Kellwood Co.

National Labor Relations Board - Board Decisions

Oct 29, 1973

206 N.L.R.B. 665 (N.L.R.B. 1973)

KELLWOOD COMPANY
Kellwood Company and International Ladies ' Garment
Workers' Union, AFL-CIO. Cases 9-CA-7115 and
9-RC-9424
665
it hereby is, remanded to the Regional Director for
the purpose of conducting a new election.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
October 29, 1973
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS JENKINS, KENNEDY AND PENELLO
On May 17, 1973, Administrative Law Judge Her-
zel H. E. Plaine issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions, a supporting brief, and a motion to reopen the
record, and the Charging Party filed an answering
brief and a response to Respondent's motion to re-
open the record.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions, briefs, mo-
tion, and response, and has decided to affirm the
rulings, findings,] and conclusions of the Administra-
tive Law Judge, as modified herein,2 and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Kellwood Company, Bowl-
ing Green, Kentucky, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
IT IS FURTHER ORDERED that the election conducted
on March 31, 1972, in Case 9-RC-9424 be, and it
hereby is, set aside, and that Case 9-RC-9424 be, and
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd. 188 F 2d 362 (C.A 3) We have carefully examined the record and find
no basis for reversing his findings
2
We agree with the recommendation of the Administrative Law Judge that
the election should be set aside on the basis of the Employer's objectionable
conduct. However, in so concluding, we rely only on the Administrative Law
Judge's findings that Respondent's supervisor made a widely circulated
threat that the Employer would close the plant if the Union came in, and that
some of Respondent's supervisors and trainers either placed "Vote No"
badges on their work floor desks or directly proffered them to employees
before and during the election In view of this conclusion, we deny the
Respondent's motion to reopen the record to adduce evidence relating to the
showing of a film to the Respondent's employees
DECISION
HERZEL H. E. PLAINE, Administrative Law Judge: This
proceeding consolidated for trial certain unresolved objec-
tions of the Charging Party-Petitioner (the Union) to con-
duct of the Respondent-Employer (the Respondent) that
was claimed to have so affected the outcome of the repre-
sentation election conducted by the Board at Respondent's
Morgantown, Kentucky, plant on March 31, 1972, as to
require that the election be set aside for a new election (Case
9-RC-9424); and Respondent's alleged unfair labor prac-
tice, in violation of Section 8(a)(3) and (1) of the National
Labor Relations Act (the Act), by the postelection discharge
on June 15, 1972, of employee Ruth Hunt (Case 9-
CA-7115).
In the representation case, the Union lost the election by
a 2 to 1 ratio, 121 for-244 against, out of 394 eligible voters.
By the Regional Director's report of November 13, 1972
(Exh. GC 2(e) ), affirmed by the Board January 9, 1973
(Exh. GC 2(k) ), the Union's objections to conduct affecting
the election were overruled, save three that referred for the
evidentiary hearmg held in this case. These were (Objection
1) an alleged barrage of communications by Respondent to
the employees depicting strikes, violence, and loss of jobs as
the inevitable consequence of unionization, thereby impart-
ing a sense of futility in the selection of a bargain represen-
tative; (part of Objection 4) claimed threats by Respondent
to close the plant and leave Morgantown if the Union came
in; and (Objection 6) alleged interrogation by Respondent
of employees about their union sympathy and affiliation
and how they intended to vote. Respondent has denied
committing such conduct, and has asserted that what it said
in the preelection campaign was permissible comment that
did not interfere with a fair election.
In the unfair labor practice case, the complaint was issued
August 4, 1972, on a charge filed by the Union June 19,
1972. The General Counsel and Union contended that the
discharge of employee Hunt on June 15 was discriminatory,
as the result of her continuing interest in unionization of the
plant and to discourage unionization not only at the Mor-
gantown plant but also at Respondent's nearby plant at
Brownsville, Kentucky, where the Union was then conduct-
ing a fresh organizing campaign.
Respondent claimed that the discharge was purely disci-
plinary because employee Hunt had walked off the shop
floor on the day before discharge without permission.
The order consohdating the two cases for trial was issued
March 2, 1973. Trial took place March 13-14, 1973, at
Bowling Green, Kentucky. All three parties have filed
briefs.
Upon the entire record in the cases,] including my obser-
Respondent has moved, on notice to the parties, for several transcript
Continued
206 NLRB No. 118
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vation of the witnesses and consideration of the briefs, I
make the following:
FINDINGS OF FACT
I JURISDICTION
Respondent is a Delaware corporation engaged in the
manufacture of wearing apparel at a number of plants in
several States, including a plant at Morgantown, Kentucky,
which is the plant principally involved in the present cases,
and (until, November 1972) a plant at Brownsville, Ken-
tucky, 25 miles away from Morgantown.
In the representative period of a year prior to filing of the
complaint, Respondent sold and shipped goods valued in
excess of $50,000 from its Morgantown, Kentucky, plant
directly to customers located outside Kentucky.
As it admits, Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act, as the parties admit.
II UNFAIR LABOR PRACTICES
Discharge of Employee Hunt
The Union began its organizing campaign at the Morgan-
town plant in August 1971, with a first introductory hand-
billing on August 17, 1971 (Exh. R 1(1) ), According to
Union Organizer David Freeland (and employee testimo-
ny), meetings were held with employees, starting with a first
meeting at Dodge City, 18 miles away, a second meeting at
Quality, 12 miles away, and the third and subsequent meet-
ings., (up until the election) in Morgantown at a church
auditorium. The handbilling also continued until the elec-
tion (see Exh. R 1(l)-(24) ).
By at least November 15, 1971, the Union had formed an
employees' "Committee in Favor of Unionization, ILG-
WU," composed of volunteer unpaid members, to answer,
it was said, Plant Manager Joe Bates' charge, made in coun-
terpropaganda to employees, that the Union was comprised
of professionals interested in money to be realized from
employee dues, and to demonstrate that employees com-
prised the Union that Bates was attacking (Exh. R 1(2),
November 15, 1971). On November 18, 1971, the Union
claimed that 26 additional employees had volunteered for
the unionization committee, to bring the then number to 49
members. The Union sent a teelgram to Plant Manager
Bates, naming the employees and requesting that he accord
them the rights and guarantees of the Act (Exh. GC 3, R
1(3) ); and Bates acknowledged in his testimony that he was
corrections, which have not been objected to and which are in order. While
there are also a goodly number of other corrections that might have been
suggested on all sides , since the correct intendment of the language is fairly
ascertainable from the context in which the errors appear, I have limited the
corrections to these proposed by Respondent, plus one formal change
throughout the transcript. Accordingly, it is Ordered that the transcript of
the proceedings is corrected as follows [corrections omitted from publica-
tion].
informed from time to time by the Union of the employee
membership of and accretions to the unionization commit-
tee.'
One of the employees who became a member of the
unionization committee and was named as a member in a
union telegram to Respondent was Ruth Hunt. Employee
Hunt began attending the union meetings regularly begin-
ning with the third meeting, signed a union authorization
card, volunteered for service on the employee committee,
and took part in the distribution of union authorization
cards, passing out about 8 or 10, she said. She brought in-
one signed card, employee Hunt said, although, in the main,
individual mailing in of the signed cards by the signers was
contemplated and done by use of preaddressed postage-
paid envelopes distributed with each card (see attachment
to Exh. R 1(1) ). `
Employee Hunt testified that as a member of the employ-
ees' unionization committee she talked to a number of the
women (women comprised 95 percent of the employees)
about joining, wore a union smock (in the nature of a cover-
all over regular clothing) in the plant, gave out four other
smocks which worn in the plant by other women employees,
wore a union pin on her clothing; and kept a union calendar
at her machine.
The representation election was held on March 31, 1972,
and, although the results were adverse to the Union, em-
ployee Hunt continued to wear her union smock and union
pin and to keep her union calendar at her machine. In
contrast to the preelection period, she became one of only
a very few employees throughout the plant who continued
to wear and display the union insignia after the election.
Her supervisor, Mary McKinney, acknowledged that this
was so, testifying that while she supervised about 25 em-
ployees at the time of the election, of whom 9 or 10 were
members of the employee unionization committee and sev-
eral of whom wore union smocks before the election, em-
ployee Hunt was the only,one under her supervision who
continued to wear the union smock after the election.
It was well known to management and members of super-
vision, in addition to Supervisor McKinney, that employee
Hunt was a union advocate. Plant Manager Bates testified
that he observed employee Hunt wearing her union smock
in the plant, and was apprised of her membership on the
unionization committee by written communication from
the Union's lawyers. Plant Engineer John Boyle and em-
ployee Hunt had discussions concerning the Union, as Hunt
testified and Boyle conceded. In a conversation about the
probable outcome of the election following the election,
involving employee Hunt, employee Nada Givens (a quality
control employee), and Supervisor Mary McKinney, Mc-
Kinney expressed the view, according to Hunt, that the
Union would not win the election. Hunt replied, she said,
that she didn't know who would win but, if the Union lost,
it would be back again after its year (of required waiting)
was up. (Supervisor McKinney denied that she was part of
this conversation, but I do not credit her denial. The little
management drama enacted June 14-15, 1972, described
hereafter, affecting employee Hunt, in which Supervisor
McKinney, Plant Engineer Boyle, and Plant Manager Bates
participated, suggests the contrary.)
Employee Hunt was an employee of long experience with
KELLWOOD COMPANY 667
Respondent , and one of its very capable employees. Both
Supervisor McKinney and Plant Engineer Boyle rated her
an excellent sewing machine operator ; and Boyle, whose job
was timing and rating of piecework operations , noted that
employee Hunt regularly exceeded sewing production
norms . When employee Hunt came to Respondent she al-
ready had 2 years ' sewing experience with another local
maufacturer . She began with Respondent in February 1964
at the Brownsville plant , where she worked for 5 years. Her
first 3-1 /2 years there were as a sewing machine operator,
setting linings and pocketsetting . She was then promoted to
supervisor, and for a year and a half supervised about 50
women doing pocket and sleeve setting. In 1969, Mrs.
Hunt's husband was killed in an automobile accident and
she was left as the sole support of six children . Having no
other family in the Brownsville area but having family in the
Morgantown area , employee Hunt requested and was given
a transer to Respondent 's Morgantown plant . While there
were no openings as supervisor at the Morgantown plant,
she did not want or seek supervisory duties , she said, be-
cause of her increased responsibilities at home ; and, after
a brief leave for her husband 's death , went back to work at
Morgantown as a sewing machine operator in mid-June
1969.
Thus by mid -June 1972 employee Hunt had had over 10
years ' sewing experience , and had been employed by Re-
spondent for more than 8 of those years as sewing machine
operator and supervisor . On the morning of June 15, 1972,
she found herself peremptorily discharged by Respondent
in the following circumstances.
In the period of approximately 6 months before her dis-
charge (from about December 1971, said Supervisor Mc-
Kinney) employee Hunt had become a back joiner on coats.
She had previously been doing pocketsetting under Mc-
Kinney 's supervision . After a temporary start , Mrs. Hunt
was assigned to backjoining permanently , and, as she and
McKinney agreed, was the only operator doing backjoining
on coats in that period.
In the afternoon of June 13, 1972, Supervisor McKinney
did a timing on employee Hunt 's work , telling her it was a
rate check , but saying, when asked by Hunt , that she did not
know if it meant a rate cut. The following morning , June 14,
Plant Engineer Boyle came by and timed employee Hunt
for about an hour . Boyle went back to his office , he said,
and made a study. He concluded that the rate at which
employee Hunt was doing backjoining was "loose" or too
low, meaning , he said, that the rate reflected less units per
day than she was producing.
Plant Engineer Boyle called in employee Hunt with Su-
pervisor McKinney present, about or after 2:30 p.m. the
same day, June 14, and told Hunt that the production unit
rate (upon which her money rate per hundred was de-
termined), namely 650 units per day, was too loose and that
he had determined that it would be 925 units per day, a 50
percent increase in units to be produced (if she were to
approximate her current daily earnings ). In terms of her
dollar rate , for piecework , said Boyle , it meant that employ-
ee Hunt would be getting less money per hundred (gar-
ments) than she was then working for. Hunt said she was
told that her current rate of $2.83 per hundred was cut to
$1.89 per hundred (omitting the fractions ), or a rate cut of
almost a dollar per hundred.
Combining the testimony of the three participants (which
was not in any serious disagreement), it was evident that
employee Hunt was shocked and became upset and dis-
traught as the meeting progressed . She said she had experi-
enced a rate cut before (at Brownsville) but nothing as
drastic as this , and said this was unfair . Boyle said he ex-
plained Respondent 's aim to achieve uniform rates through-
out the plant and to smooth out highs and lows . Employee
Hunt said that the new rate did not take into account her
experience and ability and allowed her to earn no more than
an employee who had been hired 3 or 4 months before.
Plant Engineer Boyle replied that she was an above average
worker, whom he rated as a 130 percent worker , and would
still be earning at 130 percent under the new rate . Hunt said
she couldn't see working so hard to produce the same
amount of work for less money. She added she did not want
to give up her job , she needed it to support her six children,
but wouldn't it be cheaper to keep her at the present rate
than hire two others to do her work . (In this connection, it
was pointed out that employees who did not make their
production at piecework rates earned at least the $1.80 per
hour minimum wage .) Boyle replied the place would run
without her , and McKinney said there was another girl in
the shop who could do her work.
Employee Hunt was in tears as the talk progressed, said
she was too upset to work , and asked permission to go
home . Supervisor McKinney told her that was no reason,
that she should wash her face and go back to work. They
talked some more, and employee Hunt became more upset,
again asked permission to go home , and was again refused.
After further talk, Hunt asked a third time and, on being
refused , told McKinney she was too upset to work, was
going home , and would see her in the morning . (McKinney
denied that this last was said .) McKinney replied , as Hunt
and she testified , that Hunt was leaving unexcused. This
was at approximately 3:10 or 3 : 15 p.m. just before the regu-
lar end of the day at 3 : 30 p.m. (McKinney and Hunt dis-
agreed as to whether Hunt had been told earlier in the day
that she was expected to work an hour overtime that day;
and while McKinney claimed at trial that Hunt said , fire me
if you want to, as she left , McKinney also testified that in
a written report she prepared immediately for Plant Manag-
er Bates and delivered to his office that afternoon , she re-
ported only that employee Hunt got up and left.)
In the course of the discussions during the day before she
left the plant , employee Hunt asked if she could talk to
Plant Manager Bates and was told he wasn't there; and
while Plant Engineer Boyle and Supervisor McKinney deny
that this happened , the fact is that Bates was not at the
plant, that employee Hunt called his home that afternoon
or evening, left a message with his wife that she wanted to
see him , and Bates' wife gave him the message when he got
home that night . But Bates was fully informed before then.
Plant Manager Bates had been in Bowling Green, Ken-
tucky, that day , June 14 , in meetings at Respondent's re-
gional office , and then at a company-given dinner early that
night , also in Bowling Green. Plant Engineer Boyle knew
where Bates was . Although, as Boyle said , the business of
rating and rerating jobs and persuading employees of the
correctness of his ratings ("rate sales" he called them) was
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
common, routine business, nevertheless, following the con-
clusion of the meeting from which employee Hunt walked
out, Boyle immediately telephoned Bates at Bowling Green
to tell him that employee Hunt had left the plant over the
"rate sale." Supervisor McKinney sat down following the
meeting and in longhand wrote out a report for Plant Man-
ager Bates concerning employee Hunt leaving the plant,
and carried the report forward to Bates' office before the
end of the working day. (Bates had the report in his hand
when he saw employee Hunt early next morning.) Tom
Forshee, plant personnel manager, went over to Bowling
Green that night (June 14), and attended the company din-
ner, and told Plant Manager Bates about employee Hunt's
leaving the plant.
The next morning, June 15, before the 7 a.m. starting
time, employee Hunt returned to the plant for work. Super-
visor McKinney, who said she was surprised to see Hunt
return, observed her coming in through the parking lot, and
hastened to tell Plant Manager Bates that Hunt was in the
plant.
When employee Hunt came into the plant, one employee
told her she had heard Hunt had quit, and another said she
had heard that Hunt had been fired, whereupon Hunt said
she had better go to the office. She did, and Plant Manager
Bates told her she no longer had a job with Respondent.
Employee Hunt asked Bates if he had the facts, according
to Bates, and he said he had the facts from Supervisor Mary
McKinney, here on a pad. As gates said he put it, "under
the circumstances you walked out of the plant," and, "there-
fore I have nothing else to do but to terminate you."
Respondent's Explanation
Plant Manager Bates claimed he made the decision to fire
employee Hunt on the morning of June 15, 1972, although
he conceded he had thought about it on the night of June
14. He said he listened to her story on the morning of June
15, but it is plain from both his and Hunt's testimony,
summarized above, that they never got to the drastic wage
cut and her resultant distress that underlay her leaving the
plant before closing time on June 14. Bates testified that he
was already aware that employee Hunt had been upset, but
that it was his policy, since he became plant manager on
October 1, 1971 (he had been assistant plant manager for 2
years prior), to automatically terminate any employee who
walked out without permission.
Other than Bates' say-so at trial, there was no evidence
of such an automatic plant rule or of any discharge rule on
employees' leaving the plant, nor evidence of any an-
nounced change of policy from existing practice (when
Bates became full plant manager) under which the employ-
ees (almost entirely women) occasionally left the plant with-
out permission, and not necessarily for stated or good cause,
and were permitted to resume work when they came back.
Indeed, ever since becoming full manager, Bates conceded
that in January 1972 he had restored to employment a sew-
ing machine operator who was dismissed after walking out
in December, without explanation or permission, when giv-
en some garments for repairs. A relative of the employee
had intervened after she walked off and by investigation it
was discovered that the garments requiring repairs had not
been the dismissed employee's work. Bates testified that as
a result 'of looking into the matter he considered that the
employee (Fugate) had, to an extent, a valid reason for
having been upset and leaving even without explanation,
hence she was put back to work.
Plant Manager Bates acknowledged that earlier, as assis-
tant plant manager, he had restored to their jobs two em-
ployees (Nations and Warren) who walked off the job in
anger because of a rate adjustment they thought was a rate
cut. Their action was insubordination, said Bates. Neverthe-
less, when they telephoned back to ask for their jobs admit-
ting, said Bates, that they were wrong in walking off, he took
them back-and one was still in the Respondent's employ
at the time of the trial.
Trainer Opal Phelps, who had 9 years' experience with
Respondent (plus over 2 years with another sewing plant in
Morgantown), and trainer Jacqueline House, who had 5
years' experience with Respondent: both called as
Respondent's witnesses in another connection-testified
they had known employees, disgruntled or angry over rates
or rejects, to leave the plant without permission and be
permitted to return. Phelps said it was not an uncommon
event; House said it was not usual, but that it happened?
Plant Manager Bates indicated that in the discharges of
employees, Respondent had a system of two prior warnings
before effectuating a discharge, but contended the system
did not apply to a cause such as walking off the floor with-
out permission-that was cause for automatic dismissal, he
said.'
Plant Manager Bates testified that it was common knowl-
edge at the time of employee Hunt's discharge that the
Union was organizing the employees of Respondent' s near-
by Brownsville plant, that it was a matter of concern to the
Company, and that the company higher-ups were notified
and kept informed when such organizing took place. In this
regard, employee Hunt likewise testified that it was com-
mon knowledge among the Morgantown plant employees
that the Union's organizing campaign at the Brownsville
plant had begun in the latter part of May 1972; and Union
Organizer Freeland testified that at the June 14, 1972, meet-
ing of the Brownsville employees, the Union announced it
had signed up a majority of the employees.
Section 8(a)(3) and (1) Findings
The precipitate and uncompromising manner in which
Respondent dealt on June 14-15, 1972, with longtime em-
ployee Ruth Hunt, who had an exemplary record in perfor-
2 In her own case , said trainer House, she left the plant one day in late 1971
and sent back word that she wasn't coming back, and was later rehired as
a new employee early in 1971 Production Manager Franklin also testified
to two cases of rehiring employees who quit and later reapplied.
3 Plant Manager Bates claimed that there were two warnings in employee
Hunt's file, copies of which he admitted were not given to her, one for
allegedly refusing to work overtime on Saturday, the other for allegedly
taking home a work sheet at night. Bates and Respondent's counsel conceded
that employee Hunt's discharge was not because of, or grounded upon, these
two alleged previous warnings. While the file was not offered, it is noteworthy
that although Hunt was an employee for over 8 years, the two alleged infrac-
tions were in November 1971 and April 1972, after the appearance of the
Union and the unionization committee at Respondent's plant Bates testified
that there were no warnings to her before November 1971.
KELLWOOD COMPANY 669
mance of her work and personal conduct, spanning more
than 8 years as both employee and supervisor at its Morgan-
town and Brownsville plants, suggests that the only reason
for such treatment and discharge was her persistence as a
union advocate. There was no legitimate cause, real or
claimed, in employee Hunt's history with Respondent prior
to the afternoon of June 14, 1972, for discharging her, and
the means adopted for providing the purported cause on
June 14 suggests deliberate provocation by the plant man-
agement. Handing employee Hunt a cut in wages that
would reduce her then current earning capacity by one-
third to one-half, and basing that cut upon her performance
alone, which was admittedly superior performance well
above plant average, had the appearance of a calculated
attempt to force her to quit. This is borne out by the imme-
diate reporting of her reaction to the announcement and her
leaving the plant, to Plant Manager Bates, by the plant
engineer and plant personnel manager while Bates was
away from the plant in another town for the day, without
waiting for his return next day; and the immediate writing
up for Bates of a report on the matter by employee Hunt's
supervisor. A routine piece rate or wage adjustment of a
single employee in a plant of almost 400 women would
hardly merit such special attention.
, However, this case was special to Respondent, because of
its preoccupation with defeating, and keeping defeated,
union organization in the Morgantown and Brownsville
plants. Respondent's bitter opposition to the Union was
exhibited in the 26 pieces of antiunion campaign literature
distributed to employees or posted in the Morgantown plant
during the preelection period (Exh. GC 2(e), attachments
1-26), and in the antiunion preelection conferences with
and movie for the employees, some of which is discussed
under heading III, infra. With the union organization effort
reappearing again and burgeoning at nearby Brownsville in
June 1972, after Respondent seemingly defeated it 2 months
earlier at Morgantown, Respondent was apparently quite
prepared to be rid of an employee, no matter how capable,
who continued to display the symbols of unionization for
the employees at Morgantown even after the March 31
defeat.
Understandably, employee Hunt had been left distraught
by the enormity of the cut in her earning capacity, and was
no doubt incapable of functioning properly at her work for
the balance of the afternoon of June 14 when told of it. But
as a widow with six children to support, she did not enjoy
the luxury of quitting, and, while she went home before the
normal end of the day, she did not quit and reported for
work on the morning of June 15. If
That employee Hunt had not quit under the economic
blow administered to her on June 14 was a surprise to
Supervisor McKinney, and she ran to tell Plant Manager
Bates that Hunt was back in the plant the following morn-
ing. Notwithstanding the earlier reports of his subordinates
in the late afternoon and evening of June 14 that employee
Hunt had quit or may have quit the job, Bates knew, if only
from his wife's report, that she had not, at least by the night
of June 14. So he administered the coup de grace and fired
employee Hunt, using the pretext that she had violated a
plant rule by walking off the plant floor the previous day
without permission.
If there was such a rule (and there was nothing but Plant
Manager Bates' claim that there was), the evidence indi-
cated that it was not automatically applied to effect dis-
charges without regard to reasons, as Bates claimed; that in
practice employees walked off and back to the floor, some-
times with, and sometimes without, good reasons; and that
on recent occasions Bates himself had permitted employees
who walked off to continue with their employment, in one
case where he investigated and felt there had been good
cause for the employee walking off, and in another where
he thought there had not been good cause.
Whether or not Respondent had planned before June 15
to be rid of employee Hunt by one method or another, her
discharge on June 15 was clearly discriminatory. By invok-
ing and applying automatically an alleged discharged rule
that would not have been invoked, or applied automatically,
but for employee Hunt's continued open espousal of union
organization of the employees, Respondent sought to con-
ceal its real reason for the discharge, to discourage unioniza-
tion of its employees, in violation of Section 8(a)(3) and (1)
of the Act. N.L.R.B. v. Iron City Sash and Door Co., 352 F.2d
437, 438-439 (C.A. 6, 1965); N.L.R.B. v. Schnell Tool and
Die Corp., 359 F.2d 39, 44 (C.A. 6, 1966); and see holdings
in N.L.R.B. v. Ulbrich Stainless Steels, Inc., 393 F.2d 871,
872 (C.A. 2, 1968), that the stated ground was not the real
ground for the discharge; and Shattuck Denn Mining Corp.,
362 F.2d 466, 470 (C.A. 9, 1966), that the stated ground was
designed to conceal the unlawful motive.
Respondent argues in its denfense that other known
union adherents among the employees were not discharged.
For one thing, few of the union advocates among the Mor-
gantown plant employees continued ' to display their advo-
cacy openly, after the March 31, 1972 election, as did
employee Hunt, who (also unlike most of the others)'had
employment roots in both the Morgantown and Brownsville
plants. For another thing, the fact that Respondent did not
discriminatorily discharge other active or passive adherents
of the Union does not absolve Respondent, or stay the hand
of the Board in correcting the action taken against the one
employee for impermissible reasons under the Act. "The,
punitive layoff of a single dissident may have-and may be
intended to have-an in terrorem effect on others, and the
Board need not wait until a party commits a gross violation
before it may find any violation at all. N.L.R.B. v. Chal-
lenge-Cook Bros., 374 F.2d 147, 152 (6th Cir. 1967)." The
Rust Engineering Co. v. N.L.R.B., 445 F.2d 172, 174 (C.A.
6, 1971).
III THE OBJECTIONS TO THE ELECTION
A. Communications to Employees
The first of the unresolved objections (Objection 1) to
conduct of Respondent affecting the results of the election
of March 31, 1972, at Respondent's Morgantown plant, was
an allegation that Respondent by a barrage of written and
oral communications to the employees depicted strikes, vio-
lence, and loss of jobs as the inevitable consequence of
unionization, thereby imparting a sense of futility in their
selection of a bargaining agent (Exh. GC 2(e), pp. 3-4).
Looking, first, at the ,26 letters, bulletins, and posters
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prepared by Respondent and distributed to its employees by
mail, or by hand in the plant, and posted on the bulletin
boards or walls in the period February 29, 1973, to the date
of election, March 31, 1973, they cover a variety of appeals
to the employees to reject the Union at the election by
voting "no." At least 10 of the letters, bulletins, and posters
(Exh. GC 2(e) attachments 1, 2, 5, 12, 14, 15, 16, 17, 20, and
25) reiterated separately or in combination a theme that
made three points:
(1) We (the Company) do not have to agree to the
Union's demands, even if it wins the election. We would
negotiate , but we do ' not have to agree to any demand or
proposal that we do not feel is in the best interest of the
plant. If we say no to the Union's proposals all it can do is
call on you, the employees, to strike.
(2) Unreasonable union demands and strikes have been
the principal causes in destroying many businesses, even
healthy ones. The Union's way means picket line violence,
hate, intimidation, fees, fines, dues, strikes , loss of freedom
to handle your own affairs. Our way means no mobs, or
violence or strikes, or threats , or unrest , and fair treatment
by management' This Union (ILGWU) has a long record
of tough strikes, over an approximate 5-year period, Janu-
ary 1966-September 1971 (listing on 11 pages over 150
strikes, by name and location of plants, number of employ-
ees, and duration of strike), and don 't risk adding Morgan-
town to the list. (In addition to other distribution, the
exhibit listing the strikes was blown up in size photographi-
cally and put in the plant cafeteria , where it covered a whole
wall of the cafeteria.)
(3) It's your job you are fooling around with, you and
your family would suffer. If the Union gets in we will have
to bargain with the Union regarding your jobs. If the Com-
pany refuses in good faith to give in to the Union's de-
mands, all the Union can do is call you out on strike. Your
pay stops immediately, that money is lost forever. Under
Kentucky law there is no unemployment compensation for
strikers. The Company can replace economic strikers. You
and the Company are in the same boat-if the business fails
we all lose . Your job security at Morgantown comes from
the Company, not from the Union. The apparel business is
very competitive. For economic reasons, the Company had
to close plants in Wilmington and Ahoskie, North Carolina,
they were no longer economically feasible to keep running.
We must all give our best efforts to avoid these problems.
Think carefully and vote no (followed by a poster composite
of five newspaper headlines and articles telling of five sepa-
rate garment plant closings and loss of jobs, and asking,
what did the union organizers do for the employees of these
companies).
In addition to the distribution and posting of its letters
and posters (the subjects of which are only partially covered
above), Respondent conducted preelection in-plant confer-
ences on working time with employees , usually in small
groups that comprised departments or other grouping of
employees , plus a few large conferences of all employees
(testimony of Supervisor Celia Drake and employees).
These small and large conferences were usually conducted
by Plant Manager Bates and, in general, covered much of
the same areas as the letters and posters . For example,
employee Lucy Mae Pindley, referred to a conference of
about ,40-45 employees (comprising two departments) that
she attended 2 or 3 days prior to the election , conducted by
Plant Manager Bates , where union dues were discussed.
Employee Lucy Mae Pindley also referred (as did other
employees) to the preelection conferences conducted by
Plant Manager Bates where each of the departments (in her
case about 25-30 women) were shown a movie purporting
to be concerned with a strike that occurred at Respondent's
plant in Little Rock , Arkansas, some years ago . According
to employee Pindley it was a movie in color and with sound
that showed fighting , a woman with her clothing torn, a man,
with a bloodied face, bottle or smoke bombs , a house
burned ; it showed Respondent's plant at Little Rock and
referred to the Union (ILGWU) on strike; and there were
voices of men and women in the happenings and discussing
the events . The movie ran from 20-30 minutes, she testified.
Lucy Mae Pindley saw the movie about 2 weeks before the
election.
Employee Lucy Jane Pindley also saw the same movie a
week before the election in a conference of her department
(of about 20-30 women) and another department . The mov-
ie, involved scenes from the strike of the Union at
Respondent's Little Rock plant, she said , and showed
bombing, and fighting , and carrying on. Likewise, employee
Dorothy Caudill of still another department testified to
being shown the same movie in a preelection conference
involving her department ; and Supervisor Celia Drake (who
supervised employee Lucy Mae Pindley ) also testified to
seeing the movie. It was apparent , from this sampling of
testimony , that the movie was shown to the employees of
each of the plant departments.
Respondent contends that the Union had its opportunity
to state its views to the employees, and did . The Union's
campaign literature was distributed outside the plant in the
form of handbills, as testified to by Union Organizer Free-
land; but , of course, not necessarily reaching all of the
employees , and not reaching those who received the hand-
bills with the same opportunity for thoroughness and expo-
sure as achieved by management's in-plant working hours
conferences with employees , and in-plant distribution and
display to all employees of the company literature, bulletins,
and posters , including the Little Rock movie . Looking at the
union literature (Exh. R 1 items (1)-(24), distributed from
mid-August 1971 to March 30, 1972 (the day before the
election) ), there were 17 handbills distributed before the
Respondent's counter campaign began on February 29,
1972. Of these seventeen, the only references to Little Rock
were in three handbills (items (6), (9), and (22) ), comparing
the alleged better pay and benefits under the union contract
at Little Rock with those at Morgantown without a con-
tract, and there was no anticipatory mention or dealing with
strike-violence claims . Of the seven handbills distributed
after the Respondent 's countercampaign began at the end
of February 1972, three (items (16), (17), and (18)) contin-
ued the previous comparison of Little Rock contract bene-
fits with the Morgantown pay and benefits , quoting from
the Little Rock union contract ; a fourth (item (15)) noted
that in connection with the Little Rock strike in 1967, the
Respondent had been found guilty of failure to bargain in
good faith and was in the process of having to pay backpay
to strikers, concluding that Respondent was trying to fright-
KELLWOOD COMPANY 671
en the employees with strike talk; and a fifth (item 20) took
the position that the strike talk was scare talk, and that most
of the Union's strikes that Respondent had listed for the
employees ended in a week's time or less.
As to the Little Rock movie,, Respondent provided no
evidence concerning its content countering the description
by the Union's witnesses. Instead Respondent relied solely
on an ex parte refusal in another Board region to issue a
Section 8(a)(1) complaint against Respondent for showing
the movie to employees in its Greenfield, Tennessee plant,
as establishing the propriety of the film's use here, if not
generally 4
B. Threat of Plant Closing
The second of the unresolved objection (part of Objection
4) relates to an alleged supervisor's threat that the Respon-
dent would close its doors if the Union went in.
The supervisor was Celia Drake, an admitted supervisor
under the Act, in charge of department 13, where employee
Lucy Mae Pindley worked at the time of the election in
March 1972 . Employee Pindley testified that she and Super-
visor Drake engaged in a conversation several days before
the election after Pindley had come out of one of Plant
Manager Bates' conferences with a group of employees
(Drake had not attended) concerning the Union and the
forthcoming election . According to employee Pindley, Su-
pervisor Drake asked Pindley what did she think of what
was said in the meeting by Plant Manager Bates. (Pindley
observed, on Respondent 's cross-examination of her, that
Supervisor Drake knew she had worked elsewhere at plants
where there were union and was in hopes that when she
went into the conference room she would change her mind.)
Pindley answered Drake that she didn 't believe part of what
was said, and explained why.
According to employee Pindley, Supervisor Drake be-
came angry and said that she, Drake , didn't believe in the
Union, and if the Union went in she would see to it that
Pindley would be fired . And, said Supervisor Drake, ac-
cording to employee Pindley, Mr. Bates had stated that he
would close the company doors before the Union went in.
Employee Pindley said that her training instructor Jac-
queline House was present at the conversation, but trainer
House (also a former supervisor), testifying for Respondent,
said that she had been present at several conversations be-
tween employee Pindley and Supervisor Drake , but not at
one where the Union was discussed.
Supervisor Drake conceded she had the conversation
with employee Pindley about the Union , and knew that she
had worked previously in an Indiana plant that was union-
ized, but denied telling Pindley she would see her fired if the
4 Exh. R 2, the charge, Exh. R 3, the Region's disposition, and Exh. R 4,
General Counsel's upholding of the Region, in the Greenfield matter, were
admitted as exhibits here for convenience in argument, but not as evidence
of any alleged facts. Thus, there is nothing authenticating the recitation in
Exh. R 4 that the movie "revealed no scenes of actual violence on the screen,
and . . . it could not be established that the movie had such an emotional
impact on the employees as to impinge upon their Section 7 rights"; nor is
there anything to indicate that the author of Exh. R 4 saw the film or was
doing anything more than borrowing from an ex parse report by an investiga-
tor, whose source of reliance is unknown.
Union came in, or that Plant Manager Bates had said the
plant- would close if the Union came in. Supervisor Drake
claimed that employee Pindley told her she was concerned
she would be fired because she raised questions in the con-
ference, and that she, Drake, tried to reassure Pindley she
would not be fired, that the Company wanted her to speak
her mind. In view of Respondent's oral, written, and pictori-
al bombardment of the plant in that period with its antiun-
ion propaganda (that included supervisors, as Drake
indicated in her testimony), I find it hard to accept that a
supervisor would suggest that the Respondent wanted to
hear its position on the subject of the Union questioned by
employees, and I do not credit Supervisor Drake's version
of the conversation or her denials.
Employee Pindley further testified that she related her
conversation with Supervisor Drake to several of her fellow
employees (naming two) on the way home late that af-
ternoon, and repeated it at the next union meeting where 40
to 50 people attended.
C. Coercive Interrogation
The third of the unresolved objections (Objection 6) relat-
ed to interrogation of employees by having supervisors or
supervisory related employees put rank-and-file employees
in the position of declaring themselves and disclosing their
choice in advance of the election by wearing "vote no"
badges in the plant.
Employee Lucy Jane Pindley worked in department No.
1 5 at the time of the election. Her supervisor was Vernita
Berry (an admitted supervisor under the Act).
Employee Pindley testified that Supervisor Berry had
"vote no" signs or badges on her desk before the election.
They were small pieces of paper about 2 or 3 inches in
diameter with the words "vote not" hand written or printed
on them, said Pindley.
According to employee Pindley, she saw about three or
four employees come by Supervisor Berry's desk during
work hours, while Berry was standing there, and take some
of the badges. The desk was a standup type desk. Berry
smiled when they took the badges, said Pindley, and the
employees stuck them on their clothes.
Supervisor Berry admitted that she saw "vote no" badges
on the machines in her department, and that they were both
printed and handmade, but denied that she had any or that
she saw any worn by employees. Other testimony, including
testimony by supervisory or supervisory related personnel,
supra indicated that such badges were worn by employees
in the plant, and I do not credit Supervisor Berry's denials.
Employee Minnie Pearl Johnson of department No. 13,
of which Supervisor Celia Drake was in charge, testified that
she received and wore on the day before the election (March
30) a "vote no" sign or badge given her by her inspector,
Sadie Lou Forsythe. At the end of the day, said employee
Johnson, Supervisor Drake came by to check and take
Johnson's production, and gave-her extra clockout time (to
which she was not entitled, said Johnson) and credit for
production of an extra bundle of garments not produced by
5 Not to be confused with Lucy Mae Pmdley of department No. 13, see
III,B , above.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her (in the form of a so -called "void" ticket), something that
had not happened before, she said . She had been an employ-
ee approximately 3 years. According to employee Johnson,
Supervisor Drake just grinned when she put the extra credit
on Johnson's work sheet. Employee Johnson further testi-
fied that , because she was below production , the additional
ticket credit did not increase her dollar earnings for the day,
she was paid the minimum $ 1.80 per hour, but it added to
her account making her production for the day look better.
She said she told three or four other employees that same
day what had happened.
Supervisor Drake admitted seeing employee Johnson
wear the "vote not" badge, but claimed it was on the elec-
tion day, March 31, not the previous day, March 30.
Respondent produced employee Johnson's worksheet for
March 30 (Exh. R 5). It showed that Johnson was paid for
8 hours though clocked for only 7-1/2 hours, but did not
have a "void" ticket pasted on it along with the other tickets.
Supervisor Drake claimed that the half-hour clockout time,
for which employee Johnson was paid , was for time spent
attending a management speech . The work sheet itself con-
tains no explanation.
At the time of the election, employee Dorothy Caudill
worked in department No. 10, for which the supervisor was
Jolene Cardwell . On the day before the election , according
to employee Caudill , trainer Opal Phelps, who was wearing
a "vote no" badge , asked her to wear a "vote no" badge,
several of which badges she carried in her hand. Caudill
refused , she said, and observed two other employees who
refused , but also saw some of the employees take the pro-
ferred badges , which were handmade of pieces of paper
about 2 or 3 inches square. According to Caudill, trainer
Phelps spent about 10 or 15 minutes in the department in
her solicitation . Employee Caudill also testified that later
she pinned on a "vote yes" badge that she and several
other employees had.
Trainer Opal Phelps testified that around election time
she saw a girl come through department No. 10 wearing a
"vote no" badge, and thereafter made one for herself, which
she wore both in and out of department No. 10, and made
four or five more which she gave to other girls in department
No. 10. She claimed that she wore the badge only on the
election day and that she gave badges only to employees
who asked her for one. I do not credit her claim.
Trainer Phelps testified that she had been a supervisor for
a period of time, prior to the election , as well as a trainer,
and that it was not unusual for trainers to move back and
forth from trainer to supervisor to trainer. (The other wit-
ness trainer heard in the case , Jacqueline House , had the
same experience . It is also pertinent to note that trainer
House testified she House testified she wore a "vote no"
badge prior to the election .) The trainers work closely with
the supervisors on the floor, and on occasion substitute for
them, and receive the same pay. As Phelps described it, the
trainers ' major work with the employees essentially begins
after the new employees have had a preliminary learning
period of a few days in the training room, getting ac-
quainted with sewing generally and threading and control-
ling machines, and come onto the floor into a department
for the'specific work they will be doing. The trainer then
takes over with the employee, helping her learn her work,
helping when she is in trouble, and checking quality (per
specifications) and timing. The trainer follows no routine,
other than to divide her time among the employees as she
sees will best help them perform. In this connection, the
trainer reports to the training supervisor if an employee is
unable or unwilling to perform, and will go to'the depart-
ment supervisor if a girl is out of work and needs work.
However she does not assign work or transfer employees to
other work and she is not consulted, said Phelps, on the
hiring or retaining of employees or giving of merit raises.
Supervisors and the plant manager decide these things, she
testified.
In my view, the trainers were not supervisors within the
meaning of the Act. However they enjoyed a close relation-
ship and indentity of interest with the supervisors in over-
seeing the work of the rank-and-file employees on behalf of
the employer, and were so regarded in the eyes of manage-
ment and the employees. In this connection, it was agreed
between the Respondent and Union that trainers would not
be eligible to vote in the representation election (Exh. GC
2(e), fn. 1). Similar to the holding by the Board and court
in Betts Baking Co. v. N.L.R.B., 380 F.2d 199,202-2-03 (C.A.
10, 1967), the trainers occupied such a status, different from
the other employees, that the other employees could and did
regard them as management spokesman. See also, N.L.R.B.
v. Des Moines Foods,' Inc., 296 F.2d 285, 287, 288 (C.A. 8,
1961).6
D. Conclusion
In my view the foregoing objections to Respondent's con-
duct affecting the election were well taken.
In General Shoe Corp., 77 NLRB 124, 127 (1948), the
Board established its standard for evaluating election cam-
paign conduct:
Conduct that creates an atmosphere which renders
improbable a free choice will sometimes warrant invali-
dating an election, even though that conduct may not
constitute an unfair labor practice. An election can
serve its true purpose only if the surrounding condi-
tions enable employees to register a free and untram-
meled choice for or against a bargaining representative
.... In election proceedings, it is the Board's function
to provide a laboratory in which an experiment may be
conducted, under conditions as nearly ideal as possible,
to determine the uninhibited desires of the employees.
It is our duty to establish these conditions; it is also our
duty to determine whether they have been fulfilled.
When, in the rare extreme case, the standard drops too
low, because of our fault or that of others, the requisite
laboratory conditions are not present and the experi-
ment must be conducted over again.
The summary of company propaganda (III,A, supra ) di-
rected to the employees during work hours, orally, in con-
6 As stated much earlier , by the Supreme Court, concerning this kind of
nonsupervisory "agent" (in a case concerning leadmen who were not high in
the factory hierarchy and did not have power to hire and fire), they "were
in a strategic position to translate to their subordinates the policies and
desires of the management," International Association of Machinists, Tool and
Die Makers .Lodge No. 35 v. N.L It.B, 311 CIS. 72, 80 ( 1940).
KELLWOOD COMPANY 673
ferences and meetings, and in writing and pictorially by
letters, bulletins, posters, and a movie repeatedly shown to
the employees in groups, conveyed to the employees the
inevitability of a strike, violence, and loss of jobs if they
selected the Union as their collective-bargaining representa-
tive. Respondent's campaign was clearly, albeit cleverly,
calculated to evoke an unreasoning fear of the conse-
quences resulting from union organization of the plant. The
effect was exacerbated by the repeated showing of the Little
Rock film that drove home the propaganda theme that a
vote for the Union would result in strikes jeopardizing the
economic security and physical safety of the employees and
their families. Compare, Storkline Corporation, 142 NLRB
875, 879-880 (1963), where the election was set aside.
In this regard, as was the case in Storkline, supra, the
Employer's campaign of fear was not provoked by any con-
duct of the Union in connection with its organizing at Mor-
gantown. On the Union's part there was no hint of strike or
violence or other threatened oppressive action against Re-
spondent. The issue was one of Respondent's own making,
a "straw man" to frighten the employees into the belief that
their physical safety and jobs were at stake in the election,
Id.
It is quite true, that if a careful, disinterested, and sophis-
ticated reader were to take Respondent's written propagan-
da apart, line by line, he could find that, viewed separately,
each component fell a little short of interference. But, as the
Board has pointed out in a parallel case, assessment of the
employer's communications to its employees is made by
adding the parts together; and where the impact of the series
of statements delivered in the course of the antiunion cam-
paign is in terms that has led employees to understand that
their selection of a union as collective-bargaining represen-
tative would inevitably lead to a strike, violence, and loss of
jobs if the union should attempt to achieve better conditions
of employment than those in effect, the employer has estab-
lished an atmosphere of fear and futility in selecting a bar-
gaining agent that prevented the employees' exercise of a
free choice in the election, General Industries Electronics
Co., 146 NLRB 1139, 1140-1141 (1964).
It is of use to recall the Supreme Court's words in
N.L.R.B. v. Gissell Packing Co., 395 U.S. 575, 617-618
(1969), where employer expression in an election was the
subject of an unfair labor practice finding, for which the
standard is more rigorous than in finding election interfer-
ence. The Court said, in assessing the precise scope of em-
ployer expression (to his employees on the consequences of
unionization), that there must be a balancing of the
employer's rights with the rights of the employees to associ-
ate freely, and "any balancing of those rights must take into
account the economic dependence of the employees on their
employers, and the necessary tendency of the former, be-
cause of that relationship, to pick up intended implications
of the latter that might be more readily dismissed by a more
disinterested ear. Stating these obvious principles is but an-
other way of recognizing that what is basically at stake is the
establishment of a nonpermanent, limited relationship be-
tween the employer, his economically dependent employee
and his union agent, not the election of legislators or the
enactment of legislation whereby that relationship is ulti-
mately defined and where the independent voter may be
freer to listen more objectively and employers as a class
freer to talk."
Similar to Pepperell Mfg. Co., 159 NLRB 291, 292-293
(1966), affd. 403 F.2d 520, 522-523 (C.A. 5, 1968), cert.
denied 395 U.S. 922 (1969), where a first election was invali-
dated," so, here, a supervisor's threat that the employer
would close the plant if the Union came in (see III,B, su-
pra ), combined with the Employer's literature emphasizing
the inevitability of a strike if the Union won the election and
collective bargaining were to ensue, with resulting economic
loss to the employees, was interference with the employees'
free choice in the election. In this connection, the fact that
the threat did not directly involve a great many employees
is not controlling, since in an industrial plant it was likely
to receive, as it did according to the witness Pindley, prompt
and wide circulation, and was likely to create a situation
that inhibited a free choice by the employees, International
Mfg. Co., 167 NLRB 769, 770 (1967),7 quoted with approval
in Home Town Foods d/b/a Foremost Dairies of the South v.
N.L.R.B., 416 F.2d 392, 399, fn. 14 (C.A. 5, 1969).
Further compounding the interference with a free choice
by the employees was the action of some of Respondent's
supervisors and trainers, either placing "vote no" badges on
their work floor desks, or directly proferring them to em-
ployees, to be taken and worn by the employees before and
during the election (see III,C, supra ). As pointed out in
Macklanburg-Duncan Co., 179 NLRB 848,849 (1969), set-
ting aside an election where supervisors placed "vote no"
buttons on their desks easily accessible to employees, such
action placed employees in the position of declaring them-
selves and disclosing their choice, a form of coercive interro-
gation that interfered with the election.
Taking into account the whole of Respondent's conduct,
I am persuaded that there was such interference with the
conduct of the election as to require that it be set aside and
another election held.
CONCLUSIONS OF LAw
1. By discharge of employee Ruth Hunt on June 15, 1972,
because of her support of, and activities for, the Union and
in order to discourage such activities or union membership
of its employees, Respondent had engaged in an unfair
labor practice within the meaning of Section'8(a)(3) and (1)
of the Act. The unfair labor practice affects commerce with-
in the meaning of Section 2(6) and (7) of the Act.
2. Respondent's preelection conduct, by propaganda
that created an atmosphere of fear and futility in the em-
ployees' selecting a bargaining agent, by threat of plant
closing if the Union was chosen, and by coercive interroga-
tion that required employees to declare their choice in ad-
vance, deprived the employees of the exercise of a free
choice in the representation election of March 31, 1972,
requiring that the results of the election be set aside and
another election be held.
7 Election set aside on supervisor statements made to 6 of 730 employees;
and see Anchor Coupling Co., 168 NLRB 218 (1967), election set aside on
supervisor statements to 4 of 120 employees.
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
In connection with the unfair labor practice, it will be
recommended that the Respondent (1) cease and desist
from its unfair labor practice; (2) offer to reinstate employee
Ruth Hunt with backpay from the time of discharge, back-
pay to be computed on a quarterly basis as set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), approved in
N.L.R.B. v. Seven-Up Bottling Co., 344 U.S. 344 (1953), with
interest at 6 percent per annum as provided in Isis Plumbing
& Heating Co., 138 NLRB 716 (1962), approved in Philip
Carey Mfg. Co. v. N.L.R.B., 331 F.2d 720 (C.A. 6, 1964),
cert. denied 379 U.S. 888 (1964); (3) post the notices provid-
ed for herein; and, because the Respondent violated funda-
mental employee rights guaranteed by Section 7 of the Act,
and because there appears from the manner of the commis-
sion of this conduct an attitude of opposition to the purpos-
es of the Act and a proclivity to commit other unfair labor
practices, it will be further recommended that the Respon-
dent (4) cease and desist from in any manner infringing
upon the rights guaranteed by Section 7 of the Act. N.L.R.B.
v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941);
P. R. Mallory and Co. v. N.L.R.B., 400 F.2d 956, 959-960
(C.A. 7, 1968), cert. denied 394 U.S. 918 (1969); N.L.R.B.
v. Bama Company, 353 F.2d 323-324 (C.A. 5, 1965).
In regard to the representation election of March 31,
1972, it will be recommended that the election be set aside
and another election held.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is hereby issued the following recommended:
ORDER8
Respondent, its officers, agents, successors, and assigns
shall;
1. Cease and desist from:
(a) Discharge of employees because they engage in or
support union activities.
(b) Discouraging employees from support of or member-
ship in the Union or other labor organization by discharge
or other discrimination affecting their tenure and condi-
tions of employment.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaranteed
under Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Make employee Ruth Hunt whole, in the manner set
forth in the section of the decision entitled "The Remedy,"
for any loss of earnings incurred by her as a result of her
discharge on June 15, 1972.
(b) Offer to employee Hunt immediate and full reinstate-
ment to her former job, or if the job no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges.
(c) Preserve, and, upon request, make available to the
Board and its agents, for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
to ascertain the backpay due under the terms of this Order.
(d) Post in its plant at Morgantown, Kentucky, copies of
the attached notice marked "Appendix." 9 Immediately
upon receipt of said notice, on forms to be provided by the
Regional Director for Region 9, the Respondent shall cause
the copies to be signed by one of its authorized representa-
tives and posted, the posted copies to be maintained for a
period of 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
In Case 9-RC-9424, pursuant to Board order of January
9, 1973, it is recommended that the Board sustain the
Union's Objections 1, part of 4, and 6 to the conduct of
Respondent affecting the results of the election of March
31, 1972, set aside the results of the election, and, upon the
Union's request, hold a new election, after severance of
Case 9-RC-9424 from the consolidated proceeding.
8 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , recommendations , and Order herein shall, as provided in Sec-
tion 102.48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions , and order, and all objections thereto shall
be deemed waived for all purposes
9 In the event that the Board's Order is enforced by a judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board " shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
trial, that we violated the National Labor Relations Act, We
hereby notify you that:
WE WILL NOT discharge you because you engage in or
support union or other lawful concerted employee ac-
tivities.
WE WILL NOT discourage you from support of or mem-
bership in the Union or other labor organization by
discharge or other discrimination affecting tenure and
conditions of your employment.
WE WILL NOT in any other manner interfere with your
rights to belong to or be active for a labor union, or to
refrain therefrom.
Because the Board found that we unlawfully discharged
employee Ruth Hunt on June 15, 1972,
WE WILL offer Mrs. Hunt her former or like job, and
WE WILL give her backpay with interest from June 15,
1972.
KELLWOOD COMPANY 675
KELLWOOD COMPANY anyone.
(Employer) This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
Dated By or covered by any other material. Any questions concerning
(Representative) (Title) this notice or compliance with its provisions may be direct-
ed to the Board's Office, Federal Office Building, Room
2407 , 550 Main Street , Cincinnati, Ohio 45202, Telephone
This is an official notice and must not be defaced by 513-684-3686.