S. H. Camp and Co.

In the Matter of S. H. CAMP AND COMPANY and AMALGAMATED CLOTH- ING WORKERS OF AMERICA , AFFILIATED WITH THE C. I. O. Case No. 7-C-1197.-Decided January 30, 1945 DECISION AND ORDER On September 11, 1944, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices affecting commerce,' and recommending that it cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the respondent filed exceptions to the Intermediate Report. No request for oral argument before the Board at Washington, D. C., was made by any of the parties. The Board has reviewed the rulings of the Trial Ex- aminer, and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the exceptions and additions noted below : 1. We concur in the Trial Examiner's finding that about 2 weeks before the Union's organizational campaign began, Ruth Mae, Rich- ardson informed Forelady Irene McDaniels that she wanted to quit her employment, and that Branch Manager Carter induced Rich- ardson to remain. That finding is based upon Richardson's testimony. Carter admitted this incident but "believed" it occurred about a month after Richardson first entered the respondent's employ. Richardson impressed us, as she did the Trial Examiner, as a credible witness and Carter as one not worthy of credit. Accordingly, we accept Richard- son's testimony and reject Carter's as to the date of the attempted resignation. ' On the basis of the facts found by the Trial Examiner under the heading "I The busi- ness of the respondent," the stipulation entered into between the parties at the hearing, as well as the substantial nature of the operations at the respondent 's Marshall plant, we find that the business conducted by the respondent at its Marshall plant affects commerce within the meaning of the National Labor Relations Act. 60 N. L. R. B., No. 56. 263 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. In connection with Richardson's discharge interview, Margaret Dunham, the respondent's only office employee, corroborated Carter's testimony to the effect that he did not accuse Richardson of engaging in unladylike and disorderly conduct. Dunham further testified that Richardson was not discharged but that she quit her employment. The facts found by the Trial Examiner relating to the discharge interview are based upon the credible testimony of Richardson, corroborated in all essential details by the likewise credible testimony of McDaniels. Upon the entire record, we credit Richardson's and McDaniels' testi- mony as reflecting substantially_ the statements which were made in the interview precipitating the discharge, rather than Carter's or Dunham's versions thereof. 3. We concur in the Trial Examiner's finding that the respondent knew that- the employees harbored an understanding that Eloise Randall and Jennie Carver, two production employees, were acting ,as informers for the respondent. The record discloses that Randall and Carver informed Carter that they had been accused by the em- ployees of being company "stooges." Also, Randall testified, with- out contradiction, that she frequently spoke to Carter of union activ- ities at the plant in the presence of other employees. Further, the record discloses that the reports to Carter relating to union activity were made in the office, in the presence of Dunham, who is a non- supervisory employee. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, S. H. Camp and Company, Marshall, Michigan, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in Amalgamated Clothing Workers of America, affiliated with the Congress of Industrial Organizations, or in any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Amalgamated Clothing Workers of America, affiliated with the Congress of Industrial Organizations, or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted S. H. CAMP AND COMPANY 265 activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Ruth Mae Richardson immediate and full reinstate- ment to her former or substantially equivalent position, without prej- udice to her seniority and other rights and privileges; (b) Make whole Ruth Mae Richardson for any loss of pay she may have suffered by reason of the respondent's discrimination against her, by payment to her of a sum of money equal to the amount which she normally would have earned as wages front the date of her dis- charge to the date of the respondent's offer of reinstatement, less her net earnings during said period; (c) Post immediately in conspicuous places throughout its plant at Marshall, Michigan, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating : (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the respondent will take the affirmative ac- tion set forth in paragraphs 2 (a) and (b) of this Order; and (3) that the respondent's employees are free to become and remain mem- bers of Amalgamated Clothing Workers of America, affiliated with the Congress of Industrial Organizations, and that the respondent will not discriminate against any employee because of membership or activity in that or in any other labor organization; (d) Notify the Regional Director for the Seventh Region in writ- ing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Mr. Sylvester J. Pheney, for the Board. Messrs. Bisbee, McKone, Badgley & McInally, by Mr. M. F. Badgley, of Jackson, Mich., for the respondent. Mr. A. M. Paterson, of Chicago, Ill., for the Union. STATEMENT OF THE CASE Upon a charge duly filed by Amalgamated Clothing Workers of America, affiliated with the Congress of Industrial Organizations, herein called the Union, 'the National Labor Relations Board, herein called the Board, by its Regional Director for the Seventh Region (Detroit, Michigan), issued its complaint, dated July 22, 1944, against S. H. Camp and Company, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing were-duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that the respondent, at its Marshall plant, (1) engaged in a course of inter- ference, restraint, and coercion relating to its employees' rights to self-organi- zation, particularly by procuring supervisory and ordinary employees to attend meetings of the Union for the purpose of disrupting such meetings and report- ing to the respondent the number and identity of employees attending the meet- ings, by requiring supervisory and other employees to interrogate employees concerning their union affiliations, and by hiring and attempting to hire em- ployees because they were known to be opposed to the Union; (2) on or about June 16, 1943, discharged Ruth Mae Richardson, its employee, because of her union and concerted activities; and (3) by the foregoing conduct engaged in unfair labor practices, within the meaning of Section 8 (1) and (3) of the Act. Respondent in its answer, duly filed on August 2, 1944, denied that it was en- gaged in commerce within the meaning of the act or that it had engaged in the alleged unfair labor practices. Pursuant to notice, a hearing was held on August 10, 11 and 12, 1944, at Marshall, Michigan, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner The Board and the respondent were represented by counsel and the Union by a lay representative. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the close of the hearing, the undersigned took under advisement a motion of the respondent to dismiss the complaint for lack of proof. The motion is hereby denied, except to the extent hereinafter indicated.. At the close of the hearing the parties were advised that they might argue before and file briefs with the undersigned. None of the parties availed themselves of the privi- lege of oral argument. On August 26, 1944, the respondent filed a brief. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT S. H. Camp and Company is a Michigan corporation engaged in the manufac- ture, distribution, and sale of surgical and orthopedic supports. Its main opera- tions are located at Jackson, Michigan. It also operates plants at Marshall, Michigan, Windsor, Canada, and in England. Only the Marshall plant is involved in this proceeding. During an average year, the respondent purchases approxi-_ mately 94.5 percent of raw materials used in its Michigan plants from points outside the State of Michigan, and ships approximately 97.7 percent of the prod- ucts of its Michigan plants to points outside the State of Michigan. All raw materials are received at the Jackson plant. The fabrication of certain products is completed at the Marshall plant and then-returned to the Jackson plant.' II. THE ORGANIZATION INVOLVED Amalgamated Clothing Workers of America is a labor organization, affiliated with the Congress of Industrial Organizations, admitting to membership em- ployees of the respondent. I The foregoing findings of fact concerning the business operations of the respondent are based upon a stipulation entered into between the parties at the hearing. See S. H. Camp and Company, 52 N. L. R. B. 644. S. H. CAMP AND COMPANY 267 III. THE UNFAIR LABOR PRACTICES A. Interference, restraint and coercion ; the discriminatory discharge 2 1. Introduction The respondent's Marshall plant employed during the period in question approximately 40 production employees. M. R. Carter, branch factory manager, was in charge of its operations. In addition to Carter, the supervisory staff consisted of 2 foreladies, one of whom was Irene McDaniels e Ruth Mae Richardson was employed by the respondent on March 29, 1943, as a lacer. At the time Richardson was hired, she was told by Carter that a number of months would elapse before she could expect to become sufficiently proficient in her work to earn or exceed the day rate' Although Richardson up to the time of her discharge, had not yet succeeded in making her day rate, it is undis- puted that only one of the eight lacers who were then employed had ever been able to equal or exceed-this quota. Prior to the commencement of the Union's organizational drive, Richardson's work, except for a few isolated but not ab- normal instances when garments were returned for rework, was not criticized, and her general efficiency record never was made the subject of criticism. About 2 weeks before union organization began, Richardson, according to her testimony, informed McDaniels that she wanted to quit her employment. Later that day, Carter spoke to Richardson and induced her to change her mind' According to Richardson's undenied testimony, Carter told her at that time that her work was satisfactory. McDaniels also told Richardson at about that time that-her work was as good as might be expected from an employee with her brief experience. 2. Commencement of union organization ; events leading up to the discharge of Richardson Organizational activities of the Union began about June 7, 1943. Richardsolf was the first employee to sign an application card. Thereafter, Richardson assisted the Union organizer in contacting other employees, distributed cards, spoke to her fellow employees on behalf of the Union, and generally participated actively in the organitizational campaign. Richardson was the only employee at that time who took an especially active part in the campaign. On June, 10, 1943, following the close of the work day, handbills announcing the first union meeting were distributed outside the plant. A group of employees congregated on the street near the place where the handbills were being dis- tributed, and a heated argument ensued between Richardson and Eloise Randall, employed by the respondent as a boxer or final inspector," in which the former 2 The following findings are based on admitted facts, or credible testimony which, except where otherwise indicated, was not substantially contradicted 9 Irene McDaniels was no longer employed by the respondent at the time of the hearing. In weighing McDaniel's testimony, the undersigned has considered evidence showing that she quit the employment of the respondent because of her belief that Carter had failed to support her supervisory authority. ' Work at the plant is performed on a piece-work basis . Employees are paid a guaranteed basic wage of 40 cents an hour, but by exceeding their production quota, sometimes referred to as the day rate, will earn more. When an employee 's piece-rate earnings in any given week do not equal the basic guaranteed earnings, the deficiency is called a "make up." Records are kept by the respondent showing the production, earnings and "make up" of each employee. 5 Carter admitted this incident, except that he testified that he "believed" it occurred about a month after Richardson first entered the respondent's employ. Richardson's testimony concerning the date was In effect corroborated by McDanlels, and Is credited. The record does not establish that Randall was a supervisory employee. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supported and the latter opposed unionization of the plant. Early the next morning during working hours, Randall went to Carter's office and reported to Carter the argument which she had had with Richardson. During the after- noon of the same day, Richardson for the first time during her employment wa& called into Carter's office and, in the presence of Forelady McDaniels, was criticized for general inefficiency. Although Carter's purported reason for call- ing in Richardson was to help her improve her work, Carter's manner during the interview was rude, antagonistic, and condescending according to the credible testimony of Richardson and McDaniels. McDaniels characterized her impres- sion of Carter's attitude as that of "a little boy poking a stick at a turtle:- or something, to see if it wouldn't bite.' When, in the course of the interview, Richardson pointed out to Carter that only about 2 weeks before, when she had wanted to quit he had asked her to stay on, and accused Carter of being pri- marily interested in her union activities, Carter remarked that "that was beside the point." At the conplusion of the interview Richardson was warned to make production. Following the meeting, McDaniels, according to her testimony, which the undersigned credits, for the first time was instructed by Carter to watch Ricbardson's work closely to see if she could find anything wrong with it' As announced by the handbills, the first union meeting was held on June 14, 1943. Before the meeting, Randall informed McDaniels that she would attend the meeting, ask questions, and report to Carter what occurred. At the meeting that evening, Randall questioned the good faith of the Union and its ability to attain economic benefits for the employees, and was accused by the union or- ganizer of being a representative of management. There, Randall also had a further argument with Richardson concerning the Union. The following'morn- ing, during working hours, Randall conferred with Carter for approximately 45 minutes and reported to him what had transpired at the meeting the preceding evening, and also informed Carter of Richardson's participation at the meeting. Randall also gave a report of the meeting to McDaniels, advising her who were *present and what had occurred. Later that day, Randall singled out a bundle of corsets which had been laced by Richardson and turned it over to McDaniels who brought it into the office. The bundle was returned to Richardson with a complaint that it had, been laced improperly. Only after Richardson proved that it had been laced in accordance with a posted schedule, which without the knowledge of the lacers had since been superseded, was it acknowledged that Richardson was not at fault, and she was paid for relacing it in accordance with the new schedule. Shortly after Richardson came to work the following morning, July 16, 1943, she was summoned to Carter's office. There, in the presence of McDaniels, Carter told Richardson he had received a number of complaints from employees that 'Carter denied that his attitude was rude and antagonistic, and his testimony in this respect was corrobordated by Margaret Dunham, the respondent's only office employee. The over-all testimony of Richardson and McDaniels was supported by convincing detail and corroborating circumstances in the record, and was marked by that degree of candor which invites credence . They impressed the undersigned as forthright and credible witnesses. Carter and Dunham did not similarly impress the undersigned. As noted below, Carter's testimony in a number of respects was wholly implausible and at variance with that of other witnesses called by the respondent, and was largely marked by vague and unconvincing generalities Dunham's over-all testimony indicated her to be a thor- oughly unreliable witness Concerning the incident in question, her recollection was admittedly vague and confused , and in some respects at variance with other established facts admitted by Carter. The undersigned does not credit Carter's denial, or Dunham's corroboration thereof. 8 Carter admitted that after his interview with Richardson, lie requested McDaniels to observe Richardson's work, but stated that his purpose was "to see if there wasn't some- thing possibly that we could do to help her along , and also to check the quality of her work." S. H. CAMP AND COMPANY 269 she was causing disturbances in the plant, that her conduct was disorderly and unladylike and had caused one employee to suffer a nervous breakdown, and that she was an undesirable person to have in the plant. Carter refused to tell Richardson who the complainants were, and refused also to specify the exact nature of her alleged improper conduct except to say that she had been whistling in an annoying manner. Richardson became agitated at the charges leveled against her, denied that they were true, stated that she did not like being humiliated, and otherwise indicated her resentment. Richardson told Carter that if he intended to discharge her he should do so in a fortright manner and not humiliate her. Carter asked Richardson what she intended to do about it,' and Richardson said "plenty." ° Carter asked Richardson what she meant by that remark, and Richardson said "just that." At that point Carter said, "You will take your things and go home." The respondent in its answer alleged merely that Richardson was discharged "for good and sufficient cause," unconnected with her union activities. At the opening of the hearing, in response to a request for a more specific statement, the respondent, through its counsel, amplified the general allegation in its answer by the following statement : Ruth Richardson was discharged because she was not able to progress in the work satisfactorily. Her make-up pay was greater than that of any other employee, and when she was interviewed in connection with her failure to progress, in accordance with the custom of the Company which attempted to help its employees who were not progressing satisfactorily, she resented it and took a position of antagonism. On two occasions she requested that she be discharged, and on at least one occasion she gave as a reason for this that she was frozen in her job at Camp's and if she were discharged she had another job that she much preferred. She made disturbances in the plant after she had been interviewed and again when she was called in and asked to conduct herself properly , that her conduct had been annoying-other employees and that complaints had been received from other employees, she again demonstrated a completely uncooperative atti- tude and continued resentment and evidenced a complete disregard of proper cooperation with the management. During the course of the hearing, however, the respondent modified its posi- tion. Apart from some vague and general testimony of Carter, the respondent adduced no evidence in substantiation of its earlier position that the discharge was motiviated in part by Richardson's alleged inefficiency and lack of progress. When in the course of the respondent's case, the undersigned asked whether the 6 Richardson testified that by that she meant that she would do her utmost to have the plant organized. 10 The facts set forth above relating to the discharge interview are based upon the credible testimony of Richardson , corroborated in all essential details by the likewise credible testi- mony of McDaniels . Carter's account of the interview was not substantially at variance with that set forth above, except that he denied that he accused Richardson of engaging in unladylike and disorderly conduct (although he admitted that he accused her of whistling in any annoying manner), and except further that he testified that he did not recall charging Richardson with having caused an employee to suffer a nervous breakdown. Elsewhere in his testimony , Carter, however , indicated that he considered Richardson's conduct disorderly and also implied that a nervous breakdown suffered by an employee named Fish was attributable to Richardson 's whistling. Under all the circumstances, the undersigned credits Richardson 's and McDaniels ' testimony , which is found to reflect substantially the statements made in the interview precipitating the discharge. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent intended to produce the production records of its lacing department employees, which it admittedly kept, so that a comparative analysis might be made of Richardson's efficiency record in relationship t6 that of the other em- ployees in the department, counsel for the respondent stated on the record that the respondent did not defend the discharge in whole or in part on the ground that Richardson's efficiency was not up to standard, and expressly disclaimed that it was relying on this as a reason for the discharge. Nor did the respondent adduce evidence to support its position that Richardson was guilty of disturbing and annoying conduct other than the testimony of Carter that Richardson had whistled in the plant. The respondent's position, as modified, is reflected by the following testimony of Carter : Trial Examiner LEFF. Her [Richardson's] only improper conduct, Intake it, was whistling; was there anything else? I would like to get it all down now. I mean apart from her attitude during the interview. The WITNESS. That was the main factor. Trial Examiner LEFF. I mean the only thing that you were complaining about was this whistling; she hadn't been guilty of any improper or unlady- like conduct at all, had she? The WITNESS. That is true Trial Examiner LEFF. Then that, I take it, coupled with her attitude toward you during her interview motivated the discharge. The WITNESS. Yes Trial Examiner LEFF. And that is all that motivated the discharge? The WITNESS. Yes. The record is free from dispute that the respondent had no rule and had never issued instructions prohibiting whistling in the plant, and that many employees were in the habit of whistling and singing while they worked. Until Richardson was called into Carter's office, no employee had ever been criticized for whistling Richardson herself had been whistling at work almost since the beginning of her employment, but had never been reprimanded or warned to stop. According to Carter, Richardson's whistling first became annoying to other employees on June 11, 1943, the very day on which Randall had reported to Carter her argu- ment with Richardson which had been precipitated by the distribution of union handbills. Between that day and the clay of Richardson's discharge, there were only 2 working days." Carter testified that although during that period Richard- son continued whistling melodies as she had done before, her whistling had become louder and more shrill, and that it interfered with the production of other employees. Carter, while testifying, named 7 employees who had complained to him about Richardson's whistling in that period. Two of them, Cunningham and Rundle, were not called as witnesses. Two others 'called as witnesses by ' the respondent, Randall and Dunham, were not questioned about Richardson's whistling. Of the remaining three, all called by the respondent, one Neufer testified that Richardson's whistling did not annoy her, and another Thompson. testified that she never complained about Richardson whistling, and the third, Ludy, who could not sing or whistle herself, "imagined," according'to her tes- timony, that she once made a remark to several girls while Carter was near that Richardson's whistling was annoying but she fixed the time of that remark as about 3 or 4 weeks before Richardson's discharge. Under all the circumstances, the undersigned does not credit Carter's testi- mony and finds, in accordance with the credible testimony of Richardson, McDaniel's, and Grace Prattley that Richardson's whistling was neither louder 11 June 11, 1943, fell on a Friday. The plant was closed*on Saturday and Sunday. S. H. CAMP AND COMPANY 271 nor more annoying that that of other employees who customarily and without criticism whistled while at work, that there was no charge in her whistling after June 11, that her whistling was not annoying to others, and that it did not interfere with production. 4. Conclusions with respect to the discharge of Richardson It is clear from the record that the respondent's change of attitude toward Richardson coincided with the commencement of her open union activities. Prior to June 10, 1943, the respondent had regarded her as a satisfactory em- ployee and had encouraged her to remain in its employ when she had sought voluntarily to quit. However, on the very day the respondent learned of her prominent union role, she was called into Carter's office and in an antagonistic manner charged with inefficiency, under circumstances reasonably leading to the inference, found by the undersigned, that- the respondent was seeking to pio- voke her resignation. When this failed of accomplishment, Richardson's fore- lady was instructed to watch her work carefully to see if she could find anything wrong with it, and not long after an attempt was made to single out a bundle of her work for special criticism, an attempt that proved abortive when she was able to establish that her work was performed in accordance with an estab- lished schedule. On the day of her discharge, she was unjustifiably charged with conducting herself improperly, annoying others, and otherwise being an unde- sirable employee. It was, however, clear to her, as it is to the undersigned, that the real reason she was called into Carter's office was to humiliate her and provoke her resignation. Under the circumstances her showing of resentment to Carter was understandable; having been, as the undersigned finds, deliberately induced by Carter's provocative conduct, which was designed to make her quit or, failing that, to provide a pretext for the. respondent's discharge action. .Upon the entire record and in the light of all the circumstances, including the timing of the discharge, the events leading up to it, the respondent's provocative conduct and exaggeration of Richardson's alleged offense of whistling, the_re- spondent's shifting reasons in explanation of its action, and the respondent's general anti-union animus, as more fully reflected by its conduct narrated below, the undersigned is convinced, and finds, that Richardson was not discharged for the reasons asserted by the respondent, but that she was discharged and denied reinstatement because of her membership in and activities on behalf of the Union and to discourage membership in the Union. The undersigned finds that Ruth Mae Richardson was discharged on June 16, 1943, because of her activities on behalf of the Union, and that the respondent. by thus discharging Richardson, discriminated in regard to her hire and tenure of employment, thereby discouraging membership in the Union and interfering- with, restraining, and coercing its employees in the exercise of the rights guar- anteed in Section 7 of the Act. 5. Activities of Randall and Carver Reference has been made above to the reports rendered by Randall to Branch Manager Carter and to Forelady McDaniels relating to Richardson's attitude toward the Union and to the proceedings at the first Union meeting. Randall's reports to the respondent concerning union activities of its employees were not limited to these two occasions. As appears from her undisputed testimony, on numerous occasions thereafter she continued to report to Carter and McDaniels whatever information she gathered in the plant concerning union organizational activity, including remarks made by other employees Randall, who at the first Union meeting had been-accused of acting in the interest of management, 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did not attend any further meetings. However, Jennie Carver," who, like Randall, had always been opposed to unions, attended the second and third union meetings, which were held at weekly intervals, and there, like Randall, heckled the Union organizer with numerous questions designed to discredit the Union. When accused at one of these meetings of being a "stooge" for the respondent, Carver did not deny the charge." On the morning following each meeting, Carver, again like Randall, conferred with Carter at the respondent's office and advised him what had occurred at the meeting the previous evening. On other occasions as well, Carver, according to her testimony, reported to Carter her observations concerning union activities in the plant." The reports made `by Randall and Carver to Carter were made during working hours, and at least those which followed the first three Union meetings admit- tedly consumed from 30 to 45 minutes each. That Randall and Carver made it a practice of reporting to Carter matters relating to the union activities of the respondent's employees was not disputed, nor was it disputed that Carter never attempted to discourage Randall and Carver from making such reports and always listened attentively to what they had to say. However, it was the testimony of Carter, as well as that of Randall and Carver, that neither the reports nor the attendance of these employees at the meetings had ever been solicited by management. According to Carter, when the reports were rendered to him he remained absolutely mute except to state at the conclusion of the interview that the respondent's policy was one of -neutrality. On the other hand, it was the testimony of both Randall and Carver that Carter did participate in the conversations, but that they had no recollection of what he said. Considering the length of the conferences, Carter's testimony in this respect is on its face inherently improbable, and is not credited. During the course of the Union's organizational drive, Carter, according to his own admission, kept a check list, which he revised from time to time, on which he classified the employees who favored the Union, those who were opposed, and those of a doubtful category. When asked to explain his source of information for this list, Carter testified that it was prepared solely on the basis of his intuition and that his intuition likewise guided him in making periodic revisions of the list. Carter's explanation is patently implausible and unworthy of credit. In the absence of any other explanation-concerning the,source of Carter's infor- mation, it is reasonable to infer, and the undersigned finds, that Carter in pre- paring his check list utilized the information furnished him by Randall and Carver. The record shows that no effort was made to conceal from the employees in the plant, and that it was common knowledge among them, that management was receiving reports from Randall and Carver concerning union activities.16 "Carver, a production employee , is a cousin of Margaret Dunham, the only office employee "According to the testimony of Union Organizer Cubeta, corroborated by Richardson, Carver, when accused of having been sent down to the meeting by Carter, had replied, "so what." Carver denied that she made this statement, but admitted that Cubeta "might have asked me where I got the information" and that she had said "wouldn't you like to know'" Carver was a recalcitrant witness whose testimony in other respects proved to be unreliable. Richardson particularly impressed the undersigned as a credible witness. The undersigned does not credit Carver's denial. 14 The record shows that on one occasion , Carver turned over to Carter photographs taken liy her husband of striking employees picketing the plant. 15 Thus , Randall testified that everyone in the plant knew she was talking to Carter about union activities in the plant , and that she "didn't keep it.a secret like the girls who were for the C. I. 0 " and who "kept everything hush-hush like it was something underhanded." Since it appears that Randall and Carver informed Carter that they had been accused of being company "stooges," it is reasonable to infer , and the undersigned finds, that the respondent knew that Randall and Carver were regarded as informers by the employees. S. H. CAMP AND COMPANY 273' 6. Conclusions as to interference, restraint, and coercion . It cannot be questioned that ordinary employees who entertain an anti-union bias are free to express their views before fellow employees and at union' meet- iugs, and that management cannot be charged with responsibility for theii conduit simply because their expressed views happen to coincide with that of manage- ment. In this case, however, it is the Board's contention that the attendance of Randall and- Carver at the union meetings, their heckling conduct at such' meetings, and their reports to management concerning union activities, were expressly solicited" by the respondent and that the employees in question' were acting at its request and as its agents. The. record is bare of direct evidence' of express agency. While, it is recognized that the employment and use of in- formers is usually the result of a secret understanding known only to the principals and thus seldom capable of direct proof, the undersigned considers it unnecessary to determine whether in this case the combination of objective facts surrounding the activities of Randall and Carver constitutes sufficient circumstantial evidence from which a reasonable inference may be drawn that Randall and Carver acted at the express request and procurement of the respondent, as alleged in the complaint Therefore, although regarding the respondent's denial with suspicion, the undersigned makes no finding in this respect. Assuming, however, that the respondent gave Randall and Carver no expliciE instructions, its encouragement, approval, and adoption of their activities was nevertheless implicit in its readiness and willingness to listen repeatedly to their accounts of union organization and activities, matters which should not concern it, as well as in its utilization of the information thus received. The respondent's utilization of this information is shown not only by its preparation of the check list. The discharge of Richardson followed closely on the heels of Randall's reports to Carter. As found above, the fact that these reports were being made was not concealed from the employees. Thus, the discharge forcefully brought home to the employees that knowledge of this character in the hands of their employer might be fraught with danger to their economic security. Although the respondent knew that the employees generally regarded Randall and Carver as tale bearers of union activities, it nevertheless did nothing to restrain or dis- avow their activities ; on the contrary by tacitly encouraging and acquiescing in their repeated conduct, it helped foster the impression among the employees that they were in fact authorized informers for the respondent. It is clear that the employment of informers has an intimidating effect on employees in the exercise of their rights to self-organization, and it has frequently been held that attempts of employers to persuade and urge upon employees that they report the organization activities of their fellow workers violates Section 8 (1).10 The effect on employees is none the less intimidatory where the action of the informers is encouraged and approved, rather than expressly authorized, by the employer. Nor is the employer absolved from liability under the Act because the conduct found to be an unfair labor practice was initiated or suggested by employees for whose conduct he would not otherwise be 'responsible. 17 Upon the entire record, the undersigned concludes that the respondent's conduct in encouraging the reports made to it by Randall and Carver concerning union organization and activities, in failing to disabuse its employees of their understanding that Randall and Carver were thus acting as informers for the respondent after the respondent 19 See Matter of Indianapolis Power & Light Company, 25 N. L. R B. 193 , 205, and cases there cited. 17 Cf Medo Photo Supply Corporation v N. L R. B, 321 U S 678. 628563-45-vol. 60-19 - 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clearly knew that the employees harbored such an understanding, and the utiliza- tion by the respondent of the information so obtained, particularly when viewed in relationship to the discharge of Richardson, constituted interference, restraint, and coercion within the proscription of the Act. The undersigned finds that by its discharge and refusal to reinstate Ruth Mae Richardson, the respondent discriminated in regard to her hire and tenure of employment, and thereby, and by its encouragement, approval, and adoption of the activities of Randall and Carver in reporting to it matters concerning union activities and organization, and by the totality of such conduct, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The complaint alleges that the respondent hired and attempted to hire em- ployees who it was informed and believed would vote against representation by the Union in an election scheduled to be held pursuant to the direction of the Board. The record discloses that during the period preceding the election, the respondent hired two employees, one a sister of Eloise Randall, who were known to be opposed to the Union.18 The record also shows that on one occasion Mc- Daniels was asked by Carter if she could suggest the names of any prospective em- ployee who she knew would vote against the Union,' and that on another occasion, Carter, while discussing the possible return of a former employee, told McDaniels that he believed this employee to be opposed to the Union and that her return would mean one more vote against the Union. However, the record fails to establish that the two anti-union employees referred to above would not have been hired'but for their union animus , nor does it otherwise establish that the respondent in fact discriminated in the hire of employees. While Carter's state- ments to Forelady McDaniels, referred to above, constitute, as the undersigned finds, a further reflection of the respondent's anti-union attitude, it is, nevertheless found that there is no substantial evidence to support the allegation of the complaint here in question and it will be recommended that said allegation be dismissed. - The complaint also alleges that the respondent requested and required super- visory employees to attend Union meetings, to report to it upon the number and identity of employees attending such meetings, and to interrogate employees concerning their union activities and affiliations. The undersigned finds no sub- stantial evidence to support these allegations of the complaint, and will recommend that they be dismissed. - IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate and substantial relationship to trade, traffic, and com- merce among the several States, and to the extent that they are found to have been in contravention of Section 7 and 8 of the Act, tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Since it has been found that the respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 18 It is not clear from the record, however, whether any other employees were hired in the pre-election period. 18 This finding is based on the testimony of McDaniels, credited by the undersigned. Although denied by Carter, the undersigned does not credit his denial. S. H. CAMP AND COMPANY 275 The undersigned has found that on June 16, 1943, the respondent discharged Ruth Mae Richardson because of her union affiliation and activities. The under- signed will recommend that the respondent offer Ruth Mae Richardson immedi- ate and full reinstatement to her former or substantially equivalent position without prejudice to her seniority and other rights and privileges, and that the respondent make Ruth Mae Richardson whole for any loss of pay she may have suffered by reason of the discrimination against her, by payment to her of a sum of money equal to that which she normally would have earned as wages from June 16, 1943, the date of her discriminatory discharge, to the date of the offer of reinstatement, less her net earnings 20 during said period. Upon the basis of the foregoing findings of fact and upon the entire record in the case the undersigned makes the following : CONCLUSIONS OF LAW 1. Amalgamated Clothing Workers of America, affiliated with the Congress of Industrial Organizations, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Ruth Mae Richardson and thereby discouraging membership in the aforesaid labor organization, the respondent has engaged in and is engaging in unfair labor prac- tices, within the meaning of Section 8 (3) of the Act. 3 By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not, as alleged in the complaint, engaged in unfair labor practices by hiring and attempting to hire employees who would vote against representation by the Union, by requesting and requiring supervisory employees to attend union meetings and to report to it upon the number and identity of employees attending such meetings, and by interrogating employees concerning - their union activities and affiliations. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondent, S. H. Camp and Company, Marshall, Michigan, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in Amalgamated Clothing Workers of America, affiliated with the Congress of Industrial Organizations, or any other labor organization, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employment ; 1013y "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employnin connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amesoca, Lumber and Sawmill Workers Union, Local 2.590, 8 N L. R. B 440 Monies received for work performed upon Federal, Slate, county, municipal, or other work- relief projects shall be considered as earnings. See Republic Steel Coipoiation v. N. L. R. B, 311 U S. 7. 276 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' (b) In any, other manner interfering with, restraining, or coercing its emplbyo s in the exercise of the right to self-organization, to form labor organizations, to join or assist Amalgamated Clothing Workers of America, affiliated with The Congress of Industrial Organizations, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in con- certed activities for the purposes of collective bargaining, or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effec- tuate the policies of the Act : (a) Offer to Ruth Mae Richardson immediate and full reinstatement to her former or substantially equivalent position without prejudice to her seniority and other rights and privileges ; (b) Make-whole Ruth Mae Richardson for any loss of pay she may have suffered by reason of the respondent's discrimination against her by payment to her of a -sum of money equal to that which she normally would have earned as wages from the date of her discharge to the date of the respondent's offer of reinstatement, less her net earnings 21 during said period : (c) Post immediately in conspicuous places throughout the respondent's plant at Marshall, Michigan, and maintain fora period of at least sixty (60) consecu- tive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is recommended that it cease and desist in paragraph 1 (a) and (b) of these recommendations; (2) that the respondent will take -the affirmative action set forth in paragraph 2 (a) and (b) of these recommendations; and (3) that the respondent's employees are free to become and remain members of Amalgamated Clothing Workers of America, affiliated with the Congress on Industrial Organizations, and that it will not discriminate against any employee because of membership or activity in that or any other labor organization ; (d) Notify the Regional Director for the Seventh Region within ten (10) days from the date of the receipt of this Intermediate Report what steps the respondent has taken to comply herewith. It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report, the respondent notifies said Regional Director in writing that it will comply with the foregoing recommenda- tions, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. It is further recommended that the complaint insofar as it alleges that the respondent engaged in unfair labor practices by hiring and attempting to hire employees who would vote against representation by the Union, by requesting and requiring supervisory employees to attend union meetings, and to report to it on the number and identity of employees attending such meetings, and by interrogating employees concerning their union activities and, affiliations, be dismissed. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 26, 1943, any party or counsel for the Board may within fifteen (15) days from'the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of the said Rules and ItIegulations, file with the Board, Rochambeau Building, Washington, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all 21 See footnote 20, supra. S. H. CAMP AND COMPANY 277 motions or objections ) as he relies upon, together with the original and four copies of a brief in support thereof . Immediately upon the filing of such statement of exceptions and/or brief , the party or counsel for the Board filing the same shall serve a copy thereof upon each of the bother parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. ARTHUR LEFF, Trial Examiner. Dated September 11, 1944.