Liberty Sportswear Co., Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1970

183 N.L.R.B. 1236 (N.L.R.B. 1970)

1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Liberty Sportswear Co., Inc . and International
Ladies ' Garment Workers ' Union , AFL-CIO.
Case 9-CA-5153
June 26, 1970
DECISION AND ORDER
BY MEMBERS MCCULLOCH, BROWN, AND JENKINS
On March 23, 1970, Trial Examiner Sidney D.
Goldberg issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner 's Decision.
The Trial Examiner also found that Respondent
had not engaged in certain other unfair labor prac-
tices, and recommended that those allegations of
the complaint be dismissed. Thereafter, Respon-
dent and the Charging Party filed exceptions to the
Trial Examiner's Decision with supporting briefs
and the Charging Party filed a response to Respon-
dent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as modified below.
The Trial Examiner found that Respondent vio-
lated Section 8(a)(1) of the Act through the coer-
cive remarks of Mrs. Williamson, a supervisor, and
Mrs. Godbey, a former supervisor, to an employee,
Mrs. Brackett, during an encounter at a bridge
leading to Respondent's parking lot. We agree that
Supervisor Williamson's remarks constituted a
violation of Section 8(a)(1) attributable to the
Respondent by reasons of Williamson's supervisory
status. Godbey, however, was not a supervisor at
the time of the encounter on the bridge, had no
authority to speak generally on behalf of the
Respondent, and there is no showing that she was
authorized to speak on behalf of Respondent on
that occasion. Neither Godbey's former supervisory
status nor the fact that her remarks were uttered in
the presence of a supervisor, who apparently
acquiesced in them, deprives Godbey of her right to
express her views on the subject of unionization or
burdens the Respondent with responsibility for
Godbey's remarks. We, therefore, reject the Trial
Examiner's finding of an 8(a)(1) violation with
respect to Godbey's remarks in the incident at the
bridge.
The Trial Examiner also found that Respondent
had discriminated against Coy Benson, a weekend
watchman and cleanup man, in violation of Section
8(a)(4) of the Act because he had given testimony
adverse to the Respondent in a previous unfair
labor practice case involving a subsidiary of the
Respondent. Benson was one of four employees in
his classification employed in a cutting room
located at some distance from the main plant. Two
employees worked during the normal workweek.
Benson and another employee worked only on
weekends. Two or three weeks after Benson
testified for the General Counsel all four watchmen
were discharged. It is undisputed that the
discharges were made for economic reasons. Two
of the watchmen, who were full-time employees,
were reemployed in other categories. Although
Respondent subsequently hired a new employee as
watchman, neither Benson nor the other weekend
watchman was recalled. On these facts the only
question, therefore, is whether Respondent failed to
recall Benson for discriminatory reasons.
While Benson testified in the earlier proceeding,
there is nothing in the record to show that Respon-
dent's failure to recall Benson was, as apparently in
the case of his weekend coworker, based on any
but lawful considerations. Under the circumstances
we find that the General Counsel has not sustained
his burden of proving by a preponderance of the
evidence that Benson was discriminated against in
violation of Section 8(a)(4) of the Act.
The unfair labor practices committed by Respon-
dent strike at the heart of the rights guaranteed to
employees by Section 7 of the Act. The inference is
warranted that Respondent maintains an attitude of
opposition to the purposes of the Act with respect
to the protection of employees in general. In the
circumstances we shall order that Respondent
cease and desist from infringing in any manner
upon the rights guaranteed in Section 7 of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent, Liberty Sportswear Co.,
Inc., Liberty, Kentucky, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
183 NLRB No. 127
LIBERTY SPORTSWEAR CO., INC. 1237
the Trial Examiner's Recommended Order, with
the modifications indicated below:
1. Amend the first line of paragraph 1(c) to read
as follows:
"(c) In any other manner interfering with,
restraining ..."
2. Delete paragraphs 2(a) and (b).
3. Delete from the Notice to Employees all
references to Coy Benson.
4. Delete from the fifth paragraph of the Notice
to Employees the words "similar, or related."
ing the demeanor of the witnesses while testifying, I
make the following:
FINDINGS OF FACT
1. The parties
The allegations of the complaint concerning
Respondent's operation of the plant at Liberty, its
status as an employer engaged in commerce, and
the status of the Union as a labor organization are
not denied by the answer and the facts alleged are
found as pleaded.
TRIAL EXAMINER 'S DECISION
SIDNEY D. GOLDBERG, Trial Examiner: This case
was tried before me August 19, 1969, at Liberty,
Kentucky, on a complaint,' issued pursuant to Sec-
tion 10(b) of the National Labor Relations Act, as
amended (the Act), alleging that Respondent, in
violation of Section 8(a)(1), (3), and (4) of the
Act, had discharged three employees because of
their activity on behalf of International Ladies' Gar-
ment Workers' Union, AFL-CIO (the Union) and
because they had testified for the General Counsel
of the Board in another case against a corporation
affiliated with Respondent. The complaint also al-
leged that Respondent interfered with employees'
rights of self-organization and that it discharged a
fourth employee both because of her union activity
and because she was the sister of an employee and
an ex-employee who had testified.
Respondent answered, denying the commission
of the acts alledged and the issues came on for trial
as stated.2 All parties were represented by counsel,
afforded an opportunity to introduce evidence,
cross-examine witnesses, and argue upon the facts
and the law. Briefs filed by the General Counsel,
counsel for the Union, and counsel for the Respon-
dent have been considered.
For the reasons hereafter set forth in detail, I find
that Respondent discharged both Thelma Brackett
and Ila Tartar because they had testified against its
affiliated company. I also find that, while its layoff
of Coy Benson was part of a change in its operating
procedures, it deliberately failed to call him back to
work when a need arose for his services and that
this refusal was the result of his testimony in the
other Board case. With respect to the severance of
Zola Lanham, however, I find that the General
Counsel has failed to prove that it violated the Act.
Upon the entire record in this case, and consider-
Issued June 19, 1969 , on a charge filed April 28, 1969.
' The complaint , naming four persons as floorladies , alleges them to have
been , at the times material , supervisors within the meaning of the Act and
agents of Respondent , and it alleges that they had, in November and
December 1968, committed acts on behalf of Respondent constituting un-
fair labor practices . The answer , filed June 25 , 1969, admits the allegation
of supervisory status and agency in the complaint as to three of the four At
the opening of the trial , Respondent 's counsel moved to amend the answer
to limit the admission as to one of these floorladies to dates prior to
November 21, 1968 , and as to another to dates prior to November 25,
2. Background
Marlene Industries Corporation, a New York
corporation, is principally engaged, through wholly
owned subsidiaries, in the manufacture and dis-
tribution of women's clothing. In May 1965, it
operated seven plants at six locations in Tennessee,
Alabama, and South Carolina, employing approxi-
mately 3,000 workers. At that time the Union
began an organizing campaign among these em-
ployees that was strongly and, it has been found,3
unlawfully opposed. In affirming the Board's deci-
sion, the court of appeals noted that
The company [Marlene] countered [the Union
campaign] with a concerted and well-directed
campaign of anti-union activities ....
and wrote that
The evidence is overwhelming that the com-
pany was guilty of deliberate and flagrant
violations of the Act.
In view of the Board findings, and ours, that
this is an aggravated case of deliberate and
flagrant violation of the Act by the company,
we concern ourselves only with the ap-
propriateness of the Board's order.
Subsequent to May 1965, Marlene established or
acquired plants at Sylva, North Carolina (Sylco
Corporation), Russell Springs, Kentucky ( Russell
Springs Sportswear), and the one involved herein.
At the Sylco plant, acquired in February 1967, the
Union began its organizing campaign in December
1967, by passing out leaflets. Thereafter, according
to a charge filed by the Union in April 1968,
representatives of Sylco committed unfair labor
practices. A complaint on this charge was sub-
sequently issued by the General Counsel of the
Board against Sylco and the case came on for trial
before Trial Examiner Melvin Pollack on
November 13 at Waynesville, North Carolina. As
1968. He conceded that he had given the General Counsel no notice of his
intention to amend but claimed that he had first learned of the changes in
the status of these two floorladies on the day preceding the trial . In view of
the obvious prejudice to the General Counsel, who had no reason to be
prepared to prove the allegations theretofore admitted , the motion of
Respondent was denied Respondent was, however , permitted to introduce
evidence on the subject and the matter is discussed herein
3 Marlene Industries Corporation, et al, 166 N LRB 703, enfd (with
a minor modification of the Board's order) sub nom. Decaturville Sports-
wear Co. v N L.R B , 406 F.2d 886, 888 (C A 6, 1969)
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witnesses in the case, the General Counsel sub-
penaed four people from Liberty: Thelma Brackett,
Ila Tartar, Coy Benson, and Ralph A. Patterson.
The first three were employees of Respondent at
the time and Patterson had been an employee until
February 1968. All four testified for the General
Counsel concerning matters they had witnessed, as
employees of Respondent, tending to show that
work had been transferred from Sylco to Respon-
dent, transfers which, the General Counsel argued,
were made to interfere with the organizational cam-
paign at Sylco.4
3. Sequence of events
In June 1968,5 the Union began an organizing
campaign among Respondent's employees. A com-
mittee of employees was formed but there is no
evidence that Respondent knew the identities of its
members.
On Wednesday, November 13, as set forth above,
the three employees of Respondent testified in the
Sylco case, returning to their jobs on Friday.6 At
closing time on Monday, November 18, Mrs.
Brackett was discharged and, early the following
morning, Mrs. Tartar was discharged. On the
Friday of that week, however, the plant manager
wrote each of them a letter rescinding the
discharges and restoring each of them to duty,
without loss of pay for the time intervening.
About the end of November Respondent
discharged the four night cleanup men in the
cutting room, including Coy Benson and, at the end
of December it transferred the pressing department
to the Russell Springs plant, terminating employ-
ment of eight pressers, including Zola Lanham.
Two of the four cleanup men and several of the
pressers were transferred to other work but neither
Benson nor Mrs. Lanham was reemployed.
During this same period, several employees
testified, supervisory personnel of Respondent
made statements to them threatening their jobs if
they chose the Union as their collective-bargaining
representative.
4. The issues
The General Counsel contends that employees
Brackett, Tartar, and Benson were discharged
because they gave testimony for the Government in
the Sylco case and that the violation of the Act with
respect to Brackett and Tartar was not expunged by
their reinstatement.7 He also contends that em-
ployee Lanham was discharged because Ralph Pat-
terson, the fourth witness in that case from Liberty,
is her brother and Mrs. Brackett is her sister, and
' Trial Examiner Pollack 's Decision is before the Board on Sylco's excep-
tions thereto
° All dates not otherwise designated are 1968.
° Benson 's job consisted of night work on Saturdays and Sundays only
and he worked as usual the weekend following his appearance at
Waynesville.
that the threats voiced by the supervisors coerced
and restrained the employees in their exercise of
rights guaranteed in the Act.
Respondent takes the position that Brackett and
Tartar were discharged for poor performance of
their work and that, in any event, any violation con-
nected with their discharge was cured by their rein-
statement with no loss of pay. With respect to Ben-
son and Lanham, it contends that they were simply
employees made superfluous by a valid change in
Respondent's methods of operation and that there
was no violation of the Act in the termination of
their employment. With respect to the claims of
threats and coercion, it contends that some of those
to whom the threatening statements were attributed
were not persons for whose actions Respondent is
responsible and that, in any event, the statements
were not proved to have been made.
5. Analysis and conclusions
a. Thelma Brackett
Mrs. Brackett began her employment with
Respondent in July 1967; she worked in several de-
partments and under several supervisors until early
in October, when work was completed on a certain
type of garment, and she was laid off. She was re-
called later that month and was working under
Floorlady Myrtle Godbey when she received, on
Saturday, November 2, a subpena to appear in
Waynesville, North Carolina, on November 13 to
testify in the case against Sylco. On the following
Tuesday, November 5, according to Mrs. Brackett,
she was orally reprimanded concerning her produc-
tion.8
On Thursday, November 7, she told Plant
Manager Kimbler about the subpena and she went
to Waynesville and testified on the 13th. The fol-
lowing day she returned to Liberty and went to
work on Friday as usual . On Friday she received a
notification to report Monday for jury duty in the
local court and she showed the jury notice to Mrs.
Godbey who, after pointing out that Mrs. Brackett
had just been off for 2 days, said that if she honored
the jury notice she would be fired. Mrs. Brackett
nevertheless gave the notice to the plant manager
who said he would try to arrange to have her ex-
cused from jury duty. Not hearing from the plant
manager's office during the afternoon, she retrieved
the jury notice at the end of the day and reported
to the local court Monday morning. Her jury duty
was completed at noon and she returned to the
plant and worked the balance of the day. A few
' Both Brackett and Tartar were again discharged subsequent to their
reinstatement but the complaint does not allege that these discharges were
violative of the Act
' Mrs Brackett testified that the work she was given that morning was
unusually difficult and consisted of sewing darts in garments already having
sleeves and collars, although the normal procedure was to sew in darts at an
earlier s.age of manufacture when the garments could be laid flat
LIBERTY SPORTSWEAR CO., INC. 1239
minutes before quitting time, Mrs. Godbey in-
structed her to go to the office. She did so and
Floor Manager Harrell , in the presence of the plant
manager , asked her to sign a termination notice
because she was being laid off. She asked whether
she was being discharged for going on jury duty and
told them of Mrs. Godbey's threat. Harrell said the
discharge was because of her low production so she
signed the notice and left.
Respondent 's contention that Mrs. Brackett was
discharged because of her low production was sup-
ported principally by the testimony of Plant
Manager Kimbler who stated that, of all the em-
ployees in the plant,' Mrs. Brackett and Mrs. Tar-
tar, were "the most outstanding , by far" in having
problems with productivity and quality. Respondent
produced two written warnings addressed to Mrs.
Brackett based upon low production; one dated
November 8, the day after she notified the office
that she had been subpenaed,/ and the other dated
November 18, the day of her discharge. Mrs.
Brackett denied having been told about either of
these warnings and they both bear the notation that
the employee had "refused to sign ." Not produced,
however, were the detailed worksheets which, Kim-
bler testified, were kept as company records and
upon which he stated he relied in deciding to ter-
minate Mrs. Brackett.
Plant Manager Kimbler was an unconvincing wit-
ness : he evaded questions and indulged in generali-
ties, as well as interjecting substantial amounts of
testimony based upon hearsay. He also testified
that, on the day he discharged Mrs. Brackett, he
called her into the office to give her further warn-
ing about her low production but that, when she in-
sisted that she was doing the best she could and
could not do any better, he terminated her. At
another point, however, Kimbler testified that the
termination notice for Mrs. Brackett had already
been prepared and was on his desk when he called
her in.
It is also to be noted that Kimbler testified that
he had reviewed Mrs. Brackett's performance with
both her direct supervisor and the floor manager, as
well as examining the "green sheets," which show
the precise extent of an employee's failure to make
the production quota set for the job, but his letter
recalling her-written after a conference with
counsel-states that he and her supervisors had
reviewed her records and had decided that their
decision to terminate her was "hasty." Despite this,
Kimbler testified, he did not find that the records
were wrong.
While Mrs. Brackett conceded that her failure to
make the production quota had been discussed with
her by her supervisors in the past, she insisted that
few employees consistently fulfilled their quotas
and that she was far from the bottom of the list. She
also testified, and Mrs. Godbey conceded, that
there was no question concerning the quality of her
" Approximately 450," according to the charge.
work but Kimbler nevertheless testified that "her
makeup and quality were always poor."
Based upon the foregoing analysis, I find that
Kimbler was not a credible witness; that the warn-
ing notices he testified were given to Mrs. Brackett
were not, in fact, given to her; and that, therefore,
they must be rejected as self-serving documents. I
also find that, whatever shortcomings there were in
Mrs. Brackett's rate of production, they were not
Respondent's real reason for terminating her em-
ployment, but the real reason was the fact that she
had testified for the Government in the Sylco case.
Respondent's discharge of Mrs. Brackett is, there-
fore, found to have been in violation of Section
8(a)(4) of the Act.
b. Ila Tartar
Mrs. Tartar did not testify in this case and the
record contains no explanation for her failure to do
so. However, both Mrs. Louise Roy, her supervisor
at the time of her discharge, and Plant Manager
Kimbler testified concerning the facts which, they
contend, formed the basis for Respondent's action.
According to Kimbler, Mrs. Tartar was hired in
1967 and, when she started, was "a very good wor-
ker" concerning whom he "had no complaint". His
"problems" with her began in August or September
1968, when her production and quality "would go
up and down."
In conceding that he had been informed by Mrs.
Brackett, on Thursday, November 7, that she had
received a subpena to testify at Waynesville the fol-
lowing week (but insisting he did not know "what
she was going for"), Kimbler also conceded that
Mrs. Tartar "did the same" as he passed, but he
could not recall whether it occurred on the same
day. In view of my estimate of Kimbler's general
credibility and his evasiveness on this specific
matter, I find that it did.
On November 8, Mrs. Tartar was given her first
warning, with the assigned reason designated as
"low production," and she acknowledged its
receipt. The notice was signed by both Kimbler and
Mrs. Roy, but Mrs. Roy did not testify to anything
connected with this warning except the fact that it
had been given.
After her return from Waynesville, Mrs. Tartar
worked on Friday, the 15th, and Monday, the 18th.
It was in the morning on Tuesday, according to
Kimbler, when Mrs. Tartar was discharged. The
basis for her discharge, he volunteered, was re-
ported to him by Floor Manager Harrell, and con-
sisted of Mrs. Tartar's refusal to redo some repairs
after being instructed to do so by Mrs. Roy.
Mrs. Roy's testimony concerning the discharge
was meagre: she said that she "talked to" Mrs. Tar-
tar and thought it was on the day of her discharge;
she was certain that Mrs. Tartar had been given two
warnings; and she had agreed that Mrs. Tartar
should be discharged. She also testified that she had
about 35 to 50 employees under her supervision,
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
including both inspectors and repairers , and that
she had discharged only 3 or 4 for poor quality.
Kimbler 's testimony on this subject is without
probative value : he did not testify to anything based
upon his own knowledge but he volunteered an ac-
count of the reason for Mrs . Tartar 's discharge on
the basis of "hearsay "-his own characterization-
from Harrell . According to this account , there had
been a dispute between Floor Manager Harrell and
Mrs. Roy , as management representatives, with
Mrs. Tartar over whether some repairs made by
Mrs. Tartar were adequate or would have to be
redone ; it reached its climax with Harrell insisting
that the repairs be redone and Mrs . Tartar refusing;
and Mrs . Tartar was then discharged.
Even if Kimbler had been in a position to give ad-
missible evidence along the foregoing lines , several
discrepancies in the account , as well as Kimbler's
lack of credibility as a witness , would require that it
be rejected . Importantly , it was not corroborated in
any particular by Mrs . Roy,10 who he claimed, was
a participant in the confrontation and who was the
only available person who could have given com-
petent evidence . Moreover , the subject matter, ac-
cording to this account , was the redoing of certain
repairs, but the termination notice of Mrs. Tartar
identifies her as an inspector ." Finally , although
Kimbler fixed the time of the discharge as "Tues-
day morning ," Mrs. Roy testified that , after the
written warning had been given to Mrs. Tartar,
she (Mrs . Roy) addressed all the employees under
her supervision because her department was "in a
mess " and that she then broke down and wept. She
also testified that , before the termination notice
was prepared , she discussed it with both Harrell
and Mrs. Tartar . 12 Had all of these occurred, it ap-
pears almost physically impossible , purely as a
matter of elapsed time , for the discharge to have
occurred in the morning.
The only thing clear, from the foregoing , is that
the record does not contain any substantial
evidence concerning Respondent 's real reason for
discharging Mrs. Tartar on November 19 and that
the reasons given by Kimbler are a concoction un-
worthy of belief . The only facts that are clear are
that Mrs. Tartar testified for the Government in
Waynesville on November 13 and that she was
discharged , on asserted grounds that I find ficti-
tious, on the 19th. Based upon this timing, the
previous Board finding of union animus on the part
of Respondent's parent company, and the unsuc-
cessful effort of Respondent to fabricate a reason
for Mrs. Tartar 's discharge , I find that its real
reason for discharging her was that she had testified
in the case against Sylco. It follows, therefore, that
her discharge violated Section 8(a)(4) of the Act.
° Mrs Roy testified before Kimbler
While Mrs Roy testified that she supervised both repairers and inspec-
tors, her testimony clearly indicated that these functions were performed
by separate people
'= 1 find it impossible to reconcile Mrs Roy's testimony detailing this
procedure , and the warning allegedly given earlier in the day, with Kim-
c. Interference , restraint , and coercion
Most of the interference , restraint , and coercion
alleged by the complaint to have been committed
by Respondent is alleged to have occurred in late
November and early December . There are 11 al-
legations of such misconduct attributed to Plant
Manager David Kimbler and the four floorladies,
Myrtle Godbey , Louise Roy, Bonnie Meeks, and
Emma Williamson . 13 The answer admitted the su-
pervisory status of all except Floorlady Williamson,
but at the opening of the trial , as set forth above,
Respondent 's counsel requested permission -to
amend its answer to limit its admission concerning
the supervisory status of Myrtle Godbey to dates
prior to November 21 and of Louise Roy to dates
prior to November 25. Although the motion was
denied , Respondent was not absolutely precluded
from adducing testimony on the subject.
At the conclusion of the General Counsel 's case,
Respondent 's motion to dismiss for lack of
evidence was granted as to one of the allegations
based on activities by Kimbler and as to all three of
the allegations based on activities by Mrs . Roy. The
evidence in support of the remaining allegations is
discussed below.
The earliest of these incidents is based upon the
testimony of Mrs. Zola Lanham who testified that,
during the union campaign in July 1968, she
received a phone call from a man who asked her
whether she "was working for the Union." When
she answered that she had signed a card , the man
said , " Don't you know you are going to get fired?"
With respect to the identity of the caller, she
testified , " I thought it was Mr. Kimbler , I can't
swear." She also testified that she had never talked
with Kimbler on the phone and that she had talked
with him in person only on the day she was hired,
September 18, 1967 , and once after that, but that
she had also heard him address the assembled em-
ployees.
Granting that Mrs . Lanham 's use , under oath, of
the phrase " I can't swear " does not vitiate her
testimony and that a witness need not testify with
"a positive degree of assurance " to have her
testimony accepted ," nevertheless , her uncertainty
concerning the critical question of the identity of
the caller , in the light of the circumstances, makes
it impossible for me to make a finding that it was
Kimbler who made the telephone call. Both the
electronic distortions of the telephone on the
human voice and the absence of the visual aids that
are present in personal contact make it notoriously
speculative for any person called to make an
identification of his caller-particularly where there
bier's testimony that the incident began by Harrell 's backing Mrs Roy's
request that Mrs Tartar redo some repairs and that it was upon Mrs Tar-
tar's adamant refusal to comply with that request that she was discharged
"Two by Kimbler in section 5(a)(i) and ( ii), three by Godbey in section
5(b)(i), (u), and ( ui), one by Williamson in section 5 ( c)(i), three by Roy in
section 5(d)(i), (u), and 00, and two by Meeks in section 5(e)
" 30 Am Jur 2d Evidence, § 1081
LIBERTY SPORTSWEAR CO., INC.
have been few direct personal contacts and no prior
telephone contacts between them. Moreover, the
record shows that there was considerable opposi-
tion to the organizational campaign among the em-
ployees in this small town and there were undoub-
tedly scores of male voices available to make the
call. Finally, there is nothing in the record to show
that Mrs. Lanham was an important-or even a
known-actor in the organizing effort. Mrs. Lan-
ham's testimony15 is, in my opinion, insufficient to
establish a violation by Respondent of Section
8(a)(1) of the Act.
The next of these incidents was described by
Miss Carolyn Edwards who testified that, one day
early in November, while she was sitting with
several other girls at a cafeteria table during a
break, Mrs. Godbey came over to her and said she
wanted to sign a union card. Edwards asked her
why, and Godbey's answer was that she did not
want the Union to come into the factory, that she
didn't want the plant to close, and that "it was
going to be me (Miss Edwards) against them." Mrs.
Godbey made no mention of this conversation in
her testimony, although it was already in the record
when she testified, and Miss Edwards' testimony
stands unchallenged. Strange as this minor incident
appears from the only testimony in the record con-
cerning it , Mrs. Godbey's own testimony-that on
the day of Mrs. Brackett's discharge she lectured
her subordinates and then broke down and wept-
lends credibility to the account by injecting an ele-
ment of tension or unpredictability into Mrs. God-
bey's behavior. Accordingly, I find that the incident
occurred as described by Miss Edwards and that
Mrs. Godbey's statement that she didn't want the
Union to come into the factory, coupled with her
statement that she didn't want the plant to close,
constituted a threat that the former would be fol-
lowed by the latter. Since there is no dispute con-
cerning Mrs. Godbey's status as a supervisor at the
time of this incident, her threat constitutes a viola-
tion of Section 8(a)(1) by Respondent.
Mrs. Brackett was recalled, after her discharge
on November 18, by letter dated November 22 and
she returned to work on Monday, the 25th. About a
week later, she testified, as she was leaving the
plant after work and crossing a small bridge to the
parking lot, she encountered a group of at least
seven women, including Myrtle Godbey and Emma
Williamson. Mrs. Godbey, according to Mrs.
Brackett, accused her of "spreading lies around
over the factory" since she had returned to work
and, specifically, of having said that she, Godbey,
had threatened to discharge her, Brackett, for going
on jury duty. Mrs. Brackett insisted that the state-
ment was the truth and Mrs. Godbey insisted it was
not. Mrs. Godbey then continued, Mrs. Brackett
testified, by saying:
"Although Kimbler expressly denied making the call, I do not regard
him as a credible witness and I have not considered his denial in my deter-
mination on this point
1241
Another thing, we don't like you working in
this Union here. We're not going to have a
Union in this factory. You had better stop.
Don't you dare come back in this factory in the
morning.
When she insisted upon her right to continue
working for the Union and working in the plant,
Mrs. Brackett testified that Mrs. Williamson said:
We're not going to have a Union in here. Don't
come back. You're not wanted in this factory.
We don't want the factory to move out. That's
what will happen if it comes in.
Later that evening, Mrs. Brackett testified, she
received several telephone calls and recognized the
voice in one of them as that of Mrs. Williamson.
This caller threatened to come and "blow your
house down."
Mrs. Godbey admitted having had the encounter
with Mrs. Brackett. She was not certain Mrs. Wil-
liamson was in the group but conceded that she
"may have been." She also conceded that the
Union was mentioned and that "somebody" said "If
you want to work for a union, go back to Cowden's
where you came from" but insisted that it had no
place in her conversation with Mrs. Brackett. She
admitted, however, hearing Mrs. Brackett say,
"You girls had better not touch me."
Mrs. Williamson admitted having been present at
the bridge but denied having said anything about
the Union or having heard the Union mentioned at
all. She denied having called Mrs. Brackett on the
telephone.
Both Mrs. Godbey and Mrs. Williamson were
evasive in their testimony. Based upon the credible
testimony of Mrs. Brackett and the demeanor of
Mrs. Godbey and Mrs. Williamson while testifying,
I find that the encounter at the bridge occurred as
reported by Mrs. Brackett and that Mrs. William-
son made the phone call described.16 The state-
ments made, if attributable to Respondent, were
clearly in violation of Section 8(a)(1) of the Act.
Mrs. Godbey testified, without contradiction,
that shortly after November 18, the day Mrs.
Brackett was discharged, she asked to be relieved
of supervisory duties and her request was granted.
Mrs. Brackett also testified that, when she returned
to work on the 25th, Mrs. Godbey had ceased to be
a floorlady and that she knew it. Although Respon-
dent's motion to limit its admission of Mrs. God-
bey's supervisory status to dates prior to November
21 was denied, this evidence was accepted and, had
no other factors been involved, I would have
hesitated to hold Respondent liable for her conduct
on this occasion.
Mrs. Williamson's supervisory status was put in
issue by the answer. Mrs. Lanham testified, without
contradiction, that on January 3, 1969, she was
18 In identifying Mrs Williamson as the caller , Mrs Brackett testified
"She talks funny of all the persons I have come in contact with down at
this factory, nobody talks like Emma " This positive testimony I regard as
sufficient to justify this finding
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
taken to the office by Mrs. Williamson who, with
no other management official present, told her she
was laid off and should "go home until they called"
her. Mrs. Williamson referred to herself as a "quali-
ty checker," but Mrs. Lanham also testified that,
when she worked as an inspector, Mrs. Williamson
checked the quality of her work. Mrs. Williamson
testified that she checked quality anywhere in the
plant, working under Floor Manager Harrell and,
when there was no floor manager, directly under
Plant Manager Kimbler, which level, it is to be
noted, is that of the floorladies who are admittedly
supervisors. Based primarily, however, on the un-
controverted evidence that she laid off Mrs. Lan-
ham on January 3, 1969, 1 find that Mrs. William-
son was a supervisor on that date. Moreover, she
testified that she had held the same position "about
a year," so that, if that year extended back from the
date of the trial, August 19, 1969, it would include
all of November and December 1968. Accordingly,
I find that Mrs. Williamson was, at all times in-
volved in this case, a supervisory employee and an
agent of Respondent.
Mrs. Godl ey's former position as a supervisor,
together with her close association with Mrs. Wil-
liamson on this occasion in the expression of paral-
lel views, undermines the appeal of Respondent's
request to be relieved of its admission that she was
at that time a supervisor and an agent of Respon-
dent. A further reason for holding Respondent
responsible for Mrs. Godbey's threats is the fact
that she made them in the presence of a supervisor,
Mrs. Williamson, who not only failed to disavow
them but adopted and repeated them.
The threats of Mrs. Godbey and Mrs. Williamson
at the bridge, and those of Mrs. Williamson on the
telephone, constitute interference, restraint, and
coercion by Respondent violative of Section
8(a)(1) of the Act.
Finally, early in the morning on one of the first
days in December, according to Mrs. Gladys Chad-
well, she was sitting at her machine when her super-
visor, Mrs. Bonnie Meeks, came to her and asked
her whether she was "for the Union." Mrs. Chad-
well replied that "it wasn't anybody's business"
whether she was for or against it and the exchange
ended. A day or two later, when Mrs. Chadwell was
standing near the rear door, on a break with several
other employees and talking about the Union, Mrs.
Meeks said that if the Union came in the factory
would close. Mrs. Meeks denied the conversations
but, based upon the demeanor of the two women
while testifying, I regard Mrs. Chadwell's testimony
as credible and reject Mrs. Meeks' denial. Analysis
and assessment of the legal significance of the first
of these-a casual question addressed to Mrs.
Chadwell at her work station-is hardly worth the
effort involved: there is no evidence of any specifi-
cally coercive set of circumstances at that time 17
'r See N L R B v H P Wasson & Co, 422 F 2d 558 (C A 7, 1970)
1e The record in the Sylco case shows that Benson testified, under
and Mrs. Chadwell's prompt rejection of the
inquiry had no repercussions. The threat, however,
that the factory would close if the Union came in,
voiced by Mrs. Meeks to a group of employees, is
quite a different matter: it was a clear threat of
reprisal and is violative of Section 8(a)(1) of the
Act.
d. Coy Benson
Coy Benson had been hired by Respondent in
May as a weekend watchman and cleanup man in
the cutting room, a building in the center of town
separated from the main plant. He worked, with
another man , 12 hours on Saturday and 12 hours
on Sunday. Two other men did this same work the
other 5 days of the week. No fault had ever been
found with Benson 's work and he had never been
absent.
On November 13, Benson appeared and testified
at Waynesville in the case against Sylco under sub-
pena from the General Counsel.18 He returned to
Liberty and worked, as usual , on the weekends of
November 16 and 17, and 23 and 24. Prior to the
next weekend, he was notified by his foreman that
he was discharged.
After being discharged, Benson went to the main
plant and spoke with Kimbler who said that the
system of watchmen was being discontinued
because it was cheaper to purchase insurance, but
that he would try to find jobs for the men dis-
placed.19 Of the four watchmen terminated, two
were placed in other jobs within the following 2 to
3 weeks. In addition, about a week after Benson
was laid off, Kimbler testified, he hired a new
cleanup man. He testified that he kept Benson
under consideration for rehiring but stated that the
reason he hired the new man rather than trying to
get in touch with Benson was because the new man
could do painting. Benson, however, testified that
he had done considerable painting, some of it in the
main plant, during the regular workweek.
The General Counsel and the Union contend that
Benson was not rehired because he had given
testimony in the Sylco case and Respondent con-
tends that his termination was purely economic in
nature. I have found that Respondent discharged
Mrs. Brackett and Mrs. Tartar because they had
testified in the Board case and that in and around
this time Respondent continued to interfere with
the employees' rights under the Act. These
findings, together with the disintegration of Kim-
bler's contrived excuse for taking on a new man
rather than recalling Benson , convince me, and I
find, that Respondent's reason for failing to recall
Benson was the fact that he had testified in the
Board case against Sylco and that it thereby vio-
lated Section 8(a)(4) of the Act.
questioning by the General Counsel, that he saw Sylco materials and sup-
plies in the Liberty cutting room
IS Kimbler and Benson both so testified
e. Zola Lanham
LIBERTY SPORTSWEAR CO., INC. 1243
Zola Lanham began working for Respondent
September 18, 1967, and worked steadily; she was
laid off on January 3, 1969. When she began work-
ing she was assigned to repairs and was one of eight
women doing this work. She continued in repairs
until November 13, 1968, when she was one of four
in this group. On that date they were told that the
method of making repairs was being changed and
that the employees who had performed the original
work would be required to make any necessary
repairs. Accordingly, only one of the four in the
group was retained for part-time repair work and
the other three were transferred: one was assigned
to a machine for blocking and the two others, in-
cluding Mrs. Lanham, were transferred to inspec-
tion work. Mrs. Lanham did inspection work for
only 5 or 6 days and was then returned to repair
work, which was then being done at a different lo-
cation. After about 2 weeks she was informed that
repairs were "running out" and, on December 11,
she was transferred to a group of women operating
pressing machines.
On January 3, 1969, the pressing department was
discontinued and all pressing work was sent to a
plant several miles away, operated by Russell Sport-
swear, another subsidiary of Marlene, and Mrs.
Lanham was laid off. On April 1, 1969, she
received a letter from Respondent notifying her
that her employment was being terminated "due to
job elimination," with no reflection on her work
record, and that she could submit an application for
future employment.
The General Counsel's contention that Mrs. Lan-
ham's layoff on January 3, 1969, violated Section
8(a)(3) and (1) of the Act is based upon the fol-
lowing factors: (i) that Mrs. Brackett and Ralph
Patterson, who testified in the Sylco case, are her
sister and her brother and that she was transferred
out of the repair department, where she had per-
formed satisfactorily for 14 months, on the very day
when they were testifying;20 (ii ) that the press to
which she was transferred had been used only inter-
mittently and did not function properly, making it
impossible for her to produce a standard amount of
work; (iii) that when she was transferred to the
pressing department it was already scheduled for
discontinuance; (iv) that of the six employees doing
repairs on November 13, only Mrs. Lanham was
transferred to another type of work;21 (v) the others
who were then on repair work are still employed;22
and (vi) that, at the time of the trial of this case,
"The General Counsel 's brief states that Mrs Lanham was transferred
"one day following " their testimony . The record in this case and the record
in the Sylco case show that both events occurred on the same day,
November 13
" Mrs. Lanham testified that there were four employees doing repairs at
the time , that only one continued to do repair work part time , and that the
others were distributed as set forth above
" Mrs. Lanham testified that , of the four, one quit and the other two are
still working.
" Mrs. Godbey , who gave this testimony , said she was "not sure on that"
Respondent had "six or eight" employees doing
repair work.23 This "series of complicated maneu-
vers," he contends, "point up the pretextual nature
of the discharge."
The principal difficulty I find with the argument
of the General Counsel is that there is no evidence
that Respondent had any knowledge of union ac-
tivity by Mrs. Lanham that might justify an in-
ference that her transfer to the pressing department
scheduled for discontinuance was for the purpose
of terminating her employment to discourage mem-
bership in the Union.24 Furthermore, while it is
probable that, in view of the small size of the city of
Liberty (pop. 1,578), the managerial personnel of
Respondent were aware of Mrs. Lanham's relation-
ship to Mrs. Brackett and Mr. Patterson, this factor,
alone, is similarly insufficient to justify an inference
that the same maneuvers and her consequent layoff
were in retaliation for their testimony in the Sylco
case . 25 The significance of the coincidence between
the testimony of her brother and sister in the Sylco
case and her transfer away from repairs is
diminished by the evidence that there was a general
change in the method of assigning repairs by refer-
ring them back to the original operator.
In summary, there is, in my opinion, insufficient
evidence upon which to base a finding that Mrs.
Lanham's layoff violated Section 8(a)(1), (3), or
(4) of the Act.
6. The effect of the unfair labor practices upon
commerce
The activities of Respondent set forth in sections
3 and 5, above, occurring in connection with its
operations described in section 1 and 2, 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
thereof.
7. The remedy
Having found that Respondent has engaged in
unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain affir-
mative action to effectuate the policies of the Act.
Having found that Respondent failed to reemploy
Coy Benson in violation of Section 8(a)(4) of the
Act, I shall recommend that Respondent offer him
immediate and full reinstatement to his former, or a
because she didn 't work there, but was a "final inspector" and not a super-
visor.
24 The General Counsel 's brief does not rely upon Kimbler's alleged
phone call to Mrs. Lanham . Had I found that Kimbler made that call, an
important element would have been added
"This situation falls far short of that in Dal- Tex Optical Company, 131
NLRB 715 , cited by the General Counsel in support of his argument that
the discharged employee need not actually have testified, since the em-
ployees involved in that case were themselves present in the courtroom
ready to testify and were seen there by their employer's president
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substantially equivalent, position without prejudice
to his seniority or other rights and privileges and
make him whole for any loss of earnings he may
have suffered as a result of the discrimination
against him, said loss to be computed in accordance
with the formula set forth in F. W. Woolworth Com-
pany, 90 NLRB 289, and with interest thereon as
prescribed in Isis Plumbing & Heating Co., 138
NLRB 716.
Upon the foregoing findings of fact and the entire
record in this case, I reach the following:
CONCLUSIONS OF LAW
1. Liberty Sportswear Company , Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
2. International Ladies ' Garment Workers'
Union , AFL-CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
3. By threatening employees with violence and
with the loss of their jobs and by threatening to
close their place of business if the employees chose
to be represented by a labor organization , Respon-
dent interfered with, restrained , and coerced em-
ployees in the exercise of rights guaranteed in the
Act and thereby violated Section 8(a)(1) thereof.
4. By discharging Thelma Brackett on November
18 and Ila Tartar on November 19 for giving
testimony pursuant to the Act, Respondent violated
Section 8 ( a)(4) thereof.
5. By failing to reemploy Coy Benson after his
layoff because he had given testimony under the
Act, Respondent violated Section 8(a)(4) thereof.
6. By the aforesaid unfair labor practices,
Respondent interfered with , restrained, and
coerced employees in their exercise of rights
guaranteed them in the Act and thereby violated
Section 8 ( a)(1) thereof.
7. The aforesaid labor practices are unfair labor
practices affecting 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 , it is recommended that Liberty Sport-
swear Company , Inc., of Liberty , Kentucky , its of-
ficers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Threatening employees with violence, with
discharge , or with the closing of its plant if they
should become members of or engage in activities
on behalf of International Ladies' Garment Work-
ers' Union , AFL-CIO, or any other labor or-
Y° 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 Recommended Order herein
shall, as provided in Section 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 . In the event
ganization , or for exercising their rights of con-
certed action for mutual aid or protection guaran-
teed in Section 7 of the National Labor Relations
Act, as amended.
(b) Discharging and refusing to reinstate em-
ployees because they have given testimony under
the said Act.
(c) In any like or related manner interfering
with, restraining , or coercing its employees in the
exercise of their right to self-organization, to form
organizations , to join or assist International Ladies'
Garment Workers' Union, AFL-CIO, or any other
labor organization, to engage in concerted activities
for the purpose of collective bargaining and other
mutual aid or protection, or to refrain from any and
all such activities, except to the extent that such
right may be affected by an agreement requiring
membership in a labor organization as a condition
of employment, as authorized by Section 8(a)(3) of
the National Labor Relations Act, as amended.
2. Take the following affirmative action to effec-
tuate the policies of the Act:
(a) Offer to Coy Benson immediate and full
reinstatement to his former position or to a position
substantially equivalent to that which he held im-
mediately prior to November 29, 1968, without
prejudice to his seniority or other privileges and
make him whole for any loss of wages in the
manner set forth in the section of the Decision enti-
tled "The Remedy."
(b) Notify Coy Benson, if presently serving in
the Armed Forces of the United States of his right
to full reinstatement upon application in ac-
cordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Recommended Order.
(d) Post at its plant or plants in Liberty, Ken-
tucky, copies of the attached notice marked "Ap-
pendix."2 Copies of said notice, on forms provided
by the Regional Director for Region 9, after being
duly signed by its representative, shall be posted by
it immediately upon receipt thereof, and be main-
tained 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 it to insure that
said notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for Region 9, in
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 Na-
tional 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 "
LIBERTY SPORTSWEAR CO., INC. 1245
writing, within 20 days from the receipt of this
Decision , what steps have been taken to comply
herewith.27
IT IS FURTHER RECOMMENDED that the allegations
of the complaint, insofar as not found violative of
the Act in the decision, be dismissed.
11 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 EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The trial which was held in Liberty, Kentucky, on
August 19, 1969, at which all parties participated
and had a chance to give evidence , has resulted in a
Decision that we violated Section 8(a)(1) and (4)
at the National Labor Relations Act, as amended,
By threatening violence and threatening to
discharge employees or to close down this
place of business if the employees chose Inter-
national Ladies' Garment Workers' Union,
AFL-CIO, or any other union , to represent
them for the purpose of collective bargaining.
By discharging Thelma Brackett on
November 18 and Ila Tartar on November 19,
because they gave testimony under the Na-
tional Labor Relations Act.
By failing to rehire Coy Benson, when a
position became open after he had been laid
off, because he gave testimony under the Na-
tional Labor Relations Act.
Based upon this Decision, the Board has ordered
us to promise our employees that we will not do
these things again and that we will not, in any
other, similar, or related manner interfere with,
restrain, or coerce them in the exercise of their
rights, under Section 7 of the National Labor Rela-
tions Act, to:
Organize themselves into a union
Form, join, or help unions
Bargain as a group through a union
representative of their choice
Act together for collective bargaining or
for mutual aid and protection
Refuse to do any or all of the above, un-
less required to do so by a valid contract
providing for union membership in ac-
cordance with law.
We therefore promise that:
WE WILL offer to rehire Coy Benson, in the
same or an equivalent position to that which he
held immediately prior to November 29, 1968,
and WE WILL make up any loss of pay or
benefits he may have suffered when we failed
to rehire him when a position was open, and
WE WILL pay him interest on any such loss of
pay at the rate of 6 percent.
WE WILL notify Coy Benson, if he is
presently serving in the Armed Forces of the
United States, of his right to full reinstatement
upon application in accordance with the Selec-
tive Service Act and the Universal Military
Training and Service Act, as amended, after
his discharge from the Armed Forces.
We reinstated Thelma Brackett and Ila Tar-
tar without loss of pay after their discharges
and, therefore, we are not required to offer
them jobs again.
LIBERTY SPORTSWEAR
Co., INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, Room 2407, Federal Office Build-
ing, 550 Main Street, Cincinnati, Ohio 45202,
Telephone 513-684-3686.