Glenn Berry Manufacturers, Inc.

National Labor Relations Board - Board Decisions

Feb 14, 1968

169 N.L.R.B. 799 (N.L.R.B. 1968)

GLENN BERRY MANUFACTURER'S INC. 799
Glenn Berry Manufacturers , Inc. and Dorothy
Green, an Individual . Case 16-CA-2924
February 14, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
Local 427, for the purpose of voting on the ratification of
a proposed contract with the Respondent; and (b)
discharged employee Dorothy Green because she was
active in circulating a petition to remove an International
representative of the Union from his job of servicing
Local 427. Respondent's answer denied the commission
of any unfair labor practices.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by the General Counsel and the
Respondent, I make the following:
On October 24, 1967, Trial Examiner Milton
Janus issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trail Examiner's Decision.
The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor prac-
tices and recommended that such allegations be
dismissed. Thereafter, the Respondent filed excep-
tions to the Trial Examiner's Decision and a sup-
porting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Glenn Berry Manufac-
turers, Inc., Commerce, Oklahoma, its officers,
agents, successors, and assigns, shall take the ac-
tion set forth in the Trial Examiner's Recom-
mended Order.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act
not specifically found herein.
TRIAL EXAMINER 'S DECISION
MILTON JANUS, Trial Examiner: This case was heard
at Miami, Oklahoma, on June 1 and 2, 1967, upon a com-
plaint issued April 18, 1967, pursuant to a charge filed
March 14, 1967, by Dorothy Green. The issues
presented are whether the Respondent (a) engaged in un-
lawful interference, restraint, or coercion by urging em-
ployees to attend a meeting called by their bargaining
representative, United Garment Workers of America,
FINDINGS OF FACT
1. RESPONDENT'S OPERATIONS
Respondent is a Kansas corporation, maintaining its
principal business office and a manufacturing plant at
Commerce, Oklahoma, where it is engaged in producing
men's pants, primarily for the Armed Forces. During the
past year, it purchased goods for this plant which were
valued in excess of $100,000, of which, goods valued in
excess of $50,000 were delivered to the plant from points
outside the State of Oklahoma. The Company admits,
and I find, that it is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Company admits, and I find, that United Garment
Workers of America, Local 427, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and Summary of Events
The Employer has two plants, at Commerce,
Oklahoma, and Oswego, Kansas, about 20 miles apart,
where it cuts and sews pants material for the military. The
various sewing operations are done by women who work
on a piece-rate incentive basis, determined by time and
motion studies which are conducted jointly by the Com-
pany and the bargaining representative at both plants,
United Garment Workers of America. About 300 women
are employed at Commerce and about 100 at Oswego.
There are two principal product lines, one, a sateen
known as OG 107, and the other a poplin material.
Ninety percent of the combined production of the two
plants is on the OG 107 line. The poplin line is a fairly
new operation and comprises about 25 percent of the per-
sonnel and 15 percent of the production at the Commerce
plant.
The allegations of the complaint involve only events at
Commerce, occurring during a single week in February
1967.
The employees at both plants are represented by
separate locals of the Union, but have been serviced by
the same International representative, Earl Carroll. In
January 1967, the existing bargaining agreements were
reopened by mutual consent in order to negotiate changes
made necessary by the new minimum hourly rates im-
posed by the Federal Wage-Hour Law as of February 1.
Bargaining committees for the two locals, with the
assistance of Carroll, engaged in joint negotiations with
company officials. A tentative agreement was reached
and was submitted to the employees for ratification some-
169 NLRB No. 121
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time in January. The employees at both plants rejected
the proposed agreement and the parties then resumed
bargaining. A second proposal was arrived at, was again
submitted to the membership at the two plants, and this
time was ratified. Local; 427, at the Commerce plant, did
so at a membership meeting on the evening of February
8, 1967, and the new contract became effective February
17.
Shortly before the close of the workday on February 8,
the president of the Company, Francis Heydt, called the
employees on the poplin line together and, it is alleged in
the complaint, urged them to attend the union meeting
that evening and vote for ratification of the agreement.
About the same time, Supervisor Louise Yankowski is al-
leged to have urged an unkonown number of employees
to attend the same meeting.
During the 2-to 3-week period preceding the ratifica-
tion on February 8, a petition was circulated among the
Commerce employees asking that Carroll be replaced by
another union representative. One of the three employees
who was active in circulating the petition was the Charg-
ing Party, Dorothy Green, who was discharged on
February 13. The General Counsel argues that she was
discharged because of her engagement in the concerted,
protected activity of circulating the petition, while the
Company contends that she was, in fact, discharged for
excessive talking during working time which caused a
loss of production.
B. Urging Employees To Attend a Union Meeting
Employee Ann Mills, called by the General Counsel,
testified that Supervisor Yankowski told her the after-
noon of February 8 to be sure to go to the union meeting
that evening, but did not tell her how to vote on the
question of ratification of the contract.' Yankowski's
testimony is to the same effect.
Heydt testified that he spoke to the employees of the
poplin line for a few minutes at the end of the workday.
He said that his purpose in doing so was to let them know
that their piece-rate problems had been considered in the
negotiations over the new contract, that there hadn't been
time to fix their new rates but that the operations would
be retimed as soon as possible and the new rates would be
made retroactive to February 1. He admitted that he had
asked them to attend the union meeting that evening, but
denied that he had told them to vote for ratification.
The Company also called a number of employees from
the poplin line who testified that Heydt had asked them
to go to the union meeting but had not told them how to
vote on ratification. Some of them also recalled that
Heydt had told them their operations would be retimed
' Mills was one of the three employees who had circulated the petition
for removal of Carroll Mills also testified that on the day of the union
meeting the following month, she said to Yankowski that the latter had
forgotten to remind her where to go that night, and that Yankowski then
said in effect that she didn't care whether Mills went or not. I do not con-
sider this piece of testimony to have any particular relevance on whether
Yankowski's remark to Mills on February 8 violated Section 8(a)(1) It
shows, of course, that the Company was more concerned about having its
employees attend the ratification meeting than other union meetings, but
its indifference as to whether they attended the March meeting does not
establish that there was anything improper in Yankowski's reminder to
Mills to attend the February meeting
2 The General Counsel characterizes the remarks of Yankowski and
Heydt as instructions to the employees to attend the meeting. It is, of
and that they would be paid retroactively on the basis of
their new rates.
In his case-in-chief, the General Counsel called LaRue
Rutledge, a former employee from the poplin line. She
testified that Heydt had told them at the brief meeting on
February 8 that the other departments had accepted the
new raises in the standards, that their department being
new, the Company would retime their standards in 60 to
90 days, and that they should go to the union meeting and
vote to accept the contract. In its case, the Company put
on six or seven witnesses from the poplin line who
testified uniformly that Heydt had not told them how to
vote on ratification. In rebuttal, the General Counsel then
called another former employee, Carol Smith, to testify
as to what Heydt had said. On objection by Respondent's
counsel that this was not a proper matter for rebuttal, I
held that I would permit the General Counsel to make an
offer of proof by question and answer, and that I would
determine in my decision what weight to give to Smith's
testimony. I now hold that Smith's answer in the offer of
proof was not proper rebuttal since it was merely cumula-
tive to Rutledge's testimony. In any event, the factual
issue of whether Heydt told the poplin line employees to
vote for ratification is clearly posed by Rutledge's affir-
mation that he had, and by the denial of Heydt and the
other witnesses of the Company.
The General Counsel contends (a) that the instruction
of Yankowski and Heydt to the employees to attend the
union meeting of February 8 interfered with their right
not to participate in union matters if they did not wish to
do so, and (b) that Respondent further violated Section
8(a)(1) when Heydt told them to vote for ratification and
promised them that their rates would be retimed, or their
quotas restudied, if they accepted the contract.
I have already noted that the Company does not deny
that both Yankowski and Heydt suggested to, or
requested a number of employees to attend the February
8 meeting.2 I cannot agree with the General Counsel that
there was anything improper in such a request. There was
no intimidation of any employee, no demand that anyone
declare whether she would or would not attend, no over-
bearing of an employee's expressed desire not to attend,
and no request for a report on what took place at the
meeting. All that is present here is an unadorned request
of the employees that they go to a union meeting called to
consider a matter of importance both to themselves and
to their employer. An employer's expression of aware-
ness and interest in a union matter that concerns him is
not in itself a violation of Section 8(a)(1). It must con-
stitute an intrusion or inroad into the employees' right to
decide freely for themselves whether or not to participate
in the matter. I find no intrusion here.3
course, impossible to determine from the diverse testimony of the eight or
so witnesses who testified as to these remarks the exact words used by
Yankowski and Heydt, or for them to recreate the inflections which would
indicate the overtones to what they said However, the tenor of the
testimony of all the witnesses on this point convinces me that there was
nothing peremptory in either Yankowski's or Heydt's statements about
attendance, nor any implication ofathreat
3 Although the factual situations in the following cases are not exactly
similar to those here, they are illustrative of the line drawn by the Board
between proper and improper requests or action by an employer regarding
attendance of his employees at a union meeting. Uniform Rental Service,
Inc., 161 NLRB 187; Jack Roesch, d/b/a Roesch Transportation Com-
pany, 157 NLRB 441, 448; Senco Manufacturing Corp, 141 NLRB
1306, 1308; and Southern Coach & Body Co., Inc., 135 NLRB 1240.
GLENN BERRY MANUFACTURER'S INC. 801
C. Retiming Rates as a Promise of Benefits
I consider as closely interrelated the factual question of
whether Heydt told the poplin line employees to vote for
ratification, and whether his remarks on retiming their
rates and paying them retroactively on the new basis was
a promise of benefits. If Heydt went beyond a simple
request that employees attend the union meeting, and
asked them to vote for ratification, he did so, as Rutledge
and others testified, by attempting to persuade them that
it was in their best interest. The crucial question then is
not whether he asked them to vote yes, but whether what
he said about retiming their rates and paying them
retroactively constituted an improper promise of benefits.
It appears from the testimony of Heydt, Rutledge, and
the other witnesses from the poplin line that Heydt
wanted them to know why the rates for their operations
were not set out in the proposed contract, and to tell them
that they would not suffer any monetary loss because of
the delay in setting their new rates. In whatever manner
Heydt expressed this proposition, that is, whether on not
he specifically told them that the Company and the union
negotiating committee had already agreed that the poplin
line would be retimed, I am satisfied that he clearly ex-
pressed to them that they would not be deprived of the
benefit of having their piecework rates recalculated as
had already been done for the other piece-rate workers.
This does not, in my opinion, constitute a promise of a
benefit conditioned on a vote for ratification. Heydt was
concerned over the possibility that poplin line employees
might be tempted to reject the contract because they were
dissatisfied over the failure to retime their piecework
operations and to set new rates. Heydt wanted to coun-
teract this, and therefore pointed out to them that the
delay was due to the need to first retime the rates on the
other product line, and that their new rates would be put
into effect retroactively. I find that Heydt's remarks to
the poplin line employees about their rates accurately
summarized the actual agreement already reached by the
Company and the Union on this matter, and that he was
not offering them anything new or different in return for
a favorable vote on ratification.4
I shall, therefore, recommend dismissal of those allega-
tions of the complaint regarding the remarks of Heydt and
Yankowski on February 8.
D. The Discharge of Dorothy Green
Green had been a sewing machine operator at the Com-
merce plant for about a year and a half before her
discharge on February 13, 1967. She was one of the three
women at the plant who had, for 2 or 3 weeks, been circu-
lating a petition for the removal of Carroll as the Interna-
tional representative of the Union assigned to assist the
plant Local. Eventually, about 75 employees signed the
petition.
Green testified that before she began circulating the
petition, she had asked Martha Lawrence, the president
of the Local and a fellow employee, whether they could
get rid of Carroll if they got enough names on a petition,
and that Lawrence had said they could. Lawrence's ver-
sion of their conversation is somewhat fuller but not basi-
cally different. It is that Green had spoken to her about
getting rid of Carroll, and that she had told her that she
didn't know much about such matters, the best she could
tell her was to get up a petition but she couldn't say
whether it would do any good. That Lawrence herself
was opposed to the purpose of the petition and its circula-
tion is revealed by her refusal to sign it later, her warning
to Green on two occasions to keep the petition out of the
plant lest someone get into trouble over it, and her advis-
ing Heydt on February 11 that it was causing a
disturbance at the plant.
1. Contentions of the Parties. Respondent contends
that it discharged Green, after she first refused to resign
voluntarily, for violating articles (7) and (14) of its Rules
of Conduct, with which the employees were familiar. Ar-
ticle (7) prohibits excessive talking during work periods
or the spreading of rumors which are untrue and affect the
morale of the plant. Article (14) prohibits actual or
threatened physical violence against an employee, or in-
timidation by untruthful statements causing damaging
character assassination which promotes disturbance, un-
rest, or confusion in the plant. At her discharge interview,
Heydt told Green he was discharging her for disturbing
the peace and tranquillity of the plant, and disrupting
production. I take it that Respondent's reference to arti-
cles (7) and (14) relate specifically to charges of excessive
talking, disturbing production, and creating unrest and
confusion in the plant, although not by threats of physical
violence, untruthful rumors, or character assassination.
Respondent denies that it knew, until after her
discharge, that she had been engaged in any union activi-
ty, or that it knew the contents of the petition she had
been circulating. It also contends that even assuming it
had known-that she was engaged in a concerted, pro-
tected activity, it was justified in discharging her under a
provision in the bargaining agreement which prohibits the
carrying on of union activity by employees in the plant
during working hours.
The General Counsel contends that Respondent
discharged Green for circulating the petition; that it knew
the nature of the petition before February 13, but in any
event, that Green told Heydt what it contained, at her
final interview; and that the asserted reasons for the
discharge were pretexts, concealing its discriminatory na-
ture.
2. Green's Activities at the Plant. Green testified that
the people she solicited signed the petition only on their
free time, that is, before 7:30 a.m. and after 4 p.m., during
the morning and afternoon breaks, and during the lunch
period. She also said that she had not circulated the peti-
tion during work times. She did not recollect whether she
had ever talked to anyone about it during work time, but
admitted that she may have done so. It was also her recol-
lection that the people she solicited to sign had done so
outside the plant. She denied that she had engaged in ex-
cessive talking at the plant during this period, but ad-
mitted that her production may have fallen off a little.
That there was some solicitation during work time was
admitted by Green to be possible, and was in fact sub-
stantiated by witnesses for the Respondent. Thus, Pat
Hayes testified that once she got up from her machine to
call a mechanic, Green, who was at her own machine,
asked her if she was going to sign the petition. Alfreda
Kelly said that Green had spoken to her during work time
4 Compare Paranite Wire & Cable Division, Essex Wire Corporation,
164 NLRB 319, finding a violation of Section 8(a)(1) in an employer's
threat to close down his plant if the employees voted to reject a contract
which had been negotiated with the union.
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about signing the petition. Betty Newman said that as
girls came to Green's machine at breaktimes to sign, they
would linger on after the bell rang for them to resume
work. Edith Terry said that Green asked her, just before
the bell rang for lunch whether she would sign after she
got back. Martha Tune said that Green had approached
her once while she was at work, and asked her to sign,
and that on another occasion about 25 women had
gathered together in the restroom during work time, that
Green had asked her to go there, and that she had signed
the petition then. Darlene Ludford testified that Green
had asked her and several other employees during work
time to sign the petition, and that she had seen her pick up
the petition at another operator's desk. Finally, Martha
Lawrence, president of the Local, testified that Green
had spoken to her just at 4 p.m. to ask her to sign.
What emerges from this body of testimony by Respond-
ent's witnesses is that Green's solicitation during work
periods was furtive and hurried, and that the few mo-
ments consumed thereby could not have had any signifi-
cant effect on production at the plant. That is not to say,
of course, that the motivation for circulation of the peti-
tion did not have an effect on the employees and their
work output. I credit Heydt's testimony that production
had fallen off early in February, but I do not believe that
this was due to Green's minimal solicitation efforts while
the women were supposed to be working at their
machines. Even assuming that production was wholly
unaffected by employee dissatisfaction over the contract
negotiations, it seems obvious to me that it was the
reason behind the circulation of the petition and its sign-
ing by a substantial number of employees, which may
have raised doubts and questions in the minds of the em-
ployees affecting their production, rather than the few
moments snatched from work by the solicitation.
3. Respondent's Knowledge of the Petition.
Respondent contends that it was aware of Green's talking
during work time and its effect on production without
knowing what she was engaged in, until she herself
revealed it during her discharge interview.
Heydt testified that he learned about Green's disrup-
tive effect on production from one of the women super-
visors, from Plant Manager Morris, and from Martha
Lawrence. These reports were made to him on Saturday,
February 11, because he had been out of town the
preceding week. He also testified that while he had been
away from the plant he had gotten phone reports from
Morris about the drop in production, but that he had not
known then of Green's circulation of the petition.5
Lawrence, the president of the Local, testified that she
had come into the plant that Saturday morning, a non-
workday, of her own volition, to tell Heydt that a petition
was being circulated, there was confusion in the plant, too
many people were involved and she had been brought
into it. She urged him to keep the trouble down, and
although the tenor of her conversation with Heydt was
that the trouble and confusion was due to the petition, she
denied that she had told him what it contained. Heydt
testified, with respect to their conversation, that
Lawrence had told him that it was Green who was
disrupting production and creating a disturbance by
5 It should be noted that Heydt and Morris could not have meant that
Heydt had been absent the entire week from the plant , since Heydt also
testified that he had spoken to the poplin line employees at 4 p m Wed-
nesday , February 8 , about the union meeting that evening . It is strange
passing the petition. Heydt and Lawrence were alone
during their conversation.
I have no doubt that Lawrence had what she con-
sidered to be the mutual interest of the Company and the
Union at heart when she told Heydt Saturday morning
that the trouble at the plant was caused by the petition.
There is no reason why Lawrence, as one of the 300 or
more nonsupervisory employees, should know that
production was falling or that Green was engaged in ex-
cessive talking during work time. If she was concerned
with what was primarily a matter for company super-
visors, it was because of its effect on the Union's relation-
ship with the Company. I cannot therefore accept
Heydt's explanation for Lawrence's coming to the plant
to see him on a nonworkday as being motivated merely by
the fact that Green had bothered her about the petition.
It is much more likely that Lawrence was disturbed over
the possibility that the petition, by encouraging action
against a union official, might upset the existing harmony
between Company and Union. Exactly what Lawrence
told Heydt about the content or nature of the petition is
not clear, but I do not believe that Heydt remained totally
unaware, after talking with Lawrence, that the petition
had something to do with Green's opposition to Carroll.
After his conversation with Lawrence, Heydt spoke
with Morris, the plant manager. Morris testified that he
had seen Green out of her section talking to operators
during work time, but had not reprimanded her for it
because it was his practice to do so only when one of his
supervisors asked him. Apparently because no supervisor
had asked him, he did not ask Green to explain why she
was out of her section talking to employees during work
time. At their meeting on Saturday, Morris told Heydt
that the plant was disturbed and that he thought it was
Green's excessive talking that was behind it. He asked
Heydt what ought to be done about Green, and Heydt
recommended that she be discharged. Although Heydt
and Morris spent 4 hours that Saturday mulling over the
problem of what to do about one employee who was talk-
ing too much, it would appear from their testimony that
Green's relationship toward Lawrence or other union of-
ficials was neither discussed nor considered, despite the
fact that Lawrence had just told Heydt that Green was
the reason for the unrest in the plant. I consider this to be
as unlikely as Lawrence's not telling Heydt what Green
was trying to do with her petition. I find, based on the
probabilities of the situation and my impression of the
demeanor of Lawrence, Heydt, and Morris, that Heydt
had learned by Saturday at least, that Green was engaged
in circulating a petition which affected or involved the
Union.
Monday morning, Heydt called Green to his office.
Also present were Morris, Lawrence, and Conners, the
president and vice president of the Local. The two union
officers were there in accordance with a plant practice to
have them present whenever disciplinary action was to be
taken against an employee. Heydt told Green that she
had violated rules (7) and (14), and had been disturbing
the peace and tranquility of the plant. He asked her if she
was unhappy or having troubles, and although she said
she wasn't Heydt asked her to resign. When she refused,
that with production falling so mysteriously all week that Heydt should
have made no effort to track it down on Wednesday when he was at the
plant
GLENN BERRY MANUFACTURER' S INC. 803
he discharged her, It was apparently at this point,
although the testimony of Heydt and Green does not
make it definite, that Heydt asked Conners if Green had
been bothering her. Conners said she hadn't but that
Green had asked her to sign the petition for a new union
representative. Green then told Heydt about the petition,
and Heydt responded by saying that if she was having
trouble with the Union, she was having trouble with the
Company. Morris then brought her personal possessions
from her machine and she was escorted out the door.
As I have already found that Heydt had known by the
previous Saturday that Green's solicitations at the plant
the past week or two were concerned with a union matter,
I do not consider it particularly significant whether Green
disclosed the exact nature of the petition before or after
Heydt declared her discharged. In either event, Heydt
had the opportunity to reconsider his decision to
discharge her if he felt that what Green had just told him
shed new light on her alleged disturbance of the plant. He
considered that it did not, and he let the discharge take ef-
fect.
4. Conclusions as to the Discharge of Green. Green's
solicitation of signatures for a petition to remove a union
official was a concerted and union activity. Employees
represented by a union have a protected right to attempt
to remove those designated by the union to negotiate for
them, and an employer who discriminates against them
for such reason violates Section 8 (a)(1) and (3) of the
Act. 6
Respondent claims that it discharged Green for violat-
ing articles (7) and (14) of its Rules of Conduct. Heydt
testified that he considered that Green had broken these
rules by talking during work periods, thus disrupting
production.7 He also relied on what he called her
disturbance of the peace and tranquillity of the plant. If he
had discharged Green sdlely for the reasons given, it
would not, of course, be in violation of the Act regardless
of how harsh, unreasonable, or unfound the action was.
However, in view of her solicitation of employees and cir-
culation of a petition, an examination of all the facts, in-
cluding the extent of her talking and its effect on produc-
tion and peace and tranquillity must be made in order to
determine whether it was, in fact , the disruption caused
by her protected activity which prompted, or played some
part in, the decision to discharge her.
I have already found that Heydt knew by Saturday,
February 11, that Green's petition was a matter of con-
cern to the president of the Local because it might upset
the existing harmony between the Union and the Com-
pany. The contract, once rejected by the employees, had
just been ratified. Lawrence and Heydt would un-
derstandably believe that the result just reached might be
affected by a petition stirring up employees against a
union official who had helped negotiate the new agree-
ment. It is not my concern, nor are there any facts availa-
ble to me, to judge whether the 75 women who signed the
petition had any reasonable ground for complaining about
Carroll. I note only that Lawrence and Heydt had reason
for concern over the impact of the petition on the produc-
tivity of the employees and their own harmonious rela-
tionship.
Other circumstances surrounding the discharge tend to
support my belief that the reference to articles (7) and
(14) cloaked a discriminatory motive. I have already
pointed out that Lawrence had warned Green that she
might get into trouble over the petition. I also note that
the testimony of Respondent ' s witnesses does not
establish that Green was engaged in excessive talking or
that their production was affected by her few, hurried so-
licitations during work time. I have also considered Mor-
ris' conduct in this regard. He testified that he saw Green
out of her section talking, but never asked her what she
was doing , nor warned her to stop . I can only attribute his
failure to confront her and to demand an explanation as
an indication that he already knew what she was up to and
was prepared to use her infraction of the rules as a pretext
to discriminate against her. His explanation that he never
repimanded anyone for infractions occurring in his
presence unless a supervisor asked him to, strikes me as
an improbable reaction for a top supervisor. Finally, one
of the reasons which Heydt gave Green for discharging
her, was that she had been disturbing the peace and
tranquillity of the plant, is hardly the expression one
would expect from a supervisor who was only concerned
with an employee who has been talking too much. An em-
ployee may disturb the peace and tranquillity of a plant by
disrupting an existing harmonious relationship between
Company and Union, and in that sense an employee who
is having trouble with the Union is in trouble with the
Company also. It was not Green's minimal intrusion into
work time which was disturbing the employees and af-
fecting their production, but rather what Green was say-
ing and doing about Carroll and his role in negotiating the
new agreement which would tend to upset them and af-
fect their production."
Section 3 of the contract in effect early in February
1967 is headed "Discrimination" and reads as follows:
The Company and the Union will at all times use
their best efforts to promote and maintain friendly
and harmonious relations. The Company will not
countenance any discrimination against or inter-
ference with the Union and its members in the con-
duct of the Union's lawful activities, by an employee
or any agent of the Company; however, Union activi-
ties shall not be carried on by the employees in the
plant during working hours, except as hereinafter
provided. [Emphasis supplied.]
It shall be the responsibility of the Local Union to
advise its members of their responsibilities under this
contract.
6 Aerodex, Inc., 149 NLRB 192, 198, Top Notch Manufacturing Com-
pany, Inc., 145 NLRB 429, 432.
7 However, in an affidavit which Heydt gave to an attorney for the
General Counsel on March 22, 1967, during the investigation of this case
(G C Exh. 4), Heydt claimed that he had discharged Green for circulating
a petition on company time and property in violation of articles (7) and
(14), and of the union agreement . He said that he had been told by four or
five women that Green had been circulating a petition before work, on
break time and lunch hours , and after work at the plant Heydt did not
mention in his affidavit that Morris or any other supervisor had told him
before February 13 that Green had been soliciting signatures for a peti-
tion during work time, although he so testified at the hearing . Considerable
doubt is thus cast on Heydt 's testimony that he knew before he discharged
Green that she had been engaged in excessive talking during work time,
and on his explanations for her discharge.
6 In any event, an employee does not forfeit the protection of the Act in
exercising a concerted activity because it incidentally produces some ir-
ritation to other employees or causes unrest . Aerodex, Inc., supra at 199.
Contrast Stuart F Cooper Co , 136 NLRB 142.
350-212 0-70-52
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It shall be the responsibility of the Local Union to
advise its members of any actions that they may take
contrary to the terms of this agreement.
The Respondent argues that even if Green's circulation
of a union petition was protected , it was nevertheless
justified in discharging her because her solicitation during
work periods was in violation of the above section of the
agreement.
Whether the italicized portion of the section is an in-
valid no-solicitation or no-distribution rule because it may
apply to union activities during , nonworking time or in
nonworking areas, is not a matter of concern here since
the complaint did not allege that the rule was invalid, nor
was the matter litigated .9 Moreover , the Respondent does
not now claim that it had a right under the contract to
discharge Green for her activities during nonworking
periods anywhere in the plant. All it contends for is that
it had a right to discharge her for engaging in union activi-
ties during work time , because the Union had agreed by
contract that such activities were prohibited.
An incumbent union may agree by contract to restrict
distribution or solicitation activities on its own behalf, but
it may not deprive employees of the right to distribute
literature in nonwork areas or to solicit during nonwork-
ing time, in opposition to itself . 10 A quite different situa-
tion is presented , however, with respect to distribution or
solicitation on work time. An employer does not need the
consent of a bargaining agent to reserve work time for
work , nor are his rights and powers over his employees'
work time augmented by a contractual prohibition against
distribution or solicitation during such periods. Neverthe-
less, his right to demand a full measure of work during as-
signed work periods cannot excuse his intention to
discipline an employee for an illegal reason. Based on the
considerations set out previously , I am satisfied that the
motivation for discharging Green was her circulation of
the petition which Respondent believed might lead to dis-
sidence and unrest among its employees Who were union
members. Even granting that Respondent knew before
February 13 that Green had been soliciting signatures for
the petition on work time , Respondent's reliance on the
prohibition of section 3 of the contract is of no avail.
For all the foregoing reasons, I find that Green was dis-
criminatorily discharged by Respondent in violation of
Section 8 (a)(1) and (3 ) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate , and substantial relation to trade, traffic, and
commerce among the several States , and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent violated Section 8(a)(3)
and (1 ) of the Act by discharging Dorothy Green, I will
9 Before the hearing , Heydt apparently believed that this section
prohibited union and antiunion activity any time in the plant. See fn. 7.
10 Gale Products , Division of Outboard Marine Corp , 142 NLRB
1246, enforcement denied 337 F.2d 390 (C.A 7); Armco Steel Corpora-
recommend that Respondent offer her immediate and full
reinstatement to her former or substantially equivalent
position , without prejudice to her seniority or other rights
or privileges , and make her whole for any loss of earnings
she may have suffered as a result of the discrimination
against her, by payment to her of a sum of money equal to
that which she would normally have earned as wages
from the date of her discharge to the date of the Respond-
ent's offer of reinstatement, less her net earnings during
such period with backpay and interest thereon to be com-
puted in the manner prescribed in F. W . Woolworth Com-
pany, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Glenn Berry Manufacturers , Inc., is an employer
within the meaning of the Act, and is engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. United Garment Workers of America, Local 427,
is a labor organization within the meaning of Section 2(5)
of the Act.
3. By discriminating with respect to the hire and
tenure of employment of Dorothy Green , the Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, upon the entire record in this proceed-
ing, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended , I hereby recommend that the
Respondent , Glenn Berry Manufacturers , Inc., its of-
ficers, agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Encouraging or discouraging membership in
United Garment Workers of America, Local 427, or in
any other labor organization by discharging or in any
other manner discriminating against employees for seek-
ing to change union officials or representatives or other-
wise engaging in concerted or union activities , in violation
of Section 8(a)(3) and ( 1) of the Act.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of rights guaranteed in Sec-
tion 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Dorothy Green immediate and full rein-
statement to her former or substantially equivalent posi-
tion, without prejudice to her seniority or other rights or
privileges, and make her whole for any loss of earnings
she may have suffered by reason of the discrimination
against her , in the manner set forth in the section of this
Decision entitled "The Remedy."
Lion, 148 NLRB 1179, enforcement denied 344 F.2d 621 (C.A. 6);
General Motors Corporation , 147 NLRB 509, enforcement denied 345
F.2d 516 (C A. 6); Mid-States Metal Products, Inc., 156 NLRB 872; and
General Motors Corporation , 158 NLRB 1723.
GLENN BERRY MANUFACTURER'S INC. 805
(b) Notify the above-named employee if presently
serving in the Armed Forces of the United States of her
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(c) Preserve and, upon 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 Recommended Order.
(d) Post at its Commerce, Oklahoma, plant copies of
the attached notice marked "Appendix."11 Copies of said
notice, on forms provided by the Regional Director for
Region 16, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 16, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.12
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
" In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order " shall be substituted for the words "a Decision
and Order."
11 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read. "Notify the Regional Director for
Region 16 , in writing , within 10 days from the date of this Order, what
steps Respondent had taken to comply herewith."
APPENDIX
Notice to All Employees
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT encourage or discourage member-
ship in United Garment Workers of America, Local
427, or in any other labor organization by discharg-
ing or otherwise discriminating against employees for
seeking to change the officials or representatives of
their Union.
WE WILL NOT in any like or related manner
restrain or coerce our employees in the exercise of
rights guaranteed them by Section 7 of the National
Labor Relations Act, as amended.
WE WILL offer Dorothy Green immediate and full
reinstatement to her former or substantially
equivalent position, without prejudice to her seniori-
ty or other rights or privileges, and will make her
whole for any loss of earnings she has suffered.
Dated By
GLENN BERRY
MANUFACTURERS, INC.
(Employer)
(Representative ) (Title)
Note: We will notify the above-named employee if
presently serving in the Armed Forces of the United
States of her right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 8A24 Federal
Office Building, 819 Taylor Street, Fort Worth, Texas,
Telephone 334-2934.