Union Underwear Co., Inc

UNION UNDERWEAR CO Union Underwear Company, Inc and International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America , Local 651, AFL-CIO I Cases 9-CA-25125, 9-CA-25146, and 9-CA-25366 March 30, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On October 14, 1988, Administrative Law Judge Wallace H Nations issued the attached decision The Respondent filed exceptions and a brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, 2 findings, 3 and conclusions and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Union Un- derwear Company, Inc, Frankfort, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the Order I On November 1 1987 the Teamsters International Union was read muted to the AFL-CIO The caption has been amended to reflect that change 2 The Respondent has excepted to the judge s admission of the unfa vorable incident report concerning the conduct of Guadalupe Pickett In so doing we note that the Respondent does not contend that the doc ument is forged We find that the judge acted within his discretion in ad mitting the document and that the Respondent was not denied the oppor tunny to recall witnesses to testify concerning the document ' The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings At sec III B par 3 of his decision the judge stated that all the mem bets of the in house organizing committee had signed authorization cards The record reveals that only those members who testified stated they had signed cards This error does not affect the judge s conclusions Finally we note that even assuming that the judge erred in concluding that the attendance rule set out in the Respondents Welcome Booklet applied to early departures from work as well as to absences and late ar rivals we agree that the Respondent s preparation of employee Gillman s termination check on the Friday prior to her Monday termination before there was an opportunity to speak with her provides further evidence of the Respondents unlawful motive in termina ting Gillman who conced edly had been regarded as a good employee Eric A Taylor and Jack B Baker Esqs, for the General Counsel Herman L Allison Esq, of Atlanta Georgia, for the Re spondent DECISION 555 STATEMENT OF THE CASE WALLACE H NATIONS, Administrative Law Judge Based on charges filed February 22 and 25 and March 3 1988 1 by International Brotherhood of Teamsters Chauffeurs Warehousemen, and Helpers of America, Local 651 AFL-CIO (the Union), against Union Under wear Company, Inc (Respondent), the Regional Direc tor for Region 9 issued a consolidated complaint alleging that Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act A hearing was held in Frankfort, Kentucky, in these matters on August 16 and 17 Briefs were subsequently received from all parties Based on the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs, I make the following FINDINGS OF FACT I JURISDICTION The Respondent is a corporation with an office and place of business in Frankfort Kentucky, where at all times material to this proceeding it has been engaged in the manufacture and nonretail sale of undergarments Re spondent admits the jurisdictional allegations of the com plaint and I find that the Respondent is now, and has been at all times material to this proceeding, an employer engaged in commerce within the meaning of Section 2(2) (6), and (7) of the Act II LABOR ORGANIZATION INVOLVED It is admitted and I find that the Union is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act III ALLEGED UNFAIR LABOR PRACTICES A Statement of Issues The complaint alleges that Respondent violated Sec tion 8(a)(1) of the Act by threatening employees with plant closure loss of jobs, creating the impression that their union activities were under surveillance, disparately prohibiting employees from posting literature in support of the Union, and enforcing a posting policy because of union activities The complaint additionally alleges that Respondent violated Section 8(a)(1) and (3) of the Act by discharging Elizabeth Gillman issuing written warn ings to Sherry Harper, suspending Antoinette Robinson and issuing an unexcused absence form to Guadalupe Pickett and placing an unfavorable incident report in her file B Background Facts Respondent is a subsidiary of Fruit of the Loom and engages in the production of undergarments at its Frank fort, Kentucky facility Approximately 1650 employees I All dates are in 1988 unless otherwise indicated 293 NLRB No 56 556 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD work at this facility In approximately April 1987, the Union began an organizing campaign at Respondent s plant This campaign concluded unsuccessfully in April 1988 On or near January 30 Union Organizer Paul Tuggle conducted a meeting at the American Legion Hall in Frankfort, Kentucky At this meeting, the five company employees attending volunteered to join an in house or ganizing committee By certified letter dated February 1 and received by Respondent on February 3, the Union notified Respondent of the identity of the members of this committee, which included Elizabeth Gillman Gua dalupe Pickett, and Debbie Hall A second certified letter was sent by the Union to Re spondent on February 11 and was received by Respond ent on February 12 This letter added employees Antoi nette Robinson and Sherry Harper to the list of named committee members All these employees had previously signed authorization cards for the Union Shortly there after Respondent posted these letters on a bulletin board at the factory along with a notice informing employees that the members of the Teamsters Committee would not receive any special privileges Organizer Tuggle had told the members of the committee at the time of its for mation that by joining the committee and giving notice of their identity to Respondent they would be protected from adverse job action because of their union organiz ing activities C Alleged 8(a)(1) Violations 1 Alleged threats of plant closure and loss of jobs, and creating the impression that employees union activities were under surveillance Employee and committee member Debbie Hall testi fled without contradiction that on the day following Re spondent s receipt of the first union letter giving the identity of the committee members she approached and initiated a conversation with her floorlady, Mary Jo Cochran Although they do not have the authority to hire or fire employees, Respondents floorladies are ad mitted statutory supervisors Hall considered Cochran her best friend and was concerned because Cochran had not spoken to her that morning Hall testified that Coch ran told her that Respondent had received the union letter and that Elbert [Watts, Respondent s plant manager] wouldn t allow anyone to come in and tell him how to run his factory and that he knew who sent cards in and he would not negotiate [S]he said that he said that he wouldn t negotiate and he would say no to everything and that he would close the doors And I asked her what would happen to the big shots meaning the supervisors and stuff if he closed the doors and she said that they would transfer to the other plants and that we would be out the door Later on the same day Hall overheard a conversation between Cochran and coworker Judy Ballenger In this conversation, Hall testified that Cochran said `You don t have to worry about it much longer anway If the union comes in we re going to be out the door anyway With regard to these conversations Respondent first argues that it is unlikely that they occurred because Hall and Cochran are best friends and in that circumstance why would they discuss the Union only once and that conversation consists only of illegal comments? It attacks the credibility of the alleged Ballenger conversation be cause Ballenger was not called to corroborate it I dis agree with these arguments and credit Hall s testimony Not only was Cochran not called as a witness to deny the conversations, having only one conversation with Hall about the Union is consistent with Hall s character ization of the chill that suddenly came into her relation ship with Cochran when the supervisor became aware of Hall s union sympathies Given the fact of Cochran s ab sence in this proceeding, I will draw no inferences from Ballenger not testifying as her testimony is unnecessary in the circumstances Respondent next argues that assuming the truth of Hall s testimony the Cochran conversations do not rise to the level of a violation because they were private con versations between best friends and employees know that floorladies, though statutory supervisors, have no author ity to hire or fire and cannot affect the operation of the plant This argument has no merit First although Coch ran was considered by Hall to be her best friend she was clearly considered by Hall to be a supervisor and a spokesperson for management Second Cochran was not telling Hall what she would do, she was relating to Hall what the plant manager had stated that he and the Com pany would do Being told by a supervisor that the plant manager would not negotiate with the Union but would close the plant and transfer the work to another facility along with management is about as coercive and threat ening as a statement can be because it directly affects job security and the employees livelihood I find that the conversations did threaten plant closure loss of jobs, and futility of negotiations and thus constitute a clear viola tion of Section 8(a)(1) of the Act I do not find that these conversations create the im pression of surveillance as Hall denied in her testimony that Respondent had any knowledge of union supporters other than those whose names appeared on the letters naming members of the organizing committee Elizabeth Gillman an employee and member of the or ganizing committee, testified that on February 15 she found on arrival for work a note on her work station that said, If I didn't appreciate my job to get out No one was forcing me to stay' Gillman showed the note to a coworker who taped it to Gillman s sewing machine power conduit Each sewing machine in the plant has a vertical pole that serves as an electrical conduit running from the machine to the plant ceiling From each of these poles there is attached a horizontal bar that is used by Respondent to hang certain flags or other items de noting an employees identification, production, and qual ity The testimony reflects that employees routinely used the poles to display certain personal items such as pic tures While the note Gillman received was being taped to her pole she wrote her own note that said Vote UNION UNDERWEAR CO Buy a ticket out of hell Vote the teamsters in She then taped the new note to her conduit pole next to the one she had received Gillman then went to coworker Guadalupe Pickett s work station and found that Pickett had also received an antiunion note Pickett copied Gillman s prounion mes sage and put it on her pole Gillman then returned to her desk and about 5 minutes later was approached by her floorlady, Sharon Wells Gillman testified that Wells read the antiunion note and laughed then she read Gill man s prounion note, took it from the conduit pole tore it up, and said she would not tolerate such remarks in her unit Gillman then asked Wells whether she should take down other employees antiunion notes that were visible from Gillman s desk Wells allegedly said, Well, that was them and this is you and you can t have any and I d better not see it again Gillman testified that Wells then noticed Pickett s prounion note and attempted to remove it from Pickett s conduit pole Pickett took the note refused to give it to Wells and instead had it taped to her back She wrote the note in this fashion the remainder of that workday, without objection from management On the following day, Gillman reported to work and found that a toy clown that she had hung from her pole for some time had been removed She asked Wells about it and Wells allegedly said that she had taken the clown down to keep down trouble and that she had been checking Gillman s desk every morning for notes Gill man testified that she replied that she wasn t there to cause no trouble and wasn t pushing the union on nobody Wells then allegedly said didn t I know what I was getting into and that Teamsters was mobsters and that if the union got in that Elbert Watts would close the doors and move it to North Carolina that they had just that the company had just bought a big Rockwell plant down there and they would move the thing down there ' Gillman also testified that in this conversation Wells told her that the Labor Board sent the names of every one that signs the cards to Elbert Watts and he knows who signs the cards and who doesn t Wells testified and, although admitting that she re moved Gillman s pro and antiunion signs and clown denied ever having a conversation with Gillman about the Union Having carefully considered the credibility of the two witnesses with regard to the conversation in question I credit Gillman s version of what was said I do not find credible Wells assertions that she removed Gillman s notes and her clown without any conversation taking place explaining these actions Therefore I find that Respondent has violated Section 8(a)(1) of the Act by the statements of its Supervisor Sharon Wells set out above Wells' statements constitute threats of plant clo sure and loss of jobs and leave the impression that em ployees are under surveillance because of their union sympathies and activities I find that Wells' statements are coercive for the same reasons I found the statements of Supervisor Cochran to be coercive and violative of the Act Employee Sherry Harper testified that Cochran s su pervisor, Tim Brown, has made similar threatening state 557 ments to her in June 1987 Such statements if made fall outside the statutory 10(b) period and cannot be at issue in this proceeding 2 Alleged violation of the Act by Respondent disparately prohibiting the posting of literature in support of the Union and by subsequently enforcing a policy regarding the posting of items on conduit poles As set out in detail above, Respondents supervisor, Sharon Wells, removed prounion and antiunion notes or signs from the conduit pole of Elizabeth Gillman on Feb ruary 15 On the same day, she was going to remove a prounion sign from the work station of Guadalupe Pick ett but Pickett removed the sign herself and taped it to her back, wearing it for that day without management objection Both Gillman and Pickett testified that as of February 15, there were numerous antiunion signs posted at em ployee work stations throughout the plant Gillman also testified that one antiunion sign had been posted by a member of senior management Pickett estimated that there were approximately 50 signs posted on conduit poles, the vast majority of which were against the Union Neither Pickett nor Gillman could identify any other employee who had a sign posted on his or her work station There is also no clear showing that any other employee under Wells supervision had posted a sign Pickett and Gillman estimated that the antiunion signs were not taken down by management for about a month after Wells removed Gillman s sign Respondents production supervisor Tim Brown testa fled that in mid February he noticed prounion and an bunion signs posted on employees conduit poles throughout the plant He reported this to Plant Manager Watts who informed Brown that nothing should be posted on the conduit poles and the notes or signs must come down In compliance with this instruction Brown testified that on the same day he removed or had re moved all signs and all paraphernalia of any type from the employees' work stations including names flagpoles and similar items Brown testified that the removal of notices or signs was not done because of union activity, but for safety reasons and to keep employees name tags and production/quality flags from being covered In a state ment given to a Board agent Brown had said It was around February 1 when the company re ceived notices from the Union Signs started getting bigger and more people were posting stuff on their poles So during a meeting , Wattsitold the Supervi sors and Floor Ladies that the sign slogan was get tang out of hand He told us to go through the units and make sure the slogans were taken down I don t remember the date of the meeting , but it was in February Elbert Watts gave testimony generally similar to Brown's on this matter He added that Respondent had for years a policy against placing any personal items on the conduit poles and enforced this policy when viola 558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion of it appeared to get out of hand In this regard he cited the last enforcement effort a few years back when employees began hanging Christmas ornaments on the poles Having considered the matter of posting carefully I cannot find that Respondent violated the Act by its ac tions in this regard Respondent does have valid reasons for restriciting the posting or placing of items on the conduit poles I agree that placing items on the poles could constitute a potential safety hazard and could ob struct the view of the production/quality flags, thereby reducing their effectiveness I credit the testimony of Su pervisor Brown that both prounion and antiunion signs were taken down at the same time and that there were many more antiunion signs than prounion signs I do not credit Gillman s and Pickett s testimony that a month elapsed between the taking down of prounion and an tiumon signs Their testimony in this regard was not defi rote and they could give very little specific information about any employee's sign other than their own Therefore, having found that Respondent removed all employee items including all prounion and antiunion signs, from the conduit poles at the same time and for legitimate business reasons, I find that Respondent did not violate the Act by its actions in this regard D Alleged 8(a)(1) and (3) Violations 1 Did Respondent violate the Act by its discharge of Elizabeth Gillman on February 22? Elizabeth Gillman on or about February 15 attended an employee meeting where Vice Chairman of the Board Joe Medally gave a speech During the course of the meeting, Gillman handed him some union literature Me dally later inquired as to who it had been who had handed him the literature He was informed that it had been Gillman On Friday February 19, Gillman reported to work as usual with Thelma Gregory who drove Gillman to work Between 8 30 and 9 a in Gregory learned that her sister had been hospitalized and was in serious condition She and her daughter Melissa Desi had to leave almost immediately Gillman attempted to locate another ride home but could not She testified that she attempted to find her supervisors, Sharon Wells and Esther Gabehart but was unsuccessful After failing to find them, she left a note and her timesheet on Well s desk The note in formed Wells that she was leaving early because Greg ory s sister was in the hospital As will be discussed later, the existence of this note is called into question howev er, no one questioned the truthfulness of the reason for Gillman s leaving the plant early Gillman returned to work on her next scheduled day of work, Monday, February 22 She could not locate her timecard when she arrived so she went to Wells and asked where it was Gillman testified that Wells replied that Elbert Watts wanted to speak with her Watts was on the plant floor so Gillman approached him and they walked together to his office On the way to the office, Gillman testified that Watts told her she was fired When she asked why, Watts responded Because you're on the union organizing committee and I in going to make an example of you He then allegedly told her that if she had not been on the committee that he would not fool with it Gillman and Watts entered Watts office Watts imme diately pulled from his desk Gillman s final check that had been prepared the previous Friday At that time he again informed her she was fired and she again asked why Watts told her that it was for leaving work early without telling anyone He then told her that he had a list of people who had walked out of work and had been fired Gillman responded that Watts had better start cleaning house because she knew of several employees who had done so and had not been fired Gillman left after telling Watts she would see him in court Supervisor Wells testified in this regard that Respond ent has a policy that when an employee leaves his or her shift early without giving a word or notice that em ployee is considered to have quit Wells testified that on February 19, she went to her desk and found Gillman s timesheet She then walked to Gillman s work station and asked the girls working nearby about Gillman s whereabouts Someone said that a girl had come over and said something to Gillman and she left without saying where she was going Wells then went to her supervisor, Esther Gabehart, and inquired if Gillman had left word with her Gabe hart replied negatively so Wells went to the front office and made a similar inquiry of the Company s receptionist and the assistant plant manager, both of whom also gave negative replies Wells then informed Watts who said he would take care of the situation On Monday February 22 Wells was at Gabehart s desk when Gillman arrived for work Gillman walked up wanting her timecard and Gabehart told her she would have to see Watts Watts was in the unit and Gillman ap proached him and together they walked to his office Wells heard nothing of the conversation between Gill man and Watts on their way to his office Wells testified that if Gillman had told anyone that she was leaving early or had given anyone at the plant a note to that effect she would not have been considered to have quit her employment Elbert Watts testified that, on February 19 he was in formed by Wells and Gabehart that Gillman had left work without telling anyone On February 22 Wells in formed Watts that Gillman had returned to work and he said he would like to see her before she began working Watts was in the sewing area at the time and began walking to his office and met Gillman on the way He testified that they walked into the office together after Watts told her that he would like to see her in his office and that he had to talk to her He testified that Gillman said that she hoped she was not in trouble as she and her boyfriend had lust separated Nothing more was said until they arrived in the office and Watts had taken a seat at his desk Watts then told her that he was going to have to let her go as she had left without notice which he had checked out thoroughly that morning Gillman told him that she had left a note, and Watts told her that they could not find any note anywhere Gillman told him that UNION UNDERWEAR CO she had left the note on Wells desk Watts testified that Gillman had told that to Wells and Gabehart and they had checked it out Watts then gave her her termination check and asked why she had left without telling anyone Gillman told him that the people she rode with had to leave and she had to go with them At this point I must note that Watts' testimony with respect to the Gillman termination is very inconsistent at best The question of whether Gillman had left a note is important because Respondents witnesses, including Watts, acknowledge that she would not have been termi nated if she had It is clear from the evidence that the first time anyone would have known about the existence or lack thereof of the note, assuming it was not found on February 19 was when Gillman reported to work on February 22 Wells and Watts both testified that Wells reported Gillman's arrival to him and he stated he wanted to see Gillman before she started work Neither of them testified to any conversation at this time about the note According to their testimony, the next thing to occur was his meeting with Gillman who told him she left a note At this stage he could not have known that Gillman claimed to have left a note, much less have con ducted a search for the note In my opinion, Watts knew a note existed and denied its existence or did not care if one existed or not as he could not have conducted a search for one before his termination conference with Gillman on February 22 I have concluded that existence of the note was immaterial in Gillman s case as Respondent was looking for a reason to terminate her In this regard, it must be noted that Gillman s termination check was prepared on Friday before anyone had learned why she had left early again assuming she did not leave a note I have also concluded that Respondents desire to terminate Gillman was be cause of her union activities as Watts himself testified that Gillman was a good employee In my opinion Re spondent s evidence of its past practice with respect to employees who leave without notice fuly supports these conclusions Respondent's Exhibit 32 a company handbook given to new employees insofar as it states a policy about at tendance reflects as follows ATTENDANCE The job that you do is important Because of this regular attendance is an absolute necessity If a sera ous problem arises and you know that you will have to be late or absent please call us at 695-2400 before 7 00 am If you stay out 3 working days without notice we must believe that you have quit Watts testified that Gillman s termination check was prepared on Friday February 19 This clear indication of a determination to terminate Gillman was made before even 1 day passed much less 3 days as called for by company rules This is before anyone had heard Gill man's reason for leaving assuming her note had not been found, another clear indication to me that Respondent was simply waiting for an excuse to terminate her Respondents Exhibit 31, Union Underwear Employ ee Guidelines' sets out Respondents disciplinary policy 559 and lists behavior that may subject an employee to disci pline Considering an employee to have quit or to terms nate an employee for leaving early without notice is not set out in this document Respondent introduced approximately 15 separation notices that purported to show employees who were considered quit or terminated for leaving work without notice Although Watts was relatively unfamiliar with most of the individual cases represented by these notices, he testified that Respondent has hired back employees who were discharged for cause, rehired employees termi nated for poor attendance records, rehired employees who had poor quality records, rehired employees termi nated for fighting, and rehired employees who walked off the job without notice as in the instant case Watts agreed that employees terminated have to be pretty bad before he will not rehire them Watts also testified that Gillman asked to come back and he did not rehire her although he agreed she was a good employee He elaborated that he has hired back relatively bad employees when he has had a meeting with the supervisor and floorlady that this person worked under, and if there's a reason for us to take her back, if she s a good employee, and if she had a reason for walking off, with good reason, and this, then we take her back " He admitted he had never had such a meeting with Gillman s supervisor and floorlady in this regard and never tried to find out if there was any good reason to take her back Watts first tried to excuse this lack of action taken for other, admittedly poor employees by saying that Gillman had not reapplied for her job He then said Well, we could not put her back to work for this reason If we let the employees get by with that, there would be a mass exit every time there was a prob lem ' This reason makes no sense whatsoever because Gillman and presumably any other employee could leave for the reason given by Gillman with no discipline so long as they tell someone anyone, that they are leaving Given the timing of Gillman s termination, coming 3 weeks after notice of her membership on the organizing committee, and 1 week after handing prounion literature to Respondents vice chairman of the board at an antiun ion speech and having a prounion notice removed from her work station the fact that no real search was con ducted for her excuse note and the fact that no consider ation was given to hiring her though she was admittedly a good employee and poor employees discharged for cause were often rehired I find that Gillman was dis charged in fact for the reasons she testified Watts gave at the time of her termination That is, because she was on the union organizing committee and he was going to make an example of her Respondent would have Gillman s testimony in regard to Watts comment found unbelievable 2 However given 2 On brief Respondent argues that Gillman s account of her conversa tion with Watts should be discounted because Melissa Desi who Gillman testified was somewhere behind them during some portion of the conver sation did not testify and confirm Gillman s testimony I do not agree Supervisor Wells testified that she did not overhear the conversation and Continued 560 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the numerous inconsistencies in the testimony of Re spondent s witnesses and the lack of any rational reason for not rehiring Gillman when other employees, even poor ex employees are regularly rehired, lead me to give full credence to her testimony Therefore, for all the rea sons set out above I find and conclude that Elizabeth Gillman was terminated and refused rehire for her union activity and for no other legitimate business reason The record evidence reveals antiunion animus on the part of Respondent, knowledge of Gillman s union sympathies and activities, and that Gillman was discharged for pre textual reasons I conclude that Respondent has violated Section 8(a)(1) and (3) of the Act by its discharge or fail ure to rehire Gillman as alleged in the complaint 2 Did Respondent violate the Act by issuing a written warning to Sherry Harper on February 19? Employee Sherry Harper was a member of the Union s organizing committee and a clothes sleeve opera tor for Respondent, working under the supervision of Floorlady Nancy Riddle and Production Supervisor Tim Brown Harper had been suspended two times pnor to the issuance of the warning in question These suspen sions were for absenteeism and are not part of the case The last of these suspensions was for 1 week beginning February 10 and ending February 17 When Harper re turned to work on February 18, she found about 25 gar ments requiring repair that had been placed on her desk by quality control personnel Harper testified that instead of making the repairs she placed them under her desk and proceeded to do work to make her production quota As an excuse for not doing the repair work, Harper testified that on her arriv al at work, she found the threads on her sewing machine cut She reported this problem to Riddle who told her to fix it She took about 15 minutes to fix the machine, but testified her threads kept breaking during the rest of the day Harper testified that she asked Riddle and Brown for downtime on February 18 because of the breaking threads, but they refused her request On February 19 Harper was given a written warning by Brown for fail ure to make her repairs She urged him to reconsider as she had requested downtime, but Brown said that he had asked Watts about her request and he had refused it After receiving this warning, Harper was upset and began crying She got coemployee Toni Robinson and went to the company restroom Riddle found them there and reported the matter to Brown Harper testified that when she returned from the restroom Riddle sent her to Brown, who gave her another warning for taking a break too early Supervisor Brown testified that it is important to Re spondent that repairs be made promptly for several rea sons Accumulated repairs puts undue pressure on quality control examiners It also poses a problem with repairs getting misplaced, missized, soiled, and, in many cases that no one else was near the pair during the conversation Given this testimony it is not at all clear that Desi was in a position to hear the conversation or in fact did hear it Under these circumstances I cannot draw any assumptions from the fact she was not called as a witness just destroyed and thrown away as rags Respondent in troduced as its Exhibit 3 a notice dated August 27, 1987, which states UNFIXED REPAIRS ARE BEGINNING TO PILE UP UNDER THE TABLES OF SEVERAL OPERATORS RE PAIRS ARE TO BE FIXED AND TAKEN BACK TO THE EXAMINER IMMEDIATELY THEY ARE NOT TO BE SAVED FOR ANY LENGTH OF TIME AND THEN TAKEN BACK TO THE EXAMINER IN ONE LUMP SUM With respect to the particular incident involved, Brown testified that Harper was asked on February 18 to fix a large number of repairs that she had accumulated and had been storing partly under her table and partly under her coemployee Ora Metz table Harper was asked to remove all repairs from Metz table that were hers, to keep them under her table and to fix all repairs by the end of the day On February 19, Brown was told by Riddle that neither Harper nor Metz, who had been given similar instructions with respect to her repairs, had effected their repairs Brown called each employee to his office to explain her failure He testified that Harper said that she did not have time to fix her repairs Both Harper and Metz were given warnings on February 19 Metz was not on the Union's organizing committee and, so far as the record reflects, not a union supporter Respondent argues that the warning in question was given according to company policy and was not unlaw fully motivated as demonstrated by the fact that a non union supporter was given a warning for the same failure on the same day The General Counsel argues that the evidence would show unlawful motivation because Harper had an excuse (cut threads) whereas Metz had none, and because Respondents Exhibit 3 was recirculat ed on February 18 and had been a lapsed rule prior to that Metz was not called as a witness so there is no evi dence concerning whether she had an excuse for not making repairs as instructed There is no proof that Re spondent s Exhibit 3 was in fact a lapsed rule Harper testified that Riddle showed her the rule on February 18 when she was told to make repairs This appears to be a logical thing for a supervisor to do that is draw an em ployee s attention to a company rule when the employee appears to be in violation of the rule In conclusion I find that the Respondent has a compa ny rule about making repairs that was in effect for some time before the alleged violation This rule was shown to have a valid business reason as its basis Harper was given instructions to make repairs pursuant to this rule and did not do so Under the circumstances I find Re spondent was justified in giving her a written warning There is no showing here that Harper was treated any differently than other employees which was not the case with Gillman Having found that Respondents action in the Harper warning was not unlawfully motivated and was based on legitimate business concerns, I will recom mend dismissal of that portion of the complaint alleging violation of the Act by warnings given to Harper UNION UNDERWEAR CO 561 I would note at this point that the complaint alleges that warnings were given to Harper on February 18 and 19 There is no evidence that any warning was given to her on February 18 and, thus, there is no basis for this complaint allegation Likewise, no one has urged that a warning to Harper for taking an early break on February 19 was unlawful The record is not sufficiently devel oped with respect to this warning, if one was in fact given, to make any findings about its lawfulness 3 Did Respondent violate the Act by issuing an unexcused absence and placing an unfavorable incident report in the file of Guadalupe Pickett on February 29' Guadalupe Pickett was a member of the Union s orga nizing committee On February 26, she was asked by her floorlady, Sharon Wells, if she was going to work on Saturday, February 27 Pickett testified that she inquired if attendance was mandatory and was told that it was not She informed Wells that she did not want to work but would do so only if her ride, Linda Pickett, would also work Wells and Pickett then walked over to Linda s desk where Wells asked her if she was going to work Saturday Linda inquired if it was mandatory and Wells indicated that it would be Linda then indicated she would be in Guadalupe indicted that, in that circum stance, she would be in, but wanted to be off About 10 minutes later, she approached Wells and asked that if she would not be needed on Saturday, would Wells let her know Wells replied that she would After work, Linda Pickett drove Guadalupe home and told her that at the last minute Wells had told her that she did not have to work Saturday Guadalupe then called the plant to check with Wells, but she had already left She then called the plant secretary and asked her to leave a message for Wells and was told the message would be put on Wells' desk The message informed Wells that Guadalupe would not be in on Saturday be cause Linda was not working and she had no way of getting to the plant When Guadalupe Pickett arrived for work the follow ing Monday, February 29 she found her timecard miss ing and an absentee card in its place Pickett then went to Wells and told her that she did not have the right to count her absent because she had made it clear that she could only be in if her ride Linda Pickett worked Pick ett testified that Wells said it was not her job to tell her anything whether Linda was going to be there or not Pickett then checked with the plant secretary who verified that Pickett s message had been placed on Wells desk and that Wells had received it Shortly, thereafter, Pickett told Esther Gabehart, Wells supervisor, that it was not fair to count her absent under the circumstances Gabehart gave her a reply similar to the one given by Wells She then went to Watts and got nowhere with him, either As a result of the above incident Pickett was charged with an absentee day, which could result in dis ciplinary action against her in the event she exceeds the number of absences allowed by company rules Pickett pointed out that if she had just refused to work on Saturday when first asked, she could not have been subject to the absentee charge as Saturday was not a mandatory workday In addition to the foregoing, Pick ett refused to sign the absentee card, which was noted on the card by Gabehart, and she was additionally docked 15 minutes for arguing with Watts General Counsels Exhibit 4 is a written memorandum dated February 29 that is characterized on its face as a ` write up and that notes both Pickett's Saturday ab sence and her argument about it Though Respondent argues on brief that Pickett did not get an unexcused absence form' or an unfavorable incident report as al leged in the complaint, I believe that it is clear that the charge of the Saturday absence on Pickett s timecard amounts to an unexcused absence form and that the Feb ruary 29 wnteup of the incident amounts to an unfavor able incident report This wnteup was contained in Pick ett s personnel file and pursuant to my understanding of Respondents disciplinary procedure (R Exh 31) is a step in the disciplinary system for violation reasons IA and 7A set out in that procedure Gabehart did not testify in this case and Wells and Watts, who did, mentioned nothing about this incident Based on Pickett s uncontradicted testimony, it is my opinion that she was set up for the discipline meted out She was given an unexcused absence for not working on an nonmandatory day after giving repeated notice to her supervisor that she could not work that day if her ride, Linda Pickett, did not also work Linda Pickett was then first assigned work on Saturday, and at the last minute released On hearing of the release, Guadalupe Pickett notified the Respondent of her inability to get to the plant as she had told Wells earlier To then receive an unexcused absence the following Monday under the cir cumstances obviously upset Pickett and she complained, which resulted in the unfavorable writeup As no reason was offered by Respondent for its ac tions in this regard and in light of Respondent's clear animus toward the Union and the members of its orga nizing committee I find that the charging of Guadalupe Pickett with an unexcused absence and the placing in her personnel file of an unfavorable incident report was un lawfully motivated and thus a violation of the Act as al leged in the complaint 4 Did Respondent violate the Act by suspending Antoinette Robinson on April 22? Antoinette Robinson, a member of the Unions orga nizing committee was employed by Respondent from September 17, 1986 through January 1987 She took ma ternity leave at that point and was rehired in August 1987 and worked until May 12, 1988 when she voluntar ily quit for another job She was employed as a sewing machine operator and her floorlady was Nancy Riddle and next level supervisor was Tim Brown On arrival for work on April 22 about a half hour late she found her timecard missing and then reported to Brown After greeting Brown Robinson testified he said, Toni, this is your third time being late You've begun to make this a habit Your tardiness has contributed to your absenteeism I ve warned you about your absentee ism I don t know what it is but in the last four or five months, you've become a totally different person You 562 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD haven t acted like yourself and you haven t performed your job as well as you did Brown said that her pro duction had been going up and down for about 6 weeks Robinson told him that 2 or 3 weeks prior to that when she was warned about absenteeism and production she was not warned about tardiness Robinson explained that her absenteeism was because one of her children had been sick and she had to take the child to a doctor Robinson said that Brown replied that he understood but that she still had to work on her pro duction and absenteeism He then said, `You know I in going to have to lay you off I'm going to have to lay you off for two days I in not picking on you and I in not singling you out There s other girls I have to lay off for absenteeism If Sherry Harper would have been with you like she was the 12th and 13th of that previous week, I would have had her too Brown gave Robinson her check and she was laid off until the following Tues day Robinson testified that other than her membership in the Union s organizing committee, there had been no change in her work or personal life in the past 4 or 5 month period She also testified that although she knew that Respondent had an absentee and tardiness policy that resulted in discipline, including layoff the employ ees never knew how it operated The number of hours missed that resulted in discipline changed Robinson admitted that in a meeting in late March or early April Brown had warned her about her absentee ism and production In this meeting she had explained to him that her problems stemmed from family problems that had been straightened out At the time of this warn ing, Robinson admitted that she had a lot of hours against her She did not know how many but they were adding up In this regard she testified, You know every time you take off, the hours add up against you Once you have so many against you you get a verbal warning or you 11 get written up about it At that time he wrote me up Robinson also admitted that she had been late 2 days in succession shortly before her suspension on April 22 a day on which she was also tardy As its Exhibit 4, Respondent put into evidence a sum mary of significant incidents relating to Robinson The exhibit reflects warnings on February 18 for failure to fix repairs and on April 7 13 18 and 22 for absenteeism and tardiness Respondent also introduced evidence that other employees not on the organizing committee had received warnings and suspension for absenteeism and tardiness at about the same time Robinson was suspend ed Although Respondents policy about when an em ployee is warned and then suspended does not appear to be pegged to a fixed number of hours its treatment of Robinson appears consistent with its treatment of its other employees See Respondents Exhibits 6 through 13 The General Counsel argues that Brown s comment that Robinson appeared to be a changed person in the last 4 or 5 months is a reference to her union activities Just as likely it is a reference to her performance being bothered by her admitted family problems In conclusion on this matter I can only find that Antoinette Robinson was in fact tardy and absent, that her treatment as a result was consistent with that given other employees with similar records, and that there is no clear showing that her suspension was given for anything other than her failure to abide by the Company s attendance poh cies Finally, the General Counsels argument that all Robinson s disciplinary notations came after her member ship on the organizing committee would be convincing if there were evidence that she had been absent or tardy to the same extent prior to that without discipline being im posed There is no such showing Therefore, having found that the evidence does not prove Antoinette Rob inson s suspension was unlawfully motivated as alleged in the complaint, I will recommend dismissal of this portion of the complaint CONCLUSIONS OF LAW I Respondent is now and has been at all times maters al to this decision an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 International Brotherhood of Teamsters Chauffeurs, Warehousemen and Helpers of America, Local 651, AFL-CIO is now and has been at all times material to this decision a labor organization within the meaning of Section 2(5) of the Act 3 Respondent, by the statements of its Supervisors Mary Jo Cochran and Sharon Wells to employees threat ening plant closure and loss of jobs in the event of union representation and giving the impression of surveillance by Respondent of employees union activities, engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act 4 Respondent by its discrimmatroy discharge of its employee Elizabeth Gillman on February 22 1988 en gaged in and is engaging in unfair labor practices in vio lation of Section 8(a)(1) and (3) of the Act 5 Respondent, by discriminatorily issuing an unex cused absence form to and placing an unfavorable inci dent report in the personnel file of employee Guadalupe Pickett on February 29 1988 engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act 6 The unfair labor practices set out above affect com merce within the meaning of Section 2(6) and (7) of the Act 7 Respondent has not engaged in any other unfair labor practices other than those specifically found above for the reason set out earlier in this decision THE REMEDY Having found that Respondent did engage in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act I shall order it to cease and desist therefrom and to take certain affirmative actions designed to effectuate the policies of the Act I shall order that the Respondent offer employee Elizabeth Gillman immediate and full reinstatement to her former position or, if that position no longer exists to a substan tially equivalent position, without prejudice to her se niority or other rights and privileges previously enjoyed UNION UNDERWEAR CO Further I shall order that Respondent make Elizabeth Gillman whole for any loss of earnings or any other ben efits she may have suffered as a result of Respondent s discrimination against her to be computed in the manner described in F W Woolworth Co 90 NLRB 289 (1950) with interest as prescribed in New Horizons for the Re tarded, 283 NLRB 1173 (1987) I also direct that Respondent remove from its files any reference to the unlawful discharge of Elizabeth Gillman and the unexcused absence form and unfavorable inci dent report issued against Guadalupe Pickett and notify them in writing that this has been done and that these matters will not be used against them in any way On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed3 ORDER The Respondent, Union Underwear Company, Inc , Frankfort, Kentucky , its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discriminatonly discharging employees because of their union activities (b) Threatening employees with plant closure and loss of jobs in the event of union representation and giving employees the impression of surveillance because of their union activities (c) Discriminatonly issuing unexcused absence forms to and placing unfavorable incident reports in the per sonnet files of its employees because of their union activi ties (d) In any like or related manner interfering with, re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Elizabeth Gillman immediate and full rein statement to her former job or, if that job no longer exists, to a substantially equivalent position, without prej udice to her seniority or other rights or privileges previ ously enjoyed, and make her whole for any loss of earn ings or other benefits suffered as a result of the discrimi nation against her in the manner set forth in the remedy section of this decision (d) Remove from its files any reference to the unlaw ful discharge of Elizabeth Gillman, and the unexcused absence form issued to and the unfavorable incident report placed in the personnel file of Guadalupe Pickett, and notify them in writing that this has been done and that these matters will not be used in any way against them (c) Preserve and, on request , make available to the Board or its agents for examination and copying all pay roll records social security payment records timecards, personnel records and reports , and all other records nec a If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses 563 essary to analyze the amount of backpay due under the terms of this Order (d) Post at its Frankfort, Kentucky facility copies of the attached notice marked Appendix 4 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondents author ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu tive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 4 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or derd us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec tion To choose not to engage in any of these protect ed concerted activities WE WILL NOT discharge you because of your activities on behalf of Teamsters Local 651 or any other labor or ganization WE WILL NOT threaten you with plant closure or loss of jobs in the event you choose union representation nor will we give the impression of surveillance because of your activities on behalf of International Brotherhood of Teamsters Chauffeurs, Warehousemen and Helpers of America, Local 651, AFL-CIO or any other labor orga nization WE WILL NOT issue unexcused absence forms or place unfavorable incident reports in your personnel files be cause of your activities on behalf of Teamsters Local 651 or any other labor organization WE WILL offer Elizabeth Gillman immediate and full reinstatement to her former job or if that job no longer exists to a substantially equivalent position, without prej udice to her seniority or any other rights and privileges 564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD previously enjoyed and WE WILL make her whole for vorable incident report placed in the personnel file of any loss of earnings or other benefits resulting from her Guadalupe Pickett, and notify them in writing that this discharge, less any net earnings, plus interest has been done and that these matters will not be used in WE WILL permanently remove from our files any ref any way against them erence to the unlawful discharge of Elizabeth Gillman, and the unexcused absence form issued to and the unfa UNION UNDERWEAR COMPANY, INC