Spruce Pine Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 30, 1967

166 N.L.R.B. 437 (N.L.R.B. 1967)

SAGAMORE SHIRT CO. 437
Sagamore Shirt Company d/b/a Spruce Pine Manu-
facturing Company and Amalgamated Clothing,
Workers of America , AFL-CIO. Case
11-CA-2319
June 30,1967
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On June 22, 1965, the National Labor Relations
Board issued its Decision and Order,' finding that
the Respondent had engaged in and was engaging in
unfair labor practices in violation of Section 8(a)(5)
and (1) of the National Labor Relations Act, as
amended. On the Charging Party's Petition for
Review and on the Board's Petition to Enforce an
Order, the United States Court of Appeals of the
District of Columbia Circuit entered an opinion and
decree on June 27, 1966, and remanded the
proceeding to the Board for further consideration of
the supervisory status of the floorladies. On Sep-
tember 20, 1966, the Board issued its Order
Reopening Record and Remanding Proceeding to
Regional Director For Further Hearing, in which
th0e Board directed that a further hearing be held
before the Trial Examiner for the purpose of per-
mitting Respondent to adduce any evidence bearing
on the floorladies status which was not adduced in
Case 11-RC-1886, and that, upon conclusion of
such hearing, the Trial Examiner prepare a Trial
Examiner's Supplemental Decision. Pursuant to a
notice issued by the Regional Director, a further
hearing was held where all parties appeared and
were afforded full opportunity to litigate the subject
of the remand- the supervisory status of the floor-
ladies.
On March 28, 1967, Trial Examiner Thomas F.
Maher issued his attached Trial Examiner's Supple-
mental Decision, finding that the floorladies respon-
sibly direct employees and are supervisors within
the meaning of the Act. The Trial Examiner con-
cluded that the conduct and statements attributed
to the floorladies which were found in the Trial Ex-
aminer's Decision, and adopted by the Board in its
Decision and, Order, constitute conduct for which
Respondent is responsible and which requires
remedial action as set forth in the prior Trial Ex-
aminer's Decision. Accordingly, the Trial Ex-
aminer recommended that his previous Recom-
mended Order be readopted by the Board.
Thereafter, Respondent filed exceptions to the
Trial Examiner's Supplemental Decision and a sup-
porting brief. The General Counsel and Charging
Party filed cross-exceptions and statements in sup-
port thereof.2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connections with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the reopened hearing and finds
no prejudicial error was committed. The rulings are
hereby affirmed, except as modified below.3 The
Board has considered the Trial Examiner's Deci-
sion and Supplemental Decision, the exceptions,
cross-exceptions, and briefs, the entire record in the
prior hearing and the remanded hearing, and the
court's opinion, and hereby adopts the findings,
conclusions, and recommendations of the Trial Ex-
aminer, except as herein modified.
We affirm our adoption of the Trial Examiner's
original Recommended Order of December 23,
1964, except for paragraph 1(c) thereof which was
denied enforcement by the court.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its order the Recom-
mended Order of the Trial Examiner's Decision in
153 NLRB 309, and hereby orders that the
Respondent, Sagamore Shirt Company, d/b/a
Spruce Pine Manufacturing Company, Burnsville,
North Carolina, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as herein
modified:
1. Delete paragraph 1(c) from the Trial Ex-
aminer's original Recommended Order.
2. Delete the third indented paragraph from the
Appendix of the original Trial Examiner's Deci-
sion.
153 NLRB 309.
2 The General Counsel's motion to correct the transcript at the
reopened hearing at p. 87 and the name of Barbara Grindstaff is hereby
granted.
3 At the instant hearing, the Respondent made a motion to amend and
change the wording of the transcript of the prior hearing to conform with
Respondent counsel's intended remarks in a prior offer of proof. The Trial
Examiner granted the motion over objections of the General Counsel and
the Charging Party. We reverse this ruling This case was before the
Board 2 years ago, and no motion to change the record was made at that
time. Subsequently , the case was transferred to the United States Court
of Appeals , and again the transcript remained in its original form. It was
only after the court 's comments on the subject that Respondent sought to
change the record In our opinion, this matter could and should have been
166 NLRB No. 74
timely brought to the attention of the Board 2 years ago or to the court's
attention when the proceeding was pending before it. Additionally, when
the court remanded the case to the Board, it apparently did so for the
limited purpose of determining the status of the floorladies . The Trial Ex-
aminer, as well as the Board , does not have the authority to exceed the
scope of the court's remand In this regard, Respondent , after the court's
opinion, should have petitioned the court to enlarge the scope of its re-
mand order. As Respondent has failed to do this , the Board is bound, at
this time , to determine only the issues remanded to it by the court of ap-
peals. Accordingly, we find merit in the exceptions of the General Coun-
sel and the Charging Party to the Trial Examiner's ruling, which Respon-
dent readily admits "reopens another phase of the case", and we reverse
the ruling of the Trial Examiner's purported corrections of the prior trans-
cript.
308-926 0-70-29
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S SUPPLEMENTAL relied on Pittsburgh Plate Glass Co. v. N.L.R.B.,
DECISION 313 U.S. 146, 158 (1941), and the Board ' s Rules §
102.67(f), adopted in 1961, which provides that
STATEMENT OF THE CASE "[f]ailure to request review [of the Regional
THOMAS F. MAHER, Trial Examiner: On June 22,
1965, the National Labor Relations Board, hereafter
referred to as the Board, issued its Decision and Order in
this matter.' Thereafter on June 27, 1966, the United
States Court of Appeals for the District of Columbia Cir-
cuit entered an opinion and decree2 remanding the
proceeding to the Board with instructions to afford
Sagamore Shirt Company d/b/a Spruce Pine Manufactur-
ing Company, Respondent herein, a hearing to present
additional evidence and argument with respect to the
status of floorladies in its employ who were heretofore
found to be supervisors in Case 11-RC-1886.
On September 20, 1966, the Board issued its Order
Reopening Record and Remanding Proceeding to Re-
gional Director For Further Hearing. It was ordered
therein that upon the conclusion of the hearing I prepare
and serve upon the parties a Supplemental Trial Ex-
aminer's Decision containing findings and conclusions
upon the evidence received pursuant to the Order, and
make appropriate recommendations.
Pursuant to notice issued by the Regional Director a
further hearing was held before me in Burnsville, North
Carolina, where all parties appeared and were afforded
full opportunity to present evidence on the subject matter
of the remand, examine and cross-examine witnesses,
present oral argument, and file briefs. A brief and a Mo-
tion to Correct the Transcript of Record were filed by the
Charging Party. The Motion is hereby granted and it is
directed that the transcript be corrected accordingly.3
Upon the entire record in this case, including the
court's opinion and decree, the Board's Decision and
Order and subsequent Order Reopening the Record, the
record in Case 11-RC-1886, the evidence adduced at the
original and further hearing before me, and all the briefs
submitted by the parties, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. The Nature of the Remand
In its opinion the Court of Appeals stated in relevant
part Amalgamated Clothing Workers of America
[Sagamore Shirt Co] v. N.L.R.B., 365 F.2d 898, 902,
905, 908-909, as follows:
The first question before us is the supervisory
status of the floorladies, since it was on the basis of
that status that activities of the floorladies were held
to constitute a violation of section 8(a)(1) on the part
of the Company. At the unfair labor practice hearing
before the Examiner, the Company attempted to
establish that the floorladies were not supervisors
under the Act. The Examiner held that since no ap-
peal had been taken from the Regional Director's
determination of December 4 that the floorladies
possessed supervisory status, the issue could not be
relitigated in the present proceeding. The Examiner
' 153 NLRB 309.
2 365 F.2d 898.
Over Respondent's specific objection I shall permit corrections at
pages 33 and 36 as conforming to my best recollection and to correct an
Director's determination] shall preclude such parties
from relitigating, in any related subsequent unfair
labor practice proceeding, any issue which was, or
could have been, raised in the representation
proceeding." The Company filed specific exceptions
to this ruling, but the Board's opinion does not make
any reference to them. Board counsel now argues
that we, too, are bound by the Regional Director's
decision in light of the Company's failure to appeal
that decision immediately to the Board.
In the interest of clarity we may note that the Trial
Examiner and the Board need not allow the Com-
pany to relitigate the issue completely. The evidence
at the earlier hearing need not be reheard but could,
as it was in this case, be incorporated into the record,
upon being specifically identified. The findings of the
Regional Director may be accorded "persuasive
relevance," a kind of administrative comity, aiding
the Examiner and the Board in reaching just deci-
sions, subject however to power of reconsideration
both on the record already made and in the light of
any additional evidence that the Examiner finds
material and helpful to a proper resolution of the is-
sue.
We remand the question of the supervisory status
of the floorladies to the Board for further considera-
tion in accordance with our decision and we will
delay any review of the nature of the activities of the
floorladies until the question of their status has been
determined by the Board.
* * * * *
The record is replete with testimony by signers
and nonsigners of authorization cards that they
voluntarily went to Shay's office to tell him both
that they opposed the Union and that they thought
most of the employees they talked to were likewise
opposed. The Examiner seems to have assumed,
without deciding, that such statements could provide
an employer with reasonable doubt about majority
status, but he found that in this case the coercive ac-
tivities of the floorladies and the refusal of manage-
ment to verify the number of cards held by the Union
demonstrated that the Company did not have a good
faith doubt about the Union's majority, but was
rather seeking to destroy the majority. Obviously an
employer cannot seek delay of an election solely in
an attempt to undercut a union majority. (Footnote
omitted.) Here, however, the Examiner's fording
rests upon the assumption that the Company was
responsible for the conduct of the floorladies. Ac-
cordingly, we remand the question for further con-
sideration should it be determined on remand that the
floorladies are not supervisors. If they are super-
visors, the Company is responsible for their conduct.
otherwise unintelligible sentence. It is to be noted, however, in my finding
and conclusions herein I have relied upon neither statement in either the
original or corrected form.
SAGAMORE SHIRT CO. 439
B. The Representation Case Findings
In the hearing in Case 11-RC-1886 evidence was ad-
duced upon which the Regional Director made findings
in his Decision and Direction of Election issued on
December 4, 1963, with respect to the eligibility of floor-
ladies to vote in a Board-conducted election, as follows:
Floorladies. The five sections of the sewing depart-
ment are each under a floorlady. Three floorladies
are over groups of 18 employees each; one had a sec-
tion of 15 employees and the fifth is over 32 em-
ployees. They are hourly paid and received about 10
percent more than machine operators, although ex-
ceptional operators may on a piecework basis earn
more than the floorladies. The position of plant
foreman was unfilled at the time of the hearing. The
operations of the entire plant, utilizing a complement
of approximately 115 employees, have no other
acknowledged supervision than that of the plant
manager (Shay), who estimates that he spends about
80 percent of his time in the plant. In his absence, the
floorladies may transfer employees from one opera-
tion to another and may grant time off. The recom-
mendations, although subject to independent in-
vestigation by the plant manager, are given weight,
and have been followed by him. The floorladies sign
production tickets and check the quality of work
done by operators in their section; they have final
authority to direct that that work be done over; when
an individual responsibility for bad work cannot be
fixed, the floorladies have sole authority to decide
which operators shall make the repairs at time-work
rates. As the record shows that there is presently no
supervision over approximately 100 employees in
the sewing department below the level of the plant
manager except that exercised by the floorladies, and
as they have independent authority to make deci-
sions affecting the pay of employees, I find that they
responsibly direct employees and that they are su-
pervisors. They are excluded from the unit. See Alto
Plastics Manufacturing Corporation, 136 NLRB
850, 855; Monarch Rubber Company, Ic., 129
NLRB 482, 486.
A reading of the transcript of testimony in the representa-
tion case, being exclusively the testimony of Plant
Manager Edward F. Shay, Jr., satisfies me that the factual
findings, as set forth above, upon which the Regional
Director concluded that the floorladies were supervisors
are fully supported in the record of that case.
C. New Evidence
At the further hearing before me Respondent adduced
further evidence respecting the duties of Floorladies
Winona Dunn, Vera Gouge, June Johnson, Phyllis Hen-
son, and Kathy Jones, the same individuals involved in
the earlier phase of this matter, of whom Plant Manager
Shay credibly testified that each had the same duties and
authority as the other. He also explained that these floor-
ladies could transfer employees from their primaryjob as-
signments "to different work to do instead of going
home." Employee Howell corroborated this, explaining
that when they got caught up they told Shay or Floorlady
Johnson and she would give them something else to do,
checking it with Shay later. While Shay testified that
floorladies sought his approval before permitting em-
ployees to leave early employee Irene Blevins testified
that on some such occasions Floorlady Johnson would
grant the permission without checking with Shay, while
at other times she would see Shay first.
Shay testified that the floorladies seldom devoted more
than 20 percent of their time to working with their hands,
the remainder of their time being devoted to quality con-
trol (inspection) and instruction.
As to the authority of floorladies to reprimand em-
ployees, Shay indicated that they have authority to repri-
mand employees "if their work was bad and they wanted
to have their work done over." At a later point in his
testimony Shay stated that the floorladies' reprimand
would be enforced, thus answering affirmatively the
question
Q. And some action would be taken because an
operator didn't follow the floorlady, is that right?
A. That is correct.
Employees are rated on the basis of their production
and some consideration is given to the quality of their
work. There are approximately 116 employees in the
plant, and it was contended from the very beginning that
the plant's foreman, a job never filled at any relevant
time, was the only supervisor other than Shay in the en-
tire organization. In other words Shay's supervision over
all 115 employees who produced approximately 1200
finished shirts daily was claimed by Respondent to be
sole and exclusive. However, the operational setup of the
plant provides for the assignment of groups of employees
to each floorlady. These groups average 18, with 15 in
one and 32 in another. The company bulletin board car-
ries a listing of the employees assigned to each floorlady.
In addition to the foregoing details which are presented
to evaluate the floorladies' status as supervisors it is sig-
nificant to note that in Respondent's published Employee
Rule and Regulations the term "supervisor" is used in the
context of establishing the employees' working hours and
their processing of repair work assigned to them. At the
hearing Shay identified the floorlady as the individual
referred to in this notice as "supervisor." And in this par-
ticular it is to be noted that in the original hearing of Case
11-RC-1886 Shay frequently used the term "supervisor"
when referring to duties being performed by a floorlady.
Thus he stated at page 30 of the transcript of the original
hearing that "if a supervisor finds bad work in her (an
operator's) machine she would bring it back to the opera-
tor to repair it and do it over." Shay further testified that
with respect to the published rules, some of which carry
the penalty of discharge, the floorladies were charged
with the duty of seeing that they were enforced.
Supervisory meetings do not appear to have been regu-
larized to any degree excepting Shay's periodic produc-
tion meetings with the floorladies. But on the occasion of
the Union's appearance at the plant in 1963, prior to the
representation proceeding, Shay called together only the
floorladies and the cutting room foreman and instructed
them in the manner they were to conduct themselves.
Conduct , it is to be noted, which forms the basis now of
this very inquiry into their status.
The foregoing findings as to the duties and responsibili-
ties of Respondent's floorladies is based upon the
testimony of Plant Manager Shay which I credit. Em-
ployees themselves have corroborated Shay. Thus em-
ployee Evelyn Ollis, after stating that she had been
trained in her duties by Floorlady Johnson, described on
cross-examination the return of mistakes to her by her
floorlady, stating, "Well, if she told us to do it over, we
done it over."
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Conclusions
As previously noted, it is apparent upon consideration
of the testimony supplied by Plant Manager Shay at the
hearing in Case 11-RC-1886 that the floorladies were
vested with duties and responsibilities much in excess of
those possessed by the rank-and-file operators in the
plant. Thus they were empowered to transfer employees
from one job to another, to grant them time off, and make
recommendations to Shay which, although independently
investigated, were given considerable weight and were
usually followed. The floorladies had the authority to
direct that mistakes be corrected and could assign work
for correction to other operators.
All of the foregoing, and in particular, the fact that ex-
cept for the authority excercised by the floorladies there
was no other supervision over Respondent's 115 em-
ployees except Plant Manager Shay himself,4 clearly
justified the Regional Director in the conclusion he
reached, namely that floorladies responsibly direct em-
ployees and are accordingly supervisors within the mean-
ing of the Act.
Insofar as I am charged with a review of this action I
likewise conclude and find upon the basis of my indepen-
dent review of the record in Case 11-RC-1886 that floor-
ladies are supervisors within the meaning of Section 2(11)
of the Act.
Upon consideration of the further testimony given be-
fore me pursuant to remand, and with particular reference
to the additional testimony of Plant Manager Shay which
I credit, I am persuaded that nothing has been developed
that would rebut the Regional Director's determination.
On the contrary, and particularly in the areas to which I
shall refer in summary, I am of the opinion that the Re-
gional Director's conclusions have received even further
support.
The floorladies were empowered to instruct employees
in their duties, to assign them work, reassign them to
other work, check their work for mistakes, supervise the
correction of the mistakes, permit time off on occasion
without Shay's approval, and make recommendations to
Shay which he generally followed, usually after investiga-
tion. The floorladies never performed routine operations
for more than 20 percent of their average work time, the
remainder of their time being given to "quality control"
over the average of 18 operators assigned to each of
them. And in this quality control aspect it is to be noted
that in the Respondent's rating of an employee the quality
of his work is a significant determinant. Unless Shay had
assistance in this particular, namely someone to assist in
the rating itself, the results as to 115 employees and their
daily average output of 1200 shirts would be deficient in-
deed. And finally Shay's reference to the floorladies as
"supervisors" at the hearing in 11-RC-1886 and his
identification of them as "the supervisors" referred to in
the published employee rules and regulations is of sig-
nificance to any final conclusion as to their supervisory
status.
Upon consideration of the foregoing findings based
upon Shay's credited testimony at the hearing on remand
before me, I am persuaded that the record made on the
subject of supervisory status amply supports the findings
of the Regional Director in Case I 1-RC-1886. Independ-
ent of his findings, however, upon the facts adduced at
the most recent hearing, as set forth above, I conclude
and find that the floorladies employed by Respondent
during the period between midsummer of 1963 and May
1964, being the period of time directly relevant to events
found as facts in the instant case, Case I 1-CA-2319, are
individuals who responsibly direct employees and are
therefore supervisors within the meaning of Section 2(11)
of the Act.5 Specifically, I conclude and find that at all
relevant times specified in my initial findings with respect
to each of them (153 NLRB 309 at 312-313, 317-318,
319, 322, and 324.) Winona Dunn, Vera Gouge, June
Johnson, Phyllis Henson, and Kathy Jones each was a
floorlady who responsibly directed employees and there-
fore a supervisor within the meaning of Section 2(11) of
the Act.
Upon consideration of my findings and conclusions
above it is apparent that the conduct and statements as-
cribed to the floorladies in my Decision and thereafter ac-
cepted by the Boards constitutes conduct and statements
attributable to the Respondent for which remedial action
is warranted as previously set forth. I shall accordingly
recommend that my previous Recommended Order in
this matter be adopted by the Board.
RECOMMENDED ORDER
It is recommended that the Recommended Order con-
tained in my Decision issued on December 23, 1964, and
adopted by the Board on June 22, 1965, be readopted by
the Board and that appropriate further action be taken in
the premises to seek enforcement thereof by the Court of
Appeals for the District of Columbia Circuit.
Mid-South Manufacturing Company, Inc., 120 NLRB 230, fn 2. 243.
Mid-South Manufacturing Company, Inc., 120 NLRB 230,fn. 2, and 6 153 NLRB 309.