeting, I do credit her de-
nial that, while returning from a meeting, she told an em-
ployee Burroughs Sr. was going to close down because the
particular employee’s statement in this regard is not corrobo-
rated by any other employee.
Supervisor Dilworth denied she ever asked employee Kay
Vandergriff how was she going to vote but admitted, she
asked Vandergriff about her opinion of the Union, after hear-
ing Vandergriff talk about the Union in her presence. How-
ever, I find little distinction in Dilworth’s explanation. Dur-
ing a discussion about the Union, I find that a supervisor
(Dilworth) asking an employee about their opinion of the
Union, is essentially sensing out their feelings or position
about their probable support for the Union.
Consequently, I credit Vandergriff’s testimony, discredit
Dilworth’s meaningless denial, and find that Dilworth’s ask-
ing Vandergriff her opinion about the Union during the orga-
nizing campaign, without any assurances against reprisals
constituted coercive interrogation of employees about their
Section 7 rights (union sympathies), in violation of Section
8(a)(1) of the Act.
Conclusions
The uncontroverted evidence of record is clear that Bur-
roughs Sr. testified he started the Respondent’s speeches on
its right to close the plant pursuant to the Supreme Court’s
decision in Darlington, supra; and that he thereafter dele-
gated authority to mechanic Willie Ryland to finish the
speech, and Ryland made the same speech to other groups
of Respondent’s employees. Burroughs Sr. and mechanic
Ryland made the speeches in the presence of all the employ-
ees and supervisors in the plant. He also granted supervisors
authority to call meetings of employees on company time for
them to hear the speeches by himself, Ryland, Supervisors
Ella Cook and Betty Dilworth. He granted employees Mae
Covington and Katherine Palmer permission to hold meetings
on company time for which employees were paid, to talk to
employees but their speeches expressed the Company’s posi-
tion as expressed by Burroughs Sr., Willie Ryland, and Su-
pervisors Cook and Dilworth, regarding Respondent’s right
and probability to close the plant for union organization.
The Board has held in Dentech Corp., 294 NLRB 924
(1989), that a supervisor, employee, or any person has appar-
ent authority to act for the employer, whenever the conduct
of the supervisor, employee, or other persons meet the essen-
tial conditions of apparent authority under Section 2(13) of
the Act, and the employer has adopted the employee’s or
other person’s action within the meaning of the doctrine of
ratification. Such essential conditions are met whenever the
statements made are consistent with the message being con-
veyed by management, here: Respondent said it had the right
to close, and it will close the plant in the event of union or-
ganization, and the employees will be without jobs.
A second essential is full knowledge by the employer of
statements and actions by the employees acting on his behalf
or with the employers consent. Expanding on this essential
the Board stated 294 NLRB at 926:
The Board has held that apparent authority may be in-
ferred when an employee acts with the cooperation of
or the presence of supervisors. See e.g., Advanced Min-
ing Group, 260 NLRB 486, 503–504 (1982) . . . Wm.
Chalson & Co., 252 NLRB 25 (1980) . . . Hit ’N Run
Food Stores, 231 NLRB 660, 668–669 (1977).
In the instant case, Burroughs Sr. gave both permission
and cooperation to employees Ryland, Covington, and Palm-
er, as well as Mayor Deen to make the Company’s position
known to employees on plant closing and loss of jobs. Ad-
vanced Mining, Wm. Chalson, and Hit ’N Run Food, supra.
Supervisors Ella Cook and Betty Dilworth were present
when employees Ryland, Covington, and Palmer spoke to the
employees. Neither supervisor disavowed any parts of the
speeches by the speakers.
A third essential condition is where the employer fails to
disavow the acts of the employee agent, supra:
The Board has held that an employer’s failure to dis-
avow and/or discipline an employee for conduct en-
gaged in with company knowledge may warrant an in-
ference of apparent authority. See e.g., Haynes Indus-
tries, 232 NLRB 1092, 1099–1100 (1977) (Agency sta-
tus of employee Cox). Similarly, an employer’s permit-
ting an employee to use company time for his activities
is an indication that the employee acts for the em-
ployer. See, i.e., MGR Equipment Corp., 272 NLRB
353, 358–359 (1984) (Agency status of employee
Credell); See also F.W.I.L. Lundy Bros. Restaurant, 248
NLRB 415, 431 (1980).
Also, in Dentech Corp., supra, the Board held that the em-
ployer’s participation in certain acts amounted to an ‘‘affirm-
ance’’ of the employees acts and that the employer failed to
repudiate the employees acts, amounting to ratification of the
Acts. (294 NLRB at 928.)
As counsel for the General Counsel points out:
It is noted that in the meeting in which Ryland, Covington,
and Palmer spoke the following factors were involved:
1. The meetings were personally sanctioned by Bur-
roughs, Sr.
2. Supervisors were present.
3. Employees were released by supervisors to attend
the meetings. They attended the meetings on working
time and they were paid for the time that they were in
attendance.
4. On occasions when Burroughs, Sr. spoke to em-
ployees, he told employees that he was not there to lis-
ten to what they had to say, but rather the employees
were to listen to his message. On one occasion, he told
an employee to ‘‘shut up’’ and abruptly ended the
meeting. When employee Armstrong attempted to speak
out, he again terminated the meeting. Thereafter super-
visors did not invite Armstrong to attend company cam-
paign speeches. When Armstrong and others questioned
why they were not invited to be present, Burroughs, Sr.
stated that they were not listening to him but rather,
they were attending a union meeting.
5. Although Armstrong let it be known that she had
something to say to other employees she was not in-
vited to hold her own meeting on company time.
Conclusions
I therefore conclude and find on the foregoing credited
evidence that during a series of 12 to 14 captive audience
556 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
speeches to employees by management at company-called
meetings on company time, either owner Burroughs Sr. his
supervisors, his designated employee speech agent, Willie
Ryland, and/or antiunion employee agents Mae Covington
and Katherine Palmer, who were granted permission by Bur-
roughs Sr. to meet with employees on company time, where
Supervisors Ella Cook and/or Betty Dilworth were some-
times present, told employees: that Respondent had the right,
the absolute right, and it might or will recognize or use that
right to shut down business completely if the union came in;
that if the employees did not stop messing with the union or-
ganizers he Respondent would shut the doors—close the
plant and convert it into a chicken coop and sell the chicken
manure to farmers; that Wal-Mart would pull its orders or
contract with Respondent, either because unionism would
force Respondent to increase its prices or because Wal-Mart
would not do business with a unionized company; that Re-
spondent would not then have a contract and will have to
close down and the employees will be without jobs; and that
Respondent had the money to be able to close down in the
event of unionization.
Near the end of the organizing campaign, Respondent
(Burroughs Sr.) and his designated spokesperson, Ryland,
started to slightly qualify the language of their ‘‘plant closing
statements and their interpretation of the Darlington case,’’
cited by them as authority for Respondent’s right to close the
plant, by saying, Respondent had the right to close down or
stay in business if the Union won the election; and that Re-
spondent Burroughs Sr. was not saying it would close down,
if the Union came in. It may be reasonably inferred from this
softer modification in language that at this later stage in the
union campaign Respondent had probably attempted to make
its message less threatening and legal, regarding its state-
ments to employees about plant closure. This however, does
not exonerate Respondent from the earlier, bolder and more
certain threats of plant closure and employee’s consequent
loss of jobs. In any event the subsequently modified state-
ment is equivocal and still designed to make employees ap-
prehensive about plant closure in the event of unionization,
and in the context in which it was uttered, I find it was
threatening as the earlier bolder and more certain unequivo-
cal statements by Respondent.
I. Respondent’s Offered Legal Justification for Telling
Employees About Its Right to Close Plant
At the close of the General Counsel’s case in chief, coun-
sel for Respondent moved to dismiss on the grounds that the
plant closing and loss of job statements made by manage-
ment were ‘‘explicably sanctioned as lawful by the U.S. Su-
preme in footnote 20 of Textile Workers Union v. Darlington
Mfg. Co., 380 U.S. at 274.
In support of its position that Respondent, as an employer,
has a right to close its business in the event of unionization,
Respondent cites footnote 20 on page 274 of the above-cited
Darlington decision, contending:
[T]he Court made it clear that employers are not pro-
hibited from ‘‘announcing a decision to close already
reached by the board of directors or other management
authority empowered to make such a decision.’’ Id. at
274 n. 20. The Court recognized ‘‘the possibility’’ that
its ‘‘holding may result in some deterrent effect on or-
ganizational activities independent of that arising from
the closing itself.’’
More fully quoted, however, is the fact that footnote 20
explains the Court’s reasoning as follows:
Nothing we have said in this opinion would justify an
employer’s interfering with employee organizational ac-
tivities by threatening to close his plant, as distin-
guished from announcing a decision to close already
reached by the board of directors or other management
authority empowered to make such a decision. We rec-
ognize that this safeguard does not wholly remove the
possibility that our holding may result in some deterrent
effect on organizational activities independent of that
arising from the closing itself. An employer may be en-
couraged to make a definitive decision to close on the
theory that its mere announcement before a representa-
tion election will discourage the employees from voting
for the union, and thus his decision may not have to
be implemented. Such a possibility is not likely to
occur, however, except in a marginal business; a solidly
successful employer is not apt to hazard the possibility
that the employees will call his bluff by voting to orga-
nize. We see no practical way of eliminating this pos-
sible consequence of our holding short of allowing the
Board to order an employer who chooses so to gamble
with his employees not to carry out his announced in-
tention to close. We do not consider the matter of suffi-
cient significance in the overall labor-management rela-
tions picture to require or justify a decision different
from the one we have made.
It is readily apparent that the above-quoted language of the
Court was not its holding in the decision. In fact the Court
did not render a definitive decision because it needed addi-
tional information to do so. That is why it remanded the case
to the court of appeals.
The above-quoted expressions of the Court were simply
made in passing, while considering the matter before it, and,
such concerns or explanations were not a necessary part of
its remand. Thus it is clear that language in footnote 20 is
obiter dicta and not a definitive decision on issues before the
Court.
However, further considering the quoted language of foot-
note 20 at page 274, it is particularly noted that the Court
made its position clear in the first sentence of the language
as follows:
Nothing we have said in this opinion would justify an
employer’s interfering with employee organizational ac-
tivities by threatening to close his plant, as distin-
guished from announcing a decision to close already
reached by the board of directors or other management
authority empowered to make such a decision. [Empha-
sis added.]
In the instant case the evidence substantiates that Bur-
roughs Sr. was empowered to make such a decision. How-
ever, the evidence clearly shows that Burroughs Sr. and other
supervisors or agents of his repeatedly threatened plant clo-
sure on numerous occasions during the organizing campaign.
At no time does the evidence show that Mrs. Burroughs Sr.
557FARRIS FASHIONS
or Burroughs Sr. who was the only one empowered to make
a definitive decision to close the plant, or, ever did in fact
make such a decision. On the contrary, Burroughs Sr., him-
self testified he did not ever tell the employees he was defi-
nitely going to close the plant if it became unionized.
As the court stated in Wiljef Transport v. NLRB, 946 F.2d
1308, 1313 (1991), an assessment must be made as to wheth-
er the statements by the employer was an accurate, factual,
and likely consequences of unionization, or statements de-
signed merely to coerce and deceive the employees; or, as
the court of appeals further stated:
If an employer has made a definitive decision to close
its plant, and the definitive nature of the ‘‘decision’’
can be demonstrated through objective evidence, it does
not matter that the decision is economically unsound or
represents free choice made by the employer.
In the instant case, Respondent did not establish by objec-
tive evidence an accurate and factual assessment, that union-
ization would likely or actually cause Respondent to increase
its prices for its product and thereby jeopardize its contract
with Wal-Mart; or that Wal-Mart would not in fact do busi-
ness with Respondent if it were unionized. No managerial
representative of Wal-Mart appeared and testified to such
fact. The character of Respondent’s evidence of plant closure
was subjective in that owner Burroughs Sr. testified he had
said and decided when he went into business that he would
close down if it ever became unionized.
Perhaps more significantly, Respondent has failed to dem-
onstrate by objective evidence that it had in fact made a de-
finitive decision to close its plant. It did not present any writ-
ten plan to liquidate its assets, or any documentary or other
objective evidence that it had contacted a real estate agent
or prospective buyers, contingent on unionization, in prepara-
tion for disposal of a business transaction of such magnitude.
At most, Respondent presented the testimony of a longtime
business acquaintance, a dealer in the purchase and sale of
plant machinery, to visit the plant and appraise some of its
equipment for the purpose of learning how much Respondent
would realize from the sale of some of its machinery. No
written evidence was produced at the trial to substantiate
such an appraisal was made or paid for, or precisely what
such a sale would realize.
Instead, in the absence of such evidence, the record is re-
plete with numerous subtle and blatant threats of plant clo-
sure, of Respondent’s right to close, and its financial ability
to afford plant closure, in the event of unionization. Such
threats were made during company-called meetings by Bur-
roughs Sr., himself, supervisors, designated spokesperson
Ryland, and by antiunion employees, with Burroughs Sr.’s
approval. Even if such threatening statements were not de-
signed to coerce employees, as I find they in fact were, they
fell far short of a free choice that Respondent had already
made, or an announced definitive decision to close its plant
in the event of unionization. Wiljef Transportation, supra.
Respondent emphatically argued that its speeches on its
right to close were made only in response to literature and
union spokespersons telling employees Respondent could not
close its plant; that it was illegal for Respondent to close or
to threaten to close its plant because the employees select a
union as their bargaining representative. I find that the Union
did so inform Respondent’s employees.
Respondent cites Textile Workers Union v. Darlington
Mfg. Co., 380 U.S. 263, 268, as authority for correctly in-
forming employees of its lawful right to close. In doing so,
Respondent relies on the language of the Court:
an employer has the absolute right to terminate his en-
tire business for any reason he pleases . . . including
‘‘anti-union motives.’’
In its argument, Respondent contends it was lawful for it
to debate the Union’s misrepresentation of the law to its em-
ployees, by extracting or highlighting accurate portions of
case law to give its employees the correct knowledge of Re-
spondent’s right to close its plant in the event of unioniza-
tion. In further support of its position, Respondent cites Na-
tional Micronetics, 277 NLRB 993 (1985), in which the
Board held that an employer’s distribution of highlighted
copies of a Board decision was neither unlawful nor objec-
tionable.
However, while I find that the Board in National
Micronetics, and the Court in Darlington, made the above-
cited statements attributed to them, and that the statements
were applicable to the facts before each tribunal, I also find
that the Court’s statements in Darlington are misapplied
here. Specifically, in Darlington, unlike here, after opposing
unionization in many forms including threatening to close its
plant in the event of unionization, the employer actually
closed its facility after the union won the election. Here, Re-
spondent threatened employees with plant closure in the
event of unionization but the Union lost the election by a
substantial margin, and Respondent did not close its plant
after the election. In fact, at the time of the trial, Respondent
was still operating its business and no objective evidence of
plant closure was presented by Respondent. Under these cir-
cumstances, I find that the language cited in Darlington and
the rationale urged by Respondent, are inapplicable to the
facts in the instant case.
Notwithstanding, whether or not the Union’s or the Re-
spondent’s stated positions of the law on whether or not
plant closure in the event of unionization is correct, the
Board has held that it no longer probes ‘‘into the truth or
falsity of the party’s campaign statements,’’ and will not set
elections aside on the basis of ‘‘misleading campaign state-
ments.’’ This includes misrepresentations of the law, as
might have been done by the Respondent and the Union
here. Midland National Life Insurance Co., 263 NLRB 127,
133 (1982); Tri-Cast, Inc., 274 NLRB 377, 378 (1985).
Respondent also argues that Respondent had a lawful right
to comment on the economic consequences of unionization,
and it contends that this is what Respondent did.
However, as the Court stated in NLRB v. Gissel Packing
Co., 395 U.S. 575 (1969), an employer ‘‘may predict the
precise effects he believes unionization will have on his
company, if the prediction is based on objective fact to con-
vey his belief as to demonstrably probable consequences be-
yond his control or to convey a management decision already
arrived at to close the plant in case of unionization.’’
However, as previously pointed out, the Respondent failed
to support his predictions of economic consequences with
objective fact to convey his belief as demonstrably probable
558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 I was persuaded by the demeanor of Shirley Davis that she was
testifying truthfully and since her testimony is uncontroverted I
credit her testimony.
consequences beyond his control. To hold otherwise would
permit any employer to make such predictions or threat of
plant closure on their subjective contentions, as Respondent
attempts to do here.
As properly pointed out by counsel for the General Coun-
sel, Respondent’s legal argument is not new or novel. Essen-
tially the same argument was advanced in Wiljef Transpor-
tation, 299 NLRB 710, 714 (1990), and it was found to be
without merit by the administrative law judge and Board ap-
proval, where the judge properly distinguished Wiljef from
Darlington as follows:
The factual situation in Darlington dealt with post-
election action taken because of unionization. It did not
involve the future, namely a prediction or ‘‘a manage-
ment decision already arrived at to close the plant in
case of unionization.’’ [Emphasis added.] Gissel at 618.
Regarding footnote 20 in Darlington, obviously state-
ments which have no actual bearing on the issues in-
volved in the case are obiter dictum. Also, while the
Court indicated in the note that certain actions are pos-
sible, it did not specifically indicate that such actions
necessarily would be lawful. Darlington is not on point.
After a Union has won the election, and the employer
then decides irrevocably to close a plant is one thing.
It is quite something else to decide to close before the
condition precedent occurs, namely the union winning
the election, and then attempt to preclude the condition
from occurring by using the decision to close as a club
against employees.
Assertedly, Respondent relies on selected portions of
the Court’s language in Darlington at footnote 20 and
on the language it quotes in Gissel at 618. Such as-
serted reliance is misplaced, however, to the extent that
it involves obiter dictum or language in Gissel which
is taken out of context.
Here, Burroughs Sr. did not close down any major portion
of its operation but continued to operate both facilities at
Brinkley and Hazen, having invested substantial sums of
money in state-of-the-art machinery in an effort to improve
efficiency of operations. Moreover, after espousing numerous
threats of plant closure prior to the election, since the Union
was defeated in the election, Respondent now admits it con-
templates no plans to close its plant. It is therefore clear that
Respondent utilized its numerous references to plant closure
as a preelection ‘‘club against employees,’’ as did the em-
ployer in Wiljef, supra.
I therefore find that Respondent’s numerous threats to
close its plant if the employees selected the Union as their
bargaining representative, interfered with, restrained, and co-
erced employees in the exercise of their Section 7 rights, in
violation of Section 8(a)(1) of the Act.
J. Solicitation Sheet for ‘‘Vote No’’ T-Shirts
About 2 weeks prior to the election, employee Shirley
Davis testified that Supervisor Louise Hill brought a sheet of
paper to her work area and told anyone who wanted a ‘‘Vote
No’’ T-shirt could sign the sheet to get one.
Davis further testified that she did not sign the sheet but
she saw other employees signing it, and the next day she saw
Supervisor Hill distributing the ‘‘Vote No’’ shirts to employ-
ees. She also heard Supervisor Hill tell the employees they
should wear the shirts on election day.
Louise Hill denied she circulated a signature sheet for No
Vote T-shirts, or that she distributed the shirts to employees
who signed the sheet.4 However, she said when Joyce Hollo-
way asked for T-shirts she told Holloway to see Joel Smith.
She said she told Donner she could not hand a shirt to her
but she could get one out of her bin. She acknowledged she
told both Donner and Holloway where to get the shirts in the
plant.
Conclusion
Supervisor Hill acknowledged that employee Teresa
Donner asked her for one of the T-shirts and she told Donner
to get one out of her bin. Hill denied she asked employees
if they wished a T-shirt but admitted she told them where
to go to get one. Her admission supports the evidence she
was involved with a poll of employee antiunion sentiments
because employees asked her about the shirts and she told
them where the shirts were available for employees who de-
sired to have one. The employees must have had information
that Hill knew how they could have obtained a shirt. Con-
sequently, I credit Davis’ testimony that Hill announced
where employees could obtain the shirts. I further find that
by directing employees to her supervisor’s bin, to the sign
up or to get a shirt, she and Joel Smith were antiunion em-
ployee agents of Respondent to distribute the T-shirts to em-
ployees who requested them, and that such conduct con-
stituted polling employees about their antiunion position or
sympathies for the Union, in violation of Section 8(a)(1) of
the Act.
K. The Layoff of Kay Vandergriff
Kay Vandergriff was employed by Respondent in 1987
and 1988 trimming shorts and doing collar work. She was
employed again August 30, 1989, doing sleeves, bagging,
trimming, and doing shorts. Both functions were rated and
paid production jobs. During her most recent employment
she closed collars with the use of a sewing machine, a pro-
duction rated job, sorted, and trimmed.
During the union campaign, Vandergriff signed a union
authorization card, attended union meetings, openly distrib-
uted prounion handbills among employees, wore a ‘‘Vote
Yes’’ union T-shirt on election day, and permitted her photo-
graph to appear on prounion leaflets. She testified Burroughs
Sr. passed by her when she was distributing prounion leaflets
and handbills to employees on the plants parking lot, which
she did on four or five occasions. She said Burroughs Sr. ob-
served her distributing union literature.
Vandergriff further testified that in November Supervisor
Betty Dilworth approached her at her work station and asked
her ‘‘if she was voting union, and she replied ‘yes.’’’
Dilworth denied she asked Vandergriff such a question but
I credit Vandergriff’s testimony over Dilworth’s denial be-
cause her account is consistent with the credited evidence of
record and I was persuaded by the demeanor of such witness,
that Vandergriff was telling the truth and Dilworth’s denial
was not true.
559FARRIS FASHIONS
When Vandergriff was laid off on Tuesday following the
Friday on which the election was held, she said Supervisor
Dilworth approached her and two other employees and in-
formed them that they were laid off until Brenda called them
back. Respondent retained in its employ two employees with
less seniority than Vandergriff.
Denise Armstrong
Employee Denise Armstrong has been in Respondent’s
employ since September 1989, and initially performed work
as a bagger 6 months and thereafter sewing buttons on shirts.
She remained in the latter job until January 28, 1991. During
the union campaign, Armstrong signed an authorization card
and wore a ‘‘Vote Yes’’ T-shirt on election day.
Armstrong testified that during a company-called cam-
paign meeting in late October, she attempted to speak out by
saying, ‘‘You say that everybody deserves a fair chance’’
when Burroughs Sr. interrupted her, stopped the meeting, and
told everybody to go back to work. When the Union learned
that Armstrong and two other employees were being ex-
cluded from some company-called meetings, Armstrong told
Supervisor Emma Cook that she wanted to see Burroughs Sr.
Thereafter, during the third week of November, she and em-
ployees Zelma Beasley and Mattie Hall were invited to the
office of Burroughs Sr. where the following conversation oc-
curred:
[W]e asked him why we were not included in the meet-
ings. . . . He said the meeting that he held, we would
not let him speak, and that he was on his time and we
should listen. He said the day that he had the debate,
the union people moved across the street and we fol-
lowed them. He said that he felt that we didn’t want
to hear what he had to say anyway.
Also, approximately 2 or 3 weeks before the union elec-
tion, the Union distributed artificial roses bearing a tag which
read: ‘‘Do you want a brand new day or the same old way?’’
Armstrong took six roses and placed them around her ma-
chine. After she had so arranged the roses, Burroughs Sr. ap-
proached her at her machine and asked her ‘‘what were the
roses for’’ stating at the same time ‘‘that roses . . . doesn’t
last long.’’
Armstrong testified she was informed of her layoff on
Monday, January 28, 1991. She described her notification as
follows:
[I]t was on a Monday. I was laid off before lunch. My
supervisor, Emma Cook, approached me at my machine
and said, ‘‘Denise, you was [sic] laid off for lack of
work.’’ She said, ‘‘you will be called back’’ and I
asked her . . . why I was laid off and she said that ‘‘I
was the last one that got hired, lack of seniority, that
I would be the first one to go back.’’
Armstrong further testified that employees hired 6 months
before she was laid off, were retained to sew buttons on
pockets.
Since Respondent contends neither Vandergriff nor Arm-
strong were laid off on December 18, 1990, and January 28,
1991, respectively, for union activity, but impliedly, for
cause, it is clear that the issue for resolution of the layoffs
calls for an analysis and evaluation under the Wright Line
doctrine. Wright Line, 251 NLRB 1083 (1980).
In Wright Line the Board held that in such 8(a)(3) cases,
where the Respondent offers evidence of cause for the dis-
charge, the General Counsel must first
make a prima facie showing sufficient to support the
inference that protected [concerted] conduct was a
‘‘motivating factor’’ in the employer’s decision. Once
this is established, the burden will shift to the employer
to demonstrate that the same action would have taken
place even in the absence of the [employees’] protected
conduct. [251 NLRB at 1089.]
Additionally, the Supreme Court in NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983), ‘‘viewed the
term ‘substantial or motivating factor’ as interchangeable
with the phrase ‘played a role.’’’ In establishing a prima
facie case, of course, the General Counsel must establish the
existence of protected activity, knowledge of that activity by
the employer, and union animus. Once the General Counsel
establishes a prima facie case of unlawful conduct, the em-
ployer has ‘‘an affirmative defense in which the employer
must demonstrate by a preponderance of the evidence that
the same action would have taken place even in the absence
of protected conduct.’’ Roure Bertrand Dupont, Inc., 271
NLRB 443 (1984). (Emphasis added.)
Consequently, the first question raised for consideration
under Wright Line in the instant case, is whether the General
Counsel has made a prima facie showing sufficient to sup-
port the inference that Kay Vandergriff’s and Denise Arm-
strong’s protected union activity was a motivating factor in
Respondent’s decision to lay them off on December 18,
1990, and January 28, 1991, respectively.
Vandergriff
In this regard it is particularly noted that Vandergriff has
worked for Respondent approximately 2 years without ever
having been given a warning about her work performance.
However, she openly supported the Union and owner Bur-
roughs Sr. passed her distributing union literature on the
plant’s parking lot. Certainly, other members of management
(supervisors) must have seen her distributing such literature.
In fact a picture of Vandergriff appeared on some of the
Union’s literature (leaflets) which management must have
seen since it admits it saw and read some union literature.
Vandergriff wore a union ‘‘Vote Yes’’ T-shirt on election
day. Certainly, members of management saw her on that day.
Moreover, the credited evidence shows that in November,
Supervisor Dilworth approached Vandergriff and asked her if
she was voting for the Union. Vandergriff told her, ‘‘Yes.’’
I therefore find on the foregoing credited evidence that
Vandergriff was an open supporter of the Union; that Re-
spondent’s management had knowledge of her support for
the Union; that Respondent’s union animus is manifested
throughout the campaign by its antiunion conduct and threat-
ening speeches; that the union election was held on Friday,
December 14, and Vandergriff was laid off 4 days later, on
Tuesday, December 18; and that based on such evidence, and
the union animus climate during the union campaign, I find
that the General Counsel has made a prima facie showing
sufficient to support the inference that Vandergriff’s pro-
560 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 I credit Kay Vandergriff’s testimony that Respondent had knowl-
edge of the fact that she was an open union supporter because the
uncontroverted documentary and circumstantial evidence shows that
Vandergriff signed a union card, distributed union handbills among
employees on the parking lot where owner Burroughs Sr. passed her
within visible range, some of the leaflets she distributed bore her
photograph, and because she wore a ‘‘Vote No’’ union T-shirt on
election day. Although owner Burroughs Sr. and Supervisors Betty
Dilworth and Ella Cook may have denied they knew Vandergriff
was a union supporter, I discredit their denials because they could
not have known Vandergriff was a union supporter under the above-
described circumstances, especially when Respondent was waging an
enthusiastic campaign against the Union and tried in several ways
to learn where each employee stood on the union issue. In this re-
gard, Supervisor Dilworth asked Vandergriff how she felt about the
Union—how she was going to vote. Although Dilworth denied she
asked Vandergriff such questions, I discredit her denial, and I credit
Vandergriff’s affirmative account because not only was I persuaded
by her demeanor that she was testifying truthfully, but her account
is consistent with her actions and all the credited evidence of record.
tected union activity was a motivating factor in Respondent’s
decision to lay her off on December 18, 1990.
The General Counsel having made the required prima
facie showing that Vandergriff’s union activity was a moti-
vating factor in Respondent’s decision to lay her off, the bur-
den now shifts to Respondent to demonstrate that Vander-
griff would have been laid off December 18 even in the ab-
sence of her protected conduct.
Respondent’s Evidence—Vandergriff
At the hearing Supervisor Ella Cook testified that the final
trim workers completed work on an order of boys’ shorts in
December. Vandergriff, who worked on boys’ shorts, was
then transferred to bagging shirts by size where she made nu-
merous errors. Cook said she then assigned Vandergriff to
cutting parts of shorts but some skipped stitches appeared on
shorts which were sewer errors and not Vandergriff’s. Cook
nevertheless said it was a part of Vandergriff’s job to watch
for skipped stitching, and she admitted she did not warn or
question Vandergriff about her failure to reject parts with
skipped stitches. She also acknowledged Vandergriff was
told she would be called back when she was laid off but has
not been called back.
Supervisor Ella Cook testified that Vandergriff’s failure to
detect skipped stitching might have been due to the fact that
she continued to sit down on a standup job that she repeat-
edly told Vandergriff to stand up to do the job but she would
nevertheless find Vandergriff sitting down cutting apart
shorts on her lap.
Cook further testified that Respondent does not give writ-
ten warnings to employees and she contended she did not
know whether Vandergriff was or was not a union supporter.
When Burroughs Sr. received the complaint from the Board
he inquired of her about Vandergriff whom he did not know.
Cook said she identified Vandergriff as the employee with
‘‘personal odor’’ about whom other employees had com-
plained continually. The general evidence clearly indicates
that Cook knew Vandergriff was engaged in union activity.
Vandergriff acknowledged that no supervisor had ever said
anything to her which indicated she was laid off because of
union activity. It is true the evidence shows that the employ-
ees laid off were a mix of employees who engaged in union
activity and employees who were not shown to have engaged
in union activity.5
Conclusions
However, it is especially noted that all of the transfers to
other jobs of Vandergriff, took place within a matter of about
2 weeks before her layoff. Vandergriff’s job on boys’ shorts
ended in December 1990, when she was transferred to bag-
ging, and thereafter to cutting shorts parts. The union elec-
tion was held on December 14, and 4 days later, December
18, Supervisor Ella Cook, one of Respondent’s antiunion su-
pervisors for Respondent’s antiunion campaign, who was
fully aware of Vandergriff’s union support and activity, laid
off Vandergriff.
Although Supervisor Cook testified at the hearing that she
identified Vandergriff to Burroughs Sr. as the employee with
‘‘personal odor’’ about which other employees continually
complained, she did not testify that ‘‘personal odor’’ was a
consideration in her (Respondent’s) decision to reemploy
Vandergriff in August 1989, or in Respondent’s decision to
lay her off December 18, 1990. Cook testified that she sim-
ply told Vandergriff when I find something for you to do,
I will call you.
Consequently, I find on the foregoing evidence that ‘‘per-
sonal odor’’ was not a factor considered by Respondent in
laying off Vandergriff, but was only mentioned by Respond-
ent at the trial for the first time. The record also fails to
show that Cook or any other person from management ever
spoke to Vandergriff about ‘‘personal odor.’’
Additionally, both Supervisors Cook and Dilworth testified
Vandergriff was having problems performing bagging and
cutting shorts parts. Although Vandergriff had previously
performed both jobs, Cook and Dilworth admitted they did
not give Vandergriff any warnings about her performance.
Nevertheless Dilworth joined Cook in the decision to lay off
Vandergriff.
I find it interesting and incredible that although Vander-
griff has worked for Respondent for a total of 2 years with-
out ever receiving a warning from Respondent about work
performance or ‘‘personal odor,’’ suddenly, within a period
of the last 2 weeks of work, she became so incompetent to
perform other jobs including jobs she had previously per-
formed efficiently. I do not consider it a coincidence that the
grave fault with Vandergriff’s work performance all occurred
within 14 working days before her layoff, and only 4 days
after the union election.
Under the above circumstances, I find that the Respondent
has failed to demonstrate by a preponderance of the evi-
dence, that Kay Vandergriff would have been laid off even
in the absence of her protected union activity. Wright Line,
supra. Consequently, I find on the foregoing evidence that
Vandergriff’s protected union activity was a motivating fac-
tor in Respondent’s decision to lay her off December 18, and
was therefore discriminatory and violative of Section 8(a)(1)
and (3) of the Act.
Respondent’s Evidence—Armstrong
At the hearing, Respondent (Supervisor Emma Cook) testi-
fied that Armstrong was selected for layoff because of low
production but Armstrong testified without contradiction, that
her production on the job of sewing buttons on fronts was
561FARRIS FASHIONS
6 I credit the testimony of employee Denise Armstrong that Bur-
roughs Sr. knew she was for the Union because it is essentially
uncontroverted, and the evidence is otherwise clear that Respondent
(Burroughs Sr.) knew or strongly suspected Armstrong was a union
advocate, when he interrupted her question and terminated his com-
pany-called meeting; and when he met privately with Armstrong,
Beasley, and Hall about excluding them from other company-called
meetings. I also credit Armstrong’s account in this regard because
I was persuaded by her demeanor that she was testifying truthfully.
I was persuaded by the demeanor and the antiunion conduct of Su-
pervisors Dilworth and Cook, that they were not testifying truthfully,
and were exaggerating unfavorably about Armstrong’s work per-
formance. I discredit Burroughs Sr.’s denial of the remark about the
roses.
greater than the production of employees Zelma Beasley and
Davonna Waggle. In this regard, Respondent’s work records
(G.C. Exhs. 200 and 201) indicates Davonna Beasley on the
job of sewing buttons on pants and the production of Arm-
strong on the job of sewing fronts. Zelma Beasley and
Davonna are not one in the same person. Armstrong ac-
knowledged that Hall was a higher producer than she.
Burroughs Sr. denied he ever saw roses at Armstrong’s
machine or that he made such the statement that roses does
not last long. He also said he did not see Armstrong wearing
a union T-shirt on election day.6
Several union supporters like Doris Grayson admitted that
several union supporters were not laid off while some non-
union supporters were laid off.
Conclusions
I conclude and find on the foregoing credited evidence that
Denise Armstrong was an open union supporter and advo-
cate; and that Respondent (Emma Cook and Burroughs Sr.)
knew that Denise Armstrong was a strong advocate for the
Union. Even when Burroughs approached Armstrong’s ma-
chine and questioned her about the union roses around her
machine, he told her ‘‘roses don’t last long.’’ In the context
of Respondent’s intense union animus campaign on company
time, it may be reasonably inferred from the latter remark
that ‘‘roses don’t last long,’’ Burroughs Sr. meant jobs or
strong union leaders or supporters do not last long. This is
a reasonable inference because it is assumed that Armstrong
and every adult knows that roses do not last long. The Union
won the election on December 14, 1990, and although other
union and nonunion supporters were laid off, Respondent
(Cook) made sure union advocate Armstrong was included in
the layoff on January 28, 1991.
Consequently, I find that the General Counsel has made a
prima facie showing sufficient to support the inference that
Denise Armstrong’s union activity was a motivating factor in
Respondent’s decision to lay her off on January 28, 1991.
The General Counsel having established such a prima
facie showing under Wright Line, the burden now shifts to
Respondent to demonstrate that the same action would have
been taken against Denise Armstrong even in the absence of
her protected conduct.
The evidence clearly shows that Denise Armstrong was a
strong advocate for the Union, of which fact Respondent was
well aware, and that she had never been warned or cautioned
about her work performance. I find that Respondent’s con-
tention that Armstrong was laid off for lack of work, when
other sewing work which Armstrong could and had pre-
viously performed was available, that Respondent has failed
to demonstrate by a preponderance of the evidence that her
layoff would have occurred even absent her union activity.
Wright Line.
Under the above circumstances, I further find that Arm-
strong’s support for the Union, of which fact Respondent
(Burroughs Sr. and Cook) was aware, was a motivating fac-
tor in Respondent’s decision to lay off Denise Armstrong on
January 28, 1991; and that its decision to lay her off was
therefore discriminatory, and in violation of Section 8(a)(1)
and (3) of the Act.
L. Bargaining Order
The General Counsel argues that under the circumstances
in this case a bargaining order should issue requiring Re-
spondent to recognize and bargain with the Union. In support
of his position he cites New Life Bakery, 301 NLRB 421
(1991), where the administrative law judge explained the
Gissel requirements for a bargaining order as follows:
In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), the
leading case on remedial bargaining orders, the United States
Supreme Court held:
(1) Even in the absence of a demand for recognition, a
bargaining order may issue if this is the only available effec-
tive remedy for unfair labor practices.
(2) Bargaining orders are clearly warranted in exceptional
cases marked by outrageous and pervasive unfair labor prac-
tices.
(3) Bargaining orders may be entered to remedy lesser un-
fair labor practices that nonetheless tend to undermine major-
ity strength and impede the election process. If a union has
achieved majority status and the possibility of erasing the ef-
fects of the unlawful conduct and of ensuring a fair election
through traditional remedies is ‘‘slight,’’ a bargaining order
may issue.
(4) Minor or less extensive unfair labor practices that have
only a minimal effect on election machinery will not support
a bargaining order.
As a precondition to a bargaining order, the Board cur-
rently requires a showing that the union achieved majority
status in an appropriate bargaining unit at some relevant
time. Gourmet Foods, 270 NLRB 578 (1984).
Authenticity of Authorization Cards
Since the Respondent’s counsel interrogated many wit-
nesses about the purpose for which they signed a union card,
the General Counsel correctly points out that the cards uti-
lized by the Union in the instant case are single-purpose
cards, the significance of which is explained by the adminis-
trative law judge in Bi-Lo, 303 NLRB 749, 769 (1991), as
follows:
In order to qualify for a bargaining order under Gissel,
the General Counsel must establish that ‘‘at one point’’
(395 U.S. at 614) the Union had acquired a majority of
valid signed authorization cards in the unit found ap-
propriate.
The cards used in this campaign were themselves in-
vulnerable to direct attack. They were headed, in cap-
italized letters, ‘‘AUTHORIZATION FOR REP-
RESENTATION.’’ The printed portion that followed
562 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was worded, ‘‘I hereby authorize the United Food and
Commercial Workers Local 27, AFL–CIO–CLC, to rep-
resent me for the purpose of collective bargaining.
The Supreme Court further stated in Gissel, supra at 606–
607:
[We] think it sufficient to point out that employees
should be bound by the clear language of what they
sign unless that language is deliberately and clearly
canceled by a union adherent with words calculated to
direct the signer to disregard and forget the language
above his signature. There is nothing inconsistent in
handing an employee a card that says the signer author-
izes the union to represent him and then telling him that
the card will probably be used first to get an election.
The design of the union authorization cards used for solici-
tation by the Union in the instant case reads as follows:
AUTHORIZATION FOR REPRESENTATION
I am an employee of llllllllllllll
and I hereby designate the Amalgamated Clothing and
Textile Union (‘‘ACTWU’’) as my collective-bargain-
ing representative.
Date lllll Employee Signature lllll
A dispute arose between the parties over the authenticity
of numerous signed cards. However, the following cards and
exemplars identified as General Counsel’s Exhibits 17(a)
through (d) and General Counsel’s Exhibits 17 through 38,
and 86 through 182 were submitted to Robert Muehlberger,
assistant director and a questioned document examiner of the
Memphis Office of the Postal Inspection Service. All the
above cards were received in evidence without objection.
Additionally, the cards of the following named employees
and their solicitor were authenticated through credited wit-
nesses without objection as follows:
Laverne Palmer (Laverne Palmer)
Ronna Jones (Angela Fay Clark)
Eulanda Broadway (Lorene Watkins)
Magnolia Stigall (Deborah C. Dukes)
Hester Griffin (Hester Griffin)
The record shows that counsel for the General Counsel of-
fered Ronna Jones’ card for admission in evidence without
objection, but the record does not indicate it was received.
Consequently, counsel for the General Counsel’s unopposed
motion for its admission is hereby granted, and Ronna Jones’
authorization card is received in evidence.
The record shows that Angela Fay Clark neglected to
complete the signature line on her card. However, she com-
pleted other parts of the card in her own handwriting and
credibly testified that it was her intention to sign the card but
she inadvertently neglected to do so. Clark testified that she
read the card before she filled it out. Since I was persuaded
by the partially completed card as well as the demeanor of
Clark that she was testifying truthfully, that she intended to
sign the card but inadvertently neglected to do so, I credit
her undisputed testimony and her card is admitted in evi-
dence. Accurate Dye & Mfg. Corp., 242 NLRB 280, 284
(1979); consequently, Clark’s card will be counted towards
a majority. I. Taitel & Sons, 119 NLRB 910, 912 (1957).
Lorene Watkins testified without contradiction that
Eulanda Broadway signed her card on October 19, 1990, and
the actual date appearing on her card, ‘‘11–19–90’’ is in
error. Since the credited evidence clearly indicates without
controversy, that this card was submitted during the current
organizing campaign and the witness has credibly testified to
the inadvertent error of the correct date, this card is therefore
considered dated 10–19–90, found authentic, and is received
in evidence.
Deborah Dukes’ testimony is uncontroverted that Magno-
lia Stigall signed her card on October 18, 1990. No evidence
was offered to the contrary, and since I was persuaded by
the demeanor of Dukes that she was testifying truthfully, I
credit her testimony, that Dukes’ card was signed 10–18–90,
that it is authentic, and therefore, it is admitted in evidence.
Dorean Griffin, a volunteer union organizer testified that
between October 18 and 21, she and co-organizer Peter
Goldberger visited the home and solicited the signature of
Hester Green. Although Green’s card is not initialed, Griffin
testified she presented Green the authorization card which
she read with them; that Green completed and signed the
card in their presence, and returned it to her. Since Griffin’s
testimony is not controverted and I was persuaded by her de-
meanor that she was testifying truthfully, I credit her ac-
count, find Green’s card authentic, and admitted it in evi-
dence.
Zelma Beasley’s card is dated ‘‘19–90.’’ However, union
organizer Marc Panepinto testified that he visited Beasley at
her home on October 19, 1990; that he presented the card
to Beasley and he observed her read it, complete the infor-
mation on it, sign it, and returned it to him. When asked why
did she date it ‘‘19–90’’ Panepinto said he believed Beasley
meant ‘‘October 19, 1990.’’
Since Beasley’s card is otherwise completed and signed in
her undisputed handwriting, the union organizing campaign
commenced on October 18, 1990, and continued through the
first or second week in November, and Beasley did not ap-
pear and testify that she did not sign her card October 19,
1990, I credit Panepinto’s testimony not only because I was
persuaded by his demeanor he was testifying truthfully, but
also because his explanation is reasonable under the cir-
cumstances and consistent with the documentary and other
evidence of the organizing campaign. I find Beasley’s card
valid and it is admitted in evidence.
I also find Dolores Amerine’s card valid because I credit
Panepinto’s uncontradicted account and all other evidence or
record supports the validity of Amerine’s card.
I find Vernita Jo Walker’s card valid because I credit card
solicitor Jearline Haskins’ uncontradicted testimony, sup-
ported by all other evidence of record, that Walker’s card is
valid and therefore admitted in evidence.
I find Sarah Minor’s card valid because I credit Veronica
Beavin’s uncontradicted testimony that Minor signed her
card on October 29, 1990, and the evidence of record sup-
ports this conclusion.
I find Vera Mae Grayson’s card valid because I credit her
uncontradicted account that she signed her card October
1990, and the evidence of record supports her testimony be-
cause the organizing campaign was in progress between Oc-
563FARRIS FASHIONS
tober 18 and 31, even though the date in October is not indi-
cated.
I find Lisa Curlett’s card valid because I credit Bobby Jo
Carr’s uncontradicted testimony that Curlett signed her card
on October 19, 1990, and the evidence of record supports
Carr’s account.
I find Linda Wooten’s card valid because I credit her
uncontradicted testimony that she signed her card on October
20, 1990, the evidence of record supports her account, and
no evidence was introduced by Respondent to refute the va-
lidity of the authorization card of either Beasley, Amerine,
Walker, Minor, Grayson, Curlett, or Wooten. Accurate Dye
& Mfg. Corp., supra; I. Taitel & Sons, supra.
As of November 3, the names of the employees employed
in the appropriate unit appear in Attachment A of General
Counsel’s brief, which is also attached to this decision, and
supported by the evidence of record, except for the following
names which are in dispute:
Inclusion or Exclusion
April Burroughs Doris Buck
Ann Burroughs Dorothy Holmes
Angie Good Dierk Nash
Attachment A shows that as of November 3, a total of 163
unit employees had signed cards designating the Union as
their bargaining representative (Attachment A). The number
of employees employed in the unit as of November 3, not
including the names in dispute, totals 307. Thus, the number
of cards required for majority status would total 154.
Conclusions
Pursuant to the credited evidence and the above-cited legal
authorities, I find no genuine issues arising from the use of
single-purpose cards in the instant proceeding. The evidence
failed to establish the invalidity of any authorization card as
a result of modification in language by the signer, or mis-
representation of the purpose by a union solicitor. The sub-
ject and other language on the card appear to be clear and
unambiguous, and no witnesses’ signature who testified indi-
cated they had any problem understanding the purpose of the
card or with their intent to sign it.
Appropriate Unit—Inclusion–Exclusion
Counsel for the General Counsel argues that the employ-
ees names in the unit dispute: April Burroughs, Ann Bur-
roughs, Doris Buck, Angie Good, and Dierk Nash, whose in-
clusion in the unit are in dispute, should not be included in
the unit because the evidence has established they should be
excluded.
In this regard, Farris Burroughs Jr., son of Farris Bur-
roughs Sr. an engineer and part of management, testified that
April and Ann Burroughs, Doris Buck, and Angie Good were
all office clerical employees at the time of the eligibility cut-
off date. They performed their duties primarily in offices lo-
cated in the building in Hazen, Arkansas. Consequently, they
were physically separated from the production area and pro-
duction employees at the Brinkley facility, Brinkley, Arkan-
sas. The evidence fails to show that either of these employ-
ees had sufficient contact with the production employees at
Brinkley who were unquestionably included in the unit.
Under the foregoing uncontroverted circumstances, I find
that none of the above-named employees in dispute should
be included in the appropriate unit, and they are hereby
found not included in the appropriate unit.
Additionally, the uncontroverted evidence of record shows
that Dierk Nash was a casual employee who performed driv-
ing and loading duties on an on-call basis. The payroll reg-
isters of Respondent show that between April 1 and October
1, 1990, Nash worked only 15 hours in July, 31.87 hours in
August, and 26.25 hours another week in August. He was a
part-time worker who worked only 3 weeks during the 9-
month period.
I therefore find on the foregoing credited evidence that
Dierk Nash should, and he is, not included in the bargaining
unit. Notwithstanding the exclusion of the aforenamed five
employees, the evidence has already established that the
Union had a clear majority of validly signed authorization
cards on November 3 and 7, 1990.
The Union, having made a showing of such a majority
only a few weeks before the election on December 14, the
ultimate question presented for determination, is whether a
bargaining order is appropriate in light of the unfair labor
practices committed by the Respondent and the loss of the
election by the Union.
The subordinate question presented for determination is
whether the established unfair labor practices committed by
the Respondent during the organizing campaign of its em-
ployees, were of such consequential magnitude as to have
interfered with the election processes by dissipating the
Union’s majority status and precluding the holding of fair
election.
The Supreme Court clearly stated in Gissel, 395 U.S. 575,
that a remedial bargaining order is clearly warranted ‘‘in ex-
ceptional cases marked by outrageous and pervasive unfair
labor practices’’; when ‘‘lesser unfair labor practices none-
theless tend to undermine majority strength and impede the
election process’’; or ‘‘if a union has achieved majority sta-
tus and the possibility of erasing the effects of the unlawful
conduct and of insuring a fair election through traditional
remedies is ‘slight,’’’ a bargaining order may issue. More-
over, the Board currently requires as a condition precedent
to a bargaining order, a showing that the Union achieved ma-
jority status in an appropriate bargaining unit at some rel-
evant time. Gourmet Foods, 270 NLRB 578 (1984).
Applying these authorities to the facts in the instant case,
it is first noted that the Union made a majority showing on
November 3 and 7, 1990, when a majority of the Respond-
ent’s employee work force constituted 158 and the Union
had 163 signed cards 5 weeks before the Union’s election.
The duration of the organizing campaign was 8 weeks. Dur-
ing that brief period, Respondent held approximately 14
antiunion meetings with employees on company time, at
which times it repeatedly threatened employees with plant
closure if they selected the Union as their bargaining rep-
resentative; threatened employees on two occasions with loss
of jobs; coercively interrogated employees about their union
activities or sympathies on two or three occasions; polled
employees about their antiunion sentiments by offering em-
ployees who so desired, ‘‘Vote No’’ T-shirts to wear on
election day; and after the election, discriminatorily laid off
the two most known union advocates and supporters, all of
which unlawful conduct I find contributed to the Union los-
564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
ing the election by a tally of 62 votes for and 202 votes
against unionization.
I therefore further conclude and find that in approximately
14 company-called meetings during which Respondent co-
erced and restrained employees in the exercise of their pro-
tected Section 7 rights by threatening them with plant clo-
sure—emphasizing and reemphasizing its right and financial
ability to close its plant in the event of unionization, interro-
gating employees on two or three occasions about their union
activities and sympathies, polling employees about their
antiunion sentiments, and discriminatorily laying off one of
the most well known and outspoken union advocate and sup-
porter only 4 days after the union election, and laying off an-
other such union supporter 5 weeks later, all constituted ex-
tensive and pervasive unlawful conduct during the Union’s
organizing campaign. However, if such unlawful conduct by
the Respondent is not in fact deemed extensive and perva-
sive, I further find that Respondent’s unlawful conduct was
of such a consequential magnitude as to have interfered with
the election processes, dissipating the Union’s majority
strength and precluding the holding of a fair election. In any
event, since the Union made a majority showing at a relevant
time (5 weeks before the election), I find that the unlawful
unfair labor practices by the Respondent nonetheless tended
to undermine the Union’s majority strength and impeded the
election process. Moreover, since the Union made its major-
ity showing during a relevant time (5 weeks before the elec-
tion), I further find that erasing the effects of Respondent’s
unlawful conduct has been rendered impossible, and ensuring
a fair election through traditional remedies ‘‘slight,’’ a bar-
gaining order in this case is clearly warranted. Gissel, supra;
Bi-Lo, supra.
Accordingly, I recommend that the election in Case 26–
RC–7323 be set aside and that the remedial bargaining order
requested by the General Counsel and the Charging Party be
granted. Gissel, supra; Bi-Lo, supra. Auto Stores, 298 NLRB
875 (1990).
The Board has held that an employer’s obligation under a
bargaining order remedy ‘‘should commence as of the time
the employer embarked on a clear course of unlawful con-
duct or has engaged in sufficient unfair labor practices to un-
dermine the Union’s majority status.’’ Trading Port, 219
NLRB 298, 310 (1975).
Respondent made its first captive audience speech to em-
ployees on October 22, at which time owner Burroughs Sr.
threatened to close the plant and convert it into a chicken
coop. However, other such speeches were made in late Octo-
ber and early November, along with other unlawful interro-
gation of employees. The Union obtained majority status by
cards on November 3 and 7. Hence, I conclude and find that
by November 10, a course of unlawful conduct by Respond-
ent was clearly evident. Consequently, I further find that Re-
spondent’s bargaining obligation with the Union should com-
mence on November 10, 1990. Trading Port, supra.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations described
in section I, above, have a close, intimate, and substantial re-
lationship to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practice conduct and numerous violations of Sec-
tion 8(a)(1) and (3) of the Act, I will recommend that it be
ordered to cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that Respondent interfered with, restrained,
and coerced its employees in violation of Section 8(a)(1) of
the Act by threatening employees on numerous occasions
with plant closure if they selected the Union as their bargain-
ing representative; threatening employees with loss of jobs
on two occasions, if they select the Union as their bargaining
representative; interrogating employees on three occasions
about their union activities and sympathies; polling employ-
ees concerning their antiunion sentiments by asking them to
sign a sheet or directing them to a particular person or place
where they could obtain an antiunion T-shirt, if they so de-
sired, to wear on election day; discriminatorily laying off two
employees because they advocated unionism and supported
the union effort, in violation of Section 8(a)(1) and (3) of the
Act, the recommended Order will provide that Respondent
cease and desist from engaging from such unlawful conduct,
and that it make laid-off employees whole for any loss of
earnings within the meaning of and in accord with the
Board’s decision in F. W. Woolworth Co., 90 NLRB 289
(1950), and Florida Steel Corp., 231 NLRB 651 (1977),7 ex-
cept as specifically modified by the wording of such rec-
ommended Order.
Because of the character of the unfair labor practices
found, the recommended Order will provide that Respondent
cease and desist from or in any other manner interfere with,
restrain, or coerce employees in the exercise of their rights
guaranteed by Section 7 of the Act. NLRB v. Entwistle Mfg.
Co., 120 F.2d 532, 536 (4th Cir. 1941).
On the basis of the above findings of fact and the entire
record in this case, I make the following
CONCLUSIONS OF LAW
1. By threatening employees on numerous occasions with
plant closure in the event of unionization, Respondent has
violated on numerous occasions Section 8(a)(1) of the Act.
2. By threatening employees on two occasions with loss
of jobs on in the event of unionization, Respondent has vio-
lated Section 8(a)(1) of the Act on two occasions.
3. By interrogating employees on three occasions about
their union activities and sympathies, Respondent has vio-
lated Section 8(a)(1) of the Act.
4. By polling employees concerning their antiunion senti-
ments by asking them to sign a sheet or directing them to
a place where they could secure antiunion shirts to wear on
election day, if they so desired, Respondent has violated Sec-
tion 8(a)(1) of the Act.
5. By discriminatorily laying off employees Kay Vander-
griff and Denise Armstrong because they supported the
Union, Respondent has violated Section 8(a)(1) and (3) of
the Act.
565FARRIS FASHIONS
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
9 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
6. Because the above-described violations of the Act by
the Respondent are so pervasive, serious, and substantial in
character that the possibility of erasing the effects of these
unfair labor practices, and other acts, undermining the
Union’s majority strength and of conducting a fair rerun
election by use of traditional remedies is slight, and the em-
ployees’ sentiments regarding representation having been ex-
pressed through authorization cards, would, on balance, be
protected better by issuance of a bargaining order than by
traditional remedies alone, the issuance of a bargaining order
is recommended in Case 26–RC–7323 on behalf of employ-
ees in the unit appropriate for purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:
All production and maintenance employees, warehouse
employees, shipping employees and quality control em-
ployees employed by Respondent at its Brinkley and
Hazen, Arkansas facilities, but excluding all office cler-
ical employees, salespersons, plant clericals, profes-
sional employees, technical employees, guards and su-
pervisors as defined in the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, Farris Fashions, Inc., Brinkley and
Hazen, Arkansas, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening employees with plant closure on numerous
occasions in company-called meetings if they select the
Union as their bargaining representative.
(b) Threatening employees with loss of jobs if the employ-
ees select the Union as their bargaining representative.
(c) Interrogating employees about their union activities and
sympathies.
(d) Polling employees concerning their antiunion senti-
ments by having them sign a sheet or collect at a designated
place, antiunion shirts if they so desire, to be worn during
the union election.
(e) Discouraging membership in or activities on behalf of
Amalgamated Clothing and Textile Workers Union, South-
west Regional Joint Board, or any other labor organization,
by laying off or otherwise discriminating against employees
in any manner in respect to their tenure of employment or
any term or condition of employment, in violation of Section
8(a)(1) and (3) of the Act.
(f) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of their rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to recall to work Kay Vandergriff and Denise
Armstrong to their former positions or, if such positions no
longer exist or not available, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights pre-
viously enjoyed, and make them whole for any loss of pay
suffered by reason of the discrimination against them, with
interest in the manner described in the remedy section of this
decision.
(b) On request, bargain collectively with Amalgamated
Clothing and Textile Workers Union, Southwest Regional
Joint Board commencing as of November 10, 1990, as the
exclusive collective-bargaining representative of the employ-
ees in the appropriate unit described with respect to rates of
pay, wages, hours of work, and other terms and conditions
of employment:
All production and maintenance employees, warehouse
employees, shipping employees and quality control em-
ployees employed by Respondent at its Brinkley and
Hazen, Arkansas facilities, but excluding all office cler-
ical employees, salespersons, plant clericals, profes-
sional employees, technical employees, guards and su-
pervisors as defined in the Act.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at Respondent’s Brinkley and Hazen, Arkansas fa-
cilities copies of the attached notice marked ‘‘Appendix.’’9
Copies of the notice, on forms provided by the Regional Di-
rector for Region 26, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately on receipt and maintained for 60 consecutive
days 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.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.