The Van Heusen Co.

National Labor Relations Board - Board Decisions

Nov 24, 1975

221 N.L.R.B. 732 (N.L.R.B. 1975)

,712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Van Heusen Company and Amalgamated Cloth-
ing Workers of America, AFL-CIO. Case 15-CA-
5363
November 24, 1975
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND
PENELLO
On September 29, 1975, Administrative Law Judge
Henry L. Jalette issued the attached Decision in this
proceeding. Thereafter, Charging Party filed excep-
tions and a-supporting brief.
' Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has'delegated its
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 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
HENRY L. JALETrE, Administrative Law Judge: This
proceeding involves allegations that the above-named
1 The complaint did not include a notice of hearing. Notice of hearing
was given by order dated June 10, 1975, when the Regional Director
consolidated the complaint in the instant case with a complaint issued in
Case 15-CA-5414 (The complaint in Case 15-CA-5414 and objections to
conduct which affected the results of an election in Case 15-RC-5474,
which had also been consolidated for hearing with Case 15-CA-5363, were
severed from Case 15-CA-5363 at the hearing on motion of General
Counsel. ) By reason of such failure to give notice of hearing , Respondent
moved to dismiss the complaint on the ground that the Regional Director
had not complied with Sec. 102 15 of the Board 's Rules and Regulations,
Series 8, as amended , which provides-
After a charge has been filed, if it appears to the Regional Director that
formal proceedings in respect thereto should be instituted, he shall issue
and cause to be served on all the other parties a formal complaint in the
name of the Board stating the unfair labor practices and containing a
notice of hearing before an Administrative Law Judge at a place
therein fixed and at a tune not less than 10 days after the service of the
complaint.
In argument on the motion, Respondent contended that it was deprived
of a speedy trial and due process of law. Respondent 's motion was taken
under advisement and is herewith denied . I am not persuaded that Sec
102.15 mandates the issuance of a notice of hearing simultaneously with
221 NLRB No. 134
Respondent violated Section 8(a)(1) and (3)-of the Act'by
discharging one Marvin P. Franks, Jr., because pf; his,
activities on 'behalf of the above-named Union, the
Charging Party herein , and by the -interrogation of an
applicant for employment, and the threat of, loss of
employment. The proceeding was initiated` by a charge-
filed 'on July 26, 1,974,' pursuant to which complaint was
issued` on December 19, '1974. On July'30, 1975,, hearing,
was'held'in Ozark, Alabamai.t
Upon the entire record,2 including my observation of the
witnesses, and after due consideration of the -briefs of the
parties, I hereby make the following: -
FINDINGS ' OF FACT
1. THE, FACTS
Respondent operates a plant in Ozark , Alabama, where
it is engaged in the manufacture of men 's pajamas 3 In or
about June - 1973, the Union began an organizational
campaign among Respondent's employees . As admitted by
Plant Manager ,Claude Etheridge , Respoildent,ie ,arned'of
the campaign as early as July 10 when an employee told
Etheridge she had been contacted. At some point in time,
the Union began having meetings on Tuesday nights at a
nearby Holiday Inn and Etheridge admitted knowledge of
this fact.
There is no allegation that anything untoward with
regard to the ^ organizational campaign occurred until
March 4,, 1974, when Respondent terminated Marvin P.
Franks, Sr. `Franks was one of two markers employed by
Respondent. He was hired on May 27, 1973., He did not
become involved with >the Union until January 24, 1974,
when he signed a card . Thereafter he attended union
meetings at the Holiday Inn on February 5, 12, and 19.
On February 27 and 28 , and March 1, 1974, Franks was
absent from work assertedly because he could not start his
car. On Monday , March 4, when he reported to work he
was laid off by Cutting Room Supervisor Jack Willoughby
who told him that work was slack . He advised Franks to
sign up for unemployment compensation and to find
issuance of complaint The purpose of Sec. 102.15 , in my judgment, is to
mandate the issuance of a complaint once the Regional Director has
concluded that the unfair labor practice charge has merit (that is, that
formal proceedings should be instituted ) he has no discretion in the matter.
(Of course the Regional Director may withhold issuance of complaint if the
matter is resolved by settlement . But see Leeds & Northrup Company v.
N.LR B., 357 F.2d 527 (C.A 3, 1966)). There is no reason , however, to
mandate a notice of hearing, and Sec . 102.16 indicates clearly that the date
of hearing in largely discretionary with the Regional Director. To construe
Sec. 102.15 as mandating a notice of hearing would be to engraft on the
provision a wholly unnecessary condition . Insofar as Respondent's motion
is based on a denial of due process , I find it lacking in merit There is no
showing that Respondent was prejudiced in any way by the Regional
Director's failure to include a notice of hearing in the complaint or by any
delay in bringing the matter to hearing. No witness necessary to
Respondent 's case was unavailable to it at the time of hearing. For the
foregoing reasons, the motion to dismiss is hereby denied.
2 The Union filed a motion to correct the official transcript . The motion
is unopposed and is hereby granted. The errors have been noted and
corrected.
3 The jurisdiction is not in issue. The complaint alleges , the answer
admits, and I find, that Respondent meets the Board 's $50,000 direct
outflow standard for the assertion of jurisdiction.
THE VAN HEUSENN,CO.
another job if he could because he did not know when
work would pick up.
In May 1974, Barbara Govan applied for employment by
Respondent and was interviewed by Plant Manager
Claude Etheridge. She testified that after reading her
application Etheridge asked her about her prior experience
and employment and whether she had worked for
Respondent before. (Respondent has other plants near
Ozark and Govan had been employed at one of them but
she falsely replied that she had not.) Etheridge asked her if
she could report to work the next morning. She told him
yes and he told her to report the next morning . He then
asked her if she had worked under a union before and she
replied no. He told her that the Union had been trying to
organize the plant and that in his opinion Respondent did
not need a union . He told her the Union members knew
who she was and they would be coming around to her
house to talk to her and ask her to sign a card. He said if
they came around asking her to sign a card, or anything, to
report it to him and he would get it in a court of law and
get the best legal advice possible., Etheridge also said "that
if I did sign a card of any kind, that it would interfere with
my job at Van Heusen, but if I didn't, I would have a job
there as long as I worked" satisfactorily. Govan worked 8
months.
II. ANALYSIS AND CONCLUSIONS
The principal issue in this case is whether Melvin Franks
was terminated because of his union activities or for lack of
work. The facts are fairly simple and present no significant
conflict; the only question is what inferences are to be
drawn from those facts.
Certain preliminary findings must be made before
reaching the ultimate issue of the motive for Franks'
discharge, for example, company knowledge of his union
activities and antiunion animus. I infer company knowl-
edge from the record as a whole, including the size of the
plant , admissions by Etheridge that employees were
volunteering information to him about union meetings,
including who was in attendance, and the uncontradicted
testimony of remarks by the wife of Cutting Room
Supervisor Jack Willoughby. I also find animus against the
Union from Etheridge's interview of Barbara Govan and
the speech to assembled employees in May 1974 as
described by Govan.
Despite the foregoing, I conclude that General Counsel
has failed to establish by a preponderance of the evidence
that Franks' discharge was motivated by his union
activities. It is undisputed that Franks was absent from
work on February 27, 28 and March 1. Plant Manager
Etheridge testified that he had noticed Franks' absence
and that as work was slowing down and as Respondent
had never really needed two markers he suggested to
Cutting Room Supervisor Jack Willoughby that then was
the time to let Franks go. Etheridge explained that Franks
had been hired in the first place only because the other
marker, one Steve McDaniels, had been expressing
dissatisfaction with his rate of pay and Respondent feared
he might quit. However, McDaniels had been given a merit
increase and appeared to intend to remain, thus eliminat-
733
ing the need for a reserve marker. Willoughby corroborat-
ed Etheridge's testimony.
General Counsel and the Union would have me
disbelieve Etheridge and Willoughby, but there is no
evidence in the record to justify my doing -so. It is
undisputed that Franks was never replaced and Respon-
dent has operated with only one marker since his
termination . Etheridge's assertion that production was
slowing down was not discredited in any way. He testified,
that between July 1973 and the date of the'hearing, the
work force had decreased from approximately 135 employ-
ees to 105; no evidence to the contrary was adduced. I
consider the observations of employee McKnight and of
Franks about the amount of work available to be
meaningless and utterly lacking in probative weight and
therefore attach no significance to them. Nor do I attach
any weight to the fact that when McDaniels quit in July,
Respondent did not recall Franks. According to Franks'
aunt, Clyde Tharp, who works for Respondent, she was
asked by 'Willoughby and another supervisor, Buford
Spears, whether Franks would be interested in returning to
work and she told them he was working elsewhere at a
higher 'rate of pay and she did not think he would be
interested in returning to work for Respondent. She also
told Spears that Franks had told her he would not work for
Respondent for $8 an hour unless the Union was in. Under
the circumstances no adverse inference may be drawn from
Respondent's failure to offer the vacancy created by
McDaniels' quitting to Franks.
General Counsel and the Union advert to testimony of
Clyde Tharp that one morning in February Willoughby
asked her to talk to Marty ,because he was afraid "he is
fixing to mess up." They appear to contend this was a
reference to Franks' union activity. I do not agree. The
record indicates that at the time of this incident Franks
had been tardy in reporting to work on several successive
days. Willoughby testified this was why he spoke to Tharp
who had been instrumental in getting Franks hired. He did
not explain to her what he meant , assuming she knew.
(Tharp lived next door to Franks and frequently woke him
up to go to work .) Given these circumstances, I am
unwilling to translate Willoughby's remark into a reference
to Franks' union activities.
Finally, in concluding that the record is insufficient to
warrant a fmding that Franks' termination was attributable
to his union activities rather than to a reduction in work, I
have considered the fact that months earlier a group of
employees had advised Respondent that they were part of
an organizing committee on behalf of the Union and most
of those employees were still employed by Respondent,
those who were not having voluntarily quit. I fail to see
why Respondent would react to Franks' minimal activities
by discharging him. Apart from signing a card and
attending three meetings , he solicited one employee to sign
a card under circumstances which do not warrant a fording
that the Respondent knew of it.
I have also considered the fact that after Franks began
his union activities and signed a card on behalf of the
Union he was late for work on 5 successive days. Although
on 2 of those days, he was only late 1 minute, and only 5
minutes on another, presumably such tardiness would be
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grounds for discharge; yet, Respondent did not discharge
him for such tardiness. Moreover, Franks' 3 days absence
on February 27, 28 and March 1, was also ,grounds for
discharge when he did not call in. (Franks testified he
called in on 2 of those days. Ido not credit him.)
For all of the, foregoing reasons, I shall recommend that
the allegation of the complaint respecting the termination
of Marvin Franks be dismissed.
The interview of Barbara Govan presents two issues.
First, there, is, the issue of interrogation. The complaint
alleges that Govan was interrogated regarding her union
sentiments and/or activities. The record does not support
this allegation., According to Govan's own testimony,
Etheridge's question was whether she had worked under a
union before., This question asked nothing about her union
sentiments and/or activities, as was the case in the cases
cited by General Counsel and the Union. In particular, the
interview of Govan was dissimilar from that of Mildred
Adams in Phillips-Van Heusen Corp., 165 NLRB 1, 11.
Neither the General Counsel nor the Union cited any
precedent for holding unlawful the mere inquiry whether
an applicant for employment had worked under a union
before. In any event,, the inquiry was a natural one as a
preface to an explanation of Respondent's benefits and
that it was nonunion. Certainly, without more being said, I
find the question asked by Etheridge was not violative of
Section 8(a)(l) of the Act.
According to the complaint, however, Etheridge threat-
ened Govan with loss of employment if she joined the
Union. This allegation is supported by Govan's testimony
that if she signed a union card it would interfere with her
job. Etheridge denied making any such statement and I
credit him. In rejecting Govan's testimony, I am 5 not
concluding that she testified falsely; rather, I am persuaded
that she must have misunderstood some of Etheridge's
remarks, just as for example, she misunderstood his
remarks when she testified he told her "the union members
knew who she was." I. cannot conceive of Etheridge telling
her anything like that. Accordingly, I find that General
Counsel has failed to establish that Respondent threatened
employees with loss of employment as alleged in the
complaint.
CONCLUSIONS OF LAW
1. The Van Heusen Company is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. General Counsel has not established by a preponder-
ance of the evidence that Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act as alleged in the' complaint.
Upon the basis of the foregoing findings of fact and
conclusions of law, I hereby issue the following recom-
mended:
ORDER4
The complaint is hereby dismissed in its entirety.
4 In the event no exceptions are, filed as provided by Sec. 102 46 of the 102.48 of the Rules and Regulations, be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board, the findings , its findings, conclusions , and Order , and all objections thereto shall be
conclusions , and recommended Order herein shall, as provided in Sec deemed waived for all purposes.