C & T Mfg. Co.

National Labor Relations Board - Board Decisions

Dec 23, 1977

233 N.L.R.B. 1430 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C & T Manufacturing Company and Upper South
Department, International Ladies' Garment Work-
ers' Union, AFL-CIO. Cases 5-CA-7827 and 5-
CA-7842
December 23, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On November 24, 1976, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, the Charging Party
and the Respondent filed exceptions and supporting
briefs, and the Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
The Administrative Law Judge concluded that the
Union represented a majority of the Respondent's
employees in a unit appropriate for the purposes of
collective bargaining as of March 16, 1976.2 Never-
theless, he failed to recommend that the Respondent
be ordered to bargain with the Union as a means of
remedying the unfair labor practices herein found
because, in his view, those practices were not so
extensive as to make the Union's card majority a
better indication of employee sentiment concerning
union representation than a Board-conducted elec-
tion. In this respect, he found that threats to close the
plant rather than deal with the Union, which were
indeed attributable to the Respondent, were not so
egregious as to warrant the imposition of a Gissel
remedy,3 because they were uttered by the Respon-
dent's "firstline supervisor in the course of casual
conversations," rather than by an individual with
more imposing managerial authority. We disagree.
We view as significant in this case the fact that
there are only 50 employees in the unit here in
question. In this context, a supervisor, regardless of
her or his line classification, acquires a special
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Producrs, Inc. 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 This conclusion is based in the Administrative Law Judge's finding
233 NLRB No. 213
relationship with higher management and influence
over her or his supervisees, if only for the fact that of
necessity there are fewer such supervisors. Thus, as
all individuals in the plant know, a so-called first-line
supervisor deals with company officials more directly
and on a more intimate basis than is ordinarily the
situation in a medium size or larger plant where
supervisors are more numerous and relationships are
likely to be more remote. Threats from a so-called
first-line supervisor, accompanied by use of the
names of company officials, as in the instant case,
are as coercive upon the employees as if made by the
company officials themselves, since they are perforce
considered to be authoritative by the employees and
taken to be spoken directly for higher management.
Indeed, the effect of the threats in this case upon
employees is likely to have been devastating in light
of their timing, i.e., threats of closure in February, a
pay raise for certain employees on February 12, the
Union's demand for recognition on March 8, and the
announced closing on March 1 1. Even if the Respon-
dent had an economic reason for closing, the
employees had no way of knowing or expecting that
this was the cause for its action. But, they could
convincingly see that the threats of closure because
of union activity were almost immediately effectuat-
ed. Further, the gravity of the misconduct here in
question cannot be minimized by the fact that it was
directed to only five employees. It would be the
ultimate in naivete to assume that the threats to close
if the Union came in were not communicated to
other members of the unit here involved. We view
such threats as one of the most flagrant means by
which an employer may interfere with the exercise of
employee rights under Section 7 of the Act. Thus, in
the circumstances of this case, we find that the
threats of plant closure and job loss depending on the
Union's advent make it unlikely that a fair election
can be had. Rather, we find this to be a case where
employee sentiment, once expressed through cards, is
on balance better protected by a bargaining order.
CONCLUSIONS OF LAW
1. C & T Manufacturing Company is an employ-
er engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Upper South Department, International La-
dies' Garment Workers' Union, AFL-CIO, is a labor
that, as of the aforementioned date, 26 employees out of 50 in the
appropriate unit had executed valid cards designating the Union as their
representative for the purposes of collective bargaining. We would likewise
include the cards signed by employees Pamela Bennett and Margaret
Hodge, thus bringing the total to 28, as the status of these employees, at the
time they signed and throughout the layoff period, has not been shown to
differ from that of the other unit employees.
N. LR.B. v. Gissel Packing Co, Inc., 395 U.S. 575 (1969).
1430
C & T MANUFACTURING CO.
organization within the meaning of Section 2(5) of
the Act.
3. By interrogating employees about their union
activities and desires and by threatening to close its
plant, Respondent has violated Section 8(a)(1) of the
Act.
4. All employees employed by Respondent at its
Staunton, Virginia, location, but excluding all office
clerical employees, truckdrivers, guards, and supervi-
sors as defined in the Act, constitute a unit appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
5. Since March 16, 1976, the Union has been and
is the exclusive collective-bargaining representative
of the Respondent's employees in the unit herein
found appropriate within the meaning of Section 9(a)
of the Act.
6. By refusing to bargain with the Union as the
collective-bargaining representative of its employees
in an appropriate unit on and after March 16, 1976,
the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) and (I) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
8. The allegations of the complaint that Respon-
dent violated Section 8(a)(1) of the Act by threaten-
ing to do bodily harm to union organizers, by stating
to employees that it had established an employee
committee to represent them, and by instituting a
pay raise have not been sustained.
THE RFMEDY
For reasons already stated, we deem it appropriate
that our affirmative Order include a directive that the
Respondent bargain with the Union upon request
and, if an understanding is reached, embody such
understanding in a signed agreement.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, C & T Manufacturing Company, Staunton,
Virginia, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
I. Insert the following as paragraph I(c) and
reletter the remaining paragraph accordingly:
'(c) Refusing to bargain collectively with Upper
South Department, International Ladies' Garment
Workers' Union, AFL-CIO. as the exclusive bar-
gaining representative of its employees in the appro-
priate unit."
2. Insert the following as paragraph 2(a) and
reletter the remaining paragraphs accordingly:
"(a) Upon request, bargain collectively with the
above-named labor organization as the exclusive
representative of the employees in the appropriate
unit concerning wages, hours, and other conditions
of employment, and, if an understanding is reached,
embody such understanding in a signed agreement."
3. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the complaint in this
proceeding be, and it hereby is, dismissed insofar as
it alleges violations of the Act not herein found.
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 having found,
after a hearing, that we violated Federal law by
interrogating you and threatening to close the plant,
we hereby notify you that:
The National Labor Relations Act gives all
employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other aid or protection
To refrain from any or all these things.
WE WILL NOT interrogate you about your union
activities and desires.
WE WILL NOT threaten to close the plant.
WE WILL NOT refuse to bargain collectively with
Upper South Department, International Ladies'
Garment Workers' Union, AFL-CIO, as the
exclusive bargaining representative of our em-
ployees in the unit found appropriate by the
Board.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of the above rights.
WE WILL, upon request, bargain collectively
with the above-named labor organization as the
exclusive representative of the employees in the
appropriate unit concerning wages, hours, and
other conditions of employment, and, if any
1431
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
understanding is reached, embody such under-
standing in a signed agreement.
C & T MANUFACTURING
COMPANY
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge:
The charge in Case 5-CA-7827 was filed on March 9,
1976,1 the charge in Case 5-CA-7842, on March 18. The
cases were consolidated for hearing and the complaint was
issued on May 14. The hearing was held in Waynesboro,
Virginia, on June 29 and 30 and July I and 2, 1976. The
principal issue litigated was Respondent's motive for
closing its sewing and finishing departments as of March
11. For the reasons set forth below, I find it was not
discriminatory within the meaning of Section 8(a)(3) and
(1) of the National Labor Relations Act, as amended.
Because of this conclusion, I further find Respondent has
not violated Section 8(a)(5) and (I) of the Act under the
doctrine laid down by the Supreme Court in N.L.R.B. v.
Gissel Packing Co., Inc., 395 U.S. 575 (1969).
Upon the entire record, including especially my observa-
tion of the demeanor of the witnesses, and after due
consideration of briefs, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, an Arkansas corporation, manufactures
ladies' robes in Staunton, Virginia, on a contract basis for
other firms in the garment industry. During the 7-month
period prior to April 30, it shipped products valued in
excess of $50,000 directly to persons located outside the
State of Virginia.
II. THE UNFAIR LABOR PRACTICES
A. Facts
I. Credibility
This proceeding turns on credibility. As is discussed
more fully below, the economic facts which Respondent
introduced are uncontroverted and strongly support a
finding that its motive for closing was not discriminatory.
On the other hand, the General Counsel's case, in broad
outline, is that Respondent threatened to close if its
employees engaged in union activities, the employees
engaged in union activities, and Respondent carried out its
threat. If the alleged threats which the General Counsel
relies on did, in fact, occur, Respondent's economic
defense fails. Thus, the first and most important question
which must be decided is whether the General Counsel has
proved threats of a magnitude which overcomes Respon-
dent's economic evidence.
I Dates are the last half of 1975 or the first half of 1976, as the case may
be, unless otherwise indicated.
The principal witness for the General Counsel as to these
threats (characterized in the complaint as "threatening to
close the plant should the employees select the Union" and
"threatening employees with loss of their jobs should they
engage in activities on behalf of the Union") was a sewing
machine operator named Elaine Cook. In fact, it is not an
exaggeration to say that she was the General Counsel's
principal witness, period. For example, she is the only
witness who supports the other threat allegation in the
complaint, an allegation that Respondent threatened "to
do bodily harm to Union organizers should they enter onto
Respondent's property." She placed it in the context of a
meeting of an employee committee. That there is an
employee committee that meets regularly in Respondent's
plant is undisputed. A number of witnesses testified about
what went on during meetings held during the period
involved in this proceeding. Yet Mrs. Cook is the only
witness who claims Charles Marks, Respondent's plant
manager, spoke words to this effect. Similarly, she attrib-
uted to Joseph Caplin, Respondent's vice president and
treasurer, a remark about the committee's function dis-
cussed in that part of the analysis and conclusions below
entitled "The employee committee." Every other employee
who testified about these meetings attributed it to Marks.
Be that as it may, Mrs. Cook testified about two
incidents which actually occurred in addition to the
committee meetings she attended. One grew out of the
circumstances under which a sewing machine operator
named Sandra Swartz signed a union authorization card.
Interrogation allegations in the complaint are based on this
incident. The other involved a conversation in Marks'
office among Marks, a sewing machine operator named
Mary Miller, and Mrs. Cook. Mrs. Cook's version of what
happened on this occasion is direct evidence that Marks
threatened to close the plant or discharge employees in the
context of the Charging Party's organizing campaign. Since
the only incidents in which a threat of this sort can be
attributed to Respondent involved Agnes Varner, floorlady
in the sewing department and a firstline supervisor not
privy to management's deliberations as it made up its mind
to close, discrediting Mrs. Cook knocks out a major
portion of the General Counsel's proof of motive.
I do not credit Mrs. Cook for a number of reasons. They
relate both to the circumstances under which Mrs. Cook
and Mrs. Miller happened to be in Marks' office on the
occasion of the disputed conversation and to what hap-
pened after they went in. The initial impression conveyed
by Mrs. Cook was that Marks was the aggressor in
questioning and threatening her and taking blank authori-
zation cards away from her when she just happened to be
in the office at the same time as Mrs. Miller. Only on cross-
examination did she admit she volunteered the information
she had signed a card. Mrs. Miller's version of how they
came to be in the office is the one set forth in the section
below entitled "Events in 1976." Briefly, according to Mrs.
Miller, she took Mrs. Cook to Marks because Mrs. Cook
was worried about the fact she had signed a card. In the cut
and thrust of direct and cross-examination of these two
women, a relationship between them was revealed which
1432
C & T MANUFACTURING CO.
persuades me that Mrs. Miller's version of what passed
between them is the more reliable. Since Mrs. Miller's
version of what happened in the office is corroborated by
Marks, whom I found to be a generally reliable witness, I
cannot credit Mrs. Cook's version of what Marks said to
her. This conclusion is strengthened by demonstrative
evidence which goes beyond mere demeanor consider-
ations. According to Mrs. Cook, Marks tore up the
authorization cards he took from her. According to Mrs.
Miller and Marks, Mrs. Cook gave the cards to Marks
voluntarily and he did not tear them up. Marks produced
the untorn cards on the witness stand. Having concluded
that Mrs. Cook cannot be credited as to the office incident,
I am persuaded that her version of what went on at the
committee meetings can only be trusted where corrobo-
rated. It differs so markedly from the picture painted by
the other employee witnesses who attended those meetings
that little of it survives in my findings of fact. Her
testimony that Marks threatened to close the plant during a
committee meeting does not survive at all.
There are two other witnesses for the General Counsel
whom I have discredited on the basis of demeanor. Nitra
Rexrode, a former employee who was discharged in
October, testified to a conversation in that month, denied
by Marks, in which Marks allegedly said Respondent could
not have a union because Caplin had closed down a whole
plant of over 200 people in the Midwest and also said he
would fire an employee named Malcom come Friday after
Mrs. Rexrode said Malcom was organizing her group.
(Caplin was, in fact, once associated with a garment
factory in Arkansas which closed down. There is no
evidence union activity among its employees played any
part in management's decision. Malcom was not fired. Mrs.
Rexrode was.) Louise Bennett testified that, sometime in
February, Marks asked her if she was for the Union. Marks
denied any such conversation ever took place. Since I
credit Marks over Mrs. Rexrode and Mrs. Bennett, there is
no reference to their testimony in my findings of fact.
It does not follow from the fact that I found Marks
generally reliable that I have credited his testimony in
every detail. He denied making the remark about the role
of the committee at a meeting which is "The employment
committee" issue. As to this detail, I credit and rely on the
testimony of employee witnesses (called, incidentally, by
Respondent) other than Elaine Cook that Marks did
respond to Mary Miller's comments when she brought up
the Union for the findings I have made in this area. As to
the events surrounding the signing of an authorization card
by Sandra Swartz, I do not credit Marks' testimony that he
explicitly told Agnes Varner to find out if the signing had
taken place during working hours. He testified he put his
instructions to the floorlady in those terms because of
advice he had received from an attorney he and Marks
consulted. Mrs. Varner interrogated Mrs. Swartz on Febru-
ary 11. Caplin and Marks did not visit the attorney until
February 17.
Finally, I also found one of Respondent's witnesses to be
generally unreliable. Agnes Varner, the floorlady, testified
that the only events she was involved in were those growing
out of the signing of Sandra Swartz' authorization card.
Her version contrasts sharply with those of the General
Counsel's witnesses. Moreover, she denied categorically
other statements which the General Counsel's witnesses
attribute to her. My findings as to her activities are based
on the credited testimony of the General Counsel's wit-
nesses. Included are threats of plant closure which she
voiced to Pamela Bennett and Polly Morrison in February.
The fact that Mrs. Varner said she was quoting Marks and
Caplin when she talked to Pamela Bennett does not alter
my conclusions as to Marks. I credit his denial that he ever
threatened to close the plant.
2. Background
Respondent is a contract manufacturer. It opened a
plant in Staunton, Virginia, in 1967. There it cuts yard-
goods belonging to other firms which specialize in design
and merchandising and either converts the pieces into
finished robes for the owner or sends the pieces to another
contractor for sewing and finishing. The designer/seller
with which Respondent is principally associated is a firm
known as Lori Till, headquartered in New York. Joseph
Caplin, vice president of Respondent, also has an interest
in Lori Till.
After a string of seven plant managers failed to turn the
plant into a profitable enterprise, Caplin closed the sewing
and finishing departments in May 1975 for economic
reasons. In August he learned that Charles Marks, a former
associate whom he had known as a successful plant
manager, was working in Roanoke. He contacted Marks
and discussed the situation in Staunton with him. They
agreed that Marks would reopen Respondent's sewing and
finishing departments on a 6-month trial basis. Marks did
so on September 5. Some of the employees hired at that
time had been working for Respondent at the time of the
shutdown in May 1975. Others had not. (The former group
is referred to in the record as the old girls, the latter, as the
new girls.) Agnes Varner, who had not formerly worked for
Respondent, was hired as floorlady. She was on layoff
status as a floorlady at Genesco, another garment factory
in the area. The cutting and shipping departments re-
mained open from May to September 1975.
Unrest over low wages developed among the employees
in October. Union activity began. (Whether a union was
actually on the scene at that time is unclear in the record. If
there was one, it is not named.) However, no serious
organizing campaign resulted.
In this period the employees tried to talk to Marks en
masse about their grievances. He refused to deal with them
as a group. Instead, he instructed Mary Miller, an experi-
enced old girl, to represent the front of the sewing floor and
to select two other employees to represent the middle and
the back. Mrs. Miller selected Elaine Cook to represent the
middle and Geneva Smiley, the back. In this manner the
employee committee was born sometime in November.
Helen Varner (no relation to Agnes) was subsequently
added to represent the finishing department. The commit-
tee met regularly with Marks and Agnes Varner thereafter.
It usually convened on Wednesday afternoon at 2:30 and
sat for half an hour. Occasionally, when no one had
anything to talk about, the meeting was canceled. Caplin
came to Staunton from New York at least once a month,
usually during the first week in the month. It was his
1433
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
custom to arrive on Tuesday morning and depart on
Thursday afternoon. On Wednesdays when he was at the
plant, he also met with the committee.
Respondent's plant is on three levels. The middle level,
on which the front entrance is located, houses the office
and the sewing department. On the lower level are the
finishing and shipping departments. On the upper level are
the cutting department, the lunchroom, and a storage area.
When fabric is cut, it is taken from the storage area to the
cutting department. If the sewing is to be done elsewhere,
the pieces are boxed in the cutting department and sent on
their way from there. If the garments are to be completed
in the plant, the pieces are bundled in the cutting
department and taken to the sewing department by the
bundle girl. When garments emerge from the last sewing
operation, they are dropped through a chute to the
finishing department. They then are examined and, if not
sent back upstairs for corrections, pressed. The presser
hands the finished garments on racks which occupy the
major part of the shipping area. When orders are received,
the proper garments are selected from the racks, boxed,
and shipped.
Respondent uses an incentive piece rate system in its
sewing and finishing departments with a minimum hourly
wage paid to those who fail to make the rate. (Respon-
dent's piece rates are designed to yield $2.65 an hour for an
average competent employee.) The difference between
piece rate and hourly wage paid to those who fail is called
makeup. When the sewing and finishing departments
reopened in September, old girls were given an hourly wage
of $2.20, new girls received the statutory minimum of $2.10
an hour.
Production was low and makeup high from the reopen-
ing of the sewing and finishing departments in September.
The figures were discussed at meetings of the committee
from its inception. Marks cautioned the members of the
committee that, if productivity did not improve drastically
through employees making the rate, thus reducing the
amount of makeup Respondent was paying, the two
departments would close again. He did not tell them the
departments had been reopened on a 6-month trial basis.
3. Events in 1976
The statutory minimum wage went up to $2.30 an hour
on January 1. All sewing and finishing department employ-
ees were raised to that level. The old girls complained that
the differential between them and the new girls had been
wiped out. The subject was discussed at a committee
meeting in January.
Caplin was in Staunton on one of his periodic visits from
January 6 to 8. He and Marks discussed the productivity
and makeup pay figures for September through December.
As a result, Marks rearranged the system followed in the
sewing department in an effort to boost production. The
move was not successful.
On January 30, Martin Lesser, an organizer for the
Charging Party, arrived in Staunton to launch a campaign
among Respondent's employees. He obtained his first
authorization card from Elaine Cook on February 4.
Marks learned there was union activity among the employ-
ees almost as soon as it began.
Caplin was in Staunton from February 3 to 5. Marks told
him about the union activity. Marks also discussed with
Caplin the contention of the old girls that they should get a
raise which would put them ahead of the new girls again.
The subject was discussed at a committee meeting on
February 4. Caplin agreed there was merit in the employ-
ees' argument. (None of the employees on the committee
was a new girl.) Marks and Caplin decided to give the old
girls a 20-cent raise to $2.50 an hour. Agnes Varner
subsequently went to each of the old girls individually and
told her of the raise, cautioning each not to tell the new
girls. All 17 old girls got a 20-cent-an-hour raise, effective
February 12.
Jackson Moore, another organizer for the Charging
Party, arrived in Staunton to help Lesser on February 9.
When Lesser signed up Elaine Cook on February 4, he
left four blank cards with her. She distributed two to
Sandra Swartz and Toni Beverage. She also began to worry
about what she was getting herself involved in.
Mrs. Cook gave an authorization card to Sandra
Swartz, a sewing machine operator, in the plant on
February 10. Mrs. Swartz filled it out and returned it to
Mrs. Cook. Mrs. Cook advised Mrs. Swartz to deny it if
anyone asked her if she had signed a card for the Union.
Some unidentified person told Agnes Varner, the floorlady,
that Mrs. Cook had given a card to Mrs. Swartz. Mrs.
Varner reported to Marks. Marks instructed her to ask
Mrs. Cook and Mrs. Swartz directly. Mrs. Varner did so.
She asked Mrs. Cook if Mrs. Cook had given a card to Mrs.
Swartz. Mrs. Cook, upset, denied that she had. Mrs. Varner
asked Mrs. Swartz if anyone had approached her with a
union card. Mrs. Swartz said no. Mrs. Varner asked if Mrs.
Swartz had signed a card. Mrs. Swartz said no. Mrs. Varner
reminded Mrs. Swartz that Mrs. Swartz had belonged to a
union when they had both worked at Genesco. Mrs. Swartz
agreed that was so. Mrs. Varner reported back to Marks
that both women had denied her informant's story.
Mrs. Swartz also became active for the Union. Not
long after she signed a card for Mrs. Cook, Mrs. Swartz
sent a note to a recently hired sewing machine operator
named Carolene Perkins asking Mrs. Perkins for her
telephone number. Mrs. Perkins wrote the number on the
note and sent it back to Mrs. Swartz. Mrs. Perkins then
called Agnes Varner over to her machine and asked Mrs.
Varner who Sandra was. Mrs. Varner pointed out Mrs.
Swartz. Mrs. Perkins said she wanted to know because
Mrs. Swartz was supposed to telephone her. Mrs. Varner
told Mrs. Perkins to talk to Mrs. Swartz because it might be
about the Union. The next day Mrs. Varner stopped at
Mrs. Perkins' machine. She asked if Mrs. Swartz had
called. Mrs. Perkins said yes. Mrs. Varner asked if it was
about the Union. Mrs. Perkins said yes and then went on to
explain that she was against the Union. This, apparently,
was what Mrs. Perkins had told Mrs. Swartz in their
telephone conversation. However, Mrs. Perkins subse-
quently changed her mind. She signed a union authoriza-
tion card on February 18.
This was not the end of Mrs. Varner's interest in the
union activities of Elaine Cook and Sandra Swartz.
Sometime in the latter part of February, a sewing machine
operator named Toni Beverage, from whom Mrs. Cook
1434
C & T MANUFACTURING CO.
had also solicited an authorization card, overheard Mrs.
Varner ask Mrs. Cook if she had signed one. Mrs. Cook
said no. Mrs. Varner responded, "Well, I know Sandra
did."
Mrs. Cook's worries about what she was doing caused
her to confide in her friend, Mary Miller.2 Mrs. Cook
telephoned Mrs. Miller at home one evening and told her
she had been talked into signing a union card against her
better judgment. She told Mrs. Miller she was scared of
losing her job if Marks found out and asked for Mrs.
Miller's advice. Mrs. Miller told Mrs. Cook that no one
could force her to support the Union if she did not want to.
She suggested to Mrs. Cook that they go together to Marks
so that Mrs. Cook could tell Marks what her position was.
Once the matter was out in the open, Mrs. Miller reasoned,
Marks would not do anything to her and that would be the
end of it. Mrs. Cook agreed to follow Mrs. Miller's
suggestion.
The next day Mrs. Cook and Mrs. Miller went together
to Marks' office. Mrs. Miller told Marks that Mrs. Cook
had something she wanted to tell him. Mrs. Cook told
Marks she wanted him to know that she was concerned
because Martin Lesser had come to her house and he and
her husband had talked her into signing a union card.
Marks told her that was her business and not his. He asked
her if she had any cards. Mrs. Cook said yes and produced
the two blank cards she still had in her possession. Marks
asked Mrs. Cook what she wanted him to do. Mrs. Cook
laid the cards on his desk. Marks picked them up and was
tapping them on the desk as Mrs. Cook and Mrs. Miller
left.
Agnes Varner also made some inquiries about union
activity among the employees without being told to do so
by Marks. Sometime during the first week in February she
asked Polly Morrison, a sewing machine operator, if Mrs.
Morrison had heard anything about a union or if anybody
had approached her. Mrs. Morrison said, truthfully, no.
Mrs. Varner asked Mrs. Morrison how she felt about a
union in the plant. Mrs. Morrison said she did not know
because she had not talked to anybody yet and did not
know what a union had to offer. Mrs. Varner said it did not
matter because Caplin would shut the plant before he
would let a union come in. Mrs. Morrison was first
approached by Jackson Moore on February I 11. She signed
an authorization card for him at that time.
The following week Mrs. Varner asked Alma Armentr-
out, a recently hired bundle girl in the sewing department
whom she knew from their service together at Genesco, if
Mrs. Armentrout had seen anybody passing around any
union cards.
Sometime in February Pamela Bennett, a sewing ma-
chine operator, overheard Mrs. Varner tell another em-
ployee during a break period that Marks and Caplin had
both said, if the employees tried to get a union in the plant,
they would close it down.
The employee committee met regularly on Wednesday
afternoons in the period after union activity began. Caplin
2 The date of Elaine Cook's visit to Marks' office with Mary Miller
cannot be dated with absolute certainty. The most that can be said is that it
took place in February. The record does not really establish that what
spooked Mrs. Cook was Mrs. Varner's interrogation of her on February 10.
However, I would infer, if findings of precise dates really mattered, that
was in Staunton again from February 17 to 19 and, as was
his custom, attended the meeting held on February 18. At
one meeting (apparently, although the point is not clear in
the record, the meeting which Caplin attended) Mary
Miller brought up the subject of the Union. Other employ-
ee members said they did not think a union was needed.
Marks observed that, since the committee had been formed
for the purpose of bringing grievances to him, he did not
see why a union was needed either. Mrs. Miller brought up
the Union at more than one meeting. On one occasion
Elaine Cook alluded to the cards she later entrusted to
Marks. She said she had some blank cards. Marks
suggested she get rid of them. Mrs. Cook said she could
not, she had to give them back to the Union because the
Union had told her that, if she destroyed them, she would
have to pay for them.
While Caplin was in Staunton, he and Marks consulted a
law firm in Harrisonburg, Virginia, about the union
situation. They conferred with a lawyer named Smith.
Smith advised them as to what Respondent could legally
do and what it could not do in resisting the organizing
campaign. He prepared a letter which was sent to all
employees under date of February 18 over Caplin's
signature. It set forth arguments against signing authoriza-
tion cards which did not exceed Respondent's free speech
rights under Section 8(c) of the Act.
Caplin was in Staunton again from March 2 to 4. As
usual, he brought with him the most recent figures on the
plant's activity and discussed them with Marks. The figures
showed a loss of $21,584.19 for the 2-month period ending
February 29. This contrasted with a loss of approximately
$10,000 in the comparable period in 1975. Caplin and
Marks decided to close the sewing and finishing depart-
ments, effective on Thursday, March I I at the end of the
current 2-week pay period. Caplin left the plant around 3
p.m. on March 4 for his return trip to New York. Marks
assembled the sewing and finishing department employees
just before the end of the workday and announced the
closing. In stating the reason for the shutdown, he said that
makeup pay was too high, productivity was too low, and
the plant was losing money. He also said the two depart-
ments would never open again.
On March 8, Respondent received a mailgram from the
Charging Party demanding recognition as the collective-
bargaining representative of Respondent's production and
maintenance employees. On March 10 Respondent replied
in a mailgram prepared by Smith but bearing Caplin's
name. In it Respondent expressed its doubt as to the
Charging Party's claim to represent a majority and directed
the Charging Party's attention to the fact it had already
announced the closing of the sewing and finishing depart-
ments as of March I1. The Charging Party responded with
a mailgram dated March 22 in which it expressed its doubt
as to Respondent's asserted economic motive for closing
down and suggested a card check. Respondent responded
in a mailgram dated March 24, prepared by Smith and
Mrs. Cook telephoned Mrs. Miller on the evening of February 10 and they
went to Marks the next day. Mrs. Varner. incidentally, last worked for
Respondent on February 26 at which time she left to return to Genesco. She
was replaced as floorlady on February 27 by Sybil Acord.
1435
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed by Caplin, in which it declined to agree to a card
check.
The last day of work for all but 12 of the sewing and
finishing department employee was March I 11. Those who
remained beyond that date were selected on the basis of
their ability to help finish up work still in progress at the
end of the workday on March I I. This contrasted with the
procedure followed at the time of the May 1975 layoff
when each employee was let go as the operation on which
she worked ran out. The 12 ceased work on various dates
after March II11. The last day of work for those who
continued to work the longest was April 5. Respondent's
losses for the 3-month period ending March 31 amounted
to $29,577.25, contrasting with approximately $15,000 in
the comparable period in 1975.
The Charging Party did not wait for a reply to its initial
demand for recognition before filing a refusal-to-bargain
charge on March 9 in Case 5-CA-7827. It added a charge
of discriminatory denial of work on March 18 in Case 5-
CA-7842. Smith represented Respondent during the early
stages of the investigation by the Regional Office. How-
ever, shortly before the complaint herein issued, it retained
the Baltimore law firm which represented it at the hearing.
Respondent's new counsel learned the Regional Director
had decided to issue complaint. They recommended
Respondent reopen the sewing and finishing departments
forthwith in order to toll its backpay liability in the event it
was found to have violated the Act by closing them.
Respondent followed counsel's advice. Under date of May
19 it notified all the employees it had laid off to return to
work on May 21. All but three received the certified letters
sent to them. The three who failed to receive letters were
sent telegrams. One of the three telegrams was delivered.
(No issue has been raised about the sufficiency of the
notice Respondent gave to any employee about her recall
from layoff.) Some of the employees responded, others did
not.
Respondent's cutting and shipping departments re-
mained in operation from March I to May 21. The sewing
and finishing departments reopened on the latter date. The
plant continued to lose money between that date and the
hearing. The record does not indicate how much. It does
indicate that the number of employees was substantially
below what it had been on March 11.
B. Analysis and Conclusions
I. Threats, etc.
As already indicated in the section above entitled
"Credibility," there is no credible evidence that Respon-
dent, in the person of Charles Marks, threatened "to do
bodily harm to Union organizers should they enter onto
Respondent's property." Similarly, there is no credible
evidence that Marks or Joseph Caplin threatened "employ-
ees with loss of their jobs should they engage in activities
on behalf of the Union" or threatened "to close the plant
should the employees select the Union as their collective
bargaining agent." I find, therefore, no merit in any of
these independent 8(a)(l) allegations. The "threatening to
close" paragraph in the complaint, however, also names
Agnes Varner. There is credible evidence of two conversa-
tions with employees in which the floorlady said Respon-
dent would close down rather than have a union in the
plant. Mrs. Varner told Polly Morrison it did not matter
how Mrs. Morrison felt because Caplin would shut the
plant down before he would let a union come in. On
another occasion she told an employee, within earshot of
Pamela Bennett, that Marks and Caplin had both said they
would close the plant down if the employees tried to bring
in a union. I find, therefore, Respondent violated Section
8(aX)) of the Act by threatening to close the plant. Four
other independent 8(aX 1) allegations remain.
a. Interrogation
The interrogation paragraph of the complaint names
Charles Marks and Agnes Varner. The General Counsel's
contention that Marks' statements during the conversation
in his office with Elaine Cook and Mary Miller violated the
Act is based on Mrs. Cook's discredited version of who
said what to whom. The only query which Marks did
address to Mrs. Cook was whether she had any authoriza-
tion cards. In the context of Mrs. Cook's voluntary
revelation that she had signed a card, it was not coercive.
Nor, given the same context, did Marks' accepting the
cards Mrs. Cook wanted to get rid of amount to a violation
of the Act. I find, therefore, Marks did not interrogate
"employees concerning their own and fellow employees'
membership in and activities on behalf of the Union."
The activities of Agness Varner are, once again, another
matter. In carrying out Marks' instructions to check with
Elaine Cook and Sandra Swartz whether they were passing
and signing authorization cards on company time, she did
not explain the reason for her questions or indicate she was
aware of or respected their rights to engage in union
activities under proper circumstances. (It is interesting, in
weighing the legal significance of what Mrs. Varner said to
Mrs. Cook and Mrs. Swartz in this incident, that Respon-
dent does not contend it had a no-solicitation rule in effect
prior to the outbreak of union activity or promulgated one
when it started.) The questions Mrs. Varner posed, placed
in that context, were obviously coercive. The same princi-
ple applies to the questions she put to and the information
she sought to elicit from Carolene Perkins, Polly Morrison,
and Alma Armentrout. I find, on the basis of each of these
incidents, that Respondent interrogated employees about
their union activities and desires in violation of Section
8(a)(1) of the Act.
b. The employee committee
This allegation is predicated on the remark of Marks at a
committee meeting in February that, since the committee
had been formed for the purpose of bringing grievances to
him, he did not see why a union was needed. His comment
was a response to employee members of the committee
who said, in effect, they did not want a union to represent
them. This single statement by Marks is the only aspect of
the committee's formation or activities which the General
Counsel contends violates the Act. Given the context in
which the remark was made, it was not coercive. I find,
therefore, Respondent did not violate Section 8(a)(1) of the
Act by "stating to employees that [it] had established an
1436
C & T MANUFACTURING CO.
'Employee Committee' to represent the employees and
questioning them regarding their desire for union represen-
tation."
c. The pay raise
The gravamen of this allegation is Respondent's motive
for giving the 17 old girls a raise of 20 cents an hour
effective February 12. All of the facts surrounding the raise
are undisputed or uncontroverted. The initial push came
from the old girls in early January when they protested the
loss of their 10-cent-an-hour differential due to an increase
in the legal minimum wage. The subject was discussed by
Caplin and Marks before the Charging Party's organizing
campaign began. There are only two elements in the
situation which weigh in favor of a finding that Respon-
dent was motivated by antiunion considerations when it
decided to give the raise. One is the fact the decision was
made by Caplin and Marks after they became aware of the
organizing campaign. The other is the fact the raise
increased the differential from 10 cents to 20 cents an hour.
They are not sufficient, in my opinion, to outweigh the
evidence that Respondent followed to its logical conclusion
a train of events which had been set in motion before union
activities began and did not change its normal procedures
because they did begin. The fact that Respondent gave the
raise in the face of mounting losses does not alter this
conclusion. As of early February it was still attempting to
increase productivity in order to turn its financial position
around. A raise at that time which satisfied the legitimate
grievance of a substantial number of its employees was not
unjustified from a business point of view. I find, therefore,
the General Counsel has failed to establish by a preponder-
ance of the evidence that Respondent violated Section
8(a)(1) of the Act by "instituting a pay raise for employees,
who had been employed by Respondent prior to Septem-
ber 1975, in order to persuade them to reject the Union as
their collective bargaining representative."
2. The layoff
The final independent 8(a)(l) allegation is based on
"[t]he conduct of Respondent, on or about March 11, 1976,
in substantially carrying out its threats by unilaterally
discontinuing its sewing and finishing departments thereby
creating a chilling effect on the union membership and
activities of Respondent's employees." "Chilling effect" is,
of course, a reference to the rationale of the Supreme Court
in Textile Workers Union of America v. Darlington Manu-
facturing Co., et al., 380 U.S. 263 (1965), where it was held
that an employer does not commit an unfair labor practice
when he goes completely out of business even though his
motive is one proscribed by Section 8(a)(3) of the Act.
Since the chilling effect which the Court spoke of in
Darlington applies where, as here, the going out of business
is less than total, the issue posed by this allegation of the
complaint hinges on Respondent's motive just as much as
the allegation that Respondent terminated employees "as a
consequence of discontinuing its sewing and finishing
departments . . . because of their membership in, assis-
3 Counsel is here adverting to the fact that Respondent's 1976 figures are
in the record in the form of profit and loss statements while the 1975 figures
tance to, or activities on behalf of the Union," thereby
violating Section 8(aX3).
As with the pay raise issue, the evidence presented by
Respondent in support of its defense that it was motivated
solely by business considerations when it decided to close
the sewing and finishing departments is uncontroverted.
The plant was economically marginal from its inception.
Respondent closed the sewing and finishing departments in
May 1975 because the plant was losing money. It decided
to reopen them in September on a 6-month trial basis to see
if a new plant manager who had been successful elsewhere
could put the plant on its feet. Despite the new man's best
efforts, low productivity and the consequent high makeup
pay continued. The plant continued to lose money, more,
in fact, than in comparable periods a year earlier. The
sewing and finishing departments were closed again at the
expiration of the 6-month trial originally decided on. In the
face of such a strong economic defense, has the General
Counsel proved by a preponderance of the evidence that
Respondent, in the persons of Caplin and Marks, would
not have decided to close the sewing and finishing
departments on March 4, effective March I1, but for the
Union's organizing campaign? I think not.
The core of the General Counsel's response to Respon-
dent's defense is set forth in this paragraph from his brief:
While claiming that the decision to close the Sewing
and Finishing operation was based on financial
grounds, Respondent admits that throughout its nine
year existence, the Staunton operation has been "very
bad" from a financial standpoint .... While it cannot
be doubted that the Staunton operation sustained
considerable net losses, these losses had apparently
been tolerated in the past .... It is submitted that
something more than mere financial losses prompted
the decision to close on March II. The timing and
circumstances of the closing, coming at the height of
the Union's drive to organize Respondent's employees,
make clear that the time [sic] motivation behind the
decision to cease operations was a desire to forestall
unionization of the Staunton plant.
The Charging Party's brief makes the same point, thus:
The economic explanation is contradicted by the
evidence. First, Respondent produced 1976 loss figures
but did not produce loss figures for 1975, which were
clearly exclusively within Respondent's possession and
control.3 The obvious explanation is that losses were
equally large in 1975. Furthermore, as noted above, C
& T never showed a profit .... The six-month theory
holds no more water. First, nobody except Marks was
advised that C & T was to be operating on a six-month
trial basis. With a company that was theoretically
always trying to improve its employees' productivity
the suggestion that employees have six months to show
the employer that it was worth staying in business (and
maintaining employment for them) would have provid-
ed a strong incentive for increased productivity. It is
unreasonable to think the employer would not have
are not. My findings as to the latter are based on the uncontroverted
testimony of Caplin, which I credit.
1437
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
passed this message along to the employees if, indeed,
he ever intended closing the place after six months.
Furthermore, Marks left permanent employment at
another factory to come to C & T .... No man with a
family to support would take on a plant at which seven
previous managers had failed on a six-month trial basis.
The employer's explanations for the layoff are inade-
quate.
This argument is based solely on one record fact, that the
plant was unprofitable throughout its 9-year history.
Everything else is speculation. Losses had not been
tolerated in the past. The May 1975 shutdown was
obviously caused solely by losses for there was no union
activity at that time. Thus the record establishes that a
shutdown for economic reasons is not unprecedented in the
history of the plant. There is as strong an argument for not
telling employees the departments have been reopened on
a trial basis as the one advanced by the Charging Party for
telling them. Employees may be unwilling to continue
working at all if they know their jobs may end soon. There
is no basis in the record for finding that Marks left
permanent employment in Roanoke to come to Staunton
or even that he has a family. Neither is there any evidence
of what inducements Caplin offered Marks to get him to
use his expertise in one last effort to salvage an uneconom-
ic plant.
There are other factors which can be thrown into the
'evidentiary scale on the General Counsel's side. The
strongest of these is the fact that the two departments were
open at the time of the hearing. If Caplin and Marks closed
them because of losses, how could they put up with more
losses after the May 21 reopening? Their explanation,
however, is a sensible one from a business point of view. If
this close issue goes against Respondent in the last stage of
this proceeding, the backpay bill could be much larger than
the losses they have had to shoulder as a result of the
decision to reopen in order to toll backpay. Given the
situation Caplin and Marks faced when they learned a
complaint was to be issued against Respondent, their
decision to reopen demonstrates good judgment, not a
guilty conscience.
The Charging Party argues in its brief that the piece rate
system followed by Respondent departs from industry
practice, therefore Respondent really intended to operate
the sewing and finishing departments on an hourly wage
rather than an incentive wage basis. This proves, according
to the Charging Party's reasoning, that Respondent never
intended to operate the plant at a profit, therefore the
entire economic defense is a pretext. I reaffirm a ruling
made at the hearing that expert testimony as to industry
practices was irrelevant. The issue here is not whether
Respondent could have reduced or eliminated its losses by
employing managerial techniques advocated by the Charg-
ing Party but whether the techniques it did use were so
outrageous that they demonstrate a motive for closing
proscribed by the Act. This argument is one with the
General Counsel's and the Charging Party's overall attack
on Respondent's economic defense. To find, in the face of
Respondent's uncontroverted, credited, economic evi-
dence, that Respondent was not motivated economically
would require me to find that it deliberately ran its plant at
a loss for a long time and would have continued to accept
that loss but for the threat posed by the Charging Party.
Such a conclusion flies in the face of the logic of the free
enterprise system of which the Act is a cornerstone.
Nothing in the demeanor of either Caplin or Marks made
me think either was such a poor businessman.
As I indicated at the outset of this Decision, the issue of
Respondent's motive for the shutdown comes down in the
final analysis to whether the General Counsel's evidence of
threats to close outweighs Respondent's evidence of busi-
ness considerations. If the General Counsel had succeeded
in placing such threats in the mouth of Caplin or Marks, I
would have no hesitancy in resolving this issue in his favor.
However, the only threats which he has proved were made
by Agnes Varner, the floorlady. The finding that Mrs.
Varner told an "employee during a break period that
Marks and Caplin had both said, if the employees tried to
get a union in the plant, they would close it down" does not
suffice, for the evidence on which it is based is hearsay as
to their having actually made such a remark to Mrs.
Varner. Threats by a firstline supervisor do not, in my
opinion, outweigh Respondent's defense, even when added
to the other factors on the General Counsel's side of the
scale discussed above. I find, therefore, the General
Counsel has not proved by a preponderance of the
evidence that Respondent violated Section 8(aX3) and (1)
of the Act when it closed its sewing and finishing
departments effective March II1.
3. The refusal to bargain
a. The prerequisites to bargaining
(I) Unit
The demand for recognition which Respondent received
from the Charging Party on March 8 claimed "a majority
of your production and maintenance employees in appro-
priate bargaining unit." The unit pleaded by the General
Counsel and concurred in by the Charging Party is "all
employees employed by Respondent at its Staunton,
Virginia, location, but excluding all office clerical employ-
ees, truck drivers, guards and supervisors as defined in the
Act." Respondent agrees that an all employee unit is
appropriate. It would, however, include office clerical
employees and truckdrivers.
There is only one truckdriver, Robert Hoft, on the
payroll for the period in which March 8 fell, the period
ending March 11. His principal duty was to drive from
Staunton to New York and back, generally once a week.
He loaded his truck with finished robes and/or cut fabric
slated for sewing and finishing in another shop on Monday
morning and left around noon. When he returned on
Wednesday morning, Marks usually gave him the remain-
der of the day off to make up for extra hours he put in
without extra compensation while on the road. He spent
Thursday and Friday in the plant. The only work he did
which related in any way to the production process was to
pack cut fabric preparatory to shipment. (At other times,
he painted the inside of the building.) He packed in the
cutting department on the upper floor of the plant rather
than in the shipping department on the lower level where
1438
C & T MANUFACTURING CO.
finished garments were readied for shipping. Since his
community of interest with inplant employees was not so
great as to make a unit from which he is excluded
inappropriate for bargaining purposes and since the Charg-
ing Party does not seek to represent Respondent's truck-
driver, I find that a plantwide unit which excludes
Respondent's truckdriver is appropriate.
The dispute over the office clerical category involves two
individuals on the March I I payroll. All parties agree that
Sharon Crummett was an office clerical in the sense in
which that term of art is used. Since she worked in the front
office with Marks and her principal duty related to
preparation of the payroll, they are obviously right.
However, the General Counsel and the Charging Party
would also exclude Ellen Huffer as an office clerical. She
worked at a desk on the upper floor of the plant. There she
monitored the cutting process to make sure that the cutting
ticket sent to Respondent from New York was followed
and that trim and other materials in addition to the basic
fabric required for a garment were on hand for the sewing
process. These duties clearly place her within the category
of production clerical. The fact that she sometimes helped
Mrs. Crummett with the payroll and replaced her in early
April when she left cannot alter the fact that, as of March
8, Ellen Huffer was a production rather than an office
clerical and thus properly included in a plantwide unit.
Respondent contends its one office clerical employee
should be in the unit because excluding her would make
her the only unrepresented employee in the plant. Exclud-
ing the truckdriver, of course, makes that argument
inapplicable. Since there is nothing about the relationship
of Respondent's lone office clencal employee to its produc-
tion and maintenance employees which takes her out of the
usual Board policy of excluding office clericals, I find that
a plantwide unit which excludes office clerical employees is
appropriate. In summary, I find the unit set forth by the
General Counsel in the complaint is appropriate for
collective bargaining.
(2) Majority
As of March 8, there were 55 persons arguably associated
with Respondent's plant. The parties agree that Marks, the
plant manager, and Sybil Acord, the floorlady, were not in
the unit because they were supervisors within the meaning
of the Act. Of the other 53, they also agree that 44 were in
the unit. Of the remaining nine, I have found above that
Ellen Huffer was also in but that Sharon Crummett and
Robert Hoft were out. The other six about whom the
parties are in disagreement are Karlene Karnes, James
Barker, Beverly Graham, William King, Helen Varner, and
Jean Cobb.
Karlene Karnes, a sewing machine operator, is the only
one of the nine disputed employees who signed an
authorization card for the Charging Party. It is dated
March 22. Her name appears on the March II payroll.
During that payroll period, however, she worked on
Friday, February 27, was off on Monday, March 1, and
worked on Tuesday, March 2. She did not work thereafter.
She received a recall notice in May. She did not respond to
it. The General Counsel and the Charging Party take the
position that she was on sick leave on March 8. Respon-
dent takes the position that her employment ended on
some unspecified date prior to March II. (Although the
point is somewhat obscure in Respondent's brief, I gather
that it would count Miss Karnes as in the unit on March 8
but out as of March 22 so that her card cannot be counted
as a valid designation of the Charging Party under a
continuing demand theory.) Unlike Beverly Graham,
whose situation is discussed in detail next, there is no
evidence in the record that Miss Karnes was physically
unable to work after March 2 or that Respondent consid-
ered her to be on sick leave after that date. However, the
fact that Respondent sent her a recall notice in May
establishes that it still considered her among the group of
persons to whom it had some obligation under the Act at
that time. I find, therefore, Karlene Karnes was in the unit.
James Barker and Beverly Graham are marker makers.
The marker maker works in the cutting department,
making the necessary adjustments to the basic pattern for a
garment in order that the pieces produced by the cutter will
make the various sizes which the cutting ticket calls for. It
is a skilled job. Beverly Graham became seriously ill in
December. Respondent did not know whether or when she
would ever return to work. There was no skilled marker
maker in the Staunton area. Consequently, Respondent
advertised in a national trade journal. It located James
Barker in Chicago in this manner. In order to induce him
to come to Staunton, it offered him a premium wage. He
began work on January 13. In order to keep his wage
confidential, Respondent paid him on an individual pay-
roll. Like the regular payrolls on which all the other
employees were paid, these documents were prepared in
Staunton and forwarded to New York for preparation of
paychecks.
Mrs. Graham survived two cancer operations. By
March 8 Respondent was aware that she would soon be
well enough to return to work. Consequently, when cutting
for the spring line was complete, Barker left and, presum-
ably, returned to Chicago. This occurred around March 15.
(The page from Respondent's payroll journal which carries
Barker's record shows that he received full pay for the
period ending on March 15.) Mrs. Graham returned to
work sometime during the week of March 22 and worked
on the cutting of the fall line. Because of the demands
placed on her by a handicapped son, she works irregular
hours, less than full time.
The General Counsel and the Charging Party would
exclude both Barker and Mrs. Graham, the former on the
ground he was a temporary employee, the latter on the
ground she is a part-time employee. Both positions are
without merit. There is no evidence that Barker was hired
on a temporary basis. In fact, all the testimony in the
record relating to the circumstances under which he was
hired demonstrates the opposite. There is no evidence the
advertisement by which Respondent sought him out was
for a job of limited duration. The fact Mrs. Graham's
condition was so serious at the time that Respondent did
not know what her future availability would be is uncon-
troverted. The fact that Mrs. Graham did eventually
recover and return to work is not, without more, enough to
establish that Barker was originally hired on a temporary
1439
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
basis or that he was converted to temporary status prior to
March 8. 1 find, therefore, James Barker was in the unit.
The marker maker has an obvious community of interest
with other employees in the unit. The only thing that
distinguished Barker from his fellows was the fact that he
was an outlander who had to be lured to the area with
higher pay. Similarly, the only thing that distinguishes Mrs.
Graham, an area resident, from the other employees is the
fact that she usually works less than 40 hours a week. She
performs all the marker maker work required by Respon-
dent. The fact that she does so at times which suit her
convenience does not make her an "irregular" part-timer,
i.e., a part-time employee who works or does not work to
suit the employer's convenience. Rather, she is a regular
part-timer who happened to be absent on sick leave as of
March 8. I1 find, therefore, Beverly Graham was in the unit.
Finally, the General Counsel and the Charging Party
would exclude William King, Helen Varner, and Jean
Cobb as supervisors. William King is the head cutter. He
works with one other cutter, a marker maker, and a bundle
girl. Helen Varner is an examiner. As of March 8, she was
working with one presser. Somewhat earlier than that,
when employment in Respondent's plant was at its peak,
she worked with one other examiner and two pressers. Jean
Cobb is in charge of shipping. She works with a helper who
does most of the physical work involved in filling orders for
finished garments. The only part of the statutory definition
of a supervisor which might conceivably be held applicable
to King, Varner, and Cobb is that they have "authority, in
the interest of [Respondent], to . . . responsibly . . . direct
[other employees]" in a manner that "requires the use of
independent judgment." (In this connection, I credit the
testimony of Marks and Ilelen Varner that she has no
authority to send employees home when finishing depart-
ment work is slack and that on those occasions when she
has told others to leave she was merely relaying Marks'
instructions.) There is no evidence that the directions
which King, Varner. and Cobb give to those who work with
them are other than routine in nature. I find, therefore,
William King, Helen Varner, and Jean Cobb are in the
unit. 4
Adding Ellen Huffer, Karlene Karnes, James Barker,
Beverly Graham, William King. Helen Varner, and Jean
Cobb to the 44 employees the parties agree were in the unit
as of March 8 gives a total 51 unit employees as of that
date. The Charging Party had authorization cards executed
by 26 of these employees on that date. Respondent
challenges the validity of two of them.
Hazel Hester, a sewing machine operator, filled out and
signed a card for Jackson Moore on February 17. On direct
examination she was asked what happened when Moore
came to her house. Her reply was:
He came when I was at the doctor's office and he left
the card with my daughter. I believe I signed it in his
presence because I asked him if this was an election
card and if it meant that I was making a vote and he
4 I attach no significance to a document apparently prepared by Smith,
the lawyer originally consulted b) Respondent, and submitted to the
Regional Director during his investigation which lumps Sybil Acord, Ellen
Huffer, and Jean Cobb together as "supervisors." The only thing Acord,
said not. [sic] He said it was giving him the right to sit
down and talk.
The way I understood it, it meant that the union and
the company would sit down and talk and we would
have the right to vote for whichever side we felt was
right.
On cross-examination, when asked to repeat what Moore
said to her, she said:
Well, I don't know if I can say it the way he did. I
asked him if to sign the card meant that I was joining
the union, voting for it and he says no, ma'am, it
doesn't involve you in any way. Then I read the card
where it says the union would not be obligated to do
anything for me.
Also on cross-examination, Mrs. Hester testified about
what she told the Board investigator who checked out the
cards. She said:
He asked me if I knew what conditions did I sign the card,
if I understood it and I told him I thought I did. and just as
I just said my understanding of it was that I wanted them
to sit down with the company, both of them, and I thought
we would be hearing both sides and have the right to
choose which side we wanted.
Respondent contends Mrs. Hester's card is invalid
because it "is scarcely the unequivocal designation of a
bargaining agent, that warrants the imposition of a bar-
gaining representative upon unwilling employees without a
secret ballot election." It is clear from these portions of
Mrs. Hester's testimony that Moore did not mislead her by
stating he was soliciting her card only for the purpose of
obtaining a Board election. The fact that Mrs. Hester may
have misunderstood him is irrelevant. Moreover, Mrs.
Hester was asked the following questions and gave the
following answers before any of the testimony set out
above:
Q. Did you fill out the entire card, all the handwrit-
ten portions?
A. Yes, I did all that.
Q. Did you read the card prior to signing it?
A. I thought I read it and I thought I understood it.
I hope so.
The Charging Party's authorization card is an unequivocal
authorization of "the International Ladies' Garment Work-
ers' Union, its agents or representatives to act for me as a
collective bargaining agency in all matters pertaining to
rates of pay, wages, hours of employment, or in other
conditions of employment." I find, therefore, the card
signed by Hazel Hester on February 17 is valid.
Ann Shiflett filled out a card for Martin Lesser on March
2. Instead of signing her name in the signature blank in her
usual manner, she lettered it, just as she lettered the
information called for in all the other blanks. Soon after
Huffer, and Cobb have in common which sets them apart from everybody
else in the plant is that they are salaried and, consequently, do not have to
punch the timeclock. Fringe benefits, such as medical insurance and
vacation, are the same for everybody.
1440
C & T MANUFACTURING CO.
Lesser left her house, Mrs. Shiflett changed her mind about
wanting the Charging Party to represent her. Later that
week Lesser returned to her home and told her the card she
had filled out was not adequate because she had not signed
it. He asked her to execute a new one. She told him she had
changed her mind. She refused to fill out another card. She
instructed him to tear up the old one. He agreed to do so
when he replied, "Okay." However, he did not tear up the
card.
Mrs. Shirett's card was introduced into evidence
through Lesser. While Lesser was on the stand a controver-
sy developed over the fact Mrs. Shiflett had not signed her
name cursively. On redirect examination Lesser alluded to
his second visit to her house, thus:
Q. Did you mention to Mrs. Shifett [sic] that she
had printed or hand lettered rather than signed her
name?
A. All right. I noticed later that it was printed and I
wondered about it and I went back to her a couple of
days later and I mentioned it to her. She said that I
signed one card and I don't see why I have to sign
another one. So I let it go at that.
Respondent called Mrs. Shiflett during its case in chief.
The General Counsel did not recall Lesser on rebuttal to
challenge her version of what passed between them when
he went to her house on the second occasion. Consequent-
ly, my findings as to what they said are based on her
credited testimony. She was as vague as Lesser about the
date of the second visit, placing it in "the following week."
"Following week" is an ambiguous phrase. It can mean
either in the week following Tuesday, March 2, or in the
week which followed the week in which March 2 fell, i.e.,
the week of Sunday, March 7. On the basis of Lesser's
"couple of days later," I place the date on which Lesser
agreed to destroy Mrs. Shifett's March 2 card prior to
March 8. 1 find, therefore, the card signed by Ann Shiflett
on March 2 is not valid and cannot be counted toward a
majority for Charging Party on March 8 or any other date.
Thus, Respondent had 25 valid authorization cards in a
unit of 51 employees, I shy of a majority, when it
demanded recognition on March 8. However, in the period
between the official shutdown of the sewing and finishing
departments on March 11 and April 5, the last day of work
for any of the handful of employees who stayed on the
payroll after March I , the Charging Party acquired four
more cards. In addition to Karlene Karnes' card dated
March 22, the record contains cards signed by Pamela
Bennett and Margaret Hodge, sewing machine operators,
on March 15, and by Richard Armstrong, a porter, on
March 16. Pamela Bennett and Margaret Hodge did not
return to work when recalled in May. (Pamela Bennett,
whose last day of work for Respondent was March II,
went to work at another garment factory in the area
around March 30. The record does not reveal why
Margaret Hodge did not return. It does indicate that she
was off sick during the payroll period ending March II.)
However, Richard Armstrong did return. The only employ-
ee in the unit as of March 8 whose employment relation-
ship was explicitly terminated during this period was James
Barker. Since 26 cards are required to establish a majority
in a unit of 50 as well as a unit of 51 employees, the
Charging Party continued to need I more valid card after
Barker's departure. Even if Bennett's and Hodge's cards
are discounted on the ground that their failure to return
when recalled makes uncertain their status as laid-off
employees at the time they signed, Armstrong's card
cannot be. It put the Charging Party over the top on March
16 beyond any possible dispute. I find, therefore, that the
Charging Party represented a majority of Respondent's
employees in a unit appropriate for collective bargaining as
of March 16, 1976.
(b) The Gissel doctrine
The Supreme Court held in Gissel, supra, that the Board
may enter a bargaining order "without need of inquiry into
majority status on the basis of cards or otherwise, in
'exceptional' cases marked by 'outrageous' and 'pervasive'
unfair labor practices. .... [We] approve the Board's use
of the bargaining order in less extraordinary cases marked
by less pervasive practices which nonetheless still have the
tendency to undermine majority strength and impede the
election processes.... We emphasize that under the
Board's remedial power there is still a third category of
minor or less extensive unfair labor practices, which,
because of their minimal impact on the election machinery,
will not sustain a bargaining order. There is ... no per se
rule that the commission of, any unfair practice will
automatically result in a §8(aX5) violation and the issuance
of an order to bargain." (395 U.S. at 613-615.)
I have found that Respondent, in the person of Agnes
Varner, interrogated employees and threatened them with
plant closure. Gissel itself stands for the proposition that
threats to close a plant are sufficiently serious to throw a
case into the Supreme Court's second category, for there, in
Case No. 585, the one involving Sinclair Company, "the
president's communications with his employees, when
considered as a whole, 'reasonably tended to convey to the
employees the belief or impression that selection of the
Union in the forthcoming election could lead (the Compa-
ny] to close its plant, or to the transfer of the weaving
production, with the resultant loss of jobs to the wire
weavers.' " (395 U.S. at 589.) Since there is no per se rule,
the question here is whether Respondent's threats to close,
when coupled with the interrogations it was also guilty of,
are pervasive enough to bring this proceeding into the
Supreme Court's second category.
In Gissel the threat of plant closure was the theme of an
intensive antiunion campaign mounted by the employer's
chief executive. Here the threats were made by Respon-
dent's firstline supervisor in the course of casual conversa-
tions. The fact that Mrs. Varner also interrogated employ-
ees in the same manner does not raise Respondent's illegal
effort to dissuade its employees from supporting the
Charging Party to the level present in Gissel or subsequent
analogous Board decisions in which bargaining has been
ordered. Cf. Headstrom Company, a subsidiary of Brown
Group, Inc., 223 NLRB 1409 (1976), and Ludwig Fish &
Produce, Inc., 220 NLRB 1086 (1975). Since the unfair
labor practices which Respondent has committed are not
so extensive as to make the Charging Party's card majority
a better indication of employee sentiment about union
1441
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representation than a Board election following the applica-
tion of the Board's remedy, traditional in 8(aX ) cases, of a
cease-and-desist order and the posting of a notice, I find
Respondent did not violate Section 8(aX5) of the Act when
it refused to recognize and bargain with the Charging Party
as the representative of its employees.
Upon the foregoing findings of fact and upon the entire
record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. C & T Manufacturing Company is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Upper South Department, International Ladies'
Garment Workers' Union, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By interrogating employees about their union activi-
ties and desires and by threatening to close its plant,
Respondent has violated Section 8(aX1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. The allegations of the complaint that Respondent
violated Section 8(aX)(1) of the Act by threatening to do
bodily harm to union organizers, by stating to employees
that it had established an employee committee to represent
them, and by instituting a pay raise have not been
sustained.
6. The allegations of the complaint that Respondent
violated Section 8(a)(3) and Section 8(aX5) of the Act have
not been sustained.
7. All employees employed by Respondent at its Staun-
ton, Virginia, location, but excluding all office clerical
employees, truckdrivers, guards, and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
5 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER5
The Respondent, C & T Manufacturing Company,
Staunton, Virginia, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interrogating employees about their union activities
and desires.
(b) Threatening to close its plant.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its plant in Staunton, Virginia, copies of the
attached notice marked "Appendix." 6 Copies of said
notice, on forms provided by the Regional Director for
Region 5, after being duly signed by Respondent's autho-
rized representative, shall be posted by Respondent imme-
diately 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.
(b) Notify the Regional Director for Region 5, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges Respondent violated Section 8(aX1) of
the Act by threatening to do bodily harm to union
organizers, by stating to employees that it had established
an employee committee to represent them, and by institut-
ing a pay raise, and insofar as it alleges Respondent
violated Section 8(aX3) and Section 8(aX5) of the Act.
6 In the event that 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."
1442