Howe K. Sipes Co.

National Labor Relations Board - Board Decisions

Sep 21, 1995

319 N.L.R.B. 30 (N.L.R.B. 1995)

30
319 NLRB No. 6
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 See Rocket Industries, 304 NLRB 1017 (1991); Bonanza Sirloin
Pit, 275 NLRB 310 (1985).
Howe K. Sipes Company and Furniture Workers’
Division, International Union of Electronic,
Electrical, Salaried, Machine and Furniture
Workers, AFL–CIO, Local 282. Cases 26–CA–
16128, 26–CA–16148, 26–CA–16231, 26–CA–
16373, 26–CA–16422, and 26–CA–16516
September 21, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND TRUESDALE
On June 9, 1995, Administrative Law Judge Philip
P. McLeod issued the attached decision. The Charging
Party filed exceptions, and the Respondent filed a mo-
tion to strike the Charging Party’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record and for the reasons set forth below has decided
to affirm the judge’s rulings, findings, and conclusions,
and to adopt the recommended Order.
Section 102.46(b) of the Board’s Rules and Regula-
tions sets forth the minimum requirements for Board
consideration of a party’s exceptions to an administra-
tive law judge’s decision, including the setting forth of
those specific portions of the judge’s decision to which
it excepts, with supporting legal or record citations or
appropriate argument.1
In its exceptions, the Charging Party does not iden-
tify any findings of the judge that it contends are in
error, but following a narrative which does not refer at
all to the judge’s decision, concludes that the judge’s
dismissal of complaint allegations should be set aside.
As the Charging Party’s exceptions do not put in issue
any of the judge’s findings as required by Section
102.46(b), we shall grant the Respondent’s motion to
strike those exceptions and adopt the judge’s decision.
See Section 102.48(a) of the Board’s Rules and Regu-
lations.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Howe K. Sipes Company,
Memphis, Tennessee, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Donna M. Osborne, Esq., for the General Counsel.
Donald R. Wellford, Esq. (McDonnell Dyer), of Memphis,
Tennessee, for the Respondent.
DECISION
STATEMENT OF THE CASE
PHILIP P. MCLEOD, Administrative Law Judge. I heard this
case in Memphis, Tennessee, on January 10, 11, 12, and 13,
and February 6 and 7, 1995. The charge in Case 26–CA–
16128 was filed on April 4, 1994. Thereafter, charges were
filed and/or amended in the various other cases captioned
above on various dates between April and December 1994.
Complaints and amended complaints issued on June 30, Au-
gust 31, November 7, and December 28, 1994. As consoli-
dated and amended, the complaint alleges, inter alia, that
Howe K. Sipes Company (Respondent) violated Section
8(a)(1), (3), and (5) of the National Labor Relations Act (the
Act), by condoning and encouraging violence against union
supporters; by referring to union supporters as ‘‘trash;’’ by
advising employees not to associate with union supporters;
by monitoring the bathroom visits of union supporters; by
issuing various warnings to union supporters; by suspending
and discharging union supporters; by unilaterally changing
various practices and policies because of employees’ union
activities and without prior notice to or bargaining with the
Union, and by unlawfully withdrawing recognition from the
Union.
In its answer to the consolidated amended complaints, Re-
spondent admitted certain allegations, including the filing and
serving of the charges; its status as an employer within the
meaning of the Act; the status of Furniture Workers’ Divi-
sion, International Union of Electronic, Electrical, Salaried,
Machine and Furniture Workers, AFL–CIO, Local 282 as a
labor organization within the meaning of the Act; and the
status of certain individuals as supervisors and agents of Re-
spondent within the meaning of Section 2(11) of the Act. Re-
spondent denied having engaged in any conduct which would
constitute an unfair labor practice within the meaning of the
Act.
At the trial herein, all parties were represented and af-
forded full opportunity to be heard, to examine and cross-ex-
amine witnesses, and to introduce evidence. Following the
close of the trial, counsel for General Counsel and Respond-
ent both filed timely briefs which have been duly considered.
On the entire record in this case, and from my observation
of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Howe K. Sipes Company is a corporation,
with its office and place of business in Memphis, Tennessee,
where it is engaged in the business of manufacturing baseball
uniforms and school letter jackets. In the course and conduct
of its business, Respondent annually purchases and receives
at its Memphis facility goods and products valued in excess
of $50,000 directly from points located outside the State of
Tennessee. Respondent also annually sells and ships from its
Memphis facility goods and products valued in excess of
$50,000 directly to points located outside the State of Ten-
nessee.
Respondent is, and has been at all times material herein,
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
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31HOWE K. SIPES CO.
II. LABOR ORGANIZATION
Furniture Workers’ Division, International Union of Elec-
tronic, Electrical, Salaried, Machine and Furniture Workers,
AFL–CIO, Local 282 is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Howe K. Sipes Company is a manufacturer of athletic
clothing, particularly baseball, softball, and little league uni-
forms, and school letter jackets. Howe K. Sipes Jr. is the
founder, president, and principal stockholder of Respondent,
which has been in business for 48 years, and at its present
location in Memphis since 1962. Respondent’s plant is lo-
cated in a single building consisting of three sections, one for
each of three operating departments, including the cutting,
sewing, and shipping departments. Also located in the front
of the building is Respondent’s corporate office headquarters
and sales department.
By far the largest department is the sewing room which
consists of a single, large open room 200 by 120 feet. Adja-
cent to the sewing room is the cutting room on one side, and
the warehouse/shipping area on another.
The plant manager for many years prior to his forced res-
ignation in May 1993 was Lon White. White was succeeded
by Glen Williams, who has sole supervisory responsibility
over the sewing room and shipping departments, but not over
the cutting room which has its own supervisor. Under Wil-
liams are three area supervisors, including David Rikard over
the jacket line, Betty Bobo over the baseball line, and Karen
Sanders over the shipping department. These three individ-
uals direct the day-to-day operations of their individual de-
partments, and although they lack the authority to discipline
employees, they do effectively recommend disciplinary ac-
tion which they may think is appropriate.
Respondent has 140 sewing machines on the sewing room
floor and an additional 80 sewing machines in a separate
warehouse. The large sewing room consists of machines
aligned on one side constituting the jacket line and machines
aligned on the other side constituting the baseball uniform
production line. On both lines, production is broken down
into multiple operations. On both lines, production starts on
one end of the line and progresses until the product is com-
pleted at the other end of the line. Depending on its com-
plexity, some operations require more sewing machine opera-
tors than others. In addition, there are more sewing oper-
ations than Respondent has sewing machine operators to per-
form them, making it necessary that operators have the capa-
bility to perform several different operations. The record re-
flects that transfers of sewing machine operators from one
operation to another are common place.
The number of available experienced sewing machine op-
erators has declined over the years to the point where for
some time now Respondent has not been able to produce in
its own plant all that it needs to meet customer demands. Re-
spondent has been contracting out ever increasing amounts of
work since 1984. As a result of the decreasing supply of ex-
perienced sewing machine operators, Respondent regularly
advertises its need for experienced sewing machine operators
with industrial experience in want ads in the local news-
paper. Respondent’s work force has fluctuated between 85 to
about 115 employees. At the time of the trial herein, Re-
spondent needed approximately 40 additional sewing ma-
chine operators and had on the sewing floor or in storage in
the cutting room enough cut material to keep the work force
occupied for a period of at least 7 months.
B. The Union Campaign and Bargaining
In July 1993, the Union began to organize Respondent’s
production and maintenance employees. In September 1993,
the Board conducted an election among employees, and on
September 20, 1993, the Union was certified as the exclusive
bargaining representative of Respondent’s employees.
Beginning in October 1993, negotiations ensued between
the parties. Numerous negotiating sessions were held, but the
parties were unable to reach agreement. In September 1994,
Respondent was presented with a petition signed by a major-
ity of employees stating that they no longer wished to be
represented by the Union, and on September 21, 1994, Re-
spondent withdrew recognition from the Union.
C. Allegations Relating to Employee Shirley Jones
Shirley Jones worked for Respondent from October 1992
until April 1994. Jones worked as a sewing machine operator
on Respondent’s jacket line. Jones testified that in late Janu-
ary or February 1994 she became a union steward and joined
the Union’s negotiating committee. Counsel for General
Counsel did not illicit testimony from Jones regarding any
union activity in which she might have been involved prior
to this time.
On January 27, Plant Manager Glen Williams issued a
warning to Jones for unacceptable attendance, stating that in
the past 20 working days Jones had missed 5 complete days,
been late 4 days, and left early 2 days. Jones had worked
only 9 complete days out of the prior 20 working days. The
warning stated that Jones’ attendance must improve consider-
ably or she would receive further disciplinary action up to
and including termination. The accuracy of Williams’ warn-
ing to Jones is not disputed by counsel for General Counsel.
Respondent concedes that it has never issued a written
policy which states that a specific number of absences will
result in a warning. The record, however, is clear, and coun-
sel for General Counsel appears to concede, that beginning
in late 1993 Respondent began to experience severe attend-
ance problems. A review of the other warnings which Re-
spondent issued relating to attendance shows that while Re-
spondent had no strict uniform policy regarding the number
of tardies or absences which Respondent would tolerate, Re-
spondent issued discipline regarding attendance to numerous
other employees who there is no reason to believe were
union supporters. The record clearly does not support counsel
for General Counsel’s argument that Jones was ‘‘singled
out.’’
Counsel for General Counsel argues that the timing of the
attendance warning to Jones ‘‘is curious’’ in that it was
shortly after she became a part of the union negotiating com-
mittee. In fact, however, the record does not show clearly it
was after Jones became a member of the negotiating commit-
tee that she received this warning. As indicated above, Jones
testified that she became a union steward and joined this
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32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
committee in late January ‘‘or February’’ 1994. Only when
it became clear that the timing was significant did Jones as-
sert definitely that it was in January. Jones’ demeanor on
cross-examination, however, made her less than credible. She
repeatedly exhibited a tendency to argue with counsel, and
revealed a clearly hostile attitude. If counsel for General
Counsel had some document available which showed pre-
cisely when Jones was appointed a union steward and joined
the union negotiating committee, she did not introduce it. I
find myself unable to rely on Jones’ testimony to conclude
that she was ever definitely involved in union activity at any
time prior to receiving the January warning for attendance.
Counsel for General Counsel has failed to carry the nec-
essary burden of proof to show that Respondent issued the
January 1994 warning to Jones due to her union activity, and
that complaint allegation is hereby dismissed.
In mid-March 1994 Jones was involved in an incident
which resulted in her being issued a disciplinary warning. On
March 10, a plumber doing repair work at Respondent’s fa-
cility caused Respondent to close one or both of the wom-
en’s restrooms for a short time for repairs. It is undisputed
that Shirley Jones left her workplace and went to the smaller,
2-stall restroom, where she lit and began smoking a cigarette.
Karen Ellis, a bargaining unit custodial employee, was at-
tempting to clean the restroom. A verbal battle developed be-
tween Ellis and Jones when Ellis ordered Jones out of the
restroom so she could clean it. Whether it was Ellis or Jones
who left the restroom first to complain about the other is not
clear, but both left the room within a few seconds of each
other looking for Plant Manager Glen Williams for that pur-
pose. It is clear that Jones left the restroom carrying the
lighted cigarette onto the sewing room floor. When a fellow
employee pointed out to Jones that she had a lighted ciga-
rette, Jones returned to the bathroom, extinguished it, and
then followed Ellis to Plant Manager Williams. When Jones
got to where they were standing, Ellis was already complain-
ing to Williams that she could not clean the restroom be-
cause Jones and others were in the room smoking. Jones then
reported to Williams that Ellis had threatened if Jones did
not get out of the restroom, Ellis was going to ‘‘whip her
ass.’’
Respondent President Sipes was present in the area of the
conversation between Williams, Ellis, and Jones. In response
to Ellis’ threat, Sipes made a remark upon which the wit-
nesses to the event disagree. Jones testified that Sipes re-
torted, ‘‘the next time she does it, whoop her ass.’’ Em-
ployee Mattie Green testified Sipes remarked to Plant Man-
ager Williams, ‘‘I’ll tell you what, you just let Karen whoop
her ass, just whoop her ass.’’ Employee Paulette Payne pro-
vided an even more damning account, testifying that in con-
junction with his remark that Ellis should ‘‘whoop’’ Jones,
Sipes also stated that he was ‘‘tired of all this union stuff.’’
No other witness corroborates Payne, and I do not credit her
claim that Sipes made any reference to the Union. Sipes and
Plant Manager Williams deny not only the exaggerated ver-
sion of Payne, but also the testimony of Jones and Green.
According to both Sipes and Williams, when he heard Ellis’
threat to ‘‘whoop’’ Jones, Sipes remarked, ‘‘Not in here you
won’t.’’ Ellis and Jones were then both told to get back to
work. I find that Jones provided the most accurate account
of Sipes’ remark.
Counsel for General Counsel contends that by his remark,
Sipes was condoning violence against union adherents in vio-
lation of the Act. The record, however, is clear that Respond-
ent had a policy against smoking anywhere in the facility ex-
cept the breakroom area. Although Shirley Jones claimed that
before this incident she never heard of any rule limiting
smoking to the breakroom area, employee Kathleen Veasey,
also called by counsel for General Counsel, candidly admit-
ted Respondent had a longstanding policy that smoking
should occur only in the breakroom area. I credit Sipes, Plant
Manager Williams, and other witnesses called by Respondent
who testified like Veasey that Respondent had long main-
tained this policy. Sipes candidly admitted knowing and
being utterly frustrated by the fact that female employees
congregated in the women’s restroom, which he considered
off-limits, ‘‘sometimes 15 at a time’’ to smoke. The record
is replete with evidence that despite Respondent’s consistent
effort to curtail smoking in the restrooms, the largely female
work force has continued to use the women’s restroom as a
haven from Sipes and Plant Manager Williams, both males,
to take brief unauthorized smoke breaks throughout the
workday.
Although counsel for General Counsel contends that Sipes
remark condoned violence against union supporters, the
record ultimately fails to support that conclusion. I do not
credit Payne that Sipes made any reference to the Union or
union supporters in uttering his ill-advised remark that Ellis
whip Jones’ ass. It is just as likely, if not indeed more likely,
that Sipes was simply expressing his continued extreme frus-
tration over the fact that despite his best efforts, female em-
ployees continued using the restroom to smoke. In fact, a
careful analysis of Jones’ own testimony supports this con-
clusion over any argument that Sipes was targeting her as a
union supporter. Jones testified that when she and Ellis were
describing their confrontation in the restroom to Plant Man-
ager Williams, Ellis complained that she was unable to clean
the restroom because there were other women in the rest-
room standing around smoking and in the way. In describing
Sipes’ response to Ellis’ remark, Jones testified that Sipes
stated, ‘‘Yea, I know they do this, and the next time she
does it, whip her ass.’’ I find that in his ill-advised remark,
Sipes was indeed simply expressing extreme frustration over
the continued practice of female employees using the rest-
room to smoke in spite of the long standing policy that
smoking was to occur only in the breakroom area, and the
record does not support a conclusion that Sipes was
condoning violence against Jones or any other employee be-
cause of their support for the Union. Accordingly, I shall dis-
miss that allegation from the complaint.
Jones testified that after this incident between her and
Ellis, Jones went to lunch. During lunch, Jones decided that
she was too upset by the incident to continue working the
rest of the day. After Jones received permission from Wil-
liams to leave, she clocked out and left for the day. That
afternoon it came to Sipes’ and Williams’ attention that as
the confrontation unfolded between Jones and Ellis, Jones
had come out of the women’s restroom and onto the sewing
room floor with the lighted cigarette in her hand. The follow-
ing day, Plant Manager Williams issued a written warning to
Jones for smoking in the restroom. Jones, however, refused
to accept the warning without a union steward present. Wil-
liams then gave Jones a second warning for refusing to ex-
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33HOWE K. SIPES CO.
cept the first warning, and when Jones refused the second
warning as well, Williams suspended Jones.
Counsel for General Counsel argues that the initial warn-
ing for smoking in the restroom was issued for ‘‘pretextual
reasons’’ and that Jones was ‘‘singled out.’’ I reject this ar-
gument. While the warning states on its face that it was
being issued because Jones had been smoking in the rest-
room, it is also perfectly clear from the face of the warning
that it was precipitated by the fact that Jones had brought the
lighted cigarette onto the plant floor, a serious violation of
company policy due to the flammable nature of many of the
materials sewn by Respondent’s employees. Every witness,
including Jones, acknowledged that Respondent has always
maintained an absolutely strict policy against anyone smok-
ing on the sewing room floor.
I reject counsel for General Counsel’s argument that this
warning was issued for pretexual reasons. Counsel for Gen-
eral Counsel acknowledges in her brief that in refusing to ac-
cept the warning, Jones was apparently under the mistaken
belief that she was entitled to union representation during the
presentation of any discipline. Counsel for General Counsel
nevertheless argues that the insubordination referred to in the
second warning refers to the fact that Jones did not believe
she was deserving of the first warning. Plant Manager Wil-
liams testified that as he attempted to present the first warn-
ing to Jones, she threw that warning on the floor. Jones and
employee Kathleen Veasey testified that when Jones refused
to take the first warning, Williams threw the warning toward
a table and missed, causing the warning to drop onto the
floor.
Whether or not Jones threw the first warning on the floor
is irrelevant. What is clear is that as Williams attempted to
issue the first warning to Jones, Jones refused to even accept
it. The second warning and ultimately the suspension were
issued to Jones not because she believed she was
undeserving of the first warning but because she refused to
even accept the warning from Williams. I reject counsel for
General Counsel’s argument that either of these two warn-
ings or the resulting suspension were the result of any unlaw-
ful motivation on Respondent’s part. In refusing to even ac-
cept the first warning from Plant Manager Williams, Jones
was clearly insubordinate, and it was this insubordination,
not her union activity, which caused the second warning and
the suspension. Accordingly, I shall dismiss those allegations
from the complaint.
On or about March 25, when Jones returned to work from
the suspension described above, Plant Manager Williams re-
assigned Jones from her normal function of sewing linings
to sewing facings. Counsel for General Counsel argues that
the transfer was unlawfully motivated as evidenced by the
fact that the machine to which Jones was assigned was iso-
lated from other machines and provided less of an oppor-
tunity for Jones to communicate with other employees.
Counsel for General Counsel acknowledges that Respondent
has reassigned employees and transferred them from one ma-
chine or one job function to another since long before the
union campaign ever began. According to counsel for Gen-
eral Counsel, however, reassignments occurred far more
often after the Union was certified. Counsel for General
Counsel offered conclusionary opinion testimony to that ef-
fect from several witnesses. No precise and specific evidence
was introduced, however, to support that conclusionary opin-
ion testimony.
Plant Manager Glen Williams testified that it was common
practice at Respondent’s facility to transfer employees be-
tween jobs for any of numerous reasons, including the sea-
sonal nature of Respondent’s business, the wide variety of
styles of different products made, employee absenteeism and
tardiness, and the relative abilities of employees to perform
certain jobs. Williams testified that he transferred Jones on
this occasion because he needed an extra person to sew fac-
ings and Jones had shown she was not dependable enough
in her attendance for him to rely on to sew linings, a more
critical part of the sequential order of production. The record
supports Williams’ testimony regarding the transfer of em-
ployees as well as Jones’ checkered attendance record as de-
scribed above. Counsel for General Counsel’s own witnesses
testified to having been transferred on numerous occasions
between various jobs. Employee Mattie Green, for example,
testified to moving between jobs setting collars, sewing zip-
pers, and sewing trim. Louvenia Saulsburry testified to trans-
fers she experienced as a result of the seasonal nature of Re-
spondent’s business, as a result of which she sometimes
sewed jackets and other times sewed collars. Saulsburry also
testified that she sometimes joined wool jackets when sewing
work on nylon jackets was slow.
Plant Manager Williams testified that due to the wide vari-
ety of jackets made by Respondent, there was more transfer
of employees between jobs in Respondent’s operation than
any other place Williams had worked. Williams’ testimony
is supported by other employee witnesses. Elizabeth Ware,
who has worked for Respondent 26 years, testified that em-
ployees have always been transferred between jobs and that
she regularly moves between banding, side seaming, end
seaming, and sewing linings. Employee Willie Mae Ritter,
who has worked for Respondent approximately 20 years, tes-
tified that she has done several jobs at any given time, and
that it is normal for employees to move from job to job. I
found Ritter particularly straightforward and credible in her
testimony about transferring from job to job.
I note too that by letter dated December 10, 1993, Re-
spondent explained in detail to the Union the necessity of re-
assigning employees from one operation to another as the
need arises. Plant Manager Williams maintained a list of op-
erators from information provided by operators themselves
identifying the jobs that each knew how to do. On Williams
list, which was created long before any union activity, Wil-
liams identified Jones as being capable of sewing either lin-
ings or facings. As Williams testified, Jones had never pro-
duced enough to enjoy incentive earnings over the base rate
in either position, and Jones was in no way disadvantaged
by the transfer. Based on all the above, I conclude that coun-
sel for General Counsel has failed to prove Jones’ reassign-
ment was in any way motivated by her union activity, and
I shall dismiss that allegation from the complaint.
D. Allegations Relating to Paulette Payne
Employee Paulette Payne testified that on one day in mid-
March 1994, she was going to the women’s restroom when
she met Sipes. According to Payne, Sipes said to her at the
time, ‘‘Don’t go in the bathroom and stay too long with
them trash.’’ Payne testified that when she proceeded into
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34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the restroom, she met Shirley Jones, Louvenia Saulsburry,
Kathleen Veasey, and Dorothy Moffitt, all union supporters.
Counsel for General Counsel argues that since Respondent
knew Jones, Saulsburry, Veasey, and Moffitt were all union
supporters, an inference can be drawn Sipes was referring to
them being union supporters when he referred to them as
‘‘trash,’’ and therefore Sipes violated Section 8(a)(1) of the
Act.
Sipes denied making any reference to employees as
‘‘trash.’’ As already mentioned above, Payne’s credibility
leaves something to be desired. Just as I have discredited
Payne, however, I have also discredited Sipes above and
found that he did make the remark to Ellis that she could
‘‘whoop’’ Jones if Jones continued smoking in the bathroom,
albeit for reasons not related to Jones’ union activity. In the
final analysis, I find that while Sipes did refer to employees
in the bathroom as ‘‘trash,’’ counsel for General Counsel has
offered no substantive evidence that Sipes actually knew who
was in the bathroom. Nor is there any reason to draw the in-
ference suggested by counsel for General Counsel that Sipes’
reference was to employees being union supporters. Indeed,
there is every reason to believe that Sipes’ reference to any
employees in the bathroom as ‘‘trash’’ was more in reference
to the continued practice of employees escaping there for an
unauthorized smoke break than because of their union activ-
ity. After the Union was certified, for example, Sipes had no
problem allowing employees to hold regular weekly union
meetings during breaktime inside Respondent’s facility in the
breakroom area. All in all the record suggests less of a con-
frontation or battle between management and employees be-
cause of union activities than because of the continuous prac-
tice of female employees frequently taking these brief smoke
breaks in the women’s restroom throughout the workday. Fi-
nally, I find that even if Sipes referred to certain employees
as ‘‘trash’’ because of their union activities, while such a
comment would certainly reflect union animus, it would not
rise to a violation of Section 8(a)(1) of the Act. Counsel for
General Counsel cites no case finding such a remark to vio-
late the Act, and I find none supporting this position. Ac-
cordingly, that allegation is dismissed from the complaint.
Payne has worked for Respondent for many years. She
was involved in the union campaign from its inception, fre-
quently wearing union T-shirts and/or buttons to work. After
the Union became certified, Payne was a member of the
union negotiating committee. On March 21, 1994, Respond-
ent issued Payne a warning for low production. The warning
accuses Payne of deliberately working slow and slowing
down production because of frequent bathroom visits.
The record establishes that as bargaining dragged on be-
tween Respondent and the Union and no agreement was
reached, Respondent began to observe an increase in unau-
thorized bathroom smoke breaks and a general decrease in
production. Indeed, in her posttrial brief, counsel for General
Counsel states that she ‘‘does not contend that Ms. Payne’s
production was not lower than it may have been in the
past.’’ During negotiations, Respondent complained to the
Union about the decrease in production as well as the in-
crease in unauthorized bathroom smoke breaks. The Union
responded with a detailed request for information regarding
employees involved in a perceived deliberate slowdown in
production, which is more fully discussed below. The record
tends to support Respondent’s argument that a general slow-
down in production occurred, and counsel for General Coun-
sel appears to conceed the point in her brief. The issue which
was always in dispute, however, was whether that slowdown
was deliberate.
Counsel for General Counsel argues that it would make no
sense for Payne to deliberately slow down production since
seamstress’ earnings are based on production. While that is
partly true, there is also a base rate, and Respondent has es-
tablished that many employees rarely produced enough to
earn an additional amount above the base rate. To produce
less than the amount which would earn a bonus based on
production had no effect on the employees’ wages who regu-
larly produced less than the incentive threshold.
It is true, as counsel for General Counsel argues, that it
had never been Respondent’s practice to ‘‘routinely’’ issue
warnings because employees did not make production. It is
also true that employees had never been told they had to
produce a certain specific number of pieces or else receive
discipline. On the other hand, the record reflects that both
Williams and previous Plant Manager Lon White issued
warnings to employees from time to time for low production.
Records also reflect that production was an issue discussed
both by Williams and White at employee meetings. Counsel
for General Counsel called certain witnesses who were both
long-term employees and avid union supporters who denied
that at employee meetings previous Plant Manager White
ever discussed production. In addition, Dorothy Moffitt testi-
fied that the handwriting on documents introduced by Re-
spondent recording notes of employee meetings and prior
warnings by previous Plant Manager Lon White were not his
handwriting. I find it absurd to think that Respondent has
held numerous meetings with employees and had never dis-
cussed production, and I do not credit that testimony. Nor do
I credit the testimony of Moffitt attacking the business
records of Respondent which show that previous Plant Man-
ager Lon White both discussed production with employees
and issued warnings to employees from time to time for low
production.
The evidence does not support a conclusion that the warn-
ing notice given Payne on this occasion was for her union
activities rather than Payne’s actual low production attrib-
utable to poor attendance. The record reflects that Payne’s
production and earnings were down because, during the first
4 months of 1994, there were only 2 weeks in which Payne
worked a 40-hour week. Much of counsel for General Coun-
sel’s case seems to be premised on an assumption that when
union activists employed by Respondent received discipline,
the discipline necessary stemmed from the union activity. It
has long been recognized, however, that union activism does
not immunize employees from disciplinary action. The evi-
dence reflects that the warning issued to Payne was consist-
ent with Respondent’s practice of issuing warnings for low
production in similar circumstances. I find that counsel for
General Counsel has failed to prove the warning issued to
Payne was because of her union activity, and I shall dismiss
that allegation from the complaint.
E. Allegations Relating to Dorothy Moffitt
Dorothy Moffitt worked for Respondent from July 1985
until her termination in late March 1994. Moffit, a seam-
stress, helped start the union campaign, was active through-
out, and was on the employee negotiating committee which
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35HOWE K. SIPES CO.
met with Respondent. Respondent admits that it was very
much aware of Moffitt’s union activities and sentiments.
On December 17, 1993, Moffitt was issued a written warn-
ing and suspended for 2 days for insubordination. Counsel
for General Counsel does not allege this matter to have been
motivated by Moffitt’s union activity. Plant Manager Wil-
liams testified that on this occasion, her machine was in need
of repair but she then refused, without reason, Williams’ di-
rections that she move off her machine to an adjacent iden-
tical machine until her own machine was repaired. After Wil-
liams prepared a written warning to Moffitt, Moffitt refused
to read the warning or acknowledge receipt of it. Williams
testified credibly that while he read the warning to Moffitt,
she tried to snatch it out of his hands stating, ‘‘Either give
it to me or you can kiss my ass.’’ Moffitt also called Wil-
liams ‘‘a crazy fool.’’ Williams testified credibly that on this
occasion, he advised Moffitt that any further insubordination
would result in a possible discharge.
On the afternoon of March 15, 1994, Moffitt received a
telephone call at her home from a funeral home in Mis-
sissippi concerning arrangements of a funeral. Carlos Brown,
who received the call, went to Respondent’s facility to tell
Moffitt she needed to return the call. Brown testified that he
arrived at Respondent’s facility some time after 2 p.m. Ac-
cording to Brown, he waited approximately 45 minutes, and
when Moffitt did not come up to the office to meet him,
Brown finally left. According to Brown, he left the facility
some time between 2:45 and 3 p.m. That evening, Brown in-
formed Moffitt of the call and that he had attempted to bring
a message to her at work, but was not allowed to speak to
her.
Respondent does not deny it has a general policy of allow-
ing employees to see visitors such as Brown. Plant Manager
Williams testified that he has always applied a common
sense policy that when he is not otherwise engaged, he will
promptly go to the visitor at Respondent’s reception area and
try to accommodate the visitor’s needs by either delivering
a message or item to the employee, or send the employee out
to see the visitor if necessary. Williams testified credibly that
if it is close to a breaktime, he tells the receptionist to have
the visitor wait until that next break. If the visitor claims
there is an emergency, he will talk to the visitor and if the
matter is important, he will get the employee immediately,
even during working time. If visitors come during breaktime,
either he or one of the employees who regularly sits in the
reception area will simply call the employee whom the visi-
tor wishes to see.
Plant Manager Williams acknowledged he was advised of
Moffitt’s visitor on the afternoon of March 15, and Williams
also testified credibly that by the time he was able to get to
the reception area, the visitor had left. Williams testified
credibly that on this afternoon, the visitor for Moffitt came
and went before the 2:30 p.m. break without leaving either
identification or a message.
While Brown claimed he waited for Moffitt about 45 min-
utes, through the period which would have been the after-
noon break, I do not find that aspect of Brown’s testimony
to be credible. Moreover, while Brown claimed that the call
from the funeral home in Mississippi was somewhat of an
emergency and that Moffitt was supposed to call the funeral
home back by 5 p.m. that afternoon, Brown gave no expla-
nation for not leaving either any identification or any mes-
sage with Respondent’s secretary that might have been
passed on to Moffitt.
The following morning, March 16, Moffitt went to Re-
spondent’s facility where a confrontation occurred with Plant
Manager Williams. According to Moffitt, she attempted to
telephone Respondent’s facility to notify them that she would
not be able to come into work because it was now necessary
for her to take a trip to Mississippi to complete the funeral
arrangements. Respondent argues that Moffitt came to the fa-
cility that morning purposely to cause a confrontation with
Williams. Whether or not Moffitt attempted unsuccessfully to
telephone Respondent’s facility, she did go to the facility and
cause a confrontation with Williams.
Moffitt approached Williams accompanied by fellow em-
ployee and union activist Louvenia Saulsburry. According to
Moffitt, she told Williams that she thought it was mean of
him not to let her see Brown. According to Saulsburry,
Moffitt asked Williams why he did not allow her to see
Brown and Williams responded that Moffitt could not tell
him how to take care of his business. According to Moffitt,
Williams then said, ‘‘Alright, you done said what you got to
say, now get your ass out of here,’’ pointing his finger in
Moffitt’s face. According to Moffitt, all she said in response
was that Williams was a ‘‘low down cracker,’’ and she left.
Plant Manager Williams paints a much different picture of
the confrontation that morning. According to Williams,
Moffitt came up to Williams at his desk and shook her finger
in his face, railing against him for failing to notify her of the
visitor. According to Williams, Moffitt told him not to ever
let that kind of thing happen again. Williams testified that
Moffitt then took steps towards him at the same time reach-
ing in her purse, saying, ‘‘I’m going to get it.’’ According
to Williams, Moffitt had the reputation of carrying a gun.
Another employee restrained Moffitt. According to Williams,
after Moffitt then said she would have to be off for 2 days,
Moffitt left slamming the door so hard that it had to be re-
paired by the mechanics.
Moffitt denied carrying a gun and denied threatening or
impliedly threatening Willaims on this occasion. Saulsburry
corroborates Moffitt that she did not threaten Williams. I am
convinced that all witnesses to this confrontation on the
morning of March 17 are telling a partially correct version,
and that the whole truth lies somewhere in a middle ground.
What is absolutely undisputed is that regardless of why
Moffitt went to Respondent’s facility, she intentionally
caused a confrontation with Williams. While I have some
question whether Moffitt tried to give Williams the impres-
sion she was threatening him with a gun, I have little doubt
that Moffitt shook her finger at Williams and told Williams
not to ever let that kind of thing happen again. Moffitt ad-
mits calling Williams a ‘‘low down cracker,’’ a racial slur.
When Moffitt returned to work on Monday, March 18,
Williams met Moffitt outside the plant door. Williams in-
formed Moffitt that she was being suspended because of the
confrontation described above, and that Moffitt could not
come into the plant. Moffitt asked for suspension papers,
which Williams said he would mail to her. In spite of being
told several times that she could not come into the plant,
Moffitt ignored Williams, entered anyway, and refused to
leave until she ‘‘got her notice.’’ Moffitt continued inside the
plant until she finally found Sipes, when she again demanded
the suspension papers immediately. Sipes told Moffitt that he
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36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would have them prepared for her, and instructed Moffitt to
wait in the breakroom. That much is undisputed.
Williams testified that when Moffitt ignored his orders not
to come into the plant and she did so anyway, he and other
supervisors followed Moffitt. According to Williams, Moffitt
remarked, ‘‘Why is all these people following me - I’ve got
something that’ll stop every one of them.’’ Louvenia
Saulsburry and Paulette Payne waited with Moffitt in the
break area. David Rikard, supervisor over the jacket line,
was instructed to remain with Moffitt while she was in the
building, and Rikard stood a few feet from where Moffitt,
Saulsburry, and Payne were sitting in the breakroom.
Rikard testified credibly that as he was standing nearby,
Moffitt turned to him and said, ‘‘Just keep standing there
you nosy mother fllker, you are just as low down as the
rest of them. You’re buddy-buddy to our face, but you’re
nothing but a low down, back-stabbing mother fllker.’’
Rikard responded that Moffitt’s language was totally
uncalled for. According to Rikard, Moffitt then turned to the
other employees sitting with her and stated, ‘‘I’ve got a bul-
let for everyone of them.’’ Moffitt, Saulsburry, and Payne all
denied that Moffitt made any threatening statement about a
bullet or a gun.
Williams and Rikard both testified that when Williams de-
livered her suspension papers and check to Moffitt, she
snatched them out of Williams’ hand, saying that she was
‘‘tired of your shlt.’’
After Moffitt left Respondent’s plant, Rickard told Wil-
liams about Moffitt’s comments while waiting for the sus-
pension papers. Williams then discussed these remarks with
Sipes, including Moffitt’s reported threats of violence and
previous acts of insubordination. Sipes then authorized
Moffitt’s discharge. When Moffitt returned from her suspen-
sion on or about March 25, she was met at the door of the
plant and given her discharge notice.
Counsel for General Counsel argues that Moffitt’s suspen-
sion and discharge were merely a pretext. I reject this argu-
ment. In resolving this issue it is unnecessary to find that
Moffitt ever threatened anyone in management with a bullet
or a gun. On the morning of March 17, Moffitt caused a di-
rect confrontation with Williams in which she shook her fin-
ger in his face and told Williams that he had better not ever
let that kind of thing happen again, referring to her not being
allowed to see Carlos Brown the previous day. I find that
Respondent had good reason to suspend Moffitt for this ob-
vious act of insubordination.
When Moffitt came to the plant, on or about March 18,
following the funeral, and was notified she was being sus-
pended, Moffitt ignored direct orders from Plant Manager
Williams not to enter the facility. Moffitt demanded that she
be given suspension papers immediately. I credit Supervisor
Rikard that while Moffitt was waiting for the suspension pa-
pers, Moffitt unleashed a verbal attack on him calling Rikard
a ‘‘low down, back-stabbing mother fllker.’’ When Wil-
liams delivered the suspension papers to Moffitt, she grabbed
them from his hand telling Williams that she was ‘‘tired of
your shlt.’’ All or any of these remarks constitute blatant
insubordination practically inviting her own discharge. Coun-
sel for General Counsel has failed to prove that Moffitt was
discharged because of her union activities or sentiments, and
I shall dismiss that allegation from the complaint.
F. Allegations Regarding Plant Visitation
The complaint alleges that on two separate occasions, one
involving Dorothy Moffitt, already discussed above, and the
other involving Louvenia Saulsburry, Respondent failed to
inform employees that they had visitors at the plant, and Re-
spondent thereby discriminated against employees in viola-
tion of Section 8(a)(1) and (3) of the Act.
I have dismissed the allegation relating to Moffitt for the
reasons already described above, and there is no need to re-
peat that discussion here. Louvenia Saulsburry testified that
on one occasion in March 1994, she was denied the oppor-
tunity to speak with her husband when he visited the plant.
Saulsburry testified that her husband came to the plant short-
ly before the 2:30 p.m. break to bring Saulsburry a check so
that she could pay some bills when she got off work.
Saulsburry admits that both the receptionist and Plant Man-
ager Williams advised Saulsburry that she had a visitor in the
reception area, but told her to wait until breaktime to talk to
the visitor. Saulsburry’s husband declined to wait, and in-
stead put the check and other papers in Saulsburry’s car.
Saulsburry’s own testimony contradicts the allegation that
she was not informed of her visitor. Counsel for General
Counsel argues in her posttrial brief that even assuming this
is so, Respondent nevertheless changed its past practice in
retaliation against employees. This argument is based on the
assertion of Saulsburry, Moffitt, and Paulette Payne that prior
to unionization, employees were allowed to receive visitors
at any time of the day, while after unionization employees
were required to wait until breaktime. I find this assertion
hard to believe. Plant Manager Williams testified credibly
that before and after unionization it was his policy, as de-
scribed above pertaining to Moffitt, to determine whether the
purpose of the visit was an emergency, and, if not, ask the
visitor to wait until the break period. Williams’ testimony re-
garding his practice concerning visitors makes far more sense
than the assertions of these three employees that they were
allowed to receive visitors at any time of the day. No em-
ployer can maintain a reasonable production schedule in a
sewing operation of this magnitude if employees are simply
allowed to leave their work at any time of the day to receive
visitors. I credit Williams’ description of his policy allowing
plant visitors, and the fact that that policy remained un-
changed. Accordingly, I shall dismiss those allegations from
the complaint.
G. Subcontracting
The complaint alleges that since February 1994, Respond-
ent has unilaterally contracted out bargaining unit work in
violation of Section 8(a)(1) and (5) of the Act. Only after she
had completed her entire case-in-chief, and it became fairly
clear that Respondent had a long history of subcontracting
work, did she move to amend the complaint to allege that
after the Union was certified, Respondent subcontracted work
to retaliate against employees in violation of Section 8(a)(1)
and (3) of the Act.
Louvenia Saulsburry, Kathleen Veasey, Dorothy Moffitt,
and Paulette Payne testified that after the Union was cer-
tified, the amount of work available decreased markedly such
that earnings were impacted. Veasey testified that after the
Union was certified, she saw employees cutting and boxing
work to be shipped out. Moffitt claimed that work went
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37HOWE K. SIPES CO.
down 75 percent after the Union was certified, a figure
which I find very hard to believe. Paulette Payne testified
that her earnings decreased approximately 50 percent. Coun-
sel for General Counsel offered no record evidence to sup-
port these numerical assertions by Moffitt or Payne.
Union Representative Ida Leachman testified the Union
was never notified that Respondent subcontracted any work
until it heard from employees after it was certified that Re-
spondent was shipping out work and employee wages were
being adversely affected. As a result, by letter dated February
4, 1994, the Union requested information concerning its be-
lief that Respondent was contracting out bargaining unit
work. In this letter, the Union also asked for a detailed com-
parison of labor costs in producing products at Respondent’s
facility versus other facilities where work was being con-
tracted. Respondent answered by letter dated February 15,
stating that it was unable to provide any comparative labor
cost figures because it did not have that information, either
for itself or for outside contractors.
Respondent does not deny that it subcontracts work. Nor
does it deny that this is work which could be performed by
bargaining unit employees if they were available. Sipes testi-
fied credibly that the number of experienced sewing machine
operators in the Memphis labor market has decreased stead-
ily over the past several years. Respondent is able to sell far
more than it is actually able to produce with its own employ-
ees. Sipes testified that less than half of Respondent’s sewing
machines are staffed. Sipes testified that Respondent regu-
larly advertises for sewing machine operators, and hires all
operators who responds, but the number of sewing machine
operators nevertheless continues to decline. As a result Re-
spondent has contracted out the making of baseball pants and
shirts on a regular basis for several years. Records introduced
by Respondent show that during the 12-month period imme-
diately preceding the Union’s certification, invoices for sub-
contracting totaled $298,121. Invoices for the 12-month pe-
riod immediately following union certification, shows that
Respondent contracted out work totaling $297,183, an
amount almost identical to the 12-month period immediately
preceding union certification.
Sipes testified credibly that on the day of the Board-con-
ducted election, Union President Willie Rudd asked Sipes
whether Respondent contracted out work. Sipes testified he
told Rudd that he did contract out work to others, but did
not accept contracts to make such products for others. Coun-
sel for General Counsel did not call Rudd to deny or con-
tradict Sipes’ testimony. Instead, counsel for General Coun-
sel simply called Union Representative Ida Leachman who
testified that if Sipes had stated this to Rudd on the day of
the election, she would have been in a position to hear this,
and she did not. I find counsel for General Counsel’s failure
to call Rudd to be significant. She offered no explanation for
not doing so, and asked for no recess or delay in the hearing
for that purpose.
Respondent’s own records show that the dollar volume of
work subcontracted during months immediately following
union certification increased substantially from months im-
mediately prior thereto. However, the record clearly reflects
that Respondent’s business is extremely seasonal in nature.
As indicated, the total dollar volume of work subcontracted
by Respondent is almost identical for the 12-month period
immediately following certification and the 12-month period
immediately to certification. Sipes’ testimony that he in-
formed Union President Rudd of its practice of subcontract-
ing on the day of the election stands uncontradicted by Rudd.
Considering all of the available evidence, therefore, I find
that counsel for General Counsel has failed to prove that Re-
spondent subcontracted bargaining unit work either unilater-
ally without giving the Union prior notice or discriminatorily
in order to retaliate against employees for selecting the
Union to represent them. Accordingly, I shall dismiss those
allegations from the complaint.
H. Allegations Relating to the Union’s Request
for Information
During the course of bargaining from October 1993
through September 1994, the Union made numerous requests
for information from Respondent. Counsel for General Coun-
sel does not dispute the fact that Respondent supplied the re-
quested information in the vast majority of cases. In response
to certain requests, however, Sipes did not respond at all or
provided only part of the requested information.
By letter dated February 4, 1994, as previously discussed,
the Union requested information regarding Respondent sub-
contracting work. Sipes responded by letter dated February
15, 1994, providing the requested information except for ‘‘a
detail comparison of labor cost of the Respondent and those
of the outside contractor.’’ With regard to that request, Re-
spondent advised the Union that it did not have the informa-
tion requested. Counsel for General Counsel argues that Re-
spondent simply must have a breakdown of the labor costs
for its own production and that of contractors. Sipes testified
credibly, however, that it has never attempted to break down
labor costs in that fashion because labor cost is not the rea-
son Respondent has contracted out work. Sipes testified that
the determining factor to subcontract work has always been
and remains Respondent’s inability to produce enough supply
in its own plant to meet customers’ demands. Accordingly,
Respondent has never attempted an actual labor cost com-
parison. I credit Sipes.
As a result of the attendance warning issued to Shirley
Jones, discussed above, the Union by letter dated February
11, 1994, requested Respondent to supply it with (1) copies
of all current employees’ attendance records from September
1993 to February 11, 1994; (2) copies of all disciplinary
warnings and termination notices issued from September
1993 through February 11, 1994; (3) a detailed explanation
of why Respondent began to enforce its attendance policy
more stringently, including the date of the decision and date
of implementation; and (4) copies of Respondent’s attend-
ance policy and rules. Respondent admits not answering this
request for information. Respondent notes that it had already
supplied the Union with its attendance policy and rules in a
letter dated October 5, 1993. Respondent argues that item 3
is based on a false assumption and cannot be answered while
items 1 and 2 are overly broad and unduly burdensome. That
argument is addressed below.
In Respondent’s letter to the Union of February 15 re-
sponding to the Union’s quest for information regarding sub-
contracting, Respondent expressed the opinion that employ-
ees were engaged in a deliberate slowdown of production. In
response to that accusation, the Union immediately replied
by letter also dated February 15 requesting the date that the
slowdown began; each date that Respondent alleges a slow-
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38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
down took place; names of employees involved; and details
exactly what each employee did to contribute to the slow-
down. The Union also requested beginning 2 weeks prior to
certification and for each week thereafter the number of or-
ders received from customers, the date received, the date de-
livery was requested, and the date the order was shipped; the
number of total pieces cut each week; the total number of
production employees who actually work each day; the num-
ber of orders backlogged and canceled each week as a result
of the alleged slowdown; copies of all letters from customers
concerning delayed shipments and order cancellations; and
copies of correspondence from Respondent to employees
concerning the alleged slowdown. Respondent did not answer
the union letter of February 15. Respondent argues that this
request by the Union was ‘‘made in bad faith.’’ It also ar-
gues that to the extent the information even existed, and its
relevance to the slowdown could be shown, the information
would be unduly burdensome, costly and time consuming to
produce.
By letter dated February 22, the Union made yet another
request for information. In this letter, the Union requested
certain specific information regarding an employee named
Jonnie M. West, including the employment application, cop-
ies of evaluation and progress reports, copies of disciplinary
warnings, copies of production reports, copies of repair re-
ports, and copies of termination reports and separation no-
tices. Respondent had no employee named Jonnie M. West,
and thus could not provide the Union with any of the re-
quested information contained in this letter. Sipes testified
credibly that he so advised the Union verbally in the next
bargaining session, and the Union made no further attempt
to pursue the inquiry.
By letter dated February 23, the Union requested certain
specific information regarding an employee named Carol
Durden, including copies of timecards for each week during
1994 and copies of records showing the amount of hours
paid Durden each week. Respondent admits that it never re-
sponded to the Union’s letter of February 23 in writing.
Sipes testified, however, that Respondent explained this mat-
ter to the Union verbally at the next bargaining session, and
the matter was not pursued by the Union. Sipes’ testimony
to this effect is uncontradicted.
As a result of information which the Union received from
employees about Respondent moving certain machinery, by
letter dated March 18, the Union requested specific informa-
tion including the name of each machine moved and the de-
scription of each job performed by that machine; the destina-
tion of each machine removed; and the names of current em-
ployees who operated these machines since September 1993.
By letter dated April 4, Respondent replied to the Union that
the movement of machinery and equipment had not affected
any bargaining unit employee. Respondent pointed out that
it had not been able to find enough qualified operators for
the machinery it had—a point which neither the Union nor
counsel for General Counsel argues. Respondent pointed out
that it had a substantial amount of excess equipment in stor-
age and that dispersal of this equipment in no way affected
bargaining unit employees—a point apparently also conceded
by the Union. Respondent argues that it has no obligation to
account to the Union for the movement and/or disposition of
any of its surplus sewing machines in the absence of a show-
ing that Respondent’s actions effected a unilateral change in
conditions of employment for bargaining unit employees.
By letter dated April 7, the Union requested the names,
addresses, phone numbers, rates of pay, job classifications,
and hire dates of all employees hired during the months of
January, February, and March 1994. In this same letter, the
Union requested the job classification of all employees termi-
nated during those same months. Respondent responded to
this request by letter dated April 21, providing the Union
with the names, dates of hire, dates of termination, and rates
of pay of all employees hired or terminated by Respondent
during the relevant period. Respondent asserted that the tele-
phone numbers of employees were confidential and refused
to provide that information. Respondent also stated that the
job classifications and addresses of employees would be sup-
plied only if the Union could explain the relevance thereof.
Later, by letter dated July 19, Respondent supplied the Union
with an alphabetized list of employees in the bargaining unit
by department, showing the name, address, and date of hire
of each employee.
Finally, by letter dated August 31, the Union requested
certain information regarding Respondent’s profit-sharing
plan, including copies of modifications in the plan since Sep-
tember 1993, and the names of all individuals currently em-
ployed by Respondent who have made withdrawals from the
profit-sharing plan, including dates of withdrawals and
amounts withdrawn. Respondent admits that it did not an-
swer the Union’s letter of August 31, asking for information
about the profit-sharing plan. Respondent argues that all
profit-sharing plan information relevant to the Union’s per-
formance of its statutory duties was contained in the plan
itself, a complete copy of which was furnished to the Union
in October 1993, in response to another request.
It has long been recognized that an employer has a duty
to supply a union which represents its employees information
which the Union requests that is relevant and necessary for
it to bargain intelligently on behalf of the employees. Detroit
Edison Co. v. NLRB, 440 U.S. 301 (1979). In order to be
entitled to the information, there must first be a showing of
probable relevance by the Union that the information sought
would assist in the carrying out its statutory responsibility to
represent employees. Certain types of information are pre-
sumptively relevant to the collective-bargaining process, in-
cluding the names and addresses of bargaining unit employ-
ees, wage rates, benefits, job classification and description,
and date of employment of bargaining unit employees. Con-
versely, an employer can be expected to supply only that in-
formation which it actually possesses or it can reasonably ac-
quire. There is no requirement that, in response to a request
for information, an employer conduct independent cost stud-
ies or analysis.
In response to the Union’s February 4 request for informa-
tion of a detailed comparison of labor costs of the Respond-
ent and those of outside contractors, Respondent answered
the Union truthfully that it did not have the information re-
quested. Sipes testified credibly that labor costs were never
a factor in subcontracting work, but rather subcontracting
was required simply to meet customer demands, and Re-
spondent so informed the Union. Since Respondent did not
have the information requested, it had nothing to give the
Union. Respondent could not reasonably be expected to con-
duct independent cost studies in response to the Union’s re-
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39HOWE K. SIPES CO.
quest, particularly when that information played no part in
Respondent’s decision to subcontract work. Accordingly, I
find that by not providing the Union with that information,
Respondent did not violate Section 8(a)(1) and (5) of the
Act.
With regard to the Union’s request for information dated
February 11, Respondent admits not answering this request
for information. Respondent argues that providing the Union
with copies of all current employees’ attendance records
from September 1993 to February 1994 is burdensome, and
this may well be true. Respondent, however, has the obliga-
tion of establishing that by objective evidence, and in this
case Respondent has offered no evidence in support of its
position. Further, Respondent made no effort to offer the
Union an alternative means of inspecting the information.
Moreover, it is hard to imagine how it would be burdensome
for Respondent to supply copies of all disciplinary warnings
and termination notices issued during that same 6-month pe-
riod. In a bargaining unit the size of Respondent’s, the num-
ber of disciplinary warnings and termination notices are not
likely to be significant in number. The Board has stated
clearly that an employer may not simply ignore even a re-
quest which is burdensome, but ‘‘must comply with the re-
quest to the extent it encompasses information that the Re-
spondent is statutorily obligated to provide.’’ Tire America,
Inc., 315 NLRB 197 (1994). Finally, while Respondent may
have already given the Union a copy of its attendance policy
and rules, Respondent did not bother advising the Union that
it had already done so and nothing had changed. Respondent
simply ignored the Union’s February 11 request for informa-
tion. I find that by failing to provide the Union with this re-
quested information, Respondent violated Section 8(a)(1) and
(5) of the Act.
The Union’s February 15 request for information, which
followed Respondent’s observation that employees were en-
gaged in a deliberate slowdown of production, is more trou-
bling. In its February 15 request, the Union asked for the
number of orders received from customers, the dates re-
ceived, the requested delivery date, the date orders were
shipped, and the total number of pieces cut each week. The
Union also asked for the number of orders backlogged and
canceled each week as a result of the alleged slowdown, cop-
ies of letters from customers concerning delayed shipments
and order cancellations, and copies of correspondences from
Respondent to employees concerning the alleged slowdown.
To some extent the information requested was the type of in-
formation which any employer would consider confidential,
such as specific information regarding orders received from
customers. Moreover, I agree with Respondent that the mere
description of the information requested suggests that to re-
spond to this request fully would be burdensome, costly, and
time-consuming. Even the careful gathering of the requested
information would not prove or disprove whether a slow-
down was actually taking place. Last but not least, in view
of the extremely high number of requests for information
made by the Union, one cannot help but feel some sympathy
for Respondent’s argument that this request for information
was not made in good faith, but was simply made to busy
Respondent in replying to yet another request. At the same
time, there can be no question that the requested information
does bear directly on the issue of whether there is evidence
of a slowdown, and what effect it was having on Respond-
ent’s production. What is significant is that Respondent made
no effort whatsoever to reply to the request, provide the
Union with any of the requested information, or give the
Union any alternate method of viewing specific items which
might trouble Respondent. Accordingly, I find that by refus-
ing to provide any of the requested information, Respondent
violated Section 8(a)(1) and (5) of the Act.
By letter dated February 22, the Union requested certain
information specifically regarding employee Jonnie M. West.
Sipes testified credibly that at the next bargaining session he
advised the Union there was no present or past employee by
that name, and the Union made no further attempt to pursue
the inquiry. By letter dated February 22, the Union requested
certain information regarding employee Carol Durden. Sipes
testified without contradiction that Respondent replied to this
request at the next bargaining session, and the matter was not
pursued by the Union. Respondent cannot be required to re-
spond to a request for information concerning a nonexistent
employee. Further, there is no requirement that an employer
respond to every request for information in writing. A verbal
response to a written request is perfectly lawful, particularly
where the Union then chooses not to pursue the subject fur-
ther. Accordingly, I find that Respondent adequately re-
sponded to the Union’s request for information regarding
West and Durden, and those allegations are dismissed from
the complaint.
By letter dated March 18, the Union requested specific in-
formation regarding the movement of certain machinery. Re-
spondent answered in writing by letter dated April 4, inform-
ing the Union that the movement of machinery and equip-
ment had not affected any bargaining unit employees. Re-
spondent pointed out that it had not been able to find enough
qualified operators for the machinery it had—a point which
neither the Union nor counsel for General Counsel argues.
Respondent pointed out that it had a substantial amount of
excess equipment in storage and that dispersal of this equip-
ment in no way affected bargaining unit employees—a point
apparently also conceded by the Union and counsel for Gen-
eral Counsel. I agree with Respondent that it has no obliga-
tion to account to the Union for the movement and/or dis-
position of surplus sewing machines in the absence of a
showing that Respondent’s actions could in some way affect
conditions of employment for bargaining unit employees. Ac-
cordingly, I find that by refusing to provide this requested
information, Respondent did not violate the Act, and that al-
legation shall be dismissed from the complaint.
When the Union requested information by letter dated
April 7 regarding the names, addresses, phone numbers, and
job descriptions of employees, Respondent supplied most of
the requested information. Respondent refused to supply,
however, telephone numbers of the employees, asserting this
to be confidential. Respondent offers no explanation for this
position in its posttrial brief. Respondent also refused to pro-
vide job classifications and address of employees unless the
Union could explain the relevance thereof. While Respondent
eventually supplied the Union with addresses and job depart-
ments of employees, it delayed doing so for 3 months. Fur-
ther, it never supplied the Union with telephone numbers of
employees. The Union’s obligation to represent employees
presupposes the ability to communicate with them, and in
this day and age, the telephone is the most effective method
of communication. The Board has specifically held that the
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40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
items in this request are presumptively relevant, including
employee telephone numbers. Valley Programs, Inc., 300
NLRB 423 (1990). I find that by delaying supplying the
Union with this information, and refusing altogether its re-
quest for other information, Respondent violated Section
8(a)(1) and (5) of the Act.
Finally, Respondent admits that it did not answer the
Union’s letter of August 31, asking for information about the
profit-sharing plan. Respondent argues that all plan informa-
tion relevant to the Union’s performance of its statutory du-
ties was contained in the plan itself, a copy of which was
furnished to the Union in October 1993. I reject Respond-
ent’s argument. The Union’s August 31 request was specifi-
cally directed to modifications in the plan since September
1993 and the names of individuals currently employed by
Respondent who have made withdraws from the plan, includ-
ing dates of withdrawals and amounts withdrawn. Such infor-
mation is vitally important to the Union to be able to assess
the financial strength of the plan’s capital fund, and from
that information to bargain with Respondent concerning as-
pects of the plan which may affect viability for bargaining
unit employees. Accordingly, I find that by failing and refus-
ing to provide the Union with this information, Respondent
violated Section 8(a)(1) and (5) of the Act.
I. The Withdrawal of Recognition
Between October 1993 and September 1994, Respondent
and the Union met in negotiations on numerous occasions,
but were unable to finalize a collective-bargaining agreement.
On September 21, 1994, Respondent was presented with a
petition signed by about two-thirds of its employees in the
bargaining unit stating that they no longer wished to be rep-
resented by the Union. On September 21, 1994, after the an-
niversary of the Union’s certification, Respondent withdrew
recognition based on the employee petition. Simultaneously,
Respondent withdrew its contract proposals and refused to
bargain further with the Union.
One month after withdrawing recognition, Respondent
granted employees various wage increases. Obviously since
Respondent had withdrawn recognition from the Union, these
increases were granted by Respondent unilaterally. The wage
increases Respondent granted employees included wage rate
increase and incentive rate increases to employees which had
been tentatively agreed on in negotiations. In addition, Re-
spondent granted employees an increase of $1 an hour in the
base rate of incentive workers, i.e., sewing machine operators
who made up the bulk of the bargaining unit.
It is undisputed that the $1 increase in the base rate of in-
centive workers was greater than the amount Respondent had
offered during negotiations. Respondent states simply that it
granted this increase in the base rate ‘‘in an attempt to be-
come competitive in its effort to hire additional sewing ma-
chine operators.’’ It is undisputed that during negotiations
Respondent did not propose and would not accept the
Union’s proposal of any increase in the base rate. There is
no allegation here, however, that Respondent bargained in
bad faith. Further, there is no dispute that the employee peti-
tion expressing dissatisfaction with the Union was signed by
a majority of bargaining unit employees and was genuine.
There is no evidence to suggest that Respondent played any
part in fostering or circulating this petition.
Counsel for General Counsel argues that Respondent is
prohibited from withdrawing recognition from the Union be-
cause it is tainted by the unremedied unfair labor practices
which preceded the withdrawal. In fact, many of the unfair
labor practices alleged in the complaint herein have been
found to be without merit. The only significant unfair labor
practices found herein have been Respondent’s failure or re-
fusal to provide the Union with several items of requested
information. The Board, however, has long held that an em-
ployer is not free to withdraw recognition from a union while
there are pending unfair labor practices which are
unremedied. Pittsburgh & New England Trucking Co., 249
NLRB 833, 836 (1980). At the same time, the Board has not
held that unremedied unfair labor practices per se disable an
employer from withdrawing recognition. Rather, unfair labor
practices must be of a character as to either affect the
union’s status, cause employee disaffection, or improperly af-
fect the bargaining relationship itself. Master Slack Corp.,
271 NLRB 78 (1984); Guerdon Industries, 218 NLRB 658
(1975). I find none of those elements present here. There is
no reason to believe that the type of unfair labor practices
found here, primarily the failure to provide the union with
certain information, could or would tend to cause disaffection
with the Union. Further, there is no reason to believe that
these unfair labor practices were in any way at the root of
the parties inability to reach agreement at the bargaining
table, and thus cannot be said to have significantly affected
the bargaining relationship itself. Accordingly, I find that the
unfair labor practices found herein did not prevent Respond-
ent from relying on the disaffection petition signed by a clear
majority of its employees. I shall therefore dismiss the alle-
gation that Respondent unlawfully withdrew recognition from
the Union. It follows as well that Respondent did not violate
the Act when it granted employees certain raises a month
after withdrawing recognition from the Union, and I shall
dismiss those allegations from the complaint as well.
J. October 1994: Restroom Harassment
The issue of female employees using the women’s rest-
room as a haven for unauthorized smoke breaks throughout
the workday has been discussed at length above. Testimony
of Kathleen Veasey, however, requires doing so again at this
juncture.
The complaint alleges that on August 31, 1994, Respond-
ent unilaterally implemented and enforced a smoking policy
against Veasey in violation of Section 8(a)(1) and (3) of the
Act. On direct examination, in response to questions from
counsel for General Counsel, Veasey first testified about a
single incident which she placed as being in ‘‘late August’’
when she stated she was questioned by Plant Manager Wil-
liams about excessive time spent in the bathroom. Veasey
then testified, ‘‘later on that day’’ Williams came back to her
with a piece of paper showing that while Respondent was
paying her a substantial sum, all she made the day before
was 62 cents, and that she needed to work on her production
output. In later testimony, Veasey identified the piece of
paper referred to above as being a document dated October
26, 1994. As I have found above, the issue of unauthorized
smoke breaks in the women’s restroom had little, if anything
to do with union activity among employees. The facts sur-
rounding this particular incident only tend to strengthen that
conclusion. It was Veasey herself who candidly admitted Re-
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41HOWE K. SIPES CO.
spondent had a long standing policy that smoking should
occur only in the breakroom area. Despite Respondent’s con-
sistent effort to curtail smoking in the restroom, the largely
female work force continued to use the women’s restroom as
a haven from Sipes and Plant Manager Williams to take brief
unauthorized smoke breaks. Sipes candidly admitted his frus-
tration in trying to curtail this practice, both before and after
the inception of union activity.
This specific incident testified to by Veasey shows that
both the practice and Respondent’s attempt to curtail it also
continued even after Respondent withdrew recognition from
the Union. If anything, the timing of this incident testified
to by Veasey only serves to lend credence to Respondent’s
point that the issue of unauthorized smoke breaks in the
women’s restroom had nothing to do with employee union
activity. Contrary to Veasey’s original testimony that this in-
cident occurred in August 1994, her later testimony shows
that the incident occurred in October 1994, a month after Re-
spondent withdrew recognition from the Union. I again con-
clude, as I have earlier, that the issue of unauthorized smoke
breaks in the women’s restroom throughout the workday had
nothing whatever to do with employee union activity, but
rather was simply a matter of reasonable safety and em-
ployee productivity concerns on Respondent’s part.
K. Discharge of Morris Ruffin
Morris Ruffin was hired by Respondent in October 1993,
weeks after the Union was certified. Ruffin begin work as
a spreader in the cutting room, and was later transferred to
the warehouse as a shipping and stock clerk.
Ruffin admits that for more than a year after he was hired,
he did nothing to support the union. In fact, the record re-
flects that Ruffin was one of the employees who signed the
petition stating that he no longer wished to be represented by
the Union.
In October 1994, Respondent implemented the wage in-
creases discussed above. Ruffin testified that after being
granted this wage increase, Plant Manager Williams asked
him individually if he was satisfied with the increase. I credit
Ruffin to this extent. Ruffin testified that in response to Wil-
liams’ questions, Ruffin stated that his raise was inadequate.
According to Ruffin, the next day when he reported to work,
Williams had pulled his timecard and informed other em-
ployees that Ruffin had quit.
Williams testified Ruffin stated that Respondent was not
paying him enough and that he was leaving for another job.
Ruffin left early from work that day. Williams admits he
pulled Ruffin’s timecard and advised Sipes that Ruffin had
quit. While I credit Ruffin over Williams that it was Wil-
liams who initiate the conversation about whether Ruffin was
satisfied with the raise he had received, I found Williams ex-
tremely credible concerning Ruffin’s reply that pay was inad-
equate and that Ruffin was leaving for another job. I credit
this aspect of Williams’ testimony.
Everyone agrees that the following Monday, Ruffin re-
ported to the plant as if he was expecting to work. When
Ruffin did not find his timecard, he sought out Williams.
Williams told Ruffin that he was considered to have quit
when he left in the middle of the workday on Friday saying
that he was taking another job. Williams testified credibly
Ruffin stated the other job had not panned out. Ruffin then
sought out Sipes, who instructed Williams to allow Ruffin to
return to work. Ruffin testified Sipes told him, ‘‘just stop
running off at the mouth.’’ Counsel for General Counsel ar-
gues that this showed animus by Sipes toward Ruffin for not
being satisfied with the amount of the wage increase. I reject
this argument, however, for it is just as likely that Sipes was
referring to Ruffin stating that he was going to take another
job.
Ruffin himself admits that he did not become involved in
any union activity until mid-November 1994, when he began
wearing a union pin which stated, ‘‘we want justice.’’ Ruffin
testified that he wore this pin only a short time and stopped
wearing it when one of Respondent’s salesmen suggested
that Ruffin’s job would be in jeopardy if he continued to
wear the pin. I place no significance on this testimony since
the complaint does not alleged and there is no evidence
whatever to suggest that salesmen constitute supervisors or
agents of Respondent within the meaning of the Act.
Ruffin testified that while he was wearing the union pin,
Williams approached and asked Ruffin why he was in the
Union. Williams credibly denied this conversation ever hav-
ing occurred. Williams, who impressed me as a careful, de-
liberate, and largely credible witness testified that he never
even saw Ruffin wear the union button. Under different cir-
cumstances, I might credit Ruffin over Williams, but in this
case, Ruffin himself admits wearing the union button only a
very short time. I credit Williams. Ruffin’s immediate super-
visor, Karen Sanders, admitted seeing Ruffin wear a blue
button similar to that worn by other union supporters but tes-
tified credibly she never spoke to Ruffin about the Union or
about Ruffin’s pin. Sanders testified she did notice that
Ruffin wore this pin for only a short time, and therefore she
placed no significance on it one way or another.
Ruffin testified that on the day before he was discharged,
he attended one of the weekly union meetings held in Re-
spondent’s breakroom. According to Ruffin, he observed
Plant Manager Williams not far from the breakroom while
the meeting was ongoing. Counsel for General Counsel ar-
gues that ‘‘this appears to be the factor which caused Re-
spondent to manufacture a basis for eliminating yet another
perceived union supporter from the picture.’’ I reject this ar-
gument for the following reasons.
The Union chose to hold weekly meetings in Respondent’s
breakroom on Thursday afternoons during regular breaktime.
If it had wanted to, the Union could have held its meetings
somewhere else offering more privacy. It chose, however, to
hold its meetings in Respondent’s open break area not even
after work, but during the afternoon break. During this time,
all employees, both union supporters and nonunion support-
ers were using the breakroom. The mere presence of an em-
ployee in the breakroom area during that time in no way in-
dicated a support for the Union. Moreover, I place no signifi-
cance in the fact that Plant Manager Williams might have
been within sight of that breakroom area while the break was
ongoing. Although both witnesses and I refer to it as a
‘‘breakroom’’ in reality it is simply an open area, a mere
part of the large single room which comprises Respondent’s
sewing room. This break area is designated by a simple
painted line on the floor separating it in one corner from the
rest of the sewing room. The break area has tables and chairs
where any employee may sit while taking a break or eating
lunch. The break area is openly visible to many areas of the
sewing room, and it is altogether illogical to draw any par-
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42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ticular conclusion from the fact that Plant Manager Williams
may have been within sight of the break area while a break
was ongoing. I find that what precipitated Ruffin’s discharge
is what happened between Ruffin and Williams the following
morning, as more fully described below.
Ruffin testified that he reported to work the following
morning on time, yet found that his timecard had been pulled
form the rack. According to Ruffin, timecards of some em-
ployees had already been checked in, while timecards of
other employees were still in the rack. Kathleen Veasey, the
primary union employee activist, corroborates Ruffin that he
reported to work on time.
Plant Manager Williams testified that on this morning
Ruffin was late for work, and this was the reason why he
had pulled Ruffin’s timecard. Veasey admitted on cross-ex-
amination that Williams regularly pulled timecards of em-
ployees who were not there on time, and that he had always
done this even long before any union activity. I credit Wil-
liams that Ruffin was late on this particular morning and that
this is why he had pulled Ruffin’s timecard.
When Ruffin found his timecard pulled, Ruffin sought out
Williams. According to Ruffin, he merely complained to
Williams that Williams was picking on him. Williams and
other witnesses offer a much different version. Williams tes-
tified credibly that when Ruffin approached him, Ruffin
cursed Williams. When Williams told Ruffin not to talk to
him that way, Ruffin replied that he could talk to Williams
any way he wanted to. Williams is corroborated by employee
Elizabeth Ware as well as Willie Mae Ritter, both of whom
I found very credible in describing this incident. Ritter testi-
fied credibly that in the exchange between Ruffin and Wil-
liams, Ruffin cursed Williams and called Williams both
‘‘dumb’’ and a ‘‘mother fllker.’’ Ritter also testified
credibly to overhearing Ruffin tell Williams, ‘‘don’t you
flck with me.’’ Ware testified credibly that she overheard
Ruffin speaking loudly to Williams. They then passed her
machine, and Ware overheard Williams say to Ruffin, ‘‘you
can’t talk to me like that,’’ to which Ruffin replied, ‘‘I can
talk to you any way I want. . . . I’m tired of this shlt.’’
At that point, Williams told Ruffin he was suspended indefi-
nitely until Williams could discuss the matter with Sipes.
After Williams consulted with Sipes and told Sipes the
manner in which Ruffin had spoken to him, Sipes authorized
Ruffin’s discharge. Williams then discharged Ruffin for in-
subordination.
Considering the entire record, I find counsel for General
Counsel’s prima facie case regarding Ruffin to be extremely
weak. Ruffin’s union activity was minimal. Counsel for Gen-
eral Counsel attempts to weave a fairly complex theory sug-
gesting that Williams set out to manufacture reasons to get
rid of Ruffin just as soon as Ruffin expressed dissatisfaction
with the raise granted by Respondent. I find counsel for Gen-
eral Counsel’s theory just too far fetched. Its primary flaw,
however, is that it would have me ignore very credible evi-
dence that on more than one occasion, and indeed imme-
diately prior to his discharge, Ruffin was so insubordinate to
Williams as to curse him, call him ‘‘dumb’’ and address him
directly as a ‘‘mother flcker.’’ I find that it was Ruffin’s
outrageous insubordinate conduct, and not any union activity,
which precipitated Ruffin’s discharge, and I shall dismiss
that allegation from the complaint.
CONCLUSIONS OF LAW
1. Respondent Howe K. Sipes Company is, and has been
at all times material, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Furniture Workers’ Division, International Union of
Electronic, Electrical, Salaried, Machine and Furniture Work-
ers, AFL–CIO, Local 282 is, and has been at all times mate-
rial, a labor organization within the meaning of Section 2(5)
of the Act.
3. The evidence does not establish that Respondent issued
the January 1994 warning to Shirley Jones due to her union
activity, and that complaint allegation is dismissed.
4. The evidence does not establish that Respondent con-
doned violence against employees because of their union ac-
tivities, and that complaint allegation is hereby dismissed.
5. Respondent issued a warning to Shirley Jones and later
suspended Jones because of her insubordination, not her
union activity, and those complaint allegations are dismissed.
6. The evidence does not establish that Respondent reas-
signed Shirley Jones because of her union activity, and that
complaint allegation is dismissed.
7. The evidence does not establish that Respondent re-
ferred to employees as ‘‘trash’’ because they supported the
Union, and in any event such a comment would not violate
the Act, and that complaint allegation is dismissed.
8. The evidence does not establish that Respondent issued
a warning to Paulette Payne for low production because of
her union activity, and that complaint allegation is dismissed.
9. Respondent suspended and later discharged Dorothy
Moffitt because of her insubordination, not her union activ-
ity, and those complaint allegations are dismissed.
10. The evidence fails to establish that Respondent altered
its plant visitation policy because of employee union activity,
and that complaint allegation is dismissed.
11. The evidence fails to establish that Respondent sub-
contracted bargaining unit work either unilaterally or because
of employee union activity, and those complaint allegations
are dismissed.
12. Respondent did not unlawfully fail or refuse to provide
the union with a detailed comparison of labor costs for it and
outside contractors, and that complaint allegation is dis-
missed.
13. Respondent failed and refused to provide the Union
with employee attendance records, disciplinary warnings, and
termination notices, and Respondent thereby violated Section
8(a)(1) and(5) of the Act.
14. Respondent failed and refused to provide the Union
with information concerning orders received, orders back-
logged, and orders delayed due to an alleged slowdown of
work by employees, and Respondent thereby violated Section
8(a)(1) and (5) of the Act.
15. Respondent did not fail or refuse to adequately re-
spond to the Union’s request for information regarding
Johnnie West and Carol Durden, and those complaint allega-
tions are dismissed.
16. Respondent did not unlawfully fail or refuse to provide
the Union with information regarding the movement or dis-
position of machinery absent a showing that Respondent’s
actions could in any way affect conditions of employment for
bargaining unit employees, and those complaint allegations
are dismissed.
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43HOWE K. SIPES CO.
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
2 If this 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.’’
17. Respondent failed and refused to provide the Union
with telephone numbers of employees, addresses of employ-
ees, and employee job classifications in a timely manner, and
Respondent thereby violated Section 8(a)(1) and (5) of the
Act.
18. Respondent failed and refused to provide the Union
with information about its profit-sharing plan, and Respond-
ent thereby violated Section 8(a)(1) and (5) of the Act.
19. Respondent’s withdrawal of recognition from the
Union was not unlawful, and that complaint allegation is dis-
missed.
20. Respondent did not violate the Act when it granted
employees raises after withdrawing recognition from the
Union, and that complaint allegation is dismissed.
21. The evidence fails to establish that Respondent mon-
itored the bathroom breaks of employees because of their
union activity, and that complaint allegation is dismissed.
22. Respondent discharged Morris Ruffin because of his
insubordination, and not because of union activity, and that
complaint allegation is dismissed.
23. The unfair labor practices which Respondent has been
found to have engaged in, as described above, have a close,
intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free flow
of commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) and (5)
of the Act, I shall recommend that it be ordered to cease and
desist and to take certain affirmative action designed to ef-
fectuate the policies of the Act. The normal remedy in a case
of this type would include a cease-and-desist order to prevent
Respondent from engaging further in the type of acts found
unlawful herein, as well as an affirmative provision requiring
Respondent to provide the Union with the information which
Respondent unlawfully failed to provide to the Union. In this
instance, however, Respondent has lawfully withdrawn rec-
ognition from the Union, and I can find no reason to require
Respondent to produce the relevant information at this time.
Therefore, I include the cease-and-desist order but no affirm-
ative provision requiring Respondent to provide the informa-
tion at this juncture.
Accordingly, I issue the following recommended1
ORDER
The Respondent, Howe K. Sipes Company, Memphis,
Tennessee, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to provide Furniture Workers’ Di-
vision, International Union of Electronic, Electrical, Salaried,
Machine and Furniture Workers, AFL–CIO, Local 282, or
any other union which is the certified bargaining representa-
tive of its employees, information that is relevant and nec-
essary for it to bargain intelligently on behalf of employees,
including employee telephone numbers, addresses, job classi-
fications, attendance records, disciplinary warnings, termi-
nation notices, information related to any alleged slowdown
of work by employees, and information about its profit-shar-
ing plan.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
Post at its Memphis, Tennessee facility copies of the at-
tached notice marked ‘‘Appendix.’’2 Copies of the notice, on
forms provided by the Regional Director for Region 26, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid and protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT fail and refuse to provide Furniture Work-
ers’ Division, International Union of Electronic, Electrical,
Salaried, Machine and Furniture Workers, AFL–CIO, Local
282, or any other union which is the certified bargaining rep-
resentative of its employees, information that is relevant and
necessary for it to bargain intelligently on behalf of employ-
ees, including employee telephone numbers, addresses, job
classifications, attendance records, disciplinary warnings, ter-
mination notices, information related to any alleged slow-
down of work by employees, and information about our prof-
it-sharing plan.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
HOWE K. SIPES COMPANY
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