Maple Tree, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1986

281 N.L.R.B. 612 (N.L.R.B. 1986)

612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Maple Tree, Inc. and International Ladies Garment SUPPLEMENTAL DECISION
Workers Union, AFL-CIO. Case 10-CA-20759
29 September 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN , BABSON, AND
STEPHENS
On 30 June 1986 Administrative Law Judge
Philip P. McLeod issued the attached supplemental
decision. The General Counsel and the Charging
Party each filed limited exceptions, the General
Counsel filed a supporting brief, and the Charging
Party filed a brief in support of the judge's deci-
sion.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the supplemental deci-
sion and the record in light of the exceptions and
briefs and has decided to affirm the judge 's rulings,
findings, " and conclusions and to adopt the recom-
mended Order as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and orders that the Respondent,
Maple Tree, Inc., Maplesville, Alabama, its offi-
cers, agents, successors , and assigns , shall make
whole Shirley Rigsby by payment of $5395, Glinda
Short by payment of $7720, as set forth in Appen-
dix A attached to the judge's decision, and Jean
Davis by payment of $8299, as set forth in Appen-
dix B attached to the judge' s decision , plus interest
thereon accrued to the date of payment, computed
in the manner prescribed in Florida Steel Corp., 231
NLRB 651 (1977), minus any tax withholdings re-
quired by Federal and state laws.
i At the hearing, the parties stipulated that Shirley Rigsby was due
backpay in the amount of $5395 plus interest . In sec. I, par 1 , of his deci-
sion, the judge inadvertently failed to include the words, "plus interest,"
in his description of the parties ' stipulation . We correct the error
$ In his recommended Order, the judge inadvertently failed to order
the Respondent to pay Shirley Rigsby backpay of $5395, plus interest,
pursuant to the parties' stipulation at the hearing . Accordingly, we shall
modify the Order to include the backpay due Shirley Rigsby
Gaye Nell Hymon, Esq., for the General Counsel.
Braxton Schell Jr., Esq., of Birmingham, Alabama, for the
Respondent.
James R. Goldberg, Esq., of Atlanta, Georgia, for the
Charging Party.
STATEMENT OF THE CASE
PHILIP P. MCLEOD, Administrative Law Judge. On 4
September 1985 the National Labor Relations Board
issued a Decision and Order fording , inter alia, that
Maple Tree, Inc. (Respondent) unlawfully discharged
Glinda Short, Shirley Rigsby, and Jean Davis in viola-
tion of Section 8(a)(1) and (3) of the National Labor Re-
lations Act (the Act). To remedy these unfair labor prac-
tices , the Board directed Respondent to reinstate Short,
Davis, and Rigsby and to make them whole for any loss
of pay or other benefits they may have suffered by
reason of the discrimination against them . The parties
being unable to agree on the amount of backpay due
under the terms of the Board 's Decision and Order, the
Regional Director for Region 10 issued a backpay speci-
fication dated 6 January 1986 . Respondent filed an
answer admitting certain allegations and denying others.
A trial was held before me on 19 February 1986 in
Clanton, Alabama. All parties were afforded full oppor-
tunity to be heard , to examine and cross -examine wit-
nesses, and to introduce evidence . Following the close of
the trial, all parties filed timely briefs, which have been
given due consideration.
On the entire record in this case and from my observa-
tion of the witnesses, I make the following
FINDINGS OF FACT
I. ISSUES
At the trial herein, the parties stipulated that Shirley
Rigsby, who has been reinstated by Respondent, is due
the sum of $5395 set forth in the backpay specification
dated 6 January. Accordingly, no findings are made
herein regarding Rigsby.
It is the burden of the General Counsel to establish the
reasonableness and accuracy of its calculation of the
gross backpay amount . Respondent raises no objection to
the General Counsel's method of computing gross back-
pay, and that is not an issue in this case . Rather, Re-
spondent takes the position that without regard to its
unfair labor practices Short and Davis nevertheless
would have been laid off approximately 16 November
1985 and would not have been recalled. According to
Respondent's argument , backpay should therefore be
tolled. It is Respondent's burden to show that backpay
due Short and Davis should be reduced as a result of the
unavailability of a job at Respondent's operation. New
England Tank Industries, 147 NLRB 598, 601 (1964).
On 10 February 1986 Respondent reinstated Short and
Davis, both of whom worked only 1 day and then vol-
untarily terminated their employment with Respondent.
The General Counsel and the Charging Party take the
position that Short and Davis are due backpay from the
time of their unlawful discharges until 10 February 1986
when they were reinstated.
II. THE EVIDENCE
Respondent is engaged in the manufacture and sale of
garments , primarily ladies' blouses . The corporate head-
281 NLRB No. 97
MAPLE TREE, INC.
quarters and sales offices are in New York. The sewing
facility is located in Maplesville, Alabama , site of the
unfair labor practices . As Respondent concedes , most of
the individuals who work at the Maplesville facility are
sewing machine operators . Respondent also employs in-
dividuals in its cutting room and a few individuals for
specific jobs that do not involve sewing.
There has been a decrease in the number of employees
employed at the Maplesville facility since July 1984. Re-
spondent predicates its argument that Short and Davis
would have been laid off on the assertion that it has a
strict seniority system, whereby employees are laid off
solely on the basis of seniority within their individual
"job classification."
Plant Manager Billie Roy testified that layoffs are de-
termined by seniority, unless the senior employee does
not make 100-percent production, in which case job effi-
ciency prevails and the more senior but less efficient em-
ployee is laid off. Roy further testified that "yob seniori-
ty" rather than a plantwide seniority system is utilized.
Roy testified on direct examination that transfers to
avoid layoffs are not permitted . Respondent introduced a
two-page document that it contends codifies its long-
standing layoff policy. This document states in relevant
part:
The employee committee at Maple Tree has met
with Dick Harmon and Bill Johnson and agreed on
the following procedures:
1. Seniority
A. Everyone agreed that the seniority system
should be Job Seniority with their hire date as their
seniority date.
B. Once an operator make [sic] production on
her job her seniority date will be used for:
1. Layoff and recall choice.
2. Transfers from operation to operation.
Roy testified that this document, which is undated, has
been in effect since approximately 1977, has consistently
been distributed to all newly hired employees , and has
been posted regularly on the employee bulletin board at
Respondent 's Maplesville facility . In later testimony,
however, Roy admitted that these rules may not have
been distributed to employees in the past 3 to 4 years.
She also admitted that although these rules were posted
at the facility about a year ago she did not know wheth-
er they were ever posted continuously or whether they
were posted there now.
Jean Davis testified credibly that while she was em-
ployed with Respondent , she read the employee bulletin
board at least once a week and glanced at it daily. Davis
testified credibly that prior to the trial herein she had
never seen a copy of the purported seniority rules. Jean-
nette Bone, who worked for Respondent from 1976 until
1978 and again from 1983 to July 1985, testified that she
had never seen a copy of the seniority rules proffered by
the Respondent . I credit this testimony . Bone also testi-
fied that she was never given a copy of these rules on
either occasion that she was hired. I credit this as well.
The significance of these purported seniority rules is
also subject to question . Although the rules refer to "job
613
seniority," nowhere do they attempt to define the mean-
ing of that term . Respondent would have me conclude
that the meaning of Seniority for a particular job is limit-
ed to specific machines and specific work tasks. The se-
niority rules introduced by Respondent, however, could
just as easily include all sewing machine operators as one
job category and cutting room employees as another. I
fmd it particularly significant , as Plant Manager Roy ad-
mitted, that prior to the trial herein there was no list of
employee job classifications on which seniority was al-
legedly determined . Such a list was prepared only in
preparation for the trial herein. I also find it significant,
as Roy also admitted , that there is no regular seniority
list maintained at the Maplesville facility. Further, except
for the undated document introduced by Respondent,
there is no employee handbook or rules containing any
description of a layoff or seniority system . Finally, the
evidence before me shows very clearly that Respondent
did not in fact follow a strict seniority system for layoffs.
It was estimated by Plant Manager Roy that there
were approximately 80 employees total in July 1984
prior to the commencement of layoffs. Roy also testified
that the vast majority of employees who were laid off
during the summer of 1984 were laid off prior to the dis-
charges of Short and Davis . Exhibits reflect that approxi-
mately 21 employees were laid off prior to the dis-
charges of Short and Davis on 26 September 1984. Thus,
there were approximately 60 bargaining unit employees
as of the time Short and Davis were discharged . Roy tes-
tified there were approximately 43 employees as of the
time of the trial herein . Therefore, there was a decrease
of about 16 or 17 employees during the relevant backpay
period.
During September and October 1984, soon after other
employees were laid off, six new employees were hired.
These employees were part of an on -the-job training pro-
gram (OJT) pursuant to which the Federal Government
paid one-half of these employees' wages. When Federal
funding ran out, these six employees were laid off. A
lack of work was not the reason for the decision to lay
off these trainees . The only other large-scale layoff oc-
curred on 1 February 1985. Plant Manager Roy testified
that on that date all employees were asked to "voluntari-
ly" work for a period of weeks for minimum wage. Ac-
cording to the testimony of former employee Sylvia
Lewis, Respondent initially told employees they would
have to work for 3 weeks during which they would
draw unemployment compensation instead of being paid.
After employees protested that this was unlawful, Re-
spondent changed its position and instead required em-
ployees to accept a reduction in pay to minimum wage.
Any employee who did not agree to do so was laid off
effective 1 February. Thus, 14 employees "voluntarily"
went on layoff. As Respondent concedes, these layoffs
were not in accordance with seniority.
Plant Manager Roy admitted that throughout the
backpay period , and indeed throughout the whole time
that Respondent has been located in Maplesville, individ-
ual employees have frequently requested layoffs for
purely personal reasons. This has allowed employees to
draw unemployment compensation immediately rather
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than wait through some disqualifying period which
would result from voluntary separation . The record re-
flects that employees have made such requests because of
advanced age, pregnancy , and various temporary disabil-
ities . Roy admitted that Respondent has routinely grant-
ed such requests . Thus, although Roy testified initially
on direct examination that a strict seniority system was
used for layoffs , most of Respondent 's evidence in this
proceeding related to would -be exceptions to such a
system.
Although Roy testified at one point that employees
were not allowed to transfer from one job duty to an-
other to avoid layoffs, her later testimony convinces me
that the contrary is true . Roy admitted in response to
questions from me that Respondent regularly inter-
changed employees who had the skill to do more than
one job , and that Respondent did so without regard to
seniority . Roy testified that employees are transferred in
such a manner in order to avoid layoff where work is
available in other sections of Respondent 's operation.
Roy admitted that in essence layoffs are based on seniori-
ty and efficiency and that in a layoff situation she at-
tempted to be flexible, i.e., she worked with sewing ma-
chine operators and switched them from position to posi-
tion in order to maintain efficient production and keep
those who were most efficient on the payroll.
In its posttrial brief, Respondent argues:
After the Short and Davis terminations , no individ-
uals were hired as full time collar setters until Short
and Davis were recalled , effective February 10,
1986.
The thrust of Respondent's argument is that no one was
hired to replace Short or Davis, that this is evidence of
the fact no one was needed to replace Short and Davis,
and that therefore it should be concluded Short and
Davis would have been laid off. Ignoring for the
moment Plant Manager Roy's admission that efficient
employees are moved from one job duty to another in
order to avoid layoff, Respondent's argument that Short
and Davis were not replaced does not withstand scruti-
ny. Short and Davis were both used primarily to "close
collars" when unlawfully discharged in September 1984.
Approximately 1 week after Short and Davis were dis-
charged , Respondent hired two new employees. One of
these employees, Betty Peters, worked only about 1
month . Thereafter, Respondent divided up the work pre-
viously done by Short and Davis among other sewing
machine operators , including some who had less seniori-
ty than Short and Davis. The second employee hired by
Respondent was Ruby Weldon. Respondent contends
that Weldon was hired to replace two employees who
quit in the "sample department ." On direct examination,
however, Plant Manager Roy testified that Weldon spent
approximately 50 percent of her time closing collars. On
cross-examination , Roy admitted that Weldon spent ap-
proximately 70 percent of her time doing this work that
previously had been done by Short and Davis . To argue
that Weldon was not a replacement for Short or Davis is
patently absurd. Roy also admitted that after Short and
Davis were terminated employees Mary Williams and
Milfred Rhodes performed the jobs of Short and Davis.
Roy admitted repeatedly that work closing collars,
which previously had been done by Short and Davis,
was still available . For the most part , Respondent simply
used employees already on the payroll to perform this
work.
Respondent introduced a computer printout purporting
to show the departments and "jobs" of employees in sup-
port of its position that Short and Davis would have
been laid off. Evidence before me suggests that the "de-
partments" and "jobs" reflected on it were made up or
assigned specifically in order to lend credence and sup-
port to Respondent's argument herein . As I have already
noted, there was never a list of job classifications used
for layoff purposes prior to the trial herein . The docu-
ment introduced by Respondent was created specifically
for purposes of this trial. On the document Ruby Weldon
and Betty Peters are assigned to the "sample depart-
ment" and the "training department ," respectively, even
though they both in fact used to perform the work of
Short and Davis . The designation of various departments
and jobs masks the fact that numerous employees with
less seniority than Short and Davis were working on
jobs that Short and Davis could have performed during
the backpay period . Employees with less seniority than
Short and Davis are found on this document in several
departments , including the "Peter Harris line," the
"training department," the "sample line," the "prep de-
partments," the "finishing department," and in other "de-
partments" as well . Except in the finishing department,
all these employees were sewing machine operators who
did sewing work , much of which could have been per-
formed by Short and Davis . The assignment of various
departmental titles and jobs is simply an effort to disguise
and justify the fact that numerous employees with less
seniority than Short and Davis were working throughout
the backpay period.
Analysis and Conclusions
The strict policy of laying off by seniority , which is
asserted by Respondent , is simply not supported by the
record, including even the testimony of Respondent's
own plant manager . I find that Respondent did not have
a strict policy of laying off in accordance with seniority.
Employees were laid off for any number of reasons and,
more often than not , individuals selected for layoffs were
not selected on the basis of seniority . In addition, em-
ployees were frequently laid off solely because they re-
quested a layoff for reasons of personal convenience. Fi-
nally, when layoffs were necessary for economic reasons,
Roy transferred employees from one job duty to another
to avoid layoff where the individual who might other-
wise have been laid off was an efficient employee.
Considering Plant Manager Roy 's admission that effi-
cient employees are moved from one job duty to another
in order to avoid layoff, it appears certain that Short and
Davis would not have been laid off under any circum-
stances were it not for the unlawful discharge . I take ju-
dicial notice of the administrative law judge's decision in
the underlying unfair labor practice proceeding that at
the hearing Plant Manager Roy testified Short and Davis
MAPLE TREE, INC. 615
were "very skilled" and among the "best operators."
Short and Davis both testified without contradiction that
they had done a number of different jobs while em-
ployed by Respondent . Their testimony was corroborat-
ed by other witnesses . The evidence establishes that
there was frequent interchange of duties and movement
from job to job on a temporary basis . Plant Manager
Roy even admitted that Davis had experience on many
jobs at Respondent's plant and that work was available
on these jobs throughout the relevant time period. In
view of Roy's own admission that Short and Davis were
very skilled and among the "best operators," I am con-
vinced that under normal circumstances Respondent
would have moved these efficient employees from one
job duty to another in order to avoid a layoff. I conclude
that Short and Davis would not have been laid off were
it not for their unlawful discharge.
The burden of proof is on Respondent to show that it
would not have had work available for a discriminatee
due to factors unrelated to the discriminatory and unlaw-
ful discharge . Respondent argues that Short and Davis
would have been laid off approximately 6 weeks after
they were unlawfully discharged on 26 September 1984.
In fact, no employees were actually laid off on 16 No-
vember 1984, 6 weeks after the discharge of Short and
Davis . For reasons which I have already expressed in
detail, I conclude that in fact Short and Davis would not
have been laid off were it not for their unlawful dis-
charge. Instead, the evidence before me convinces me
that even if there was a reduction in available work for
Short and Davis as collar closers , Respondent would
have transferred them to another job in order to avoid
laying them off because Respondent considered them
among its best employees . Even when considering Re-
spondent 's argument in the light most advantageous to it,
Respondent has failed to carry its burden of proof. Plant
Manager Roy admitted "there is no precise way to deter-
mine the date when they (Short and Davis) would have
been laid off." In view of all the above , I conclude that
Respondent has failed to carry its burden of proof that
Short and Davis would have been laid off due to a short-
age of work.
Computation of Backpay
In view of my findings above, the relevant backpay
period for both Short and Davis is from 26 September
1984 through 10 February 1986.
At the trial herein it was stipulated that Glinda Short
was employed by Thorsby Industries from 6 September
1985 to 28 October 1985 and that during that time she
earned $1 ,011.63 . This total was not broken down by
quarters . I shall therefore assume that three -sevenths and
four-sevenths of the total is attributable to the third and
fourth quarters, respectively, because that is the number
of calendar weeks in each quarter attributable to this
period. It was further stipulated that Short was em-
ployed by Jemison Sports Wear from 28 October 1985
through the end of the backpay period. From 28 October
through 31 December 1985, Short earned $1,192.68. Fol-
lowing the close of the trial , the parties stipulated by
letter that Short earned $1,092 .48 at Jemison from 1 Jan-
uary through 7 February 1986.
At the trial it was stipulated that Davis was employed
at Jemison Sports Wear from 29 October 1985 to 7 Feb-
ruary 1986 . From 29 October to 31 December 1985,
Davis earned $977.66. Following the close of the trial, it
was stipulated by letter that from 1 January through 7
February 1986, Davis earned $797.11 at Jemison.
The parties further stipulated at the trial herein that
the commuting distance between Short 's and Davis'
homes to and from work at their places of interim em-
ployment was 30 miles greater than that between their
homes and Respondent's facility . Increased commuting
expenses are deducted from interim earnings in order to
obtain net interim earnings . Increased commuting ex-
penses are now compensated at the rate of 20 . 5 cents per
mile. Evans Plumbing Co., 278 NLRB 67 (1986); Rice
Lake Creamery Co., 151 NLRB 1113 (1965); KartariJk
Inc., 111 NLRB 630 (1955). Accordingly , I have reduced
interim earnings by the increase in commuting expenses
attributable to the increased mileage.
Finally, the parties stipulated by letter following the
close of the trial herein that representative employee
Kathryn McGee, on whose earnings the gross backpay
of Short and Davis is determined, earned $1 ,822.86 for
the fourth calendar quarter of 1985 and $1 , 185.20 for the
relevant period during the first calendar quarter of 1986.
The backpay specification alleges, and Respondent does
not deny, that an appropriate measure of the earnings of
discriminatee Glinda Short is 95 .28 percent of the earn-
ings of McGee, while that of Davis is 88.75 percent of
the earnings of McGee.
On the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended)
ORDER
Respondent, Maple Tree, Inc., Maplesville, Alabama,
its officers , agents, successors, and assigns shall satisfy its
obligation to make whole Glinda Short by payment of
$7720 as set forth in the attached Appendix A, and by
payment to Jean Davis of $8299 as set forth in the at-
tached Appendix B, plus interest thereon accrued to the
date of payment computed in the manner prescribed in
Florida Steel Corp., 231 NLRB 651 (1977), minus any tax
withholdings required by Federal and state laws.
1 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gross
Yr./Qtr. Back-
pay
APPENDIX A APPENDIX B
Olinda Short Jean Davis
Inter-
im Ex-
Earn- penes
ings
Net
Inter- Net
im Back-
Earn- pay
lags
Yr. /Qtr.
Net
Inter- Net
im Back-
Earn- pay
ings
Gross
Back-
pay
Inter-
im Ex-
Earn- penes
ings
1984/4 ....................... $2698 0 0 0 $2698 1984/4....................... $2513 0 0 0 $2513
1985/1 ....................... 1108 0 0 0 1108 1985/1....................... 1032 0 0 0 1032
1984/2....................... 1943 0 0 0 1943 1985/2....................... 1810 0 0 0 1810
1985/3 ....................... 1737 435 105 330 1407 1985/3....................... 1618 0 0 0 1618
1985/4 ....................... 1737 577 406 1364 373 1985/4....................... 1618 978 277 701 917
1193 1986/1 ....................... 1052 797 154 643 409
1770 Total .............. $8,299
1986/I....................... 1129 1092 154 938 191
Total .............. $7,720