Earle Industries, Inc.

National Labor Relations Board - Board Decisions

Mar 22, 1982

260 N.L.R.B. 1128 (N.L.R.B. 1982)

DECISIONS ()F NATIONAI. LABOR RELATIONS BOARD
Earle Industries, Inc. and International Ladies Gar-
ment Workers Union, AFL-CIO. Case 26-CA-
8066
March 22, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATItR AND
MEMBERS FANNING AND HUNTER
On July 21, 1981, Administrative Law Judge
William F. Jacobs issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief. '
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions 3 of the Administrative Law Judge and
to adopt his recommended Order as modified
herein. 4
' In its brief, Respondent disputes the adverse inference drawn by the
Administrative Law Judge because Respondent did not call Supervisor
Glenda McCain as a wmitness Respondent claims that "Ms McCain was
sick and experiencing heart trouble during the presentation of this case."
The General Counsel has filed a motion to strike the quoted portion of
Respondent's brief on the ground that Respondent failed to enter on the
record any explanation why McCain was not called as a witness After
carefully reviewing the entire record in this proceeding, we find that the
General Counsel is correct .'nd grant the General Counsel's motion
2 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis fior reversing his findings.
3We adopt, inter alia, the Administrative l as Judge's finding that Re-
spondent violated Sec 8(a)(3) and (1) of the Act when it permanently
laid off employee Early Morton for the purpose of disenfranchising her
in the Board election held on June 22, 1979 In reaching this conclusion.
however, the Administrative Laws Judge also found as to Morton's previ-
ous layoff in 1977 that "Morton was not [laid off) because she talked with
other employees instead of doing her job but because she was involved in
the union's campaign." Since the complaint does not allege that Morton's
1977 layoff was discriminatory, we do not adopt this finding of the Ad-
ministrative Law Judge. This conclusion does not affect our findings
herein.
The Administrative L aw Judge also found that our earlier decision in
Earle Industries, Inc., 146 NLRB 536 (1964), established that McCain and
Al Chasen, Respondent's plant manager, had a propensity to engage in
conduct violative of Sec 8(a)(1). We do not adopt this finding, since the
earlier decision predated the alleged violations here by some 14 years and
thus is too remote to support the Administrative Law Judge's finding
' In par. I of his recommended Order, the Administrative L aw Judge
uses the broad cease-and-desist language. "in any other manner." Itowev-
er, we have considered this case in light of the standards set forth in
Hickmorr Foods. Inc.., 242 NLRB 1357 (1979), and have concluded that a
broad remedial order is inappropriate inasmuch as it has not been shown
that Respondent has a proclivity to violate the Act or has engaged in
such egregious or widespread misconduct as to demonstrate a general
disregard for the employees' fundamental statutory rights. Accordingly.
we shall modify the recommended Order so as to use the narrow injunc-
tive language, "in any like or related manner."
260 NLRB No. 163
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Earle Industries, Inc., Earle, Arkansas, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 1:
"1. Cease and desist from:
"(a) Permanently laying off or otherwise discri-
minatorily terminating employees in order to pre-
vent them from casting their ballots in National
Labor Relations Board representation elections.
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them under Section
7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT permanently lay off or other-
wise discriminatorily terminate employees in
order to prevent them from casting their bal-
lots in National Labor Relations Board repre-
sentation elections.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
1128
EARL.E INDUSTRIES, INC.
WE WILL offer Early Morton, Carolyn
McClain, Virgil Wright, Mary Dorsey, and
Carolyn Williams immediate and full reinstate-
ment to their former jobs or, if such jobs no
longer exist, to substantially equivalent jobs,
and make them whole for any loss of pay,
with interest, that they may have suffered by
reason of our discrimination against them.
All our employees are free to become or remain,
or refrain from becoming or remaining, members of
a labor organization.
EARLE INDUSTRIES, INC.
DECISION
STATMEN1 OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge: This
case was heard before me on August 18, 19, and 20,
1980, in Memphis, Tennessee. The charge was filed on
September 27, 1979, and amended on October 25, 1979,
by International Ladies Garment Workers Union, AFL-
CIO, herein called the Union. The complaint issued on
October 30, 1979, alleging that Earle Industries, Inc.,
herein called Respondent or the Employer, violated Sec-
tion 8(a)(1), (3), and (4) of the National Labor Relations
Act, as amended, herein called the Act, by failing and re-
fusing to reinstate certain employees' because of their ac-
tivity on behalf of the Union and because they filed
charges or gave testimony2 under the Act.
All parties appeared and were afforded full opportuni-
ty to be heard and present evidence and argument. All
parties filed briefs.3 Upon the entire record, my observa-
tion of the demeanor of the witnesses and after giving
due consideration to the briefs, I make the following:
FINDINGS OF FACTI
1. THE BUSINESS OF RFSPONDENT
Respondent, a corporation with an office and place of
business in Earle, Arkansas, is engaged in the manufac-
ture of closet accessories, garment bags, and other relat-
ed products. Annually, Respondent, in the course and
conduct of its business operations, has sold and shipped
from its Earle, Arkansas, facility products, goods, and
materials valued in excess of $50,000 directly to points
outside the State of Arkansas and has annually purchased
and received at its Earle, Arkansas, facility products,
goods, and materials valued in excess of $50,000 directly
from points outside the State of Arkansas. The complaint
alleges, the answer admits, and I find that Respondent is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
I Allegations in the complaint concerning certain of these employees
were dismissed at the hearing on motion from the General Counsel
2 No evidence was offered at the hearing to support the 8(a)(4 ) allega-
tions.
' The General Counsel's unopposed motion to correct the transcript is
hereby granted The Charging Party's motion to repoen the record to
permit receipt of additional exhibits is denied
II. THE lABOR ORGANIZATION INVOIVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
Ill. THE Al lEGED UNFAIR l ABOR PRACTICES
A. Background
In 1963 the Union first attempted to organize Re-
spondent's plant. In an effort to defeat the organizational
drive, Respondent engaged in a number of 8(a)(1) viola-
tions:4 threatening reprisals including threatening to close
its plant, purposely creating the impression of impending
plant closure in the event of union success, interrogating
employees, and attempting to force employees to wear
"Vote No" signs prior to a representation election. In-
volved in purposely creating the impression of impend-
ing plant closure for unlawful reasons were, among
others, two of the principals involved in the instant pro-
ceeding: Donald Felsenthal, Respondent's president, and
Al Chasen, s Respondent's plant manager. The Union did
not succeed in its organizational efforts.
In November 1968 the Union once again undertook
the organization of Respondent's employees. There is no
evidence that Respondent engaged in violative conduct
during this campaign. On the contrary, the Union pro-
vided Respondent at the time with a list of employees
who were serving on its organizing committee, and Re-
spondent placed in the record evidence that several of
these organizing committee members quit their jobs at
various times, years after this campaign, and despite their
known union activity were nevertheless rehired by Re-
spondent.
In October 1974 the Union again undertook to orga-
nize Respondent's employees. As it did in 1968, it sent
Respondent another list of employees who were on its
organizing committee. There is no evidence that Re-
spondent engaged in any activity violative of the Act
during this campaign. Moreover, of 27 names appearing
on the Union's list of organizing committeemen. 10 of
these 27 were rehired after quitting or being laid off for
lack of work subsequent to the 1974 campaign.
On October 4, 1977, the Union sent a letter to Re-
spondent demanding that it be recognized as the bargain-
ing agent for Respondent's employees and on October 6,
1977, it filed a petition6 with the National Labor Rela-
tions Board's Regional Office in Memphis for an elec-
tion. Attached to the Union's demand letter was, once
again, a list of 27 employees who were identified as
members of the organizing committee. Respondent of-
fered evidence to indicate that, of these 27 employees
who served on the bargaining committee, a number who
subsequently quit or were laid off were nevertheless re-
hired despite their known union affiliation during the
1977 campaign. This claim will be discussed infra.
Following the filing of the petition, an election was
conducted on November 29, 1977, the results of which
are not available in the record here before me. For rea-
' Eart Induotrie,. Inc . 146 N RHB 516 (1964)
Spelled Chassen in the cited decision
"Case 2t RC 5628
1129
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sons also not available in the record, a second election
became necessary and that one was conducted on June
22, 1979. The ballots of a number of employees were
challenged during the election and following an investi-
gation by the Region it was recommended that certain of'
them should be opened and counted. The Board substan-
tially adopted the Regional Director's recommendations
with regard to these challenges and ordered that certifi-
cation issue if remaining challenged ballots were not suf-
ficient in number to affect the results of the election. The
position of the parties with regard to the challenges is in-
structive. With regard to 8 of the 10 challenged ballots,
the Union took the position that these employees were
temporarily laid off with expectancy of recall and there-
fore eligible voters while the Employer took the position
that these same employees were permanently laid off be-
cause they had not been meeting minimum production
standards except one, Carolyn McClain who had been
laid off for lack of work with no reasonable expectancy
of recall and therefore ineligible to vote. The record re-
veals that four' of the eight individuals challenged had
been listed as members of the Union's 1977 organization-
al committee with Respondent receiving notification of
this fact, and that five of the eight are alleged discrimina-
tees in the instant proceeding. The General Counsel con-
tends that, although the termination of the five named
employees was not discriminatorily motivated, Respond-
ent's failure to reinstate them was so motivated.
B. The 8(a)(3) Allegations
1. The layoff of Early Mae Morton
Early Morton was first hired by Respondent on June
16, 1975,8 and was employed initially as a bundle girl9 in
the tops and bottoms department. It was her job to
supply the sewing machine operators with work and to
pick up the finished product from the operators when
their work was completed. When Morton was asked
what one had to know to be a bundle girl, she replied
simply, "How to tote bags." Thus, the job was not very
demanding. Morton during her first period of employ-
ment with Respondent, was described by Chasen as a
good worker, a fair worker. During this period, accord-
ing to Chasen, she did her work as she was supposed to
do. She was not, unlike later, going around between the
aisles of the operators and continually talking. Gladys
Conners, the other bundle girl who worked with
Morton, was called by Respondent apparently to support
Chasen's testimony. She described the work that she and
Morton did and compared their means of getting it ac-
complished. She testified that she worked with Morton
on two separate occasions,10 and contrary to Chasen
stated that both times Morton exhibited a constant pat-
tern in her work habits, "Both times were the same."
7 arolyn Williams. Mary Dorsey, Virgil Wright, and Early Morton.
"The dates of hire and termination of each employee discussed herein
are based on company records and are not in dispute.
'Also called a floorgirl.
'O According to Respondent's records Morton worked from June 16,
1975, until October 1976 then from September 15 until November 18,
1977, then from October 25 until November 24, 1978
Morton admitted being asked, when she was first hired,
not to just stand and talk.
On October 15, 1976, Morton was laid off for the first
time. She was still working in the tops and bottoms de-
partment and her supervisor was Glenda McCain. On
that occasion McCain called her over to her desk about
noon and told her that she was going to have to lay off
one of the bundle girls and that she, Morton, was the
one. McCain added that she would call her back as soon
as work picked up. The notation "LOW"" was placed
on Morton's employee card.
With regard to Morton's layoff on October 15, 1976,
Chasen testified that she was let go "when it slowed
down, and we didn't require her services." In effect
Chasen agreed with the company personnel records that
Morton was laid off for lack of work.
Based the above-described oral testimony and substan-
tiating records, and the further testimony of Gladys Con-
ners to be described infra, I find that Early Morton was
considered a good worker during her first period of em-
ployment with Respondent, although she was prone to
"just stand and talk" and was admonished concerning
this propensity. I find also that she was laid off for lack
of work and was advised that she would be recalled
when "work picked up." The entry LOW noted on her
employment record meant exactly what it said. She was
thus a permanent employee with reasonable expectation
of recall.
On September 15, 1977, true to McCain's promise,
Morton was recalled. She was given her old job back as
bundle girl in the tops and bottoms department. With
regard to this second period of employment, Chasen tes-
tified that Morton "was not doing her work as she
should have been, or as she did the first time she was
with us; instead of doing her work, the work that she
should have been doing, she was going around between
the aisles of the operators and continually talking. As
noted earlier, Gladys Conners, the other bundle girl who
took McCain's place when she was off sick, testified that
there was no difference between Morton's work habits
during the first period she worked for Respondent and
the second period. The pattern was constant. Conners
stated that during both periods Morton failed to do the
work which she was supposed to do; namely, carry work
to and from the operators and supply them with materi-
al, thread, and oil for their machines. According to Con-
ners, Morton, instead of doing her work, continued to
hold conversations with the machine operators which
took from a 1-1/2 to 3 or 4 minutes. These conversations
took place not while Morton was doing her job but after
she completed a particular job and lingered on before
moving on to the next job. Sometimes, Conners testified,
Morton would delay servicing operators while she com-
pleted less important assignments. In short, Morton, in
Conners' estimation, was not efficient. As to the opera-
tors themselves, Conners stated that they would some-
times continue to work while Morton spoke to them and
sometimes would stop working during the conversation.
" L.ack of work.
1130
EARLE INDUSTRIES, INC.
When Gladys Conners was asked about her own pro-
pensity to talk while on the job, she replied that she did
not hold lengthy conversations with operators but, when
she did, she did not completely stop what she was doing
in order to engage in discussion, rather she continued to
work, then would leave to do other assigned tasks. The
operators, according to Conners, continued working
when she talked to them, unlike when Morton talked to
them, when they sometimes stopped. Conners also men-
tioned a conversation which she had had with Morton
during this period in which Morton complained to Con-
ners that "McCain was getting down her back about
talking so much on the job" and wanted to know why
McCain did not ask Conners to stop talking. Conners, on
this occasion, told Morton that it was because she kept
her work going even while talking and McCain was
aware that she was capable of doing that. Despite her
observation that Morton was not doing her job, Conners
stated that she never told any of the supervisors that
Morton was not doing her job. She noted that bundle
girls are paid straight time, not wages based on produc-
tion. Therefore, it did not matter whether she or Morton
moved I or 50 bundles, they were still paid the same
amount.
According to Morton, the first day she came back
from her layoff on September 15, 1977, she became
aware that union activity was taking place at the plant.
That very evening, while at an establishment called the
"Mad Butcher," Morton was told by a fellow worker
that the employees were trying to get the plant orga-
nized. Morton was asked if she would help, and she
agreed that she would. Thereafter, Morton passed out
leaflets, held most of the meetings at her house, about
five or six in all, wore a union button, visited employees
at their homes, and solicited signatures on union repre-
sentation cards. She was a member of the in-plant orga-
nizing committee and her name appeared on the list of
employees who were members of the in-plant organizing
committee furnished on October 5, 1977, by the Union to
Respondent.
On October 5 or 6, Glenda McCain was handed a
copy of the list of employees who were members of the
Union's organizing committee which included Morton's
name. She was observed reading the list. From that day,
according to Morton's credited testimony, McCain began
to closely watch Morton's activities, including when she
was going to and coming from the restroom. On occa-
sion McCain would follow Morton to the restroom.
McCain also watched Morton when she spoke to other
employees. Whereas prior to October 5 McCain did not
pressure Morton concerning her briefly talking to the op-
erators about their needs, thereafter she tried to keep
Morton from saying anything. Morton characterized
McCain's treatment of her as "picking on her." Relations
between the two cooled and the two avoided talking to
each other. McCain, however, continued to carefully
watch Morton and certain other employees and one day
told Morton that she had better be careful. Other mem-
bers of management as well as McCain stopped smiling,
no longer greeted her in the morning, and acted cranky.
She was forbidden to go back into the cutting depart-
ment to get goods as she used to do.
From the above testimony, I conclude that Morton
continued to do her work during the second period of
her employment the same as she had performed her
work during the first period of her employment, just as
Conners noted."2 She also continued to talk to fellow
employees more than her fellow bundle girl, Conners. I
find that her talking was not per se objectionable to her
supervisor or to the Respondent, otherwise she would
not have been recalled at all. Moreover, there is no indi-
cation that her talking, or even pausing while doing so,
interfered in any way with production. The job was not
tied to production.
I also find that Morton was heavily engaged in union
activity and that Respondent was aware of her activity
and attempted, through her supervisor, Glenda McCain,
to keep her away from other employees by carefully
watching her and forbidding her to talk to other employ-
ees. Thus, Morton's talking was not nearly as objection-
able to Respondent as it claimed. Rather, McCain's pres-
suring her to stop talking was an attempt on McCain's
part to make certain that no union activity took place on
company time. I reach this conclusion based on Morton's
credited testimony, 3 the fact that Morton had engaged
in talking with other employees prior to her layoff and
was nevertheless recalled, the sudden change in
McCain's treatment of Morton following her obtaining
knowledge that Morton was on the Union organizing
team, and McCain's history of demonstrated union
animus and propensity to engage in activity violative of
Section 8(a)(l). '4
The union election was scheduled for November 29,
1977. Approximately, 2 or 3 weeks before the election a
meeting was held which was attended by certain of Re-
spondent's employees and its attorneys. One of the indi-
viduals who was invited to attend the meeting was
Gladys Conners, an employee who, it has been noted,
took over Glenda McCain's duties in her absence. Other
employees were not invited to attend this meeting so
when Conners came out of the meeting one of them
asked her what went on at the meeting. Conners replied,
"All of you are going to wish you all didn't have any-
thing to do with that Union before it's all over with."'5
She directed this statement at a group of employees
which included Morton. The following week Morton
was laid off.
On November 18, 1977, just before quitting time
McCain called Morton over to her desk and told her
that she was going to have to lay her off. Morton re-
plied, "okay." McCain then said, "There ain't no hard
feelings, is there?" Morton replied, "No." She then
clocked out.
Chasen testified with regard to this layoff that he no-
ticed several times while walking through the depart-
ment that Morton, instead of doing her job, was contin-
ually talking to the machine operators. When he called
,2 Chasen's testimony to the contrary is not credited
"a McCain did not testify to deny any of Morton's testimony
" See Earle Industries. Inc., supra.
S Conners. who testified on behalf of Respondent, with particularity,
and at great length, with regard to Morton's work habits did not testify
concerning this statementl. Morton's description of the incident is cred-
ited
1131
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this to the attention of the supervisor, he was told that
the supervisor had tried to correct the situation but
could not. According to Chasen he told the supervisor
that rather than bring someone else in he would keep
Morton on until it got slow, then he would just let her
go. Chasen testified that the decision to let Morton go on
this occasion was his own and the supervisor's. I find,
however, for the reasons stated above that the evidence
indicates that Morton was not terminated because she
talked with other employees instead of doing her job but
because she was involved in the Union's campaign. She
was a known union activist and it was immediately prior
to the election so there was no more convenient time for
Respondent to get rid of her than at that time. Chasen's
statement that it made no difference to him whether or
not a union represented the employees is rejected in light
of the findings in 146 NLRB 536 that he actively en-
gaged in an attempt, in a previous campaign, to purpose-
ly create the impression among employees that the plant
would close if the Union were successful in its attempt to
organize.
Charges were filed with the National Labor Relations
Board based on the discharge of Morton and on October
25, 1978,'6 she was reinstated in accordance with a settle-
ment' 7 agreement reached between Respondent and the
Board. She was not, however, reinstated to her old job
but given a job in the padded hanger department. ' Her
new job consisted of putting cotton padding on a
wooden hanger, adding a perfumed pellet, then placing a
satin sleeve over the whole.
Meanwhile, the representation case was proceeding
concurrently. The election which had been conducted on
November 29, 1977, resulted in objections and challenges
being filed by the Union. A hearing was held on Novem-
ber 21 or 22, 1978, at which Morton gave testimony. 9
Two days later, November 24, 1978, Morton was laid
off.20 There is no indication in the record whether or not
a charge was filed on Morton's behalf at this time. Pre-
sumably there was not.
'6 Morton testified that she was reinstated on November 21 (or 22, 1978
I am, however, relying on the dates appearing in the Company's records
7 Morton and Don Felsenthal so testified and Respondent's counsel so
stated in her brief. Counsel for the General Counsel contends that
Morton returned as a result of a "stipulation [G.C. Exh. 3] in the concur-
rent representation proceeding." But that document, undated, discusses
"expectancy of recall" and was entered into, according to counsel for the
General Counsel, on November 20. 1978 But by that date, according to
Respondent's credited records, Morton had already been back on the job
almost a month. Thus, it would appear that the stipulation was entered
into merely as a means of determining which of the ballots of the em-
ployees named therein and challenged in the 1977 election should he
counted. It did not provide for the reinstatement of Morton
's There is no explanation as to why Morton was not reinstated to her
old position. She had never worked in the padded hanger department
before. I would suspect that Respondent wished to keep her from circu-
lating among the employees as she did when she was a bundle girl
Is No portion of the representation case record was placed in the
record of the instant case to show the nature of Morton's testimony
"o Counsel for the General Counsel notes in his brief: "Just prior to her
recall, Morton testified at a hearing involving the representation case held
November 21 and 22, 1978." Presumably, the General Counsel relies on
the memory of Morton on this matter. I rely instead on Respondent's
personnel records which support the text herein
On the day of the layoff, Irby McCain, Morton's su-
pervisor, 2' called her over and told her that he was
going to lay her off and that he would call her back
when work picked up. At the time of her layoff two
other employees22 were also laid off. Morton's employ-
ment card contains the notation under remarks, "Laid
off. LOW." Similar notations had been entered on her
card when she had been temporarily laid off in the past.
When Morton filed for unemployment 5 days later she
entered "lack of work" as the reason given her for her
layoff. On Respondent's unemployment record for
Morton, its authorized representative2 3 indicated similar-
ly that lack of work was the reason for Morton's layoff.
When Don Felsenthal was shown Morton's employment
card he agreed that the LOW entered thereon meant
lack of work. He also testified that the decision to lay off
Morton was made by Chasen and Irby McCain. Chasen
testified similarly.
Respondent presented several members of management
as witnesses who testified concerning the work being
done in the hanger department generally, Morton's work
in the hanger department, and the importance of produc-
tivity in that department. Irby McCain testified that,
during the approximately 10 years that he was supervis-
ing in the hanger department, he had the opportunity to
observe many employees performing the job which had
been assigned to Morton, and because of his experience
he could tell in 2 or 3 days if she would ever be able to
reach the required production standard. He stated that
the standard set was 1,000 hangers 24 per day per individ-
ual, but that several employees were able to produce
more than the 1,000 per day, whereas others could not,
particularly if they were taken off their jobs to perform
other duties. This standard, he noted, had been in exist-
ence since 1968 or 1969, and each individual who came
to work in the department was advised, verbally by him-
self, of the necessity of producing the 1,000-hangers-per-
day standard. Each new employee, according to Irby
McCain, is told exactly what is expected of him, and he
is given ample time to work up to the standard.
As far as training is concerned, Irby McCain testified
that new employees in the hanger department have
someone25 physically sit down with them and go through
the assembly process with them for 2 or 3 days after
which McCain can tell by observing the speed and dex-
terity of the new individual whether or not she will
eventually be able to make the standard. Once the new
employee learns the manner of performing the operation
2 Record evidence clearly indicates that Irhy McCain is a supervisor.
He was nevertheless later found eligible to vote 248 NL RB 67
2 I ouise Wright and Brenda Young. There is no evidence that these
two employees were actively engaged in any union activity
23 Jonell Bennett, Respondent's secretary, who filled out both the em-
ployment cards and the unemployment records testified that it has "just
been a practice to put laid olff" Only if there had been "trouble" with
someone and Chasen or D Felsenthal told her to put a different entry
would she put something else on the unemployment form.
4 Coming close to the standard, between 950 to 1.000 was considered
acceptable D Felsenthal also testified that 1,000 hangers was the stand-
ard.
25 A senior employee or supervisor is constantly at the employee's side
during this period, according to McCain.
1132
EARLE INI)USIRIES. INC
she is left alone to produce on her own. It usually takes
2 to 3 weeks 26 for a new operator to become proficient.
Hanger production, in the past, had been seasonal, ac-
cording to McCain. It geared up at a specific time of
year and then was shut down. During this period there
would be an influx of employees into the padded hanger
department. These employees would produce until the
required production was met, then the department would
shut down.27 Though McCain testified that slower pro-
ducers were let go first and were told they were being
let go for that reason, there is evidence to the contrary.2 s
At the end of the year employees would be told that
they were being let go because of a lack of work. When
McCain was asked if any employee had ever been termi-
nated for not being able to meet the standard, he stated
that he was sure there had been, but could not think of
any off hand. There were, he stated, about 12 in the de-
partment.
During its seasonal period, McCain testified that, when
it was time to recall the employees, they were called
back in accordance with their production, the more pro-
ductive employees being called back first, the slower
ones later.
With regard to Morton, McCain testified concerning
her working proficiency by comparing her to a cowork-
er, Martha Crawford, who was employed in the hanger
department during the same period and also as a sleeve
girl.29 According to McCain, Crawford moved in a
rhythmic fashion and was much faster than Morton.
McCain testified that at the end of the day, when he no-
ticed the amounts of production, he would comment to
each of the workers about their output. The counts are
kept by the sleeve girls themselves, then passed on to
McCain. From his observation of these employees and
from the amount of production each turned in, McCain
testified that he came to the conclusion that Morton was
just too slow and would not become productive within
the next 5 or 6 weeks. Crawford, he stated, could and, in
fact, did become a productive employee.30 Crawford was
laid off on November 20, 1978. When recalled on Janu-
ary 15, 1979, she was either immediately or later put to
work in another department.
Chasen testified, in support of McCain, that Morton
did not come up to the standard while working in the
sleeve department, reaching this conclusion on the basis
of production reports which he received in the ordinary
course of business. He reached this conclusion when he
noted that her production was "below some of the other
girls." Records placed in evidence by the General Coun-
sel seem to indicate that Morton's production was, in
fact, below the other sleeve girls'. Contrary to what
McCain told Morton at the time of her layoff, to the
record and to precedent, Chasen testified that Morton's
" D. Felsenthal testified similarly but in his affidavit stated that it
would take 2 to 4 weeks to become a good employee
27 The padded hanger department has been discontinued There was
some testimony from McCain as to when the department was seasonal
and when it was all year round but his testimony was inexact as to dates.
The department was completely shut down in late 1979
:" According to Respondent's records
" Crawford was a new employee, hired September 18, 1978.
to McCain could not remember who trained Morton and Crawford nor
how much time was dedicated to their training
layoff was permanent. He admitted, however, that he
never told Morton that she was permanently laid off or,
in effect, discharged. Respondent's position is that
Morton was permanently laid off because she was not
producing. Donald Felsenthal as well as Chasen so testi-
fied. This too, Respondent contends, is the reason she
was not recalled.
Morton testified with regard to production standards
in the hanger department that she had never been told
how many hangers to do or about the existence of any
production system. Contrary to the testimony of
McCain, Morton stated that she did not keep track of
her production and never discussed her production with
her superiors. She stated that no one ever told her that
she was not producing enough. I credit Morton.3'
In view of the above-described evidence, I conclude
that Morton was temporarily laid off on November 24,
1978, for lack of work. I am convinced that it was the
intention of Respondent to recall Morton at a later time
when work picked up. I base this conclusion on the fact
that Morton was told at the time of her layoff that she
would be recalled; that the personnel records indicate
that lack of work not low production was the reason for
her layoff; that lack of work not low production was the
reason given to the state employment security division;
that Morton was never advised of the existence of any
production standard; that she was never criticized or
counseled about her production; and that Crawford, who
Respondent compared to Morton as a far superior em-
ployee, was laid off 4 days before Morton despite her
higher production.3 2 If production were as important a
matter as Respondent would have one believe, Morton
would have been laid off before Crawford.
The reason why Crawford was laid off before Morton
is probably best reflected in the testimony of Anthony J.
Bonnano, a supervisor in the hanger department from
October 1976 to July 16, 1979. Bonnano explained that in
case of a lack of work Chasen would inform Irby
McCain of the number of employees that would have to
be released. McCain would then check the date of hire
of all the employees, and based on the "last hired, first
laid-off policy" he would inform the employees of their
layoffs. Inasmuch as the layoffs of Morton and Crawford
were based on a lack of work, the "last hired, first laid-
off' policy was instituted as described by Bonnano. If
the policy were as described by other Respondent wit-
nesses, i.e., the least productive to be laid off first, Mor-
ton's layoff would have preceded Crawford's. Thus,
Morton's layoff was based on a lack of work and was
temporary.
2. The layoff of Carolyn McClain
Carolyn McClain was first employed by Respondent
for a brief 2-week period in 1976. She was hired again in
September 1977, quit in December of the same year for
reasons of health, was rehired July 7, 1978, and was laid
off for lack of work on March 21, 1979. While employed
" Where the testimony of Respondent's witnesses are contrary to that
of Morton, theirs is not credited,
"2 Thus Irby McCain's testimony is contradicted by Respondent's own
records
1133
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at Respondent's plant during her last period of employ-
ment, McClain was engaged in the sewing of pockets on
shoe bags using a double needle operation.
McClain first became aware of the union's organizing
campaign in November 1977. She testified that she
handed out leaflets during the lunch break, wore a union
button, signed a union card, and placed a bulletin con-
cerning a union meeting on the bulletin board in Re-
spondent's plant. When the Union's representative visited
the plant, McClain and certain other employees3 3 would
meet with him across the street from the plant in a park-
ing lot and talk with him. On these occasions she would
wave at individuals34 watching her either from the plant
or as they were slowly driving by. McClain, unlike
Morton and the other alleged discriminatees, was not
listed as a member of the in-plant organizing committee.
No one from management ever discussed the Union with
McClain.
Chasen was asked during the hearing if he knew that
McClain and certain other employees had been engaged
in union activities. He testified that he did not know
what activities these employees were engaged in. I con-
clude, however, that McClain's union activities 35 were so
overt, as was the entire union campaign, that they most
certainly had to come to the attention of management.
On March 21, 1979, according to company records,
McClain was laid off for lack of work. According to
McClain, at the time of her layoff her supervisor, Irma
Maxwell, told her that she was going to have to lay her
off for a little while.36 When McClain returned to the
plant on Friday to pick up her check she asked Maxwell
whether she should report for work the following
Monday. Maxwell replied in the negative and advised
McClain that she would be called when there was work.
It is clear from the record that this type of layoff with
expectation of eventual recall was not at all unusual at
Respondent's plant. Respondent's witnesses Don Fel-
senthal and Albert Chasen agreed that McClain was, in
fact, laid off for lack of work on March 21, 1979. Unem-
ployment records also reflect such a finding. In accord-
ance with historical precedent, I find that McClain,
being laid off for lack of work, was temporarily laid off
and had a reasonable expectation of recall, and was not
permanently laid off as Respondent later claimed.
3. The layoff of Carolyn Williams
Respondent's records reveal that Carolyn Williams
was initially hired on April 6, 1970, then laid off, and re-
hired four more times. Williams' last layoff was on April
3, 1979. Of the four times that Williams was laid off,
" McClain did not identify the other employees meeting with the
union representative on these occasions except for her sister Patsy Bly.
" These individuals included Chasen, one Richard Gibson, a company
official, not otherwise identified and Irma Maxwell, her supervisor
:" McClain testified that she had "participated a lot in union activities"
and that a few days before her layoff "Chasen and a few others" were
watching her through a window while she talked with a representative of
the Union. She intimated that it was because of her meeting with the rep-
resentative that she was laid off However, since she had been engaged in
similar activities since November 1977, I will give no weight to the
timing of the two events, i.e., her meeting observed by Chasen and her
layoff.
" Maxwell did not testify. McClain is credited.
three times were for lack of work. So Respondent's
records indicate. Each time she was told that she would
be called when needed. The personnel records also indi-
cate that the April 3 layoff was also for lack of work.
At the time of the April 3 layoff, Williams was work-
ing in the tops and bottoms department, as a machine op-
erator, for Glenda McCain. McCain told her that she,
Williams, would be off for a week. The following
Friday, April 6, when Williams went to the plant to pick
up her paycheck, Jonell Bennett advised her, as reflected
by the personnel records, that she was being laid off for
lack of work.3 7 Subsequently, Williams filed for unem-
ployment compensation. On the papers which she filed
on March 30, 1979, Williams wrote "lack of work" as
the reason for her layoff, just as she had been advised by
Bennett. On the Company's unemployment papers Ben-
nett wrote:
To whom it may concern:
There was work for her [Williams] 4-2-79. But she
had business at child support office, West Mem-
phis-Temporary lack of work starting 4-3-79. To
return to work Monday 4-9-79.
Bennett signed and dated the document 4-4-79. Thus,
Williams' description of events is supported by this docu-
mentation to the extent that as of April 4 she was expect-
ed to return to work on April 9, 1979. On April 13 Wil-
liams went to the plant to obtain a statement concerning
her layoff to be used to apply for food stamps. Bennett
supplied her with the requested document which stated:
"Carolyn Williams was laid off due to lack of work3 8
April 2, 1979."
Thus, the credited testimony of Williams and the Com-
pany's personnel records indicate that Williams was laid
off on April 3 for lack of work and there is no indication
that the layoff was for any other reason. Inasmuch as she
was told initially that she would be recalled, and, under
similar circumstances in the past, she and many other
employees had always been recalled, I find that her
layoff for lack of work was temporary in nature and that
there was a reasonable expectancy that she would be re-
called.
With regard to Williams' involvement in union activi-
ty, she testified credibly that she first became aware of
union activity at the plant in 1977. She wore a union
button, passed out announcements of one or more union
meetings, and attended said meetings. She, like Morton,
was listed as a member of the organizing in-plant com-
mittee. A copy of the list, as noted earlier, was supplied
to Respondent3 9 by the Union during the campaign.
" Bennett testified that initially she believed that Carolyn Williams,
Virgil Wright, Mary Dorsey, alleged discriminatees, and employee
Emma Walker were all expected to return to work on the following
Monday, April 9, but that after their layoffs she was told by Glenda
McCain that they were not to be put back to work on Monday, but were
to remain in layoff status. When Bennett broached the subject with
Chasen, he confirmed what McCain had said.
38 When Bennett was asked why she wrote "lack of work" she testified
that this was the usual entry made when there was a layoff However,
Respondent's records also contain other entnes.
39 Again, Chasen's statement that he did not know of her union activi-
ties and did not memorize all the names on the list is rejected as not
Continued
1134
EARLE INDUSTRIES, INC.
4. The layoff of Virgil Wright
Virgil Wright was originally hired on February 10,
1970; took maternity leave in 1970; was rehired in 1973;
was laid off for lack of work in 1976; was rehired on
August 1, 1977: and, according to Respondent's person-
nel records, was laid off on April 3, 1979, again for lack
of work. Wright worked in the tops and bottoms depart-
ment as a sewer under the supervision of Glenda
McCain.
When Wright was laid off in 1976 she was advised
simply by McCain that she was going to have to lay
Wright off for lack of work. No other explanation was
given. After the 1976 layoff Wright filed for unemploy-
ment and her claim was honored. When she returned to
work for Respondent in 1977 it was again as a sewer in
the tops and bottoms department under Glenda McCain.
On Monday, April 2, 1979, McCain told Wright that
she was going to be laid off for 4 days, that she was to
report for work Monday, April 9. However, when
Wright went to the plant on Friday, April 6, to pick up
her check, Bennett told her that she was laid of; or lack
of work and that she would be called back. Subsequent-
ly, Wright again filed for unemployment and her claim
was honored. On April 6 Bennett filled out Respondent's
copy of the unemployment report covering Virgil
Wright's layoff. On it she noted, "Temporary lay off.
Lack of work. To return to work Monday 4-9-79." Ben-
nett testified that the information placed on the unem-
ployment records was obtained from McCain who told
Bennett that Wright and the other employees laid off on
April 2 or 3 were only temporarily laid off for lack of
work and that they were to check back the following
Monday. Inasmuch as Virgil Wright was told initially
that she would be recalled, and under similar circum-
stances in the past she and many other employees had
always been recalled, I find that her layoff for lack of
work was temporary in nature and that there was a rea-
sonable expectancy that she would be recalled.
With regard to her union activities Wright testified
that she first became aware of the organizing campaign
in 1977. She participated personally in the campaign by
signing a union card, wearing a union button, and be-
coming a member of the union organizing in-plant com-
mittee. Her name, like Morton's and Williams', appeared
on the list of committee men and women supplied to Re-
spondent by the Union. I find, Chasen's testimony to the
contrary notwithstanding, that Wright was known to Re-
spondent as a union adherent.
5. The layoff of Mary Dorsey
According to Respondent's records Dorsey was origi-
nally employed in May 1973, laid off for lack of work in
April 1974, rehired in August 1975, quit in May 1975, re-
hired in June 1976, took maternity leave in August 1976,
rehired in July 1977, and laid off for lack of work on
April 3, 1979. Initially Dorsey was hired to work in the
tops and bottoms department, sewing under the supervi-
worthy of crediting. Respondent's management including Chasen. I find.
was fully aware of the names of those employees included on the hI1 of
in-plant organizing committee men and women.
sion of Glenda McCain, and worked there throughout all
of her employment with Respondent.
On the occasion of her first layoff Dorsey and two or
three other employees were told that they were being
laid off until work picked up at which time they would
be called back. She was. On Monday, April 2, 1979, just
before quitting time, McCain came around and told
Dorsey and the others that they would be off until the
following Monday, April 9, because work was slow.
When Dorsey came to the plant the following Monday
she went in to get her check. Bennett, at that time, told
her that she was laid off until further notice because
work was slow. Bennett assured Dorsey that she would
be called back. She never was recalled. I find, in accord-
ance with precedent, Respondent's records and the testi-
mony at the hearing, that Dorsey, like Williams and
Wright, was temporarily laid off with a reasonable ex-
pectancy of recall.
With regard to her involvement in union activity,
Dorsey testified that she first became aware of and began
to participate in the union organizing campaign in 1977.
She signed a union card, wore a pin, and attended union
meetings. Dorsey, like Morton, Wright, and Williams,
was a member of the in-plant organizing committee and
her name appeared on the union news letter which so
advised Respondent's management.
C. The Representation Case Proceedings Since the
Layoffs (Case 26-RC-5628)
On May 11, 1979, the Board issued its Supplemental
Decision and Direction of Second Election. Pursuant
thereto a secret-ballot election was conducted on June
22, 1979, among its production and maintenance employ-
ees. There were 48 votes cast for the Union and 47 votes
cast against it. There were 10 challenged ballots, suffi-
cient in number to affect the results of the election, and
objections to the election were filed thereafter by both
sides.
Among the 10 challenged ballots were those of the 5
alleged discriminatees herein, challenged by the Board
agent conducting the election on the grounds that their
names did not appear on the eligibility list. The Union
took the position that these five employees had been
temporarily laid off, had an expectancy of recall and
were therefore eligible to vote. The Respondent took the
position that they had been permanently laid off because
they were not meeting minimum production standards
excepting that McClain had been permanently laid off
with no reasonable expectancy of recall because of lack
of work and that all five were therefore ineligible to
vote. Respondent was able to take this position because
it decided to leave the names of the five union adherents,
the alleged discriminatees herein, off of the eligibility list
which issued, of course, some time after the issuance of
the Board's May 11, 1979, Supplemental Decision which
provided for a new election. The removal of the names
of these individuals from the eligibility list was the first
indication in the record that Respondent considered any
of these five employees to have been permanently laid
off. Prior to the issuance of the eligibility list by Re-
spondent, all indications were that they had been laid off
1135
DIECISIONS OF NATIONAL LABOR REL ATIONS HOARD
temporarily as they had in the past 40 with a reasonable
expectancy of being recalled as they also had been in the
past.
In a subsequent hearing of the issues, according to the
Regional Director's Report on Challenges and Objec-
tions the five challenged employees "testified, in sub-
stance, that they had been laid off for lack of work, but
were told that they would be called back, and three testi-
fied they were given specific dates to return; however,
on that date were told work had not, as yet, picked up."
This testimony, as reported in the Report on Challenges
and Objections, is consistent with the testimony of the
same five individuals in the instant proceeding.
According to the cited Report on Challenges and Ob-
jections, Donald Felsenthal testified that Williams,
Dorsey, Morton, and Wright were permanently laid off
for not meeting production standards, a procedure first
instituted in January 1979, to be utilized as a basis of se-
lection in the event of a layoff. Respondent's position
with regard to these four employees in the instant case is
consistent with its reported testimony during the repre-
sentation case. However, with respect to McClain the
Report on Challenges and Objections indicates that Fel-
senthal testified that McClain's production was about the
same as that of the other employees and so she was
chosen for permanent layoff because she was the newest
employee and the least versatile. In the instant proceed-
ing Respondent has taken the position that McClain is
eligible for recall.
The Report on Challenges and Objections noted that
the issues involved in the election of June 22, 1979, were
the same as those which had been before the hearing of-
ficer considering the challenges following the first elec-
tion wherein the parties stipulated that certain employees
were eligible to vote. It further noted that the Regional
file indicated that six of the employees challenged in the
first election had established a history of layoff and recall
and that these six employees, it was agreed by stipula-
tion, were therefore eligible to vote. One of the six em-
ployees who was found a temporary layoff because of
her history of layoff and recall and who was covered by
the stipulation was Morton. The report concluded that
since the history of employment of Williams, Dorsey,
Morton, Wright, and McClain indicated a pattern of
layoff and recall, they were seasonal employees with an
expectancy of recall and were therefore eligible voters.
It was recommended that the challenges to their ballots
be overruled and their votes counted. 41
The result of the conclusions and recommendations
contained in the Report on Challenges and Objections
which issued on August 3, 1979, if not excepted to,
would have been the counting of the five ballots of the
known union adherents and very probable victory for
the Union. Faced with this probability Respondent ex-
cepted to the report, and on March 3, 1980, the Board
issued its Second Supplemental Decision and Order4 2 in
' Though McClain's layoff on March 21, 1979. was her first layoff for
lack of work, she would fall into the same category as the others since
histoncally employees who were laid off for lack of work were later re-
called when work was available Indeed, McClain was recalled later.
*1 Other challenges and one objection remained unresolved
' 248 NLRB 67.
which it adopted the Regional Director's recommenda-
tions as to the overruling of the challenges to the ballots
of the five employees herein involved as well as two
others. On March 10, 1980, following the opening of
challenged ballots a revised tally issued which showed
that 53 cast ballots for, and 49 against, the Union. On
March 13, 1980, the Union was certified. Subsequently,
the Union requested Respondent to bargain and Re-
spondent refused contending that the Board erred in
adopting the Regional Director's recommendations with
respect to the challenged ballots. Counsel for the Gener-
al Counsel, on June 11, 1980, filed directly with the
Board a Motion for Summary Judgment. Respondent de-
fended on the grounds stated above. On September 11,
1980, the Board issued its Summary Judgment agreeing
with counsel for the General Counsel that Respondent
was raising issues which had already been considered
and resolved in the representation case.
The entire sequence of events, as reflected by that por-
tion of the record described above, indicates that Re-
spondent had, for 10 years or more, periodically laid off
employees when work became slow, and historically re-
called the same employees when work picked up again,
that in late 1978 and early 1979 it laid off five known
union adherents promising each one that she would be
recalled when work picked up, just as it had done in the
past. When on May 11, 1979, the Board ordered a
second election, and the same was conducted on June 22,
1979, Respondent for the first time took the position that
these five employees had been permanently laid off and
were therefore ineligible to vote. Since all available evi-
dence indicates that each of these employees was told
specifically that she would be called back when work
became available, and since Respondent's own records
indicate that Respondent intended to call them back and
since historically this had been the pattern in the past, it
would seem quite apparent, in light of these employees'
known union sympathies, that Respondent suddenly de-
cided just prior to the election to change its past practice
of recalling such employees and to convert their tempo-
rary layoffs to permanent layoffs in order to prevent
their ballots from being counted.4 ' Unless Respondent is
able to offer an explanation which can satisfactorily
overcome the prima facie case presented by the General
Counsel as supported by the above-described evidence, I
shall find that Respondent deliberately attempted to con-
vert the temporary layoffs into permanent layoffs in
order to disenfranchise prounion voters, thus not only
depriving them of their right to cast a ballot but also of
their right to reemployment in violation of Section
8(a)(3).
D. Respondent's Defenses
I. Early Morton
Respondent contends that Early Morton was perma-
nently laid off because she talked too much when em-
ployed as a bundle girl and did not produce sufficiently
as a sleeve girl. I have already discussed at great length
'. Ihese five votes clearly determined the outcome of the election.
After being counted, the final tally was 53 for the Union. 49 against the
Union, and 3 remaining nondeterminative challenges
1136
EARLE INDUSTRIES, INC.
both of these contentions. I have found that neither
reason is supported by record evidence. On the contrary
I find ample evidence to conclude that Morton was tem-
porarily laid off on November 24 for lack of work and
that it was only to keep her from having her ballot
counted that Respondent decided to convert the tempo-
rary layoff to a permanent one. The reasons proffered by
Respondent as grounds for her being permanently laid
off are, in my opinion, pretextual and I so find. Inasmuch
as the record indicates that Morton's old iob of bundle
girl has, since her layoff, been assigned to various other
employees,"44 Respondent has thereby failed and refused
to recall her for discriminatory reasons in violation of
Section 8(a)(l) and (3) of the Act.45
2. Carolyn McClain
From the above description of events it is clear that
McClain was laid off for lack of work and that, at the
time of her layoff, she could reasonably expect to be re-
called. It was not, again, until McClain attempted to vote
at the representation election that her status as an em-
ployee, temporarily laid off, came into question. At that
time her vote was challenged because her name had not
been included on the Excelsior list and Respondent took
the position that she had been permanently laid off for
lack of work with no reasonable expectancy of recall.
The record reveals no situation in the past where an em-
ployee who had been laid off for lack of work was told
that the layoff was permanent.
It is quite obvious that, whether or not work was
available, McClain could not be called back to work
after the election because Respondent had, as was the
case with Morton, converted her temporary layoff of
March 21, 1979, to a permanent layoff on June 22, 1979,
the day of the election. To call her back thereafter
would have been inconsistent with Respondent's posi-
tion. Nevertheless, Donald Felsenthal was examined on
the witness stand as to why she had not been recalled. In
answer he replied, "Ms. McClain had not returned to
even ask for a job," thus intimating that McClain had a
duty to check up from time to time to see if work were
available. Since Maxwell had told her, at the time of her
temporary layoff, that she would be called when there was
work, however, there appears no reason for intimating
that she had a duty to return to ask for a job.46 Fel-
senthal also intimated by his testimony that if McClain
had, in fact, returned and asked for a job she would have
been rehired. Thus, Felsenthal attempted to place the
entire problem on the shoulders of McClain who had no
" The names of employees Kay Bonds and Dorothy Atkins were re-
ferred to during the hearing in this connection Any failure of the parties
to reach an accommodation as to precisely when Morton would have
been recalled but for Respondent's unfair labor practice can best be re-
solved in a backpay hearing
" Though Jonell Bennett testified that Morton did not return to the
plant to seek employment after her layoff. I find the matter of little con-
sequence since the record indicates that historically Respondent would
call employees for recall when there was an opening Albert Chasen esti-
fled to as much
" Felsenthal admitted that in the past Bennett swould call employees in
layoff status to advise them that there were openings if they wished to be
recalled. Chasen testified that it is still Respondent's practice ti contact
laid-off employees to call them back to work
way of knowing whether or not there was a job opening
for her, and who could hardly be expected to call back
inquiring about work when only Respondent knew if
there were work available, when Respondent had in the
past called up to advise employees about available
work,4 7 and when Respondent had already promised to
call her when work became available. I find Donald Fel-
senthal's testimony on this subject matter disingenuous.
On August 3, 1979, the Region issued its Report on
Challenges and Objections recommending that the chal-
lenges to the ballots of seven employees, including that
of McClain, be overruled. It was presumably after this
report issued that McClain visited the plant and advised
Bennett that she wished to be recalled.
In September Chasen instructed Bennett to contact
McClain to have her report back to work. On September
6, 1979,48 she called McClain and asked her to return to
work. McClain advised Bennett that her home had
burned down, indicating thereby that she would have
difficulty reporting to work, but stated that she would
try to be in the following Monday, September 10.4 9 Ben-
nett agreed adding that, if McClain could not report for
work on Monday, she should call in and let her know.
On Monday, September 10, however, McClain did not
show up due to the difficulties created by the destruction
of her home and possessions. She did not call the plant
to advise management that she would not be reporting to
work. Rather, she sent a message to her supervisor
through her sister,50 Patsy Bly, who advised Irma Max-
"4 Jonell Bennett testified that upon direction from Chasen she would
call emplo, ees in layoff status to return to work Thus, historically it was
unnecessary for laid-off employees to visit the plant or call in to deter-
mine if work was available Donald Felsenthal similarly testified
t' Respondent offered a telephone bill to establish the date of the
phone call I %will rely on this bill as evidence rather than on the memory
of McClain or Bennetl, neither of whom demonstrated an exceptional
ability to recall dates
Bennett testified that she called McClain on two occasions. once before
the fire and once after her home burned down. McClain testified to only
one phone call and said that it was received after the fire She contends
that the only reason she was called at all was because Respondent was
aware that she would he unable to report to work since all of her posses-
sions had been destroyed in the fire. If Bennett had made two calls as she
testified to, one before the fire, this fact would clearly prove McClain's
contention invalid Since Respondent was clever enough to place the
telephone bill for September 6 in the recoud in order to prove that a
phone call was made to McClain on that day, it would certainly have put
the bill in the record for the first call if one existed to disprove McClain's
contention since that call was purportedly made to the same number and
would also have been recorded Since it did not do so. I will assume that
only one call was made
'. The content of this telephone conversation appears as testified to by
McClain W'here it differs from the testimony of Bennett who stated that
McClain definitely promised to report for work, McClain's testimony is
credited over Bennett's Since I have concluded that there was only one
phone call, I do not credit Bennett's statement that she called McClain
back on September 6 to offer her more time to report for work
0 According to McClain. it was not unusual for employees who ex-
pected to be absent to send in word of their expected absence through
relatives or friends I credit McClain's testimony on this point Bennett
agreed that at times she would accept the word of a relative or friend
corncernlig the absence of a coworker I find that McClain's statement
concerning her absence which was made through her sister to her super-
visor was accepted at the time without question The citing of the Com-
pany's rules in calling in was not brought to the attention of McClain or
her sister at the timen No indication of displeasure was manifested, and so
Respondent's reliance on the rules at the time of the hearing, I find to be
a mere afterthought
1137
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
well, McClain's supervisor, that McClain could not make
it to work that day. She told Maxwell that McClain
would be in when she got settled. She told her own su-
pervisor, "Maybe when she gets settled she'll come in."
There were no contacts between McClain and Re-
spondent's management or personnel office after Septem-
ber 10, 1979, for over 3 weeks. McClain did not call to
make arrangements to return or to determine if her job
were still available. Bennett did not call McClain to find
out what her intentions were. McClain's job, as far as the
record reveals, was not filled immediately. On October
2, 1979, however, an applicant came to the plant and was
hired to fill McClain's place.
On October 4, 1979, McClain visited the plant and
asked Bennett for her job. It had taken her almost a
month to get settled since she had no home, clothes, or
other possessions, and four children for whom to care
and provide, including some of school age. On this occa-
sion she also talked to Chasen about getting her job
back, but he51 informed her that it had been filled.
McClain asked Chasen to call her or advise her through
one of her relatives if a job opened up. She told him that
she was willing to take anything in the factory because
she needed a job. Chasen agreed to advise her when
work became available. The same day or on a later occa-
sion she also talked with her supervisor, Irma Maxwell,5 2
about getting her job back. Subsequently she also called
Bennett by telephone seeking reemployment.
According to Chasen, there have been no openings in
McClain's department since October 2, 1979. She is, nev-
ertheless, he testified, eligible for recall. Felsenthal testi-
fied likewise.
From the entire situation involving McClain, I find
that about the time of the election her temporary layoff
was converted to a permanent layoff, which conversion
is tantamount to termination. That conversion was done
solely for the purpose of influencing the outcome of the
election by disenfranchising an eligible voter. This type
of action has been found violative of Section 8(a)(l) and
(3) of the Act. Free-Flow Packaging Corporation, 219
NLRB 925 (1975); Elm Hill Meats of Owensboro. Inc.,
205 NLRB 285 (1973).
With regard to the recall of McClain on September 6,
I find that there is insufficient evidence to conclude that
the recall was not genuine or that if McClain had been
able to promptly report within a reasonable time thereaf-
ter she would not have been immediately employed.
There is no indication one way or the other in the
record whether other new employees were hired for a
job to which she should have been entitled between the
time she was made a permanent layoff and her recall of
September 6, or thereafter, except for the individual
hired on October 2.53 I shall leave the problem of pre-
" Chasen denied that he talked with McClain on this or any other oc-
casion. I credit McClain. Chasen denied knowledge of McClain's ever
having visited the plant at all to request work. In the face of Felsenthal's
admission that he was aware of her visit. I find Chasen's statement diffi-
cult to accept. Chasen in most of his testimony was singularly unpersua-
sive.
5" Maxwell did not testify.
" I have found that the employee hired on October 2 was legitimately
hired when McClain was unable to report.
cisely when McClain should have been recalled to the
compliance process or, if no accommodation is properly
reached, to the backpay stage of the proceedings.
3. Virgil Wright, Mary Dorsey, and Carolyn
Williams
Respondent contends that Wright, Dorsey, and Wil-
liams were permanently laid off on April 4, 1979, for fail-
ure to meet production standards. James Felsenthal, the
son of Respondent's president and its cost accountant,
testified that he began working on a regular basis at Re-
spondent's plant in September 1978 after obtaining a
degree in business administration. Shortly thereafter, ac-
cording to his testimony, he began looking at the pro-
duction records and noticed that certain operators were
consistently failing to produce the minimum wage. He
told his father about his findings and was told in return
to put it all down on paper and present it to him.
James Felsenthal testified that he followed his father's
direction, first analyzed the 1979 records, then the 1978
records, and prepared a summary of his findings which
was based on weekly averages of production for the
piecework operators in the tops and bottoms department.
According to James Felsenthal, after analyzing the pro-
duction figures he decided on a "minimum production
standard that he thought the company could live with."
This minimum production standard, $2.50,54 was, he tes-
tified, the product of various cost analyses, 55 including
Respondent's overhead, actual cost, and the difference
between the minimum wage and what the employees ac-
tually produced-the subsidies, as he termed it. This
figure was supposedly decided on in February 1979.
After arriving at the minimum production standard,
James Felsenthal testified that he made a list of employ-
ees who were not making or were barely making the
minimum standard and took this list to his father and fi-
nally convinced his father not to keep these unproduc-
tive employees. James Felsenthal testified that this meet-
ing with his father occurred toward the end of February
or early March 1979. After the discussion with his
father, J. Felsenthal stated he went to the supervisor and
asked her if she thought the least productive employees
on the list could improve their output.
Based on the $2.50 standard and his discussion with
the supervisor, J. Felsenthal testified, employees Hildia
Brown, Virgil Wright, Carolyn Williams, Mary Dorsey,
Emma Walker, and Faye Myers were terminated. 5 6 The
General Counsel does not contend nor does the com-
plaint allege that the terminations were violative of the
Act. On the contrary the General Counsel, as noted ear-
lier, contends that there were no terminations, merely
temporary layoffs.
5' rhe minimum production standard was raised to $2.70 with the in-
crease in 1980 of the minimum wage, according to Felsenthal
5" No documentary evidence was offered, nio worksheets or charts to
show how these analyses were prepared.
6 I hough J Felsenthal testified that he had the meeting with his
father in late February or early March at which the possibility of termi-
nating these employees was discussed, Respondent's own records indicate
that Brown and Myers no longer worked filr Respondent after February
9.
1138
EARLE INDUSTRIES, INC.
During the hearing it was pointed out to J. Felsenthal
that employee Louise Robbins was still employed by Re-
spondent although, according to the list supplied by him,
her production was below the minimum. J. Felsenthal's
explanation was that when he discussed Robbins with
her supervisor57 he was told that Robbins was basically a
repair girl who spent 75 percent of her time making re-
pairs and that this fact would reflect adversely on her
production though it was not her fault. The 1979 records
indicate that, although Robbins did not spend 75 percent
of her time doing repairs, she did spend a substantial
amount of time doing this work. Based on what the su-
pervisor allegedly told him, J. Felsenthal testified, Rob-
bins was retained.
Similarly, employee Mary Lee Childs, whose produc-
tion in 1978 was below the minimum standard, was re-
tained because her supervisor,"S as supported by Chasen,
said that she was "a very versatile girl, doing many dif-
ferent operations" who was switched around so much
that it interfered with her production."
James Felsenthal, while on the stand, was asked if the
existence of the new minimum production standard was
communicated to the employees. He stated that he did
not know, because he "wasn't present if it was." Similar-
ly James Felsenthal was asked if there was any publica-
tion or other documentation of the standard in existence.
Again James Felsenthal said that he "did not know if
there was or not." He added that he did not see any,
either posted or handed out. When asked whether it had
ever been communicated to employees that they were
subject to being laid off if they did not meet a standard,
James Felsenthal testified that he did not know if it had
been "put in those words." He added, without supplying
particulars, that he knew that the supervisor was con-
stantly after some people to get their production up.
This part of James Felsenthal's testimony is bother-
some for if one were to grant that an employer has a
perfect right to establish minimum production standards,
which I do, one must then ask why he would wish to do
so. The most obvious answer is that an employer estab-
lishes minimum production standards to insure greater
productivity. Thus, after establishing the minimum, the
employer must advise his production workers that he has
established the minimum production standard, and warn
them that they must produce at least the minimum or the
employer will terminate the nonproductive employees
and hire new ones who can produce at the standard. By
establishing the minimum production standard, an em-
ployer hopes to goad his employees to greater produc-
tion. But in the instant case J. Felsenthal supposedly
went through the trouble of analyzing Respondent's
overhead and its costs and synthesizing an entirely new
minimum production standard which would permit Re-
"7 The supervisor did not testify
" The supervisor did not testify.
" Although J Felsenthal was the one to discuss with the supervisors
the production of each employee and why, despite her lack ofr produc-
tion, she perhaps ought to be kept, he denied that he participated in the
decision to lay off any employees. According to J Felsenthal, he "just
presented all the facts, and the decision was made further on" Don Fel-
senthal. contrary to the testimony of his son, stated that the decision to(
terminate Dorsey, Wright, and Williams was made jointly by himself, his
son, and Chasen
spondent to determine which employees were productive
and which were not and then he did nothing to advise
them of its existence so that Virgil Wright, Carolyn Wil-
liams, and Mary Dorsey continued to operate in the
same fashion as they had for years, under the assumption
that their work was satisfactory.
If, on the other hand, the establishment of minimum
production standards had nothing to do with a desire to
increase standards but was to be a means of sandbagging
unsuspecting employees or was a mere afterthought, an
employer would not advise his employees of the exist-
ence of the standard. In the instant case it would appear
that since Respondent did not advise its employees of the
existence of the standard its purpose was not legitimate.
James Felsenthal was asked about the 1980 standards
and whether he was reviewing the production of the em-
ployees in the tops and bottoms department. He stated,
"I have been looking at them, but lately I've been in-
volved in another job to where I haven't really had time
to sit down and totally analyze it." Though he went on
to say that he looks at the averages every week, that Re-
spondent was getting much better productivity from all
of the employees, and that none were below the standard
for 1980, I nevertheless got the distinct impression that
Respondent's minimum production standard was a one
time thing, that it had accomplished its purpose, and that
it was no longer of particular interest.
Donald Felsenthal also testified at length with regard
to productivity and the keeping of records. He, in agree-
ment with his son, stated that Respondent "somewhere
around early 1979" started to break down the production
records so they could be analyzed. When this was done
four to six employees were found to be producing under
the minimum production standard. According to D. Fel-
senthal, before the early 1979 production analysis was
made, supervisors could tell if an operator was only
doing between 10 and 50 percent of production and
these operators would be let go. However, if an operator
was down only 18 or 20 percent the supervisor would
not detect that and so these "girls we were constantly
bringing in, rehiring, letting go when we don't need
them, rehiring when we needed them; those are the girls
that we finally, after we started keeping these records,
we finally decided that we're no longer going to keep
that level of operation, and we're going to go through
training programs in the future." The decision to let the
unproductive operators go was made in March 1979, D.
Felsenthal stated.
Donald Felsenthal testified that the minimum produc-
tion standard was increased in January 1980 to $2.90
from $2.50. An analysis of the 1980 records reveals that
two other employees besides Louise Robbins have failed
to produce at or above the minimum wage which indi-
cates again that the standards are not universally applied
if, in fact, they are still in effect at all.
Donald Felsenthal testified that in March 1979 it was
also decided that after letting the unproductive operators
go, if and when more operators were needed, if no pro-
ductive ones were available, a training program would
be instituted to train new employees. When D. Fel-
senthal was asked if anyone had, as of the time of the
1139
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing, undergone the training program, he said that
there was one person who had started it. When asked to
describe the training program, D. Felsenthal stated that
the individual undergoing training, Marilyn Forehand,
was doing shoe bags, closing, binding around, and zipper
work.' When asked how long the training period was to
last, he was unable to answer, stated only that "as long
as she shows improvement, we will continue to go along
with her." When pressed further as to how the training
was being done, D. Felsenthal explained that the supervi-
sor works with her but not constantly; rather the new
girl has to work a lot on her own to develop speed and
technique. When asked to be more specific as to whether
the supervisor works closer to 7 hours or closer to I
hour per day with the trainee, D. Felsenthal stated that
he could not answer that question. He then denied that
any training program had been developed, that Respond-
ent had just decided to bring in people to train. He
stated that the supervisor could teach girls to sew and
train them to do the operation. When asked if the super-
visor had been given any guidelines as to how the train-
ing program should be run, he replied that she had been
training girls for 15 years, whenever Respondent hired
girls who had not done sewing in the past. At this point
D. Felsenthal was asked how the current training pro-
gram differed from how training had been done in the
past, but was unable to answer directly. He simply stated
that whereas Respondent used to recall unproductive
employees such as Wright, Dorsey, and Williams it had
been decided instead to hire new inexperienced employ-
ees and train them.
Donald Felsenthal testified that the decision to lay off
Wright, Dorsey, and Williams"' was made in March to
be effectuated in April or whenever Respondent phys-
ically started to put merchandise in stock. He stated fur-
ther that, since their productivity had reached its maxi-
mum, they would not be recalled. He testified that he
reached the conclusion that these employees had reached
their maximum productivity by "asking enough questions
in the plant to make sure they were at their maxi-
mum. "62 "I wanted to make sure their productivity
was the best they could do." It was decided "to go into
training programs in the future" if new operators were
needed.
With regard to the minimum production standards, I
found Donald Felsenthal's testimony singularly uncon-
vincing in a number of particulars. First, that the produc-
tion of certain operators producing 18 to 20 percent
below what they should have been producing could go
undetected by supervisors for years is incredible in light
of the fact that each operator's daily output had been
written down on slips, handed in, and recorded. It
hardly takes an analytical genius or even one with an ac-
counting degree to simply add up the slips to determine
l Chasen identified Forehand as the wife of one of Respondent's oldest
employees who works in travel bags not shoe bags. He stated that she
previously worked for Respondent in the cutting room Forehand,
though considered perhaps a trainee was not, according to Chasen, treat
ed any differently than "trainees" had been treated in the past.
'1 Another employee, Emma Walker, not alleged as a discriminatee
was also scheduled for layoff at the same time.
s2 D Felsenthal testified that his questions were directed primarily to
Chasen.
who is producing and who is not.6 3 The fact is that Re-
spondent was aware for years who were the better pro-
ducers and who were not and nevertheless recalled the
poorer producers when it needed additional operators.
Similarly, D. Felsenthal's statement that he "asked
enough questions in the plant to make sure they were at
their maximum...." "I wanted to make sure their pro-
ductivity was the best they could do" is incredible in
light of the fact that he did not ask the producers them-
selves whether or not they were producing at their high-
est level. Quite obviously, Felsenthal could have cared
less whether or not they could increase their production
once it was determined at a later date that their status
should be "permanently laid off."
As for Don Felsenthal's statement that it was decided
to institute a training program, James Felsenthal testified
that Respondent has not instituted a training program.
According to James Felsenthal, Respondent is doing ba-
sically the same thing as it had done before; i.e., merely
having a supervisor sit down with a new operator and
instruct her as necessary. The original emphasis on a
new training program, much watered down in later testi-
mony, appears to be a mere window dressing urged to
make it appear more reasonable for Respondent to have
terminated experienced operators in favor of hiring inex-
perienced ones.
Al Chasen was also called by Respondent to testify
concerning the layoffs. He was asked whether Dorsey,
Williams, and Wright were informed at the time of their
layoffs that the layoffs were permanent. His reply was
that they should have been told by their supervisor,
Glenda McCain. Chasen testified that he told McCain
that Respondent could no longer use them, that it was
just too costly to keep them. Since McCain was not
called to testify in support of this alleged discussion,64 I
draw the adverse inference that McCain would not sup-
port Chasen's testimony. Chasen testified that it was his
intention to permanently lay off the three employees in
question plus one other, but could not remember when
the decision to do so was reached. Chasen's supposed
conversation with Glenda McCain is clearly contradicted
by the three discriminatees, one of whom testified that
McCain told her that she would be laid off for 4 days,
the second of whom testified that McCain told her that
she would be laid off for a week, and the third of whom
testified that McCain told her that she would be recalled.
Though Chasen testified that he told McCain that Re-
spondent could no longer use the three alleged discrimin-
atees, that it was just too costly to keep them, he ad-
mitted that he never spoke to any of the employees in
either the tops and bottoms department or in the hanger
department about their production. He testified that he
talked to the supervisor about that but once again the su-
pervisor, Glenda McCain, did not testify.
Concerning production standards, Chasen testified,
somewhat contrary to the Felsenthals, that Respondent
"really had standards all along;6 5 but there were times
s" Al Chasen testified that he always knew what the standard was by
the number of dozens turned out per day
s4 No reason was offered as to why she was not called to testify.
. They testified that there had been standards in the hanger depart-
ment but not in the tops and bottoms department
1140
EARI.t INDUSTRIES. INC
when we had to build up some production, and we
called in people who had some knowledge of it, rather
than start from scratch." Chasen then explained that, al-
though he had never instituted a specific standard, "ev-
erybody knew what they had to produce." He agreed,
however, that he never told an employee that she had to
produce or be fired. In describing Wright, Dorsey, and
Williams, he said that they were fair workers but not
productive workers and that they had been laid off and
rehired several times because when Respondent needed
production badly enough they were called back even
though they were slower than the others.
With regard to the magic figure, $2.50, which J. Fel-
senthal testified was the established minimum production
standard, the following testimony was adduced through
Chasen:
Q. The $2.50, do you know what that would
mean to an operator in the tops and bottoms depart-
ment?
A. It would be below what most of the others
were making-far below.
Q. All right. Was that a production standard; do
you know?
A. No, it was not.
Although Chasen simply may not have understood the
question, it would appear that the Felsenthals never ad-
vised him of the significance of the $2.50 minimum pro-
duction standard. Thus, the Felsenthals not only kept
this vital information from their operators, but they also
kept the plant manager in the dark about it.
Chasen testified further as to the standard in the tops
and bottoms department:
A. In the tops and bottoms the standard over
there, I know what the standards should be about.
Q. What is that standard?
A. Well, the standard would bring them up to
about, oh, in dozens, they would have to do about
16 dozens a day to meet a standard-14-16 dozen,
depending on the price-they would have had to
try to earn at least the minimum in dollars.
Q. You say that in the tops and bottoms depart-
ment, the production standard is between 12 and 16
bundles; is that right?
A. I haven't got a standard set as to how many
bundles.
Q. Is there any standard in the tops and bot-
toms. . .
A. No, there isn't. I don't know how many bun-
dles; I know there are girls that turn out anywhere
from, as you have just mentioned, 12, 14, 16, 18, 20,
22. . . .
Q. Okay. But, there is no production standard?
A. Not per se.
With regard to the "trainee program" Chasen was
anything but supportive of the Felsenthals.
Q. You have these people that are marginally
productive machine operators that don't meet these
standards?
A Yes.
Q. Okay. That have been laid off?
A. Yes.
Q. And, I believe you testified that if you need
some work, you'll even call back somebody to get
the work out?
A. Right. When we're hard up for production, I
will call them back, rather than start a trainee pro-
gram, which would be very costly-more costly
than even the loss we take on these.
Thus, Albert Chasen, the plant manager, testified that
rather than train new operators, the laid-off marginal em-
ployees are still recalled. Obviously, Chasen was never
made aware of Respondent's alleged change in policy. I
find his testimony most destructive to Respondent's posi-
tion.
At the risk of belaboring the point, there is also the
following testimony of Chasen:
Q. Have you ever instituted a training program at
Earle Industries?
A. No, not really.
Q. Has there ever been a discussion regarding a
training program at Earle Industries.
A. No....
This is the individual who oversees the progress of em-
ployees at the plant and who decides that, if they show
no progress, "he will have to let them go." Thus, from
his own testimony it would appear that, if anyone knows
about production at the plant, it is Chasen, for he is in
charge. Yet, the Felsenthals never discussed with him
the planned "training program" for the future. That is in-
credible!
Respondent called Jonell Bennett to testify concerning
production, primarily for the apparent pupose of explain-
ing that Louise Robbins was kept on the payroll despite
poor production because she had been engaged in repair
work much of the time so that her total production or
lack thereof would not truly reflect her ability to pro-
duce. This, it was hoped, would show that there was no
disparate treatment as between Robbins and the three al-
leged discriminatees laid off on April 6. However, when
Bennett was through explaining by means of several sets
of 1979 timecards 6 how Robbins had been engaged in
repair work much of the time, she was then subjected to
cross-examination with regard to these same timecards. It
then came out in her testimony that one employee whose
production was being compared to that of the three dis-
criminatees had failed to make production 11 of the 13
weeks6 7 she worked in production and that Louise Rob-
bins failed to make production during any of the 12
weeks she worked on production. Moreover, by using
the information offered during Bennett's testimony and
analyzing the timecards, it becomes apparent that Rob-
t he tirmecards ofr only fi'te empltoyee' ,ere offered into evidence
' Iwio 'al eeks were spent solely on repair
1141
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bins' production, though better than Williams', was much
poorer than Wright's or Dorsey's.6 8 There is, therefore,
disparate treatment since Robbins was kept working de-
spite the fact that her piecework production was poorer
than two of the three discriminatees claimed to have
been permanently laid off for failure to meet production.
One might also infer that the reason that Robbins was
put on repair work so much is that she was not produc-
tive on piecework.
All three of the employees laid off on April 3-4, 1979,
were called to testify with regard to their production
and production in general. Virgil Wright was called to
the stand and testified that she did not make production
between 1969 and 1979 except for about a month before
she was laid off.69 She denied that she had an opportuni-
ty to make production because she was put on repairs.
She testified further that, when she was doing repairs,
none of the other employees were doing repairs. When
Wright was asked when it was that she had been doing
repairs, she replied that it was in 1976, 1978, and 1979
No records were offered by Respondent to dispute her
claim as to 1976 or 1978, nor were witnesses called to
contradict her with regard to her claim insofar as these
years are concerned. I therefore credit her testimony.
Respondent's records, i.e., timecards, were introduced by
Respondent showing which operations Wright per-
formed in 1979. These reveal no evidence that Wright
performed any repair work in 1979. Similarly, no wit-
nesses were called to support Wright's testimony on this
score. 7 I find therefore that Wright performed no repair
work in 1979 as she had done previously.
When asked why she failed to make production during
periods when she was not assigned repair work, Wright
testified that this was because she was not permitted to
continue to work on a single operation but had her work
changed on her, and she lost time changing the color of
the thread she had to use. She admitted, however, that
other operators had their work changed as well, 71
though the operators who made production asked for
whatever they wanted to sew and refused other work.
This testimony was substantiated by Morton who
worked as floorgirl supplying the operators. According
to Morton, "The fastest girls in the plant . . . certain
girls in the plant, I don't care what you'd do, they would
not sew it, they'd say, I'm not sewing it . . . and we'd
have to take it up . . . it was certain girls in that plant, if
they didn't want to sew what-they got choice work."
Thus, Wright's testimony was supported by Morton's to
" The code 10-03 appearing on the employees' timecards indicates the
difference which Respondent had to pay to the particular employee for
her failure to make production during a given week By dividing that
sum (loss to the Company) by the total number of hours worked on
piecework during that particular week, one can arrive at the cost per
hour to the Employer caused by that employee's failure to make produc-
tion while doing piecework.
6" Company records (G.C. Exh 13) indicate that Wright exceeded the
$2.50 mark during the weeks of February 16, March 2, March 9, and
April 6. D. Felsenthal admitted that the records were accurate
0O Mary Dorsey testified that Wright did repairs but did not testify as
to when she did them.
?" Gladys Conners confirmed this statement in her testimony.
the effect that production was influenced by the opera-
tor's willingness to accept or refuse assigned work.72
Wright testified that she was never told that she had
to produce a minimum standard. She usually produced
eight or nine bundles per day and she considered that to
be her standard. In this regard, Wright credibly testified
that she had never been counseled for bad performance.
She was never told that she was not making standard or
that her productivity was low.
Mary Dorsey testified with regard to her production
that she was never told by any supervisor either that she
was a bad worker or that her productivity was low. She,
unlike certain other employees, was apparently not inter-
ested in pushing for greater production since she never
bothered to figure out in advance what her expected
weekly paycheck might be based on the piece rates. Nor
did she discuss with other employees their earnings
based on production. She was aware, of course, that her
income could be increased by increasing her production,
but only did her best, never questioned whether or not
she was receiving the proper amount, but "just worked
and got my check." She received the minimum wage
since she did not make production.
Though Dorsey did not produce sufficiently to receive
above the minimum wage, she did produce above the
minimum production standard of $2.50 during 1979.
During the week of January 12 her production was
$2.52, for February 2-$2.51, for February 16-$2.76, for
March 2-$2.61, and for March 9-$2.52. Donald Fel-
senthal admitted that Dorsey did, in fact, exceed the pro-
duction standard during these weeks.
Carolyn Williams testified that in 1979 she was paid
$2.90 per hour, the minimum wage. She testified also
that she had never been told by any supervisor at the
plant that she was a bad worker or counseled or taken
into the office and talked to about her productivity. Re-
spondent's records indicate that during the week ending
March 2 Carolyn Williams' production level was at
$2.52, that during the week of March 9 it was also at
$2.52, and that during the week of March 16 she worked
at a production level of $2.62. Donald Felsenthal con-
firmed in his testimony that Williams' production was
above standard during these periods.
In summary, Respondent's position with regard to
Wright, Dorsey, and Williams is that they were perma-
nently laid off on April 3-4 because they were unable to
meet production standards. This was the testimony of
both the Felsenthals and Chasen. To support this posi-
tion Respondent's witnesses testified that James Fel-
senthal established a $2.50 minimum production standard
and thereafter convinced his father, Donald Felsenthal,
to terminate those employees who were unable to con-
sistently make the minimum standard unless there was a
"' If Respondent's management were interested in increasing produc-
tion, its members could have asked for an explanation from the operators
why certain of them produced more than others. This explanation, un-
controverted, could have been of value to them in determining the rea-
sons for the differences Respondent's management did not bother to in-
sestigate. Rather, decisions to permanently lay off certain employees
were made without first determining why differences in production exist-
ed. This, in my view, is evidence, not of a desire to increase production.
but of a different motive.
1142
EARLE INDUSTRIES, INC
legitimate reason why they were unable to do so. To de-
termine whether there was some legitimate reason to
keep an unproductive employee, J. Felsenthal testified
that he discussed the matter with Supervisor Glenda
McCain. He also supposedly asked her opinion as to
whether she thought any of the less productive employ-
ees were capable of improving their output. Based on the
minimum production standard and the report of Glenda
McCain, Respondent contends that it permanently laid
off Wright, Dorsey, Williams, and three other individ-
uals.
I cannot and do not accept Respondent's position as
credible. I find that Wright, Dorsey, and Williams were
laid off temporarily with the full expectation of being re-
called at a later date when work picked up. All of Re-
spondent's own personnel records and other documenta-
tion clearly reflects this to be the case. This is what the
three discriminatees were told and there is no evidence
to the contrary in the documentation or in statements
made to them at the time of their layoffs. Indeed, pro-
duction or lack thereof was never a consideration in the
decision of management to lay them off nor was there
any indication given at the time that the layoffs were
permanent.
I consider Respondent's minimum production standard
a device synthesized at a later date in order to support its
position with regard to its challenges to the ballots of
Wright, Dorsey, and Williams in order to undermine the
Union's majority status in violation of Section 8(a)(l) and
(3) of the Act. I find Respondent's contention that it per-
manently laid off Wright, Dorsey, and Williams because
they failed to meet the minimum production standard un-
worthy of crediting for the following reasons:
I. James Felsenthal's description of how he arrived at
the $2.50 minimum production standard was too superfi-
cial, lacked documentation, and appeared more conclu-
sionary than scientifically economic.
2. James Felsenthal's purported discussion with Glenda
McCain concerning why Dorsey, Wright, and Williams
should be terminated while other even less productive
employees should be kept was never corroborated by Su-
pervisor McCain. I therefore draw the adverse inference
that McCain would not have supported James Felsenth-
al's testimony if called upon to do so.
3. No one from management ever discussed with the
operators the so-called newly instituted minimum pro-
duction standard, documented its existence, or communi-
cated it to its employees, an obviously necessary step if
Respondent hoped by the institution of the new system
to increase production.
4. No one from management ever told Wright,
Dorsey, or Williams at the time of their layoffs that they
were being permanently laid off but, on the contrary,
management told them that their layoffs were temporary
and that they would be recalled.
5. Other employees, e.g., Robbins and Childs, who
also failed to make the minimum productive standard
were retained while Wright, Dorsey, and Williams were
laid off. If failure to produce the minimum standard were
the reason for the layoffs, they all would have been ter-
minated. Despite Respondent's claim to the contrary, the
fact that Robbins did some repair work had nothing to
do with her failure to produce at the minimum standard
for the records for repair work and for piecework were
separately kept and, even when Robbins was on piece-
work alone, she did not make the minimum production
standard. Robbins, in fact, produced at a rate even lower
than either Wright or Dorsey but was nevertheless re-
tained.
6. Similarly, employee Childs was also retained despite
her failure to produce at or above the minimum produc-
tion standard and, although Respondent claims that she
was kept because her supervisor said she was versatile,
her supervisor, Glenda McCain, was never called to tes-
tify to this fact on the stand. Here also an adverse infer-
ence is warranted and drawn.
7. Once Respondent utilized the minimum production
standard as a basis for claiming that Wright, Dorsey, and
Williams had been permanently laid off and were ineligi-
ble to have their ballots counted, James Felsenthal and
Respondent seemed to have lost interest in its continued
implementation, thus indicating that its purpose was lim-
ited to its immediate use as a pretext. In 1980 three em-
ployees who produced below the minimum production
standards were retained by Respondent without explana-
tion.
8. Felsenthal's testimony that supervisors could not
detect the fact that Wright, Dorsey, and Williams were
not productive until the February 1979 analysis was
made is patently absurd. Since production slips were
always used to record each employee's production, it is
quite obvious that Respondent was aware for years that
Wright, Dorsey, and Williams were among the poorest
producers but nevertheless rehired them over and over
again whenever there was a need for additional produc-
tion because it was, as Chasen testified, cheaper than
training completely new employees. Clearly, from the
evidence discussed above, Respondent in April 1979 in-
tended to do exactly the same thing again, i.e., to lay
them off and recall them later. It was only in June 1979
when they tried to cast their ballots that Respondent at-
tempted to convert the earlier temporary layoffs to per-
manent layoffs that Respondent questioned their produc-
tion and attempted to argue that it became aware for the
first time that they were not Stakhonovites.
9. The testimony of Donald Felsenthal to the effect
that a training program was planned for the future
whereby new employees would be hired and trained in-
stead of Respondent rehiring older less productive em-
ployees, as was done in the past, is not credited. The
training program was, in my opinion, offered solely as a
means to give credence to Respondent's otherwise unten-
able proposition that it planned no longer to rehire expe-
rienced sewers but to hire totally inexperienced person-
nel, then train them to be producers. Felsenthal's testi-
mony was inconsistent throughout his discussion of the
planned training program until he finally admitted that
no such training program had been implemented and
what little training that was being done was, in fact, no
different from under the old system. His admission that
the so-called training program was never discussed with
the plant manager clearly indicates that the concept of a
1143
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
new training program was an imagined one used by Re-
spondent as window dressing.
10. Felsenthal's position that he had reached a legiti-
mate conclusion that Wright, Dorsey, and Williams had
reached their maximum productivity is patently unten-
able since the means he allegedly used is clearly facti-
tious. Thus, he claimed that he had reached this conclu-
sion by "asking enough questions" around the plant, pre-
sumably from Chasen, yet he never asked the operators
themselves why they were not producing more nor told
them they were subject to termination unless they im-
proved their production. Moreover, an analysis of their
production throughout 1979 would suggest that the op-
posite conclusion should have been drawn for sometimes
these employees produced in excess of the minimum pro-
duction standard and at other times they did not. This
fact suggests that under certain conditions they could
produce far more than under other conditions. If Fel-
senthal were primarily interested in increasing produc-
tion, he could have asked them why their production
varied from one week to another. One must conclude
that increased production was not a consideration but a
mere afterthought.
11. Respondent failed to call Glenda McCain to testify
to support Chasen's self-serving testimony that he told
her at the time of the layoffs that they were permanent. I
draw the adverse inference that, had McCain been
called, she would not have corroborated Chasen. Simi-
larly, failure to call her to confirm his self-serving testi-
mony that the two of them had discussed the production
of the laid-off employees convinces me that no such dis-
cussion took place.
12. Chasen, the plant manager who was in charge of
production, never told the laid-off employees to either
produce or face termination.
13. Chasen testified that unproductive employees were
historically rehired because it was cheaper than training
new employees and there is absolutely nothing in the
record to indicate that, at the time of the layoffs, Re-
spondent did not intend to continue this policy.
14. All of the documentation from Respondent's per-
sonnel files indicate that Wright, Dorsey, and Williams
were laid off for lack of work.
15. Chasen contradicted the testimony of the Felsenth-
als by admitting that there was no $2.50 minimum pro-
duction standard or any other specific standard in the
tops and bottoms department. His testimony means that
the Felsenthals made up the existence of the minimum
production standard out of whole cloth after the layoffs
or simply never bothered to tell the plant manager, the
individual in charge of production, of its existence. The
latter's possibility is an absurdity. The former makes
sense if the manufacture of the minimum production
standard after the layoffs was a pretextual conception in-
vented to provide an appearance of legitimacy for Re-
spondent's challenge to the ballots of the prounion em-
ployees at the representation election. I conclude that
this is what happened.
After Respondent unlawfully converted the temporary
layoffs of Wright, Dorsey, and Williams to permanent
layoffs, all three sought reemployment with Respondent.
Wright73 went to the plant on two occasions and spoke
to Bennett to see if work was available. On both occa-
sions Bennett stated that Respondent was not hiring at
the time. She did not tell Wright either that she had been
permanently laid off or that she would never be recalled
or rehired. Since I have rejected Respondent's position
that Virgil Wright was permanently laid off for lack of
production, but on the contrary was temporarily laid off
for lack of work with an expectation of recall, and since
it has historically been Respondent's practice to contact
laid-off employees when work was available rather than
necessarily requiring them periodically to visit the plant
to request rehiring, I find that it was and is unnecessary
that Wright continue to visit the plant to seek employ-
ment. I shall recommend that Respondent take the initia-
tive to recall Wright for reemployment as soon as work
becomes available and to do so immediately if work has
already become available since her temporary layoff.
Mary Dorsey testified that after her layoff in April
1979 she went to the plant once and telephoned twice
seeking employment. When she visited the plant she
spoke with Jonell Bennett and when she called she did
not inquire as to whom she was speaking. As with the
case of Virgil Wright, I have found that Mary Dorsey
was temporarily laid off with an expectation of recall.
For reasons already stated, I find it unnecessary for
Dorsey to continue to physically and actively inquire
about the availability of employment at Respondent's
plant, but shall recommend that Respondent be required
to take the initiative to recall Dorsey for reemployment
as soon as work becomes available and to do so immedi-
ately if work has already become available since her tem-
porary layoff.
Carolyn Williams visited the plant once seeking reem-
ployment since her layoff in April 1977, and telephoned
about three times. Each time she spoke with Bennett7 4
who advised her, in reply to her request for employment,
simply that Respondent was not hiring at the time. No
mention was made to Williams that she had been perma-
nently laid off or fired, nor was she told that she was not
eligible to be rehired.
Once again, as with Wright and Dorsey, I find it un-
necessary that Williams should have to continue to in-
quire about reemployment. Rather, I shall again recom-
mend that Respondent be required to take the initiative
and contact Williams to offer her reemployment as soon
as work becomes available and to do so immediately if
work has already become available since her temporary
layoff in April 1979.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent as set forth in section III,
above, occurring in connection with the operations of
73 Bennett testified that Wright may have come back to the plant to
seek employment but was not certain. Chasen testified that as far as he
knew none of the "permanently laid off employees" ever came back to
seek employment.
" Bennett's testimony that she received no calls from Wright, Dorsey,
or Williams is not credited in light of Williams' statement to the contrary.
Bennett could not recall Williams visiting the plant to seek reemploy-
ment.
1144
EARLE INDUSTRIES, INC.
Respondent as set forth in section I, above, have a close,
intimate and substantial relationship to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. Earle Industries, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By converting the temporary layoffs of Early
Morton, Carolyn McClain, Virgil Wright, Mary Dorsey,
and Carolyn Williams to permanent layoffs in order to
prevent their favorable votes for the Union, Respondent
thereby has terminated their employment and has violat-
ed Section 8(a)(3) and (1) of the Act, as amended.
4. Respondent has not violated Section 8(a)(4) of the
Act.
THF RFMFDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3), of
the Act, I shall recommend that it be ordered to cease
and desist therefrom and to take appropriate and affirma-
tive action designed to effectuate the policies of the Act.
In particular, as I have found that employees Early
Morton, Carolyn McClain, Virgil Wright, Mary Dorsey,
and Carolyn Williams were permanently laid off in viola-
tion of the Act and thereby discriminatorily terminated, I
shall recommend that Respondent be required to offer
them full and immediate reinstatement, with backpay and
interest thereon to be computed in the manner prescribed
in F W Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (1977). 75
Upon the toregoing tindings of tact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 76
The Respondent, Earle Industries, Inc., Earle, Arkan-
sas, its officers, agents, successors, and assigns, shall:
?s See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962)
76 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
1. Cease and desist from permanently laying off or
otherwise discriminatorily terminating employees in
order to prevent them from casting their ballots in Na-
tional Labor Relations Board union representation elec-
tions or in any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Early Morton, Carolyn McClain, Virgil
Wright, Mary Dorsey, and Carolyn Williams immediate
and full reinstatement to their former jobs, or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and make them whole for their loss of earn-
ings in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its offices in Earle, Arkansas, copies of the
attached notice marked "Appendix." 77 Copies of said
notice, on forms provided by the Regional Director for
Region 26, after being duly signed by Respondent's au-
thorized representative shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
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 cov-
ered by any other material.
(d) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order. what
steps have been taken to comply herewith.
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.
" 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 L abor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National L abor Relations Board."
1145