Dixie Shirt Co., Inc.

In the Matter of DIxiE SHIRT COMPANY, INC. and UNITED GARMENT WORKERS OF AMERICA, A. F. L. In the Matter of DixiE SHIRT COMPANY, INC. and UNITED GARMENT WORKERS OF AMERICA Cases Nos. 10-R-1734 and 10-C-1906, respectively.Decided August 27,1948 DECISION AND ORDER On May 26, 1947, Trial Examiner Mortimer Riemer issued his Intermediate Report 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 copy of the Intermediate Report attached hereto.' Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Respondent's request for oral argument is hereby denied, as the record, in our opinion, adequately presents the issues and positions of the parties. The Board 2 has reviewed the Trial Examiner's rulings made at the hearing, and finds that no prejudicial error was committed. The rulings are,hereby afT,rmed. The Board has considered the Interme- diate Report, the Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the additions and modi- fications hereinafter set forth. 1. The Respondent, in its exceptions, contends in effect that it was prejudiced by the issuance of an Intermediate Report by Trial Ex- aminer Riemer, who did not preside at the hearing, despite the avail- 3 Those provisions of Section 8 (1) and ( 3) of the National Labor Relations Act which the Trial Examiner found were violated are continued in Section 8_(a) (1) and (3) of the Act, as amended. Pursuant to the provisions of Section 3 (b) of the Act, the Boaid has delegated its powers in connection with this case to a three- man panel consisting of Chairman Herzog and Board Members Murdock and Gray. 79 N. L. R. B., No. 19. 127 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ability of Trial Examiner Greenberg, who did preside at the hearing.3 We do not agree. The Union, after the close of the hearing, filed a statement alleging bias and prejudice on the part of Trial Examiner Greenberg. Trial Examiner Greenberg denied bias and prejudice, but requested that he be relieved of further participation in the pro- ceeding. Thereafter, the Chief Trial Examiner advised the parties that they might, within 10 days, file a motion for a new hearing before another Trial Examiner, which motion, if filed, would be granted. The parties were further advised that, if no such motion was made, another Trial Examiner would be designated in place of Trial Ex- aminer Greenberg to prepare and serve upon the parties an Inter- mediate Report based upon the record already made. The Respondent made no motion for another hearing. Having failed to take timely, action, although afforded an opportunity to do so, the Respondent in effect waived the right to have a recommended decision prepared by the officer who had presided at the hearing.4 2. We agree with the Trial Examiner that the action of Abrams, the Respondent's vice president, in directing Horton to find out who was responsible for starting the Union and then to give the informa- tion to him, violated Section 8 (1) of the Act, despite the fact that Horton made no effort to comply with this direction. The Respondent thereby attempted to interfere with its employees' right to self-organ- ization, for the information sought could have been used by the Re- spondent for no other purpose but such interference. The fact that the Respondent's attempt did not succeed does not excuse the viola- tion. The test is whether the Respondent engaged in conduct reason- ably calculated or tending to interfere with the free exercise of em- ployee rights under the Act.' 3. We do not, however, agree with the Trial Examiner's findings concerning the speech made by Jack Cohen on March 18, 1946,6 and the statements made by the Respondent's supervisors ridiculing the Union and its leaders and disparaging the wearing of union buttons. The speech and the statements contained no threat or promise of bene- fit (Section 8 (c) of the Act, as amended). The Respondent, in its exceptions, also objects to the denial of its motion to dismiss the complaint, arguing that it was prejudiced by the joinder of the representation and com- plaint proceedings. We find no merit to this contention . Matter of Hoosier Cardinal Cor- poration, et at., 67 N. L. R. B. 49, footnote 1. National Labor Relations Board Rules and Regulations-Series 5, Sections 203 33 and 203.64. 4 Although the Administrative Procedure Act (60 Stat . 237) provides that the officer who presided at the hearing shall make the recommended decision , the legislative history of this Act indicates that this requirement may be waived by the parties . See Attorney General 's Manual on the Administrative Procedure Act, page 81, footnote 1. Such a waiver is implicit here in the Respondent 's failure to move for a new hearing when given the opportunity. 5N. L. R. B. v. Illinois Tool Works, 153 F. (2d) 811 , 814 (C. C. A. 7). See Matter of The Bailey Company, 75 N. L. R. B. 941. DIXIE SHIRT COMPANY, INC. 129 4. We agree with the Trial Examiner that the Respondent engaged in surveillance, and thereby further violated Section 8 (1) of the Act. In doing so, however, we do not rely on : (a) Abrams' instructions to Horton, because Horton in fact did not carry out Abrams' instructions; or (b) attendance by the comptroller's secretary at a union meeting, because the latter's activity cannot be attributed to the Respondent on the evidence in the record; or (c) the securing of reports about union meetings, because there is no credible and convincing evidence to that effect. 5. We agree with the Trial Examiner that the Respondent termi- nated Gaston's employment because of her union activities, and not, as the Respondent asserts, because of her misconduct. Gaston was admittedly an efficient employee, and had worked for the Respondent for 11 years. Although she had occasionally changed the size of stitches set by the Respondent on her machine, she was not repri- manded for this until after becoming president of the Union in January 1946. On one occasion, Gaston had improperly submitted another employee's piecework cards for payment. But she testified that this was an "honest mistake," and in any event the Respondent did not consider it a particularly serious infraction at the time, for, there is no evidence, that Gaston was disciplined for it. She was merely requested to, and did, repay the money. Significantly, none of these incidents was advanced as a reason for Gaston's dismissal until the hearing herein. At the time she was told merely that her dismissal was due to her violation of a company rule against taking materials out of the plant. As the Trial Examiner found, the meaning of the rule was vague; employees were in fact permitted to take scraps of material from the plant. Moreover, as Gaston testified, she had on previous occasions taken similar scraps from the plant without reprimand. In addition, on the occasion in question, Gaston made no effort to conceal her activity, having told her service girl that she was going to take the scraps home for dust cloths. And a week before the dismissal, when the Respondent appar- ently believed that Gaston would be convicted on pending charges of petty larceny for taking the scraps, the Respondent in effect stated that it would reinstate her if she were acquitted, as she later was. It is true that, when Gaston offered to discontinue her union activi- ties if she were reinstated, the Respondent nevertheless did not rein- state her. However, to have reinstated her at that time would have been, in effect, an admission that her prior discharge had been discrim- inatory. We are not persuaded that the dismissal was not discrimina- tory merely because Respondent refused to make this admission. Under all the circumstances, we are convinced and find, as did the Trial Examiner, that the reason for Gaston's discharge was not her 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD taking the scraps of material or the other conduct later asserted by the Respondent, but her union membership and activity. 6. We agree with the Trial Examiner that the election held on March 20, 1946, among employees at the Respondent's Greenville and Spartanburg plants, should be set aside. We do not, however, rely upon the Respondent's refusal to permit certain alleged employees to enter the plant to cast ballots, but base our decision on the unfair labor practices of the Respondent that occurred during the 2 months im- mediately before the election. We shall therefore order the election set aside. Because more than 2 years have passed since the election, ire shall dismiss the Union's petition, without prejudice. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Dixie Shirt Com- pany, Inc., Spartanburg, South Carolina, and its officers, agents, suc- cessors, and assigns, shall: ° 1. Cease and desist from : (a) Discouraging membership in United Garment Workers of America, affiliated with the American Federation of Labor, or in any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminat- ing 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 United Garment Workers of America, affiliated with the American Federation of Labor, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection 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 Dorothy Gaston immediate and full reinstatement to her former or a substantially equivalent position, without prejudice to her seniority or other rights and privileges; (b) Make Dorothy Gaston whole for any loss of pay 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 would normally have earned as wages during the period from the date of her discharge DIXIE SHIRT COMPANY, INC. 131 to the date of the Respondent's offer of reinstatement, less her net earnings during said period; (c) Post throughout its plants in Greenville and Spartanburg, South Carolina, copies of the notice attached to the Intermediate Re- port, marked "Appendix A."' Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respond- ent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Tenth Region in writing within ten (10) days from the date of this Order, what steps the Re- spondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed, insofar as it alleges that the Respondent instructed its super- visors to deny their authority and vote in the election. IT IS FURTHER ORDERED that the election held on March 20, 1946, among employees of the Respondent be, and it hereby is, set aside. AND IT IS FURTHER ORDERED that the petition for investigation and certification of representatives of employees of the Respondent filed in Case No. 10-R-1734 by United Garment Workers of America, A. F. L., be, and it hereby is, dismissed, without prejudice. MEMBER GRAY, concurring in part and dissenting in part : I disagree with the conclusion of my colleagues concerning the dis- charge of employee Gaston. The Respondent contends that Gaston was discharged for an accumulation of offenses which culminated in her taking "scraps" of material home without proper permission. In my opinion, the preponderance of the evidence supports the Respond- ent's, contention that Gaston was discharged for cause. It is clear, as the Trial Examiner found, that over a considerable period of time prior to her discharge, Gaston repeatedly changed the number of stitches on her machine above the permitted tolerance, thereby increasing her earnings at the expense of producing a product of inferior quality. She continued this practice despite warnings to adhere to the required manufacturing standards. ' Said notice, however, shall be amended by striking from the first paragraph thereof the words "The Recommendations of a Trial Examiner" and substituting in lieu thereof the words "A DECISION AND ORDER ." In the event this order is enforced by a decree of a Cir- cuit Court of, Appeals, there -shall be inserted, before the words, "A DECISION AND ORDER," the words "A DECREE OF THE UNITED STATES CIRCUIT COURT OF AP- PEALS ENFORCING." 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In addition, Gaston admitted that in April 1946 she presented for payment to herself, six job tickets issued to another employee months earlier. The Trial Examiner concedes that this conduct in itself was serious enough to warrant her discharge but rejects it as a defense because the Respondent "did nothing about it" at that time. However, the Respondent's position is not that she was discharged for this mis- conduct alone, but for an accumulation of offenses of which this constituted merely one. The final incident which precipitated her discharge occurred on May 8, 1946, when Gaston, without proper authorization, took home large pieces of broadcloth "scrap" which, she admitted, could be used for cuffs and sleeve. facings. It was admitted that in 1945 a rule was posted in the plant to the effect that employees taking materials for personal use without proper authorization would be discharged and prosecuted. In addition, there is undisputed testimony in the record, not discredited by the Trial Examiner, that in 1946 Personnel Man- ager Lottie Cohen announced over the PA speaker that employees would not be permitted to take any bundles out of the plant without approval. While Gaston claimed that her service girl, Foster, ac- quiesced in her taking of the cloth, it is clear that Foster was not a supervisor and had no authority to give such approval. If, in discharging Gaston, the Respondent were solely motivated by her union membership and activities, as the majority finds, it would have reinstated her when, according to the uncontradicted testimony of Lottie Cohen, Gaston offered to discontinue her union activities if she would be reinstated. Instead, Lottie Cohen replied that union activities did not enter into the motivation for the discharge. Finally, even if the Respondent were in part motivated by Gaston's incidental union activities, as the Trial Examiner at one point found, this Board would have no authority under the amended Act to reinstate her be- cause her discharge was also for cause. I would dismiss the complaint insofar as it alleges that the Re- spondent violated the Act by the discharge of Dorothy Gaston. INTERMEDIATE REPORT Mr. M. A. Prowell, for the Board. Messrs. L. W. Perrin and L. W. Perrin, Jr., of Spartanburg, S. C., for the respondent. Mrs. Mary Sue Densmore, of Birmingham, Ala., for the Union. STATEMENT OF THE CASE Upon a charge duly filed by United Garment Workers of America, affiliated with the American Federation of Labor, herein called the Union, and objections to a pre-hearing election in Case No. 10-R-1734, held on March 20, 1946, the National DIXIE SHIRT COMPANY, INC. 133 Labor Relations Board, herein called the'Board, pursuant to Section 203.58, Sub- section (c) (2), and Section 203.42 (b) of National Labor Relations Board Rules and Regulations, Series 4, by Order dated September 13, 1946; directed that the above-captioned cases be consolidated. Upon a first amended charge, duly tiled by the Union, amended petition for cer- tification of representatives, and the Order Consolidating Cases referred to above, the Board, by its Regional Director for the Tenth Region (Atlanta, Georgia), issued its complaint dated September 25, 1946, against Dixie Shirt Company, Inc., herein called respondent, alleging that the respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. A copy of the complaint, with notice of hearing on the allegations set forth in the complaint and upon the question of representation which had arisen by reason of the afore-mentioned petition, was duly served upon the re- spondent and the Union. With respect to the unfair labor practices the complaint alleged in substance, that the respondent had (1) discharged Dorothy Gaston on or about May 8, 1946, because of her concerted activities on behalf of the Union; (2) through its supervisory employees, persuaded, threatened and warned employees not to become or remain union members ; solicited employees to act as informants on union activities and kept persons engaging in union activities under surveillance ; (3) refused admittance to voters to the polling place and instructed supervisory employees to deny their authority and vote in the election, thereby interfering with the free determination of a collective bargaining agent in the election held on March 20, 1946; and (4) interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent filed both an answer and a demurrer on October 4, 1946. In its demurrer, respondent asked that the complaint be dismissed on the grounds that there had been an improper joinder of causes, consolidation having been made er parte without notice to the respondent, and the allegations of the com- plaint were indefinite, vague and uncertain. This latter motion having been referred to Trial Examiner George Bokat, was by Order, dated October 7, 1946, denied. The answer admitted the jurisdictional allegations of the complaint but denied that the respondent had engaged in any unfair labor practices. Pursuant to notice, a hearing was held at Spartanburg, South Carolina, from October 14 to 17, 1946, before Isadore Greenberg, the Trial Examiner duly desig- nated by the Chief Trial Examiner. The Board and the respondent were repre- sented by counsel and the Union by its international representative. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues. At the close of the hearing, a motion by counsel for the Board to conform the pleadings to the proof with respect to formal matters was granted without objection. Both. counsel for the Board and the respondent presented oral argument and the latter was granted time within which to file a brief. There- after no brief was received. At the outset of the hearing, counsel for the respondent moved to vacate the Order of Trial Examiner Bokat, previously entered, denying its motion to dismiss the complaint. As grounds for renewal, it was asserted that the Order Consolidat- ing Cases was made without notice to the respondent ; violated established prin- ciples of law ; and was a denial of due process. Trial Examiner Greenberg denied the motion. 809095-49-vol. 79-10 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After the close of the hearing on October 17, 1946, Trial Examiner Greenberg requested that be not participate further in this proceeding. The said Trial Examiner not having prepared and issued an Intermediate Report, the Chief Trial Examiner, by Order dated October 23, 1946, relieved Trial Examiner Green- berg of any further participation in the case. The Order gave the parties 10 days within which to move for a new hearing, in which event the parties were advised that another Trial Examiner would be designated to rehear the case and prepare and issue an Intermediate Report thereon. The parties' were also advised that in the absence of a motion for a new hearing, another Trial Exam- iner would be designated in place of Trial Examiner Greenberg for the purpose of preparing and serving upon all parties an Intermediate Report on the record. No such motion having been made, the undersigned Trial Examiner , Mortimer Riemer, has been designated by the Chief Trial Examiner to act herein and in- structed to prepare and issue this Intermediate Report on the record so made. The undersigned, having read the record and examined all exhibits offered and received and upon the basis of all of the foregoing, therefore makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Dixie Shirt Company, Inc. is a South Carolina corporation with its principal office in Spartanburg, South Carolina . It operates one plant near Spartanburg, herein called the Spartanburg' plant, and another in'Greenville, South Carolina, herein called the Greenville plant, where it is engaged in the manufacture of men's shirts. During the year ending March 20, 1946, the respondent purchased raw ma- terials consisting principally of cloth, thread, buttons, and other supplies, 70 percent of which, in value exceeding $50,000, was purchased outside the State of South Carolina and shipped to its plants. During the same period the re- spondent sold and caused 90 percent of its finished products , valued in excess of $500,000 to be delivered and transported outside the State of South Carolina. The respondent concedes that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED United Garment Workers of America, affiliated with the American Federation of Labor , is a labor organization admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The respondent's reconversion from production of military goods to a civilian basis in January 1946, was the occasion for an address to certain employees of the Spartanburg plant, by Harry S. Abrams, its vice president and treasurer. In his remarks made about January 21, Abrams stated that reconversion to civilian production necessitated promulgation of new piece work rates , to become effective on February 4. Whether Abrams in fact stated that piece rates would be cut is not clear . But that they were so interpreted is manifest . Following Abrams' anhouneementof piece rate evaluation , some employees went to ' Morris R: Galle, at the time the plant superintendent , and complained to him that their wages were being cut. - DIXIE SHIRT COMPANY, INC. 135 The employees' interest in the Union, its organization and the union campaign ,that thereafter ensued, all had their inception in Abrams' talk. Dorothy Gaston protested the proposed piece rate change to Abrams but was told that her personal problems were no concern of his and if Gaston was dissatisfied she could quit. Sewing department employees disturbed by what they believed would result in wage cuts, "decided" that they '*needed a union'* Thereupon Gaston, who was employed as an operator in the sewing department, approached Gordon L. Chastain,. an'-A. ,F. of L. organizer. Gaston discussed with Chastain plans to organize the responjlent'i; employees. The first meeting of the respondent's em- ployees was held .bout January 25, in the Spartanburg Central Labor Union Hall, with about 25 employees in attendance. The next day, January 26, Chastain gave Gaston about 150 union application cards and on Monday, January 28, Gaston reported that the supply of cards was exhausted and asked for more. The second union meeting held the night of January 28, was attended by between 150 and 200 employees . Bess Upshur, secretary to Harry Bromberg, then respondent's comptroller, told Gaston that she was present at this meeting, not to join the Union, but "to see what it was all about." The next morning, Chastain telephoned Abrams and reported that the employees were disturbed about the possibility of wage cuts. He asked Abrams for a conference to discuss reported grievances and achieve an agreement that would settle the discontent. Abrams replied that he had no knowledge of a union in the plant. Sometime during the last remaining days in January , Abrams again addressed the employees. On this occasion Abrams stated that because of a price increase on shirts, the respondent's piece rate would remain unaffected , and that the respondent would increase its guaranteed hourly rate to 60, 65, and 70 cents an hour, depending on employees' tenure of service. This represented a sub- stantial advance in the guaranteed rate. In the case of employee Nettie Dale, for example, it meant an increase in her guaranteed rate of from 55 to 70 cents an hour. The new rates became effective about February 4, 1946. At the hearing counsel for the Board urged that the foregoing announcement of wage increases, although not specifically alleged as such , nonetheless consti- tuted an unfair labor practice as part of a general pattern to interfere with the election and defeat the Union. At this time in the history of the Union's organ- izing efforts there had been no mention of an election . Absent any later unfair labor practices, the wage increase would be of little significance. But in view of later developments , the undersigned is persuaded that the announcement was timed as a preliminary step in respondent 's campaign to defeat the Union. No finding of unfair labor practice -is predicated upon the giving of the wage increase. As a result of Chastain's representations, the respondent knew of the Union's presence. But in addition it sought through other means to obtain information about the Union's activities. Eliza Horton, employed as an assistant floor girl in the inspecting department, testified without contradiction that in January, Abrams queried her about news of the Union; who was responsible for starting it; and told her "to find out" and relay the information to him. It is so found. Thereby the respondent violated Section 8 (1) of the Act. Following the Union's first meeting and up to February 11, a number of other meetings were held. On one occasion early in February , Gaston saw "Coke' Curry, foreman of the'•shipping room, sitting in a car opposite a union gathering. According to Gaitonc;uncontradicted testimony, which is credited, Curry re- mained there for about 45 minutes , during which time Gaston spoke to him and asked if he was going to the Union 's meeting. This incident is considered here- 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' after in connection with other evidence introduced in support of the allegation of surveillance. At a time not clearly fixed by the record, but probably in early February prior to the first union conference with the respondent, instructions had been issued to supervisors to maintain an attitude of impartiality towards the union ac- tivities of the employees. According to Galle, the instructions were : At no time, under no circumstances , in any manner whatsoever, discuss with any employee of the Dixie Shirt Company, favorably or unfavorably union, any union activities or their possible connection with them. These instructions were issued verbally to department heads, never posted or publicized and not passed along to subordinates below the rank of department heads. Despite these instructions, it is clear from events related hereafter, that they were not of controlling effect and violated by Lesponsible supervisors on more than one occasion. In the meantime, in the forepart of February, Chastain was in communication with Harold Cohen, respondent's president, about conditions in the plant. On one occasion, Chastain told Cohen supervisors were stating to employees that the plant would close if employees joined the Union. He also asked Cohen to caution Abrams about antiunion utterances. Cohen later informed Chastain that he had issued instructions of neutrality concerning union affairs to all super- visors. On yet a later occasion, Chastain sought, through Abrams, to obtain a conference to discuss recognition Chastain reported to Abrams that discon- tent was running high and that a walk-out was threatened unless "discrimination" ceased. Finally on February 11, Chastain was able to arrange a conference for February 13. At this first conference, the Union conferees were Chastain and Representatives Densmore and Pollard, none of whom were employees The respondent was represented by Messrs. Harold Cohen, Abrams, and Kromberg. Chastain asked Harold Cohen to permit an employee committee, selected at a previous union meeting, to attend the conference. Cohen refused on the ground, as Chastain testified without contradiction, that lie was not "aware of the fact there was a union in the plant." According to Chastain's further uncontradicted testimony, he placed approximately 400 signed application cards on Cohen's desk and offered either to let Cohen question each applicant as to the genuineness of the signature, or line up the union members and allow Cohen to talk to them in order to prove the Union's majority and obtain recognition for the employee committee. Cohen refused and denied the presence of the Union within the plant. He stated further that the Union would "run [him] out of business." While the afore-mentioned conference was in progress, Galle spoke to Gaston and asked her to keep the girls on their jobs and "everything quiet in this building while it is as hot as it is." A few minutes later, Lottie Cohen, secretary of the respondent, also. asked Gaston "to keep the girls on their jobs and keep everything quiet." When Gaston inquired why she was approached, Lottie Cohen answered that the "whole union centers right around you." The fore- going findings are based upon Gaston's testimony. Galle did not deny the statement attributed to him. Lottie Cohen did. Although these remarks can- not be considered intimidatory and hence violations of the Act, nonetheless they do reflect the respondent's association of Gaston with leadership in the Union and her influence over other employees At or about the same time, Harold Wilson, the cutting room foreman, warned employee Juanita Dunagan that DIXIE SHIRT COMPANY, INC. 137 union membership would jeopardize her future and that she would regret her membership in it. This finding is based on Dunagan's uncontradicted testimony. About February 25, according to Gaston's testimony, the following incident occurred: . . . Mr. Galle came to me one of the many times that he did come, and he said, "Dorothy, you had better think a long time before you take the lead in this union." He said, "If you take the lead, that you will be fully responsible for all the girls in the plant and whatever happens you will have to take it." Galle denied these remarks attributed to him by Gaston. He testified further that he followed the respondent's neutrality instructions. The undersigned had no opportunity to observe the candor and demeanor of witnesses. Findings arising out of conflicts in testimony must be based on a reasonable interpretation of that testimony as well as the entire record for what light it sheds on particular seg- ments of disputed evidence Herein, it has been found, based upon Gaston's undisputed testimony, that on February 13, Galle solicited Gaston's help in keep- ing "everything quiet," indicating a disposition, if nothing else, to look upon her as a union leader. In addition there is a pattern of anti-union remarks by super- visors, other than Galle, showing how lightly instructions of neutrality were treated. The undersigned concludes and finds that Galle made the remarks ascribed to him by Gaston, and that thereby Gaston was warned about her union activities. Immediately following the conference of February 13, mentioned heretofore, the Union filed a petition for certification of representatives. Pursuant thereto, a meeting was held on February 27, in the office of respondent's counsel. This time the employee committee was present. Agreement was reached on a unit to be voted in a forthcoming pre-hearing election At the hearing, counsel for the Board and respondent stipulated, that all production and maintenance employees of the respondent's two plants, except office employees, clerical employees, and deputized watchmen and all supervisory employees with authority to hire, pro- mote, discharge, discipline, or effect changes in the status of employees or effec- tively recommend such action, constituted an appropriate unit for the purposes of collective bargaining This is the unit set forth in the Board's Notice of Election for the respondent's employees The election was noticed for March 20, between 1and 5p.m. The record indicates that the month of March, prior to the election, was a busy one both for union adherents and the respondent's officials and supervisors. About March 6, Altalene Thornton and a group of about 10 girls saw Abrams about a raise. During the course of the conversation, according to Thornton, whose testimony is not contradicated and corroborated by that of other witnesses, Abrams stated that if the Union organized the plant, "some big stinker" would accompany the girls on future meetings with him and that union representatives "were cheaper than dirt." The evidence indicates that the Union's efforts to organize up to this time were by traditional methods, devoid of invective or calumny. Under these circumstances, Abrams' characterization of union repre- sentatives seems neither called for nor justified. It was intended clearly to dis- parage the Union and its leaders. It is so found. As the date for the election approached other supervisors entered into the campaign of union ridicule and derision. Union members had grown bolder and the wearing of union buttons became quite general in the plant. Included therein as wearers, were a group of pressers in the laundry under Foreman 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Massa. A number of these employees testified without contradication , that Massa, stated that tho union buttons they wore would cause a reduction in their wages- of from 50 to 45 cents an hour and force them to wash dishes for a living. Bernice Alexander, one of the witnesses who so testified , although still employed, no longer wears her union button . At or about the same time , Floorlady Hender- son rudely jostled employee Janelle Wofford's shoulder and asked her if she wore a union button . Daisy Graham, an operator.- who'•sat next to Wofford, told Henderson that it was not necessary to "pull" Graham to observe her button and she showed it to Henderson. Other acts expressive of the respondent's attitude towards the Union occurred with frequency as the election day neared Unless otherwise indicated the find- ings hereafter made are based upon unimpeached testimony. On March 16, Abrams accused Horton of infidelity to the respondent . It will be recalled that shortly after the Union had appeared in the plant. Abrams asked Horton to. report to him any information she acquired about the Union . She was told to go out and "find out about it." Now, Horton was accused of befriending the Union. Horton declared her neutrality and stated she had not given advice, "to vote for the union or against them." Abrams however countered that Horton could give advice provided it was "in favor of Dixie Shirt Company." On March 17, the Union distributed a leaflet of conventional type appealing to the employees to vote for the Union. The leaflet is devoid of partisan attacks against the respondent and contains no material or statements which can be held reasonably to be offensive . It stated that the Union could assist the employees in receiving: (1) Wage Adjustments: (2) Paid Vacations; (3) Reasonable Production; (4) Seniority; (5) Job Security; (6) Overtime For Over S Hours In One Day And Many Other Things .. . On the afternoon of March 18. an announcement was made over the respond- ent's PA system directing all employees to go to the shipping department. They gathered these at about 3 : 30 p in. On assembling , Abrams told the em- ployees that there had been a lot of "talking" in 'the plant for the past 6 weeks and the time had now come for the respondent "to do a little talking." There- upon he introduced Jack Cohen, respondent's president from 1931 to 1946, and at the time of the incident, chairman of its Board of Directors. Cohen read from a manuscript, a copy of which was introduced in evidence , departing at times from the prepared text to refer to the afore-mentioned union leaflet. Cohen spoke for approximately 45 minutes and then instructed the employees to clock- out and stated that they would be paid for the time spent in listening to him. Cohen testified that he made his remarks because of his friendly feeling toward the employees ; because hatred was being engendered by the Union's campaign;. because of aspersions cast upon his religious faith ; and because he believed it was time to state his "side of the story ." There is no evidence of anti-Semitic remarks on the Union's part, unless Cohen had reference to a statement in the Union's leaflet, that the Union was "truly a 100 percent American organization." The prepared text follows in form , addresses of a similar nature which have made their appearance following the court decision in the gnicrican Tube Bend- ing case.' Cohen pointed out that the Union could not obtain advantages for the employees and that only the, respondent . could,,grant benefits. He stated that the employees could vote for or against the Union and if they believe that 144 N L. R. B 121; set aside in N L. R B. V. American Tube Bending Co, 134 F (2d) 993 (C. C. A 2). 0.1 DIXIE SHIRT COMPANY, INC. 139 the Union did not represent their best interests they were free to vote against it in the forthcoming election. Cohen related that while the respondent had no desire to commit any act or make any statement which might influence the employees' vote it was nonetheless the respondent's opinion that the employees should vote against the Union or otherwise they would be surrendering to the Union, control over their right to work. He pointed out that no official would bear any "hard feeling" against any employee for becoming a member of the Union and engaging in union activity. Cohen remarked that the respondent's employees had never struck and the only employees who ever did were those who came under the control of a union. He urged all the employees to vote and repeated that in the respondent's opinion they would be "better off without a Union," but that the respondent would abide by the election results. He con- cluded by an appeal for confidence in the respondent and a vote for "peace and unity now and forever more." Gaston testified that she made a copy of Cohen's remarks when he departed from his prepared text and referred to the Union's circular. Cohen denied that he departed from the prepared text but acknowledged that he referred to the Union's circular. If a finding would be decisive of any point in issue, the under- signed would find on the basis of the record that Gaston's notes reflect departures from the prepared text. However, the content of Gaston's notes is not substan- tially different from the tenor of the prepared address. Cohen clearly indicated in his address, that in the respondent's opinion the employees would be doing the wise thing by voting against the Union. He went no further in any departure from the text. Without evidence of other unfair labor practices, such as is found in this proceeding, this speech, by reason of recent Board and Court decisions, would come under the protection of the First Amendment! The speech when • considered, however, in connection with other acts of respondent's interference, must be condemned because it is but part of a concerted effort to interfere with the rights of the employees. About a day before Jack Cohen delivered his speech, Mrs. Curry, forelady of the boxing department, asked Lottie Chapman what she thought about the Union. Chapman replied that she did not "think anything." Thereupon Curry stated that if Chapman joined the Union, Curry would lose her job and her home. On March 19, following Cohen's speech, Curry told Chapman that Cohen "was right" and asked what Chapman now thought about it. A fair evaluation of this testi- mony would indicate that Curry was suggesting that Chapman vote, as Cohen had advised, against the Union. Henrietta Woodruff was also asked by Curry what she. thought of Jack Cohen's speech and failing to give a responsive reply was thereafter approached by Foreman Massa. Massa inquired what Woodruff thought about the election and stated that the Union would not achieve any benefits for the employees. On the same day elsewhere in the plant, Floorlady Henderson told Daisy Graham that the "girls" would be "better off without a union " Henderson added that she was supposed to be neutral but nevertheless believed that the employees would be better off without a union. She cited as an example, for her statement, a strike of union employees at Gaffney, South Carolina, and as another example, the fact that union employees of a knitting mill were forced to pay fines. Henderson, on the same day, also asked Lelia Davis 2 The theory of the "compulsory audience" was not' specifically litigated as a violation of Section 8 (1) of the Act. In view of the fact that the allegations of the complaint relate to the character of Cohen's statements, for the reasons indicated in Chairman Herzog's opinion in Matter of Fisher Governor Company, 71 N. L. R. B. 1291, the undersigned does not pass upon that question 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD how she was going to vote in the election. Henderson expressed her opposition to the Union and told Davis that if she wanted to "stay on the good side" of Hen- derson, Davis would vote Henderson's "way" against the Union. In all of the foregoing incidents, the employees also testified that they were not intimidated or coerced by the statements of the supervisors and that they voted freely in the election. In effect, counsel for the respondent contends that regardless of the supervisors' conduct the Act was not violated because the.em- ployees were able to freely express their choice. The Board has frequently passed upon this very issue. In Matter of Swift & Company, it held : we are not constrained to give much weight to the failure of employees to testify in the language of legal conclusion to the effect of employer con- duct which must be ascertained by an evaluation of the normal conse- quences of the employer's activitiy. That particular employees disclose a continuing interest in a labor organization following anti-union conduct by an employer does not establish that they or that other employees were not interfered with, restrained, or coerced. It is impossible to estimate what might have been the size of the [Union's] membership or the scope and nature of its activities had it not been for these anti-union activities of the respondent. The reasonable inference is that anti-union conduct of an employer does have an adverse effect on self-organization and collective bargaining, [citing cases] else the Congress would not have passed the Act. The precise issue for determination is whether the acts of the respondent constituted interference with, restraint, or coercion of its employees in the exercise of the rights guaranteed in Section 7 of the Act. Evidence con- cerning the effect or lack of effect of the respondent's acts on particular in- dividuals is clearly not decisive of this issue. Having considered the evi- dence relied upon by the respondent in this connection, we find that it does not warrant a finding that the respondent has not interfered with, re- strained, or coerced its employees.' The undersigned rejects the respondent's contention as being without merit. On March 19, the Union committee wrote Cohen a note. In a union organiz- ing campaign carried on in an atmosphere of mutual respect and honest opposi- tion there would be no excuse for an incident of this nature. But the respondent herein had already joined issue with the Union. While preserving the fiction of neutrality, its supervisors were engaging freely in anti-union conduct thereby giving support to Cohen's opinion that the employees would be wise in voting against the Union. Under these circumstances, this communication of the Union is understandable. Itsc contents follows : DF--,R JACK-You should have had Coke Curry bring you an onion yester- day instead of water-Your speech might have been a little more effective if you had cried a little. Very well do we remember when we made three dollars a week and-with an onion-you wept and convinced us then, and the very next day you drove up to the plant in a brand-new automobile. You must be up to something like that now but you aren't fooling anybody but yourself this time! We have your complete speech and will read it back to you after the election in Federal Court. You aren't scaring anyone either ! The Union will win the vote tomorrow and your employees will at last begin to have something to say about the conditions under which they work. We 3 30 N. L R. B. 550, 564, 565. DIXIE SHIRT COMPANY, INC. 141 will see you at the conference table when we draw up the first union con- tract. Drawn up by the Local Union Committee The communication furnished the occasion for another speech which was de- livered on the day of the election. On this occasion at about 8: 30 in the morning all employees were ordered to the shipping room by announcement which came, over the PA system. Here they were addressed by Lottie Cohen who spoke to them for about 72 hour reading from the text of another prepared speech. The employees were paid for the time spent listening to Lottie Cohen. Lottie Cohen referred to the afore-mentioned union letter and attacked the cowardliness of those who would send out an unsigned communication. She stated that the employees had the "unquestioned" right to join the Union ; the respondent had no intention of defeating that right ; and the employees' action in selecting the Union as its bargaining agent would not affect their positions with the company. She asked the employees to decide, however, if it was in their best interest to vote for the Union and to surrender their rights or whether they wished to remain independent and do their own "trading without outside inter- ference." She made the point that the employees had been misled into believing that the Union was a democratic organization. Actually, she stated that its policies were directed by national officers and that local members had nothing to do with the formulation of their policies. But whether they were union members or not, would not affect their relations with the respondent. Even before the Union had been designated as the employees' representative, Lottie Cohen in- jected the idea that selection of the Union would inevitably result in some form of union security which would require union members to pay dues, fines and assessments, all of which would be deducted from pay checks The under- signed does not believe that respondent was here anticipating what it would be willing to grant the Union as part of a contract but was rather deliberately injecting a false issue in order to scare its employees and bolster the votes against the Union. Other arguments and statements in this speech were similar in form and con- tent to those made by Jack Cohen on March 18. Lottie Cohen stated that the election would be secret and that the employees could vote for or against the Union regardless of whether they had signed membership cards and that the respondent would abide by the result of the election. All employees were urged to vote. Following•Lottie Cohen's address, employees returned to work. Voting took place that afternoon between the hours of 1 and 5 p. in. in the plant. Before the voting took place, however, other incidents occurred which char- acterized the respondent's professed good faith and indicate quite clearly in the undersigned's opinion that it was not willing to let its employees alone decide the issue of their collective bargaining representative. As the employees were returning to work after listening to Lottie Cohen, Foreman Massa told Homer Ferguson that he wanted to talk to him about the Union. He remarked that Ferguson was not making enough money to take care of both the Union and his family. Massa calculated on a piece of paper that Ferguson earned $25 a week out of which he would be forced to pay the Union a dollar and he would not have enough left over to take care of his family. Ferguson asked Massa why the respondent was opposed to the Union and Massa answered that the respondent could do more for the employees than the Union. Ailene Black, a clerical em- ployee, told Eliza Horton that assistant floorladies could vote in the election and if they were challenged, they were to deny their supervisory status and insist upon the right to vote. Horton apparently followed this suggestion, 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attempted to vote and was challenged Curry asked Chapman just prior to the election, if she had "made up [her] mind." Chapman replied that she had but did not indicate what her decision was. Tina Bellflower, the general forelady of the sewing department, came into Curry's department before the voting took place and in the presence of employees engaged in a conversation about the Union with Curry. Curry asked Bellflower what she thought of the Union. Bell- flower stated in such a fashion that her remarks were overheard, that she did not care for the Union and that it caused "folks to starve to death" ; and refer- ring to the Gaffney strike, remarked that those employees were starving and that nobody would hire them. Josephine Robertson who overheard these remarks, testified without contradiction, that in addition Bellflower also stated that the respondent's employees at Greenville were going to vote against the Union In the election that was held that afternoon some 577 valid ballots were counted of which 291 were against the Union and 286 for the Union. There were 25 challenged ballots. The agreed-upon unit for voting in the election excluded all office and clerical employees and all supervisory employees with authority to hire, discharge or discipline employees or effectively recommend such action. It was stipulated at the hearing that the 25 challenged ballots were those of employees who should be excluded from the unit for the reasons indicated by the challenge. Twenty-two challenges were made by the Union because the attempted voters possessed some form of supervisory status or were in other categories, such as clerical, clearly excluded from the unit. On March 21, following tabuluation of the election result, Abrams announced the outcome over the PA system stating that the employees were "free agents." Abrams also spoke to Gaston, and according to her,uncontradicted testimony, said : Now, let's go back to work in peace and harmony . . . I don't feel like we have won anything; if we had won this election by 200 votes, I would say we had won it, but, . . . I do know that you have a majority in this plant that belongs to the union. . . . I won't tell you that we want a union ; we don't want a union, but we won't do anything until we have to defend ourselves again, and then we will fight again. Abrams also told Gaston that before "this thing was over" Gaston was going to cost the respondent $10,000 According to Gaston, shortly after she finished her conversation with Abrams, Galle, the superintendent, came up to her machine and told her that the "girls" would be sorry when they got the Union in the plant : it was a "damn nuisance" ; and he threatened to close the ladies' rest rooms because the employees spent too much time there gossiping about the Union. With respect to this testimony, Galle could not remember any reference to the Union as a "damn nuisance" nor could he recall any threats to close the ladies' rest rooms. The undersigned for the reason heretofore indicated in resolving other conflicts in the testimony of Gaston and Galle, credits the afore-mentioned testimony of Gaston and finds that Galle made these remarks substantially as attributed to him by Gaston One day early in April, before starting time, Gaston was signing and dis- tributing some union cards pertaining to insurance benefits for union members. While this was being done, Bellflower walked over to Gaston's bench and warned her that this was not permitted in the plant Gaston explained that, she was doing this on her own time but Bellflower replied that it made no difference as long as it was within the plant. The next day Bellflower directed Gaston to see Abrams. Upon doing so, Abrams told Gaston that it had been reported to him DIXIE SHIRT COMPANY, INC. 143 that Gaston was signing cards in the plant. According to Gaston's uncontradicted testimony, Abrams said : You told l.}er [Bellflower] that what you did on your own time was your business, but I tell you that as long as you work for us you will abide by our rules or you won't work here. I forbid you to use your influence in any way in this plant to get anybody to join the union. If you do, I will be forced to dismiss you. There is no record evidence of any plant rule prohibiting solicitation of union membership or the transaction of incidental union business such as the distribu- tion of insurance benefit cards to employees during non-working hours. The undersigned assumes that the non-discriminatory prohibition by the respondent of this type of activity by Gaston on the respondent's time would have been clearly within the prerogative of management. It seems clear, however, that what Abrams did was to curtail the right of the Union to utilize the non-working time of its employees to assist the Union. In N. L. R. B. v. Republic Aviation Corp., 142 F. (2d) 193, it was held, the Supreme Court affirming the holding in .324 U. S. 793, that Section 7 of the Act was properly construed by the Board as conferring upon employees the right to solicit membership and "electioneer" .on behalf of labor organizations within the plant in which they worked except during working hours. Curtailment of that right by an employer, it was held, constituted an unfair labor practice, unless the employer could justify such limitation by showing that to permit solicitation during non-working hours would result in detriment to plant discipline or efficiency so substantial as to warrant -overriding the employee interest involved. The respondent made no such showing in the instant case. It follows under the rule of the Republic Aviation case, that regardless of the factor which moti- vated Abrams' announcement of the rule, its application to the kind of activity 'Gaston was engaged in during non-working hours was an illegal invasion of rights which the statute guarantees to employees. B. The issue of surveillance The complaint alleges that the respondent through its officials and supervisors -kept persons engaging in union activities under surveillance. The testimony in -support of this issue is in the main confined to three or four incidents. The initial ^ incident is alleged to have occurr6d the time the Union held its first :meeting. According to the testimony of Chastain and Gaston they saw Harold -Cohen, the respondent's president, twice drive past the Carolina Theater in -Spartanburg, while a number of the employees were outside preparatory to going -to their meeting. Harold Cohen did not testify. The Carolina Theater is one -of Spartanburg's leading theaters and is located on one of its main thorough- fares. Chastain acknowledged that he saw nothing unusual in Cohen's actions. The undersigned concludes on the basis of the foregoing testimony that no finding can or should be made that thereby the respondent engaged in surveillance. Gaston testified that on one occasion after work. while she and a Field la'•x- aminer of the Board were on their way to Greenville in connection with the Board's investigation, she observed Jack Cohen in his car backed off the highway. She testified that on yet another occasion. she observed a car, which she identified as belonging to Lottte Cohen, this, time being driven by Harold Cohen. This oc- curred at about 10 o'clock in the evening, when admittedly Gaston's opportunity for identification would be affected by conditions of light. There is finally testi- mony concerning an incident in which Jack Cohen allegedly played a part. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to Doris Hadden, Gaston told her one day in the presence of Bell- flower that Gaston would visit Hadden's home the following Sunday. Hadden testified that on the Sunday in question, she observed Jack Cohen pass three or four times by her home which stood on a side street in a mill village some 14 miles from Spartanburg. Hadden's testimony concerning this incident is at best confused. Cohen denied that he ever engaged in any acts of surveillance. He testified further that he had no interest in Gaston outside the plant. The under- signed credits his testimony and makes no finding of surveillance based upon the foregoing testimony of Gaston and Hadden. There is, however, to be considered in connection with this issue of surveillance, the undisputed testimony that Abrams had asked Eliza Horton to check on activities of the Union and report them to him. Furthermore, it is clear that Horton was accused later of being friendly towards the Union and not keeping Abrams fully informed. Moreover, there is the clear and undisputed evidence that Foreman Curry was seen for a period of about 45 minutes sitting in an auto- mobile opposite a union gathering and that when spoken to by Gaston made no effort to leave or explain his presence. There is also evidence in this record that the respondent secured reports of what transpired at union meetings and refer- ence has heretofore been made to the fact that Bess Upshur, the respondent comp- troller's secretary, attended the second union meeting and stated that she came to see what it was all about. On the basis of the record as a whole, the undersigned is of the opinion that the record does support the allegations of the complaint that the respondent did: engage in surveillance of the Union and its activities. It is so found. The foregoing covers in substantial detail the relations between the respondent and the Union from the time that Abrams first announced readjustment of piece rates, down to April 1946. The findings are for the most part based upon uncon- tradicted testimony and where controverted, are consistent with the general pattern of the respondent's opposition to the Union. It seems reasonably clear, in the undersigned's opinion, that despite protestations of neutrality and in- structions to its supervisors, the respondent did more than merely express an opinion that membership in the Union was opposed to the best interests of the- employees. It buttressed this opinion by numerous acts of interference, restraint, and coercion, and effectively warned employees not to vote for the Union. A brief summary of the case shows that the respondent violated the Act by engaging in surveillance of union activities. It asked supervisors to report and furnish information concerning union activities. In addition, it ridiculed the Union and its leaders by disparaging the wearing of union buttons and threatened that membership in the Union would entail loss of pay if not loss of jobs. Where as here, expressions of anti-union opinion are reinforced and highlighted by persuasion, intimidation, and coercion, the protection of the First Amendment, which would normally surround expression of opinion, is of no avail. Support for this conclusion would seem superfluous in view of the wide acceptance which has been given to decisions of this Board, supported by the courts, that employers cannot hide behind the protection of the First Amendment when expression of opinion is only part of a coercive campaign as evidenced by other anti-union activity. - The Board alleges that the foregoing activities as well as others, now com- mented upon, interfered with the conduct of and a free determination of a col- lective bargaining agent in the election held on March 20. In this latter connection, certain employees who attempted to vote on March 20, were denied entrance to the plant to cast their votes The status of these employees was such that there DIXIE SHIRT COMPANY, INC. 145 may have been a legitimate question concerning their employment status by reason of lay-offs or suspensions from employment prior to the election In any event, the proper way to have raised the issue was by challenge at the election, as was done in the case of three individuals who sought to vote and whose ballots were challenged by the respondent By this conduct the respondent disputed the pre- rogative of the Board to conduct the balloting with its own appropriate safeguards to insure a free election Without deciding that the denial to employees of the right to cast a ballot under the circumstances of this case, constituted per se a violation of the Act, the undersigned is nevertheless of the opinion that by reason of such conduct as well as other acts of the respondent, the election results should be set aside. There is in the plant a group of employees called assistant floorladies or service girls, the two expressions being synonymous and used interchangeably Krom- berg, the comptroller, admitted this, but testified tllat for the purpose of pay-roll classification these individuals were listed as service girls. Galle, the plant super- intendent, testified that service girls assisted in the process of keeping production flowing, issued instructions to the operators under them, and in the event instruc- tions were not followed, reported the infractions to the forelady Service girls are paid an hourly rate. These individuals were included on the list of eligibles that was used at the time of the election. Kay Foster, Gas ton's service girl, denied her supervisory status at the hearing but acknowledged that her duties included the observation of operations in accordance with Bellflower's instructions over some 38 employees. She acknowledged, furthermore, that it was her duty to check the operators and to instruct them with respect to uniform methods of operation and the quality of the product It is this class of employees, whether called service girls or assistant floorladies, that was informed by Ailene Black that they would be permitted to vote and were to deny their supervisory status. All those who sought to vote were challenged by the Union. Irrespective of the supervisory status of the assistant floorladies there is no showing that Black's action in urging them to vote was directed by the respondent. Moreover there is no clear proof that Black possessed supervisory authority. Hence no finding is made that the respondent is accountable for Black's conduct. It is therefore found that the respondent did not as alleged in the complaint instruct its supervisory employees to deny their authority and vote in the election. The undersigned is of the opinion that all of the respondent's activities con- sidered together makes for a concerted pattern of opposition to the Union. Not only was the Act violated in the respects heretofore indicated, but as alleged by the Board, the employees were denied an opportunity for a free and untrammeled determination of their collective bargaining agent. It will be recommended here- after that the election results be set aside. C. The discharge of Dorothy Gaston Gaston has worked for the respondent over a period of about 11 years, until her employment was terminated on May 8, 1946. She was instrumental in or- ganizing the Union and was elected president of the Local on February 11, 1946. Her union membership and activities were well known to the respondent. Lottie Cohen gave as grounds for Gaston's dismissal : "Disobedience to com- pany rules, removing company property without permission} general insubordina- tion, and inefficiency ." As to Gaston's inefficiency, the undersigned is of the opinion that this reason is not supported by the record. Lottie Cohen admitted 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Gaston was "an experienced operator and a• fast operator." She acknowl- edged, moreover , that at times Gaston exceeded her required production . Hence, the undersigned rejects the asserted reason of , inefficiency and the respondent's determination to discharge Gaston on this ground as not in accord with the facts. That Gaston was insubordinate and disobeyed company rules rests upon con- sideration of other testimony At times Gaston used profane language, but the undersigned is satisfied that the use of profanity. although not to be condoned, was not unusual in the plant or looked upon with such abhorrence as in and of itself to warrant discharge . Other evidence of insubordination centers around Gaston's habit in changing the number of stitches on her machine , culminating In an incident after the Union's organizing campaign was well tinder way and Gaston had become the acknowledged leader of the Union . The number of stitches to be used in certain operations depends on the style of the shirt being produced. Both Galle and Foster testified that over a period of time they had experienced difficulty with Gaston changing the number of stitches on her ma- chine in order to increase her production . Aside from the fact that Gaston ,ti as warned to stop this, nothing apparently was done to make Gaston desist from the practice . Indeed, Bellflower testified that, despite Gaston's defects, she did not discharge her because of her ability as an operator. Furthermore, Bellflower acknowledged that a certain tolerance on the number of stitches was permitted and if the reduction was not too drastic, for example, from 18 stitches to 16, the work was passed and the operator paid. About March 2, James Lewis, the head machinist , was instructed to remove a button on Gaston's machine , which would prevent Gaston from making an ad- justment in the number of stitches . When Gaston came to work on Monday,. March 4, she found that the button had been removed and that her machine had been set at 18 stitches to the inch instead of 16, which meant that production would be slowed In some fashion , which is not too clearly indicated in the record, Gaston requested and the button was restored . As a result , Gaston got into an altercation with Bellflower , Abi an». and Harold Cohen . the latter stating that if Gaston did not like the working conditions . she could quit. Gaston told Cohen that she "thought it was all leading up to that" but that she would not resign . Abrams joined in by threatening to fire Gaston if she said another- R ord and that she bad caused "enough trouble." Gaston testified that she felt justified in having the stitches reduced from 18 to 16 because she had been told at the start of the job that it called for the latter number She testified further that she had never changed the number of stitches, thus disputing the testimony of Galle and Foster that the had done this, on a number of occasions . On this issue, the undersigned is of the opinion that the record as a whole supports the respondent 's contention that Gaston had on previous occasions changed the number of stitches but the respondent did not believe this to be sufficient grounds for her discharge . The undersigned does not advocate the position that a violation of plant rules is something that an employer must countenance forever . But the record seems sufficiently clear that this- problem of changing stitches was„nqt such an acute one as to motivate Gaston's discharge. The undersigned is of the opinion that the issue wits magni- fed at the hearing out of all true proportion to its relative merit. In any event, the respondent acquiesced in Gaston's conduct and did nothing about discharging her because of the incident. Sometime in April 1946, Gaston submitted a composite work ticket which was. used as a basis for computing her earnings , and included therein six tickets for DIXIE SHIRT COMPANY, INC. 147 work pertormed by another employee These tickets had been given to Gaston in November 1945, and she kept them until April, when she submitted them along- with tickets for work that she had done. When the matter was called to her attention by Abrams she did not dispute his contention that the six tickets covered work which she had not performed Abrams deducted the value of labor covered by the six tickets Gaston's explanation for the submission of these tickets is not satisfactory and the undersigned agrees with the statement made- by counsel for the respondent' that this rule infraction was serious enough to- variant discharge. However. here again the respondent acquiesced in this con- duct and did nothing about the event. Soi ietime in 1945, the respondent had posted a sign at the recut table in the- sewing department as follows: NOTICE It has come to Our Attention That Materials Have Been Taken Out Of' this Dept for I'ersonel (sic) Use Without Proper Authorization Em- ployees Found Guilty Of This Oftense Will Be Dismissed And Prosecuted.- H. S. ABRAMS. Foreman Curry told Gaston that the sign applied to the recut table, where- Gaston was then working, because girls were appropriating cloth. On May 8, 1946, Gaston was employed as an operator hemming the backs on- shirts in the sewing department. Her forelady was Bellflower and her service girl was Foster. The respondent's operations produce waste materials which Galle classified as thread, rags, and remnants. The thread, consisting of unused- material, was gathered up and assorted according to color and size and issued' for new'work Rags are small pieces of cloth which are sold to waste dealers. and also used for cleaning purposes in the mill Remnants are larger pieces, consisting of ends of materials that result from the cutting of cloth, varying in-, size from 8 inches to 1 or 2 yards in length. They are used for replacement of damaged parts and also used for training purposes. According to Galle, the operator will drop a remnant to the floor or place it aside on her table. Material of this size is then gathered up by the service girl. Galle acknowledged that rags and scraps were swept up and baled and thereafter sold or discarded as, refuse. Galle also testified that instructions were issued that remnants and rags were to be returned to the piece goods depaitment to be given out for cleaning ma- chines or for the instruction of new operators. A reasonable interpretation of'- all his testimony on the disposal of material indicates that scraps too small for replacements, but which had a definite value as waste material, were gathered up and sold to dealers and paper manufacturers . Cuttings of a larger size were returned to the piece goods department for later use either in the form of - replacement parts or for training purposes In addition, there was a certain amount of material which had no value and was discarded as refuse or burned as trash. It is understandable that an operator paid on a piece rate basis would not be overly concerned with the fine distinction between a rag, scrap, or rem- nant, and that anything which could not be used on the machine for productive purposes was discarded, the selection for its later utilization being left to some. one other than the operator. It is clear that whatever instructions the re- spondent had for the utilization of this waste material were riot given exact, enforcement. 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gaston testified that when she first came to work she asked for some scraps" which were given to her and that thereafter, when she wanted some scrap ma- terial for one reason or another, she never sought permission to take it home. She testified that she had taken home scraps of cloth which were overlays in the cutting of shirts. Pearl Sellers testified that prior to the discharge of Gaston she had never received any instructions concerning disposal of scraps and that she cleaned her machine with or otherwise discarded them and saw them swept up. She testified also that the sign heretofore referred to, applied only to the recut department. Lavinia Williams likewise testified that she received no instructions concerning the disposal of scraps and she knew of no rules prohibit- ing the taking home of scraps. Other witnesses testified to the same effect. To meet this, the respondent proved that sometime in 1946, Lottie Cohen announced over the PA system that employees would not be permitted to take any bundles in or out of the plant without approval. On May 8, 1946, Gaston was at work sewing broadcloth. She testified without contradiction that she told her service girl, Kay Foster, that she was going to take some of the scraps home for, dust cloths. Her testimony is uncontradicted that Foster stated, "Yes, they will make nice dust cloths." Instead of discarding the material, therefore, Gaston folded the scraps in half and placed them beside her machine. Throughout the day, Gaston picked up scraps, folded them and placed them beside her Towards the end of the shift she folded all the scraps together and put them in a paper bag. She made no effort to conceal or hide her activity. In all she gathered up about 23 pieces of white broadcloth. In the meantime, it was reported to Louis Cartee, the plant policeman and a deputy county sheriff appointed under applicable State law, that "some girls in Dot's department was taking out some cloth." Cartee decided to check on this. He climbed on the roof and sat down by a skylight where lie could observe the operators in Gaston's department. He saw Gaston put some cloth in a paper bag. After observing this, he reported to Abrams what he had seen and asked him what he should do. According to his testimony, Abrams told him, "You are, the police ; run your job." When the shift closed Cartee was waiting for Gaston. He apprehended her and asked her what she had in the bag. Gaston was prepared to show the bag's contents to Cartee, but he stated that he did not want to embarrass her by opening the bag in the presence of other employees, and asked her to accompany him out to his car. Gaston told Cartee that the bag contained "scraps out of the shirt backs." On getting into the automobile, Cartee told Gaston that he was taking her to the sheriff's office. On the way into Spartanburg, Gaston showed the contents of the bag to Cartee. On arriving at the sheriff's office, Gaston told her story to Sheriff Brockman ,stating in addition, that she had been apprehended because of her union activi- ties. Gaston exhibited the material that she had taken, and according to her undenied testimony, Brockman stated that it looked like waste material to him. Apparently Cartee was uncertain about his authorization to sign a warrant for Gaston's arrest and it was agreed that Gaston would meet Cartee at the sheriff's . office the following morning at 10 o'clock. She asked Cartee if she was fired and he said he did not know; that this information would have to come from the ,Cohens. Gaston reported for work at her usual time on May 9, and found her entrance . barred by Cartee who told her that he was informed by Kay Foster that Gaston was not to be admitted to the plant "until this thing was settled." He told Gaston to meet him at the sheriff's office at 10 o'clock. By 10 o'clock Cartee had DIXIE SHIRT COMPANY, INC. '149 sworn out a warrant and thereafter Chastain posted bond for Gaston. Gaston pleaded not guilty and trial was set for May 14. She, asked Cartee if she was discharged and this time he told her that she was. - The same day Gaston telephoned to Harold Cohen and asked him if she was discharged and he stated that he did not know anything about the matter and that she should talk to Lottie Cohen. Lottie Cohen, after conferring with Abrams, told Gaston that she was not discharged but that she was suspended until after the outcome of the trial. Gaston admitted in her conversation with Lottie-Cohen that she had taken the material. When Lottie Cohen mentioned the sign, which has been set out above, Gaston stated that the sign had particular reference to the recut table. Either in this same conversation or in another 2 or 3 days later, Lottie Cohen told Gaston that she had placed her job in jeopardy by "stealing the scraps." Gaston denied stealing and stated the material that she had taken was such as had been given to her and other girls on occasions in the past. Gaston was tried before Magistrate Esten C. Taylor, of Spartanburg, on May 14, on the charge of petit larceny and was found not guilty and acquitted. The following day, Gaston sought reinstatement but was told by Lottie Cohen that despite, the court's verdict, she would not be reinstated because Gaston had broken a company rule. According to Lottie Cohen's testimony, not otherwise controverted, Gaston offered to discontinue her union activities if she was reinstated, but Cohen explained that these activities had not motivated her discharge. Cohen testified further that the decision not to reinstate Gaston was made only after her acquittal and not prior to that time. She testified as follows : After reviewing her case, the many instances of her infraction of the rules, her insubordination, her general disregard for company rules, her dis- respect of supervision, and of course with the culmination of taking of cloth, that decided it The issue is squarely presented whether Gaston was discharged and there- after refused reinstatement because she took scraps from the plant in violation of company practices or whether this was a pretext seized upon to justify dis- chaige of an efficient worker, and zealous union adherent, and one who was looked upon as responsible for organization of the respondent's plant. The undersigned is satisfied that this record shows that the respondent's rule or regulation concerning the disposition of waste material whether classified as threads, rags, scraps, or remnants, was not rigidly enforced or thoroughly under- stood by the employees. They did not exercise a fine discretion as to how the material should be treated, leaving that to others. Moreover, witnesses for the Board testified that there had been occasions in the past, previous to Gaston's arrest, when scraps smaller in size than that taken by Gaston, had been removed from the plant. Gaston. acknowledged that the material shown to her at the hearing, as being identical with the scraps taken from her possession on May 8, could be utilized for cuffs and sleeve facings. It is also true, that the respond- ent had posted a notice in the recut table warning personnel that materials were not to be taken "Out Of This Dept." It was Gaston's uncontradicted testimony that Foreman Curry told her that the notice applied only to the recut department. Whether this is the fact, it is apparent that this was the only notice posted in the plant and it can hardly be said that its meaning was forceably impressed upon the minds of the employees. Other than the notice, the only other warnings 809095-49-vol. 79-11 150 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD given to employees were the PA announcements of Lottie Cohen that no packages were to be taken in or out of the plant without authorization. However, regardless of posted notices, rules and regulations, common sense would dictate that an employer's material of usable value is not to be removed without express authorization or approval. The respondent's practices with regard to thefts indicates that on a previous occasion, Cartee discharged an individual who was apprehended taking several yards of cloth. 'However, on his plea of mercy the individual was not prosecuted It was stipulated by the counsel for the Board and respondent that two individuals were discharged but not prose- cuted for the removal of cloth. On other occasions, three individuals who took finished materials such as shirts and jackets, were discharged and prosecuted. In the instant case, Gaston acted with seeming innocence and made no at- tempt to hide her activity. It is significant that her testimony that she told Foster what she was doing and received Foster's tacit approval for her conduct, is nowhere controverted in the record. This can hardly be deemed to be the con- duct' of a petty thief. 'Finally, there is evidence that on occasions in the past, Gaston did take disposable waste material both with and without express au- thorization. The respondent's conduct with respect to Gaston is equivocal. On May 9, Gaston found her entrance to the plant blocked At or about the same time, Lottie Cohen indicated that Gaston's reinstatement was to be conditioned upon the out- come of her trial. After acquittal, Lottie Cohen testified that it was then decided for the first time to discharge Gaston because of all of the instances in her past career culminating in the taking of the waste material. The issue is a difficult one to resolve in the absence of an opportunity to observe and appraise Gaston and others who testified concerning her conduct as an employee and union or- ganizer. An employer is not required to sanction the conduct of intractable employees. But where employees of this nature become guiding figures in efforts to organize, the employer's disciplinary action toward them must be carefully posed, in order to avoid any charge of being motivated by anti-union bias. It is a question of balance in judgment. In this case, the undersigned is of the opinion that the respondent's decision to discharge Gaston was motivated in part by Gaston's union membership and activity. Upon the entire record in the case-including the fact (1) that Gas- ton was an efficient employee whose services had been reasonably satisfactory over a period of about 11 years; (2) that the respondent failed to give due publicity to any rule prohibiting employees from removing small quantities of material which was otherwise disposed of; (3) that the application of small quantities of rags and scraps by employees for their own personal use was a practice which was and had been permitted by the respondent; (4) that Galle referred to the material taken by Gaston as but a "hand full of rags"; (5) that so far as this record indicates, no operator other than Gaston had been both dis- charged and prosecuted for taking materials of like nature; (6) that Gaston was discharged during the Union's organizational campaign ; (7) that the respondent had openly demonstrated its antipathy towards the Union and its organizational efforts; and (8) that the respondent knew and was opposed to Gaston's union' membership and activities,-the undersigned is convinced and finds that Gaston's misconduct in taking the waste material Was seized upon as a pretext for dis- charge and that the real reason was the respondent's desire to discourage mem- bership in the Union by eliminating its most active and outstanding member. Thereby the respondent violated Section 8 (3) of the Act. DIXIE SHIRT COMPANY, IN C. 151 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 relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has violated Section 8 (1) and (3) of the Act, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action which the undersigned finds necessary to effec- tuate the policies of the Act. The undersigned found that the respondent discharged Dorothy Gaston be- cause of her union membership and activities and her efforts to organize the respondent's employees. The discharge of an employee for engaging in union or concerted activities is a serious violation of the Act and indicates a general purpose to interfere with the rights of employees as guaranteed by the Act. In order to make effective the policies of the Act, the undersigned will recommend that the respondent be ordered to cease and desist from in any manner infringing upon the rights of employees guaranteed in Section 7 of the Act. The undersigned deems it necessary in order to effectuate the purposes of the Act to recommend Gastons reinstatement The undersigned will also recom- mend that the respondent make whole Gaston 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 the date of the discrimination against her to the date of the offer of rein- statement less her net earnings 4 during such period. Upon the basis of the above findings of fact and the entire record in the case, the undersigned makes the following : CONCLUSIONS or LAw 1. United Garment Workers of America, affiliated with the American Federa- tion of Labor, 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 Dorothy Gaston, thereby discouraging membership in United Garment Workers of America, A. F. of L, the respondent has engaged in and is engaging in unfair labor practices 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 interfered with the conduct of and the free deterinination of a collective bargaining agent in an election held on March 20, 1946. 4. 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. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 4 Matter of Crossett Lumber Company, 8 N. L. R. B. 440. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the Dixie Shirt Company, Inc., its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in the United Garment Workers of America, affiliated with the American Federation of Labor, or any other labor organiza- tion of its employees by the discharge and refusal to reinstate any of its employees or in any other manner discriminating in regard to the hire or tenure of employ- ment or any term or condition of employment ; (b) In any manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form labor organizations, to join or assist United Garment Workers of America, affiliated with the American Federation of Labor, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activi- ties 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 Dorothy Gaston immediate and full reinstatement to her former or substantially equivalent position without prejudice to her seniority or other rights and privileges ; 5 (b) Make whole Dorothy Gaston 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 during the period from the date of her discriminatory discharge to the date of the respondent's offer of reinstatement, less her net earnings during said period ; (c) Post in conspicuous places throughout its plants in Greenville and Spar- tanburg, copies of the notice attached hereto marked "Appendix A " Copies of said notice, to be furnished by the Regional Director for the Tenth Region, after being signed by the respondent's representative, shall be posted immediately by the respondent upon the receipt thereof and maintained by it for-sixty (60) consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material ; (d) Notify the Regional Director for the Tenth Region in writing 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 also recommended that the election results of -larch 20, 1946, be set, aside. 5In accordance with the Board's consistent interpretation of the term, the expression "former or substantially equivalent position" is intended to mean "former position wher- ever possible , but if such position is no longer in existence, then to a substantially equiva- lent position." See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 N. L. R. B. 827. DIXIE SHIRT COMPANY, INC. 153 It is further. recommended that the allegation in the complaint that the re- spondent instructed its supervisory employees to deny their authority and vote in an election be dismissed. As provided in Section 203 39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the (late of service of the order transferring the case to the Board, pursuant to Section 203 38 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing setting forth such excep- tions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof ; and any party or counsel for the Board may, within the same period, file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.65. As further provided in said Section 203.39, should any party desire per- mission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the (late of service of the order transferring the case to the Board. MoRTIMER RIEMER, Trial Examiner. Dated May 26, 1947. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist UNITED GARMENT WORKERS OF AMERICA, A F. of L., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL OFFER to the employee named below immediate and full reinstate- ment to her former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed, and make her whole for any loss of pay suffered as a result of the discrimination Dorothy Gaston All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. DIXIE SHIRT COMPANY, INC. Employer Dated ------ ---------------- By ---------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, detaced, or covered by any other material.