Spencer Industries, Inc.

National Labor Relations Board - Board Decisions

Apr 28, 1980

279 N.L.R.B. 565 (N.L.R.B. 1980)

HOSCHTON GARMENT CO. 565
Hoschton Garment Company , a Subsidiary of Spen-
cer Industries, Inc. and International Ladies'
Garment Workers ' Union, AFL-CIO. Cases 10-
CA-18618 and 10-CA-18741
28 April 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS, JOHANSEN , STEPHENS , AND BABSON
On 13 September 1983 Administrative Law
Judge Hutton S. Brandon issued the attached deci-
sion. The General Counsel and the Respondent
filed exceptions and supporting briefs.
The Board has considered the decision 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 recommended Order
as modified.
1. The judge found, and we affirm, that the Re-
spondent violated Section 8(a)(3) and (1) of the Act
by suspending employee Martha Gooch because of
her activities in support of the Union. Gooch was
an active, open union supporter. On 1 November
19822 Gooch was called home from work to take
care of her ill 4-year-old child. The child's doctor
advised Gooch to remain at home with the child
because of the child's high fever. On the morning
of the next day, 2 November, Gooch requested and
was granted a leave of absence from work until 8
November in order to remain at home to care for
her child. Later on 2 November, at the end of the
workday, the Union engaged in handbilling across
the street from the Respondent's plant. Gooch re-
turned to the plant about 5 minutes before normal
quitting time on 2 November and took a position
across the street from the plant with other employ-
ee union supporters, where she observed the hand-
billing.3 Gooch remained at this position for the
duration of the handbilling, an estimated 10-15
minutes , after which she left.
Gooch continued on her leave of absence, re-
turning to the plant briefly on 5 November to pick
i The Respondent has excepted to some of the judge's credibility find-
ings The Board' s established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 All dates are 1982
3 In sec II,B,1, par 3 of his decision , the judge states that Gooch testi-
fied, in effect, that she engaged in handbilling during the 2 November in-
cident in question In two instances during her cross-examination, Gooch
did answer affirmatively to leading questions which contained assump-
tions that Gooch actually engaged in handbilling However, as the
weight of the record evidence establishes ( and as the judge correctly
found in fn 12), Gooch did not engage in handbilling during the incident
in question , but merely observed those who did
up her paycheck. When Gooch returned to work
on 8 November, the Respondent's manufacturing
manager , Bernard Tanner, told Gooch that he had
been informed that she had been "across the street"
on 2 November. Tanner asked Gooch whether she
was aware that she was not supposed to be outside
the plant while she was on a leave of absence and
that she had violated her leave of absence. Gooch
told Tanner that she had left her child in the care
of her husband during the time she was at the plant
on 2 November. Tanner replied that that made no
difference, because the leave of absence had been
for her. Tanner then suspended Gooch for 3 days
for abusing her leave of absence . Gooch asked
Tanner if he was suspending her "because of the
Union," and Tanner replied that that was not the
issue.
In finding that the Respondent suspended Gooch
because of her union activity, the judge relied on
the following factors: (1) the Respondent knew of
Gooch's support for the Union; (2) Gooch's pres-
ence "across the road" on 2 November was in sup-
port of the Union; (3) the Respondent was opposed
to the Union; (4) Gooch's suspension for violating
a leave of absence was unprecedented; (5) there
was no established policy calling for discipline of
an employee who returned to the plant during a
leave of absence; (6) Gooch was not disciplined for
violating her leave of absence by returning to the
plant on 5 November to pick up her paycheck; (7)
the Respondent's failure to establish, as part of its
asserted defense, that it had reason to believe that
Gooch obtained her leave of absence under false
pretenses-i.e., by lying about her child's illness;4
4 In its exceptions, the Respondent contends, inter alia, that the judge
improperly denied it an opportunity to introduce evidence in support of
this aspect of its defense , by refusing to enforce two subpoenas that
would have aided the Respondent in attempting to establish that Gooch
obtained her leave of absence under false pretenses , i e, that her child
was not seriously ill, or that she was not required to remain at home to
care for the child Specifically, the judge granted the General Counsel's
petition to revoke the Respondent 's subpoena duces tecum , which would
have required Gooch to produce medical and physician records to show
that Gooch 's child was under a doctor's care during the period I Novem-
ber through 8 November With regard to the Respondent 's subpoena ad
testificandum of Gooch's husband , whose testimony the Respondent
sought in order to establish that he, rather than Gooch, could have
stayed at home with the child, the judge declined to grant the Union's
petition to revoke , but suggested that the Respondent seek enforcement
of the subpoena through the Board 's Regional Office
In revoking or suggesting that the Respondent seek enforcement
through the Regional Office of these subpoenas, the judge ruled that the
subpoenaed material and testimony was "irrelevant and immaterial" be-
cause the Respondent , in suspending Gooch , relied only on the assertion
that Gooch abused her leave of absence by returning to the plant, and
not on an assertion that Gooch obtained her leave of absence under false
pretenses We affirm the judge 's ruling in this regard The record is clear
that Gooch was assertedly disciplined for violating her leave of absence
by returning to the plant on 2 November, not for obtaining the leave of
absence under false pretenses in the first place This latter asserted reason
for disciplining Gooch is offered post facto , and was not a reason assert-
Continued
279 NLRB No. 81
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(8) the Respondent's failure to establish that it rea-
sonably believed that Gooch' s presence at the plant
for 10-15 minutes on 2 November was inconsistent
with Gooch's care of her child over the course of a
weeklong leave of absence, particularly in light of
the fact that Gooch told Tanner, during the disci-
plinary interview on 8 November, that her child
was being cared for at home by her husband
during the time she was at the plant on 2 Novem-
ber; and (9) the Respondent's motivation to disci-
pline Gooch on the basis of complaints voiced by
employees, which were expressed in terms of
Gooch's union activities.
In regard to the final factor relied on by the
judge-the Respondent's motivation to discipline
Gooch based on employee complaints-the Re-
spondent argues that the judge incorrectly found
that the employees' complaints were based on their
displeasure with Gooch's union involvement rather
than with her presence at the plant for personal
reasons during her leave. However, as seen below,
the record fully supports the judge's finding that
the employee complaints referred to Gooch's par-
ticipation in union activities while on leave of ab-
sence from her work.
Employee Patricia Cave testified that she was
working at her machine on the day in question
when "they hollered `Martha's across the street."'
Cave testified that Gooch was sitting in her car,
and the "union men" were just standing there. The
day after she saw Gooch across the street with the
union handbillers, Cave told Plant Manager Lord
that "there should be something done about it."
She also testified that "a bunch of us went to the
bossman about it . . . I thought she should have
been at home with her son . . . instead of across
the street." Employee Carol Keith testified that she
told her immediate supervisor, as well as Lord and
Tanner, that she "didn't think it was right that
[Gooch] was out on absence of leave [sic] with her
child . . . then being back across the road working
with the Union men." Also according to Keith,
"from what I gather, everybody was complaining
about it . . . they complained to Bernie Tanner,
and John Lord-the supervisors, everybody was
upset about it." Keith acknowledged that she was
angry because she, and the other employees who
complained about Gooch's activity, did not want
ed or relied on by the Respondent at the time it imposed the suspension
Under these circumstances, we find it unnecessary to rely on the judge's
remark , in sec l l,B,2 of his decision , that the Respondent has not "satis-
factonly demonstrated [the] point" that it had reasonable cause to believe
that Gooch had sought or obtained her leave of absence under false pre-
tenses As seen, we agree with the judge 's ruling at the hearing that evi-
dence on such a question is immaterial to the issue in this case-whether
the Respondent disciplined Gooch because of her union activities, or be-
cause she violated her leave of absence
the Union. Finally, employee Virginia Steward tes-
tified that the day after Gooch's appearance with
the union handbillers across the street from the
plant, Stewart asked Tanner why he had given
Gooch time off to work for the Union. Stewart
told Tanner that if he gave Gooch time off to
work for the Union, then he should give other em-
ployees time off "to work for the non-Union."
When Tanner explained that Gooch had been
given a leave of absence to care for her sick child,
Stewart replied to Tanner that Gooch should be
taking care of her child instead of working for the
Union. Thus, the record fully supports the judge's
finding that, in suspending Gooch, the Respondent
was well aware of and motivated by the complaints
of several employees that Gooch was participating
in union activities while on leave of absence to
care for her child.
2. The judge found, and we affirm, that the Re-
spondent did not violate the Act by attempting to
prevent the Union from distributing handbills to
employees while the Union was trespassing on the
Respondent's property at driveway entrances A
and B on 5 and 20 October. The judge also found
that Plant Manager Lord sought to prohibit Union
Representative Adler from handbilling on public
property at entrance C on 5 October, and that
Lord thereafter engaged in surveillance of that
handbilling. The judge concluded that under these
circumstances the actions of Lord constituted un-
lawful surveillance of and attempts to restrict hand-
billing on public property, in violation of Section
8(a)(1) of the Act. We affirm the judge in these re-
gards . Gainesville Mfg. Co., 271 NLRB 1186 (1984)
(surveillance); Schlegel Oklahoma, Inc., 250 NLRB
20, 24 (1980) (attempt to restrict handbilling). In af-
firming the judge's finding of unlawful surveillance
of employee union activity at entrance C, we em-
phasize that Lord did not merely observe union ac-
tivity, but rather attempted to prohibit Adler from
distributing handbills to employees on public prop-
erty, and that Lord stood very close to Adler for
the duration of the handbilling.
The judge also found that the Respondent violat-
ed Section 8(a)(1) of the Act by engaging in sur-
veillance of the handbilling at entrances A and B
on the Respondent's property. We disagree.
The judge properly concluded that because the
union representatives were trespassing on the Re-
spondent's property when they engaged in hand-
billing at entrances A and B, the Respondent acted
lawfully in attempting to prohibit that activity.
Thus, we are left only with the question whether
the Respondent, while acting lawfully in attempt-
ing to evict trespassers , nevertheless acted unlaw-
fully in observing their trespassory activities. The
HOSCHTON GARMENT CO 567
question virtually dictates the negative response we
give to it in this case. Indeed, the precedent relied
on by the judge does not support the, result he
reaches on this question. Shrewsbury Nursing Home,
227 NLRB 47, 50 (1976), on which the judge
relied, is factually distinguishable because in that
case the employer hired an armed guard and
placed him in a prominent position to observe and
intimidate employees engaging in protected activi-
ty. In Woodland Molded Plastics Corp., 250 NLRB
169 (1980), involving objections to conduct affect-
ing a representation election, a panel majority
found that the employer engaged in objectionable
surveillance by observing its employees' open
union activities on public property adjacent to its
own. However, Woodland is inconsistent with nu-
merous unfair labor practice cases holding that an
employer's mere observation of open, public union
activity on or near its property does not constitute
unlawful surveillance.5 Finally, the judge relied on
dictum in Mike Yurosek & Son, 229 NLRB 152 fn.
3 (1977), that a determination of whether organiz-
ing activity was conducted on public property or
the employer's private property is immaterial in re-
solving a surveillance issue . We decline to follow
this dictum and rely instead on the holdings of the
cases cited in footnote 5.
Thus, as seen from the above-cited cases, union
representatives and employees who choose to
engage openly in their union activities at an em-
ployer's premises should have no cause to complain
that management observes them. This is particular-
ly true where, as at entrances A and B in the in-
stant case, the union representatives chose to
engage in their activities while trespassing on the
employer's premises. Indeed, it is this circum-
stance-the trespass and the Respondent's immedi-
ate and continuing objection to it-which particu-
5 Schnadig Corp, 265 NLRB 147, 157 (1982), Porto Systems Corp, 238
NLRB 192 (1978), Chemtrontcs, Inc, 236 NLRB 178 (1978), Larand Let-
surehes, Inc, 213 NLRB 197, 205 (1974), Milco, Inc, 159 NLRB 812, 814
(1966) See also Emenee Accessories, 267 NLRB 1344 (1983) One adminis-
trative law judge has stated in a decision adopted by the Board, "The
notion that it is unlawful for a representative of management to station
himself at a point on management 's property to observe what is taking
place at the plant gate is too absurd to warrant comment " Tarrant Mfg
Co, 196 NLRB 794, 799 (1972) Although Chairman Dotson and
Member Stephens do not subscribe to the rationale applied by the panel
majority in Woodland, they find it unnecessary to address that decision in
the context of the instant unfair labor practice proceeding
Member Dennis would explicitly overrule Woodland upon which the
judge relied because it is an invalid legal standard by which to judge any
type of case Further, it has not been the Board's practice to refrain from
overruling representation decisions in unfair labor practice proceedings
See, e g, T R W Bearings, 257 NLRB 442 (1981) (an unfair labor practice
proceeding ) overruling Essex International, 211 NLRB 749 (1974) (a rep-
resentation decision) In Our Way, Inc, 268 NLRB 394 (1983) (an unfair
labor practice proceeding), the Board overruled T R W Bearings and re-
instated the Essex holding
Member Johansen finds Woodland, in which there was no trespass, dis-
tinguishable on that basis He therefore finds it unnecessary to reach the
merits of that case
larly legitimizes the Respondent's close, visible
presence at entrances A and B during the brief du-
ration of the handbilling on both occasions. The
Respondent did not engage in unlawful surveil-
lance of the instant handbilling at entrances A and
B by directing the union representatives to remove
themselves from the Respondent's private property.
Chemtronics, supra, 236 NLRB at 178. Rather, the
Respondent's attempts to evict the trespassing
union representatives were the exercise of a legiti-
mate proprietary prerogative. Id. Inasmuch as the
Respondent ultimately had a right to expel nonem-
ployee union organizers from its property, NLRB
v. Babcock & Wilcox Co., 351 U.S. 105 (1956), it
perforce had a right to stop short of expulsion and
simply observe the handbilling activity on its prem-
ises. See cases cited at footnote 5, supra. That Re-
spondent officials remained at entrances A and B
while the union representatives distributed their
handbills is not indicative of illegal surveillance.
Rather, under the circumstances, the presence of
the Respondent's officials at entrances A and B
was "part and parcel of [their] permissible effort to
evict [the union representatives] from company
property." Mike Yurosek & Son, supra, 229 NLRB
at 160. Nor is there any evidence that the Respond-
ent even arguably aggravated the situation by
taking photographs of the handbilling or by noting
the names of employees accepting or rejecting the
Union's handbills. See Halo Lighting Division, 259
NLRB 702, 712, 716 (1981).
In sum, the record establishes, the judge found,
and we conclude that the Respondent acted with
lawful purpose in attempting to evict the trespass-
ing union representatives from the Respondent's
property. Given that lawful purpose, we find, con-
trary to the judge, that the Respondent acted with
an equally lawful purpose, and without unlawful
effect, in monitoring the trespassory activity of the
union representatives at entrances A and B. Ac-
cordingly, we shall dismiss that part of the com-
plaint which alleges unlawful surveillance of union
activities at entraces A and B.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Hoschton Garment Company, a Subsidi-
ary of Spencer Industries, Inc., Hoschton, Georgia,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
"(b) Surveillance of, or interference with, em-
ployee receipt of handbills distributed by Interna-
tional Ladies' Garment Workers' Union, AFL-
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CIO, or any other labor organization, on public
property."
2. Substitute the attached notice for that of the
administrative law judge.
MEMBER BABSON, concurring.
Although I do not concur entirely in the analysis
set forth by my colleagues with respect to the sur-
veillance issues in this case, I do agree with their
conclusion that the Respondent's agents' conduct at
entrances A and B was lawful and that their con-
duct at entrance C was unlawful. I would find that
the surveillance at entrances A and B was lawful
inasmuch as the union activity observed was open
and in plain view, and the surveillance constituted,
at least in part, observation of trespassory activity
on the Respondent's property. Conversely, the sur-
veillance at entrance C was inextricably entwined
with the Respondent's unlawful attempt to prohibit
handbilling on public property, and therefore I
would find the surveillance unlawful.'
' I join my colleagues, for the reasons stated by them, in adopting the
judge's conclusion that the Respondent violated Sec 8(a)(3) and (1) of
the Act by suspending employee Gooch
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT attempt to prohibit handbill distri-
bution by International Ladies' Garment Workers'
Union, AFL-CIO, or any other labor organization,
to our employees on public property.
WE WILL NOT engage in surveillance of, or inter-
ference with, employee receipt of union handbill
distributions on public property.
WE WILL NOT discourage activity on behalf of
the above or any other labor organization by sus-
pending or otherwise discriminating against our
employees because of their union activity or sup-
port.
WE WILL NOT in any like or related manner
interfere with our employees in the exercise of
rights listed above.
WE WILL make whole Martha Gooch for any
lost earnings or benefits suffered by reason of the
discrimination against her, with interest.
WE WILL remove from our personnel records
and files any reference to the suspension of Martha
Gooch and WE WILL notify her that this has been
done and that evidence of her unlawful suspension
will not be used as a basis for future disciplinary
action against her.
HOSCHTON GARMENT COMPANY, A
SUBSIDIARY OF SPENCER INDUSTRIES,
INC.
Ann Leslie Unger and Paul K Tamaroff Esqs., for the
General Counsel.
Robert H. Buckler, Alexander E. Wilson, Jr., and Kieran
Shanahan, Esq. (Alston & Bird), of Atlanta , Georgia,
for the Respondent.
James Goldberg, Esq., of Atlanta , Georgia , for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
HuTTON S. BRANDON , Administrative Law Judge.
This case was heard at Atlanta, Georgia, on July 14-15,
1983. The Charge in Case 10-CA-18618 was filed by
International Ladies' Garment Workers' Union, AFL-
CIO (Union), on October 14, 1982 ,' alleging violations
of Section 8(a)(1) of the National Labor Relations Act
by Hoschton Garment Company, a subsidiary of Spencer
Industries , Inc. (Respondent or the Company). A com-
plaint on the charge was issued by the Regional Director
for Region 10 on November 22 and amended on March
21, 1983.2
The charge in Case 10-CA-18741 was filed by the
Union on November 22 alleging violations of Section
8(a)(3) and (1) of the Act by Respondent. The complaint,
in that case , coupled with an order consolidating it with
the prior cases, issued on March 22, 1983.3 The primary
' All dates are in 1982 unless otherwise stated
2 In its answer to the complaint in Case 10-CA- 18616, Respondent as-
serted that the case had been resolved by a settlement agreement How-
ever, no evidence was presented at the hearing on the matter According-
ly, no merit can be found to this defense
9 These consolidated cases were initially set to be heard on a calendar-
call basis in connection with Gainesville Manufacturing Co, Inc , a sub-
sidiary of Spencer Industries , Inc , Case 10-CA-19132 At the opening of
the hearing involving the Hoschton cases, the General Counsel moved to
consolidate them with the Gainesville case for hearing , it appearing that
all these cases shared witnesses , legal representation , and legal issues The
General Counsel 's motion was unopposed and was granted as was the
further motion to sever the Hoschton cases from the Gainesville decision
prior to issuance of the decisions in these cases An order severing the
Hoschton cases from the Gainesville case issued on September 2, 1983
HOSCHTON GARMENT CO 569
issues are whether Respondent, (a) violated Section
8(a)(1) of the Act by its actions with respect to the pro-
hibition of, and interference with, nonemployee union or-
ganizers in distributing leaflets to employees on October
5 and 20, and (b) violated Section 8(a)(3) and (1) of the
Act by suspending an employee for 3 days for participat-
ing in union activity on November 2.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the positions and arguments of the parties at the hearing
and the briefs filed by the General Counsel and Charging
Party, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Georgia corporation with an office
and place of business located in Hoschton, Georgia,
where it is engaged in the manufacture of men' s pants.
Respondent in the calendar year preceding issuance of
complaint sold and shipped finished products valued in
excess of $50,000 from its Hoschton facility directly to
customers located outside the State of Georgia. The
complaints allege, Respondent admits, and I find that Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
The complaints further allege, Respondent at hearing
stipulated, and I find that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
il. THE ALLEGED UNFAIR LABOR PRACTICES
A. Alleged Independent 8(a)(1) Violations
1. Allegations
It is undisputed that the Union began an organizational
campaign at Respondent's Hoschton plant in the late
summer or early fall. It was in connection with that or-
ganizing effort that the Union undertook to distribute
leaflets to Respondent's employees on October 5 and 20
as the employees were leaving Respondent's plant prem-
ises at the end of their workday. Respondent's reaction
to the Union's attempt to handbill provides the basis for
the complaint allegations that Respondent, through its
manufacturing manager and supervisor, Bernard Tanner,
on October 5 and 20, and through its plant manager,
John Lord, on October 5 "prohibited its employees from
joining or engaging in activities on behalf of the Union
after completing their work day and while off company
property." It is further alleged that Tanner on October 5
and 20, and Lord on October 5, "engaged in surveillance
of the Union activities of its employees."
2. Facts
A physical description of Respondent's Hoschton
premises is critical to an understanding of the location of
the Union's handbilling and Respondent's reaction to it.
Respondent's plant is located in or about the small com-
munity of Hoschton and adjacent to State Highway 53.
The plant building is approximately 40 to 50 feet from
the edge of the highway pavement. The space between
the building and the highway pavement is a lawn area
which is fully maintained by Respondent. Respondent's
premises are not fenced nor are they in any way posted
against trespass. There are no sidewalk or gravel shoul-
ders in front of the plant along the highway.
Access to plant premises by automobile may be had at
three locations. The first is to the right of the plant as
one faces the plant and consists of a paved driveway
which runs from the highway along the side of the plant
building and into a parking lot at the rear of the plant.
That entrance shall be referred to as entrance A. The
second entrance is a paved driveway from the highway
and runs parallel to entrance A but on the other side of
the plant building. It also ends in the rear parking area.
This entrance shall be referred to as entrance B. The last
entry from the highway, designated as entrance C, is by
way of a public residential road which parallels the drive
from entrance B, but is separated from it by a narrow
unpaved strip of Respondent's premises.4 The B drive-
way is connected to the residential road by a short con-
nector toward the rear of the plant.5
On October 5 shortly prior to the regular employee
quitting time, three union representatives, James Sala,
Gary Adler, and John Montgomery, arrived at Respond-
ent's premises to handbill employees as they left work
and entered Highway 53. Sala and Adler both testified
that the three took positions at the three Highway 53 en-
trances with Montgomery at A, Sala at B (the most
heavily used entrance), and Adler at C.
It was admitted by Tanner that prior to any actual
handbilling, he and several other management represent-
atives came out of the plant and confronted the union
representatives at their respective handbilling positions
It was Sala's testimony, not specifically contradicted by
Tanner, that Tanner approached him, told him he was
on private property, was trespassing, and asked him to
leave. Sala who claimed that he was standing on the
pavement at entrance A within an arm's length of High-
way 53 told Tanner he was standing within the right-of-
way of Highway 53, and he continued to pass out leaf-
lets.6 Sala further testified without contradiction that
Tanner threatened to call the police and stood next to
Sala and sometimes even in front of Sala as he attempted
to distribute his handbills to the employees as they left
the premises in their cars. Tanner freqently and loudly
accused Sala of trespassing in the presence of the em-
ployees.
Adler testified that he was approached by Lord at en-
trance C on the public residential road, and Lord en-
4 The record does not reflect the exact width of the strip , but from an
unscaled diagram in evidence it appears to be no more than a few feet
wide
a The residential road proceeds to curve behind the parking lot in the
rear of the plant and, based on an unscaled diagram received in evidence,
appears to be joined to the parking area by a connector from the rear of
the parking lot Neither the short connector to the side of the plant nor
the rear connector are particularly significant herein inasmuch as no
handbilling tool place at those locations, but they do serve to reveal how
employees exiting the rear parking area reach entrance C on Highway
53 .
a Sala conceded in testimony that the Union had not investigated the
extent of the State 's right-of-way at that location prior to going to Re-
spondent 's plant on October 5
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaged in conduct similar to that of Tanner .' Moreover,
Adler testified that he heard and observed Tanner's con-
duct and remarks directed to Sala . Further, he testified,
without contradiction from Tanner, that Tanner also
yelled that the Union was trying to take the employees'
money and that the employees did not need a Union.
Tanner and Lord remained at one or another of the
handbill points for the duration of the handbilling. Al-
though the local police were called ,8 they did not arrive
until at or near the end of the handbilling . Tanner de-
clined to seek arrest of the union representatives who left
after completion of the handbilling.
The union representatives again handbilled on October
20, this time with Sala at entrance C, Montgomery at en-
trance A, and Adler at entrance B. This time the police
arrived early during the handbilling and, according to
Sala's testimony (supported by that of Adler) Tanner and
a policeman approached Adler. Sala at that point walked
over to Adler's position and heard Tanner insist that the
union representatives were trespassing and request the
policeman to remove them. The union representatives
maintained they were on the state road right-of-way.
The policeman declined to take action in view of Tan-
ner's refusal to swear out a warrant and returned to his
car parked on Respondent 's premises where he watched
the remainder of the handbilling. It is undisputed that
Tanner remained at one or another of the entranceways
for the duration of the handbilling observing the hand-
billing and telling the union representatives that they
were trespassing . Adler's testimony that Tanner told him
that as long as Adler was out there, Tanner would be
out there was not contradicted.
There is no contention that the handbilling in any way
blocked traffic. The only significant dispute between the
witnesses in this case is the distance the union representa-
tives ventured into Respondent 's premises from the edge
of Highway 53 on both occasions of handbilling. Sala
testified that while at entrance B he never got much
beyond 2 or 3 feet from the edge of the highway. Adler
testified that on October 5, while at entrance C, the
public road, he went up and down the road several car
lengths, but that at entrance B on October 20 he re-
mained only 4 or 5 feet from the edge of the highway.
Tanner, on the other hand, testified that on each occa-
sion of handbilling, all three union representatives regu-
larly went 15 to 20 feet into Respondent 's premises to
distribute handbills to the second car in line awaiting
access to the highway . Lord, contrary to Tanner , testi-
fied the union representatives came into the driveways
only 4 or 5 feet.
Employee Particia Cave appeared to support Lord by
testifying that Adler at entrance B on October 5 ap-
proached the front side window of her car as the front
r Lord, in his testimony for Respondent , denied that he talked to Adler
at the C entrance . Rather, he said his remarks to Adler were made at the
B entrance when Adler went over there during the handbilhng Tanner
in his testimony denied that any of the union representatives went over to
the C entrance.
8 Tanner conceded that , having some foreknowledge of the Union's
intent to handbill , he called the police even before the union representa-
tives appeared in front of the plant and, thus, before the alleged trespass
occurred
of her car was about 1 foot from the highway. However,
on the diagram of Respondent's premises , General Coun-
sel's Exhibit 5, Cave marked Adler's position as being
very near the corner of the plant, a position which
would have placed Adler some 40 feet from the high-
way. Because the diagram was not drawn to scale, it was
clearly misleading to witnesses . I conclude that Cave
was confused by the diagram and that her markings on it
are unreliable.
Like Cave, employee Carol Keith placed the union
representatives at the side of the plant on the B driveway
on October 5. She further testified that on October 20
the union representatives came down one car length onto
Respondent's premises from Highway 53 during the
handbilling.
Finally, Virginia Stewart, another employee presented
by Respondent, testified generally that the union repre-
sentatives on October 5 came onto Respondent's prem-
ises by more than one car length. She could not identify
the specific union representatives or give further details.
However, she identified Sala on October 20 as coming
down three car lengths on the premises to a point near
the side entrance to the plant building.
With respect to the extent of entry into Respondent's
driveways by the union representatives, I conclude the
testimony of Sala and Alder is the most accurate, reli-
able, and credible. Both impressed me as earnest and
truthful. Also, their testimony on this point appears to be
supported by Lord.9 Tanner, on the other hand, in his
eagerness to bar the union representatives from any in-
trusion impressed me as more inclined to exaggeration
regarding the extent of their entry. The accuracy of
Cave, Keith, and Stewart's testimony on this point is
tempered by their exhibition of some antiunion bias.
Moreover, their testimony at points appeared confused
and misleading to the extent it placed the union repre-
sentatives at drive B opposite the side doors to the plant.
Even Lord and Tanner never claimed the union repre-
sentatives reached such points. I find it more likely that
the union representatives seen opposite or near the plant
side entrances were on the adjacent residential road
rather than driveway B, as it is admitted that union rep-
resentatives did go up and down that road a distance of
several car lengths while handbilling.
3. Arguments and conclusions
The General Counsel argued this case on very narrow
grounds. Thus, apparently proceeding from the premise
that Respondent could lawfully bar its premises to non-
employee union ' organizers , the General Counsel relies
on the definition of a public road found in the Georgia
Code of Public Transportation, Official Code of Georgia
Annotated , 32-1-3-(24) (Michie), to argue that the union
representives did not trespass on Respondent's premises
during their handbilling. The cited statute defines a
public road as including appurtenances incidental to the
road's right-of-way and specifically "surface, shoulders,
To the extent , however, that Lord's testimony contradicts Adler's re-
garding Lord 's confrontation with Adler at the C entrance on October 5,
I credit Adler
HOSCHTON GARMENT CO 571
and sides" of the road. The General Counsel then argues
that the union representatives were only on the shoulder
and sides of Highway 53, and thus were in a public area.
The public nature of the area of the handbilling was fur-
ther demonstrated, the General Counsel contends, by Re-
spondent's admitted acquiescence i ° in pedestrian use of
the grass area on Respondent 's side of, and running
along, the highway. Accordingly, it is the General Coun-
sel's position that in the absence of trespass , Respond-
ent's interference with receipt by employees of union lit-
erature constitutes an 8(a)(1) violation. The General
Counsel takes the further position, citing Reeves South-
eastern Corp., 256 NLRB 574 (1981), that the presence of
Respondent 's supervisors during the duration of the
handbilling constituted unlawful surveillance in violation
of Section 8(a)(1).
The Charging Party's brief largely echoes the General
Counsel's arguments and asserts there was no trespass.
Proceeding from that premise, the Charging Party, citing
Schlegel Oklahoma Inc., 250 NLRB 20 (1980), enfd. 644
F.2d 842 (10th Cir . 1981), and Mike Yurosek & Sons, 229
NLRB 152 (1977), concludes that Respondent could not
lawfully interfere with peaceful union handbilling outside
Respondent' s premises and on public property.
At the hearing Respondent indicated its defense was
based on NLRB v. Babcock & Wilcox Co., 351 U.S 105
(1976), and its argument that the Union was on its prem-
ises during the handbilling. In support of its position in
this regard, it called Jimmy Hill, right-of-way district
manager for the Gainesville district, Georgia Department
of Transportation, who testified that the State owed no
right-of-way in from of Respondent 's plant . Although
Hill stated that the State does assume certain mainte-
nance rights and functions along highways even without
specific right-of-ways , it made no maintenance claims
along the area in front of Respondent's plant. Moreover,
Hill testified that if he were to negotiate the purchase of
a right-of-way from Respondent, he would bargain with
Respondent from the "edge of the pavement" on High-
way 53.11 Based on this it appears to be the Respond-
ent's position that the edge of the highway itself was the
only place from which the Union could handbill without
trespassing.
Based on Hill's testimony, which I found credible, I
conclude that the State possessed no right-of-way
beyond the edge of the pavement on Highway 53 in
front of Respondent's plant. I further find that the State's
statutory definition of a public road to include sides and
shoulders adds nothing to define the extent of Respond-
ent's property rights. "Sides" and "Shoulders" are indefi-
nite terms which are not useful in setting precise bound-
aries. Moreover, the record here supplies no descriptions
which give greater meaning or dimensions to such terms.
The Charging Party, in order to avoid a finding of
trespass by the union agents , argued alternatively that
10 Tanner admitted that pedestrians have walked along this grass area,
including possibly school children on their way to a school closer into
Hoschton but on the same side of Highway 53 as Respondent Tanner
claimed no effort by Respondent to restrict these other users
11 Respondent 's property deed which was received in evidence was
not particularly enlightening It describes the premises as "joining proper-
ty of State Highway Dept Rt #53 "
the property along Highway 53 must be considered as
"dedicated to public use" as the property was not
fenced, was not posted, and there was evidence it was
used by pedestrians. In view of Hill's testimony, howev-
er, it appears that the State made no such claims of dedi-
cation. Moreover, there was no citation by Charging
Party of state law or authority reflecting the elements
constituting dedication to public use. The record con-
tains little evidence on which the dedication issue could
be decided. Finally, even assuming some public use of
Respondent's premises, such use would not operate to
preclude Respondent's right generally to bar handbill
distribution on its premises See Central Hardware Co. v.
NLRB, 407 U.S. 539 (1972), Mike Yurosek & Sons, supra.
Because the union representatives here entered A and
B entrances at least 5 feet by their own admission, and
because Respondent's claim to property rights to the
highway pavement have not been disproved , I must con-
clude that the union representatives on October 5 and 20
did trespass Respondent's property at those locations.
In Babcock & Wilcox, supra at 112, the Supreme Court
stated:
It is our judgment, however, that an employer may
validly post his property against nonemployee dis-
tribution of union literature if reasonable efforts by
the Union through other available channels of com-
munication will enable it to reach the employees
with its message and if the employer's notice or
order does not discriminate against the Union by al-
lowing other distribution.
There was no evidence offered, nor was it argued, that
the Union had no other available channels through
which to reach Respondent's employees than literature
distribution on Respondent's premises. Nor was there
any evidence presented which would establish that Re-
spondent allowed other distributions by nonemployees
on its premises so as to show discrimnation against the
Union. Under these circumstances, it would appear that
Babcock & Wilcox controls here so that Respondent's ac-
tions in barring union representatives at areas A and B
did not constitute unlawful interference with Section 7
rights of employees to receive union literature and infor-
mation. The complaint allegations attributing unlawful
conduct to Tanner in this regard on October 5 and 20
must be dismissed.
Respondent had no property rights which would be
violated by handbill distribution at C, the public residen-
tial road. Adler's testimony, contradicted only by Lord,
was that Lord sought to prohibit him from handbilling
even at that location on October 5 claiming trespass.
Adler's testimony on the point was clear, concise, and
unambiguous I find it convincing and credible. In doing
so, I note also that Adler testified that another man from
Respondent's plant was with Lord at the time. However,
although Lord did not contradict Adler's testimony with
respect to another man, Respondent failed to adduce the
testimony of any additional person. Accordingly, on
Adler's credited testimony I find Respondent did attempt
to restrict handbilling on public property and, therefore,
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violated Section 8(a)(1) of the Act, as alleged. Mike Yur-
osek & Sons, supra.
The finding of trespass by the union agents is not dis-
positive of the surveillance allegation, for whether or not
it had a right to exclude the union agents , if Respondent
engaged in surveillance of the union activities of its em-
ployees, i.e., their receipt of union literature, it would
nevertheless have violated Section 8(axl) of the Act.
Mike Yurosek & Sons, supra, fn. 3. I find that Respondent
through Tanner and Lord on October 5 and 20 did
engage in unlawful surveillance as the complaint alleges.
Although Respondent may have a legitimate right to
keep the union agents off its property, the actions of
Tanner and Lord went beyond the simple exercise of
that right on both dates. Thus, it is clear both remained
with the union agents for the duration of the handbilling,
and both were in a position to closely observe each em-
ployee as they passed and whether the employee rejected
or received a handbill. Furthermore, that Respondent
was not solely concerned with its property rights during
such handbilling was demonstrated by Tanner's undenied
remarks to the union agents on both occasions to the
effect the employees did not want a union and that all
the union wanted was to take the employees' money.
Such remarks loudly delivered in the presence of em-
ployees rolling by in their cars constituted more than a
subtle hint to employees that they might incur Respond-
ent's displeasure by the act of receiving the Union's
handbills which would be surely observed by Respond-
ent. Finally, Respondent did not seek to enforce its tres-
pass claims by pressing for the arrest of the union agents.
Although the police arrived after substantial completion
of the handbilling on October 5, this was not the case on
October 20. However, rather than pursue arrest action,
Tanner and Lord simply continued to watch the hand-
billng and Tanner even asserted, according to the testi-
mony of both Sala and Adler, uncontradicted in this
regard, that he would be "out there" whenever the
union agents were there to handbill. Considering the
foregoing, I am persuaded that a purpose of the presence
of Tanner and Lord was to effectively survey, and thus
interfere with, the union activities of the employees.
Thus, I conclude Respondent violated Section 8(a)(1) in
this regard as the complaint alleges . Cf. Woodland
Molded Plastics Corp., 250 NLRB 169 (1980); Shrewsbury
Nursing Home, 227 NLRB 47 (1976).
B. The Alleged 8(a)(3) Violation
1. Material facts
Martha Gooch, the alleged discriminatee, had been
employed by Respondent for about 3 years as a blind
hemmer under the supervision of Nellie Watkins. She
began participating in activities on behalf of the Union
during the fall and openly revealed her union support by
wearing union T-shirts and buttons at work.
On November 1, Gooch was called home from work
to attend her ill 4-year-old child who was developing
pneumonia . Gooch testified that her doctor advised her
personally to remain at home with the child because of
the child's high fever. Accordingly, Gooch returned to
Respondent's plant on the morning of November 2 and
sought a leave of absence from work until November 8.
Gooch explained the basis for her requests, and the leave
was approved by Department Manager Taylor Clay and
Plant Manager Lord. Gooch then left the plant.
It is undisputed that on the afternoon of November 2
the Union again engaged in handbilling at Respondent's
plant . It is further undisputed that sometime earlier it had
announced to its employee supporters its intent to hand-
bill and had requested such supporters to be present
during the handbilling. Pursuant to this request, Gooch
returned to the plant on November 2 about 5 minutes
before the normal quitting time and took a position
across the street from the plant with other employee
union supporters where she observed the handbilling.
She remained at this position for the duration of the
handbilling. She remained at this position for the dura-
tion of the handbilling , an estimated 10 to 15 minutes,
after which she left.' 2 Gooch explained in her testimony
that during the time she was handbilling, she had left her
ill son with her husband who was not normally available
to care for the child because he worked a night job and
slept during the day. He was awake on November 2
when Gooch had returned to the plant to observe the
handbilling.
Gooch continued with her leave of absence but re-
turned to the plant on November 5 to pick up her pay-
check. During her stay at the plant which lasted about
10 minutes , she saw Nellie Watkins who remarked that
Gooch should hurry up and return to work. Gooch re-
plied that she would return the following Monday.
On November 8, when Gooch returned to work, she
was called into Tanner's office where Tanner, in the
presence of Watkins, talked to Gooch. Gooch testified
that Tanner remarked that he had word she had been
"across the street" the preceding Tuesday. She con-
firmed that she had been. Tanner inquired whether she
knew she was not supposed to be outside the plant
whenever she was on a leave of absence. She replied
there was no harm in it because her child was not with
her. Tanner inquired if she knew she was violating her
leave of absence, and she responded she did not, that her
child was home with her "old man," and that she shared
things with her old man. Tanner replied that that made
no difference, that the leave of absence had been for her.
Tanner then suspended Gooch from November 8
through 10 for having abused her leave of absence.
Gooch asked Tanner if he was doing it because of the
Union, and Tanner responded that that was not the issue.
Gooch's testimony in the foregoing respects was gen-
erally corroborated by Watkins. Further, it was substan-
tially consistent with Tanner's own notes of the meeting
with Gooch made immediately after the meeting con-
cluded. Accordingly, and also because Gooch impressed
me as a straightforward and truthful witness, her testimo-
ny is credited.
It is undisputed that Respondent had never before dis-
ciplined an employee for abuse of a leave of absence. It
is likewise undisputed that at the time of the decision to
12 The evidence does not reflect that Gooch engaged in handbillmg
herself
HOSCHTON GARMENT CO. 573
suspend Gooch , Respondent had no further information
regarding an abuse of leave by Gooch other than her
presence for a few minutes at the plant on November 2.
2. Arguments and conclusions
The General Counsel and Charging Party argue that
the suspension of Gooch was retaliatory for her appear-
ance with the Union during handbilling on November 2.
It is argued that the absence of any prior discipline of
employees for abuses of leaves of absence, the absence of
any specific restrictions on Gooch's leave of absence at
the time the leave was granted , and Respondent 's failure
to discipline other employees for abuses of leaves of ab-
sence by appearing at the plant for various reasons
during such leaves , all reflect disparate treatment and
discriminatory motivation in Gooch's suspension. The
Charging Party also contends that Gooch's presence for
a few minutes at the plant on November 2 during the
handbilling could not be seriously regarded as an abuse
of Gooch's leave of absence and Respondent's contention
otherwise is "palpably absurd."
Respondent at the hearing contended that its action
was prompted by employee complaints about Gooch's
appearance on November 2 and their protests that her in-
volvement in union activity during her leave of absence
was unfair to the other employees , some of whom might
like to take a leave of absence to work against the
Union.' 3 However, Respondent appears to also contend
that it was not the way in which Gooch abused her
leave of absence, but the fact of the abuse which prompt-
ed the imposition of discipline. Also, as evidence of the
absence of discriminatory motive, Respondent points to
the uncontradicted fact that other employee union sup-
porters were present with Gooch and the union agents
on November 2 but were not in any way disciplined.
Under Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cit. 1981), to establish a violation of Sec-
tion 8(a)(3) and (1) of the Act when employer motivation
is involved, the General Counsel is required to make a
prima facie showing sufficient to support the inference
that protected conduct was a "motivating factor" in the
employer's decision. Following that, the burden shifts to
the employer to demonstrate that the same action would
have taken place even in the absence of the protected
conduct.
In the instant case it is quite clear that even if she had
not done so earlier, Gooch identified herself with the
union organizational effort by her presence on the
Union's side of the road on November 2. It is equally
clear that Respondent strongly opposed the Union. In
view of this, Respondent's dicipline of Gooch becomes
highly suspect. The suspicion regarding Respondent's
motivation in suspending Gooch is increased by the ab-
19 Two employees , Cave and Keith, testified for Respondent that
knowing of Gooch 's leave of absence and the reason for such leave, they
complained to Watkins or Lord about Gooch 's presence in front of the
plant on November 2 They testified in essence that they did not think it
was right or fair for Gooch to leave a sick child at home and work for
the Union Employee Stewart testified she complained to Tanner about
Gooch being off to work for the Union When Tanner responded that
Gooch had leave of absence for a sick child, Stewart replied Gooch
should be caring for the child rather than working for the Union
sence of any precedent for the suspension of Gooch. In
fact, employee Janet Kates credibly testified for the Gen-
eral Counsel that she had at least once returned to the
plant briefly while on leave of absence to care for a rela-
tive, but she had not been disciplined therfore. Indeed,
Kates testified without contradiction that Respondent
had no policy against employees returning to the plant
during leaves of absence. 14
The suspicion about the violative nature of Gooch's
suspension approaches certainty when one considers that
Gooch was not similarly disciplined when she returned
to the plant on November 5 for her paycheck Logic
suggests that if Gooch's presence at the plant on Novem-
ber 2 was an abuse of her leave, then her presence on
November 5 should be regarded as such for on each oc-
casion she was away from her ill child. Yet Respondent's
concern about Gooch's absence from her child and the
"abuse" of her leave suggested by such absence was trig-
gered only by the absence during which she had some
union involvement. In the interview with Gooch on No-
vember 8, when the discipline was imposed, Tanner in-
quired only about Gooch's presence on November 2 at
the plant. He displayed no interest in the details of the
remainder of Gooch's leave of absence. Considering this
and all the foregoing, I am fully satisfied that the Gener-
al Counsel has established a prima facie case that
Gooch's suspension was in response to her union activity
and support on November 2.
The burden now shifts to Respondent to demonstrate
that it would have suspended Gooch without regard to
her union involvement. Respondent attempted to show
that it had reasonable cause to believe that Gooch had
sought or obtained the leave under false pretenses and
that her presence at the plant with the Union on Novem-
ber 2 was inconsistent with the purposes for which the
leave was granted. I find it has not satisfactorily demon-
strated either point.
The evidence suggests, and I conclude, that in the
morning when Gooch requested her leave she contem-
plated returning that afternoon to observe the union
handbilling as the Union had requested. However, this
fact does not provide any reasonable basis in itself for be-
lieving that Gooch's basis for the leave was not genuine.
Her presence at the handbilltng was of very short dura-
tion, and Respondent admittedly had no other evidence
that she engaged in other union activity during her leave
that might indicate her request for leave was for other
than her stated reasons. Moreover, when Tanner in-
formed Gooch of her suspension, he made no inquiries
into Gooch's activities during her leave other than her
presence at the plant on the afternoon of November 2.
The record likewise does not show a credible or rea-
sonable belief by Respondent that Gooch's actions on
November 2 were inconsistent with the purposes of her
leave. She was at the plant for only 10 to 15 minutes.
Her ill child, she credibly testified, was left with her hus-
band who generally was not able to care for the child
14 Tanner admitted in his testimony that employees were not automati-
cally disciplined for a visit to the plant during a leave of absence, but was
equivocal regarding what circumstances might warrant discipline for
such a visit
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the day because of his shift work. Furthermore,
Gooch's absence from her child on November 2 was for
such a short time and because it was largely after normal
work hours it cannot reasonably be said to reflect on her
general availability for work to make her presence at the
plant inconsistent with the purpose of her leave absence.
Finally , it must be remembered that Respondent's
action with respect to Gooch was predicated also on
complaints received from employees. I find on this
record that these complaints were in turn based on the
complaining employees ' displeasure with Gooch 's union
involvement rather than her mere presence at the plant
during her leave of absence. The three employee wit-
nesses presented by Respondent on this point all dis-
played bias against the Union. Thus, to the extent Re-
spondent relied on such complaints, Respondent adopted
the motivations of the complaining employees which I
conclude were clearly union related.
Considering all the foregoing, as well as the fact that
the discipline imposed on Gooch was largely dispropor-
tionate to her offense, if it could be regarded as an of-
fense at all, I find Respondent has failed to demonstrate,
in light of the General Counsel's prima facie case, that it
would have taken the same action against Gooch even it
her presence at the plant on the afternoon of November
had been unrelated to union activity. Accordingly, I find
the suspension of Gooch violated Section 8(a)(3) and (1)
of the Act as alleged.
CONCLUSIONS OF LAW
1. The Respondent, Hoschton Garment Company, A
Subsidiary of Spencer Industries, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. International Ladies' Garment Workers' Union,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By attempting to prohibit union handbill distribution
to its employees on public property on October 5, 1982,
and by watching and interfering with employees in the
receipt of handbill distributions on October 5 and 20,
1982, Respondent engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(1) of
the Act.
4. By suspending its employee Martha Gooch on No-
vember 8, 1982, because of her protected activities on
behalf of the Union, Respondent engaged in, and is en-
gaging in , unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
5. The unfair labor practices set forth in Conclusions
of Law 3 and 4 above affect commerce within the mean-
ing of Section 2(6) and (7) of the Act.
6. Respondent has not violated the Act in any other
manner not specifically found above.
THE REMEDY
Having found that Respondent 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. Because I
have found that Respondent discriminatorily suspended
Martha Gooch for 3 days, it will be recommended that
Respondent make Gooch whole for any loss of earnings
she may have suffered as a result of such suspension.
Backpay is to be computed in accordance with the for-
mula approved in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest computed in the manner prescribed
in Florida Steel Corp., 231 NLRB 651 (1977).15 Also,
consistent with Sterling Sugars, Inc., 261 NLRB 472
(1982), I shall recommend that Respondent be required
to remove from its records any reference to the unlawful
suspension of Gooch and to provide written notice of
such action to Gooch and to inform her that Respond-
ent's unlawful conduct will not be used as a basis for fur-
ther disciplinary action against her.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, Houschton Garment Company, A
Subsidiary of Spencer Industries, Inc., Hoschton, Geor-
gia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Attempting to prohibit handbill distribution by
International Ladies' Garment Workers Union, AFL-
CIO, or any other labor organization , to its employees
on public property.
(b) Surveillance of, or interference with, employee re-
ceipt of handbills distributed by International Ladies'
Garment Workers' Union, AFL-CIO, or any other labor
organization.
(c) Suspending employees because of their protected
activities on behalf of International Ladies' Garment
Workers' Union, AFL-CIO, or any other labor organiza-
tion.
(d) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole Martha Gooch for any lost earnings
or benefits suffered as a result of her unlawful suspension
in the manner set forth in the remedy section.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Remove from the personnel records and files of
Martha Gooch any reference to her suspension and
notify her in writing that this has been done and that evi-
dence of her unlawful suspension will not be used as a
basis for any future disciplinary action against her
15 See, generally, Isis Plumbing Co, 138 NLRB 716 (1962)
16 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
HOSCHTON GARMENT CO. 575
(d) Post at its Hoschton, Georgia place of business
copies of the attached notice marked "Appendix."17
Copies of the notice, on forms provided by the Regional
Director for Region 10, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
14 If 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 Nation-
al 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 "
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found herein.