Blue Star Knitting, Inc.

National Labor Relations Board - Board Decisions

Jan 28, 1975

216 N.L.R.B. 312 (N.L.R.B. 1975)

312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Blue Star Knitting, Inc. and United Textile Workers
of America, Local No. 667, AFL-CIO. Case 30-
CA-2652
FINDINGS AND CONCLUSIONS
I. BUSINESS OF RESPONDENT ; LABOR ORGANIZATION
INVOLVED
January 28, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PEN$LLO
On October 9, 1974, Administrative Law Judge
Samuel M. Singer issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and General Counsel
filed a memorandum in support of the Administra-
tive Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Blue Star Knitting,
Inc., Milwaukee, Wisconsin, its officers, agents,
successors , and assigns, shall take the action set forth
in the said recommended Order.
I In the absence of exceptions , Member Jenkins adopts , pro forma, the
Administrative Law Judge's findings that Respondent did not violate Sec.
8(a)(,) of the Act by the remarks of its officials concerning the union
buttons certain employees were wearing.
DECISION
SAMUEL M. SINGER, Administrative Law Judge: This
case was heard before me in Milwaukee, Wisconsin, on
various dates between July 16 and 26 , pursuant to a charge
filed March 11 resulting in complaint issued May 20, 1974.
The complaint alleges that Respondent violated Section
8(aXl) and (3) of the Act . All parties appeared and were
afforded full opportunity to be heard, to examine and
cross-examine witnesses, and otherwise present evidence.
Briefs were received from General Counsel and Respond-
ent. Upon the entire record and my observation of the
testimonial demeanor of the witnesses, I make the
following:
Respondent , a Wisconsin corporation , manufactures knit
goods at its plant in Milwaukee , Wisconsin , the facility
here involved , at and from which it annually sells and
delivers to purchasers in other States products valued in
excess of $50,000 . I find that at all material times
Respondent has been and is an employer engaged in
commerce within the meaning of the Act.
Charging Party (Union) is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
1. Whether Respondent restrained, coerced, or inter-
fered with its employees, in violation of Section 8(aXl) of
the Act, through threats, interrogations , and requests to
give union buttons to supervisors.
2. Whether Respondent violated Section 8(a)(3) and (1)
of the Act by discriminatorily issuing warning and 3-day
layoff notices to employees Dixon and Griffin.
3. Whether Respondent violated Section 8(aX3) and (1)
of the Act by discriminatorily discharging and refusing to
reinstate employee Duncan.
4. Whether Respondent violated Section 8(a)(3) and (1)
of the Act by discriminatory actions resulting in the
constructive discharge of Dixon.
B. Background
1. Respondent's operations
Respondent's basic operations consist of cutting, sewing,
and packaging infants wear . The Company employs 100 or
110 employees, of whom the great bulk (about 70) are
sewers and the remainder packers, cutters, and shippers. Its
chief executives are John Fried (president), Donald Howell
(production and personnel manager), and Harold Winston
(plant manager). Patricia Kraemer is supervisor of the
sewing department and Ruth Merrill of the packing and
folding department.
2. The organizational campaign
Dissatisfied with working conditions, Mary Duncan, a
sewing department employee, contacted Milwaukee's
AFL-CIO office in October 19731 and asked it to send a
representative to her home. On November 19, Union
Representative Boehm visited Duncan and discussed with
her organization of the plant, including the procedure for
obtaining signed authorization cards and petitioning for an
election . Duncan thereafter signed up employees-witness-
ing as many as 61 signed cards. She turned the cards over
to Boehm.
Boehm held periodic meetings with employees in a
building and hotel near the plant-four between December
I All dates refer to October 1973-May 1974 unless otherwise indicated.
216 NLRB No. 8
BLUE STAR KNITTING , INC. 313
13 and the February 27 Board election presently described.
An employee organizing committee held five additional
meetings during this period-three in Duncan's home.
Boehm first visited the plant in the week beginning
December 17 to pick up signed cards from Duncan on the
sidewalk in front of the plant.
On January 3, the Union filed a petition for an election
among Respondent's production and maintenance employ-
ees. By a Stipulation for Certification Upon Consent
Election , approved by the Regional Director on January
28, the Board election was scheduled for February 27.
Beginning with February 18, the Union mailed its
literature to the homes of employees . On or about the same
date it distributed union buttons and bumper stickers.
Respondent admittedly opposed the organizational drive
and so informed its employees in letters and literature read
them by Company President Fried and distributed by
supervisors .2 As it told its employees in one letter, "We are
against this union or any other union that might try to
speak for you because we don't need outsiders to make a
lot of promises . . . ." The basic theme of the literature
was that Respondent has "always attempted to treat [the
employees ] fairly," stressing absence of any layoffs in the
past 20 years; that it is not in the employees' interest to join
the Union-citing out-of-pocket costs (dues, assessments,
and fines), loss of earnings, and unemployment benefits in
strikes; that it is the Company's legal right to resist and
reject union bargaining demands; that the employees
would be deprived of access to management in the event
the Union came in ; and that they would be handicapped in
processing grievances through the Union rather than
directly through management . After adverting to the
"possibility" that the Union may call a "disruptive strike
over matters which may be unimportant to [the employees]
but vital to them [the Union ] as a matter of principle,"
Respondent's February 15 letter states:
... All of you should know that the same Union
which is trying to win your vote right now took the
employees of Diana Manufacturing Company in Green
Bay out on a two-week strike in November of 1973
which deprived the employees of a paycheck for two
weeks.
If the Union decides to strike over one of its demands,
just think of the consequences to you ... .
4. The Company will have the right to discharge
you permanently and give your job to someone else.
5. The Company will not be obligated to give you
your job back when the strike ends.
2 The first company letter was dated January 23 and the last February 27
(date of the election).
3 Based on the credited testimony of Duncan , an essentially credible
witness . Kraemer admitted having a conversation with Duncan on January
28, although she also appeared uncertain as to when it took place. She
denied telling Duncan anything about a union being "a waste of time" and
"moving the plant South"-insisting that she only asked if Duncan "knew
where the (Union ) meetings were being held" because her daughter, a
member of the unit, "wanted to know." Kraemer impressed me as having a
poor recollection. Thus, she could not recall whether Duncan in the same
Respondent in its literature also stressed the employees'
ability to express their free choice in the upcoming secret
election, urged them to vote "no," and acknowledged that
it "would be required to bargain" with the Union if it won
a majority.
During the campaign Company President Fried met with
his supervisors and managers to discuss the progress of the
drive and its possible outcome . According to Fried, "we
tried to get an indication" how the employees would vote
by "guessing." According to Supervisor Merrill , "[t]hey
just went down the list of names ," marking which
employees were for or against the Union. Fried conducted
meetings with employees in all departments after each
company letter distribution , inviting questions and visits to
his office if they had any "problems."
The Union won the election on February 27 by a 56 to
31 vote, with 5 votes challenged, and was certified as
collective-bargaining representative on March 7. The
parties thereafter held four bargaining sessions between
May 20 and June 26, but as of the time of the hearing here
have reached no agreement.
C. Interference, Restraint, and Coercion
The complaint alleges that Respondent restrained,
coerced, and interfered with its employees in their
organizational rights through management and supervisory
employees . Respondent denies the allegations and, in some
instances, contends that the claimed conduct , even if
established, does not constitute a violation.
1. The evidence
a. Employee Duncan testified that around January 28,
her supervisor (Kraemer) went to her machine and asked
what she thought of the Union. When she answered that a
union "would be nice," Kraemer said that "a union wasn't
anything but a waste of money." Duncan countered that if
a union came in the employees "wouldn't be pushed
around" and start at $1.60 an hour. Kraemer said that
Company President Fried told her that if a union got in he
"would move the plant South." 3
b. On December 14, Supervisor Kraemer told Eubanks
(who worked in her department) that she knew Eubanks
had not worked overtime on the previous day (December
13) because she went to "the meeting." When Eubanks
asked, "what meeting," Kraemer replied, "don't be a
dummy" and walked away. The Union held its first
meeting on December 13.
c. On or around February 22, Kraemer brought
Eubanks to the office to see Production Manager Howell
about an absence. Howell opened the conversation by
alluding to the union button she was wearing and saying
conversation had also said that she already had talked to her daughter
about going to the meeting, although in her prehearing affidavit Kraemer
swore that Duncan had said that . There is also inconsistency between her
testimony and prehearing affidavit. Whereas in her affidavit she asserted
that she could not remember "if anything else was said," at the hearing she
recalled Duncan also asking her about taking time off to take tests at a
hospital-a matter the subject of extensive litigation here (infra, sec. E).
According to Kraemer , she "assumed" that Duncan was involved in the
Union.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that neither he nor Kraemer expected this of "an
oldtimer," adding that they had expected her "to talk the
Union down and not up." Howell asked whether she
preferred bringing her problems "to some outsider" rather
than to him or Kraemer. Eubanks replied that "wearing the
[Union] pin didn't mean [she] was for or against the
Union." Howell or Kraemer then reminded her that the
Company had been "lenient" to her by permitting her to
take time off to take care of "quite a bit of sickness" among
her nine children. Kraemer also said that if the plant shut
down, she "would be out of work . . . completely ...
[a]nd would [she] want that."
d. Prior to the February 27 election, Supervisor
Kraemer told Eubanks on several occasions-"each time"
she passed out Respondent's antiunion letters (supra, sec.
B., 2)-to "make sure that you vote no. You don't want the
plant shut down." Kraemer also said that "lots of other
companies are sending their work to Mexico, and . . . if
Blue Star had to do this, well, the Company would be shut
down."
e. Two or three days before the election, Kraemer
asked her fellow supervisor, Merrill (a "good friend" of
Eubanks), in Eubanks' presence, whether she (Merrill) had
"talked to this dummy [Eubanks] about the Union."
Merrill said, "No. Her mind is made up, so there's no use."
f. Also prior to the election, Kraemer and Production
Manager Howell repeatedly talked to Eubanks about the
"silly button" she was wearing. One day, when she began
wearing the larger of the two union buttons distributed to
employees, Howell smilingly remarked, "thing are getting
bigger . . . . Keep going." 4
g. Shortly before the February 27 election, Company
President Fried conversed with three employees concern-
ing the union buttons they were wearing.5 To Wyona
Dixon he said that his "children [were] collecting all kinds
of buttons and . . . would [she] give him a button"; Dixon
replied, "I didn't give anyone a button." Turning to
Campbell nearby, Fried "jokingly" asked her for one,
commenting that he felt "discriminated against." On
another occasion he said to Jackie Griffin that he "liked"
the button, that it "looked nice with what [she] was
wearing," and that "could [she] get him one." According to
Griffin, when she failed to respond, Fried "just smiled and
walked away" and she, too, smiled. Dixon admitted that
after her conversation with Fried she and others continued
4 The findings in above pars b-f. are based on the credited testimony of
Eubanks, a rather simple and unsophisticated employee who, although at
times confused , strove to give an account of the events as she best recalled
them While Kraemer and Howell denied the great bulk of remarks
attributed to them , both admitted that they had expressed "surprise" at
seeing Eubanks wear a union button ; that Eubanks had assured them that
"the button doesn 't mean anything"; and that there was a discussion of past
company leniency toward employees. Kraemer admitted that on one
occasion , after refemng to attendance problems in the plant, she told
Eubanks, "we haven't said much of anything when the girls have been off,
and didn' t she [Eubanks I realize that if a Union came in, that we
possibly couldn' t be as lenient then , as we are now ." And although denying
on direct examination that she had ever told any one "at any time during
the Union campaign about the Company sending work down to Mexico,"
Kraemer admitted on cross-examination telling an unidentified employee
after a company meeting with employees (supra, sec B ., 2) that the
Company "has always gone out of their way to see that the girls always had
work . . not like some other companies that send their work to Mexico to
have it done [there l."
S As already noted (sec. B ., 2), on February 18 the Union distributed
to wear their buttons up to the election.6
h. Also just prior to the election, Supervisor Merrill
asked two employees for union buttons. To Griffin she said
that she "liked [her] button, and could [she] get her a
couple," explaining that she "had some grandchildren .. .
[and] wanted to give them some" ; Griffin did not reply
and walked away. To Campbell, who was also wearing a
button, Merrill said that she had grandchildren and "told"
her to bring "some" buttons for them; Campbell answered
that she "didn't have any and to ask" other girls, including
Dixon. Merrill further asked Campbell "how did [she] feel
about the Union," adding she knew Campbell "was
passing out literature." T
2. Conclusions
a. Respondent interfered with, restrained, and coerced
its employees in the exercise of their self-organizational
rights, in violation of Section 8(a)(1) of the Act, by and
through Supervisor Kraemer, by the following conduct: (1)
Kraemer's January 28 questioning of Duncan as to what
she thought of the Union and her statement to Duncan
that Company President Fried had said he "would move
the plant South" if a union came in; (2) her December 14
statement to Eubanks that she knew she had attended a
union meeting on the previous evening, thereby conveying
the impression that her union activity was under surveil-
lance ; (3) Kraemer's February 22 statement to Eubanks in
Production Manager Howell's office, after an allusion to
the union button she was wearing and a reminder of past
company lenience in allowing her leave, that if the plant
shut down, she "would be out of work ... completely";
and (4) her repeated statements to Eubanks prior to the
election to "vote no" so as to avoid a plant shutdown, and
her allusion to other companies sending out work to
Mexico-implying that, in case of a union victory,
Respondent could do likewise.
b. Respondent also violated Section 8(a)(1) of the Act
by Supervisor Merrill's inquiry to employee Campbell prior
to the election , how she felt about the Union and her
accompanying statement that she knew Campbell had
been passing out literature. Absent any explanation, that
statement could reasonably lead Campbell to believe that
her union activities were under surveillance.
buttons to members. Buttons were openly displayed by employees for
several days prior to the February 27 election.
a The above findings are based on the composite testimony of Dixon,
Campbell, Griffin, and Fried- to the extent credited . Although on direct
examination Dixon testified that she had two separate conversations with
Fried (allegedly on February 26 and then the "following day" when she
"was wearing a larger button "), on cross-examination she conceded that she
had only one. I credit Fried 's testimony that he had only one conversation
with Dixon
r The foregoing findings are based on the credited testimony of
Campbell and Griffin. Merrill conceded asking Campbell for buttons for
her two grandchildren , but denied making a like request of Griffin . She also
denied-but only in general terms-asking "anyone what they thought
about the Union," without specifically alluding to the statements attributed
to her by Campbell- including the statement that she knew Campbell had
been passing out literature. As between Merrill on the one hand and
Campbell and Griffin on the other , I prefer to credit the latter. However, I
credit Merrill 's testimony that in requesting Campbell for the buttons she
did not "order" her to get them . Campbell herself admitted that Merrill only
"said it like it was an order."
BLUE STAR KNITTING, INC. 315
c. Respondent further violated Section 8(a)(1) of the
Act by telling its employees in its February 15 letter that, in
the event they engaged in a strike, the Company "will have
the right to discharge you permanently," "give your job to
someone else," and "will not be obligated to give you your
job back when the strike ends ." Contrary to Respondent's
contention (br. pp. 20-23), statements of such nature tend
to coerce employees in the exercise of their rights to
organize, even though couched only in language of
probability. See N.L.R.B. v. W. C. Nabors, d/b/a W. C.
Nabors Company, 196 F.2d 272, 276 (C.A. 5).8 The
minatory message is well understood even in mild form,
particularly where , in the same campaign , one of the
supervisors (heading the department with the great bulk of
employees) makes repeated threats of outright reprisal.
Applicable here is the following language of the Sixth
Circuit in Dayton Food Fair Stores, Inc. v. N.L.R.B., 399
F.2d 153, 154-155 ( 1968), where the Company distributed
a similar leaflet stating that in the event of an economic
strike , "every employee who leaves his or her job can be
fired at once and permanently replaced":
While it is clear that an employer may permanently
replace economic strikers, he may not fire a striking
employee unless a permanent replacement has been
employed. [Citing cases.] Following an economic strike,
employees are entitled to return to their jobs unless
"legitimate and substantial business justifications"
dictate otherwise . N.L.R.B. v. Great Dane Trailers, 388
U.S. 26, 34 . . . . The clear import of the company's
letter is that if employees participated in a strike their
jobs would be automatically terminated.
d. Respondent did not violate Section 8(a)(l) of the Act
by the remarks of its officials (Fried, Kraemer , and Merrill)
concerning the union buttons they were wearing . It is clear
that these remarks were made either in banter as when
Fried "jokingly" asked Campbell for a button because he
felt "discriminated against" (sec. C , 1, g); or constituted
friendly requests for buttons as playthings-as when
Merrill asked Griffin and Campbell to bring buttons for
her grandchildren . These requests were neither intended to
be, nor were taken by employees to be, coercive and
threatening. I so find.
I conclude that Respondent violated Section 8(a)(1) of
the Act through unlawful questioning of employees
concerning their union sympathies , threatening them with
reprisals if the plant were unionized , and conveying to
employees the impression of surveillance of union activi-
ties.
D. The 3 -Day Disciplinary Layoff of Dixon and
Griffin
1. The evidence
Wyona Dixon and Jackie9 Griffin worked in the packing
department under Supervisor Merrill-Dixon as a bagger
and Griffin as a folder and part-time bagger. On December
18, Dixon and Griffin were working together on the
bagging machine . At lunchtime (11:30-12) they "figured
out" that their piece-rate earnings for that morning (about
5 hours) were only $8 for each and decided to talk to their
superiors about it. Merrill, to whom they first talked about
changing their rates, said she could not do anything about
it and referred the women to Production Manager Howell.
The two then went to Howell 's office.
Griffin and Dixon told Howell that they were dissatisfied
with their piece rates because it was already noon and "all
we had made was $8 apiece." Howell answered that he had
a luncheon engagement and would talk to them later.
Dixon said it was "very important" that he discuss the
matter , but Howell replied that he "didn't have time."
Griffin and Dixon then went to see their supervisor
(Merrill). Dixon told her she was "upset" because Howell
refused to discuss the piece rate and low earnings and was
going home. Griffin said she was "sick" and was leaving.
Both punched out and left.
Company President Fried testified credibly that later
that day (December 18) he met with Howell and Plant
Manager Winston to discuss the unauthorized walkout of
the two employees. "Consistent" with company policy it
was decided to give them a 3-day disciplinary layoff.
Because it was "Christmas time," the layoff was to be
"split" (i.e., not a 3-day consecutive layoff) so as to enable
each to receive the customary holiday pay. 10
When Griffin and Dixon reported to work the next
morning (7 a.m., December 19), their timecards "were
gone." Merrill told them to report to Howell's office, which
they did. Howell there told them that he was going to give
them a "little vacation" because they had on the previous
day "walked off without permission ." Both said that they
had told Merrill that they were leaving-Dixon because
she was "upset" and Griffin because she was "sick," but
Merrill, who was present, denied this. Howell said they
were "still gonna get" a 3-day layoff and "written
warning." Each was then handed a "written notice" to the
effect that she was being suspended 3 days (December 19,
20, and 27) for "leaving the Company premises without
authorization"; that the "purpose of the suspension is to
discourage further occurrence of such action"; and that the
Company "hope[d] that any problems which arise in the
future can be resolved through [their] supervisor or if
necessary the production manager."
When Griffin and Dixon returned to work on Friday,
December 21, Howell made a timestudy of the operation
s See also N.L.R B v. Gissel Packing Co., Inc, 395 U.S. 575,619 (1969);
N.L. R.B. v. Stanton Enterprises, Inc., d/b/a Holiday Inn of Charleston, 351
F.2d 261, 264 (C.A. 4, 1965).
9 At the hearing it was stipulated that "Jackie" be substituted for
"Jacqueline" in the complaint.
10 According to Howell , in order to be eligible for the holiday pay, an,
employee must have worked the day preceding the holiday (in this case
Friday, December 21, since the plant was to be shut for 2 days-Monday
and Tuesday December 24-25) and the day after the holiday (December
26). As presently shown, Griffin and Dixon were laid off December 19-20,
worked on December 21, and were again off on December 27).
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which led to their piece-rate complaint and suspension.
Howell concluded that the established rate for the
operation was "satisfactory" and so advised the employ-
ees."
2. Conclusions
It is well settled that the National Labor Relations Act
protects the right of employees to engage in concerted
activities , including the right to leave their work concerted-
ly, where such activities have a reasonable relationship to
the employees' legitimate interest in their working condi-
tions . See, e.g., N.LR.B. v. Washington Aluminum Compa-
ny, Inc., 370 U.S. 9 (1962); N. L R. B. v. Guernsey-Muskin-
gum Electric Cooperative, Inc., 285 F.2d 8(C.A. 6 1960). The
guarantees of the Act are in no way diminished by the
circumstance that the employees acted on their own rather
than through a union . (Ibid) Moreover, "When it is once
made to appear from the primary facts that the employer
has violated the express provisions of the Act, we may not
inquire into his motives ." N.LR.B. v. Industrial Cotton
Mills, 208 F.2d 87, 91 (C.A. 4), quoting from N.LR.B. v.
Hudson Motor Car Company, 128 F.2d 528, 533 (C.A. 6).
It is undisputed that Griffin and Dixon were protesting
piece rates-a clearly protected concerted activity. Upon
Production Manager Howell's refusal to talk to them about
their grievance the two employees decided to walk out and
walked out-one of the two (Dixon) telling their supervisor
(Merrill) that she was "upset" because of Howell's refusal
to talk to them. The next morning they were reprimanded
and given a 3-day disciplinary layoff for "leaving the
Company premises without authorization" and told that
"any problems which arise in the future" should be
resolved through discussion with management . It is clear
that Respondent 's action constituted interference with,
restraint, and coercion with the right of employees to
protest a grievance through a concerted walkout.
There is no merit in Respondent's contention (br. p. 32)
that the walkout was unprotected because it was "in
violation of [a ] Company work rule" against leaving
without permission . Such rule cannot be applied to
abrogate the statutory right to quit work in support of a
grievance . N.LR.B. v. Washington Aluminum Company,
Inc., 370 U.S. 9 (1962). Nor is it determinative that the
walkout occurred after the employees were "assured that
[the] grievance would be reviewed" later in the day (Resp.
br. p. 33). The "wisdom or unwisdom of the men, their
11 The findings in this sec . concerning the events of December 18 and 19
are based primarily on the mutually corroborative and credited testimony of
Dixon and Griffin-especially the latter, who impressed me as essentially
sincere . Howell conceded that the basic complaint of the employees-as
they expressed it in his office at lunchtime on December 19-was that they
..were not making enough money." I do not credit Merrill 's testimony that
Griffin and Dixon had not informed her that they were leaving the plant
after Howell refused to talk to them . As will hereafter be shown (fn. 28),
Merrill was not an entirely trustworthy witness. According to Merrill, she
was out to lunch and her "assistant " Cyra was in charge at the time the two
employees claimed to have informed her of their intention to leave, but
Respondent did not call Cyra nor produce time records to corroborate
Merrill 's claim . On the other hand , I do not credit Dixon 's testimony that
when she notified Merrill of her leaving, the latter said "okay ." As will
hereafter be shown , Dixon had a penchant to exaggerate and color her
testimony in order to advance her personal interest . Griffin testified that,
when she notified Merrill that she was leaving , Merrill "didn't say anything"
justification or lack of it" for resorting to strike action is
immaterial to the determination of their rights under the
Act.12 N.LR.B. v. Mackay Radio & Telegraph Co., 304 U.S.
333, 344. See also N.L.R.B. v. Washington Aluminum Co.,
370 U.S. 9, 16. Even if the employees "might well have
exercised better judgment" in selecting the time and means
for pressing their grievances "we are unable to conclude
that ill judgment or lack of consideration add up to
illegality." N.LR.B. v. Solo Cup Company, 237 F.2d 521,
526 (C.A. 8, 1956). "Under the Act, the manner in which
an employee carries on his protected activities is not
subject-save for limited exceptions not relevant here-to
the whim, wish, or authority of his employer." Farah
Manufacturing Company, Inc., 202 NLRB 666 (1973).
For all of the foregoing reasons, I conclude that the
December 18 walkout of Griffin and Dixon was protected
concerted activity ; and that by reprimanding and giving
them a 3-day disciplinary layoff for participating therein
Respondent interfered with , restrained, and coerced
employees in the exercise of rights guaranteed by Section 7,
thereby violating Section 8 (aX I) of the Act. 13
E. Discharge of Duncan
1. The evidence
a.
Hired in February 1973, Duncan worked as a sewer
under the immediate supervision of Kraemer . Production
Manager Howell described her as a "very good worker."
Starting at $1.60 an hour, by January 1974 she averaged
over $4 on piece work . She had been considered for
promotion to the position of floorlady.
As already noted (sec. B , 2), Duncan was the initiator
and leader of the union drive. It was she who contacted the
Union and planned the organizational drive with Union
Representative Boehm. She signed up the great bulk of
employees and attended all union meetings-some held in
her own home-and was a member of the Union's
organizing committee. As also noted (sec. C, 1, par. a),
Duncan was the target of interrogation by Kraemer on
January 28 when she asked Duncan what she thought of
the Union and quoted Company President Fried as saying
that he "would go South" if a union got in.
Although company officials and supervisors were vague,
and at times evasive , on whether they knew of Duncan's
union attitude and activities, I am fully persuaded that they
to her.
12 In Washington Aluminum, supra, the Supreme Court held the walkout
in protest of extreme cold in the plant protected, although at the very time
of the walkout the employer was in the process of repairing the defective
furnace to bring in adequate heat.
13 1 reject General Counsel's contention that Respondent 's action also
constituted discrimination to discourage union membership in violation of
Section 8(ax3) of the Act. To begin with , the walkout was neither sponsored
by the Union nor taken in furtherance of any union objective . In any event,
there is no substantial credible evidence that Respondent was aware of
Dixon's and Griffin's union activities on December 19, the date of their 3-
day suspension. While both wore union buttons during the drive , these were
not distributed to them until after February 18 (supra, fn. 5). It was not until
after receiving notice of the January 3 election petition that Respondent
began to "poll" its supervisors as to who they believed were union
adherents . I credit the denials of Howell and Merrill that they were aware of
the union sympathies of Dixon and Griffin on December 18 and 19.
BLUE STAR KNITTING, INC. 317
did and so find. Company President Fried and Production
Manager Howell admitted that Duncan was one of the
employees discussed and identified as a Unionist in
company preelection meetings (supra, sec. B , 2). Fried
testified that he was told a month before the February 27
election that she was a union supporter; and admitted
seeing a union leaflet on February 26 or 27 listing her as a
member of the union organization committee . Howell
testified , "I think I knew that [Duncan ] supported the
Union about one or two weeks before the election."
Although claiming she told her superiors in company
meetings that Duncan was "a question mark" as far as the
Union was concerned , Kraemer (Duncan's supervisor)
admitted questioning Duncan on January 28 as to "where
the [union ] meetings were being held" (supra fn. 3). Merrill
(another supervisor) testified that, in mid-January compa-
ny meetings , Duncan was branded as "one of them [union
adherents ]." She also admitted learning in January that
Duncan had asked one employee (Gloria Gomez) to sign a
union card.
b.
According to Company President Fried, Duncan was
terminated on March 1 because she "didn't come back
from her leave when she was supposed to. She didn't
communicate with us ." It is not claimed that she was
otherwise "an absentee problem" in a plant where,
according to Production Manager Howell , excessive
absenteeism was "one of [the] biggest problems." The
salient facts leading to Duncan 's termination follow:
On January 30, Duncan asked Production Manager
Howell for "sick leave ," explaining that she had to go to
the hospital for a checkup. When Howell asked how long
she would be gone, Duncan said she "didn't know," but
assured him that she would return "as soon as possible."
Howell later handed Duncan the following slip or
memorandum dated January 30, entitled "Sick Leave"
(G.C. Exh. 13):
The above employee [Duncan] is granted a leave of
absence due to illness. Her last day will [sic] Friday
Febr . 1 and will likely be out at least until February 11.
If any further extension needed please advise by phone.
We would appreciate knowing at least 2-3 days before
your return to work. A doctor release must be
accompanied when you return.
Duncan 's last workday before going on leave was Friday,
February 1; her leave started Monday, February 4.
Duncan entered the hospital on February 4. Testifying
with the aid of medical (including hospital) reports, her
physician , Dr. Kaufman, averred that Duncan was given
various tests on stomach and bowel, gallbladder, and
kidneys; that "a few biopsies" were taken; that on
February 11, she had a D & C (dilatation and curettage);
and that he released her from the hospital on February 13,
with instructions to take medications for inflammation of
the stomach , esophagus , and duodenum and also for
1+ Winston fixed the date of his visit as February 10 and denied
discussing the subject of Duncan's return to work. It is unnecessary to
resolve this conflict (See infra, fn. 15).
hypertension, and not to return to work until he saw her
again in 2 or 3 weeks.
Duncan testified credibly that on February 12, Plant
Manager Winston visited her at the hospital, where he told
her that he was glad she was recuperating and that she
looked well enough to return to work, where she was
needed. Duncan said that she "really didn't know when
[she] would be returning back to work." 14 Prior to • her
release from the hospital on the next day (February 13),
Duncan received a phone call from the office girl to remind
her that her health insurance payment was due. The
following Monday (February 18), Duncan telephoned Dr.
Kaufman and was given an appointment to see him for a
checkup on March 5.
There is a conflict in testimony as to the number and
dates of contact between Duncan and company officials
between the time Duncan was discharged from the hospital
(February 13) and the date she admittedly visited the plant
on February 26. Supervisor Kraemer testified that she
telephoned Duncan on February 13; that in response to
her inquiry as to when she was coming back to work,
Duncan said she did not know; and that when she asked
Duncan to get a doctor's statement as to when she might
return, Duncan said she would do that. According to
Production Manager Howell on Friday of the same week
(February 15) he, too, telephoned Duncan and in response
to his inquiry as to when she would be returning, Duncan
said she "still hadn't seen her doctor" and promised to
obtain a statement from him on the same day or Monday.
Kraemer also testified-as also did Winston-that they
separately saw Duncan in the plant on February 21 and
that, in response to their inquiry whether she had her
doctor's note, Duncan replied that she was seeing her
doctor that afternoon to get one. Duncan denied having
these contacts with company officials, including the
February 21 plant visit , asserting that her only contact
around this period was a telephone call on Friday,
February 22 in which she talked successively to Kraemer,
Merrill, and Winston and a second call on the same day to
Howell. According to Duncan, the three participants in the
first call "kidded" her and inquired about her health; she
told Kraemer in that conversation, as well as Howell in the
subsequent one, that she did not know when she would
return to work, but had an appointment to see her doctor
and would return when released.15
It is undisputed that Duncan went to the plant on
Tuesday, February 26, to pick up her paycheck. Howell,
who spotted her, told her to come to the office, and there
asked if she had a doctor's note. Duncan replied that she
could not get one until March 5 when she will see her
physician. Howell said "we've got to have it. We've got to
know when you're coming back." The next day when
Duncan went to the plant to vote in the Board election,
Howell again asked for her doctor 's statement, adding that
this was his "final warning" and if she did not submit one
by Friday (March 1) she would be considered "as a quit";
Duncan said she "would do the best [she] can to get some
kind of a statement in there by Friday." In late afternoon,
15 In view of the basis of the decision herein (i.e., that the discharge of
Duncan was pretextuous) it is unnecessary to resolve the conflicting
evidence summarized in this paragraph.
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Howell wrote up and mailed a warning slip to Duncan,
stating that her "leave of absence for sickness was only
granted until Febr. 11" and repeating the admonition to
her that , unless a note was produced by March 1, she "will
be considered terminated." Duncan received the warning
notice on February 28.16
In the meantime, on February 27, following Howell's
verbal warning to Duncan, the latter went to the office of
Dr. Schwartz, the female specialist who performed the D &
C and told the office girl that she needed "some kind of
statement" for her employer. Unable to get one because
the doctor was out , she telephoned her personal physician,
Dr. Kaufman , and asked him for the statement-explain-
ing that she had promised to submit one to Respondent.
Dr. Kaufman responded that he could not give her a
statement until he saw her in his office , i.e., her appoint-
ment date, March 5.17
On March 1 , Howell mailed Duncan a termination
notice . 18 The notice reviewed Respondent 's alleged prior
requests to Duncan to secure a doctor's statement to
support a leave extension-concluding with the statement
that "In accordance with the employee manual . . . a
failure to return [to work] or obtain an extension from a
leave is considered as a quit." 19
On March 5, Duncan saw her physician (Dr. Kaufman)
as scheduled and obtained a release certifying that she
could return to work on March 11. On March 8, she
obtained a more detailed statement describing the condi-
tions treated and reiterating that she could return to work
on March 11. On the same date (March 8), Duncan
presented both papers to Company President Fried, who
refused to accept them as "too late." Fried then (also on
March 8) telephoned Dr. Kaufman and asked in a "rather
belligerent" tone why he "didn't notify the Company that
[Duncan] had been sick and would be off work this long."
Dr. Kaufman replied that "If they [the Company] were
that interested in the patient . . . they could have called
earlier."
2. Conclusions
The question whether Respondent discriminatorily
terminated Duncan because of her union activities (as
urged by General Counsel) or because she failed to furnish
it with a medical report supporting her need for extended
leave (as Respondent contends) presents only a question of
fact. The Board and courts have repeatedly observed that
motive for an employer's action in cases of this type is
usually determinable only by circumstantial evidence since
direct evidence of a purpose to discriminate is rarely
obtainable . Corrie Corporation of Charleston v. N.L.R.B.,
16 The findings in the above paragraph are based on the testimony of
Duncan and Howell- to the extent credited.
17 Based on Duncan's credited testimony , in part , corroborated by Dr.
Kaufman.
18 Although dated February 28, Howell testified that he wrote it up close
to 4 p .m. on March 1, asserting that the February 28 date was a mistake.
Duncan testified that on the same date (March t , presumably before the
notice was mailed) she telephoned Howell to tell him that she could not
supply him with the doctor's statement until she saw her physician on
March 5 ; Howell denied receiving such call . It is unnecessary to resolve this
credibility conflict (see supra, fn. 15).
19 The employee manual , first distributed to employees on January 11,
375 F.2d 149, 152-153 (C.A. 4, 1967), and cases cited. "It
would indeed be the unusual case in which the link
between the discharge and the union activity could be
supplied exclusively by direct evidence." N.L.R.B. v.
Melrose Processing Co., 351 F.2d 693, 698 (C.A. 8, 1965).
Moreover, "the rule is well established that although ample
valid grounds may exist for the discharge of an employee,
that discharge will violate Section 8 (aX3) if it was in fact
motivated, even partially, by the employee's union activity
[citing cases ]. Thus, where there are legitimate reasons for
the discharge of an employee , the question is whether those
were in fact the only grounds for the dismissal , or whether
they were 'put forth as a mere pretext to justify an
impermissible discharge .' " N.LR.B. v. Pembeck Oil
Corporation, 404 F.2d 105, 109-110 (C.A. 2, 1968). See also
N.L.R.B. v. Symons Manufacturing Co., 328 F.2d 835, 837
(C.A. 7, 1964).
Based on the entire record , but particularly in view of the
considerations set forth below, I find that the credited
evidence and reasonable inferences to be drawn therefrom
establish that the March 1 discharge of Duncan was
motivated in substantial and controlling part by Respond-
ent's opposition to her known or suspected union member-
ship and sympathies.
a. Respondent admittedly opposed organization of its
plant, stressing in its literature to employees the futility of
union representation and the detriments they could
suffer-financial and otherwise-in the event of unioniza-
tion . In addition to legitimate expressions of opinion, it
unlawfully threatened employees with discharge in the
event they exercised their statutory right to strike-a
traditional economic weapon to strengthen legitimate
bargaining objectives .20 And a supervisor of the bulk of its
employees (Kraemer of the sewing department) repeatedly
warned that unionization would result in a shutdown of the
plant and loss of jobs. Such displays of union hostility "are
proper and highly significant factors for Board evaluation
in determining motive ." N.LR.B. v. Dan River Mills, 274
F. 2d 381, 384 (C.A. 5, 1960).
b. Duncan was the driving force behind the union
movement . She conceived and initiated it, signed up the
great bulk of employees , and was the link between
employees and Union Representative Boehm . While the
active role of an employee in a union drive , as well as an
employer's opposition to the drive , is not in itself sufficient
to establish a discriminatory discharge or refusal to hire,
"[s]till, where the [action ] in question involves the 'key'
employee in an organizational drive, it may supply shape
and substance to otherwise equivocal circumstances."
N. L.R.B. v. Davidson Rubber Co., 305 F.2d 166, 169 (C.A.
1, 1962).
describes two types of leaves : (a) "excused absences" of less than 10
working days approved by a supervisor ; and (b) other "leaves of absence"
for over 10 days for illness or other reasons which must similarly be
approved- in case of illness the request to be accompanied by a physician's
statement verifying the need for leave and the approximate time off needed.
According to the manual , violations justifying "immediate discharge"
include: "Failure to return to work within one day after the expiration of a
scheduled . . . leave of absence unless a Justifiable excuse is communicated
to the company by the end of the day on which [the employee is ] scheduled
to return."
20 See, e.g., N.LR. B. v. Erie Resistor Corp., 373 U .S. 221, 233-234, 235
( 1963); Allis -Chalmers Mfg. Co. v. N LR. B., 388 U .S. 175, 181 ( 1967).
BLUE STAR KNITTING, INC.
c. There is ample indication of Respondent's awareness
of Duncan 's union sympathies and role prior to its decision
to terminate Duncan . Managerial officials admitted that
they "thought" or believed her to be a union proponent in
January . She was questioned by her supervisor (Kraemer)
on January 28 as to her union attitude and warned in the
same incident that Company President Fried "could go
South" if the Union got in . Fried himself admitted seeing a
leaflet on February 26 or 27 identifying her as an employee
union organizer . There was "considerably more than a
coincidental connection" (N.LR.B. v. Condenser Corpora-
tion of America, 128 F.2d 67, 75 (C.A. 3)) between Fried's
discovery and first-hand knowledge of Duncan 's union
role and Respondent 's threat to discharge her on or about
the same day (February 27) and effectuation of the threat 2
or 3 days later (March 1).
d. Duncan was an admittedly satisfactory employee.
She had been considered for promotion to a floorlady
position . Prior to the incident here involved her attendance
record was likewise satisfactory-a factor not to be
overlooked in a plant where excessive absenteeism was
"one of [the ] biggest problems." There is no evidence that
she was ever reprimanded previously-for any reason.
e. Finally , the inadequacy of Respondent's explana-
tions for the discharge fortifies the inference warranted
from the above-stated circumstances that the discharge
was discriminatorily motivated . Respondent contends (br.
pp. 35-36 , 47) that , although Production Manager Howell
on January 30 wrote up for Duncan a "Sick Leave" slip,
she was given only an "excused absence " authorization for
less than 10 working days; that this is evident from its leave
classifications , as stated in its manual (supra, fn.19) under
which a "request for an illness leave must be accompanied
by a physician 's statement verifying the need for a leave
and the approximate time off required"; 21 that "what
started out . . . as an `excused absence' . . . turned out,
after the fact [i.e., Duncan's hospital tests] , to be an `illness
leave' . . . for which Duncan was required to furnish" the
usual physician statement ; and that, having failed to
comply with its repeated requests for such statement
between February 13 and 27, it was Respondent's
prerogative to discharge her in accordance with its
established rules.
To begin with, Respondent itself concedes (br. pp. 36-
37), and the documentary evidence establishes , that it has
not with regularity required nor obtained from sick leave
applicants a physician's statement citing the need and
estimated period required for the leave in advance of taking
sick leave (see e .g., G.C. Exhs . 14(e), 14(g), 14(j), and 14(o);
and tr . p. 313). Nor has it consistently insisted on a doctor's
statement to extend sick leave from employees already on
leave . Be that as it may, it is plain that Duncan literally
followed and complied with the instructions Production
Manager Howell had given her when he granted her the
21 According to Respondent , although the manual was not distributed to
employees until January 11, 1974, these classifications were in effect long
before.
22 Indeed , Howell recognized that she was on sick leave (not merely
"excused absence ") as late as February 27 when he wrote in his warning
notice to Duncan: "Your leave of absence for sickness was only granted
until Febr. I I."
23 Respondent 's observation (br. p. 47) that while `claiming to be too
319
leave on January 30. Howell's memorandum to Duncan is
entitled "Sick Leave" and expressly grants her "a leave of
absence due to illness ." 22 Because of the uncertainty of the
nature of the illness, it notes that she would be out "at least
until February 11"; it directs her to contact Respondent if
"any further extension [is] needed" (nothing is said about
producing a doctor's statement justifying an extension); it
requests her to notify Respondent "at least 2-3 days"
before returning to work; and it instructs her to bring a
"doctor release" on her return. Plant Manager Winston
admittedly knew that Duncan was still in the hospital on
February 10, when, according to Winston (supra, fn. 14), he
visited her there. (Duncan fixed the date as February 12.)
If Respondent' s witnesses are to be credited, Duncan
informed at least three company officials (Kraemer,
Howell, and Winston) on at least three occasions between
February 13 and 21 that she was still incapacitated and
under her physician's care. She admittedly saw Howell in
the plant on February 26 and 27.23 By that time she had an
appointment to see her doctor on March 5 and so informed
Howell. Because of the latter's insistence on a physician's
statement Duncan contacted her doctor, but was unable to
get a note until her March 5 physical examination. When
she attempted to present the statement to Company
President Fried on March 8-within "2-3 days" before her
expected return (March 11) and within the time specified
in the January 30 "Sick Leave" memorandum-Fried
refused to accept it, Respondent already having fired her
on March 1. Fried did not rescind the termination notice
even after taking pains to personally check the situation
with Duncan's physician (Dr. Kaufman).
For all of the foregoing reasons, I am persuaded that the
reason advanced by Respondent for Duncan's discharge is
pretextuous. No reason appears and no motive is suggested
why Duncan would have refused to comply with Respond-
ent's requests to produce a medical certificate to corrobo-
rate inability to return to work had she been able to do so.
The fact that Respondent in the past had been "lenient"
with other employees in foregoing this "requirement" and
that Duncan literally complied with the only instruction
given her in the sick leave slip-that she submit a "doctor
release" when she "returns" to work-taken together with
all other factors alluded to (Respondent's opposition to the
Union, its threats to close the plant if the Union came in,
Duncan's dominant role in bringing in and establishing the
Union, Respondent' s awareness of her Union sympathies,
and Duncan's past satisfactory performance and attend-
ance) justify the inference that Respondent would not have
terminated her "but for [her] role as prime mover for the
union at the Company." Cf. N.LR.B. v. Ri-Dell Tool Mfg.
Company, Inc., 486 F.2d 1406 (C.A. 7, 1973). See also Self-
Reliance Ukranian American Cooperative Association, Inc.
d/b/a Certified Foods v. N.LR.B., 461 F.2d 33, 38 (C.A. 7,
1972); and also Sweeney & Company Inc. v. N.L.R.B., 437
sick to work" Duncan was well enough "to make appearances at the plant"
seems to equate a convalescent's ability to make brief social visits (in one
case she showed up to vote in the Board election) with ability to operate a
sewing machine full time day after day . Duncan's doctor's description of her
impairments, the procedures Duncan underwent , and the medication and
treatment she was under after leaving the hospital bespeak an individual
under close medical treatment for substantial medical problems preclusive
of her usual active factory work.
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F.2d 1127, 1133 (C.A. 5 1971). Accordingly the discharge
was violative of Section 8(aX3) and (1) of the Act.
F. Alleged "Constructive" Discharge of Dixon
1. Introduction
General Counsel contends (br. p. 16) that, after her
December 19 layoff (supra, sec. D), Dixon was "singled
out" for reprimands, warning notices, and other harass-
ment because of her union and protected activities, thereby
forcing her to quit on May 14. As will be recalled, the
December 19 layoff of Dixon and another employee
(Griffin) has been found to be unlawful because it was
prompted by the two employees' protected concerted
activity in protesting a grievance and not because of their
union membership or activity (supra, sec. D,2). Respondent
on December 19 was not aware of Dixon's (and Griffin's)
union sympathies (supra, fn. 13).
For reasons to be stated, I find and conclude that the
credited evidence and the reasonable inferences to be
drawn therefrom do not support the complaint allegation
that Dixon was "constructively discharged" unlawfully. I
find that she walked off and quit her job voluntarily on
May 14.
2. The evidence
a.
As already noted, Dixon was a bagger in the packing
department, working since hired (on September 24) under
the direct supervision of Merrill. She signed a union card
on November 20, attended several union meetings, and
wore a union button before the February 27 election.24
That Respondent was aware, or at least suspected, that
Dixon was a union sympathizer is evidenced by Company
President Fried's request to Dixon to give him a button for
his children (supra sec. C, 1, par. g) and by Supervisor
Merrill's admission that she "thought" Dixon was one of
the two prounion employees (the other being Campbell) in
her department in mid-January.
b.
General Counsel relies on evidence-some general and
some specific-to support his position that Dixon had been
badgered into quitting her job. In essence, he attempts to
show (primarily through the testimony of Dixon) that
Dixon was "forced to work on a new bagging machine
which was not functional" (G.C. br. p. 16); that Dixon had
been "reprimanded on a continuous basis" about her
"attitude or her complaining about her piece rate" (G.C.
br. p. 17); and that she had been harassed about latenesses
24 General Counsel through a series of leading and suggestive questions
sought to elicit testimony from Dixon that she was an activist and signed up
many employees . Her testimony on this point , as on others in this
proceeding, is exaggerated and unworthy of belief. When first asked how
many employees she had asked to sign cards , she answered , "I'm not sure,
but I think four or five ." Asked when she signed them up she answered,
"Well, the 20th [of November ]." Then, in response to leading questions she
claimed that she had solicited employees in December , January, and in
February up to the election . She could not, however, name a single
employee whom she allegedly asked to sign ; and even as to the number of
and absences, although excusable and not Dixon's fault
(G.C. br. pp. 17-19). Dixon in typical hyperbolic manner
(supra, fn. 24) testified that all of Respondent's officials
who have had contact with her-Fried, Howell, Merrill,
and Gombert (sales manager)-had "talked or yelled" at
her "just about every day."
(1) As to the bagging machine, to which Dixon was
assigned when first installed in mid-January, Company
President Fried admitted that Respondent had been having
considerable "trouble," but he indicated that the "prob-
lem" was no more unusual than "you have with any new
machine." Fried and a mechanic spent "a good deal of
time" making it functional. It is clear, however, as Dixon
admitted, that she was put on "day rate," or a flat hourly
wage, whenever the machine was nonoperational. Fried
testified credibly that, in response to a Dixon complaint
about the machine in January, he tried to instill in her a
positive attitude-telling her to give the new machine "a
fair trial" and assuring her that Respondent "didn't expect
her to lose anything [financially] because of it." 25
(2) As to alleged harassment about attendance and
"attitude," Dixon testified that, when she returned to work
on March 22 after a 4-day absence due to illness (March
18-21), Production Manager Howell told her that he
"didn't like [her] attitude" because she failed to "call in"
"like you were supposed to." Dixon reminded Howell that
she had called in and was assured that it would be
unnecessary to call in every day, as long as she brought a
doctor's statement when she returned to work, which she
did. Howell could not recall the specific incident, but
indicated that he "probably" did talk to her once about
calling in absences and about excessive absenteeism. I
credit Dixon's version of this incident.
(3) Dixon cited a later (April 18) incident when Sales
Manager Gombert allegedly told her that he was "sick and
tired of [her] being absent, and lateness , and going home
early." According to Dixon, Gombert also said that he was
"sick and tired of [Dixon 's ] messing up the customers'
merchandise . . . getting the wrong merchandise," but
Dixon denied she was at fault. Gombert handed her a
written reprimand, stating that she had been absent "over
21% of the work days since January 1"; that she had come
in late and left early; that the quality of her work had been
below standard; and that if "this problem continues," it
will be cause for dismissal. Gombert testified that he issued
this warning (also signed by Packing Department Supervi-
sor Merrill) because Dixon had on many prior occasions
placed garments in the wrong bag-failing to match ticket
and bag; that he had attempted to correct her through
constructive criticism; that Dixon consistently denied
fault; that, on top of past absenteeism , she was again off
work on the preceding day; and that he finally decided to
give her a written warning "basically" for absenteeism and
union meetings attended she was hesitant and vague . I have already noted
my reservations concerning Dixon's reliability as a witness (supra, fns. 6 and
11). I do not believe her self-serving testimony that she had signed up other
employees, or even asked others to sign cards-not a single one identified.
Si I do not credit Dixon's testimony that Fried in this January
conversation told her "you just don't want to work , that's [i.e., the machine
problem 1 all in your mind ." As between Dixon and Fried , I prefer to rely
(and usually rely) on the testimony of Fried-on the basis of both quality of
content as well as comparative demeanor.
BLUE STAR KNITTING, INC. 321
poor quality of work. Gombert impressed me as an
essentially honest witness whose account of the interview
had an authentic ring of truth . I credit his testimony.26
(4) Dixon testified that on Monday, May 6, she "got
[her] hand burned on the bagging machine" and got
permission from her supervisor (Merrill) to go home. She
took off the next 2 days and returned to work on May 9.
On May 14, she was called into Howell's office, where,
according to Dixon, Howell said he was "sick and tired" of
her absences and "attitude" and that if she was continuing
to "have this problem of being absent" he thought she
ought to "quit." Howell handed her the following "written
warning" (G.C. Exh. 20-b):
You were absent on 4 different occasions in April, 4
days in March and 7 days in February which makes an
average absence of 1-1/4 days per week . Because of the
many difference [sic] occasion and prolonged occu-
rences over three months , we must warn you that
further excessive absenteeism may result in discharge.
In any event, further occurence must be accompanied
by doctors excuse.
Dixon responded that she had brought doctor's statements
to cover her absences.
Howell testified that prior to giving Dixon the warning
he discussed her absentee problem, including Gombert's
previous April 18 warning and her absence on the
preceding day (May 13); 27 and stated that he wanted
Dixon "to try to correct this attendance problem." When
Dixon said "it's not my fault" and "can't help it ," Howell
said that he "realize[d] it may not be [her] fault . . . we still
have got to run a business . We've got other people that
depend upon-we had a jam up at the bagging machine.
There's unhappy girls that have to go fill in for you."
According to Howell, Dixon then asked, "what do you
want me to do, quit?" Howell replied "no."
Dixon testified that after leaving Howell 's office-
I went upstairs by my work station, bagging
machine . I started to work. And, I just got upset. And, I
just felt that I had had it. I couldn't take any more of
that. And, I went downstairs to Mr . Don Howell's
office on the second floor , and I opened the door, and I
said , I told Mr. Howell that I had had it, and I was
quitting. And, I punched my card and left.
Howell testified that he was "amazed" when Dixon "stuck
her head in the door" to say she had "quit."
se Dixon's attendance record (Reap. Exh. 8) supports Gombert's
testimony as to her absences and tardiness, but it is clear from other
credited evidence that most, if not all, of Dixon's absences were due to
illness supported by a physician' s statement . Dixon had three absences in
April prior to the April 18 incident (one on April 17, as Gombert testified),
four in March (also two latenesses), seven in February (also three
lateneases), and two in January (also five latenesses). Dixon testified that
she had to take days off in February because of a car accident, had called in
to notify Merrill and Howell, and turned in a doctor's statement when she
returned.
27 Although stating that she "didn't think" she was absent on May 13,
Dixon also testified, "I don't remember whether I was there that day."
ss In resolving credibility 'in favor of Howell and other company
witnesses here or elsewhere, I need not (and do not) rely on the supporting
I credit Howell's account of the May 14 interview to the
extent it conflicts with that of Dixon.28
3. Conclusions
An employer "constructively" discharges an employee in
violation of the Act where, for discriminatory reasons, he
makes the employee's conditions of work so intolerable or
undesirable that he is thereby forced to quit his job. See
Ritchie Manufacturing Co., 147 NLRB 1257, 1268-69
(1964); The Cross Co., 143 NLRB 1005, 1007 (1963);
Leggett's Department Store of Princeton, West Virginia, Inc.,
137 NLRB 403, 416 (1962). In each case, "the pivotal
factor is motive." N.L.R.B. v. Lipman Brothers, Inc., 355 F.
2d 15, 20 (C.A. 1, 1966). To begin with, the record does not
establish a union-connected motive for Respondent's
ridding itself of Dixon. Unlike Duncan-the initiator and
guiding spirit of the Union drive-Dixon's union activities
were indistinguishable from many others in the plant who
like Dixon signed cards, wore buttons, and attended
meetings. I am not persuaded by General Counsel's
argument (br. p. 16) that she "was singled out" for
discriminatory and harsh treatment because of her "union
and protected activities."
Moreover, many of the complaints against Dixon were
not without foundation. The quality of her work, as
Company Official Gombert credibly testified, was not
always up to par. And her attendance (absences and
tardiness)-a major bone of contention-was less than
desirable from Respondent's point of view. To be sure, as
Dixon claimed and Production Manager Howell himself
recognized (in his May 14 interview with Dixon), the
absences were not willful-perhaps all due to illness and
"excused" (i.e., after advance notification). However, as
Howell testified, absenteeism, for whatever reason, creates
severe problems in scheduling and production, particularly
in Dixon's packing department where the entire operation
is dependent on a few people. The record shows that
Respondent has taken corrective measures to meet absen-
teeism-a common phenomenon in the plant. The employ-
ee manual' makes excessive absences and latenesses (three
or more a month) a dischargeable offense if repeated twice;
no distinction is made between "excused" and unexcused
absences . An office girl prepares periodic reports of
offenders for review by management. And documentary
evidence shows that habitual absentees had been issued
warning notices, long before advent of the Union. It was
precisely this type of notice that preceded Dixon's decision
to "quit."
testimony of Supervisor Merrill. Merrill impressed mess an individual who
as a loyal member of the managerial hierarchy felt impelled to go far to
conform her testimony to what she regarded as the best interest of her
Employer . Record data offered by General Counsel at the hearing (tr. pp.
506-508), ruling on admission of which was reserved at the hearing, is
hereby received in evidence (see Crown Corrugated Container, Inc., 123
NLRB 318, 319-320 (1959); Winston Rose and Mary Louise Rose, a
partnership d/b/a Ideal Donut Shop, 148 NLRB 236, fn . 1 (1964)) but not
relied upon on the issue of Mernll's credibility. In the two or three instances
where I have resolved conflicting testimony on minor aspects of this case in
Mernll's favor (fns.. 7 and 13), her testimony was either corroborated by
other credible evidence, or the opposing testimony was inherently
improbable and unbelievable.
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is not to say that the record is entirely devoid of
evidence justifying an inference that Respondent was harsh
and unreasonable vis-a-vis Dixon. Thus, Dixon may have
had just cause to complain at being kept for months on a
bagging machine subject to continual breakdown. Al-
though on "day time" pay during breakdown periods,
Dixon's earnings might have been affected adversely-
although this appears to be speculative . Be that as it may,
the right of an employer to manage his business includes
the right to assign and distribute work among his
workmen. The protection afforded an employee by the Act
does not include the right to prescribe his own work
assignment . "It is only if an onerous assignment is made
for the purpose of encouraging or discouraging member-
ship in a labor organization , that such action runs afoul of
Section 8(a)(3) of the Act." Sears Roebuck and Co., 110
NLRB 1162, 1175 (1954).
I conclude that the preponderance of the credible
evidence fails to support the complaint allegation that
Respondent constructively discharged Wyona Dixon in
order to discourage union activity, in violation of Section
8(aX3) and (1) of the Act.
CONCLUSIONS OF LAW
1. By coercively questioning employees concerning
their union sympathies, by threatening them with reprisals
if the plant were unionized , and by conveying to them the
impression of surveillance of union activities, Respondent
has interfered with, restrained, and coerced employees in
the exercise of rights guaranteed in Section 7 of the Act, in
violation of Section 8(aXl) of the Act.
2. By reprimanding and issuing a 3-day disciplinary
layoff notice on December 19, 1974, to employees Griffin
and Dixon because they had engaged in a protected
concerted Walkout, Respondent has interfered with, re-
strained , and coerced its employees in the exercise of rights
guaranteed in Section 7, thereby violating Section 8(aXl),
of the Act.
3. By discharging employee Duncan on March 1, 1974,
and thereafter failing or refusing to reinstate her, in order
to discourage union activities , Respondent has discriminat-
ed in regard to hire and tenure of her employment, in
violation of Section 8(aX3) and (I) of the Act.
4. The aforesaid unfair labor practices and each of
them affect commerce within the meaning of Section 2(6)
and (7) of the Act.
5. It has not been established that Respondent has
violated Section 8(aX3) and (1) of the Act by "construct-
ively" discharging employee Dixon on May 14, 1974; nor
Section 8(aX 1) of the Act by requesting employees to give
union buttons to supervisors.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
The affirmative relief will include the customary provi-
sion that Respondent offer to the discriminatorily dis-
charged employee (Mary Duncan) immediate and full
reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent position , without
prejudice to her seniority and other rights and privileges,
and to make her whole for any loss of earnings she may
have suffered by reason thereof, by payment to her of a
sum of money equal to that which she normally would
have earned as wages from the date of her unlawful
discharge (March 1, 1974) to the date of Respondent's offer
to reinstate her, together with interest thereon , less net
earnings if any during such period, backpay and interest to
be computed in the manner prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
The employees unlawfully given a 3-day layoff (Jackie
Griffin and Wyona Dixon) shall similarly be made whole
for any loss of earnings they may have suffered by reason
thereof. Respondent shall also expunge from its records all
reference to such layoffs.
In view of the nature of the unfair labor practices
Respondent has engaged in, Respondent shall be required
to cease and desist from infringing in any manner upon
rights guaranteed employees by Section 7 of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following:
ORDER 29
Blue Star Knitting , Inc., its officers, agents , successors,
and assigns, shall:
1. Cease and desist from:
(a) Coercively questioning employees concerning their
sympathies and activities for any labor organization;
threatening them with reprisals (including plant closure) if
the plant is organized ; conveying to them the impression of
surveillance of union activity ; or in any other manner
interfering with, restraining , or coercing employees in the
exercise of their rights under Section 7 of the Act.
(b) Interfering with, restraining , or coercing employees
by reprimanding, laying off, or otherwise disciplining
employees for engaging in lawful concerted activities,
including lawful walkouts, for the purpose of mutual aid or
protection.
(c) Discouraging membership and activities in any labor
organization (including United Textile Workers of Ameri-
ca, Local No . 667, AFL-CIO), by discriminating in regard
to the hire and tenure of employment of Respondent's
employees , or by discriminating in any other manner in
regard to any term or condition of their employment, in
order to discourage or interfere with membership or
activities therein.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act.
(a) Offer Mary Duncan immediate and full reinstatement
to her job or, if that job no longer exists , to a substantially
equivalent position , without prejudice to her seniority or
29 In the event no exceptions are filed as provided by Sec. 102.46 of the provided in Sec. 102.48 of the Rules and Regulations , be adopted by the
Rules and Regulations of the National Labor Relations Board, the findings, Board and become its findings, conclusions , and Order, and all objections
conclusions , recommendations , and recommended Order herein shall, as thereto shall be deemed waived for all purposes.
BLUE STAR KNITTING, INC.
other rights and privileges, and make her whole for any
loss of pay she may have suffered as a result of her
discharge in the manner set forth in the section of this
decision entitled "The Remedy."
(b) Similarly make whole Jackie Griffin and Wyona
Dixon for any loss of pay they may have suffered as a
result of the 3-day disciplinary layoff given them; and
expunge from its records all reference to such layoff.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records , timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due and the
extent of its compliance under the terms of this Order.
(d) Post at its plant in Milwaukee , Wisconsin , copies of
the attached Notice marked "Appendix." 30 Copies of said
notice , on forms provided by the Regional Director for
Region 30, after being duly signed by Respondent's
represent4tive , shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter , in conspicuous places, includ-
ing all places where notices to employees are customarily
posted . Reasonable steps shall be taken by Respondent to
insure that said notices are not altered , defaced, or covered
by any other material.
(e) Notify said Regional Director, in writing, within 20
days from the date of this Order , what steps Respondent
has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
in all other respects.
30 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
323
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing before an Administrative Law Judge, at
which all sides had the chance to give evidence, it has been
decided that we have violated the National Labor
Relations Act, and we have been ordered to post this
notice.
The National Labor Relations Act gives you, as
employees , certain rights, including the right to self-
organization and to engage in other concerted activities
(including lawful walkouts) for the purpose of mutual
aid or protection. Accordingly, we give you these
assurances:
WE WILL NOT coercively question you concerning
your union sympathies and activities; nor threaten you
with reprisals (including plant closure) if the plant is
unionized; llor convey to you the impression of
surveillance of your union activities.
WE WILL NOT interfere with, restrain, or coerce you
by reprimanding, laying off, or otherwise disciplining
you, or in any other mannef discriminate against you
for engaging in concerted activities (including lawful
walkouts) for purposes of mutual aid or protection.
WE WILL NOT fire or take any reprisal against any of
you because you have joined or supported, support, or
will support a labor organization of your choice,
including United Textile Workers of America, Local
No. 667, AFL-CIO.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer Mary Duncan immediate and full
reinstatement to her former job or, if that job no longer
exists , to a substantially equivalent job, with full
seniority and all other rights and privileges since she
was found to have been discharged by us in violation of
the National Labor Relations Act.
WE WILL make up all pay lost by Mary Duncan with
interest.
WE WILL also make up all pay lost by Jackie Griffin
and Wyona Dixon since we have been found to have
violated the Act by giving them a 3-day disciplinary
layoff for engaging in a protected concerted walkout;
and we shall expunge from our records all reference to
those layoffs.
BLUE STAR KNITTING, INC.