Weather Tamer, Inc.

National Labor Relations Board - Board Decisions

Nov 14, 1980

253 N.L.R.B. 293 (N.L.R.B. 1980)

LA I l IR 'I A\N IR, IN('
Weather Tamer, Inc. and Tuskegee Garment Corpo- Judge arid to adopt his reconmincnecd ()rder.: as
ration and International l.adies' Garment modified herein.
Workers' Union, AFL-CIO. Cases 15 CA-7047
and 15-CA-70)85 (ORDER
Nosvember 14. ')(80
I)ECISI()N AND ()ORI)R
BY CItAIRNI \N :\NNINOi \ NI) MI SFltRS
JINKINS -\NI) Pl NI I ()
On lMa\ 29, 198X(), Adminllistrative Law Judge
Elbert D. Cadsden issued tlhc attached Decision il
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief. 'lh Char ging
Party and the General Counsel filed bric; il sup-
port of the Decision, and the General Counsel iled
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act. as amended, the Na-
tional Labor Relations oard has delegalted its alu-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and concluiio ns 2 of the Administrative Law
I Respondentil hi, s 'lc i to ra1 e i credtlihilil, til/llintis a llh h illt
Adrllnllistraiit I as Jcgt I Is the Boardt's slhlslicd spol., s III,
oscrruil an11 adntlllllrtra ls Ihlui lll ee's roliton ,lis l (iCi It' 1 pt I ri-
hilily unless file clear prcpondcr lic' o ;ll (if ilte rclcs a;llt s.ll,ric' 1ll1I
tices us% thai the iC-,ohu li' ,i Iticrrect Stw djrlJ /)ri ill i/'rodsi it
In/1, 91 N Rti 544 (19511), entll I88 1 2d 1i2 d ('ir 1951) h c
carefulls exanlllel the riird and find 1l( hatis fr r'ersillg his filindig,
Furthermor. Rspoideit has ialllci. i it brief, to t'l- tet grutlllds fior
Ihe claim tha rlinltli s m ere ti.d, onfle hss of ia-l' ;\I sItI. R -
spoitdel it et tcil(ior 22 illI hI lsrigarit hc Ilr grI I it l Ito ld for tI.IIIIg t
coilfrrm1 to Ih rcqulltnlerls iof S 102 46(h) oIf ilt' ia;lrid' Rles
1
n1
Regulaiionls. Scrics 8. at nlcdte and I1 hcrchs strikilll
'While the Adminlrlsiltie am Judge rrireosx, sated that the p.'ek
itr t lal cmplio ilet(itlng ion August 10, 178 . a; Rpo ideirl \ l-
Piresidenl ugenc IHeller rather tan lanlt siManager Kenned,. this rri
hias rIl hearing oni the outiltrle of tIh cails
' I11 adopting the Admnitstratle Ias Jlidge's ciBltlumsiorl tal Re
spolndcnt violated S X(a)i3) antd (I) of te Act h lIaig (1f the enl-
ploiyer and clrsing the uskcgee plalll. me. di riot rely ot hlis re ;lsnllllg
that the closing as "suhbstantiall, if not siolel nmitisated'' h the em-
ploiyens protecteld clttlils Rather, ce arnalis Ih faclts accordlig
the test set frlh in I'rtgh Lin . .1 Dievivon i H'rightr Le, In, . 251
NLRHl No 1501 (I ) 11 li doing s(, c find thalt the (ieneral Counsel ha,
made a ptrima jaic s, i ihowing sufficrct to supporl the IifertencI thliat the
unionh activities tcre a moltiating fctor in Respondenl' dcilion to l a
off employees and close the plant l'he AdminilratiN I ia JudgCe I)tci-
sion fully set, forlh thie 8(a)(I) slarenlels, the tinllig of li' laiofts. andl
other factl which morce thaill dequa tely comnprise a rima Jutiw casc fr
Ihe CGeneral Counsel Ths evidence ffcLively, shifled the burdti to Re-
spOldent to denilOlntrat' ltha it mould hil e aketn the sanle actlitl even i1I
the absence of the ulilon activity Although Respondenl iattemlpted lo
%hov that thc lermil;lalon of operatiolls had heen planned il adaillt. )if
thc protected acllsilles alld thait the terml natin ma il, for ecoIrlomil rca-
sois%, Rspondeit has failled to d so and hits not niet its burdtein fit,
depite HR lldent's claims that it had decided hef;re the lnionl hbegai
orgaizing that the pltl ti iould he cio,ed Rspioldcnr l aged al xgiorlrus
campaignl agalnst the lnilon Serolld, 1l(o iidlitilatoll ils gi cI ultill afller
the ULilon ion Ihi cilctioll thait he plant ould close rIhi issu tl'sA riio
raised at the preclecion iferencr e tchere tl selflY cIt irllng e ldelicc
that Rspoltdeilt coitemplalte cl .isilig tile pan l hefoir tC ililt ill cti. its
hbegan FnIall', ill suppostl disatusfalctilltmit v ork qitit ill ilt Itls-
kcgee plant as silte os after the ion appearec Accordinglg. ,
I'ursullant to Section 10(c) of the National Labor
Relations Act, as amended, thlie National Labor Re-
lations HBoard adopts as its Order the recommended
()rder of the Administrative Law Judge, as nimodi-
iced belov, and hereby orders that the Respondent,
\eather '[amer, Inc. and Tuskegee (armenct Cor-
poration, Columbia aid Lewishurg, llennessee ad
Atlherls and Tuskegce. Alabama, its officers, agents,
successor s, alld assigns, shall take thle actionl sct
fortl Ill tlhe said recom enddcd ()rdcr, as so nmodi-
lied:
1. Insert he following as paragraph 1(1):
"(I) il any other maner inllterfcring witlh, re-
straining, or coercing enlployees in th e exercise of
tlle rights guaranteed them ii Scction 7 ' tlhe
Act."
2. Substitulte the attached notice for lthat of the
Administrative Law Judge.
aIlir.ll A Clllt'}, uion If t lllAinitrll.t I l Jdgt hat Re pollldlI
silaied l Se Mi(ll3 lnd ll ( i tf lt X i hI lairig oif the riplltes ae d
l iling thi I sktigt'' pl ntr
: t' u lid Ipprprlatc L1 -\ IIldlltll irai I Jdge' rco immcndel
rclli ts, at R ,polld lli rci ltI lihe I Uskege Garnmnt il llh I ille
Ii Lkcg c. l;hlbiltill whll ReI , itpoilldelt argue, tl such ali ordr i anr
tir llt Iil arclliil hurl l it iha t fale d it pros ildc eld icc ii suppori t
that clairll Allihough 1hl rcord ITlld Ca t thati the cl of I ilskg. ia
iti' ltlitil ng t lIa u- ill icit
a
t rlit for th' fa 'iiI fI trrl rs i scI h)
R is) dItrt, there i o l ir i itd ti lll cftiltr UltI] . I Iltits l L' IIt
a.ai lable in IlkCge A ai result i f tlur all sis if tlh e fict l htrtinl Ii
acord t s t iflt l lt .r gh Ii-. sc l forth Iln li 2 aiho i. 1t Is clear ftiat
Rtesprdent trnriltdct 1s ioperalionl, Iii lTuskgee a a rsullt tf t trl
plo eSC ce xrci.C if their Scc 7 rights ad otl fr an lam f rtil trl llt
reasons Iir agrltemtl with Itht Adni itirat. lc Laml Judge e lfind prc-
itrexual RspoidCrilent' clarir that the I uskegcc operatiion as cktiionltucall
iil nlsoud lulrtherllor tihe 'osrk performncd h the crnplo , ce, a the I u-
kcge planl has tinr berl d scorllntinued, hl is norm perfo rmed elc,, he r ti
hi Re spondlnt n I addition. hcre has bc'n a showing that equi prna1il i1
this Indlt r is tl slilaril renied r iotiherv ,e harcd among ariius
plail or matuufactlIrr, thus irdicl g Iatig Lat nio heavi iri etilcln of ci
il ill1 be require t retorc the operations n luskegeu
Respondenl has Itll carrtedi It irlc' I l t lr h iig itha this rtirrCd. 1
reuit i ulinduc conorrut hardlship I is the Board's pi.c. thatl fite
wrongd er. rather tIhan the n iocenl victim. hould bear lthe hardships of
the ullaIful actloll ' s h retoratlionrl of the tatu quir art'rr I these ii .1-
lioil is the appropriale rt'nle d lilless thle wrongdoer canl d rllorltrale
Ithal i clinield iabhiili, iould be endanigerd Respoldent has ot i
deI insI rated \e adiopl the Admlnt sratis c Lav Judge's ro mmetnilded
rtmeid Snt rh .fttiul lurrte (InipanIty, /in , Beacotn it rrl i. 24
NLERB N 1 4 I s) R I t tnrl Supp/i'. Inc. 21S NIRIH (I-144
(1978)
ie iagrec ih tilt i' dlrtiniratitc I a Judgts coucIIlisio that th'
Iturt Rcpo dni i t 'i ulitalf i labor pra-tc.es sarrant .tc islr lcti' - t
brtoad c''lCs-t;lild-d'silt rdcr Wci fi51d hal f such rleti i ,irralied
under lh slilllandard tI forth ll iiAioll 'iUsd. II . 242 NI RH l17
(11)7t))1 and U. 1c it ll t iiet l ilt' Ad nlllltrall i It r Jlidgc', rt r'ln
rtieditl ()rd(e r ii, hLlt- tit' propcr lngiuagt W&' isi diilufed f1t
It 1c t h tlltari stll it l sI rcI mdlerlIctd ()rdcr
253 NLRB No. 36
2'A3
I)ItCISI()NS ()1 NA I I)NAI. I ABlO()R R.TA I I)NS II()Akl)
APPENDIX
NoTic I To EMI'I )E.IS
P)os I I1) Y ()R)IR OF I l
N.\ Io()N I I.AIOR RII A'I'IONS 13()ARI)
An Agency of the United States GCovernment
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National I ahor Relations Board found that we
have violated the National Labor Relations Act, as
amiended, aid has ordered us to post this notice.
'The Act gives employees the following rights:
'To engage in self-organization
To form, join, or assist any union
'To bargain collectively through repre-
sentatives of their own choice
'I'o engage in activities together for the
purpose of' collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WI WII. NOT tell employees their jobs will
be in jeopardy if they select the Union as their
representative.
WI. Wl . NOI ask employees why they
want a union, telling them the Union is no
good and if the Union is selected, we would
close the plant.
WI Wll I NOI ask employees why they are
not wearing a union pin and whether or not
they signed a union authorization card.
WI. Wl I NO tell employees the Union will
put their jobs in jeopardy and the outcome of
the union election could affect their future em-
ployment with us.
WI. Wi.L. NOT ask employees why they
want the Union and why they were going to
return to vote in the union election and put
other employees' jobs in jeopardy.
WI; Wll. NOT tell employees the best job
security they can have is to vote NO in the
union election.
Wti wl.t. NOi tell laid-off employees in our
other plants that we closed our Tuskegee, Ala-
bama, plant because the employees selected
the Union as their representative, and we
would close our Athens, Alabama, plant if the
employees there selected the Union as their
representative.
WI W. NOT tell employees that certain
other identified plants in the country were
closed because their employees selected a
union as their representative.
Wl wili. NO' tell laid-off employees they
can return to work only if they reject the
Union as their representative.
W'i-. wit I NOI discourage membership ill, or
support for, International Ladies' Garment
Workers' Union, AFL CIO, or any other
labor organization, by laying off unit employ-
ees and thereafter closing the plant because
they select a union as their representative, or
otherwise discriminate against them in any
manner in respect to their tenure of employ-
mcnt or any term or condition of employment.
WI" Will. NOI fail or refuse to bargain col-
lectively with International Ladies' Garment
Workers' Union, AFL-CIO, as the exclusive
bargaining representative of employees in the
unit described below, by failing and refusing to
meet and bargain with, and to furnish the
Union with information requested by it, nor
unilaterally lay off unit employees and close
our plant, without first consulting with or noti-
fying the Union.
WI; Wl.l NOT ill any other manner interfere
with, restrain, or coerce employees in the exer-
cise and enjoyment of rights guaranteed them
by Section 7 of the National L.abor Relations
Act.
WI: wl I , upon request, recognize and bar-
gain with Interniational Ladies' Garment
Workers' Union, AFL-CIO, as the exclusive
representative of all the employees in the bar-
gaining unit described below from September
15, 1978, and if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All production and maintenance employees
employed by Respondent at the Tuskegee,
Alabama, plant, including sewing machine
operators, cutters, spreaders, boxers, bundle-
girls, box makers, mechanics, janitors, in-
spectors, turners and assistant floor ladies;
excluding all office clerical employees, floor
ladies, boxing department manager, cutting
room manager, embroidery manager, guards
and supervisors as defined in the Act.
WI Wll.Lrecall and offer to the unit produc-
tion employees of Tuskegee Garment Corpora-
tion who were laid off between August 17 and
29, 1978, immediate and full reinstatement to
their former positions or, if such positions no
longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or
other rights and privileges previously enjoyed,
and make them whole for any loss of pay suf-
2"4
WIATAItIR FAMI R. INC.
fered by reason of the discrimination against
them, with interest.
W;- wit I reinstitute business (plant) oper-
ations in Tuskegee, Alabama, and restore the
work formerly performed by the laid-off unit
production employees.
WIA'IHI:R TAME R, IN(C. ANt) TUSKI-
(;EaI GARMENT CORPORATION
DECISION
S I I OI U N I 01- 1IHF CAS
El HIRI D. GAI)I)N, Administrative Lare Judge:
Upon charges of unfair labor practices filed in Case 15
CA-7047 on September 11, 1978, and in Case 15 CA--
7085 on October 16, 1978, by International Ladies' Gar-
ment Workers' Union, AFL CIO, herein called the
Charging Party or the Union, against Weather Tamer,
Inc. and Tuskegee Garment Corporation (herein individ-
ually called Weather Tamer and Tuskegee Garment)
hereinafter collectively called Respondents, the Regional
Director for Region 15 of the National Labor Relations
Board issued a complaint and an amended complaint on
December 29, 1978, and March 8, 1979, respectively, and
a complaint in Case 15-CA-7085 on March 8, 1979.
The complaints alleged that Respondent violated Sec-
tion 8(a)(1) and (3) of the Act by, inter alia, promising
improved insurance benefits, interrogating employees,
threatening employees with discharge and/or plant clo-
sure, and closing the Tuskegee Garment plant and laying
off all employees, for the purpose of discouraging their
union activities; and that Respondents violated Section
8(a)(1), (3), and (5) of the Act by closing Tuskegee Gar-
ment plant, terminating its operation, and discharging all
of the employees, without affording notice to or giving
the Union an opportunity to bargain thereon.
On April 4, 1979. the Regional Director issued an
order consolidating Cases 15-CA-7047 and 15-CA-7085
for a hearing, along with a second amendment to the
complaint issued on April 9, 1979, in Case 15-CA-7085,
alleging that Respondents constituted a single integrated
business enterprise.
A hearing in the above matter was held before me at
Tuskegee, Alabama, on April 30, and May 1, 2, and 3,
1979. Briefs have been received from counsel for the
General Counsel, counsel for Respondent. and counsel
for the Union, respectively, which have been carefully
considered.
Upon the entire record in this case and from my obser-
vation of the witnesses, I hereby make the following:
FINDINGCS OF FACT
I. JURISDICTION
Respondent is now, and has been at all times material
herein, a Delaware Corporation with manufacturing
plants located in Columbia and Lewisburg, Tennessee,
and Athens and Tuskegee, Alabama, where it is engaged
in the manufacture of children's garments. The matter in
controversy herein arose at the Tuskegee Garment plant,
located at 330 Gautier Street, Tuskegee, Alabama.
I)urinig the past 12 months, \which period is representia-
tive of all times material herein. Respondent (Weather
Tamer) purchased and received goods and materials
valued i excess of S5(),(XX), which were shipped directly
tlo it in the States of Alabama and Tennessee from points
located outside the States of Alabanla aid Tennessee.
During the same representatis period. Respondentl
(Weather Tamer) sold and shipped goods valued in
excess of $50,(XX) from its Alabama anid Tennessee facili-
ties directly to points located outside the States of Ala-
bahia and Tennessee.
The complaint alleges. the answer admits, and I find
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. HFI I AHOR OR(/ANIZA ION NV(OI IL1)
The complaint alleges. Respondent admits, and I find
that International Ladies' Garment Workers' Union,
AFL-CIO, herein called the Union, is, and has been at
all times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
111. IH- A I .1II) UNI:AIR AHOR PRA( i ('.S
A. Background Facts
Respondent is engaged in the manufacture of chil-
dren's garments, with plants located in Columbia and
Lewisburg, Tennessee, and Athens, Alabama. Respond-
ent denies that it owns and operates a plant (Tuskegee
Garment) in Tuskegee, Alabama. The Columbia. Tennes-
see, plant is about 3(X) miles from the Tuskegee plant,
Athens is 25 or 30 miles from Lewisburg, and Columbia
is 65 miles from Athens.
Prior to April 1976. the plant (Tuskegee Garment) lo-
cated at Tuskegee, Alabama, was the Barclay Corpora-
tion which was also engaged in the manufacture of chil-
dren's garments. In fact, the Barclay Corporation manu-
factured garments for Weather Tamer until about April
1976, when it was sold.
Prior to Tuskegee Garment Corporation, Vice Presi-
dent Eugene Heller and the officers at Weather Tamer
wanted to manufacture garments without having to over-
see the process of manufacturing. They, thereupon,
sought a cut-make-and-trim contractor in an effort to
eliminate the need for Weather Tamer supplying a man-
ager. Under such an arrangement, there would be no
need for the investment of capital in a building or plant.
Consequently, in April 1976, Heller and his partner,
Wexler, purchased 80 percent of the stock of Barclay
Corporation, leaving 20 percent to its prior owner.
Tucker, who received 20 percent of the profits in salary.
Finally, Weather Tamer bought out Tucker on Novem-
ber 15, 1976. Steve Kennedy, who had already been sent
to the Tuskegee plant as a mechanic, was made plant
manager on November 15, 1976.
At the time Barclay Corporation was sold, another
entity of Weather Tamer, Columbia Equipment Rental
Company, gained ownership of the equipment and fur-
nishings, which were used interchangeably by Tuskegee
Garment and other factories in the industry on a regular
basis
2o
I)F.CISIONS ()OF NATI()NAI. I.AB()R RLA AIO()NS BOARi)
The Union proceeded to organize the Tuskegee plant
in the summer of 1978. Respondent Weather Tamer
learned about the Union's organizing efforts and the
identity of the organizing employees on July 18, 1978,
when the Union, orally and in writing, demanded recog-
nition by Respondent. Respondent immediately em-
barked on a compan, campaign against the Union, and
on July 25. Heller refused to recognize the Union, and
the Union filed a representation petition on July 26.
1978,1 in Case 15 RC-6337, seeking to represent the pro-
duction employees of Tuskcgee Garment. During the
first week in August, Respondent's vice president,
Weller, met with groups of employees and discussed the
effects of unionizing the plant.
On August 10, Respondent Weather Tamer met with
an agent of the National Labor Relations Board in refer-
ence to the scheduled representation hearing, and it
agreed on terms for a union election to be held on Sep-
tember 15. Respondent Weather Tamer did not mention
closing the Tuskegee Garment plant, but on the con-
trary, made a speech against the Union on August 17,
and commenced laying off' employees between that date
(August 17) and August 29. Thereafter, Respondent op-
erated the plant with a skeleton work force.
On September 13, Heller held a meeting with, and
spoke to, the employees against the Union. The election
was held on September 15, and the Union received a ma-
jority of the votes cast. Thereafter, the Union was certi-
fied as the collective-bargaining representative of the
production employees on September 25. On September
29, the Union requested Respondent to bargain at a con-
venient time and to furnish the Union with certain infor-
mation necessary for its preparation to bargain. Respond-
ent did not furnish the information and made no response
to the Union until its legal counsel advised the Union in
a letter dated October 9, that Respondent had terminated
the operation of Tuskegee Garment; that there were no
employees in the bargaining unit; that Respondent had
no plans to reopen the plant; and that the information re-
quested by the Union was irrelevant (moot). However,
Respondent did offer to negotiate about the effects of the
closure of the plant.
On October 19, Heller furnished the Union with part
of the information previously requested, but failed to fur-
nish additional information since unfair labor practice
charges were filed and pending against it. Nevertheless,
pursuant to Respondent's letter of October 9, it met with
the Union in Huntsville, Alabama, on November 2, when
it denied the Union's request for severance and vacation
pay for the laid-off employees, as well as the Union's re-
quest to reopen the plant. 2
Based on the foregoing undisputed and credited evi-
dence, I conclude and find that the Union received a ma-
jority of the votes cast in the election held on September
15; that the Union was thereafter certified the collective-
bargaining representative of Respondent's production
employees on September 25; that on September 29, the
Union requested Respondent to bargain with it at a time
Iltreilrlailr all atcs shall rfer Ilil ti year 1'178, uilsle' ptcifii lll?
indicated olhcr ise
' The facts sol foirlh above wrc either amiltcd, agreed n hb the pal-
lies, or in general were lo0l ithsputed or iIl coiiflict in he rcc,,rd
and place convenient to both parties and to furnish the
Union with certain pertinent information necessary for
the preparation to bargain; that Respondent did not re-
spond or furnish such information until its legal counsel
advised the Union in a letter dated October 9, that the
Tuskegee Garment plant was closed, that there vere no
employees (essentially all of whom had been laid off) in
the bargaining union, that the information previously re-
quested by the Union was irrelevant; and that Respond-
ent did not at any time furnish the information requested
by the Union.
Since Respondent was under a legal duty to bargain
with the Union on and after September 15, as the collec-
tive-hargaining representative of the employees, I further
find that Respondent's failure and refusal to do so, and
its unilateral action in closing the Tuskegee plant without
notifying or consulting with the Union, all constituted
conduct in violation of Section 8(a)(5) of the Act.
.N.L.R.B. v. Truitrt Mlfi. Co., 351 U.S. 149, (1956); ad
N. L.R.B. v. Alcne Industrial Co., 385 U.S. 432 (1967).
B. Weather Tamers Relutionrship to Tuskegee
Garment
With respect to Weather Tamer's relationship to Tus-
kegee Garment, the General Counsel was able to estab-
lish the following evidence:
In Weather Tamer's newsletter entitled "The Weather
Tamer Bugler" for April 1976 (G.C. Exh. I1), an article
appeared on the first page entitled, "Weather Tamer
Adds Third Factory." Under that topic the first para-
graph read as follows:
Tuskegee Garment Corporation (TGC) became
the third plant in the Weather Tamer family on
April 5. Vice President Don Levy reported.
The above-identified newsletter was published by
Weather Tamer periodically and it carried news refer-
able to Respondent's Columbia and Lewisburg, Tennes-
see, and its Athens, Alabama, plants.
The undisputed testimony of record unequivocally
shows that Weather Tamer's plants in Columbia, Lewis-
burg, and Athens, were engaged in the manufacture of
children's outerwear garments; that Weather Tamer con-
sidered each operating plant as an individual corporation;
that the plant at Columbia, where the corporate offices
are located, is called "Weather Tamer"; that the plant lo-
cated at levisburg is called "Weather Tamer of Lewis-
burg'' arid that the plant located at Athens is called
"SPI of Athens, Inc."
According to the undisputed and credited testimony of
Avers Wcxlcr and Eugene Heller, president and vice
president, respectively, of Weather Tamer, Inc., prior to
April 1976, other industries were locating in the Colum-
bia. Tennessee, area, which resulted in higher wages, and
thereby prompted Weather Tamer officers to explore
other communities in which to operate. Consequently,
Weather Tamer entered into a contractural arrangement
with Barclay Corporation located at Tuskegee, Alabama,
for the latter to manufacture children's garments. On or
about April 5 197h, Officials Heller and Wexler pur-
chased 70 to 80 percent of Barclay Corporation, leaving
2')h
WFATIiER 'AMEKR, INC
the remaining 30 to 20 percenlt reposed in the prior own-
ership of Barclay Corporation, until November 1976. At
that time, being dissatisfied with the prior performance
and business operations of the fiormer owner of Barclay,
Heller and Wexler purchased the remaining 30) to 20 per-
cent of Barclay.
Thereafter, Weather amer officials named the Tuske-
gee plant Tuskegee Garment Corporalion. Weather
Tamer's vice president and secretary, Eugene Heller, has
a half interest ownership in Tuskegee Garment, as well
as in the entire Weather Tamer garment operation.
Heller further testified without dispute, that the ma-
chinery of Barclay was purchased without inventory;
that from April 1976 to September 1978. Tuskegee Gar-
ment performed labor production services for VWeather
Tamer only; that Tuskegec Garment was under contract
to cut, make, and trim garments (children's outervear,
fall and spring, for a fee in retturn for the garments); aid
that Weather l'amer determined what garments. materi-
als, styles, quantity, and colors would b produced.
All Weather Tamer employees, including employees in
Tuskegee Garment, were given a copy of Weather
Tamer's booklet of rules. entitled "Welcome to Weather
Tamer." Vice President Heller also testified that employ-
ees at Tuskegee Garment enjoyed Weather Tamer berie-
fits such as vacation, holidays. and employee loans. lie
doubted Weather Tamer's scholarship program was in
effect during the existence of Tuskegee Garment. Heller
acknowledged that at times when special machines were
required at Tuskegec Garment in order to produce a par-
ticular garment, Weather Tamer would ship in the neces-
sary machinery from its other plants to complete the
production. However, he pointed out that this practice
was carried on throughout the industry irrespective of
ownership.
Wexler is co-owlner of Tuskegee Garment. aid serves
as secretary and member of its board of directors. Hence,
Heller aid Wexler are co-owners of WeCather Tamer,
Inc., and both serve as members and officers of its cor-
porate board of directors. At the time of the purchase of
Tuskegee Garment, another etity of Weather Tanler,
Columbia Equipment Rental Company. gained owner-
ship of the equipment and furnishings, which were used
by Tuskegee Garment and other fictories in the industry
interchangeable on a regular basis.
Immediately subsequent to purchasing Tuskegee Gar-
ment, Vice President Heller sent Weather Tamer's engi-
neer along with its head mechanic, Steve Kennedy, to
study and do what was necessary to improve production
at the Tuskegee plant. Steve Kennedy had been in the
employ of Weather Tamer for 15 years, and in Novem-
ber 1976, he became plant manager of Tuskegee Gar-
ment until it was closed in November 1978. Thereafter,
Steve Kennedy became plant manager of Weather
Tamer's plant, SPI of Athens, Inc. His brother, David
Kennedy, who was employed at Tuskegee Garment,
became production manager of Sl'l of Athens, Inc.
The material supplied to Tuskege Garment by
Weather Tamer was shipped to Tuskegee Garment by a
truck owned and operated by Weather Tamer at a cost
of 72 cents per mile. When the garments were finished
by Tuskegee Garment, they were picked up by the deli\-
ery truck and returned to Weather Tamer in Columbia,
where they were reinspected befoire shipment to custom-
ers. Weather Tamer was billed by Tuskegee Garment for
the finished product and a percentage of the labor cost
incurred in the production. Tuskegee Garment's produc-
lion schedule as sometimes changed to reflect the
needs of the market by Weather Tamer's controller.
Products rejected by customers were returned to Weath-
er Tanler where they were processed by Weather Tamer
and returned to Tuskegee Garment or the other plants
fronm which they came. Morning production reports
were transmitted to Weather Tamer at Columbia from
Tuskegee Garment and other Weather Tamer plants.
Correspondingly, morning production reports from
Weather Tamer's other plants were tranismitted to Plant
Manager Steve Kennedy, at Fuskegee Garment, for
comparative and evaluative production purposes.
All of the employee benefits enumerated aboe in Re-
spondent's handbook entitled "Welcome to Weather
Tamer" (G.C. Exh. 6), and distributed to employees in
all plants. including Tuskegee Garment. uere fiormulat-
ed, published. and distributed to Weather Tamer and all
other employees. Plant Manager Kennedy testified that
he complied with the provisions of the handbook in ref-
erence to employees at Tuskegee Garment. Vice Presi-
dent Heller acknowledged that he was in charge of labor
relations policies and their publications as they applied to
all plants. In the handbook entitled "'Welcome to Weath-
er Tamer" (G.C. Exh. 6h), page 8, under the subject,
"''The Subject of Labor Unions," the followilng sentence
appears:
"It is our belief that we can all work better as a
teall ithout a uiion interfering ith the relation-
ship betw.kecn the comnpany and employees. Indeed.
we believe that union interference with the work-
ings of your company can cause us all serious
harm."
The record is uncontroverted that on July 18, subse-
quent to the Union's demand for recognition by Union
Representative Dot Mims, Vice President Heller char-
tered a plane and visited the Tuskegee Garment plant on
the same afternoon and initiated the first of three or four
speeches and visits, during which he waged an antiunion
campaign. In an effort to obtain medical insurance for
employees at Tuskegee Garment, Plant Manager Steve
Kennedy approached Heller for approval to implement
such a policy. Weather Tamer maintained a checking ac-
count in the name of Tuskegee Garment, in Tuskegee,
Alabama, on which Plant Manager Kennedy could not
draw checks. The employees payroll was paid from said
account, which was maintained by Weather Tamer of
Columbia. The record also shows that until August 10,
1979, Weather Tamer maintained a "Weather Tamer"
sign at Tuskegee Garment plant where no sign ever bore
the name "Tuskegee Garment." The sign was taken
down at the direction of Hleller.
Based on the foregoing, essentially undisputed, evi-
dence of record, I conclude and find that Tuskegee Gar-
ment was monitored and controlled by Weather amer.
and that it did not function as a single employer. he
I)DEC(ISI()NS ()OF NA IO()NAI. I.ABOR RLAI I()NS B()ARI)
corporate ilerrelationship between Weather Tamer an(d
Tuskegee (iarment was further manifested by the inlter-
change of machinery and of personnel (Plant Manager
Sieve Kennedy, who became plant manager of Tuskegee
Giarment), until its closing in November 1978. A that
time Steve Kennedy became plant manager of SPI of
Athens, Inc. Ozaur Irult'rv, Incorporated and/or lutco
quipment C(orpany an id/or :Mlo/ilJrceeze Company, Inc.,
161 NLRB 561 (1966).
Counsel for the General Counsel cites Brvar Construe-
tion Cornpuny and M & C (oal Company and Edwin B.
.rmtiluge, Jr., 24() NI.RB3 102 (1979), wherein the oard
adopted the Administrative aw Judge's findings of the
single integrated employer. Therein, the Administrative
La w Judge set forth, rather succinctly, the following:
In detlerlilnig vwhether two or mlore businesses
are sufficiently integrated so that they may be fairly
treated, for jurisdictional and other purposes, as a
single enterprise, the oard looks to fiour principal
factors: (1) common management; (2) centralized
control of labor relations: (3) interrelation of oper-
ations; and (4) common ownership or financial con-
trol. Radio and l'le wsion Broadcart lechnicians
Local Ulnion 1264 v. Broadcast Service of iMoblde,
11., 380 U.S. 255, 256 (1965); Sakrete o .orlhern
Cali/brni(l Inc. v N. L.R.B., 332 F.2d 902, 905, fnil.4
(9th Cir. 1964). "The Board has determined that no
single criterion is controlling, although it considers
the first three, which evidence operational integra-
tionl, more critical than the fourth, common owner-
ship." ¥ I. R.B. v. riumph Curing Ceniter and M.
Lee Serving Company, lnc., 571 F.2d 462, 468hX (9th
Cir. 1978) enfg. 222 NLRB 627 (1976).
It is therefore clear from the credited evidence of
record that there was common management of the plants
located in Columbia and l.ewisburg, Tennessee, and the
plants located at Athens and Tuskegee, Alabama, by
Weather Tamer, through its principal office in Columbia,
Tennessee. The fact that morning production reports
were submitted to Weather Tamer at Columbia by Tus-
kegee Garment: that the payroll checking account of
Tuskegee Garment was maintained and utilized by
Weather Tamer: that the employee rules as well as bene-
fits applicable to all employees were established and
maintained by Weather Tamer, all substantiate the fact
that centralized control of all plants, including Tuskegee
Garment, was vested in and exercised by Weather
Tamer. Additionally, since machinery was interchanged
between the four plants and garments were sometimes
sent to plants, other than the initial plant, for completion,
with all products being finally reinspected at the Colum-
bia plant, further supports this conclusion. Moreover,
since Plant Manager Steve Kennedy was head mechanic
for Weather Tamer, but was thereafter utilized as plant
manager of Tuskegee Garment, and subsequently made
plant manager at SPI of Athens, all demonstrate the in-
terrelation of operations of the four plants. Finally, since
the evidence undisputedly established that Vice President
Heller and President Wexler are co-owners of Weather
Tamer and co-owners of liuskegee Garment, common
management, ownership, and financial control are estab-
lished without question. Local 627 International Union of
Operating ngineers, A I'IL-CIO (South Prairie Conrstrue-
lion Company and Peter Kiewit Sons Co.) v N. L. R. B.. 518
F.2d ().C. Cir. 1975), affd. in relevant part 425 U.S. X(X)
(1976).
Consequently, since all of the criteria for satisfying a
finding of joint employer status or single integrated em-
ployer exist, in the absence of any evidence that Tuske-
gee Garment was a sinile and independent employer, it
is unequivocally established that Tuskegee Garment was
but an important arm of the single integrated employer,
Weather Tamer.
C. he union activity oJ Respondent lEmployeev and
Respondc'nt's know/edge thereo
Plant Manager Steve Kennedy testified that he first
learned of the union activity of the employees on July
18, 178, when Mims, a representalivc from the Union,
appeared at the plant and demanded recognition. tHe
thereupon placed a long distance call to Vice President
Eugene Heller in Columbia, Tennessee, aid advised him
of union representative Mimns' presence and purpose. Ac-
cording to the unanimously corroborated testimony of
Vice P'resident tteller. in response to the telephone con-
versation with Plant Manager Kennedy, he immediately
chartered a planie to Tuskegee Garment around noon on
the same day. He said Union Representative Mims ad-
vised him that a miajority of Tuskegee Garment employ-
ees had signed unioI authorization cards. She uao gave
Plunt Manager Kennedv the ,ames o/'themployees on the
organizing committee. Thereafter, hieller said he held
meetings with the employees and showed them a film en-
titled "Strangers in ()Our Mist." ill a effort to convince
the employees that they did not need the Union. te said
the substance of his talk to the employees on July 18,
was ias follows ((i.C. xh. 30):
I have conc downii here to talk to you because I
am very concerned for the welfare of this company
and the people who make their living here, Do you
know why? Because I am one of those people.
I do not want a Union that knows nothing of the
problems of designing---sales, financing and adver-
tising production-and many other prets [facts] of
this company to exert very important pressure. I do
not want this Union of outsiders to seriously affect
the competitive position-of your company.
I am convinced that the major objective of this
union is not as they say to do you good. Santa
Clause is dead. It i to take away about 100 dollars
per year from each person who signs a card.
I am convinced that a union can cause serious
harm to this company.
I am familiar with this union. I have belonged to
this union and was on its executive board. I want to
show you some slides that is here for the record
that tells some truths that should help you make
your decision.
I will be available for Questions later, 2 minute
limit-Question or answer.
WEATHIER TAMER, INC
Heller further testified that he spoke to employees
again on August 10, during which time he read an an-
nounicement to the employees explaininig the time arid
procedure of' the upcoming union election. Thereafter, he
told the employees that he hoped that all of them would
decide that they did not want or need the union, and
that he will vote against the Urnion on September 15.
In reference to w hal he told employees in another
speech to "the employees" on September 13, 1978,
Heller testified it as follows:
Ti; WIrNISS: The exact words I don't remem-
ber, hut what I did tell thenl is that a union inll this
plant will cause the price of our garments to go up,
and if the price of our garments goes up customers
will be more apt to buy garments at a lower price if
they are offered. Which could indeed jeopardize the
entire company.
Q. Are you denying then that you did say that as
far as that allegation is concerned, threatening em-
ployees with jobs in jeopardy if they voted for the
union, and as far as that part is concerned it was
true; are you denying that you said that?
A. I deny it in this context.
Likewise, Plat Manager Steve Kennedy. testified that
he read a speech (G.C Exh. 31), which was prepared b5
Ozier, counsel for Respondent, which Kennedy read ver-
batim without adding anything. He declined to answer
questions. He also stated that the meeting in which
Heller discussed insurance was held before the August
10 meeting mr which he read the speech. Kennedy fur-
ther testified that prior to August 10, Heller instructed
him to take down the sign which read "Weather Tamer"
because it could be used at Respondent's Lewisburg fa-
cility, then under construction. He complied with Hell-
er's directive.
Steve Kennedy said that since he became manager of
Tuskegee Garment the production and the quality of
work improved. Style 146 marked September 11, 360
pieces, was one of the garments made by Tuskegee Gar-
ment which was rejected. There were other such orders
in a smaller quantity which were rejected. Style 146 was
the only garment on Respondent's Exhibit 11, which
Kennedy said he could identify as having been rejected.
The garments produced at Tuskegee Garment were in-
spected by employees at Tuskegee Garment before ship-
ment to, and reinspection by, employees at Columbia.
Kennedy also testified that he attended all of the meet-
ings at which Heller spoke, except the times when Heller
met with the employees in individual groups in Kenne-
dy's office. At no time did he hear Mr. Heller tell em-
ployees the plant would close if the employees selected
the Union as their collective-bargaining representative.
Plant Manager Steve Kennedy further testified that on
February 21, 1979, he published an ad in the newspapers
which read, "Weather Tamer is expanding again," and
"needs a number of good people." This article was pub-
lished in the Athens Alabama .Vews. However, Kennedy
said the ad was to replace people, not to hire people for
new positions.
D. 7islirnony o' Employee Witnesses Regarding
Respondent' .Meetings with Emploveev and heir
Layoffs
Elihzaheh Iender.sorn was employed by Tuskegee Gar-
ment from April 1976 until August 23, 1978, making lin-
ings, under the supervision of Willie Renfroe until she
was laid off by Plant Manager Steve Kennedy. She testi-
fied that she was present at the second meeting when
Heller told employees he did not want the Union. She
further testified that she asked Heller why he took the
Weather Tamer sign dosn, and Heller said he could take
it down whenever he wanted to.
In a speech to employees on August 10, Henderson
said Plant Manager Steve Kennedy told the employees
to think about the welfare of their families before they
voted; that they could jeopardize their jobs. She further
stated that the sign bearing the name "Weather Tamer"
was taken down on that same day, August 10. 1978.
Also, after the union election on August 10, 1978. Hen-
derson testified that a sign was placed in the window at
Tuskegee Garment stating there would be no more appli-
cations for employment until further notice.
When Heller read his speech to the employees on July
18, Henderson said that she, Elizabeth Henderson
looked over his shoulder, but she could not read his
hanidsriting. She further testified that Pats Goodlosk
looked over Heller's shoulder during his second speech.
Henderson said she observed bolts of spring materials
(fabric), including cut materials, and machinery being
shipped out of the plant in August. She said she was
never offered a job at ally of Weather Tamer's other
plants.
Employee Mary Alice Wright testified that she was
employed by the Barclay Corporation in 1974 and con-
tinued in the employ of Tuskegee Garment until she was
laid off. She said she attended the July 18 meeting held
by the Company and saw the film entitled "Strangers in
Our Midst," and thereafter heard Heller ask the employ-
ees why they wanted a union. He told them the Union
was no good for the Company; that he did not want a
Union; and that he would close down the plant if the
Union came in. She further stated that at the August 10
meeting, Plant Manager Steve Kennedy told them "if
you vote yes, your job will be in jeopardy, Heller does
not want a Union, and the job would close down. Plant
Manager Steve Kennedy, however, denied that he told
employees the continuation of the plant depended on
how they voted in the union election, or that their jobs
would be in jeopardy. He said he read his speech to the
employees verbatim.
Wright further testified that in July 1977 management
officials (Heller and others) visited the plant and advised
employees at a dinner that Tuskegee Garment was the
number one plant in the Weather Tamer family. She said
she had only seen Heller visit the plant on one occasion
prior to July 18, when the union representative visited
the plant.
Ruthina Davis was previously employed by Tuskegee
Garment from July until December 1977, and again from
June to August 1978. She testified that the union cam-
paign commenced in July, and in August her supervisor,
299
DI:CISI()NS ()1: NATIONAL I.A()OR RLAt IONS BO()AR)
Mary Ellen, advised Davis and nine other employees at
the end of the day that "that was it," and told them to
apply for unemployment; and that Mary E'llen said she
did not know when Tuskegee Garment would open. She
further testified that she saw Union Representative Dot
Mims on July 18 in the lounge, waiting to see Plant
Manager Sieve Kennedy. Around 1:30 to 2 p.m. that
afternoon, she said she saw Vice President Heller when
he held a meeting with the employees for an hour. At
the meeting, she said Heller showed them the film enti-
tled "Strangers In Our Midst" and told the employees
that the Ultion was no good; that all the Union was
doing was to make them pay out that fee every month:
and that after they paid their money the union repre-
sentative would ride around in Cadillacs.
Davis said Heller visited the plant a week later (about
July 27) and called ernploees by departments into the
office of Plant Manager Kenined. She continued to tes-
tify as followvs:
Q Do (olu recall anything else Mr. eller may
ha ve said?
A. Well, he kept telling us that he did not ,\ant
the Union in. and the union couldn't get us no high
wages. The union couldn't make him give us nioth-
ing that he ssasln't gin ing us already.
Davis further testified that on the day of the National
l.abor Relations Boards representation hearing on
August 10, 1978, Plant Manager Kennedy read a state-
ment from Heller to the employees which in essence she
described as follows:
A. Well, he read what was on the paper. He told
us he had something he wanted to read to us that
he had gotten from Mr. Heller, ad read it. And,
well, I didn't pay much attention to him, but at the
end when he made a statement about the way we
voted depended the way and how we volted de-
pended on our future employment. And, everyone
got that part; and when he said, "Thank you," I
think somebody was trying to ask hilm something,
and he said that lihe didn't know nothing, he
couldn't tell us nothing. Al41 he could do was' tell u to
read et ween the liltes.
On that same day after the meeting, Davis said the
sign that was i the window which read, "Applications
taken here," was taken out of the window ad replaced
by a sign which read, "No more applications being ac-
cepted." About a week later, Davis said Heller came to
the plant [was] and spoke to the employees during which
time he was asked by an employee "if the plant [was]
going to close." Heller said, "he did not know, it de-
pended on economics." Another employee asked him
why sonie of the employees were being laid off and
Heller said, it had something to do with bringing the
spring shipmeniit to Tuskegee Garment. During his visit
she said she had a conversation with Heller at which
time she told him that while she would not be there at
tile plant, she was going to return to vote in the election.
Her conversation colltillued as follows:
So I told him I was just here for the time being,
but I would be leaving soon but, I would be back
for the election to vote. I made that plain to him
So, he asked mte why was I omlinrg back to vote to
jeopardize other peoples jobs, and I told him I wasn't
jeopardizing no ones jobh They w ere jeopardizing
their owen sell b not voting the union in.
Heller went on to tell her (Davis) about the General
Western Company, where the employees voted in the
Union in 1925, ad the Company went out of business.
Davis said at the beginning of the last meeting with
the employees, Heller told them, "I just wanted to make
it clear, there is no Santa Clause"; that he was not giving
anything, the Union was not going to make him give
anything, arid that the knew how Mims and the Union
were telling employees how the Union would get them
higher wages. Feller also told her that she was very
smart and that she should get another job because she
had been complainiing about how she wanted another
job. He suggested that she talk to her supervisor about it.
She acknowledged that Hellcr never told them that the
platl would close down if the Union got in.
Edith Lou lircker was employed by Weather Tamer at
Athens from September 1977 to October 1978 as all em-
broidery operator under the supervision of Abby White.
She said she first learned about the Union in a letter
dated August 29, 1978. About the first of September
1978, Supervisor Abby White held a conversation with
her which she described as follows:
Q. Do you recall what was said'?
A. Yes, sir.
Q. What was that'?
A. The Tuskegee plant that all the blacks
wanted a Unliioni, arid they wanted and voted for it
to be in ald Mr. lcllcr closed the plant down, and,
she told me, she said, if lie done that at our plant
that he would close it down, move the machines
and relocate.
Q. Was anything else said in that conversation?
A. He just said that he could get anybody to
work for him in a sewing plant if that was to
happen.
On cross-examination Tucker acknowledged that she
was angry with Abby White when she got laid off be-
cause she felt it was White's fault.
She also acknowledged that she has never liked White,
even when they ere in high school, because White is
what she called "a back-stabber." Tucker explained her
feelings by telling what happened to her on her last day
at work when she reported to work sick. She stated that
she had the flu and a temperature of 103 degrees when
she informed Supervisor White that she wanted to go
home at 1() a.m. White advised her to go to the rear
room and lie down. Since she felt the room as not
comfortable ad she was affected by the noise from the
machiines operating, she left work crying and went home
at 10 am W\heii she got home her mother called the
plant, and White told her mother Mr. Wilson had al-
' FAI IHEFR IAMI R. IN(C
ready hired someone in Tucker's place. luckcr gav a
steflement to the Utnion a Jiw da.is afitr her termination.
Alvin honma Iouue, presently inll the United States Air
Force, formerly orked for Wealler Tamler from March
to September 1978, in the embroidery department. under
the supervision of Abby While. House also worked in
the cutting department under James Harris at the Athens
plant. In a meeting with the employees around late
August 1978. Ilouse said Plant Manager Ronald Wilson
told employees the Union would not do them any good;
that union officials just drove around in big fancy cars,
and wanted them to pay dues.
Around the last of August or the first of September
1978, House said Supervisor Abhb While approached
him at his machine and asked him if he had heard that
the Tuskegee plant was closing, and lie said no. She old
him the new embroidery machine was coming from Tus-
kegee and that the reason Respondent could not close
the plant at Tuskegee was the Union. She said Weather
Tamer would close the plant and trN to relocate if the
Union came into the Athens plant, where Ms. Tucker
also worked. White further said that the Union tried to
come into the Tuskegee Garment plant and Respondent
closed it, and that the same thing would happen at
Athens if the Union came in. House said he told Ahhy
White he wished the Union would come in the Athens
plant. He said he never discussed the conversation be-
tween he and Ahh White with Tucker.
After he left the employ of Weather Tamer in Septem-
ber 1978, House said he continued to solicit employees'
signatures until he entered the Air Force on March 19.
1979. He said just after Edith Tucker was fired in Sep-
tember or November. he told union representlaives that
he recommended Tucker as a contact person ho kncw
what was going on in the plant. The Union distributed
leaflets at the Athens plant in reference to its campaign
at the Tuskegee plant.
Idonia Jerido frther testified that Mary Ellen
Spartley was her supervisor, who advised her about her
layoff as follows:
A. Well, she told us we was being laid off and
lhat-and she told us to go down to unemployment
office and apply for our unemployment and when
they asked when would we get somec work, she said
she didn't kns; she couldn't talk.
She said she became aware of tle employee's organi/-
ing effort in May 1978; that she was a member of a union
10 years ago, and that she saw Mims on the morning of
July 18, 1978, at 9:30 a.m. when she cme to the plant
She attended the company meeting that day and in refer-
ence thereto, she testified as follows:
Q. What do you recall Mr. Heller say ing?
A. Mr. Heller spoke and he said that having a
union could put our job in jeopardy. So I personal-
ly asked him what he meant by "putting our job in
jeopardy." He said that it meant by having a union
[the price of] the coats could go up so high that
wouldn't nobody buy them; there wouldn't be no
point in making them. Then he said those ho had
signed union cards, that they didn't have to sign
them: they didn't ha, e to let the peoples in their
homes coming arouiid with cards to be signed; and
he also said the more cards the union got signed.
then the more the mnoney the ones had them signed
would be paid by the union. And he said those who
had signed cards could ask for them back. tlit
someone asked him ,Ill.y we didn't ha e better in-
surance, and he said hc had been looking at some
insurance, the same kind his company had ill Ten-
nessee.
In D)ecember 1977. Jrido said Wexler came to Tuske-
gee iarment and told the employees they were doing a
good job lie said production as good and they were
making a good garment. ()On another occasion employees
were called into the front office, wshere Plant Manager
Kenniedy told them they were doing a good job. and
each were given 30 cents for a coke. She said after July
she nticed that no delieries were being made to the
plant, but she saw garments, machines, and materials
being shipped out She was a member of the union com-
mittee, along with Ethel Williams and Bernice Adams.
Tihey met ith Ieliler on November 2 197S. in Hunts-
ville, Alabama, to learn the status of I ukegee (iarmenit.
swhen Heller told them Tukegece Garment w\as closed
and was not going to reopen
Jerido continued to testify as follows:
A. Mr. Heller said he would not open it h ck up.
anld he also related to the distance that lie had; to
come on his plane and all, that it was da ngerous.
And Mr. Heller told us at hal meetinig that Ve was
doing good The! didn't close on accoillt 4i be-
cause we was bad ad vwasn't doing well.
Q. Did you ask him any questions at that time.'
A. Yes I asked hill s hy didn't he tell us hle ;sas
going to closc aiI hle said it he hd' e told 1(s he
was going to close the plant, e vsouldn't hase fin-
ished his coats.
Jerido acknowledged that Plant Manager Kciiincd
had talked to herself and other employees about keeping
up their production prior to the onset of union ati it.
Bernice Adams has been I machine opcrator sinc
1974 in the Barclay corporation and continued her eim-
ployment with Tuskegec Garmenl unlil August 22. 1978.
when she was advised by her supervisor that she s; as
laid off. She signed a union card onl May 26, 1978.
Adams further testified that she attended the econd
company meeting on or about I eek after the first
meeting. and heard Heller tell employees they did not
need the Union: it would be better if the Union didi not
comc in: aid that the Union could not promise t hem
jobs. He told them that the Union's purpose w;as to get
their money, ride around in fine cars. and live in expen-
sive hotels and motels.
Adams said she attended the thirl company meeting
on August 10, and heard Manager Stev e Kennedy tell
employees the same thing Heller told them. Kenned
also told them if the Union came in their jobs ould be
in jeopardy, that the plant u; as not getting work because
it \was preparing for a chatlrIgeo\ r (;asonal). Adimlas Said
() I
I)lCISI()NS OF NATIO()NAL ILAIBOR RLA'I IONS BO()ARI)
she saw a boll of fabric being shipped out, which she
had never seen occur before. She saw the Weather
Tamer sign outside taken down and a sign placed in the
window which said. "No More Application for Employ-
ment." She said, in the past, the majority of fabrics re-
mained in the plant although a few bolts would he
shipped out.
Vivian ,4. Young testified that she was employed in
June 1978 and became aware of the union campaign in
the same month. She said she attended a company meet-
ing in which Plant Manager Kennedy told employees
"Too many people were absent, that they were not get-
ting enough work out and he had to send the winter
coats to the Athens plant.":'
Young further testified that Mr. Heller spoke to em-
ployees against the Union but he told them if they voted
for the Union it would not be held against them by Re-
spondent. Patricia Robinson corroborated Young's testi-
mony with respect to Plant Manager Kennedy's speech
about absenteeism. Robinson further testified that a week
before August 8, 1978, Supervisor Derco asked her if she
or any of her fellow employees had signed a union card.
She said she did not reply.
E. Respondent's Explanation Jbr Closing the Tiuskegee
Garment Plant
Vice President Eugene Heller testified that at the time
he and Wexler purchased all interest in the Barclay Cor-
poration in November 1976, he told Plant Manager Steve
Kennedy he wanted him to try to make the things go,
and if he could not do so, Weather Tamer would have to
close the plant. However, in early 1977, when it became
clear that operating Tuskegee Garment was going to be
a managerial and financial drain on Weather Tamer,
Heller said Weather Tamer decided to construct a plant
at Lewisburg, Tennessee.
During a special meeting of the shareholders and di-
rectors of Tuskegee Garment in Chicago, Illinois, on No-
vember 7, 1977, there was discussion of the feasibility of
continuing the operation at Tuskegee Garment, and they
discussed exercising the option to renew the lease in
about March 1978. It was further decided that it could
not close the Tuskegee Garment plant immediately be-
cause of commitments to Weather Tamer's customers,
but to keep open the lease option so the Company could
operate as long as necessary (Minutes of the meeting,
Union Exh. 1).
According to Union's Exhibit 2, minutes of the joint
Tuskegee Garment shareholders director's meeting in
Chicago on May 1, 1978, a lease of the Tuskegee Gar-
ment facility was approved to end on September 30,
1979, at $300 per month. The discussion centered around
an effort to have the lease expire at a time when con-
struction of the new Lewisburg plant would be complet-
ed, so that business operations would continue. In the
July 1978 issue of "The Weather Tamer Bugle" (Resp.
:' Young attempted to testify about a conversation held with her super-
visor, loyd D)erco. and an objection was interposed because such con-
versaltion was not alleged in the complaint. The objection was overruled
I now reverse his ruling, and sustain the obhjecin to, and strike the tesli-
mony given over the objection, because the issue was not litigated by Re-
spondent
Exh. 20), Heller said he expected the Lewisburg facility
to be in operation in 4 to 6 weeks (late August or early
September 1978), which is also the time the new spring
line production was to begin. He said he nevertheless de-
cided to go forward with production at Tuskegee with
the fall season garment, because Weather Tamer had
trouble with the contractor constructing the Lewisburg
building, which was not ready for occupancy and oper-
ation. He said he decided not to go forward with the
spring garments before July 18, 1978, because according
to Respondent's Exhibit 14, Weather Tamer was experi-
encing a decline in spring and fall sales and orders for
1978 and 79 (Resp. Exh. 22).
Heller also said the cost of operating a diesel trailer
truck for 365 miles at 72 cents per mile once or twice a
week, the cost of paperwork, and the costs and time of
his having to charter a plane to come to Tuskegee Gar-
ment, were all factors considered in deciding to close
Tuskegee Garment. When confronted with his affidavit
submitted to the Board agent, Heller admitted that at the
March 1978 board of directors and shareholderv meeting,
they decided the winter season orders would be the last
order sent to Tuskegee, and his projection was to close
the facility prior to September 1978, with no precise date
set.
With respect to extending the lease, Vice President
Heller testified that originally the parties had agreed to a
lease which was entered into with the board of directors
of Tuskegee Garment, on which Tauman is a member,
along with the City of Tuskegee (Mayor John Ford)
which was to take effect after the expiration of the lease
on June 30, 1978. Thereafter. Tuskegee Garment entered
into a lease beginning on May 1. 1978, for a period of 15
months, to expire September 30, 1979, with five 2-year op-
tions to renew the lease. The September 30, 1979, date was
given because Weather Tamer was having a building
constructed at Lewisburg, Tennessee, and it did not
know for certain when it would be completed. If com-
pleted earlier, Tuskegee Garment would have been
closed. However, Mr. Heller said closing Tuskegee Gar-
ment would have depended upon sales and production in
the future. Nevertheless, Tuskegee Garment was closed
in August 1978. The Lewisburg plant became operational
November 1978, and Weather Tamer could not move the
machinery into the plant earlier.
Heller further testified that Weather Tamer decided to
build a plant at Lewisburg prior to 1978, even though he
continued to tell the employees after the layoffs in
August 1978 that he was hopeful of reopening Tuskegee
Garment. There was no public disclosure of the con-
struction of the Lewisburg plant until October 1978, be-
cause Weather Tamer had goods to finish at Tuskegee
Garment after August 1978. The plant closed on October
9, 1978. Tuskegee Garment Corporation was disolved
April 2, 1979. Heller also stated that he had Plant Man-
ager Edward Steve Kennedy to announce to employees
that Tuskegee Garment was to be closed in August 1978,
he could not recall the exact date. He said that in the
past Tuskegee Garment had laid off employees for a
short period during periods of changeover. The plant re-
mained open until October 9, 1978, to enable it to pay
302
W7FAI I:R FAMER, IN('
the rent and to discharge other obligations that may have
occurred before it was able to transfer to its Lewisbulg
plant. General Counsel Exhibit 37, the official document,
showed that uskegee (Garmcnt withdrew from business
in the State of Alabama on August 6, 1979. Ileller testi-
fied that lcvN, controller of Weather Tamer did not
appear and testify in this proceeding because he under-
went brain surgery recently and has not ias yet fully re-
covered tlie corroborated Steve Kennedy's testimony of
sales behiig dos ni hen the Athens plant worked a 4-daS
week in the latter part of 1978, and he acknosslcedged
that this had never happened before. He explained that
"takings" are "sales" equal total of garments conmmitted
to sell to customers based on orders received.
Finally, Heller testified thlat Tuskegee Garment did not
offer !o bargain before Noveniber 2 1978, and that the
Union did not request it to bargain, and he acknowl-
edged Tuskegee Garment did not notify the Union that it
was closing Tuskegee Garment
During the November 2. 1978, meeting in Huntsville,
Alabama, Heller said he told the union committee the
plant would not be reopened under any circumstances,
and that the employees would not be given any sever-
ance pay as the Union had requested. Hec further ac-
knowledged that before the November 2 meeting, the
Union requested information concerning the closure of
the plant, but Respondent did not provide such informa-
tion. Heller continrued to testify as follows:
Q. Why did you try to win an election at the fa-
cility that you had decided to close?
A. To avoid my having to take a week out of my
very limited time to be here answering questions for
you .
Q. Your statement inll your speech was that "The
outcome of this election is extremely important to
me and to our company
A. That's right, and it is, and this proves it.
Q. The importance of it was that you would have
to spend time doing what, now?
A. Discussing this with you.
Q. You mean negotiations you're talking about?
A. No, this isn't negotiations. This is answering
questions, the answers to which I don't have. This
is taking my very limited time. I am stretched in all
directions, and here I have to sit here and explain to
lawyers how to produce goods. I have to explain to
this gentlemen, who will not make me a lawyer any
faster than I'll make him a production man.
The record shows that in a letter dated March 21,
1978, Daniel S. Tauman, attorney for Weather Tamer in
Chicago, wrote to the mayor of Tuskegee, the Honor-
able Johnny Ford, suggesting that the lease to commence
July 1, 1978, contain five 2-year options to extend the
term, the first of which at the rate of' $900 monthly, and
the last three at the rate of $1,000 monthly.
The mayor of Tuskegee, the fHonorable Johnny Ford,
testified that he had been actively seeking to bring new
businesses into Tuskegee since 1972. The city of Tuske-
gee owns a building located on Gautier Street, which
was formerly occupied first by Barclay Corporation and
then by Tuskegee Garment Company, respectively, until
November 1978. Since the departure (if Tuskegee G(ar-
ment, the city has been seeking a new tenant and is cur-
rently negotiating with Smolar rother, a garment pro-
ducer. Smolar is now interviewing prospective workers
and has made a written commitment to move into the
buildinig within a month or so. A lease is being drawn
up. The building is currently under lease to Tuskegee
Garment through September 1979.
Mayor Ford said in the late sumnlir of 1978 that he
learied that the Tuskegce Garment employees were or-
ganizing a union. At the same time, Heller talked to him
on tlhe telephone and told him his profits were marginal,
and that he was not sure, but he thought there was a
chance he may or may not continue operating the plant
Mayor Ford (lid not recite the date of this conversation,
which was sometime in the summer. However, he identi-
fied his letter (G.C. Exh. 40) sent to cller ill which he
explained as follows:
Q. Do you recall sending this letter, sir?
A. Yes. The letter w.as sellt after I learned that
Mr. Hller had closed and definitely not planned to
come back. Somebody called it to my attention, I
guess it was some of the employees-that they had
definitely closed the plant. I did not have air extra
conference with Mr. Heller. I did not know that
they had really closed. They had talked about it.
But when I learned that they were actually gone, I
picked up the phone and called him; and, of course,
I wrote him a letter reflecting our conversation and
asking him to send a key so we could go over and
inspect it.
Mayor Ford said, subsequent to his learning the Tus-
kegee Garment plant had closed, he called. Thereafter,
he commenced seeking a new tenant for the building. He
said he made no such effort befiore October 1978.
ANALYSIS ANDI CONCI USIONS
Although the foregoing testimonial evidence summa-
rized under topics B and C is only minimally denied by
Respondent (Manager Kennedy and Vice President
Heller), I was persuaded by the demeanor of employee
witnesses Elizabeth Henderson Mary Alice Wright,
Ruthina Davis, Edith Lou Tucker, and Idonia Jerido, as
augmented by the circumstantial evidence as a whole,
that their testimonial versions were essentially truthful,
and Respondent's denials thereof were not. I therefore
credit the testimony of the above named witnesses, and
discredit Respondent's.
Consequently, based on the above referenced testimo-
ny and documentary evidence, I find the following:
3. On July 18, after showing the employees an antiun-
ion film entitled, "A Stranger In Our Midst," Vice Presi-
dent Heller put their jobs in jeopardy. When he was
asked by an employee what he meant by the latter state-
ment, accordingly he replied, It meant by having a
Union the coats would go up so high that nobody would
buy them; there would not be any point in making them.
Certainly the above statements by Heller, without any
assurances against reprisals, clearly suggest that the
1)1.I II()NS ()I NA I I)NAI l.AI)R R A IO)NS Bl()ARI)
Union :ould I ca se tile garnieints to hb priced so high
that they would lot be purchased by his customelrs,
thereby fIrciiig Respondenl to go out of' business. Such
statemeits b1 IIeller can hardly be cllaractrized other
than clonveying a threatlning import that Rspondenl
would close its plantl perations if the mnploees exer-
cised their rights protected by Sction 7 in llnioni/ling
the plant. Fturtlherniee, such conduct clearls violates
Section X(a)(1) of tlle Act.
2. Accordinig to the credited tcstimioni of Mlary
Alice Wright, on July 18, the salie da' the Unior
first demanded recogiition, Ieller asked eniployees
why they wvanted the Union. Ie also emphaticall>
said he did ot want the Union, that the Union wsias
11no god fr the ComlpaIny, and (ill so maliny words)
said itf the Union ciailc ill e would close the plallt.
Since leller is a high rianking official of Respondent, it
is clear that his askinlg emiployees whiy they sanled the
Union, constituted coercive interrogation of employees
and that his other statements to the enTploycs not olll
evidenced uniionl anili us, bt also constituted more thal a
veiled threat to close the planit if the employees succeed-
ed in their orgaliziational efforts to nllioniZe the plant.
Such conduct abridges crmployce's Section 7 rights, in
violation of Section 8(a)(1) of Ihe Act.
3. According to the credited testimonial evidence
of Ruthina Davis, on or about July 27, Heller told
employees that Respondent's predecessor, the Bar-
clay Corporation, 5 ent out of business because the
plant became unionized.
Since Heller did not furnish the employees with any
objective evidence to support the above statement, it is
obvious that he presented this conclusionary reference
for the employees to use as a comparative analogy as to
what would happen to them should they unionize Re-
spondent's plant. As veiled as it may seem, such state-
ments to employees during a union campaign obviously
carried a threatening message to employees for engaging
in activities on behalf of the Union, in violation of Sec-
tion 8(a)(l ) of the Act.
4. According to the credited testimony of Patri-
cia Robinson, on August 8, Respondent's undisput-
ed Supervisor, Derco, asked Robinson why she was
not wearing a union pin. At a later time, Supervisor
Derco asked Robinson and the bundle lady if they
had signed a union card.
Since Derco was unquestionably a supervisor within
the meaning of the Act, and his inquiry was made during
the midst of the union's organizing effort, it therefore
constituted coercive interrogation of employees, in viola-
tion of Section 8(a)(1) of the Act. Even if Derco's inquir-
ies were against company orders, it is still nonetheless
coercive interrogation, and the option lies with Respond-
ent to discipline Derco for violating its order, if it so
chooses. This conclusion is especially true, since Derco,
like Heller, did not give employees any assurances
against reprisal by Respondent.
In his brief to the Administrative aw Judge herein,
co usel for tile (iGeneral Counlsel requested tile Adminis-
tratisc l.aaw Judge to reconsider his ruling excluding tes-
tuiilii\ allgilig that ill August, Supervisor loyd I)erco
orally threatened all employee with plant closure if the
llnion successfully organized employees at luskegec
G(arment. Counsel also requested the Administrative
ILa\v Judge to accept his, offer of proof of said allegation
as evidence. and hce cited several cases purportedly in
suplort of his first request.
While tlhe allegationi of the proposedl anlndmiciit may
in some way be related to the gencral allegations i the
original charge at the time of tile ruling, I had no wlay of
conclud(ing as the (ienral Counisel argues, that Respond-
celt ,was fully apprised of the factuil matter on which the
imotion to amend \,as predicated. Counsel does not cite
aniy particular page or lanlguage in the authorities cited
to support his argument, ()rdinarily, I generally grant
such IotiOns to amendlcl the coniplainit rhelCl made early
ill tlhe proceeding, and hiln based onil a reasonable cx-
planation. In the istaint case, thil hearing as well ut1-
derway (near the end ofl the second day), ad itlnesses
aind prospective iltnesses had been congrcgatiig and
conlversing outside the hearing room onil both days.
Counsel for Respoldeit objected strenuously to the
latent motion to amcid the complaint. I also viewed the
subject of the proposed amendment as merely cumula-
live.
In any event, after a review of the circunistances
herein before described, I do not believe gratiig such
anl amelidneleit under such circumstances would comport
with fair play. In my judgment, granting the amendment
would have been prejudicial to Respondent's defense
under the circumstances.
Finally I do not find anything reasonably on point in
the authors cited by counisel for the General Counsel,
\which suggest reversal of the ruling.
5. It was established by documentary evidence
(G.C. Exh. 31) that Plant Manager Steve Kennedy
gave a written speech to employees on August 10,
during which time he told employees, inter alia, the
Union could jeopardize their employment. He also
told them "you owe it- to yourself and your family
to find out the facts on both sides before you vote.
The outcome of the election will aect your future as
an employee of the Company." When an employee
asked Manager Kennedy what the latter vratement
meant, he replied: "Read between the lines."
The above statements by Plant Manager Kennedy
were made without giving employees any assurances
against reprisal. Hence, it is obvious that the seriousness
emphasized in this meesage by Plant Manager Kennedy,
as well as the unequivocal statement of fact that the em-
ployees' future employment will be affected by their
unionization of the plant, clearly constituted threatening
conduct on the part of Respondent, in violation of Sec-
tion 8 (a)(l) of the Act.
6. Vice President eliler, gave another speech
against the Union on August 17. As the General
304
WEATHER TAM}ER. INC.
Counsel points out, the most pertinent parts of that
speech were as follows:
First of all, you should kow that there is no
way that the Union carl guarantee a single job or a
single paycheck for the employees of this plant.
Each of you has a job here today because we are
able to produce a quality product at a competitive
price which our customers are willing to purchase.
Anything which interferes with our ability to pro-
duce good garments at competitive prices can have
a serious effect on the future of this plant.
The industry that we are in is a very competitive
one. The difference in price between our products
and another company's product is often quite small.
The buyers, or our customers, are always looking
for the best possible price and for guaranteed deliv-
eries, and union demands for higher wages and
benefits could force up the price on our goods so
that we are no longer competitive. I think that all
of you can see that this effect would be extremely
detrimental to your future and the future of this
plant .
There is no way that we could agree to union de-
mands which would make the operation of this
plant unprofitable or uneconomical. It would do us
no good to manufacture garments when the cost of
manufacture was so high that we could not sell
them in the marketplace....
It is our desire to continue the operation of this
plant as long as it is economically feasible and as
long as work is available. I would hate to see any
group of outsiders come into this plant and cause
the interference and disruptions which would pre-
vent us from attaining that goal.
As the General Counsel argues, when the above
speech by Heller is read in the context of the Union's
onoing efforts to organize the plant, and Respondent's
many speeches by company officials, it is inconceivable
that employees in any plant could arrive at any conclu-
sion other than that such speech was a clear message
that the plant would be closed in the event of unioniza-
tion. This is particularly true when it is observed
throughout the record, that Respondent made its many
speeches and carried on its many conversations with em-
ployees with respect to its opposition to the Union, with-
out ever giving employees any assurances that their sym-
pathies, desires, interests, or activities for, or on behalf of
the Union, would not subject them to reprisals by the
Company.
Moreover, at no time did Respondent present to its
employees any objective considerations such as compara-
tive data relating to sales and costs to justify the gloomy
economic forecast it painted to its employees. Nor did
Respondent furnish any evidence that the Union in ques-
tion had presented to it any unreasonable demands or
that it would do so in the future. Consequently, Re-
spondent's clear threat, implied or expressed, to close its
plant if the employees selected the Union as their collec-
tive-bargaining representative, violated Section 8(a)(l) of
the Act. Jimmv-Richard Co.. Inc., 210 NLRB 802 (1974)
and .L.R.B. v. Gisel Packing Co.. Inc.. 395 U.S. 574
(1969).
7. According to the credited testimony of Ruthinia
Davis, after the above speech on August 17, while at her
work station, Heller asked her why she wanted the
Union to come in and tell her how to do her work.
During their discussion about wages, Heller asked her if
the wages were so bad at Tuskegee Garment, why sa as
she working there. Davis told him that she was mercly
working there for the time being, but that she would be
leaving soon. Heller then asked her hy hKwa she coiing
back to vote to jeopardize other people's jobs.
The above statements by Heller with reference to
jeopardizing other people's jobs is clearly a further threat
that if the employees voted for the Union their jobs
would no longer be secure. He made further threatening
statements by implication, when he asked Davis why did
she think the plant (the unionized Barclay Corporation)
went out of business three times before he Heller,
Weather Tamer) took over the business. Even though
the above statements by Heller may have been articulat-
ed during a friendly conversation with Davis, Heller was
still vice President of Respondent, and Davis was still an
employee of Tuskegee Garment. Therefore. Heller's
question and threatening statements were not stripped of
their coercive effect on the organizing rights of Davis
and other employees. Quemtcro. Inc.. a sub.sidiar, of RSR
Corporation, 223 NLRB 470 (1976); and Monroe Manu-
facturing Company Inc., 200 NLRB 62 (1972). The re-
peated reference to plant closures by Heller and Plant
Manager Kennedy only reinforces the conclusion that
such references in totality, were threats to close the plant
and constituted violations of Section 8 (a)(l) of the Act.
After laying off its production employees in August.
Respondent's campaign of instilling fear and insecurity in
employees with respect to their jobs, was further forti-
fied by its letter sent to all employees on September 5
(G.C. Exh. 17), which in essence read as follows:
8. The only real job security is provided by our
customers. As long as we are able to manufacture
quality garments at a competitive price, there will
be work in our plant and jobs for our employees. I
have enclosed a list of several companies that have
recently applied for Federal assistance for their em-
ployees due to the fact that they were forced out of
business by foreign competition. Several of these
companies were making women and children's gar-
ments. Many, if not most. of their employees were
represented by Unions. The Union did not provide
these people with job security....
The best job security that you have is a NVO vote on
September 15.
Again, Vice President Heller refers to other plant clos-
ings, which he implies were forced out of business by
cheaper competition because their unionized employees
forced them to sell their garments at higher prices.
Heller did not provide any objective evidence to support
his intimidating statements to the employees. Certainl
305
DIECISIONS OF NATIONAL LABOR RELATIONS BOARD
such threats constituted a violation of Section X(a)(l) of
the Act. Marathon Lelburneau Company Gulf Marine
Division of Northern Manufacturing Company, 208 NLRB
213 (1974).
9. Heller continued in his letter of September 5,
sent to employees as follows:
Although we have recently suffered a reduction
in work, we are hopeful that we will be able to
secure new work within the next few weeks and
return everyone to full employment. There is no
way that the Union can help us find or keep work
in our plant. (G.C. Exh. 17).
The above paragraph written to laid-off employees in
light of the above described unlawful conduct of Re-
spondent, clearly conveys or infers to the employees,
that they could return to work if they returned without
the Union. Heller reinforced the above letter with his
letter dated September 12 (G.C. Exh. 19), 3 days before
the election held on September 15, in which he empha-
sized the following:
"To Protect Your Future. Be sure and VOTE NO on
September 15"
Moreover, on the sample ballot attached to this letter,
Respondent said: Employees are urged, "Put 'x' in the
'NO' Box to vote against the Union and for good wages,
job security, and individual freedom!!!"
10. On September 13, Heller made another
speech (G.C. Exh. 43) to employees, during which
he said: "Many companies manufacturing ladies'
and children's garments have been forced out of
business in the past few years because of increasing
competition from foreign countries, and Unions
have lost thousands of members with thousands of
jobs." Heller continued, "I think that all of us real-
ize that it is much better to earn good wages and
the benefits and have steady work than it is to have
a higher wage-rate and benefits on paper only but
with no work to do. Is that clear to everyone?"
11. Also in his letter of September 13, (written
speech), Heller continues as follows:
Okay, that you are charged that the threatened
employees says their jobs were in jeopardy if they
voted yes in the Union election. Now as far as that
part is concerned if telling the truth is a threat I
don't know what we have tried to be absolutely
honest with everyone of you. [sic] We put a lot of
this stuff in writing and you'll notice I've been read-
ing most of this stuff and generally .... what I
say I will stand behind, and if you feel that you are
threatened . . . I doubt it, I don't think so. We
threatened to close the plants if the Union came in.
Okay, there too we are trying to be absolutely
honest and straight with you but we are not going
to tell you fairy tales, we are not going to tell you if
the garments cost more than for what we sell them
for if we're to keep running the plant, and if any
body does tell you that you know and you believe
them, its your own fault.
The series of remarks in the several speeches hereto-
forth described in paragraphs 8, 9, 10, and I 11, remove all
reasonable doubt of Respondent's intention to communi-
cate to its employees, an ultimatum of either work with-
out the Union, or no plant and no work. Heller empha-
sized and reemphasized the importance of the outcome
of the election as it related to the future employment of
the employees of the Tuskegee Garment. More specifi-
cally, in his September 13 speech he said, "if only 10 em-
ployees vote in the election, the outcome will [be] decid-
ed by six people. I wouldn't give away my vote that
way and I don't think anybody who values their job
should." In further elucidating on his prior comments,
Heller also said, "we are extremely hopeful that in the
next few weeks increasing orders for the spring line will
enable us to call our employees back to work here in
Tuskegee." We know that we will be in a much better
position to obtain new work and deliver garments on
time without the interference of the ILGWUA.
Again, Vice President Heller made it clear that contin-
ued employment at Tuskegee Garment was conditioned
on the employees' rejecting the Union. Such a condition
clearly constituted threatening employees to close Tuske-
gee Garment if they selected the Union as their repre-
sentative, in violation of Section 8(a)(l) of the Act.
Additional evidence of Respondent's coercive and un-
lawful conduct, as well as its real reason for closing the
Tuskegee Garment operation is as follows:
12. In a letter dated August 29, Heller also ap-
prised the Athens plant employees of its opposition
to the unionization of Tuskegee Garment, or of any
of its other plants. Subsequent to the mass layoff of
employees at Tuskegee Garment on or about Sep-
tember 1, the Athens plant supervisor, Abby White,
told Athens employee, Edith Lou Tucker, that4 em-
ployees at Tuskegee Garment had voted in the
Union and Heller had closed the plant; and if em-
ployees at Athens selected the Union to represent
them, Heller would close the Athens plant.
Such conversations by Vice President Heller and Su-
pervisor White, constituted threatening reasons to close
the Tuskegee Garment and Athens plants, in the event
employees in either or both plants sought unionization
thereof. As such, Respondent's conversations were viola-
tions of Section 8(a)(1) of the Act; and its actual laying
off of employees for such reasons, violated Section
8(a)(3) of the Act. Heller's statement to the employees
on September 13, that "that whether or not the Union
wins the election on Friday will not determine the future
of this plant in Tuskegee .... " does not strip Respond-
4 Although the record shows that Tucker and Whilte did not get along
very well from a personal point of ies, [I wls nevertheless persuaded by
the rather candid and impersonal manner in which Tucker testified. that
her testimony was not colored by her personal feelings towards White I
was furher so persuaded by the chain of credited evidence of the orga-
itlzitg activities of the Tuskegee Garment employees, which coincided
itlil Respondent's closing of the 'Tuskegee plant, and is prophesy
close he Athens plant. I do not attribute the contemporaneous Iccur-
rence of these events to coincidence, hut rather, Il the well orchestrated
efforts of Respondent to intimidate its Athens plant emplioyees from seek-
ilg representation of employees at the Athens planit
306
WEATHER TAMER, INC
ent's previously uttered threats of their threatening and
coercive character, nor does it exonerate Respondent
from violation of the Act.
Consequently, Respondent's well established 8(a)(1)
conduct also clearly reveals, and I so find, that Respond-
ent's reason for closing the Tuskegee Garment facility
was substantially, if not solely, motivated by the employ-
ees successful unionization of the plant. I further find
that most, if not all, of Respondents other reasons ad-
vanced for closing the plant were merely a pretext to
conceal its otherwise unlawful reason. These conclusions
are further supported when it is observed that in spite of
Respondent's contended reasons for closing Tuskegee
Garment, it nevertheless, made exhaustive campaign ef-
forts to dissuade not only its Tuskegee Garment employ-
ees, but also its Athen's plant employees, from unioniza-
tion.
The record further shows that it was only after Re-
spondent learned on July 18 that a majority of its em-
ployees were in favor of the Union, and 2 to 3 weeks
before the upcoming union election, that it decided to
lay off nearly all of its production employees. In all
probability, Respondent elected to designate the separa-
tion of its employees from the Tuskegee plant as a layoff,
as distinguished front a termination, because it was
hoping to gain additional antiunion mileage from the
layoff, and retain the option to recall the employees in
the event the Union was defeated in the election of Sep-
tember 15. When the Union prevailed in the election,
Respondent made the layoff of the employees permanent
by closing the plant.
The evidence also shows that Tuskegee employees did
not manifest any idea that the Tuskegee Garment plant
would be closing until after Heller's speech on August
10, when he directed that the Weather Tamer sign be
taken down. Although employees asked Heller about the
future viability of the plant, at no time did Heller, or any
other managerial official, ever tell the employees that
Respondent contemplated closing the Tuskegee Garment
facility. Although Respondent contends that its denial
that the plant would close and its reasons for concealing
its closure were strategic, in order to have the employees
complete work on its garments, I do not credit Respond-
ent's contended reasons. This conclusion is especially
true when it is observed that Respondent went to great
lengths to defeat the Union. Moreover, although Re-
spondent's Lewisburg plant was under construction since
early January, the record is barren of any nonself-serving
evidence that Respondent contemplated closing the Tus-
kegee Garment plant prior to the Union's campaign and
demand in July.
At least it may be reasonably inferred from the evi-
dence prior to July 18 when the Union made its demand
on Respondent that Respondent intended the Lewisburg
facility as a fifth plant, instead of an alternative for the
Tuskegee Garment facility. This is also true since em-
ployee-witnesses testified how Plant Manager Steve Ken-
nedy commended them and gave them a Coca-Cola for
doing such a good job. In recent months prior to the clo-
sure of Tuskegee Garment, the evidence does not show
that Respondent manifested any dissatisfaction with the
quality of production of garments manufactured at Tus-
kegee Garment. All of Respondent's contended dissatis-
factions with garment quality and production at Tuske-
gee was presented at this hearing, after the fact of union-
ization. I find such testimonial expressions of dissatisfac-
tion inconsistent with Respondent's conduct which is
self-serving and untruthful. I therefore discredit such rea-
sons as being any part of Respondent's predominating
reason for closing Tuskegee Garment, the employees se-
lection of the Union as their representative.
F. Respondent Failed and Refused To Bargain With
the Union
After the Union obtained a majority of votes in the
election held on September 15. it obtained certification as
the representative of the production employees of Tuske-
gee Garment. Thereafter, on September 29, the Union
requested to meet with Respondent for the purpose of
collective bargaining. At that time it also requested rele-
vant and pertinent information to its bargaining position.
On October 9, Respondent replied through its legal
counsel, who informed the Union for the first time that
the Tuskegee Garment facility had been closed by Re-
spondent, and that the information requested was not rel-
evant. Although Respondent furnished some information,
it did not supply most of the information requested, and
it acknowledged such fact at the hearing. Thus, it is clear
and undisputed that Respondent's duty to bargain with
the Union arose on and after September 15, 1978, when a
majority of the employees selected the Union as their
collective-bargaining cepresentative. Although Respond-
ent laid off many of its employees between August 17
and 29, at no time did it advise the employees that the
plant was closed until October 9.
Since the October 9 letter also expressed Respondent's
refusal to furnish the information requested by the Union
on September 29, such refusal constituted a failure and
refusal to bargain, in violation of Section 8(a)(5) of the
Act. It cannot be reasonably argued that the information
requested was not relevant and pertinent to negotiations
over the transfer of work and machinery from the Tus-
kegee plant to the Lewisburg plant in November, and
the effects of the plant closure on the employees who
were represented by the Union. Consequently, since Re-
spondent closed its plant after September 15 on a perma-
nent basis, without giving prior notice to the Union with
which it was bound to bargain on and subsequent to Sep-
tember 15, such conduct constituted a failure and refusal
to bargain in violation of Section 8(a)(5) of the Act.
Ozark Trailer, Inc., et al., 161 NLRB 561 (1966). Such
closing of the Tuskegee Garment facility also constituted
a partial closing of a single integraded business enterprise
and did not amount to a complete closure of business by
Respondent. As the employer in Bruce E. Kronenberger
and Herbert Schoenbrod d/b/a American Needle & N'oveltv
Company. Kentucky Manufacturing Company and larris-
burg Manufacturing Company, 206 NLRB 534 (1973), Re-
spondent decided to transfer work from its Tuskegee
production facility to its Lewisburg facility, which trans-
fer was the subject for collective bargaining by Respond-
ent with the Union. Since Respondent unilaterally made
such transfers, closed its plant on a permanent basis, and
307
DECISIONS OF NA'TIONAL LABOR RELATIONS H()ARKI)
refused to bargain with the Union with respect to mat-
ters of a contract. its actions were discriminatorily moti-
vated, and, as such, clearly violated Section 8(a)(5) of
the Act.
IV. 1' 1 IFFEC'S OF I'HI UNFAIR IAHOR PRACI'I(F-S
UPON COMhMIRCI:
The activities of Respondent set forth in section III,
above, occurring in close connection with its operations
as described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. REMED)Y
Having found that Respondent has engaged in unfair
labor practices warranting a remedial Order, I shall rec-
ommend that it cease and desist therefrom, and that it
take certain affirmative action to effectuate the policies
of the Act.
It having been found that Respondent on several occa-
sions and in various forms interfered with, restrained,
and coerced its employees in the exercise of their Section
7 protected rights in violation of Section 8(a)(1) of the
Act; that it discriminatorily laid off, and thereafter per-
manently terminated, its production employees by clos-
ing its Tuskegee Garment plant in violation of Section
8(a)(3) of the Act; and that it failed and refused to fur-
nish the Union appropriate information requested, and to
meet and bargain collectively with the Union, the certi-
fied collective-bargaining representative of the said unit
employees; and that it unilaterally closed its Tuskegee
Garment plant without consulting with or notifying the
Union, all in violation of Section 8(a)(5) of the Act, the
recommended Order will provide that Respondent make
all unit production employees laid off between August 17
and 29, 1978, whole for any loss of earnings within the
meaning and in accord with the Board's decision in F.
W Woolworth Company, 90 NLRB 289 (1950), and Flor-
ida Steel Corporation, 231 NLRB 651 (1977),5 except as
specifically modified by the wording of such recom-
mended Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent cease and desist from or in any other
manner interfering with, restraining, or coercing employ-
ees in the exercise of the rights guaranteed them by Sec-
tion 7 of the Act .L.R.B. v. Entwistle Mfg. Co., 120
F.2d 532, 536 (4th Cir. 1941).
Upon the basis of the above findings of fact and on the
entire record of this case, I make the following:
CONCIUSIONS OF LAW
1. Weather Tamer, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. International Ladies' Garment Workers' Union,
AFL-CIO, is, and has been at all times material herein, a
s See, generally, I Plumbing d IHoating Company, 138 NIRIi 716
(1962)
labor organization within the meaning of Section 2(5) of
the Act.
3. By telling employees their jobs will be in jeopardy
if they selected the Union as their representative, Re-
spondent violated Section 8(a)(1) of the Act.
4. By asking employees why they wanted a union and
telling them that the Union was no good and if the
Union got in Respondent would close the plant, Re-
spondent violated Section 8(a)(1) of the Act.
5. By asking an employee why she was not wearing a
union pin and whether she and another employee signed
a union authorization card, Respondent violated Section
8(a)(1) of the Act.
6. By telling employees the Union could put their jobs
in jeopardy and that the outcome of the union election
could affect their future employment with Respondent,
Respondent violated Section 8(a)(1) of the Act.
7. By asking an employee why she wanted the Union
and why was she going to return to the job to vote in
the union election and put other employees' jobs in jeop-
ardy, Respondent violated Section 8(a)(1) of the Act.
8. By telling employees the best job security they can
have is to vote NO in the upcoming union election, Re-
spondent violated Section 8(a)(1) of the Act.
9. By implying to its laid-off employees that they
could return to work only if they (the employees) reject-
ed the Union, Respondent violated Section 8(a)(1) of the
Act.
10. By telling employees in its Athens plant that its
Tuskegee plant was closed because the employees select-
ed the Union as their represenative, and that Respondent
will close its Athens plant if the employees therein . . .
selected the Union as their representative, Respondent
violated Section 8(a)(1) of the Act.
11. By telling employees about other plants in the
country closing because they were unionized by their
employees, Respondent violated Section 8(a)(1) of the
Act.
12. By discriminatorily laying off its production em-
ployees on and between August 17 and 29, 1978, and
thereafter discharging them by closing its Tuskegee plant
because they selected the Union as their representative,
Respondent violated Section 8(a)(3) and (1) of the Act.
13. By failing and refusing to meet and bargain collec-
tively with the Union, by failing and refusing to furnish
information requested by the Union, and by unilaterally
laying off all production employees, and closing its Tus-
kegee Garment plant, without consulting with, or notify-
ing the Union, Respondent violated Section 8(a)(5) of the
Act.
14. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
I'. Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act. I hereby issue the following recommended:
30
Vi'A l ll IR l\AM1R. IN(
()ORDfLR'
'The Respondenl. MWeatlhr 'lamcr, Ilnc. and I'usklcec
(iarmnt Coporalionll, Atlens and lu tskege, lllllahia.
and es ,ishIurg, Tentnessee. its officers, aIgetll t sccCssOs
and assigns, shall:
I. Cease and desist f'ron:
(a) Threatening employees by Itlling then their jobs
wvill he jeopardized it' they select the Union as their rep-
resenltatl c.
(h) Askitng employees wvh the\ Want a union aiind tell-
iig them it' the Unioni s selected hb the etrlplo>ees. Re-
spondtent \sill close the Tuskegee plait.
(el Askinig eClllploe' s i they are no(t \. Carinlg
Union pin alld whcther o lot tl h. signed a itill aIL-
lhorizAtionl card.
(d) Telling employees the Union could put their jobs
in jeopardy and/or that the outconle of the union clec-
tion can affect their future employment.
(e) Askilg cnmployees vhy were they returinlg to tih
job to vote in the election ad put other employees' johs
in jeopardy.
(f Tellinlg employees the best job securit they can
have is to \ote NO ill a uion election.
(g) Telling laid-off enmployees they can returni to work
only if they reject the Union as their representative.
(h) Telling employees in its other plants that thie 'Ius-
kegee Garment planit was closed because the employees
unionized the plant, aid Respondet wrill close its Alhens
or other plants. if the employees therein select the Union
as their representative.
(i) Telling employees other plants ill the country (Bar-
clay Corporation, etc.) closed because the employees
therein selected a union as their representative.
(j) Discouraging membership i, or acti\ities on behalf
of, International Ladies' Garmenlt Workers' Union,
AFL-CIO, or any other labor organization, by laying off
all unit production employees or closing business oper-
ations, or otherwise discriminatinlg against employees ill
any manner in respect to their tenure of employment or
any term or condition of employment, in violation of
Section 8(a)(3) and (1) of the Act.
(k) Failing and refusing to meet and bargain collective-
ly with, or failing and refusing to furnish appropriate in-
formation requested by the duly certified representative
(Union) of unit employees, and/or unilaterally laying off
unit employees and closing business operations, without
I the el no exception, are filed ;is prolsided hb Sec 102 46 if
Rules ad Regultiorlns f the National Labor Relalions Hoard. Ihe find-
ings., coclusions, and rtconlmendcd ()rder herein salilil, as prrv ided
Sec 102 4 of the Rules and Rgulations, h adopted hb: the tiaird and
become its indilgs, conclusions. and Order, and all ohjelctiorl, thercll
shall hb deemed 0 ai.ed firr all purp .t.s
con(sulting tilh or inotilyitIg the idutl autlhorized repre-
senlatiC cs (Unlilon) of Ihe utlltt elllploN ecs.
2. l;ke the follvs itg affirali e actin io necessar to
cft;Lcttllte tle policies of the ct:
(a) R.eiistitute the I luskegee (armenlt business ()pcr-
ation, (plallt) at Tutskegcc Alabaanl, a1id rstor- ihe I c ork
forntally perfrIrnled hy the laid-off uit productioln em-
plo e tcs.
(b) Recall aid offer to the laid-of t uit production en-
plocs o uskcgcc (iarnlti Crporation, iniliediate
and full rcillstatenllllt to their former positionis or. if suchl
positions no longer exist, to substantiallN equialenlt posi-
tions, without prejudlie to their senlority r other rights
preioulsli el jo>cd. ald mlake them \slc for an loss (of
pay sLuffcred bl rasoin o te di,,scritinatiol against
teti. wilh interest. i tle mtailiner described i the sc-
tioni of this decision ellitled, "lThe Remiedy,"
(c) Ulpon request. hbargain \ith International l.adies
Garmenlit Workers' tUnion AFL-CI(), as the exclusise
represeltative (of Respondent's employees i te uit
herein fotund appropriate, ad elhbody atly understanditng
reached in a signled agreeienltll.
(d) Uponl request. provide the Uniol. Interna;tional
Ladies' (arment Workers' Union, A L -CO(), ith the
specific ilfornmatioll hecirin before requested by the said
Union.
(c) Preserve and, uponl request, make available to the
Board or its agents, for examilation aid copinrig, all
payroll records. social security payment records, time-
cards. personnel records, ad reports, and all other re-
cords necessary to anlalyze the amount of backpas under
the terms of this recoilmended Order.
(f) ost at Respondenlt's plant and places of business
located inl luskecgee aid Athens, Alabama. and Columbia
and lewisburg l'elnessee. the attached notice marked,
"Appendix. " Copies of said notice. on forms provided
by the Regional Dlirector for Region 15, after being dulN
signed by Respondent's authorized representative sall
be posted by it immediiately upon receipt thereof ad be
maintained hy Respondent for 60 consecutive days there-
after, in conispicuous places, including all places \shere
notices to employees are custonmarily posted. Reasonable
steps shall be taken by Respondent to illsure that said no-
tices are niot altered, defaced, or covered by ay other
material.
(g) Notify the Regional Director for region 15, in
writing, within 2() days from the date of the Order, w-hat
steps Respondent has taken to colnply herewith.
In lheVe then that his Order s enforced h a Judgmen t of a lrlitd
Slales Courl I}f Appeals. th e uordsn lhl e nltice reading, "'tPotcd h\
Order of The Nltilrl;i I ahoir Relationl Boalrd" shall read '"Posted PIursu
tli Ito ia Judgment f IhC Lnilted Stales C lourt of Appea . ll 'nor rilg ;1iI
()rder of he National I ihor Rllions t oard"