Bogart Industries, Inc., 189 (1972)

Docket Number16-CA-03938

BOGART INDUSTRIES, INC. 189

Bogart Industries, Inc. and International Ladies' Garment Workers' Union, Texas District Council. Cases 16-CA-3938 and 16-CA-4124

April 7, 1972 DECISION AND ORDER

BY CHAIRMAN MILLER AND MEMBERS JENKINS

AND KENNEDY

On February 24, 1971, Trial Examiner Phil Saunders issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding 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 this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, only to the extent consistent herewith.

  1. THE TRIAL EXAMINER'S 8(a)(1) FINDINGS The Trial Examiner found that Respondent violated Section 8(a)(1) by: (1) Supervisor Dorothy Ferguson's interrogation of employee Vola Barrington on March 14, 1970, as to 'who all signed the union cards' and by informing Barrington 2 days later that she knew Barrington had a union badge, and then by asking her why she was not wearing it; (2) Supervisor Louis Thompson's statement to employee Joyce Elkins on May 13 that Respondent would not run a union shop and would close the doors before doing so; and (3) Supervisor Edgar Haynes' statement to employee Joyce Elkins on May 1 that he was not helping her with inventory because she was wearing a union badge.

    With respect to (1) and (2) above, the Trial Examiner's findings are based on credibility resolutions and, since a clear preponderance of all the relevant evidence does not convince us that such resolutions are incorrect, we hereby adopt such findings.

    Standard Dry Wall Products, Inc., 91 NLRB 544, enfd.

    188 F.2d 362 (C.A. 3).

    However, with respect to (3) above , the Respondent excepts to the Trial Examiner's finding and contends that as of May 1, Haynes was not a supervisor but a salesman. Employee Elkins testified that Haynes was 'the supervisor over the sales department ,' and that 'some of the employees at Bogarts had told ' her that Haynes was the supervisor over the sales department.

    Haynes testified, however, that although as of the date of his testimony at the hearing (October 15, 1970), he was Respondent's sales manager, he had occupied that position for only a '[s]hort time, some three months, four months' and that prior to that time he was employed by Respondent as a salesman who traveled '[a]bout the country.' The Trial Examiner found that Haynes was a supervisor. Based on the far from clear testimony cited above, it may be questionable whether the General Counsel has carried his burden of proof showing that Haynes was either a supervisor or an agent for whose conduct Respondent was responsible on May 1. However, in its answer to the complaint, Respondent admitted that Haynes was Respondent's agent and supervisor 'at all times material herein .' At no time during the hearing or in its brief to the Trial Examiner did the Respondent seek to withdraw this admission.

    Therefore, we hold that the General Counsel was entitled to rely on Respondent's admission, and that the Trial Examiner properly found that Respondent was responsible for Haynes' conduct. Accordingly, we adopt the Trial Examiner's finding that Respondent violated Section 8(a)(1) by Haynes' conduct.

    II. THE TRIAL EXAMINER'S 8(a)(3) FINDINGS The Trial Examiner found that Respondent discharged 10 employees in violation of Section 8(a)(3).

    Respondent has filed exceptions to these findings, and we find merit in such exceptions for the reasons stated below.

    Background Respondent is engaged in the manufacture of sportswear at its plants in Fort Worth (the plant involved herein), Cleburne, and Jacksboro, Texas. Respondent produces garments on order and does not make up a stock of finished goods. The Union commenced its organizational drive in March 1969, but did not hold its first organizational meeting until May 23, 1969. The Union sent telegrams to Respondent on May 23, June 17, and July 28, 1969, and April 3, 1970, advising and informing the Respondent as to the employees on the Union's Volunteer Organizing Committee. The May 23 telegram listed 31 employees, 196 NLRB No. 1 including 4 of the 10 whose discharges are alleged herein to have been discriminatory (Almeda Bruce,

    Felipa Gamez, Florence Morgan, and Mae Bell Washington). The June 17 telegram listed 14 employees including none of those involved in this proceeding. The July 28 telegram listed three employees, including two of those involved herein (Gertrude Evans and Lorene Phelps). The April 3, 1970, telegram listed 56 employees including 9 of the 10 whose discharges are here alleged to have been discriminatory (Almeda Bruce, Felipa Gamez, Florence Morgan,

    Mae Bell Washington, Gertrude Evans, Lorene Phelps, Vola Barrington, Joyce Elkins, and Mary Turpin). The remaining employee alleged to have been discriminatorily discharged, Lucy Kincannon, was not named in any of the telegrams.

    On February 12, 1970, the Union filed a representation petition in Case 16-RC-5399. Pursuant to a Decision and Direction of Election, an election was conducted on May 19, 1970, which the Union won.

    The Regional Director certified the Union in early August 1970. By letter dated September 4, 1970, the Union requested bargaining, which Respondent refused by letter dated September 15, 1970, on the ground that the unit was not an appropriate one.

    Most of Respondent's production employees, including 9 of the 10 alleged discriminatees herein, performed piecework. However, since by law Respondent was required to pay its employees the minimum wage of $1.60 an hour, if the employees did not make a piecework wage of $1.60 per hour Respondent nevertheless paid them at that rate. The difference between any lesser amount that they might earn on piecework and the $1.60 hourly rate they were paid for such work was referred to as 'makeup' or 'not making production.' The employees also referred to the minimum wage of $1.60 as their 'quota' which they were expected to make.

    Respondent Vice President Harry Seals testified, without contradiction, as follows: Respondent maintains a market or sales office in Dallas, Texas, and on a quarterly basis buyers come into this office to see what the Respondent has to sell and to place orders.

    However, in January 1970, Respondent's market and business were 'pretty bad,' it was the 'worst market' Respondent had 'had in twenty years,' and even by contacting other large chain buyers Respondent was still unable to get sufficient orders. Although Respondent ordinarily produced about 150,000 garments a month, Respondent only sold approximately 120,000 garments in February for delivery in February and early March. As a result of these factors, plus the fact that Respondent's labor costs were excessively high because of the high percentage of makeup pay, Seals decided that Respondent had more employees than the anticipated business warranted. Therefore, Seals and Respondent President Bogart decided in early March to reduce the number of employees even though Respondent had not had a layoff in the past 20 years. Seals decided that he would effectuate the layoff by determining the number of employees necessary for each department and retaining those employees who were the highest earners. Seals then computerized a list of all production employees showing their average earnings by departments from January 1 thru March 14, 1970, and 'retained and kept the highest earners up to the amount of people it was necessary for that particular department [to operate].' Those employees terminated were not all laid off at the same time but rather were let 'go as the lines were reduced' because Respondent could not let 'all people go at one time [since] a garment going through the factory takes approximately ten days.' Respondent contends that 36 employees were laid off as the result of its decision to reduce its work force.

    Respondent's Exhibit 10 shows that as of the week ending March 21, 1970, Respondent had 165 employees in its employ while as of the week ending May 16, 1970 (the week in which the last of the 10 employees here involved were discharged), Respondent only had 129 employees. This fact lends credence to Respondent's contention as to the number of employees laid off during this period. However,

    Respondent's Exhibit 7, which lists the terminations by name and department and the record testimony relevant thereto, indicates that only 21 or 22 employees were laid off during this period. Accordingly, it would appear that the 36 figure that Respondent contends were laid off must include voluntary terminations and discharges for cause as well as those laid off as a result of the reduction in force.

    The facts surrounding the termination of each of the employees alleged to have been discriminatorily discharged are set out below seriatim.

  2. Vola Barrington Vola Barrington was employed by Respondent in May 1968. When she was first employed she was assigned to a bar tack machine for about 3 months.

    Thereafter she was assigned to a single-needle machine for 'about a day,' then a double-needle machine for about 'another day,' then to turning garments for 'at least a week,' then to inspecting for 'about a week,' and then to the position of assistant floorlady for about a year and a half. At the time of her termination...

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