Spruce Pine Manufacturing Co.

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