Hanes Corp.

856 DECISIONS OF NATIONAL Hanes Hosiery Division, Hanes Corporation and Bernice Mahe, Bertha B. Dillion , Lila Rushing, Mary S. Allen, and David Kenneth Brown. Cases 11-CA-3290-1, 3290-2, 3290-3, 3290-4, and 3290-5 December 12, 1967 DECISION AND ORDER BY MEMBERS FANNING, J ENKINS, AND ZAGORIA On September 26, 1967, Trial Examiner William J. Brown issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices, and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. He also found that the Respondent had not en- gaged in certain other unfair labor paractices al- leged in the complaint and recommended that those allegations be dismissed. Thereafter, the Respond- ent filed exceptions to the Trial Examiner's Deci- sion and a supporting brief. 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 connection with this case to a three- member panel. The, Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, as herein modified. 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 as modified below and hereby orders that the Respondent, Hanes Hosiery Division, Hanes Corporation, Win- ston-Salem, North Carolina, its officers, agents, successors, and assigns, shall take the actions set forth in the Trial Examiner's Recommended Order, as so modified: 1. Substitute the words "on forms provided" for the words "to be furnished" in paragraph 2(d) of the Trial Examiner's Recommended Order. 2. Substitute Notice to All Employees, attached hereto as Appendix, for the one attached to the Trial Examiner's Decision. LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: After a trial in which both sides had the opportu- nity to present their evidence, the National Labor Relations Board has found that we violated the Act and has ordered us to post this notice and to keep our word about what we say in this notice. Because the Board found that we violated the law when we discharged David Kenneth Brown for participating in and leading the work stoppage of March 22, 1967, WE WILL offer him his old job back and give him backpay. WE WILL NOT again discharge anyone for en- gaging in such an activity. WE WILL NOT in any manner interfere with, restrain, or coerce you in your right to engage in concerted activities for the purpose of your mutual aid or protection. WE WILL notify David Kenneth Brown if he is presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. You are all free to engage in concerted activity for your mutual aid or protection so long as you do not violate lawful regulations of the Company. HANES HOSIERY DIVI- SION, HANES CORPORA- TION (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. No other material relative to this matter shall be posted during this period. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 16th Floor, Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 723-2911. TRIAL EXAMINER'S DECISION WILLIAM J. BROWN, Trial Examiner: This proceeding under Section 10(b) of the National Labor Relations Act, as amended, hereinafter referred to as the "Act," came on 168 NLRB No. 111 HANES HOISERY DIVISION to be heard at Winston-Salem, North Caroliana, on June 27, 1967.1 The original charges of unfair labor practices were filed on April 12. The complaint herein was issued May 12 by the General Counsel of the National Labor Relations Board, hereinafter called the "General Coun- sel" and the "Board," acting through the Board's Re- gional Director for Region 11. It alleged, in addition to ju- risdictional matter, that the above-indicated Respondent, hereinafter sometimes called the "Company," engaged in unfair labor practices defined in Section 8(a)(1) of the Act. The Company's duly filed answer denies the com- mission of the unfair labor practices alleged. At the hearing the General Counsel and the Company appeared and participated as noted above with full oppor- tunity to present evidence and argument on the issues. At the conclusion of the testimony they argued on the record in support of their positions on the issues.2 On the entire record herein and on the basis of my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY The pleadings and evidence indicate and I find that the Company is a North Carolina corporation engaged at the Winston-Salem plant here involved in the manufacture of hoisery products. During the 12-month period preceding issuance of the complaint, a representative period, the Company produced and shipped from the Winston-Salem plant to points outside North Carolina goods valued in excess of $50,000; during the same period the Company received at that plant goods and raw materials valued in excess of $50,000 and shipped thence directly from points outside the State of North Carolina. On the basis of the foregoing I find, notwithstanding the Company's denial, that it is an employer engaged in commerce within the purview of Section 2(6) and (7) of the Act. II. THE UNFAIR LABOR PRACTICES This case concerns events occuring in the Company's shipping department in the period March 22 to 30. The shipping department consists of some 40 employees in- cluding shipping clerks, apparently females, and packer- casers, apparently males; they work directly under the su- pervision of Foreman James Ashburn who in turn reports to Gary Kimball, superintendent of the department. The supervisory status of Kimball and Ashburn is established by the pleadings and evidence . Shipping department em- ployees work Monday through Friday on a 6:50 a.m. to 3:20 p.m. schedule with occasional break periods. There Dates hereinafter relate to the year 1967 unless otherwise indicated. a The complaint alleged, and the answer denied, that the five Charging Parties were discharged on March 28 and 30 because they engaged in concerted activities with others for the purpose of collective bargaining and other mutual aid and protection and that thereby the Company en- gaged in unfair labor practices defined in Section 8(a)(1) of the Act At the outset of the hearing the Company's attorney stated that the Company had concluded that Mmes Mabe, Dillon, Rushing, and Allen had not en- gaged in conduct warranting refusal of employment and that it would not contest their cases and would offer them reemployment with backpay computed under applicable Board standards At the conclusion of the hearing, General Counsel's motion for directed verdict as to the four ladies having been withdrawn, the Trial Examiner stated that no findings would be made with respect to them unless additional matter were brought to his attention No such information having been received by August 9, 857 is no plant rule requiring employees to secure supervisory permission to leave their work stations. About 9 a.m. on March 22 there was a discussion among casers at their work stations concerning their need for higher pay; casers Charles Towell and David Kenneth "Kenny" Brown as- sumed the task of securing support among the shipping clerks for a sitdown of the department in support of a de- mand for more money and more help, with Kenny Brown apparently doing the bulk of the soliciting of support of the female shipping clerks. As a result of the efforts of Towell and Brown some 35-40 employees left their work stations about 10 o'clock and gathered in the breakroom next to the shipping department, where some sat on benches and the rest stood around. Foreman Ashburn ap- pears to have been the first representative of management to learn of the gathering; he testified that he asked the group what the matter was and that Kenny Brown replied that the employees wanted more money and more help. Ashburn further testified that he ordered the group to return to work and said he would discuss their grievances with them individually, whereupon Kenny Brown said that the group would not return to work until they saw Plant Superintendent Wagner. Ashburn went and enlisted the support of Kimball who again urged the employees to return to work and was again met with the demand from Brown and Towell to talk with someone higher in authori- ty. Eventually the employees returned to work about 10:30 upon the commitment of Kimball to have someone higher in authority available to talk to them at 2 p.m. and the threat by Kenny Brown to sit down again at that time. While there is some conflict in the testimony on the matter, I credit the testimony of Kimball that Kenny Brown did most of the talking during the sitdown discus- sion and appeared to the management representatives to be the leader of the sitdown movement. Prior to 2 o'clock, however, employees were called, in three separate groups, into the personnel conference room where Personnel Manager Claude Frederick asked employees to state their problems and made a list of their responses. Frederick rebuked the groups for their morn- ing sitdown and advised them that it was not the right way to correct problems. On March 28 Mmes. Mabe, Dillon, Rushing, and Allen were discharged by Frederick on the recommendation of Kimball who explained that he wanted them discharged because of their attitude and conduct.3 Rushing testified and it was stipulated that the three other female em- ployees involved would corroborate her testimony, that Kimball, who did not dispute this testimony, stated in the course of the discharge interviews that participation in the sitdown had nothing to do with their terminations. She also testified credibly and without contradiction that both the Trial Examiner issued an order requiring the General Counsel to show cause why the complaint should not be dismissed as to them On August 15, the General Counsel responded that while reinstatement had been of- fered (and accepted by Dillion, Rushing, and Allen) there had been no offer to make whole with backpay. On August 19 the Company explained that the failure to make whole was due to misunderstanding with the Re- gional Office and that backpay would be computed and paid within the next few days No further report having been received it is assumed that the company commitments respecting the four female employees have been fulfilled and no findings are made herein with respect to them. 3 The four female employees involved herein and David Kenneth Brown were, on termination, given unemployment compensation forms stating that their discharges were on the basis that their attitude and con- duct was entirely unsatisfactory 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Frederick and Plant Superintendent Wagner said they would give her good recommendations on other employ- ment. On March 30, the first day he reported for work in that week, Kenny Brown was discharged at 6:45 a.m. before clocking in when Ashburn took him to Frederick and said that he wanted Kenny Brown discharged because there was to be another sitdown and Kenny Brown was the one who was causing the trouble. The testimony of Kimball and Ashburn to the effect thay they observed and had re- ports of Brown's frequent absences at substantial distances on some occasions from his work station is of no particular significance except insofar as it relates to their conviction that Brown was stirring up more sitdown situations. And it is clear that the discharge was effectu- ated by Frederick, who apparently usually made the deci- sions on discharge recommendations of Ashburn and Kimball, on the basis that he had been the one responsible for the first sitdown and the belief that he was stirring up another. In regard to the question of Brown's stirring up a second sitdown, I credit his testimony that although there were rumors in the plant of another sitdown he never talked to employees on the matter after the initial sitdown.4 In Indianapolis Glove Company, 5 NLRB 231, nine employees sat down at their machines from 1:30 p.m. to quitting time at 5:30 and performed no work (except for uncompensated repair work) in protest over the refusal of their supervisor to accede to wage demands. Three em- ployees, considered by the Company to be leaders in the sitdown activity, were discharged. In fording that the discharges constituted unfair labor practices within the scope of Section 8(a)(1) of the Act, the Board said: The respondent does not contend that if the tippers had walked out of the plant on strike that afternoon, it would'have been justified in discharging or refusing to reinstate them for such concerted activity. The fact that in this case the tippers remained at their machines during working hours instead of leaving the plant does not justify their discharge. They were not requested by respondent to leave, nor did they remain in the plant after the hour at which they were supposed to leave. While the stoppage was going on they did some work for the respondent's benefit, but for which they received no compensation .... They committed no trespass, caused no harm to the respondent's property, and did not prevent other em- ployees from working. The respondent has not demonstrated in what respect the conduct of the tip- pers was in any way unlawful or wherein it should be considered "glaring misconduct." In Kennametal, Inc., 80 NLRB 1481, enfd. 182 F.2d 817 (C.A. 2), a group of 70 to 100 employees left their work to request a wage increase of the company's pre- sident and refused the plant superintendent's request that they return to work. The company discharged three em- ployees it found to be the leaders of the work stoppage. In finding an unfair labor practice in the discharges, the Board said: That the Respondent could have refused to meet with the employees during working hours is im- material, for the real issue involves the right of the employees to engage in a work stoppage to compel the Respondent to entertain their grievance. We think it clear, as found by the Trial Examiner, that the work stoppage here involved, which was unac- companied by any form of violence, constituted a form of concerted activity fully protected by the Act. On the basis of the foregoing authorities I conclude that the discharge of David Kenneth Brown because of his leadership in the sitdown and the apprehension that he might lead another constituted an unfair labor practice within the scope of Section 8(a)(1) of the Act. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section II, above, and there found to constitute unfair labor prac- tices, occuring in connection with the operations of the Company set forth in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing such commerce and the free flow thereof. IV. THE REMEDY In view of the findings set forth above to the effect that the Company has engaged in unfair labor practices affect- ing commerce , it will be recommended that it be required to cease and desist from such unfair labor practices and take appropriate affirmative action, including the offering of reinstatement to David Kenneth Brown with backpay calculated in accordance with the remedial principles of F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Since the discharge of an employee in reprisal for his participation in the exercise of rights guaranteed in the Act affects the very basis of such rights, the cease-and-desist provisions should be appropriately broad . N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4). On the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging employee David Kenneth Brown in reprisal for his leadership in concerted activities for the purpose of employees mutual aid or protection, the Com- pany has engaged in unfair labor practices defined in Sec- tion 8(a)(1) of the Act. 3. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case, it is recommended that the Company, its officers, agents, suc- 4 In this regard I discredit the testimony of witnesses Barbara Carlton and Ann Barnes that Kenney Brown solicited them to sit down a second time HANES HOISERY DIVISION cessors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees because of their leadership or participation in concerted activities for the purpose of their mutual aid or protection. (b) In any manner interfering with, restraining, or coercing employees in the exercise of their right'to engage in concerted activities for the purpose of mutual aid or protection. 2. Take the following affirmative action which appears necessary and appropriate to effectuate the policies of the Act: (a) Offer David Kenneth Brown immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for loss of earnings in accordance with the provisions of this Decision entitled "The Remedy." (b) Notify David Kenneth Brown if he is presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Perserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze and give effect to the backpay requirements hereof. (d) Post at its plant on Hanes Mill Road, Winston- Salem, North Carolina, copies of the attached notice marked "Appendix."5 Copies of such notice, on forms to be furnished by the Regional Director for Region 11, after being duly signed by the Company's authorized representative shall be posted immediately upon receipt thereof, and be maintained by it thereafter for 60 con- secutive days, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to en- sure that said notices are not altered, defaced, or covered by other material. (e) Notify the Regional Director for Region 11, in writing, within 20 days from the date of this Decision, what steps have been taken to comply with the terms hereof. 6 IT IS FURTHER RECOMMENDED that the complaint be dismissed with respect to allegations of unfair labor prac- tices not herein found to have been committed. 5 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of the United States 859 Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 6 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read- "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as -amended, we hereby notify our em- ployees that: After a hearing in which both sides had the opportunity to present their evidence, a Trial Examiner of the Na- tional Labor Relations Board has found that we violated the law and has recommended that we be ordered to post this notice and abide by its terms. We violated the law when we fired David Kenneth Brown because he organized and led the sitdown of March 22, 1967. WE WILL NOT again fire anyone for such activity and we will offer David Kenneth Brown his job back with backpay. WE WILL notify David Kenneth Brown if he is presently serving in the Armed Forces of the United States of his right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. You are all free to engage in concerted activity for your mutual aid or protection so long as you do not violate law- ful regulations of the Company. HANES HOISERY DIVISION, HANES CORPORATION (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 16th Floor, Wachovia Building, 301 North Main Street, Winston- Salem, North Carolina 27101, Telephone 723-2911.