Hardwick Clothes, Inc.

National Labor Relations Board - Board Decisions

Jan 13, 1970

180 N.L.R.B. 690 (N.L.R.B. 1970)

690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hardwick Clothes, Inc. and Amalgamated Clothing
Workers of America , AFL-CIO. Case 10-CA-7730
January 13, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On September 24, 1969, Trial Examiner Thomas
S. Wilson issued his Decision in the above-entitled
proceeding , finding that Respondent had engaged in
certain unfair labor practices alleged in the
complaint and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. He also found that the Respondent had
not engaged in other unfair labor practices alleged
in the amended complaint. Respondent filed timely
exceptions , and a brief in support thereof, to the
Trial Examiner's Decision. The General Counsel
filed timely cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Decision , the exceptions and briefs, and the entire
record in this case, and hereby adopts the findings,'
conclusions , and recommendations = of the Trial
Examiner.
ORDER3
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Hardwick
Clothes, Inc., Cleveland, Tennessee, its officers,
agents , successors , and assigns , shall take the action
set forth in the Trial Examiner's Recommended
Order, with the following modifications:
1. Delete paragraph 1(b) and substitute new
paragraph 1(b) as follows:
"(b) Announcing to its employees the grant of
benefits of any nature for the purpose of interfering
with their right to organize or refusing to discuss
grievances with an employee because of her
membership in or activities on behalf of the Union."
2. Add the following as paragraph 2(b), and
reletter the following paragraphs accordingly:
"(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."
3. In the Appendix delete the second indented
paragraph and substitute therefor the following:
WE WILL NOT interfere with, restrain, or coerce
employees by the announcement of benefits for
the purpose of influencing employees in the
exercise of their right to organize and WE WILL
NOT refuse to process grievances or complaints
because of the Union membership or activities of
the grievant.
4. Add the following as the fourth indented
paragraph of the Appendix:
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.
IT IS HEREBY FURTHER ORDERED that the
complaint herein be, and it hereby is, dismissed
insofar as it alleges violations of the Act not found
herein.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
'We do not adopt the Trial Examiner's conclusion that , standing alone,
the statements made by supervisor Dempsey and Holmes at the employee
meeting of November 7 to the effect that the supervisors were unalterably
opposed to any union organizational effort necessarily had a chilling effect
on the employees ' prounion sympathies While we agree that the
Respondent violated Section 8(axl) of the Act in the other respects found
by the Trial Examiner , we find it unnecessary to rely on the rationale that
because Dempsey was instructed not to coerce , intimidate , or question
employees , her superior feared she had engaged in such conduct , and that
this corroborated the Trial Examiner 's conclusion
'As the Board adopts the Trial Examiner' s finding and conclusion that
the November 14 announcement of paid holidays was designed to interfere
with , restrain , and coerce the employees in violation of Section 8(aXl) of
the Act, we shall include in our remedial order a provision that the
Respondent cease and desist from such conduct . However , this is not to be
construed as a requirement that the Respondent rescind such benefits
'in adopting fn. 11 of the Trial Examiner ' s Recommended Order, the
word "judgment" is substituted for the word "decree" in the second
sentence thereof
THOMAS S. WILSON, Trial Examiner: Upon a charge
duly filed on April 4, 1969, by Amalgamated Clothing
Workers of America, AFL-CIO, hereinafter called the
Union or Charging Party, the General Counsel of the
National Labor Relations Board, hereinafter referred to
as the General Counsel' and the Board, respectively, by
the Regional Director for Region 10, Atlanta, Georgia,
issued its complaint dated April 30, 1969, against
Hardwick Clothes, Inc., hereinafter referred to as the
Respondent.
The complaint alleged that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Sections 8(a)(l) and (3)
and 2(6) and (7) of the Labor Management Relations Act,
'This term specifically includes the attorneys appearing for the General
Counsel at the hearing.
180 NLRB No. 110
HARDWICK CLOTHES, INC.
1947, as amended, herein referred to as the Act.
Respondent duly filed its answer admitting certain
allegations of the complaint but denying the commission
of any unfair labor practices.
Pursuant to notice, a hearing was held thereon before
me in Cleveland, Tennessee, on June 3 and 4, 1969. All
parties appeared at the hearing, were represented by
counsel, and were afforded full opportunity to be heard, to
produce and cross-examine witnesses, and to introduce
evidence material and pertinent to the issues. At the
conclusion of the hearing, oral argument was waived.
Briefs were received from General Counsel and
Respondent on July It, 1969.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleged, the answer admitted, and I
therefore find:
Hardwick Clothes, Inc., is, and has been at all times
material herein, a Tennessee corporation, with an office
and place of business located at Cleveland, Tennessee,
where it is engaged in the manufacture and sale of men's
apparel. During the past calendar year, which period is
representative of all times material herein, Respondent
sold and shipped finished products valued in excess of
$50,000 directly to customers located outside the State of
Tennessee.
Accordingly, I find that Respondent is now, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Clothing Workers of America,
AFL-CIO, is a labor organization admitting to
membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
1. Interference , restraint , and coercion
In the October 24, 1968, issue of the local newspaper,
there appeared a labor story involving an employer in
Cleveland other than Respondent. Included in the last part
of this story, the newspaper quoted a vice president of the
Union as pledging " that the Union organizing committee
is beginning immediate work to unionize American
Uniform and Hardwick Clothing Co. here."
Sometime the last week of October or the first week of
November 1968 the Union actually opened its efforts to
organize Respondent's employees.
On November 7 Doris Dempsey, forelady of
Respondent's coat division over sections supervised by
nine individual supervisors, including Joann Holmes, held
meetings with two of such sections.'
On that day Dempsey had Supervisor Holmes assemble
the 24 to 26 employees in her section in the Rec Building
at the plant. When assembled, Dempsey stated that they
'it was stipulated that both Dempsey and Holmes were supervisors
within the meaning of the Act.
691
were there to discuss the Union, that it was "rumored
around" that the Union was "working" in the plant, that
some employees had complained to supervisors that they
were being "bothered" about signing cards, and that she
wanted to tell the employees how she and the Company
felt about the Union and, in turn, to find out what the
employees thought. She invited the employees to "feel free
to express yourselves" and to "discuss anything they
wanted to discuss" promising that "nobody will get fired
or blacklisted." Dempsey bluntly stated that she did not
like the Union and did not feel that the Union "helped
anybody" and that the Company felt the same way.
Holmes took occasion to assert that she "would not work
under a union."
A couple of the employees reported incidents where
their husbands had been fired for having signed union
authorization cards or had been blacklisted in certain
towns for having joined a union. Some employees thought
such actions were reprehensible.
During these reports employee Joyce Boston, then a
presser who had signed a union card on November 4,
spoke up and objected that nobody was being arm-twisted
about signing a union card, that if the employee would
just say "no," nobody would bother them but that, if the
employee was wishy-washy about it, of course, the
employee would be asked to sign again. Boston also
announced that, "I'm here to tell you that I am here for
the Union."
At some point during the meeting which lasted 45
minutes Boston remarked that Respondent's failure to pay
holiday pay, retirement, or any part of the insurance was
enough to cause some employees to sign union
authorization cards. To this Dempsey answered that,
"Eventually I think Hardwick will pay for holiday pay
and things like that when the company can afford it - if
you remember, we didn't used to get paid for vacation pay
but you do now."'
During the meeting Dempsey admittedly urged the
employees present to "speak up freely" as there would be
no reprisals with the result that all but five or six
employees did either express their opinion as to the Union
or gave some noncommittal comment.
Boston testified that Dempsey requested employees by
name to express her individual opinion as to the Union.
One credible witness testified that Dempsey had indeed
requested her by name to express her opinion on the
subject. Dempsey, Holmes, and the hard of hearing
witness categorically denied that there had been any
individual requests for the expression of personal opinion.
From Dempsey's opening remarks and her request that
the employees "freely express themselves" on the question
of the Union it is quite apparent that one purpose for the
holding of this meeting was to ferret out from such
solicited expressions the probable pro- and anti-union
sentiments of the individual employees. Obviously
Respondent was seeking information as to the employees'
sentiment as to the Union through this Respondent-called
meeting. Because of this and because one employee was,
in fact, individually and by name solicited to give her
opinion on the subject matter of the meeting, I find that
at least one employee was individually solicited to give her
opinion of the Union by Dempsey
'Dempsey, Holmes, and an admittedly hard of hearing witness for
Respondent denied or did not recall any talk of economic matters at this
meeting Although this conflict with Boston and other credible witnesses is
really immaterial due to subsequent events, I credit Boston and her
corroborating witnesses
'The conflict over whether Dempsey inquired individually of each
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The employees were paid by Respondent for 45 minutes
spent at this meeting.
Dempsey testified that she had called this meeting on
her own initiative but, after the meeting, in her phrase,
she "might have said" something to her superiors about
the November 7 meeting. At or after this report Dempsey
was instructed by her superiors that she was not supposed
to coerce or intimidate the employees or "to question
anybody in anyway about the Union " Obviously some
unnamed superior feared that Dempsey had interrogated
the employees about their feelings regarding the Union
which corroborates the findings above made.'
On November 146 Dempsey again had the employees
assembled and announced that Respondent had decided to
pay them for four specific holidays: Thanksgiving,
Christmas, New Year's, and Labor Day. She explained
that the absenteeism rate had improved so much that the
Respondent believed that it could now afford to pay for
these holidays. An employee inquired, "Doris, do you
mean to tell me it took 90 years for this company's
absenteeism to come up high enough for us to be able to
be paid holidays?" Dempsey answered, "Well, that was
what she said was the reason." Whereupon the employee
replied, "Well, I think most of the girls in here know why
we are being paid for these . . . because of the Union
trying to come in here." Dempsey also stated that these
paid holidays had been under consideration for a long
time but had been delayed because of the death of the
former personnel manager.
As promised, by the time of the hearing, Respondent
had paid the employees for the Thanksgiving, Christmas,
and New Year holidays.
2. Conclusions
Under the facts as testified to by Boston and others and
as admitted by Dempsey, there can be no doubt but that
one purpose for the November 7 meeting was to ferret out
and determine in as subtle a manner as possible the
reactions and sentiments as regards the union
organizational activity of the employee group and of the
individuals in that group. This amounted to illegal
interrogation of employees as to their desires and
sympathies in regard to the Union regardless of whether
Dempsey called on any employees individually by name or
not. The requested "freely expressed" opinions of the
employees were intended to disclose both the group and
individual sentiments as obviously as though the employee
had been asked pointblank. Respondent recognized this by
its subsequent instructions to Dempsey not to interrogate
employees about the Union. I therefore find that this
subtle interrogation of the employees as to their union
affiliations and sympathies amounted to a violation of
employee present appears to be purely a question of semantics because of
Dempsey's original solicitation of the employees "to express themselves
freely" and without fear of reprisal.
'Boston also testified that towards the end of the above meeting of
November 7 Dempsey remarked that she knew that there had been a union
meeting the night before ; to wit , the evening of November 6. Boston
testified that in fact there had been no such meeting. In this instance, I
find that Dempsey did not make the remark about the union meeting the
night before despite the fact that I found Boston to be an honest witness
which was not altogether the case with the witness Dempsey . I make this
rather inconsistent finding largely because in this instance there was no
corroboration of Boston
'This is the date used throughout this hearing but which probably was
wrong by a few days In any event the date was prior to Thanksgiving,
November 28, 1968
Section 8(a)(1) of the Act.
The second expressed purpose of this meeting, as
announced, was to let the group and the individuals know
that Respondent and its supervisors with control over the
employment of the employees were unalterably opposed to
any such union organizational effort. With control over
the employment destinies of these employees such as was
held by both Dempsey and Holmes, these candid
expressions of such strong antiunion feelings must
necessarily have had a chilling effect on any prounion
sympathies of the employees under their guidance and
control. This was not a too subtle method to interfere
with, restrain, or coerce the employees into refraining
from or, at least, restraining any prounion feelings the
employees may have had. As such the meeting also was in
violation of Section 8(a)(1) of the Act.
For reasons heretofore expressed I have not found that
Dempsey gave the employees the impression that union
activities were under surveillance and hence will here
recommend that paragraph 9 of the complaint be
dismissed.
Furthermore, in total disregard of its instructions
following the November 7 meeting given to Dempsey not
to restrain, coerce, or interrogate employees, Respondent
authorized Dempsey on or about November 14 to notify
these same employees that thereafter Respondent would
pay them for four named holidays. I am convinced that,
due to Boston's remark on November 7 to the effect that
Respondent's failure to pay the employees holiday pay,
insurance, etc., was enough to cause employees to sign
union authorization cards, Respondent had Dempsey on
November 14 to make the announcement of the paid
holidays in an effort to remove at least one recognized
union selling point for unionization and thus its intent and
purpose was to interfere with, restrain, and coerce the
employees into abandoning the effort at unionization. The
employee's incredulous retort to the announcement was
that the holiday pay was not caused by an alleged
improvement in absenteeism after 90 years, but was, in
fact, the result of the Union's several weeks' campaign to
organize the employees was absolutely correct. A promise
of a long-awaited benefit fulfilled so quickly is often a
more effective weapon against unionization than is the
mailed fist. Ninety years is a long time to wait. This
November 14 benefit was intended to entice the employees
away from unionization in violation of Section 8(a)(1) of
the Act.
3. The transfer of Joyce Boston
On December 6, 1966, Boston was hired by Respondent
as a replacement or "utility" girl; i.e., a machine operator
who replaces or substitutes for any machine operator who
might be absent that day. Utility girls thus have the
ability to do any job in the sewing line but by reason of
the daily change in jobs probably do not become experts
in any one operation. During her employment as utility
girl, Boston naturally was assigned on occasion to set and
finish welt pockets. On July 29, 1968, Boston was
transferred from the position of utility girl to the job of
presser pressing darts. Pressing, unlike the machine
operator's job which is a sitting job, requires a presser to
stand all day using a hot iron. Despite these
inconveniences Boston preferred pressing to operating.
Her efficiency in pressing was far above 100 percent
efficiency so that with the incentive pay system used by
Respondent, Boston was grossing about $85 per week as a
presser. She liked the job and the money it paid.
HARDWICK CLOTHES, INC.
About September 1968 Dempsey asked Boston to
transfer from pressing to the machine operation of taping
arm holes on the asserted grounds that Boston was too
good a machine operator to be on a "hand job"
(pressing). Boston refused. Although irritated, Dempsey
accepted the refusal.
With the advent of the union organizational drive in
late October Boston became interested in the Union. She
signed a union authorization card on November 4. She
indicated her interest in the Union at Dempsey's
November 7 meeting. In addition she asked approximately
40 employees to sign union authorization cards. She
attended all 15 of the union meetings. On four occasions,
including December 10, she handbilled union leaflets at
the plant front gates. She was known to be a leading
union advocate.
On December 10 Boston and employee Mary Alice
Waters complained to supervision that Respondent had
restricted certain mechanics from repairing machines in
the plant where they would be able to talk to the
operators while permitting others to do the repairing in
the plant. Boston and Waters believed that this restriction
was due to the fact that certain mechanics were prounion
and that Respondent did not want such mechanics talking
to the operators. Joann Holmes, the supervisor, answered
that the Company had its reasons why these mechanics
were restricted. Boston replied, "I think I know why."
On December I 1 Holmes came to Boston at her work
station and said, "I know you're working against me and
I just wanted to let you know that it's not bothering me. .
When you work against this company, you work
against me. . . . When I work for a company, I'm for it.
And when I'm against a company, then I know what I
can do about it." When Boston pretended ignorance as to
what Holmes was talking about, Holmes stated, "It was
because of what you and some of the other girls said
yesterday in our meeting."
Because of the implied threat in Holmes' words, later
that afternoon Boston got employee Barbara Moore to go
with her as her witness to see Holmes about the previous
conversation. During the conversation which followed,
Boston told Holmes that she was "for the Union and was
going to get the Union in Hardwick Clothes." Holmes'
reaction was a monosyllabic, "Well."'
At the end of January Dempsey again asked Boston if
she would go back on a sewing machine. Boston again
refused. Dempsey then inquired as to what Boston would
do if she, Dempsey, made Boston take a machine job.
Boston answered, "If that is what you have to do, go
ahead and do it." Nothing further was done about this at
the time.
About 5 days before the February 13 union election
Boston was called into the office where Dempsey and
Holmes asked her to take a machine job setting and
finishing welt pockets. Boston refused on the ground that
she was perfectly happy pressing and that she was making
good money there. Dempsey tried cajolery referring to the
fact that as a presser she had to stand all day which would
cause her veins to stand out in her legs, etc., and that
holding a hot iron in the summer time was not pleasant.
Dempsey then left giving Holmes orders to talk Boston
into taking the machine job. But Boston remained
adamant on the grounds that she was making more money
'At the hearing Respondent stipulated that it knew that Boston was
prounion at the time of her transfer on March 3. The facts of the
November 7 and the December I I conversations indicate that Respondent
had good reason to know this long before March 3.
693
pressing than she would be able to make on a machine.
However, Boston offered to help out on the welt pocket
job which she actually did when not busy pressing and
during overtime periods. In fact a machine was moved
close to Boston's pressing station so that she could help
out in this manner.
On February 13 the Union lost the Board-conducted
representation election. It filed no objections to the
conduct of the election.
So Boston continued as a presser doing extra work on a
machine until February 27, when she was again called into
the office where Dempsey told her that they had to have
her on a sewing machine on the welt pocket job because
of all the operators who had left or were leaving.
Dempsey informed Boston that she was going to start
setting welt pockets and that, "You have no other
choice." Boston called this "very dirty" and said that
somebody had told her that it would happen but that she
had not believed it Dempsey explained that they were not
doing this out of "meanness" but had to have somebody
setting welt pockets, that Boston knew the job, and that
otherwise it would cost Respondent $800 to train
somebody else to do the job. Dempsey continued by
saying that, as Boston knew the welt setting job, she was
just going to have to start doing it -- "or else." When
Boston inquired, "when," Dempsey said, "March 3."
Boston stated that she would have to think about it and
would let Dempsey know later. Dempsey's final word was,
"You have no other choice. Monday morning your job
will be setting welts" and confirmed the fact that on
Monday Boston would set welts or would be unemployed.
Boston was so upset that she had to leave the plant for a
few hours to compose herself.
Although originally the transfer was set for March 3,
Boston actually began setting welt pockets on February 28
and has continued on that job full time to the date of the
hearing.
Boston's efficiency in setting and finishing welts was far
below her efficiency as a presser with the result that her
pay decreased approximately $20 per week. Respondent's
records prove that over her last 9 weeks as a presser
Boston's efficiency averaged 129 percent and was over 100
percent in every week, whereas her efficiency on the welt
setting job averaged 105 percent for the 13 weeks of her
employment there, when she was over 100 percent only 8
of her 13 weeks on that job.
After 8 weeks of welt setting, during which Boston
reached 100 percent efficiency only four times, her top
efficiency being 106 percent, she and Eunice Couch, who
had reached 100 percent efficiency only l week of her 3
weeks' employment as a welt setter, requested Dempsey
for help in finding out what was wrong with the job.
Dempsey complied by sending training coordinator Ann
York to "observe" the employees. York timed Boston in
setting welts at 60 to 65 over 100 whereas the time set for
the job was 137 over 100 thus indicating that Boston was
a very fast and efficient operator at welt setting. The only
problem York was able to find was the same one she had
discovered while "observing" the job a couple of years
before; to wit, that the bundles were coming to the welt
operators with pieces missing, incorrectly marked, and
mismatched. Curiously York, after rediscovering this
problem, did not bother to trace the bundles into the
cutting room to discover where the errors were being
made or why. She reported the problem to Dempsey but
failed to go into the cutting room on the stated grounds
that it was out of her "jurisdiction." However during
York's 10 days of "observing," Boston's efficiency
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suddenly rose from 86 percent to 125 and 139 percent
whereas Couch's efficiency likewise rose from 90 percent
to 125 and 142 percent. York testified that she handled
only "one" mixed bundle during her period of
observation. After York's departure both Boston's and
Couch's efficiency promptly fell, Boston's more rapidly
than Couch's.'
The charge alleging Boston's transfer to be
discriminatory was duly filed with the Board on April 4,
although it shows on its face to have been signed by the
attorney for the Union on March 31, 1969. Thus the
charge was filed prior to York's observation of the job.
On May 3, 1969, Boston asked Dempsey if she could
see Respondent's President Frank Hardwick about the
transfer Dempsey informed Boston that Hardwick was in
Florida Upon his return Boston again requested the right
to see Hardwick but Dempsey stated that Hardwick, just
back from Florida, was "too busy" to see her. However
later that same day Dempsey, having informed Hardwick
that Boston desired to see him about her transfer, stopped
at Boston's place of work and informed Boston that
Hardwick had said in answer to her request that, as
Boston had refused to listen to him a few weeks ago, he
would refuse to listen to Boston now. Boston protested
that she had listened to Hardwick a few weeks back even
though she might not have done what he asked of her; i.e ,
continued to work for the Union. Dempsey then
proceeded to tell Boston about all that had happened in
the plant, "what we people of the Union had done to the
plant," that those in favor of the Union "had busted it up
and hurt people as far as them quitting their jobs and
things like that." Dempsey then inquired, "if [Boston] had
it to do over - the Union, would I go through it again."
Boston answered that she would, that she wasn't sorry
that it had happened because it seemed to have helped the
employees out, "they were noticing us a little bit better
now." Dempsey replied that she thought that Boston had
something against her because Boston had worked for the
Union. This Boston denied.
On Thursday afternoon after work at 3:30 p.m. Boston
went to Hardwick's office and Hardwick, through his
secretary, agreed to see Boston. After getting into
Hardwick's office Boston's undenied9 testimony of the
meeting is as follows.
And I said [to Hardwick] that Doris Dempsey told me
that since I refused to listen to you [Hardwick] a few
weeks back, you refused to listen to me now.
And he said well that wasn't exactly what he told
her. He said exactly what he told her was I had refused
to show him any consideration - refused to show him
any consideration when I worked so hard for the Union
to get it into this Company and that he could show me
none now.
And I said, "Well if that is the way you feel, then I
can understand it that way." And he said, "It's not all
unions I hate, Joyce. Just the Amalgamated." And he
said, "I wish I could make you happy because I like to
make people happy but as I say, you showed me no
consideration and I can show you none now."
And I thanked him and I left his office.
'Each erroneous bundle found by a welt setter would cost the operator,
according to the testimony , a loss of 5 minutes ' time . It was estimated that
the welt setters continued to receive approximately 7 erroneous bundles per
day after York's departure as well as before. In a timed job like welt
setting the loss of 35 minutes per day must necessarily adversely affect the
operators ' efficiency and thus her pay
'Frank Hardwick did not choose to testify.
At the end of the hearing Boston was still setting welt
pockets.
4. Conclusions as to the transfer
The question for decision here, of course, is whether
Respondent's March 3 (actually February 28) transfer of
Boston to the welt pockets operation was discriminatory
as General Counsel and Boston contend or whether, as
Respondent claims, Boston's transfer was really a move
forced on Respondent by circumstances beyond its
control, actually a desperation move.
Respondent's brief set forth Respondent's position
succinctly as follows:
The Alleged Violation of 8(a)(3):
The undisputed evidence reveals that Mary Joyce
Boston was an employee whose sewing skills were
highly developed and well known. She was originally
hired by Respondent as a "Utility girl" whose job it
was to fill in where and when needed - including
"setting welts." Subsequently, at her own request, she
was transferred to "pressing darts" and then from
pressing darts to "setting welts" the transfer here
questioned by Counsel for the General Counsel.
Respondent's asserted reason for the transfer is
simple, direct, and is fully supported by the proof. For
some time it had experienced substantial difficulty in
securing qualified sewing machine operators to set and
finish welt pockets, a difficulty which became intense in
early February, 1969. (See Res. 1) This was true,
according to undisputed evidence, because of the tight
labor market, the high turn-over of employees, the lack
of sewing skills among the newly employed, and the
longer training period required to develop a qualified
"set and finish welt pockets" operator. While there is
ample evidence in the record to believe that
Respondent's production standards on the "welt
pockets" job may be "too high," no reason exists to
presume that such standards were set for
"discriminatory reasons."' Thus, it is clear that the
present production standards substantially antedated
union activities. But the record also reflects
set-and-finish-welt-pocket operators -- once qualified,
can more than make "production," and do equally as
well financially as employees possessing other skills. It
was in this context that as early as the fall of 1968,
Doris Dempsey tried to persuade Boston to go to the
"welt-pockets" sewing job, (TR. 313) in which she had
considerable experience. This attempt at persuasion,
which was corroborated by Boston herself,
intermittently continued - but with some increase in
intensity as the demands for production, and the
deminishing supply of qualified operators, accelerated.
Ultimately, the problem had become so acute that
Boston was requested, and she agreed, to work on both
jobs - both during regular hours and on overtime. To
accomodate this need, a machine was placed near her
press-job work station on which she worked when she
got caught up. She continued to refuse, however, to
accept a permanent transfer to the sewing job - much
to the chagrin of both Dempsey and Holmes.
Ultimately, actually on February 27th but officially on
March 3rd, Boston was transferred against her wishes
to the sewing job.' In the interim, and prior to the
transfer, Respondent attempted to hire qualified
persons and to hire, transfer and train others for the
sewing job - but without observable success. The
HARDWICK CLOTHES, INC. 695
transfer of Boston , under the circumstances, was a
virtual necessity. The record is replete with evidence
that beyond doubt Boston was the most logical choice
for the transfer from those available considering
relative experience on the sewing job, and the relative
need for continuing some of them in the jobs they were
then performing. There is hardly a question that Boston
was the most skilled electric machine operator with
experience on the welt-pocket job. The basic and
altogether legal and proper reason for Boston 's transfer
cannot be obfuscated by the cry of "union activity."
While Respondent admittedly desired the continuation
of a non-union operation, it evidenced no inclination to
do so by the use of illegal means as indicated by the
dearth of alleged violations here, and the fact that no
Objections to the election were filed!
'In considering the relative evaluation of the "set and finish welt pocket"
job as against the "press darts," and applicable rates, one must
remember that the sewing job permits sitting down while the press job
requires constant standing and involves the use of a hot iron a
discomfort in the summer.
4While both Dempsey and Holmes acknowledged that Boston had been
the first employee "forced" to transfer , they explained that this was so
only because she was the first in their experience who refused, upon
request , to do so.
This statement of the matter makes the transfer of
Boston on March 3 (actually February 28) appear not
only logical but even inevitable under the circumstances as
described, at least until one looks at the record.
Respondent's records (Resp. Exh. 3) show that the
Respondent started the month of January 1969 with five
welt operators. On January 7 this became six with the
employment of Edna Gregory. The number of welt
operators was again reduced to five on January 16 when
Respondent transferred Sue Jacobs from welt setting to
setting flaps. When employees Nancy Ensley and
Christine Dabbs voluntarily quit on February 5 and 21,
respectively, Respondent's welt setters, according to
Respondent's Exhibit 3, had been reduced to three.10 The
number of operators was again increased to four on
February 28 when Respondent actually transferred Boston
to the welt pocket operation.
It is to be noted that, according to Respondent's
Exhibit 3, Boston was the first new operator in the welt
pocket section after the hire of Gregory on January 7 and
the transfer of Jacobs out of welt setting on January 16,
despite Respondent's claim above made that "in the
interim, and prior to the transfer [of Boston], Respondent
attempted to hire qualified persons and to hire, transfer
and train others for the sewing job -- but without
observable success." The record supports only the final
comment. In fact, the record as prepared by Respondent
is devoid of any evidence that Respondent attempted to
hire, transfer, or train others for the welt setting job prior
to the transfer of Boston. On the contrary Respondent
voluntarily transferred Jacobs out of welt setting on
January 16. Quite obviously Respondent was not worried
about the welt setting job as of that time.
Nor, contrary to Respondent's contention made above,
does the record indicate that Respondent was in fact
"Resp . Exh. I purporting to show the "total number of machines in
operation on set and finish welt pockets" on each day from January 4 to
May 31, 1969, and Resp . Exh. 3 purporting to show the individual welt
machine operators over this same period just cannot be reconciled as more
machines appeared to have been in operation than the number of operators
available . Perhaps Respondent had other operators , like Boston, operating
welt machines in spare time or overtime but the identity of such operators
remained undisclosed . In this analysis I have had to use Resp Exh. 3
hampered by the allegedly "tight labor market" from
hiring experienced, or inexperienced, machine operators.
On this point Respondents own records show that it was
able to hire experienced and inexperienced [( )] operators
during this period as follows
January, 22 experienced (15 inexperienced); February,
10 (22); March, 7 (18); April, 9 (19); and May, 5 (23).
Thus at least through the allegedly critical period of
February 1969, the labor market was not so critical as far
as experienced machine operators were concerned. The
facts, presented by Respondent, conclusively prove that
prior to Boston's transfer, Respondent made no
"observable" effort to hire, transfer, or train any welt
operators. In 'fact Respondent's Exhibit 1, inaccurate
though it be, shows that Respondent was content with
three welt operators for a period of at least 2, if not 3,
solid weeks. Respondent showed no concern about the
welt setting operation, despite Respondent's brief above,
until after the transfer of Boston.
Respondent's brief is correct in stating that as early as
the fall of 1968 Dempsey tried to persuade Boston to take
a machine job instead of pressing. But Dempsey wanted
Boston at that time to operate a machine "taping arm
holes" - not "the welt pocket" job as Respondent's brief
suggests . Dempsey acknowledged that, while she had
talked to Boston "an awful lot about her being on a press
when she should have been on a machine," she did not
refer specifically to the welt pocket job until an operator
quit "about 2 weeks before we transferred Joyce."
Dempsey's reference must have been to Christine Dabbs
who quit February 21.
The welt pocket job was a rough job. Admittedly it had
its problems and had had them for a long time. Much of
the operators' time was wasted because of poor bundling.
In addition, as Respondent's brief says, ". . there is
ample evidence in the record to believe that Respondent's
production standards on the inner `welt pockets' job may
be 'too high.' ..." Respondent's exhibits in evidence show
that from January 1 to May 31, 1969, 14 employees tried
the job. Those employees who made 100 percent efficiency
on the job were few and far apart. Respondent's brief
suggest that a good operator could make 100 percent
efficiency. The record is to the contrary. Those few who
did make 100 percent efficiency "quit voluntarily" and
quickly. The longest tenure , according to the records
available, was 5 months, the four shortest were a week or
two. Admittedly the job had what was euphemistically
called a "bad reputation" in the plant with Respondent's
admission quoted above probably constituting an integral
part of the reasons therefor. It was not the type of job one
would give to a friend.
About the end of January Dempsey again suggested to
Boston that Boston take a machine job taping arm holes.
When Boston refused because she liked the pressing job
and the money she made there, Dempsey rather
prophetically inquired as to what Boston would do if
Dempsey should make her take a machine job.
When on February 5 operator Ensley voluntarily quit,
there were only four "welt pocket" operators. The job was
verging on the critical. But Ensley was not replaced. No
one was hired , no one was transferred, and no one was get
to learning the job. Perhaps this was caused by the fact
that one would not make friends and influence voters (for
the February 13 election) by assigning anyone to a job
with such a proven bad reputation.
But about 5 days after the election with the Union
defeated, Dempsey first suggested to Boston that she
transfer to the welt pocket job. Boston refused the transfer
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but offered to, and did, help out on that job in her spare
and overtime. Then on February 21 welt operator Dabbs
voluntarily quit and then there were three. The job now
was critical but still with no one hired, no one transferred,
and no one being trained. Dempsey contended that this
was due to the fact that experienced operators could not
be hired and that it would cost the Company $800 to train
a new operator. However the record shows 32 experienced
machine operators hired in January and February with 10
of those in February.
Then on February 27, less than a week later,
Respondent made its move . Boston , the union advocate,
was informed that on the following Monday she became a
welt pocket operator "or else ." Boston was the first and
only employee so approached or so treated in the history
of the plant . Boston was given an option : She either took
the job or she was unemployed. It was a typical "heads I
win, tails you lose" proposition . Boston could
"voluntarily" quit and Respondent would be rid of a
known strong union advocate . Or Boston could capitulate
taking a $20 (approximate) per week reduction in pay
and, in addition , helping Respondent solve a critical
production problem. Either way Respondent stood to win:
If Boston quit , Respondent was rid of one strong union
advocate; if she stayed, she became an object lesson for
her prounion colleagues.
At the time Dempsey assured Boston that the transfer
was not being made because of "meanness" on her part,
an interesting observation . Boston appeared to agree that
the transfer was dictated from above when she said, "If
that is what you have to do, go ahead and do it."
The transfer was immediate, beginning on February 28.
About 10 days after Boston had capitulated Respondent
first began to hire and/or transfer and/or teach others for
the welt pocket job.
Although Dempsey claimed that Boston was the only
employee with experience who could have been transferred
to the job , the record is again to the contrary. For
instance , Sue Jacobs had been transferred out of welt
setting as late as January 12 so that she was experienced
and was at that time still in Respondent ' s employ. Then
there was Peggy Holder . But Dempsey testified that
Holder could not have been transferred to welt setting
because it would have taken "4 operators" to replace
Holder in the job she was then doing. This would have
meant that Holder was operating at 400 percent
efficiency , which is a figure not seen nor even approached
in any of the records available here . Obviously, to
understate the matter , Dempsey exaggerated . There was,
among others, Mildred Rogers with experience but Rogers
was known to be antiunion . Furthermore there were a
number of available "utility girls" which is exactly where
Boston had attained her experience in the welt pocket job.
But, according to Dempsey , utility girls were hard to
come by . So the prounion Boston was the first and only
employee transferred or considered for transfer.
Despite Dempsey ' s disclaimer that "meanness" had
anything to do with the transfer, the facts quite clearly
indicate that Boston had been selected for the job with the
bad reputation in retaliation for her activities on behalf of
the Union . None of Respondent' s other attempted
explanations make sense.
Although the facts spell out a discriminatory transfer
clearly enough , Dempsey and President Frank Hardwick
themselves supplied corroboration to that a few days after
the transfer of February 28.
Within a few days of this "or else" transfer , Boston
asked permission of Dempsey to see Respondent President
Frank Hardwick. Dempsey informed Frank Hardwick
that Boston desired to see him about the March 3
transfer.
After reporting back to Boston that Hardwick had
refused Boston the requested interview on the matter on
the grounds that Boston had not listened to him a few
weeks before (during the election campaign) so he would
not listen to Boston now, Dempsey proceeded to tell
Boston of the troubles and hardships Boston and the other
union advocates had caused in the plant and then,
standing at the machine where Boston was doing the welt
pocket job she never wanted, Dempsey inquired, "Well,
has it been worth it?"
The full significance of this parting remark came a day
or two later when Boston succeeded in getting herself into
Hardwick's office. Boston quoted the Dempsey report that
Hardwick refused to listen to Boston because she had
refused to listen to him previously. Hardwick stated that
that was not exactly what he had told Dempsey and stated
that exactly what he had said was that Boston had refused
to show him "any consideration" when she worked so
hard to get the Union into the Company and that he
would show Boston no consideration now. Hardwick
concluded the conversation with, "It's not all unions I
hate, Joyce. Just the Amalgamated. . . I wish I could
make you happy because I like to make people happy but
as I say, you showed me no consideration and I can show
you none now."
If perhaps Hardwick's remark does not prove the
discriminatory nature of Boston's transfer to an unwanted
job, it does prove beyond peradventure of a doubt that
President Frank Hardwick had no intention of even
considering the complaint of discrimination which he
knew Boston intended to present or, much less, rectifying
any such discrimination solely because Boston had had the
temerity to continue her work towards unionization even
after Respondent had clearly indicated that Respondent
desired its employees to abandon the rights guaranteed
them by Section 7 of the Act. Refusing to consider an
employees complaint regarding her tenure or conditions of
employment solely because of the grievant' s union
membership and activity amounts to interference,
restraint, and coercion and thus is violative of Section
8(a)(1) 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 Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship 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 has engaged in certain
unfair labor practices, I shall recommend that the
Respondent cease and desist therefrom and that it take
certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent discriminated in regard
to the hire and tenure of employment of Joyce Boston by
transferring her on February 28, 1969, from a presser's
job, which Boston wanted, to the welt pocket machine job,
which Boston did not want, because of her membership in
HARDWICK CLOTHES, INC.
and activities on behalf of the Union, I will recommend
that Respondent offer Joyce Boston immediate and full
reinstatement to her former position as a presser, without
prejudice to her seniority or other rights and privileges
and make her whole for any loss of pay she may have
suffered by reason of said discrimination against her by
payment to her the sum of money equal to that she lost
by reason of the unwanted transfer to the welt pocket
machine job from the date of the transfer, February 28,
1969, to the date of offer of her reinstatement to the
presser's job, less her net earnings during such period, in
accordance with the formula set forth in F. W
Woolworth Company, 90 NLRB 289, with interest
thereon at 6 percent per annum.
There is testimony in this record to the effect that by
the time of the hearing herein Boston had come to the
conclusion that she liked the welt pocket machine job.
That being the case I hereby provide that Respondent
offer Boston reinstatement to her presser's job but that
Boston shall have the option of either returning to the
presser's job or retaining the machine job as she desires.
Regardless of her decision Respondent is to pay Boston
the difference in the amount of pay she would have earned
as a presser over that which she did earn on the welt
pocket job to the date she determines which job she will
retain.
Because of the variety of the unfair labor practices
engaged in by Respondent , I sense an opposition by
Respondent to the policies of the Act in general, and
hence I deem it necessary to order Respondent to cease
and desist from in any manner infringing upon the rights
guaranteed its employees in Section 7 of the Act.
Upon the basis of the foregoing facts and upon the
entire record in the case, I make the following.
CONCLUSIONS OF LAW
1. Amalgamated Clothing Workers of America,
AFL-CIO, is a labor organization admitting to
membership employees of Respondent.
2. By discriminating in regard to the hire and tenure of
employment of Joyce Boston, by transferring her on
February 28, 1969, to an unwanted machine job as a welt
pocket operator because of her membership in and
activities on behalf of the Union, Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
3. By promising its employees paid vacations if said
employees would refrain from activities on behalf of the
Union and by refusing to consider any grievance on the
part of Boston because of her membership in and
activities on behalf of the Union, Respondent has engaged
in interference, restraint, and coercion in order to
discourage its employees from union membership and
activities in violation of Section 8(a)(l) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
I recommend that Hardwick Clothes, Inc., Cleveland,
Tennessee, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Transferring any employee or otherwise
discriminating in regard to the hire and tenure of
697
employment or of any term or condition of employment
of any of its employees because of their membership in or
activities on behalf of Amalgamated Clothing Workers of
America, AFL-CIO, or any other labor organization of
their choice.
(b) Promising its employees benefits of any nature if
they will refrain from union membership and activities or
refusing to discuss grievances with an employee because of
her membership in or activities on behalf of the Union.
(c) In any other manner interfering with , restraining, or
coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Joyce Boston immediate and unconditional
reinstatement to her former pressing job without prejudice
to her seniority or other rights and 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 hereof entitled "The Remedy,"
with interest thereon at 6 percent per annum . It is to be
understood that Boston shall have the option of returning
to her former pressing job or retaining her present
employment as a welt pocket operator as she may desire.
(b) 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.
(c) Post at its plant in Cleveland , Tennessee , copies of
the attached notice marked "Appendix ."" Copies of said
notice, on forms provided by the Regional Director for
Region 10 , after being duly signed by Respondent's
representative , shall be posted by Respondent immediately
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.
(d) Notify said Regional Director , in writing , within 20
days from the receipt of this Decision , what steps have
been taken to comply herewith.'r
IT IS FURTHER RECOMMENDED that, unless Respondent
notify said Regional Director within 20 days from the
receipt hereof that it will take the action here
recommended , the Board issue an order directing
Respondent to take the action here recommended.
"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
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read " Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Act, as amended , we hereby notify our
employees that:
WE WILL offer Joyce Boston her former presser's
job, without prejudice to her seniority or other rights
and privileges , and WE WILL pay Joyce Boston for any
loss of pay she may have suffered because of our
discriminatory transfer of her on February 28, 1969,
together with interest thereon at 6 percent per annum.
WE WILL NOT promise our employees benefits on
condition that they refrain from union membership or
activities and WE WILL NOT refuse to process grievances
or complaints because of the union membership or
activities of the grievant.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
right to self-organization , to form labor organizations,
to join or assist the Union named below or any other
labor organization , to bargain collectively through
representatives of their own choosing , and to engage in
other concerted activities for the purposes of collective
bargaining or other mutual aid or protection.
We assure you all that you are free to join or not to
join Amalgamated Clothing Workers of America,
AFL-CIO, or any other union , as you see fit in your own
judgment , without any interference from us in any way,
shape , or form.
Dated By
HARDWICK CLOTHES,
INC.
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office , Room 701, 730
Peachtree NE., Atlanta , Georgia 30308, Telephone
404-526-5760.