Hamburg Shirt Corp.

HAMBURG SHIRT CORPORATION 229 Hamburg Shirt Corporation and Clyda Faye Brown. Case 26-CA-3487 JUNE 30, 1970 DECISION AND ORDER By MEMBERS FANNING, BROWN , AND JENKINS On April 20, 1970, Trial Examiner Owsley Vose issued his Decision in the above-entitled proceed- ing, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision together with a supporting brief, and Respondent filed a brief in support of the Trial Examiner's Decision. 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 briefs, and the entire record in the case, and hereby adopts the findings,' recommendations, and conclu- sions of the Trial Examiner. ORDER 1970, pursuant to a charge filed on September 19, 1969, and a complaint issued on January 16, 1970. The complaint as amended at the hearing presents the following questions: (1) whether the Respon- dent, in violation of Section 8(a)(3) and (1) of the Act, refused to rehire the Charging Party, Clyda Faye Brown, on various occasions commencing in March 1969, and (2) whether the Respondent further violated Section 8(a)(1) of the Act by telling Brown that it would not rehire her because of pending unfair labor practice charges. Upon the entire record and my observation of the witnesses, and upon due consideration of the briefs filed by the General Counsel and the Respon- dent, I make the following. FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT The Respondent is engaged in the manufacture of shirts at its plant at Hamburg, Arkansas. During 1969 the Respondent received at its plant directly from out-of-State sources more than $50,000 worth of goods and materials, and during the same period the Respondent shipped in excess of $50,000 worth of finished products from its plant to out-of-State destinations. Upon the foregoing facts I find, as the Respon- dent admits, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. 11. THE LABOR ORGANIZATION INVOLVED The Amalgamated Clothing Workers of America, AFL-CIO, hereinafter called the Union , is a labor organization within the meaning of Section 2(5) of the Act. 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 and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. In resolving a conflict in testimony between employee Brown and Plant Manager James McNeely, the Trial Examiner relied in part on a letter writ- ten by Brown but incorrectly stated the letter was dated May 1968, instead of May 1969, the date the letter was actually written However, the Trial Examiner's reliance was primarily on the substance of the letter and not its date, and in view of other stated reasons for his crediting of McNeely's testimony, including his observations of the witnesses, we find no basis for disturbing his credibility determination Standard Dry Wall Products, Inc 91 NLRB544,enfd 188F2d362(CA 3) TRIAL EXAMINER 'S DECISION STATEMENT OF THE CASE OWSLEY VOSE , Trial Examiner: This case was heard at Hamburg , Arkansas, on February 19, 184 NLRB No. 26 III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Board in a decision handed down on December 30, 1965 (156 NLRB 511 ), found that the Respondent had in various ways violated Sec- tion 8(a)(I ), (3), and (5) of the Act during an or- ganizin^ campaign carried on by the Union in 1964. The violations included promises of benefits, threats, interrogation aimed at coercing employees into rejecting the Union, illegal discharges, and an unlawful refusal to bargain collectively with the Union. The Board's order in this case was enforced in full on December 15, 1966, by the Court of Ap- peals for the District of Columbia Circuit (371 F.2d 740) The Respondent commenced bargaining collec- tively with the Union in January 1967, and the negotiations continued through April 1968. Brown, the Charging Party, was elected as a member of the 427-835 O - 74 - 16 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union negotiating committee and attended approxi- mately 10 bargaining sessions. The parties failed to reach agreement, however , and a strike ensued. The strike failed to win the support of a majority of the employees and was unsuccessful. In May 1968, the Union filed charges with the Board 's Regional Director alleging that the Respon- dent had engaged in conduct which was violative of Section 8 (a)(1), (3), and (5) of the Act. After a hearing before a second Trial Examiner, the Board, on April 9 , 1969, issued its decision adopting the findings of the Trial Examiner that the Respondent had violated Section 8(a)(5) of the Act in one nar- row respect , i.e., by refusing the Union permission to have its own engineers make time and motion studies in the plant . In all other respects the Respondent was upheld in its contentions, including the contention that two employees had been discharged for serious infractions of a plant rule and not because of their union activities (175 NLRB 284). This decision was upheld by the Court of Appeals for the Eighth Circuit in a decision handed down on December 30, 1969 (419 F.2d 1275). B. The Refusal To Rehire Clyda Faye Brown in Alleged Violation of Section 8(a)(3) and (1) of the Act 1. Brown quits the Respondent's employ on April 18, 1968 Brown was hired about 2 weeks after the Respon- dent commenced operations in Hamburg in 1964. Brown, as Plant Manager McNeely admitted, developed into the Respondent's "top" topstitching operator. During April 1968, Brown had extensive dental work done, and on April 18 requested Plant Manager James McNeely to grant her a leave of absence. Brown explained that she had had 11 teeth pulled, was exhausted, and would be sick if she did not get some rest. There is a serious conflict in the testimony concerning the length of leave of absence requested. Brown testified that she requested I week's leave. McNeely testified that Brown requested an indefinite leave of absence. For reasons discussed below, I conclude that Mc- Neely's version is closer to the truth. McNeely told Brown that he did not grant leaves of absence. Brown replied that in that event she would have to quit, and urged that he had granted leaves of absence to Faye Carpenter and Lou Taylor when their husbands were sick. McNeely argued that he had let employees off for short stated periods of time for specific reasons, but persisted in his refusal to grant Brown's request Brown angrily informed McNeely that she was "fed up" with the plant and would never seek work at the plant again. Brown spent the rest of the day breaking in Shelby Fer- guson on the topstitching operation and left the Respondent's employ at the end of the day. No claim is made in this case that the Respondent's refusal to grant Brown a leave of absence was motivated by antiunion considerations. 2. Brown seeks reemployment commencing in December 1968 In December 1968, Brown telephoned McNeely at the plant and told him she would like to go back to work around the first of the year . McNeely told her that business was usually slow around the first of the year and suggested that she call him around the middle of January 1969. Brown next contacted the Respondent about the middle of February when she went to the plant and spoke to McNeely about going back to work . Brown mentioned that she had worked on several operations in the plant and was willing to try almost any operation in the plant. Mc- Neely told Brown that he would find something and call her. McNeely did not call Brown , however. Two weeks later, upon receiving a card from the Arkansas Employment Division notifying her that the Respondent was seeking experienced sewing machine operators , Brown again went to the plant and talked with McNeely about going back to work . McNeely informed Brown that no opening was available , but that he would try to find something . On March 17, 1969, Brown called Mc- Neely at the plant and told him that she needed work , and indicated that if work was not going to be available soon she would have to apply else- where. McNeely said that it would be best for her to do so. The next day Brown obtained a job at a garment factory in Lake Village, Arkansas, some 32 miles from Brown's home in Hamburg. How- ever, Brown did not care for the 64-mile round trip to Lake Village each day, and notified her friend, Louise Goody, a supervisor at the plant , that she still wanted to go back to work for the Respondent. Brown 's next contact with the Respondent con- cerning reemployment was made in a telephone call to McNeely during April 1969. While the foregoing findings concerning Brown 's earlier efforts to ob- tain reemployment at the Respondent 's plant are based on Brown 's uncontradicted testimony, the testimony concerning the April 1969 telephone call is sharply conflicting . Brown's testimony is as fol- lows: I had heard some rumors and I called Mr. McNeely that date that I wanted to go to work at Hamburg . I told him I would like to ask him an honest question. Mr. McNeely said , "'If I can answer you honestly I will." I asked him if it was because I was on the union negotiating committee that he did not put me back to work. He kind of laughed and he said, "Now you know I can't come out and tell you that is why I am not putting you back to work." But he said , "There is still some charges against the company and until they are cleared up it is against my better judgment to put you back in that plant." I asked Mr. McNeely why he didn't tell me HAMBURG SHIRT that to begin with. Why he repeatedly told me he would put me back to work. He said he just couldn't tell me. I said, "You are telling me now," and I began to lose patience a little bit. But he said, "Well, I had to." And I says well in other words I have to believe it is on ac- count of the union . And he said, "Well, I didn't say that." I said, "Well, it is not from low production." He said, "I can't say that because I got two girls doing what you were doing." McNeely testified that Brown never questioned him as to whether her union activities were responsible for his failure to reemploy her and that he never mentioned the pendency of charges against the Respondent in explanation of his refusal to take her back to work. Various factors impel me to accept McNeely's version of this telephone conversation in preference to Brown's. In the first place I conclude that Brown tailored her testimony concerning the length of the leave of absence sought by her to fit the definition given by McNeely in his testimony as to the only kind of absence ever granted by him. Brown testified that when she quit in April she was tired of factory work and did not have any intention of going back to work for the Respondent. She had in mind trying to go to work in the local stores. When she recovered, Brown did seek such work, but without success . It was not until December, some 8 months after Brown quit that she first commu- nicated with McNeely about going back to work for the Respondent . In these circumstances I have dif- ficulty in crediting Brown 's testimony that she made it "very plain" that she was seeking just a week's leave of absence. I conclude that Brown was somewhat less than frank in another portion of her testimony. It developed at the hearing that in May 1968, after Brown quit, she wrote Paul Bernstein, the head of Hamburg Shirt Corporation in New York City, a letter complaining about the manner in which Respondent's employees were treated. In the letter Brown stated, among other things, that when she "quit work [she] decided then that [she] was through with the union. If the women at Hamburg Shirt got a union it would be without any support from [her]." However, at the hearing, Brown in ef- fect sought to disavow this statement and to make it appear that she had remained loyal to the Union throughout Brown's explanation of the inconsisten- cy between the above-quoted statement and her testimony at the hearing is wholly unconvincing and raises grave doubts in my mind concerning Brown's reliability as a witness I have carefully observed both McNeely and Brown as they were testifying and McNeely im- pressed me as attempting to testify frankly and to the best of his recollection. On the other hand, Brown appeared to be willing to shade her testimony in such a manner as to favor her case. For all of the foregoing reasons I reject Brown's testimony that McNeely in effect attributed his CORPORATION 231 refusal to reemploy her to the pendency of unfair labor practice charges against the Respondent. On May 14, Brown went to the plant and again sought employment. McNeely informed her that there was still nothing for her. When Brown checked with McNeely over the telephone later in May, he informed her that "things were looking up" and that he thought he could put her to work in a few weeks. Brown again communicated with McNeely about the availability of a job at an "open house" held at the plant on May 30. McNeely told Brown that he would let her know if anything came up. As of the date of the hearing, the Respondent still had not rehired Brown. 3. The contentions of the parties; conclusions The Respondent does not dispute the fact that Brown was a good worker and that it had jobs available which Brown was qualified to perform at some of the times, at least, when Brown applied for reemployment. The Respondent admits that Brown was active in union affairs and that it had knowledge of her union activity. The Respondent, however, contends that it refused to rehire Brown solely because none of the supervisors in the plant, and particularly her last supervisor, would have her in their departments. In support of its contention the Respondent relies on the testimony of all of its departmental super- visors and several of its employees. Willie Joe Hale, the supervisor in the subassembly department in which Brown last worked, testified that McNeely consulted her about taking Brown back in her de- partment and that she told McNeely that she did not want Brown back. Hale explained to McNeely that Brown persisted in telling her how to run her department and in telling other employees how to do their jobs . Hale cited one instance in which Brown refused to obey her instruction to turn the top of the cuff without its being turned again and insisted on the matter being taken up with McNee- ly. McNeely convinced Brown that she would have to follow Hale's instructions. Hale further testified that Brown resisted doing repairs at the time Hale wanted them done, but ultimately ended up follow- ing Hale's instructions. According to Hale, Brown was very critical of the work of the employees whose operations preceded Brown's on the line and was always telling them what they were doing wrong. At the same time, it appears from the credited testimony of Elizabeth Fairchild, whose operation followed that of Brown on the line, that.Brown was not always as careful as she might have been to see to it that her finished work went on to the next operator in such shape that it could readily be worked on. Fairchild testified that she frequently had to pick Brown's stitching out by hand before she could even start on her operation This was not only very hard on Fairchild's fingers, painful in fact, but it also adver- 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sely affected Fairchild's piecework earnings. As a result Fairchild frequently complained to Hale about the condition of the work coming from Brown. McNeely questioned all four other department supervisors about taking Brown in their depart- ments. All four replied that they did not want her in their departments From their manner in testifying concerning McNeely's inquiry of them about Brown it is evident that all four had strong feelings against having Brown under their supervision. One of the four supervisors was Louise Goody, a long- time friend of Brown's. Goody twice told McNeely that she did not want Brown in her department. Goody testified that when Brown had worked under her earlier Brown had not only had disagreements with her but also with the other operators, as well. The General Counsel contends that the Respon- dent's refusal to rehire Brown, a concededly good worker for whom work was available, was attributa- ble to her union activities. The General Counsel points out that the Respondent never complained to her about the problems she was allegedly causing with supervisors and employees and that she was never warned about such conduct. The General Counsel also relies in part on Brown's testimony that McNeely told her that he could not take her back because charges were pending against the Respondent. However, I have found that McNeely did not make any such statement. Accordingly, the allegations of the complaint as amended based thereon will be dismissed. In weighing the opposing contentions of the parties several considerations stand out. The Respondent has not been found to have engaged in any conduct evidencing animus against the Union since 1964. (The findings of the Board and the court of appeals that the Respondent violated Sec- tion 8(a)(5) of the Act in 1968 by refusing to allow the Union to have its own engineers make time and motion studies in the plant does not evidence such animus, in my opinion .) Brown 's own testimony reveals that a friendly relationship between Brown and company negotiators prevailed throughout the 15 months of negotiations in which she par- ticipated . After the strike failed, interest in union activities waned at the plant . At the time Brown was seeking reinstatement in 1969, union activities had become almost nonexistent, if not entirely so. At least there is no evidence in the record of any 1969 union activities. The testimony of the Respon- dent's supervisors makes it abundantly clear that they regarded Brown as a "bossy" individual with an irrepressible tendency to interfere with the operations under their supervision. While it appears that Brown was a very fast producer, the testimony of the Respondent's officials demonstrates that they regarded such advantage as being far outweighed by the disadvantage of having to deal with such a disruptive personality. Under all the circumstances I conclude that the reason for the Respondent's refusal to reemploy Brown was that its supervisors were unwilling to undertake the supervision over a difficult personality, and that Brown' s union activi- ties over a year earlier were not a factor in the Respondent's decision. Accordingly, I conclude that the Respondent's refusal to rehire Brown was not violative of Section 8(a)(3) and (1) of the Act. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following: RECOMMENDED ORDER The complaint herein is hereby dismissed in its entirety.