S and S Manufacturing Co.

National Labor Relations Board - Board DecisionsJun 1, 1973

203 N.L.R.B. 1102 (N.L.R.B. 1973)

1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD S and S Manufacturing Company and International Ladies' Garment Workers ' Union , AFL-CIO. Case I 1-CA-5125 June 1, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On March 19, 1973, Administrative Law Judge Ber- nard Ness issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its 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 and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge 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 the complaint be, and it hereby is, dis- missed in its entirety. ' The General Counsel 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 credibili- ty 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. DECISION STATEMENT OF THE CASE BERNARD NESS, Administrative Law Judge: This case, ini- tiated by the filing of a charge on November 3, 1972, by International Ladies' Garment Workers' Union, AFL-CIO, herein called the Union, was tried before me on February 23, 1973, in Spartanburg, South Carolina. The complaint issued on January 29, 1973. Respondent 's answer denies the commission of unfair labor practices . The single issue framed by the pleadings is whether or not Respondent's supervisors , Mavis Horton and Ronnie Guinn , engaged in surveillance of a union meeting on September 13, 1972, in violation of Section 8(axl) of the Act. Upon the entire record, after seeing and hearing the wit- nesses and observing their demeanor on the stand , and after due consideration of the brief filed by the General Counsel, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT I find, as the complaint alleges and the answer admits, that the Respondent, a South Carolina corporation, oper- ates facilities in the State of South Carolina, including a plant located at Spartanburg, South Carolina, where it is engaged in the manufacture of ladies' apparel; that during the past year, a representative period, it manufactured and shipped directly to points outside the State of South Caroli- na, products valued in excess of $50,000; that during the past year, a representative period, it received goods and raw materials from points directly outside the State of South Carolina valued in excess of $50,000. Based on the fore- going, I find that Respondent is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED I find, as the complaint alleges and the answer admits, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES At the Spartanburg, South Carolina, plant, which is the plant involved in this proceeding, the Respondent has a complement of about 850 employees, all on a single shift from 7:30 a.m. to 4 p.m. The General Counsel's case was presented through two witnesses, Patricia Miller and Jill Stewart. They were no longer employed by Respondent at the time of the hearing. They had been alleged in the charge filed in this case as having been discriminatorily terminated. That allegation was dismissed by the Board's Regional Of- fice. As far as the record discloses, union activity at the Spar- tanburg plant was initiated when Miller went to the union hall and obtained cards on August 25. Two union meetings were held at the union hall, the first on August 25, and the second on September 13. It was the meeting of September 13 that allegedly was kept under surveillance. Apart from the above, the record is barren of any testimony of a union campaign at the plant. An informal settlement agreement, referred to by the General Counsel, executed by Respon- dent on July 24, applied only to Respondent's Glendale, South Carolina, plant, about 10 miles away. The record does not disclose any evidence as to how the scheduling of meet- ings was communicated to employees, let alone how an inference could be drawn that supervisors would have known about the meetings. A brief description of the location of the union hall is helpful to an understanding of the testimony regarding the alleged surveillance .' The union hall is located in Spartan- I A rough diagram of the area was received as Resp Exh. 3. 203 NLRB No. 179 SANDS MFG. CO. burg on Centinnial Street which runs in an easterly.westerly direction. The next road south of Centinnial, also running in an east-west direction is the Asheville Highway, some- times referred to in the record as the Spartanburg Highway. The highway contains six lanes of traffic, three each way, and concededly is a heavily traveled road. A side street (unnamed in the record) to the west of the union hall runs in a north-south direction between Centinnial and the high- way. At the west corner of the side street at the highway is a gas station . On the north side of the highway in an easterly direction away from the union hall is a small shopping center where a drycleaning establishment, an A & P grocery store, and a craft and drug store are located, respectively situated west of each other. The entrances to the stores face south on the highway. To the east of the stores is a parking lot running north from the north side of the highway to Centinnial Street . The parking lot is for patrons of the stores in the shopping center . There is also parking space available in front of the stores on the highway side . The union hall is located on the north side of Centinnial close to the side street . A sign is posted in front describing the Union as the occupant of the premises. The building immediately west of the union hall is occupied by a carpet store. Miller and Stewart were no longer employed at the time of the alleged surveillance on September 13. Their testimo- ny as to the circumstances concerning the presence of super- visors Horton and Guinn in the vicinity of the union hall is mutually corroborative, except for minor variations. The meeting was scheduled for 5:30 p.m. on September 13. Mill- er and Stewart arrived about 5:15 p.m. Before Steward en- tered the building, she noticed Horton driving by slowly in a westerly direction on Centinnial past the union hall. She called to Miller who had already entered the hall. When Miller came out, they both saw Horton drive by the hall, this time in an easterly direction. They then got in their car, followed Horton, and observed her in the parking lot, sitting in the car. She and Guinn were conversing, Guinn holding a pencil and paper in his hand. The two girls then returned to the union hall and noticed Horton drive by again in a westerly direction. Miller said she called Union Representa- tive Jerry McDaniel to the door as Horton again went by the hall heading in an easterly direction toward the parking lot. Stewart related that when Horton proceeded eastward this last time "we called everybody else to the window, and everybody else was looking out the window" as Horton proceeded eastward and turned in to the parking lot and talked to Guinn again .2 Both Guinn and Horton testified on behalf of Respon- dent. They both conceded they did talk momentarily at the parking lot that afternoon but in all other material respects, their accounts were not in accord with the testimony of the General Counsel's two witnesses. Guinn, who was a supervisor in the button department at the time of the incident, explained his presence at the park- ing lot in the following manner. He does not have a driver's license and his wife picks him up at the plant at the end of the workday. Sometimes they stop at the shopping center on the way home to get groceries. On September 13 that is what 2 Miller testified there were about 15-20 employees at the meeting 1103 occurred. His wife parked the car in the parking lot east of the stores and while his wife and the children went into the store he remained at the lot. After a few minutes, Horton drove up to the lot from the Centinnial side and stopped momentarily. They exchanged pleasantries. Horton then drove through the lot and turned right towards the highway side where the store fronts face. He did not see her again. He denied that he had a pencil and paper in his hand. He denied knowledge of a union meeting taking place or that the union hall was even then located at Centinnial.3 Horton at the time of the incident was assistant ware- house supervisor. She was terminated by the Respondent in January 1973 for undisclosed reasons .4 She explained her presence in the vicinity as related below. On September 13, after she left the plant, she stopped at the gas station located at the west corner of the side street at the highway. She regularly gets gas at this station. She had approached from a westerly direction on the highway and turned left, crossing three lanes of traffic to the station. After having her car serviced she went to the A & P to purchase bread and milk. As she customarily does on such occasions, rather than cross three lanes of traffic on the highway easterly and then again make a left turn across the highway across three lanes to the shopping center, she proceeded north down the side street, made a right turn on to Centinnial and then another right turn directly into the parking lot. She noticed Guinn and after a momentary exchange of pleasantries, she went through the parking lot, made a right turn, parked her car in front of the stores and did her shopping. She then left the area via the highway in a westerly direction. She denied any knowledge of a union meeting or the site of the union hall on Centinnial. I was impressed by the credible testimony of Guinn and Horton accounting for their presence in the area on Septem- ber 13. Their explanations for being in the area were plausi- ble and logical. I am persuaded to accept Horton's explanation for driving past the union hall on Centinnial to the shopping area and that this occurred only one time. As stated above, there is a paucity of evidence of union activity during the period and there was no testimony as to how the union meeting was publicized or even a glimmer to generate any knowledge to be imparted to management representa- tives. I do not credit the testimony of Miller and Steward that Horton drove back and forth past the union hall. It will be remembered their testimony was they had the union representative and employees at the hall observe Horton drive by. Yet none was called to support their testimony. I find that Horton drove by only the one time as she testified and was unaware of any union meeting. In view of the foregoing, I conclude that the General Counsel has failed to establish by a fair preponderance of the evidence that Horton or Guinn kept the union hall under surveillance as alleged in the complaint and I shall recommend that the complaint be dismissed. Upon the foregoing facts and the entire record, I make the following: 3 The Union had moved to this location but the record is silent as to when this occurred. In determining credibility, I attach no significance to the fact she was no longer employed at the time of the hearing 1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Respondent , S & S Manufacturing Company, is an employer engaged in commerce and in operations affect- ing commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, International Ladies' Garment Workers' Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not engaged in the unfair labor prac- tices alleged in the complaint. Upon all the foregoing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: S ORDER It is hereby ordered that the complaint be dismissed. 5In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , and recommended Order herein shall, as provided in Sec. 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.