Georgia Hosiery Mills

National Labor Relations Board - Board Decisions

Dec 11, 1973

207 N.L.R.B. 781 (N.L.R.B. 1973)

GEORGIA HOSIERY MILLS 781
Georgia Hosiery Mills and Textile Workers Union of
America, AFL-CIO. Case l0-CA-9851
December 11, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On April 17, 1973, Administrative Law Judge John
P. von Rohr issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge to
the extent consistent herewith.'
The Administrative Law Judge found, and we
agree , that, by threatening plant closure if its
employees elected to be represented by a union, and
coercively interrogating an employee concerning his
union activity, Respondent violated Section 8(a)(1)
of the Act. We also agree that Respondent discrimi-
natorily discharged H. L. Studdards in violation of
Section 8(a)(3) and (1) of the Act. We find, however,
contrary to the Administrative Law Judge, that
Respondent further violated Section 8(a)(1) of the
Act, as fully set forth below, by temporarily
discharging Virgie Cornett and by a remark made by
Dewel Dempsey to H. L. Studdards.
Respondent is engaged in the finishing of hosiery
products in Cave Spring, Georgia. On October 4,
1972, approximately 10 of its 25 employees engaged
in a work stoppage over working conditions and
wages after Respondent's president, Middleton,
informed all the employees that a wage increase
could not then be afforded. The 10 employees
proceeded to circulate throughout the plant where
they talked about union representation to the
employees who had returned to work. Later that day
the 10 employees approached Middleton in his office
and again made demands for a wage increase and
better working conditions, mentioning at this time
that they might take steps to bring a union into the
plant. Reacting to this, Middleton threatened that he
1 The Decision of the Administrative Law Judge is hereby corrected.
2 Member Kennedy would not find an 8(aXl) violation as to the
discharge of Virgie Cornett . In agreement with the Administrative Law
Judge, Member Kennedy finds Respondent's reinstatement of Cornett, less
than 1 hour after her discharge, to be so substantial a remedy as to present a
207 NLRB No. 117
would shut down the plant before he would have a
union, a threat which has been found, as noted
above, to be violative of Section 8(a)(1) of the Act. In
all of these activities, the employees were led by
employee Virgie Cornett.
The following morning employees arriving for
work found the gate to the plant locked. They were
told by the chief of police and by Respondent's
supervisor, Dempsey, that they could proceed to
work, but that Virgie Cornett could not, as she had
been fired. None of the employees went to work.
Within an hour, however, Virgie Cornett was rehired
at Middleton's direction and all the employees
proceeded to go to work.
The Administrative Law Judge found that it was
unnecessary for him to decide whether Cornett's
termination was for reasons proscribed by the Act or
whether Respondent was lawfully justified in dis-
charging Cornett on the ground that she had engaged
in unprotected activity on October 4. The Adminis-
trative Law Judge concluded that, assuming arguendo
that Cornett's 'discharge was violative of the Act,
Respondent's conduct in the firing of Cornett was at
best a de minimis or isolated violation, and, under the
rationale of American Federation of Musicians, Local
76, AFL-CIO, 202 NLRB 620, he dismissed, the
8(a)(1) allegation of the complaint as to Cornett. We
disagree .2 The cited case involved a single, isolated
threat, allegedly violative of Section 8(b)(1)(B), which
was rescinded before any action was taken and hence
was substantially remedied before the complaint
therein issued. In the instant case, however, Cornett
was discharged the day after she had engaged in
activities which, as discussed below, are protected,
concerted activities. While her, termination may have
been substantially remedied, it occurred during a
course of events involving other violations of the Act.
We are therefore of the opinion that the cited case
involving an isolated act is distinguishable from the
present case.
With regard to the merits of the Cornett discharge,
we note Respondent's assertion that Cornett was
discharged only because she had "been through the
mill disrupting work during work hours." However,
the evidence discloses that, contrary to Respondent's
assertion, the activity of Virgie Cornett was not
disruptive. Thus, Middleton admitted, on cross-
examination, that Cornett's activity, in talking took a
"very short" time and that the employees she
allegedly disrupted did not stop working while they
were talking.
situation which does not warrant a Board remedy, even assuming arguendo
that a violation was committed Member Kennedy would not, therefore,
reach the question of whether Cornett was discharged for engaging in
protected, concerted activities
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since the testimony does not reveal any disruptive
activity, and since the reason for Cornett's discharge
is concededly based on her conversations in the mill
with other employees about their working conditions
and possible union representation, it is plain that she
was discharged for engaging in concerted activity
relating to the terms and conditions of employment
of herself and her fellow employees. Such concerted
activity is, of course, protected by Section 7 of the
Act and we therefore find that, by firing Virgie
Cornett for engaging in protected, concerted activity,
Respondent violated Section 8(a)(1) of the Act.
We further find, in disagreement with the Adminis-
trative Law Judge, that Respondent, through Super-
visor Dewel Dempsey, violated Section 8(a)(1) of the
Act in the course of a conversation which Dempsey
had with H. L. Studdards on Sunday, October 8,
1972. That morning Dempsey drove to Studdards'
home and told him that he had been fired. As noted
above, Studdards' discharge was unlawful. When
Studdards asked why he had been discharged,
Dempsey replied that he didn't know, unless it was
Studdards' signing of a union card. Dempsey added
that Studdards could probably get his job back if he
would get his union card back. It is a clear violation
of the Act for an employer to condition an
employee's reinstatement on his abandoning the
union since that directly interferes with the right of
the employee to choose a collective-bargaining
representative free of employer coercion. We so find
here.
THE AMENDED REMEDY
Having found that Respondent engaged in unfair
labor practices in addition to those found by the
Administrative Law Judge, we shall order Respon-
dent to cease and desist therefrom and take the
additional affirmative action necessary to effectuate
the purposes of the Act.
We have found, in addition to those violations
found by the Administrative Law Judge, that the
temporary discharge of Virgie Cornett and the
October 8 comments made by Dempsey to Studdards
constitute violations of Section 8(a)(1) of the Act. We
shall therefore order that Virgie Cornett be made
whole for any loss she may have suffered in the same
manner as set forth in the "Remedy" section of the
Decision of the Administrative Law Judge.
AMENDED CONCLUSIONS OF LAW
1. Respondent is engaged in commerce and the
Union is a labor organization within the meaning of
the Act.
2. By discriminating in regard to the hire and
tenure of employment of H. L. Studdards, thereby
discouraging membership in the Union, Respondent
has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and
(1) of the Act.
3. By firing Virgie Cornett and otherwise interfer-
ing with, restraining, and coercing its employees in
the exercise of rights guaranteed by Section 7 of the
Act, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
5. Respondent has not engaged in unfair labor
practices within the meaning of Section 8(a)(3) and
(1) of the Act by its termination of Debra Garrett
and Barbara L. Johnson.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Georgia Hosiery Mills, Cave Spring, Georgia, its
officers , agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Threatening employees that it will close the
plant because of their union activities.
(b) Interrogating employees concerning their union
activities and sympathies in a manner constituting
interference, restraint, and coercion.
(c) Making abandonment of union activity a
condition precedent to reinstatement.
(d) Discharging, or otherwise discriminating
against, any employee because of activity on behalf
of, or membership in, Textile Workers Union of
America, AFL-CIO, or any other labor organization.
(e) Discharging any employee for engaging in
protected, concerted activities, or in any other
manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed in
Section 7 of the Act, as amended.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to H. L. Studdards immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make him whole in a manner set forth
in the section of this Decision entitled "The Amend-
ed Remedy."
(b) Make Virgie Cornett whole, in the manner set
forth in the section of this Decision entitled "The
Amended Remedy," for any loss of earnings she may
have suffered by reason of the action taken against
her.
GEORGIA HOSIERY MILLS 783
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its plant in Cave Spring, Georgia, copies
of the attached notice marked "Appendix." 3 Copies
of said notice, on forms provided by the Regional
Director for Region 10, after being duly signed by
Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaft-
er, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
3 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in
Textile Workers Union of America , AFL-CIO, or
any other labor organization , by discharging or
otherwise discriminating against our employees
because of their union or concerted activities.
WE WILL NOT threaten our employees with
closing the plant if they select the above-named
Union, or any other labor organization , as their
collective-bargaining representative.
WE WILL NOT coercively interrogate our em-
ployees concerning their union activities or
sympathies.
WE WILL NOT make abandonment of union
activity a condition of reinstatement.
WE WILL offer H. L. Studdards immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent
position, without prejudice to his seniority or
other rights and privileges , and make him whole
for any loss of pay he may have suffered as a
result of the discrimination against him.
WE WILL NOT discharge any employee for
engaging in protected, concerted activities, or in
any other manner, interfere with, restrain, or
coerce our employees in the exercise of their right
guaranteed them in Section 7 of the Act, as
amended.
WE WILL pay Virgie Cornett for any wages
which she lost because of her discharge.
GEORGIA HOSIERY MILLS
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Peachtree Building, Room 701, 730
Peachtree Street, NE., Atlanta, Georgia 30308,
Telephone 404-526-5760.
DECISION
STATEMENT OF THE CASE
JOHN P. voN RoHR, Administrative Law Judge: Upon a
charge and amended charges filed on November 6 and 10,
1972, and on January 9, 1973, respectively, the General
Counsel of the National Labor Relations Board, by the
Regional Director for Region 10 (Atlanta, Georgia),
issued a complaint on January 11, 1973, against Georgia
Hosiery Mills, herein called the Respondent or the
Company, alleging that it had engaged in certain unfair
labor practices in violation of Section 8(a)(3) and (1) of the
National Labor Relations Act, as amended, herein called
the Act. The Respondent filed an answer denying the
allegations of unlawful conduct alleged in the complaint.
Pursuant to notice, a hearing was held before Adminis-
trative Law Judge John P. von Rohr in Rome, Georgia, on
February 6, 7, and 8, 1973. Briefs were received from the
General Counsel and the Respondent on March 7, 1973,
and they have been carefully considered.
Upon the entire record in this case, and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Georgia corporation with its
principal office and place of business located at Cave
Spring, Georgia, where it is engaged in the finishing of
hosiery products . During the year preceding the hearing
herein, Respondent sold and shipped finished products
valued in excess of $50,000 to points and places located
outside the State of Georgia . Respondent concedes, and I
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find, that it is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America, AFL-CIO, isa labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The principal issues in this case are whether Respondent
violated Section 8(a)(l) and (3) of the Act by its
termination of employees Barbara L. Johnson (referred to
in the complaint as Louise Johnson) and Debra Garrett on
October 27, 1972. It is further alleged that employee Virgie
Cornett was briefly terminated on October 5, 1972, in
violation of Section 8(a)(1) of the Act. Additionally, the
complaint alleges that Respondent engaged in various
other acts and conduct independently violative of Section
8(a)(1).
B. The Events of October 3 and 4, 1972
Respondent's plant is staffed with approximately 25
production employees. Prior to the events material hereto,
these employees (most of them females) were not repre-
sented by any collective-bargaining agent and were paid
largely on the basis of the minimum hourly wage rate.
Preliminarily, it is noted that there is a dispute concern-
ing the supervisory status of Dewel Dempsey, employed by
Respondent for 12 years. Dempsey spends a substantial
part of his time in the dyeroom where he is engaged in
operations attendant to the dying of Respondent's princi-
pal product, men's and children's socks. However, and as
will be discussed in a succeeding section herein, the
evidence establishes that Dempsey, who is also in charge of
the boarding room, which is adjacent to the dyehouse, in
fact is a supervisor within the meaning of the Act.
On the morning of October 3, 1972,1 four of the girls in
the boarding room spoke to Dempsey about the possibility
of obtaining a wage increase. Dempsey replied that he
would take the matter up with J. Melvin Middleton,
Respondent's president. After seeing Middleton, Dempsey
returned to advise the girls that Middleton would talk to
them the next morning.
Word that Middleton would speak on the subject of
wages spread to the other production employees. However,
on the following morning, October 4, Middleton did not
appear as they had been led to expect. Obviously
impatient, the entire group of Respondent's production
employees met during the noon hour and decided that they
would not return to work until Middleton came and talked
to them. They thereupon assembled in the boarding room
where they told Dempsey of this decision. Within a few
t Unless otherwise indicated, all dates hereinafter refer to the year 1972.
2 Testimony of Loetta Studdards and other witnesses. The fact that the
10 employees remained seated at this time undoubtedly accounts for the
characterization of the work stoppage by various witnesses, including
employees, as a "sitdown strike "
3 Middleton testified that the girls told him "it looks like you're not going
to get your socks boarded," whereupon he replied that he would have to
minutes the bell rang signalling the end of the lunch hour.
When the employees did not go to work, Dempsey sought
out President Middleton and advised him of the situation.
Upon being so apprised, Middleton went to the boarding
room where he proceeded to address the employees. In
substance he told them that the Company could not afford
a raise because of reasons relating to competition, a low
profit margin, and an increase in the cost of materials.
However, he did say that a raise might not be long in
forthcoming because he anticipated an increase in the
minimum wage rate by the first of the year, a factor which,
he said, would also affect his competitors. Upon the
conclusion of these remarks Middleton left the boarding
room and shortly thereafter a majority of the employees
returned to work.
Ten of the employees, however, did not return to work.
These employees, all of whom remained in the boarding
room, included Virgie Cornett, Louise Johnson, Debra
Garrett, Fay Rogers, Janice Ayers, Patrica Bagwell, Joann
Holsey, Mary Jones, and Dorothy Studdards. Significantly,
these employees remained seated in the boarding room,
notwithstanding the admonition of Ruby Gladden, a
supervisor, to all the employees that they either should "go
back to work or clock out." 2
Shortly after Middleton's departure, Virgie Cornett
telephoned an attorney who suggested that she find out if a
majority of the employees wanted a union, and, if so, to
arrange a meeting with management to discuss a raise and
working conditions. Upon completion of the can the 10
employees circulated throughout the plant where they
proceeded to talk to the employees who had returned to
work about the possibilities of union representation. At
one point employee Virgie Cornett broached Dempsey in
the dyehouse as he was talking to President Middleton.
According to the credited testimony of Cornett, she asked
Dempsey if he would like to be in a union. Dempsey
responded, she testified, by saying that he and Ruby
Gladden could not be members of a union because they
were supervisors.
In about the middle of the afternoon the 10 employees
proceeded to the office of President Middleton. Led by
Virgie Cornett, who also acted as principal spokesman, the
group again related their demands for a wage increase and
better working conditions. They also made mention of
having called an attorney and that they might take steps to
bring a union in the plant. Again stating that he could not
afford a raise, Middleton declared that he would shut
down the plant before he would have a union, that he
would ship his socks somewhere else and have them
boarded.3 At one point during the conversation, apparent-
ly in response to a question as to whether they were fired,
Middleton told the employees that he thought they had
quit.
After the above conversation the group left Middleton's
make some arrangements to get them boarded, that he might have to haul
them off somewhere else. Middleton denied that the subject of a union was
mentioned or that he threatened to close the plant if a union was brought in.
I do not credit these denials by Middleton. Rather, I credit the corroborated
testimony of five employees (Virgie Cornett, Janice Ayers, Debra Garrett,
Loetta Studdards, and Fay Rogers) that he did make the threat to close the
plant, as related above.
GEORGIA HOSIERY MILLS 785
office and returned to the boarding room . They remained
there, without working, for the remainder of the afternoon.
There is no dispute as to what occurred when the
employees reported to work the next morning, October 5.
Arriving at their usual starting time , 7:40 a.m., the
employees found the plant gate locked with Dempsey and
the chief of police standing by. The police chief was the
first to speak, advising the employees that they could enter
the plant . However, addressing himself to Cornett, he
stated that she had been fired, that she was a troublemaker,
and that she would be arrested for trespassing if she went
inside the mill . Cornett retorted that she had not been told
by either Middleton or Dempsey that she had been
terminated and that he had no authority to fire her.
Dempsey thereupon spoke up and said that he was firing
her "then." Hearing this, the entire group of employees
drew back and let it be known that none of them would
enter the plant. A short time later Dempsey entered the
'plant to take a telephone call from President Middleton.
Upon being apprised of the situation, Middleton instructed
Dempsey to permit all of the employees to come back to
work, including Cornett . Dempsey went out and so
notified the employees , stating to Cornett that he was
"hiring her back." 4 The entire group of employees,
including Cornett, thereupon entered the plant and
returned to work.
C. Conclusions as to Virgie Cornett
As earlier noted, the complaint alleges that Respondent
violated Section 8(a)(1) of the Act by discharging Virgie
Cornett on October 5 . Upon consideration of all the
circumstances , I deem it unnecessary to decide whether
Cornett's short-lived termination on October 5 was for
reasons proscribed by the Act or whether Respondent was
lawfully justified in taking the action in question on the
ground that Cornett had engaged in unprotected activity
on October 4. The fact of the matter is that within an
hour's time , or less, the entire matter was satisfactorily
resolved between management and the employees them-
selves. The Respondent having fully reinstated Cornett
without any loss of her former rights and privileges, it is
apparent that at most this employee lost but approximately
1 hour's pay. Accordingly, and assuming arguendo that her
brief termination was violative of the Act, I find and
conclude that the conduct involved here was "substantially
remedied" and was at best a de minimus or isolated
violation . See American Federation of Musicians, Local 76,
AFL-CIO, 202 NLRB 620. Accordingly, it is recommend-
ed that the allegation as to Cornett be dismissed.5
4 Credited testimony of Cornett.
5 Even if Cornett's case were meritorious, there is ample other evidence
to establish the requisite antiunion motivation which the General Counsel
usually must show in support of the additional Section 8(a)(3) allegations
herein.
6 Although the record is not precisely clear, it appears that several
employees signed cards the night before Debra Garrett and Barbara
Johnson, for example, testified that they signed cards on the evening of
October 4.
T Virgie Cornett, Joann Holsey, and Dorothy Studdards.
D. The Organizing Activity and the Discharge of
H. L. Studdards
Having been first contacted by telephone, William
Rainey, an International representative of the Union, came
to the home of Virgie Cornett on the evening of October 4,
at which time he met with employees Cornett, Joann
Holsey, and Dorothy Studdards. Providing them with
union cards, he agreed to come to the plant the next day.
Pursuant to this arrangement, Rainey and the 10 employ-
ees who engaged in the so-called sitdown strike on the
preceding day met just outside the back door of Respon-
dent's plant during the noon hour of October 5. This
meeting lasted about 20 minutes, during the course of
which some of the employees signed union card' s.6 At the
conclusion of the meeting Ramey, accompanied by
employees Virgie Cornett, Loetta Studdards, Dorothy
Studdards, and Joann Holsey, went into the plant where
they met Mrs. Middleton, Respondent's general manager
and secretary-treasurer, at the door of the office. Rainey
advised Mrs. Middleton that he had union authorization
cards signed by a majority of the employees and asked that
the Union be recognized as bargaining agent. Mrs.
Middleton replied that he would have to speak to her
husband about the matter. Apparently President Middle-
ton was not at the plant, for the employees thereupon
dispersed and went to work. At the end of the workday
(about 4:30 p.m.) the same group of employees who were
present during the noon hour meeting again met with
Rainey at the rear of the plant. Foreman Dempsey
conceded observing the group of employees meet with
Rainey at this time, testifying that he did so while engaged
in his regular' duties of closing the plant windows and
locking the rear door. Although Dempsey denied observing
the noon hour meeting, I credit the corroborated testimony
of Rainey and three employee witnesses 7 that while this
meeting was taking place they observed him standing
inside the plant looking at them through the window
adjacent to the rear door.8
H. L. Studdards is a relative of several employees who
work in Respondent's plant. On October 4, the day of the
work stoppage, Studdards came to the plant looking for a
job. Upon speaking to President Middleton, whom he met
outside the plant, Middleton stated that he could use him
to perform shipping and maintenance work. It is undisput-
ed that Middleton thereupon hired Studdards to perform
this work, notwithstanding that Studdards advised him that
he could not read or write.9
Studdards came to the plant the next morning, October
5, where he reported to Dempsey.20 Dempsey put him to
work in the dyeroom assisting him "pulling and running
tubs." That same day Studdards attended one of the
employee union meetings which were held with Union
8 Dempsey testified that he had his lunch while seated below the rear
windows of the plant. I do not credit his testimony to the effect that he did
not at any point stand up and observe the employees outside the plant
9 Studdards testified that he had a third grade education and could not
read.
io Dempsey and Studdards were previously acquainted. Dempsey
testified that Studdards entered the plant on the preceding day after talking
to President Middleton . Dempsey said at this time Studdards advised him
that he had been hired to perform maintenance and shipping work
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Representative Rainey outside the rear door of the plant.
He signed a union card at that time.11 Studdards testified
that on the following morning, October 6, Dempsey came
up and asked if he had signed a union card, to which he
responded that he had. Although Dempsey denied having
any conversation with Studdards, about the Union or a
union card, Studdards impressed me as an honest witness
and I am persuaded that he was telling the truth. I credit
his testimony as aforesaid. Studdards worked this entire
day, a Friday, with Dempsey in the dyehouse.
On Sunday morning, October 8, Dempsey drove over to
Studdards' home and summoned Studdards out to the car
by honking his horn. Studdards testified that when he
entered the car Dempsey told him that he had been fired
by Mr. Middleton. Continuing, Studdards testified that
when he asked why, Dempsey replied that "he didn't know
unless it was me signing that union card." Dempsey
thereupon further stated, he said, that he could probably
get his job back if he would get his union card back.
Denying Studdards' version of this conversation, Dempsey
testified that at this time he told Studdards that he had
been advised by Middleton that they did not have enough
work for him to do, that he was not to come in on Monday,
and that he would be called back "as soon as we got more
work." For the reason previously stated, I credit the
testimony of Studdards concerning this conversation.
Studdards has not been recalled by Respondent to date.
E. Conclusions as to H. L. Studdards
The explanation offered by Respondent witnesses as to
Studdards' termination can best be described as a
hodgepodge of inconsistent and implausible testimony.
First of all, asserting that Studdards was laid off for lack of
work, President Middleton merely testified "over the
weekend I found out that we had caught up in the dye
room and that the boarders being, sitting down a half day,
had actually put us ahead." He said that he talked this over
with his wife, whereupon both decided they did not have
enough work for Studdards. He then called Dempsey on
Sunday, he said, and told Dempsey to tell Studdards "that
we just didn't need him to come in." At this point he
added, "I didn't tell him (Dempsey) to fire him."
Apart from Middleton's foregoing assertion, Respondent
offered no evidence whatsoever, such as a drop in orders or
fall off in incoming work, to show that in fact there was a
lack of work. The one-half day work stoppage by the
employees in the boarding room on October 4 was the only
reason which Middleton could give for any alleged
shortage of work. For several reasons, this would appear
patently absurd on its face. In the first place, Studdards did
not report to work until the day following the work
stoppage. Surely if the work stoppage in fact caused a lack
of work in the dyeroom, it is reasonable to assume that
Respondent would not have put Studdards to work at this
11 Although Cornett testified that Studdards signed a card during the
noon hour meeting , Studdards recalled attending and signing a card at the
later meeting which was held at 4:40 p.m.
12 Indicating that he was always short of help in the dyeroom, Dempsey
testified "that's about a two or three man job in there, really." Indeed,
notwithstanding Respondent's position at the hearing that Studdards was
not discharged , but was laid off, it is significant that at least for a time
time , much less that it would have kept him on the job for 2
days thereafter. Moreover, as evidenced by the fact that no
one else in the plant was laid off at this time, it is evident
that the boarding room employees caught up with their
work within a very short time after the aforementioned
work stoppage. In this connection, Middleton asserted that
Studdards was not discharged and Dempsey testified that
Respondent intended to recall him as soon as work became
available. Accordingly, it also would be reasonable to
assume that, absent a discriminatory intent , Studdards
would have been recalled at some point after his termina-
tion on October 8. As previously noted, however, he was
not.12 But aside from all the foregoing, the record is clear
that Studdards was not hired to perform production work
in the dyeroom, but was hired to perform shipping and
maintenance work. Indeed, and bearing in mind that the
production employees were paid the minimum wage rate of
$1.65 per hour, Middleton testified, "I told him [Stud-
dards] I'd pay him $ 1.80 an hour, if he could hold that
shipping and maintenance job that I offered, that I could
pay him $1.80 an hour, if he could hold the job down."
Significantly, Respondent failed to give any reason or
explanation as to why Studdards was never assigned to do
the shipping and maintenance for which he concededly
was hired.
From all the foregoing, it is readily apparent that the
reasons assigned by Middleton do not stand up under
scrutiny. To make matters worse, insofar as Respondent is
concerned, Mrs. Middleton further muddied the waters by
stating in her pretrial affidavit as follows:
The following day and the day after he [Studdards]
worked in the dye house, and on Friday afternoon we
discovered that he could not read a dye order. And I
discussed this situation with my husband and we
decided that we could not find a place for him in our
employment.
The above statement not only contradicts the testimony
of her husband,13 but it is also inconsistent with her own
testimony at the hearing that Studdards was laid off
because of lack of work and that "the fact that he could
not read a dye order . . . would not affect him working in
the dye house particularly."
Upon the entire record, I am convinced and find that
Respondent discharged Studdards because it ascertained
that he signed a union card and that this action was
designed to discourage union activity. As previously
related, on October 4, President Middleton told the
employees that he would shut down the plant before he
would have a union. Further evidence of Respondent's
union animus is noted later herein. Studdards signed a
union card on October 5 and this fact was ascertained by
Dempsey when he interrogated him on October 6. When
all this is considered together with the unbelievable,
inconsistent , and contradictory reasons assigned by Res-
pondent for Studdards' discharge, as well Dempsey's
another employee was hired in the dyeroom subsequent to Studdard's
termination.
13 Not only did President Middleton assign a different reason for
terminating Studdards, but he also testified that Studdards was a
satisfactory employee and that fact of his not being able to read was not a
reason for the termination.
GEORGIA HOSIERY MILLS 787
damaging statements to Studdards at the time of his
termination, the conclusion is inescapable that this
employee was discharged because of his union activity. I
find that by this termination Respondent violated Section
8(a)(3) and (1) of the Act.
F. The Discharges of Barbara L. Johnson and
Debra Garrett
Debra Garrett and Barbara L. Johnson were discharged
at the same time on October 27, 1972. Both employees
worked on the conveyor belt line under the supervision of
Ruby Gladden. Garrett was employed with Respondent
for about 7 months prior to her discharge, whereas
Johnson worked for approximately 1 year prior to her
termination .14 Both of these employees participated in the
work stoppage on October 4 and both attended the
meetings with Union Representative Rainey which were
held outside the rear of Respondent's plant on October 5.
Dempsey conceded observing Garrett and Johnson meet
with Rainey at the 4:30 p.m. meeting on that date. In view
of the foregoing, and although they were not otherwise
particularly active in the Union,15 I find that Respondent
at least was aware of the proumon proclivities of these two
employees'6
Turning to the events surrounding their discharge, it is
undisputed that Garrett and Johnson were not at work on
Friday, October 27, both having obtained Respondent's
earlier permission to be off work on that day for the
purpose of moving. However, the determination to
discharge Johnson and Garrett . was made by Mrs.
Middleton on that date, at which time she sent identical
letters to each of these employees which stated as follows:
In checking the time-cards we find that you were late to
work 3 mornings this week. This seems to be an
established habit with you as, over the past months you
were late very often. As you know the belt cannot run
efficiently until all employees are at their stations, also
all the employees on the belt have been advised many
times through years of the importance of being present
and on time in order for the belt to operate efficiently.
Therefore, we find it necessary to let you go from our
employment.
Although these letters were sent on Friday, October 27,
the girls did not receive them on Saturday and both
reported to work on the following Monday, October 30.
When they arrived at the plant they were summoned to the
office where Ruby Gladden apprised them of their
discharge by handing them copies of the above letter.
Upon receiving the letters, Johnson and Garrett thereupon
went out to the production area where they showed the
letter to the other, employees. It is undisputed that at this
time the eight other employees who engaged in the sitdown
on October 4 went out on strike and shortly thereafter
established a picket line. This strike, which lasted for
14 Johnson, however, had more experience. Prior to an absence of 1 year,
she previously worked for Respondent for about 4 years.
15 Each of these employees signed union cards, but did so at home.
16 Garrett and Johnson were among the group of 10 who did not go back
to work at the time the entire group were instructed by Ruby Gladden to do
so or else leave the plant. However, the spokesmen for the employees on this
approximately 8 weeks, is alleged to have been an unfair
labor practice strike.
In giving testimony concerning Respondent's reasons for
the terminations of Johnson and Garrett, Mrs. Middleton,
whose decision it was to take this action, first noted that it
was company policy for the payroll clerk to provide her
with records showing the tardiness and absenteeism of all
the employees at the end of each week. Accordingly, upon
her examination of these records on Friday, October 27, it
came to her attention that both Johnson and Garrett were
late on three occasions during the week beginning October
23, 1972.17 In view of this absenteeism, she testified, she
took this occasion to look back further through the records
of these employees. Upon doing so, she ascertained that
between the payroll periods 8/6/72 through 10/29/72
Debra Garrett's work record reflected 8-1/2 hours tardi-
ness and 63-1/2 hours absent. For the same period, the
records of Barbara Johnson reflected 9-1/4 hours of
tardiness and 64 hours of absenteeism. It was as a result of
her becoming apprised of the continued and excessive
tardiness and absenteeism of these employees, Mrs.
Middleton testified, that she decided to terminate them on
October 27. In addition, Mrs. Middleton pointed out that
Garrett and Johnson were part of a unit of employees who
worked on the conveyor belt.. Concerning the problem of
absenteeism as it affected the operation of the conveyor
belt, I have no reason to doubt her testimony which was as
follows:
- .. tardiness has more to do with, it than absentee-
ism. I'd like to stress that. Because when they are tardy,
everybody's off. If they are absent, everybody stands
around and waits. If they are absent we know they are
not going to be there, we direct them otherwise.
Concerning the foregoing, the record of tardiness and
absenteeism of Garrett and Johnson, as above noted, is not
in dispute. Indeed, both employees conceded being late on
three occasions during the last week of their employment.
Significantly, although Johnson and Garrett rode to work
with two other employees, Respondent's records reflect
that during the week beginning October 23, the two other
employees with whom they rode (Loetta Studdards and
Fay Rogers) reported to work on time on two of the same
days when Johnson and Garrett were late. Other than to
testify that they had never been warned about being late or
absent prior to their discharge, neither Johnson nor Garrett
offered any justification or explanation for their tardiness
and absenteeism on any of the occasions during the period
in question.
Asserting that Respondent utilized the tardiness and
absenteeism of Garrett and Johnson as pretexts, the
General Counsel contends that the discharges of these
employees were "calculated to chill, union organizational
activity-and to make them an example to other employ-
ees as to what would happen if they continued to engage in
similar activity." Perhaps I would have found this
argument more persuasive were it not for the fact, as
date were Virgie Cornett and Mary Jones; and Garrett and Johnson were
not among the group of four employees who accompanied Rainey on
October 5 to see Mrs. Middleton about obtaining recognition
17 Specifically, the timecards reflect that these employees were 45
minutes late on October 24, 2 minutes late on October 25, and 5 minutes
late on October 26.
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence offered by the Respondent establishes, that
shortly prior to the advent of the Union two other
employees, Gayolyn Neal and Jenny Leeks, were terminat-
ed for similar reasons . Thus, it was the uncontroverted
testimony of Mrs. Middleton, as substantially supported by
Respondent's records, that these two employees were
discharged in September 1972 because of excessive
tardiness.18 Significantly, there is no evidence to show that
either Neal or Leeks received any warning prior to their
discharges. It therefore appears that in this respect their
discharges followed the same pattern as did the discharges
of Garrett and Johnson.
Upon the entire record, and while the matter is not free
from doubt, I am impelled to find that the General
Counsel has not established by a preponderance of the
evidence that Respondent discharged Garrett and Johnson
in violation of Section 8(a)(3) and (1) of the Act.
Accordingly, it is recommended these allegations in the
complaint be dismissed.19
G. Interference, Restraint, and Coercion
In addition to conduct heretofore discussed, it is alleged
that two incidents occurred on the day prior to the
representation election,. which was held on November 13,
1972, during which Respondent's representatives are
alleged to have made coercive statements to employees.
The first incident occurred in the afternoon of November
12. It is undisputed that at this time President Middleton
came to the home of employee Janice Ayers and spoke to
her about the forthcoming election. Ayers, who impressed
me as a truthful witness, testified that during the
conversation Middleton stated that he would appreciate
her voting against the Union, but that she replied that she
would vote for it. She testified that Middleton thereupon
stated that "he would close down before he would let a
union come in." Middleton denied making any statement
about closing down and testified that he only told Ayers
that he would appreciate her vote. I credit the testimony of
Ayers, as aforesaid.20
Dorothy Studdards testified that on the evening of
November 12 she received a telephone call from Mr. and
Mrs. Middleton, both of whom were on the phone. In her
words the following conversation ensued:
They called me at home and said they wanted me to
hear their side of the story, they were getting old, they
wanted to keep the mill open for a few more years, and
after that maybe someone else could take it over and
keep it open. And they said that if the union did come
in, they would close the mill down . . . they did ask me
for my side of it [the story], and I tried to tell them but
they wouldn't listen to me.
Concerning the above conversation, Mrs. Middleton
testified that she spoke to Dorothy for the purpose of
presenting the Company's side of the situation and that she
18 The record of these employees for an approximate 2-month period
(July 9 to September 10, 1972) reflects that Neal was late for a total of
approximately 10 hours, Leeks for approximately 6 hours. As previously
noted, during a like period Johnson was late 9-1/4 hours and Garrett 8-1/2
hours.
19 In view of this finding, it follows that the strike beginning on October
30, 1972, was not an unfair labor practice strike. Hence, it is recommended
told her that they hoped to count on her cooperation.
Denying having made any threat to close the plant if the
Union came in, Mrs. Middleton testified that during the
conversation she merely told Studdards "that unless the
Union strike were terminated shortly, we would be out of
business." Upon the entire record, and from my observa-
tion of the witnesses , I credit Studdards' version of the
conversation.
I find that in each of the above instances Respondent
violated the Act by threatening to close its plant if the
employees selected the Union as their bargaining agent. As
heretofore related, President Middleton made a similar
threat to close the plant when talking to a group of
employees on October 5; and Supervisor Dempsey
interrogated employee H. L. Studdards concerning his
signing a union card on October 5. I find that by such
conduct Respondent further violated Section 8(a)(1) of the
Act.
Finally, with reference to Dempsey's observation of the
employees meeting with Union Representative Rainey at
the rear of the plant on October 5, the complaint alleges
that Respondent thereby engaged in unlawful surveillance.
I find no merit to this allegation. Surely, absent an intent to
violate the Act, an employer has the right to observe the
conduct of employees on its own premises or within the
immediate environs. Dempsey's understandably curious
and casual observation of the employees on this date did
not violate the Act.
H. The Supervisory Status of Dewel Dempsey
I do not deem it necessary to detail the rather voluminus
testimony concerning the supervisory status of Dewel
Dempsey, for I am satisfied that the record clearly
establishes him to be a supervisor within the meaning of
the Act. Indeed, this is apparent from the facts already
related. Thus, it will be recalled that Dempsey was the only
representative of management to be present at the plant on
the morning following the sitdown strike. It was Dempsey
who at this time advised employee Virgie Cornett that she
was discharged and it was Dempsey who a short time later
rescinded this action and permitted all the employees to
enter the plant. Similarly, it was Dempsey who only a few
days later went to the home of H. L. Studdards and
advised him of his discharge. It is immaterial that Dempsey
consulted with and/or obtained authority from Middleton
prior to taking any of these actions, for at the very least
Respondent's vesting Dempsey with authority to take the
actions in question establishes that he was held out to the
employees as having supervisory status.21 However, in
addition to the foregoing, the record amply establishes that
Dempsey exercised and possessed various other indicia of
supervisory authority. Thus, although Dempsey spends a
substantial amount of his time in the dyeroom, the latter is
located immediately adjacent to the boarding room and
that this allegation also be dismissed.
20 The record reflects that Ayers at this time was on maternity leave with
Respondent 's permission . Accordingly, she retained her status as an
employee when the incident occurred.
21 Howard Johnson Company, 201 NLRB 376; cf. Ramar Dress Corp.,
175 NLRB 320.
GEORGIA HOSIERY MILLS 789
the record is clear that he is constantly in and out of the
boarding room where he is the only representative of
management who is directly in charge of the girls who
work there.22 In his capacity as being in charge of the
boarding room employees, the credible and substantially
unrefuted evidence establishes, and I find, that Dempsey
responsibly directs the boarding room employees in their
work, is responsible for the quality of the work they
perform, transfers them to different departments when the
workload necessitates, instructs employees when they are
to work overtime,23 advises them when they are laid off,
and grants them time off upon their request.24 Upon all the
foregoing, I find and conclude that Dempsey is a
supervisor within the meaning of Section 2(11) of the
Act.25
prejudice to seniority or other rights and privileges, and
make him whole for any loss of earnings he may have
suffered from the date of his discharge to the date of
Respondent's offer of reinstatement. Backpay shall be
computed in accordance with the formula set forth in F
W. Woolworth Company, 90 NLRB 289, with interest
thereon computed in the manner and amount prescribed in
Isis Plumbing & Heating Co., 138 NLRB 716.
Since a discriminatory discharge of an employee goes to
the very heart of the Act (N.L.R.B. v. The Entwistle Mfg.
Co., 120 F.2d 532, 536 (C.A. 4), it will be commended that
the Respondent be ordered to cease and desist from in any
manner infringing upon the rights guaranteed employees in
Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described 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.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It having been found that Respondent discriminatorily
discharged H. L. Studdards, I shall recommend that
Respondent be ordered to offer him full and immediate
reinstatement to his former job, or if this job no longer
exists, to a substantially equivalent position, without
22 Respondent appears to contend that Mn. Middleton is in charge of
the girls who work in the boarding room However, Mrs. Middleton is
headquartered in the office section of the plant and admittedly spends very
little time in the boarding room.
23 This usually occurs after the plant has been down due to a power
failure.
CONCLUSIONS OF LAw
- 1. Respondent is engaged in commerce and the Union
is a labor organization, all within the meaning of the Act.
2. By discriminating in regard to the hire and tenure of
employment of H. L. Studdards, thereby discouraging
membership in the Union, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
3. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed by Section 7
of the Act, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(3) and (1) of the
Act by its termination of Debra Garrett and Barbara L.
Johnson.
[Recommended Order omitted from publication.]
24 Dempsey testified that he consulted with Mrs. Middleton before
granting girls time off. However it is noteworthy that when telephoning in to
request or report an absence , the employees always talk to Dempsey
25 I do not credit the testimony of Dempsey to the effect that he
consulted with or obtained the approval of Mrs. Middleton each and every
time he exercised any of the supervisory functions mentioned above