Swain Manufacturing Co.

National Labor Relations Board - Board DecisionsFeb 6, 1973

201 N.L.R.B. 681 (N.L.R.B. 1973)

SWAIN MANUFACTURING COMPANY Swain Manufacturing Company and International La- dies' Garment Workers Union , AFL-CIO. Cases 1 O-CA-9669 and I O-CA-9736 February 6, 1973 DECISION AND ORDER BY MEMBERS JENKINS , KENNEDY, AND PENELLO On November 9, 1972, Administrative Law Judge Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions, the Charging Party filed a motion to strike said exceptions,' and the Respondent filed a response thereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and has decided to affirm the Administrative Law Judge's rulings, findings, and conclusions2 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified herein, and hereby orders that Respondent, Swain Manufacturing Company, Waycross, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge' recommended Order, as modified herein: Substitute the attached notice for the Administra- tive Law Judge's notice. i The Charging Party has moved to strike Respondent's exceptions for failure to comply with Sec 102 46(b) of the Board 's Rules and Regulations because , inter aha, they neither cite any authorities nor state specifically the grounds on which Respondent relies. Sec 102 46(b) of the Board 's Rules and Regulations, Series 8, as amended , states that any exception which does not comply with the requirements of that section "may be disregarded ." Although Respondent 's exceptions do not fully comply with the requirements of the rule , we have decided not to disregard them as they sufficiently designate the portions of the Decision which Respondent claimed were erroneous Cf Carbon Mining Corporation, 198 NLRB No. 52, and cases cited therein . In our opinion, however, Respondent's exceptions are without merit. 2 We find it unnecessary to our Decision herein to pass on the Administrative Law Judge 's conclusion that the wearing of union insignia is a form of solicitation 681 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which both sides had the opportunity to present their evidence , the National Labor Relations Board has found that we violated the law and has ordered us to post this notice. WE WILL NOT threaten to close our plant if you select the International Ladies' Garment Workers Union , AFL-CIO, to represent you for purposes of collective bargaining. WE WILL NOT threaten you with discharge, nor will we discharge employees because they wear union tags at work. WE WILL NOT in any other manner interfere with , restrain , or coerce employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations , to bargain collec- tively through representatives of their own choos- ing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any and all such activities. Since the Board found that we violated the law when we fired Joyce Music, Wylene Blanton, Shirley Bailey, Beatrice Cox , Joyce Crews, and Sally Pearson , WE WILL offer them their jobs back , or if such jobs no longer exist, we will offer them substantially equivalent employment, and we will pay them for any loss of pay they may have suffered because we fired them. All our employees are free to become , remain, or to refrain from becoming or remaining members of the International Ladies' Garment Workers Union, AFL-CIO, or any other labor organization. SWAIN MANUFACTURING COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board 's Office, Peachtree Building, Room 701, 703 Peachtree Street , NE., Atlanta, Georgia 30308, Telephone 404-526-5741. 201 NLRB No. 116 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE HENRY L. JALETTE , Administrative Law Judge : This case involves allegations that Respondent , Swain Manufactur- ing Company,' discharged six employees in violation of Section 8(a)(1) and (3) of the Act, and that Respondent engaged in independent 8(a)(1) conduct specified here- inafter . The charge in Case 10-CA-9669 was filed on July 10, 1972,2 and complaint thereon issued on August 11. The charge in Case 10-CA-9736 was filed on August 14 and complaint thereon and an order consolidating cases were issued on August 25 . Hearing was held on September 20, in Waycross, Georgia. Upon the entire record , including my observations of the witnesses and after consideration of the briefs filed by Respondent and the Charging Party, I make the following: FINDINGS OF FACT 1. THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Discharge of Six Employees 1. The facts Respondent is a Georgia corporation with its principal office and place of business located at Waycross, Georgia, where it is engaged in the manufacture and sale of women's apparel.3 In June , certain employees of Respondent began engaging in activities on behalf of the International Ladies' Garment Workers Union , AFL-CIO (hereinafter referred to as the Union). This activity consisted in signing a union card , soliciting other employees to sign cards, and attending union meetings . The employees who engaged in activities of this type whose activities are in question herein are Joyce Music , Wylene Blanton , Shirley Bailey , Beatrice Cox, Joyce Crews , and Sally Pearson. On August 7, Joyce Music , who is employed as a seamstress , clocked in at 7:28 a .m. and began working. She had pinned to her dress a 2 by 3-1/2 inch card which bore the legend : "Hello, my name is Joyce Music, Union Committee ." Within a very few minutes of her arrival, she was called to the office of plant manager Vera Waters where she was told that she would have to remove the tag or go home . Music refused and left work at 7:48 a.m. Wylene Blanton , Beatrice Cox, and Sally Pearson wore identical tags that same morning and they were also called into Water's office about 15 minutes after starting time I The name of Respondent appears as amended at the heanng 2 Unless otherwise indicated all dates hereinafter are in 1972 d Jurisdiction is not in issue The complaint alleges, the answer admits, and I find , that Respondent meets the Board 's direct outflow standard for the assertion ofjunsdiction 4 The no-solicitation rule is valid on its face and there is no allegation in the complaint with respect thereto At the heanng. plant manager Waters was asked if she would allow soliciting during break time or lunch time and she replied , " I allowed none " It would appear from her answer that despite its language the rule is enforced in an unlawful manner . However, I make no finding of a violation in this particular, because there was no allegation in the complaint and General Counsel had the opportunity to amend the complaint at the heanng and declined to do so Moreover, the record indicates that employees understand the rule and their statutory rights to where they were also told they would have to remove the tags or go home. Blanton asked if they did not have the right to wear them at work and Waters adhered to her position that they either remove the tags or go home. Waters told them the decision was theirs to make. They removed the tags and returned to work. After work that day, the ladies conferred with a Union representative who advised them they had the right to wear the tags at work. The following morning, upon arrival at the plant, Music, Blanton, Cox, Pearson, Crews, and Bailey went directly to Waters' office instead of clocking in and going to their machines. They had a conversation with Waters in which they asserted that the Federal government assured them the right to wear the tags. Waters persisted in her view of the day before and told them they could not work with the tags on. The employees refused to remove the tags, requested their paychecks, received them and left the plant. 2. Analysis and conclusions Respondent contends that its conduct described above, about which there is no essential factual dispute, was not violative of the Act for two reasons. At the times material herein, Respondent had in effect a no-solicitation rule which prohibits solicitation during worktime.4 Respondent contends that this wearing of the union tags while at work as the employees herein sought to do was in violation of that rule and that it had the right to enforce its valid rule. I find this contention without merit. "Working time is for work" as has so frequently been stated,5 and an employer may prohibit solicitation during working time without advancing any reason for the prohibition. Such a rule will be presumed to be valid in the absence of evidence that it was adopted for a discriminato- ry purpose. There is no gainsaying that the wearing of union insignia is a form of solicitation, but unlike oral solicitation, it is not a form of solicitation that may be prohibited solely because it occurs on working time.6 This is clear from Republic Aviation Corporation v. N.LR.B., 324 U.S. 793, wherein the Court quoted with approval the Board's finding in that case: ... that the right of employees to wear union insignia at work has long been recognized as a reasonable and legitimate form of union activity... . However, the right to wear union insignia at work is not absolute. In special circumstances, where necessary to maintain production or discipline, rules may be adopted and enforced which prohibit the wearing of union insignia at work. Mayralh Company, 132 NLRB 1628, enfd. 319 engage in solicitation on company property Additionally, apart from the matter of the union tags, which is really a matter distinct from what is encompassed by the no-solicitation rule, there is no evidence that employees were prevented from engaging in union solicitation during breaktimes or lunch periods 5 Matter of Peyton Packing Co. 49 NLRB 828, 843 6 The DeV,lbzss Company. 102 NLRB 1317. 1321. Contrary to the contention of the Union. DeVilbiss does not hold that the weanng of union insignia is not a form of solicitation The statement was made in Fabri-Tek Incorporated. 148 NLRB 1623, 1629, that " the wearing of union insignia is not a form of solicitation." but in my judgment . this was an overbroad statement not justified by DeVilbiss In any event , both DcVllbias and Fabri- Tek comport with the rationale and conclusions arrived at herein SWAIN MANUFACTURING COMPANY F.2d 424 (C.A. 7). Respondent asserts that special circumstances did exist at its plant which justified its demand that employees remove the tags . In my judgment, the evidence adduced by Respondent in support of its assertion does not warrant a finding that special circum- stances existed . The plant herein appears to be a typical garment factory where most of the employees are women engaged in one form of sewing operation or another. In addition , Respondent employs one or more cutters and some pressers . There may also be some service boys and some shipping employees although the record is not explicit in that regard . The production is carried out in what is essentially one large open area , with sewing machines grouped in one part and with pressers and a cutting machine in other parts of the area . While the work of the employees requires their attention , it does not differ in this respect from any other kind of production work. Insofar as the tags are concerned, they were not unusual in design or legend ; 7 they were not provocative ; 8 and they were not being displayed in an atmosphere of animosity and violence .9 In short , the only basis on which Respon- dent predicates its ban against the union insignia is that it operates a garment factory and the wearing of union insignia may interfere with production . This is insufficient basis to deprive employees of their rights under Section 7 of the Act to wear union insignia such as the employees sought to wear in this case. Accordingly , I find that Respondent 's statements to employees that they could not work unless they removed their union tags constituted threats of discharge violative of Section 8(a)(l) of the Act. As to the allegation that Respondent discharged the six employees named above , Respondent's defense is that it did not discharge them , rather, that they quit voluntarily. The defense is clearly without merit . As the Board has held, an employer may not validly impose upon employees the choice of relinquishing their statutory rights or not working. Employees who leave work when confronted by such a choice are constructively discharged . Eckerd's Market, 183 NLRB No. 40 (Painter's case); Standard Fittings Co., etc., 133 NLRB 928. Accordingly , I find that Respondent discharged the employees named above because of their refusal to remove union insigma and that it thereby violated Section 8(a)(1) and (3) of the Act. B. The Alleged Threats of Plant Closure and Impression of Surveillance 1. The facts On June 27, Irwin Cohen, one of the owners of Respondent, gave a speech of about 15 minutes to the assembled employees in the plant. According to Joyce Music , Cohen told them he knew there were union activities going on in the plant and that some of the employees had signed cards , but that two of them wanted them back. He said he was going to fight the Union with everything he had even if it meant closing the factory down. Wylene Banton , Shirley Bailey , Beatrice Cox, Joyce Crews, and Sally Pearson testified to the same effect. 7 Cf. Fabr, -Tek, Inc v. N.LR B., 352 F 2d 577 (C.A 5). 8 Cf. Caterpillar Tractor Co v. N L R B , 230 F 2d 357 (C A 7). 683 Cohen admitted making a speech , and his version accords with that of the employees in most particulars. Where it differs is with regard to their testimony that he threatened to close the plant if the Union came in. According to Cohen , the only reference he made about plant closure was in explaining that a union is a business and, in his opinion , there was a possibility if the Union did get into this shop and did make unreasonable demands, that he would have to consider the cost of these demands and their effect on the operation of the plant and the possibility existed that because of these unreasonable demands he might have to consider closing the shop. 2. Analysis and conclusions To anyone experienced in labor relations, it is not uncommon for an employer to deliver a speech to his employees along the lines which Cohen claims to have used and later to find employees who testify that the employer threatened in haec verba to close the plant if the union came in. This is the phenomenon which I believe is described by the Supreme Court in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 617, wherein the Court stated, "And any balancing of those rights [First Amend- ment and Section 8(c) rights against Section 7 and 8(a)(1) rights] must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear." In trying to decide whether Cohen's speech was as he described it or as the employees described it, I have been concerned that what the employees testified to was an example of this tendency of employees to substitute threats of plant closure for predictions of the possible effects of unionization based on matters beyond their employer's control. For reasons which follow, I conclude that such was not the case here and that Cohen did threaten plant closure if the Union came in and I do not credit his version of the speech. In arriving at this conclusion, I am mindful of Cohen's testimony that before giving the speech he conferred with an attorney who outlined the speech for him and that the speech he delivered was substantially as outlined to him by the attorney. However, this testimony is not particularly persuasive in light of Cohen's testimony that the outline he received was written down and, for some unexplained reason, Cohen did not read from the outline, nor even bring it to the meeting. This circumstance somewhat dilutes the significance of his having received legal advice about what he could say to his employees. The circumstance that persuades me that Cohen threat- ened to close the plant if the Union came in, as testified by the employees, is the incident of August 7 described above when Waters told employees Cox, Blanton and Pearson that they could not wear Union tags and continue working, and that it was their decision to make. Blanton replied to this remark that she did not feel Waters was giving them any choice. Waters replied, "Well, you heard Mr. Cohen's 8 Cf Brewton Fashions, Inc. v . N L R B, 361 F.2d 8 (C.A. 5). 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD speech, and he means what he says." As the discussion continued, Blanton said all they were trying to do was get a little more money. Waters said Cohen was paying as much as he could. She said, ". . . her son-in-law had worked in a factory and a union came in, and the man had to close the factory and put 100 people out of work and leave town." Beatrice Cox testified to the same effect, but she described Waters' statement about her son-in-law's experi- ence employed elsewhere as "they had closed down because of union activities .. . Joyce Crews testified to the same effect. Waters admitted making remarks substantially as de- scribed by the employees. In making the remarks about Cohen's speech, it is possible that Waters was substituting her understanding of Cohen's remarks for his actual words; yet, this seems unlikely. She was not examined about Cohen's speech so we do not know her version of it, but the remarks she made to the employees certainly were not cast in terms of a prediction of economic consequence beyond Cohen's control. As to the closing of the factory where her son-in-law had been employed, she admitted she had no knowledge of the reasons for the closing except that a union had come in. In short, there was nothing in her remarks to the employees to indicate that plant closing would be linked to economic conditions outside Respon- dent's control; rather, her remarks support the employees' version of Cohen's remarks on June 27. For the foregoing reasons, I conclude that Cohen threatened to close the plant if the Union came in and that Respondent thereby violated Section 8(a)(1) of the Act. The complaint also alleges that Plant Manager Waters threatened the employees with plant closure if the Union came in, and this allegation is based on Waters' remarks on August 7 which I have just alluded to. The clear implication of Waters' remarks was that Respondent would also close the plant if the Union came in and the remarks were therefore violative of Section 8(a)(1) of the Act. In addition to alleging that Cohen's speech was violative of Section 8(a)(1) of the Act because of his threats of plant closure, the complaint alleges that it was violative because he made remarks that created the impression that Respon- dent was keeping under surveillance the union activities of the employees. This allegation is based on undisputed testimony that Cohen said in his speech that he knew there was union activity going on and that some of the girls had signed cards, but two of them wanted them back. In my judgment, in the circumstances of this case, a finding is not warranted that these remarks created the impression of surveillance of the employees' union activi- ties. From the testimony of General Counsel's own witnesses (Blanton, Bailey, and Pearson), in professing knowledge of the employees' union activities, Cohen referred to union activities going on in the plant. This is a statement very different from one about knowledge of attendance at union meetings or other union activities away from the plant. Employees would not have any reason to infer that their employer was keeping their union activities under surveillance when he merely indicates his knowledge of such activities on company property. Moreover, it seems that the organizational activity in this case was never kept secret . Already described above is the wearing of union tags and prior to that the Union had notified Respondent of the identity of its committeewom- en. Admittedly , these events postdated the speech , but they suggest that at all times no effort was made to conceal the fact that an organizational campaign had been initiated. In these circumstances , I do not find Cohen's remarks to constitute an impression of surveillance and shall recom- mend dismissal of the allegations to that effect.1° If. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section I, above, occurring in connection with its operations de- scribed therein, have a close, intimate , and substantial relationship to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 111. THE REMEDY Having found that Respondent had engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent discharged Joyce Music , Wylene Blanton , Shirley Bailey, Beatrice Cox, Joyce Crews, and Sally Pearson because of their union activities , I shall recommend that it be ordered to offer them immediate and full reinstatement to their former or a substantially equivalent position, without prejudice to their seniority or other rights and privileges , and to make them whole for any loss of earnings they may have suffered by reason of the discrimination against them by payment to them of a sum of money equal to that which they normally would have earned as wages , from the date of their discharge to the date of the offer of reinstatement , less net earnings , to which shall be added interest at the rate of 6 percent per annum in accordance with the formula set forth in Isis Plumbing & Heating Co., 138 NLRB 716 and F. W. Woolworth Company, 90 NLRB 289. The unfair labor practices committed by Respondent strike at the very heart of employees ' rights safeguarded by the Act . I shall therefore recommend that Respondent be placed under a broad order to cease and desist from in any manner infringing upon the rights of employees guaranteed in Section 7 of the Act . N. L. R. B. v. Entwistle Manufactur- ing Co., 120 F.2d 532, 536 (C.A. 4). CONCLUSIONS OF LAW 1. Swain Manufacturing Company is an employer 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 discharge unless they 10 Cf Schrementi Bros, Inc, 179 NLRB 853 SWAIN MANUFACTURING COMPANY 685 remove union tags, and by threatening plant closure if they select the Union as their collective-bargaining representa- tive, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. 4. By discharging Joyce Music, Wylene Blanton, Shirley Bailey, Beatrice Cox, Joyce Crews, and Sally Pearson because of their union activities, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: 11 ORDER Respondent , Swain Manufacturing Company , its offi- cers , agents , successors , and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in, or activities on behalf of, International Ladies ' Garment Workers Union, AFL-CIO , or in any other labor organization , by discharg- ing employees because of their union activities or otherwise discriminating against them in regard to their hire or tenure of employment or any terms or conditions of their employment. (b) Threatening employees with discharge unless they remove union tags. (c) Threatening plant closure if employees select a union as their representative for purposes of collective bargain- ing. (d) In any other manner interfering with , restraining, or coercing employees in the exercise of their rights to self- organization , to form , join , or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any and all such activities. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the National Labor Relations Act, as amended: (a) Offer Joyce Music, Wylene Blanton, Shirley Bailey, Beatrice Cox, Joyce Crews, and Sally Pearson , immediate, full, and unconditional reinstatement to their former jobs or, if those jobs no longer exist , to substantially equivalent positions , without prejudice to their seniority or other rights or privileges , and make them whole for any loss of pay they may have suffered by reason of the discrimination against them by payment to them of a sum of money equal to the amount they normally would have earned as wages from the date of their discharge to the date of their reinstatement in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant and necessary to a determination of the amounts of backpay due under the terms of this recommended Order. (c) Post at its Waycross, Georgia , place of business copies of the attached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by the Respondent 's representative , shall be posted by it immedi- ately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places , includ- ing 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, defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within 20 days from the date of this Decision , what steps Respondent has taken to comply herewith.13 IT IS FURTHER RECOMMENDED that the allegation of the complaint found not to have been sustained by a preponderance of the evidence be dismissed. 11 In 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 , recommendations , 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. 12 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 13 In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified to read- "Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order , what steps the Respondent has taken to comply herewith "