Jefferson Apparel Co.

JEFFERSON APPAREL COMPANY 555 Ashley Warp Knitting, Inc. d/b/a Jefferson Apparel Company and International Ladies' Garment Workers' Union AFL-CIO. Cases I l-CA-7369 and 11 -CA-7493 March 18, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On November 14, 1979, Administrative Law Judge Peter E. Donnelly issued the attached Deci- sion in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the Charging Party filed a brief in opposition to Re- spondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions' and briefs and has decided to affirm the rulings, find- ings,2 and conclusions 3 of the Administrative Law Judge and to adopt his recommended Order, as modified herein.4 I In the absence of exceptions, we adopt pro forma the Administrative Law Judge's finding that Respondent's warning to Billie Miller for har- assing her supervisor was not in violation of Sec. 8(a)(1) of the Act I Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings Two inadvertent errors in the Administrative Law Judge's disposition of the discharge of Deloris Blevins create some confusion and are hereby corrected. First, after her initial discharge, Deloris Blevins was reinstated on January 23, 1978. Second, the memorandum that Plant Manager McLaughlin read to Deloris Blevins on February 14, 1978, was dated February 14, 1978, not February 17, 1978. a As noted by the Administrative Law Judge, the General Counsel did not allege that Respondent's no-solicitation rule was unlawful on its face. We affirm the Administrative Law Judge's finding that the rule was adopted by Respondent for discriminatory reasons, but in so doing we find it unnecessary to pass on the propriety of his observation that the rule, in fact, was facially lawful. 4In his recommended Order at par. I(a), the Administrative Law Judge employed the use of the term, "company time," in ordering Re- spondent to cease and desist from promulgating a no-solicitation rule where the purpose of such a rule is to interfere with union organization. We find the phrase "company time" overly broad and replace it with the term, "working time," and modify the Administrative Law Judge's rec- ommended Order accordingly. In his recommended Order, the Administrative Law Judge also em- ployed broad injunctive language in ordering Respondent to cease and desist from engaging in "any other" unlawful conduct. After applying the standards discussed in the Board's recent Decision in Hickmott Foods, Inc., 242 NLRB No. 177 (1979), for determining whether a "broad" order is warranted, we find the narrow injunctive language, i.e., "any like or related manner," a sufficient remedy in this instance and modify the Administrative Law Judge's recommended Order accordingly We have modified the Administrative Law Judge's recommended Order to include the full reinstatement language traditionally provided by 248 NLRB No. 84 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Ashley Warp Knitting, Inc., d/b/a Jefferson Ap- parel Company, Jefferson, North Carolina, its offi- cers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as so modified. 1. Substitute the following for paragraph (a): "(a) Promulgating or enforcing any rule prohibit- ing union activities on working time while permit- ting other types of solicitations or activities on working time where the purpose thereof is to inter- fere with union organization." 2. Substitute the following for paragraph l(f): "(f) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of their rights guaranteed in Section 7 of the Act." 3. Substitute the following for paragraph 2(a): "(a) Offer Deloris Blevins immediate and full re- instatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed, and make her whole for any loss of earnings she may have suffered due to the discrimination practiced against her by paying her a sum equal to what she would have earned, less any net interim earning, plus in- terest." 4. Substitute the attached notice for that of the Administrative Law Judge. the Board. We also modify the proposed notice to conform with the pro- visions of the recommended Order. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Following a hearing at which all parties had an op- portunity to present evidence and cross-examine witnesses, the National Labor Relations Board has found that we violated the National Labor Rela- tions Act, and has ordered us to post this notice. We intend to abide by the following: WE WILL NOT promulgate or enforce any rule prohibiting union activities on working time while permitting other types of solicita- tion or activities on working time where the JEFFERSON APPAREL COMPANY 555 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purpose thereof is to interfere with union orga- nization. WE WILL NOT threaten to close our plant if the employees acquire union representation. WE WILL NOT interrogate employees con- cerning their union sentiments or affiliations. WE WILL NOT grant wage increases to em- ployees for the purpose of impeding or inter- fering with their self-organizational activities; provided, however, that nothing herein shall be construed to require the revocation of any wage increase heretofore granted. WE WILL NOT discharge or otherwise dis- criminate against any employee for engaging in protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Sec- tion 7 of the Act. WE WILL offer Deloris Blevins immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges pre- viously enjoyed, and make her whole for any loss of earnings she may have suffered due to the discrimination practiced against her by paying her a sum equal to what she would have earned, less any net interim earnings, plus interest. WE WILL rescind and expunge any reference to any unlawful warning from Billie Miller's employment record. ASHLEY WARP KNITTING, INC. D/B/ A JEFFERSON APPAREL COMPANY DECISION STATEMENT OF THE CASE PETER E. DONNELY, Administrative Law Judge: A charge in Case 11-CA-7359 was filed by International Ladies' Garment Workers' Union, AFL-CIO, herein called the Union or Charging Party, on December 19, 1977. The charge in Case 11-CA-7369 was filed by the Union on December 23, 1977. An order consolidating cases, consolidated complaint, and notice of hearing thereon issued on February 16, 1978, and an answer thereto was timely filed by Respondent. Subsequently, the charge in Case 11-CA-7493 was filed on March 3, 1978. Amended charges in Case 11-CA-7493 were filed on March 16 and April 24, 1978. On April 25, 1978, a second order consolidating cases, consolidated com- plaint, and notice of hearing was issued alleging that Ashley Warp Knitting, Inc., herein called Ashley, and Ashley Warp Knitting, Inc., d/b/a Jefferson Apparel Company, herein called Employer or Respondent, violat- ed Section 8(a)(l) and (3) of the Act. An answer thereto was timely filed by Respondent. On November 1, 1978, the Acting Regional Director issued an order severing cases, which had the effect of removing Ashley from the complaint, leaving only those 8(a)(1) and (3) allegations pertaining to Respondent.' Pursuant to notice a hearing was held before the Ad- ministrative Law Judge at West Jefferson, North Caroli- na, on November 6 and 7, 1978. Briefs have been timely filed by the General Counsel, Charging Party, and Re- spondent, which have been duly considered. FINDINGS OF FACT 1. EMPLOYER'S BUSINESS Employer is a division of Ashley Warp Knitting, Inc., and is now and has been at all times material herein, en- gaged in the manufacture of garments at its facility in Jefferson, North Carolina. During the past 12 months Employer received goods and materials valued in excess of $50,000 directly from points outside the State of North Carolina. During the same period Employer shipped products valued in excess of $50,000 directly to points outside the State of North Carolina. The com- plaint alleges, the answer admits, and I find that Respon- dent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent in its answer does not deny, and I find that the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. IIl. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts 1. The no-solicitation rule Shortly after learning of the Union's organizational effort, Respondent on September 29, 1977,2 sent a letter to its employees signed by Plant Manager Daniel H. McLaughlin expressing Respondent's opposition to orga- nization by the Union. One paragraph of this letter con- tains a no-solicitation rule which reads: You may not, during working time, engage in union organizing activities. Anyone who does so and thereby neglects his work or interferes with the work of others is subject to disciplinary action up to and including discharge. It appears that prior to the adoption of the above rule, there had been no written rule promulgated prohibiting the activity of employees on worktime. It appears, how- ever, that at the time of hire employees were advised against excessive talking during worktime. The evidence also shows some limited solicitation to purchase products such as cosmetics and houseware on worktime. ' The complaint was amended at the hearing to reflect the removal of Ashley as a Respondent. 2 All dates refer to 1977 unless otherwise indicated JEFFERSON APPAREL COMPANY 557 2. The speech of October 26 Having learned of the Union's organizational effort. the Company took a strong antiunion position which it expressed in a speech delivered to employees by Respon- dent's president, Glenn O. Thornhill, Jr., on October 26. The speech is devoted to a recital of the disadvantages of union representation. Heavy and repeated emphasis is placed on statements to the effect that union representa- tion could result in closing the plant since both union and nonunion customers might not want to risk "strikes and slowdowns" disrupting their operations. The follow- ing is an excerpt from the speech: The companies we contract for are both union and non-union. Although some of these companies have union plants, these companies prefer to con- tract with us instead of expanding their union plants! If our plant went union, then these union contractors might well switch the work we have been doing for them to a non-union shop. Why might they do this? Because they want to be as- sured of uninterrupted deliveries on time and they know union plants cannot assure this. They know union plants have strikes and slowdowns which means their goods could be tied up for an indefinite period of time. By contracting their work to non- union plants, the companies do not run this risk. Wouldn't you do the same if you were in their shoes? I know I would. So in my opinion we stand a good chance of losing our union contracting busi- ness if our plant goes union. I can almost assure you that we will lose our non-union business if our plant goes union. Non- union companies are simply not going to risk having their goods tied up in a union plant where labor problems, strikes, and slowdowns may occur. There are too many non-union contractors available so they don't need to run any of these risks. If we were to lose our non-union business, I am not sure this plant could survive. There would be a good chance that it would close. I am telling you exactly the way it is. It would not be the desire of the owners or management to close the plant, but if we lose the business, we may have no other alternative. I can assure you of this- if this plant cannot be operated at a reasonable profit it will be closed. 3. Wage increase of December 5 On September I a memo was circulated to all employ- ees from McLaughlin advising all employees of a general increase in hourly minimum rates.3 These rates were to be paid in the checks distributed September 16. On November 22, another general increase was made in the hourly minimum rates. It was stipulated at the hearing that the revised rates went into effect on Decem- 3 Production employees are paid based on a piecework formula with the base hourly minimum rate paid to those who do not attain it on the piecework formula In addition, certain employees are hourly paid at the hourly minimum rate. ber 5 and were reflected in the checks delivered to the employees on Friday, December 16. Concerning the matter of raises, McLaughlin testified that he is not involved in the decisionmaking process; that wage increase decisions were made from the home office in Salem, Virginia, and that he generally took his instructions from Thornhill. 4 McLaughlin testified, con- cerning the December 5 wage increase, that Thornhill simply told him that the wage increase was going into effect and to publish it, which he did with a notice to employees dated November 22. 4. Allegations of coercion a. Interrogation of Alice Turnmire Alice Turnmire was employed by Respondent as a sewing machine operator. In the fall of 1977 she was em- ployed in the "McDonald's unit." 5 Her supervisor was Geneva Deboard. Turnmire testified that about 2 weeks prior to Thanksgiving, on a date she testified was No- vember 11, she was approached by Margaret Latham who was substituting for Deboard while Deboard was assigned elsewhere. Latham was wearing a black smock, which is the uniform worn by supervisors, apparently to distinguish them from other emloyees. According to Turnmire, Latham expressed her pleasure working with Turnmire and said that she would be going back to her job as sewing machine operator on the following Monday when Deboard resumed her supervisory posi- tion. Turnmire testified that Latham also told her that Deboard was getting up a list for and against the Union and that she was being put down as against the Union. Turnmire told Latham that she was not against it; that her mind was still opened to both sides. Deboard, called as a witness for Respondent, 6 testified that she was told by McLaughlin on November 4 that she would be returning to her supervisory position in the McDonald unit on the following Monday, November 7, but that due to the death of her brother-in-law, she did not resume her duties, thus replacing Latham, until Wednesday, November 9, at which time Latham re- sumed her employee duties as a machine operator. De- board testified that Latham was not wearing a black smock at the time she returned on November 9. b. Warning of Billie Miller (January 19, 1978) Billie Miller 7 was engaged By Respondent as a bun- dling girl8 until she left in April 1978. Miller testified that she was active on behalf of the Union beginning about January 2, 1978, in the distribution of union pam- phlets. She also participated in the distribution of pam- phlets to employees leaving the plant, including supervi- sors. McLaughlin testified that he felt that both Miller 4 Thornhill did not testify at the hearing. I This unit was engaged in sewing uniforms for use in the McDonald's fast food chain operation .Latham was not called as a witness at the hearing and I credit Turn- mire's undisputed account of this conversation. 7 Miller is the mother of Deloris Blevins, the alleged discriminatee herein. 8 Bundling girls pick up and receive work from the machine operators JEFFERSON APPAREL COMPANY "7 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Blevins were hostile to him and sympathetic towards the Union as of mid-December 1977. On January 19, 1978, Polly Jones, head sewing super- visor, approached Miller where she was working and told her that they were to go to McLaughlin's office. At McLaughlin's office she was told by McLaughlin that he had received a report to the effect that she was working for the Union on company time, that such conduct was prohibited; and that if she did it again she would be ter- minated. Therafter, McLaughlin read to her the rule contained in McLaughlin's September 29 letter set out above. McLaughlin testified, "I called her in and told her that I had a report that she was talking to people about the Union on company time and I read her the paragraph that prohibited this, and I told her that if she did it again that I was going to terminate her." Miller denied the accusation." 5. Deloris Blevins' discharge Deloris Blevins worked as a bundle girl for Respon- dent. On December 16 she was discharged for excessive talking according to McLaughlin.° McLaughlin testified that he believed at this time that both she and her mother, Billie Miller, were union supporters because of their hostility to him. Shortly thereafter, McLaughlin re- considered the discharge and decided, after consultation with Thornhill and legal counsel, that he had acted ex- cessively and reinstated her, apparently without a break in service on January 23, 1978. Upon her reinstatement, she was reassigned as a sewing machine operator, in training, under the immedi- ate supervision of Margaret Marsh. Blevins had never worked as a machine operator previously. The job was piece rated with a minimum hourly rate of $3 per hour for those who did not make the piece rate. Geneva Deboard, Marsh's superior, testified that she had observed Blevins talking excessively and disturbing the girls around her by conversing with them. At her sewing machine position Blevins was flanked by Barbara Oliver on her right and Linda Dollar on her left. Pasty Eller was on Dollar's left. On January 30, 1978, Deboard made a written memorandum stating, "I asked Deloris to please stop talking to the girls who worked on both sides of her. She is disturbing them and she is not concentrate [sic] on her job." Deboard gave this to Russell for inser- tion in Blevins' personnel file. On February 14, 1978, McLaughlin called Blevins into his office and read to her a memo. The memo was dated February 17, 1978, addressed "To Whom It May Con- cern," and was written by McLaughlin. The body of the memo consists of the following four paragraphs: 9 McLaughlin testified that a supervisor named Ozella Duncan told him that an employee named Juanita Testerman had told her that Miller was talking to her on company time about the Union. At McLaughlin's request Testerman gave a statement about the conversation with Miller in the presence of Personnel Manager Becky Russell. Neither Duncan, Jones, Russell, nor Testerman testified concerning the incident and Tes- terman's statement was rejected as insufficiently authenticated. In these circumstances I cannot conclude that Miller actually made the statements attributed to her by McLaughlin. His testimony is hearsay and Miller denies the conversation. 10 This discharge is not the subject of an independent 8(a)(3) allega- tion. Only her subsequent discharge on February 24, 1978, is so alleged. 1. You may have been told that you are talking too much during working time by the training su- pervisor, Margaret Marsh and the production super- visor Geneva Deboard. It is holding your produc- tion back & disturbing your co-workers. 2. I am telling you now that this excessive talking must stop immediately. If it continues I am going to terminate you again but this time it will be for good. 3.Your production is below what should be ex- pected of a learner who is trying. I am looking for an immediate improvement in your earnings or we can not continue to employ you. 4. This will be your last warning on these sub- jects. According to the memo, Russell, Jones, and Marsh were all present. McLaughlin testified that this warning was prompted by Blevins' poor record as reflected in certain daily production sheets maintained by Respondent for employees. The production sheets maintained by Marsh contained daily evaluations of Blevins from the time that she was rehired on January 2, 1978, until her discharge on February 24, 1978. These records include notations made by Marsh to the effect that Blevins was talking too much. Such notations appear for the dates January 25, January 27, February 1, 9, 10, and 13, all in 1978. Marsh testified that Blevins was not advised that these entries were being made and McLaughlin did not show Blevins her production sheets. In addition to the entries about Blevins talking, there were also entries which reflected more favorably on Ble- vins' performance, including a notation February 23, 1978, that she was following instructions better, and on February 24, 1978, the day of her discharge, that her production was improving. As noted above Blevins was training as a sewing ma- chine operator in a line with Oliver, Dollar, and Eller in the immediate vicinity. Eller testified that they all talked to one another on and off all day, as did those employees both in front and in back of them. It appears that it was possible to converse in this manner since employees both talked and worked at the same time. Eller also testified that Blevins had a better production record then she did, based on their daily production figures. Oliver testified that she and other employees talked "off and on" during the day and that the employees worked "automatically" while they talked without stopping the work that they were doing. On February 24, while Blevins was working, Marsh came by and told her that she was talking too much and to concentrate on her work. According to Marsh, Ble- vins continued to talk and Marsh went to her supervisor, Jones. Jones told Marsh to report the matter to McLaughlin which she did. According to McLaughlin they went out to the floor where he observed Blevins talking to the "girl on her right-hand side." He then asked Marsh to get Blevins' production sheets. McLaughlin testified: "So that I could see how Deloris was doing, and she was doing poorly; her curve had started to go down; and so, I decided that we were just II Respondent put into evidence only Blevins' production sheets. JEFFERSON APPAREL COMPANY 559 going to have to terminate her." McLaughlin then fig- ured out her earnings, consulted his attorney, and then summoned Blevins to his office for termination. Blevins was accompanied by Eller, who attended at Blevins' request. Also present were Russell, Jones, and Marsh. McLaughlin asked Marsh to repeat her report to him about Blevins' talking. When invited to respond by McLaughlin, Blevins denied doing any excessive talking. Eller testified that she protested to McLaughlin that she talked as much as Blevins and that she had not been warned and was there to find out why. Nevertheless, McLaughlin told her that he had no other choice but to terminate her. 12 McLaughlin could recall discharging three employees during his tenure. It is undisputed that while some em- ployees were warned about excessive talking, none except Blevins was discharged therefore. 6. Warning to Miller (February 27, 1978) On the morning of February 27, 1978, while working as a bundle girl, Miller saw Marsh a short distance away and asked Marsh if she had gone to church on Sunday. When Marsh replied affirmatively Miller said, "I am sure glad that I didn't go." Marsh told Jones about the inci- dent and Jones sent Marsh to the personnel office. Jones also spoke to McLaughlin who also went to the person- nel office where Marsh described to him the verbal ex- change. McLaughlin then sent for Miller to come to the office where Miller substantiated the essence of the con- versation in the presence of Lois Bare, Miller's supervi- sor, as well as Jones, Russell, and Marsh. McLaughlin then told Miller that she was to talk to people only about business or that she would be terminated. B. Discussion and Analysis 1. No-solicitation rule The General Counsel takes the position that the no-so- licitation rule, while it is not unlawful as written, is nev- ertheless unlawful since it was adopted for the discrimi- natory purpose of interfering with the employees' legal right to organize. The rule in the instant case is not unlawful as written and, as such, the rule enjoys a rebuttal presumption of validity. However, the presumption is rebuttal in circum- stances where it appears that Respondent has adopted the rule for discriminatory reasons. In the instant case it is clear that Respondent was totally opposed to the con- cept of organization. McLaughlin's letter of September 28, Thornhill's speech of Ocotber 26, and the entire record herein make it abundantly clear that Respondent intended to do what it could to insure that the employees remained without union representation. Clearly the advent of the Union was the reason for the adoption and promulgation of the rule. It is undisputed prior to the Union's organizational effort there was no ban on union activity. 1 McLaughlin's incomplete recollections of the conversation necessi- tated the introduction of his wnritten account of the meeting made the same day (Resp. Exh. 12). It is equally clear that the rule applies only to union activity and not to other types of employee activity or discussion, despite the fact that it is clear from the record herein that conversation among employees on other subjects was commonplace in the plant in a day long and continuing fashion, even while employees were at the same time working' Such discussions were not subject to the rule. Supervisors were aware that the em- ployees talked and worked, however, the only limitation on talking among employees was to the extent that it became "excessive" or interfered with production. No other type of discussion or activity was prohibited except those relating to "union organizing activity." In addition, the evidence also shows that a certain amount of com- mercial solicitation was conducted on worktime. In these circumstances, I am persuaded that the instant rule prohibiting union organizational activity was adopt- ed for the purpose of interfering with the employees' right to organize in violation of Section 8(a)(l) of the Act. Hosiery Corporation of America, 175 NLRB 180 (1969); TRW, Inc., TRW Michigan Division, 161 NLRB 690 (1966). 2. Speech of October 26, 1977 The General Counsel contends that the speech deliv- ered by Thornhill constitutes, in essence, an implied threat by Respondent to close the plant in the event that the employees exercised their right to acquire representa- tion by the Union. An employer's remarks to its employ- ees enjoy the normal constitutional protections of free speech under Section 8(c) of the Act, but this protection is forfeited when the statements interfere, expressly or implicitly, with the employees' right to organize. An employer has the right to predict the adverse effect of unionization of his company. However, the Board and the courts have held that such predictions must be accompanied by supporting objective consider- ations to substantiate the prediction. This concept was expressed by the Supreme Court of the United States in the Gissel'3 case, concluding, inter alia: Thus, an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not con- tain a "threat of reprisal or force or promise of benefit." He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the predic- tion must be carefully phrased on the basis of objec- tive fact to convey an employer's belief as to de- monstrably probable consequences beyond his con- trol or to convey a management decision already arrived at to close the plant in case of unionization. See Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 274, fn. 20 (1965). If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to eco- nomic necessities and known only to him, the state- ment is no longer a reasonable prediction based on available facts but a threat of retaliation based on 1s Gissel Packing Co.. Inc., 395 US. 575, 618 (1969) JEFFERSON APPAREL COMPANY 559 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD misrepresentation and coercion and such without the protection of the First Amendment. In the instant case, the predictions of possible plant closing was not supported by any objective facts. The only basis for the prediction herein was not objective or factual but, in essence, merely speculation to the effect that both union and nonunion customers might cease doing business with Respondent because of labor prob- lems, strikes, and slowdowns experienced by union plants. Thornhill also observed that he would not do business with a union plant. However, this is speculation, not fact, since difficulties of the type described by Thornhill are not necessarily incident to union represen- tation. In these circumstances, I conclude that Respondent has, by implication, threatened employees with plant clo- sure and loss of employment for having exercised their legal right to acquire union representation. This violates Section 8(a)(l) of the Act. 3. Wage increase of December 5, 1977 It is undisputed that a general wage increase was granted to employees effective September 6. Shortly thereafter, the Union began an organizational campaign and Respondent retaliated with a vigorous antiunion campaign, as expressed in the letter from McLaughlin of September 29, and Thornhill's speech to employees on October 26, both of which I find constitute violations of Section 8(a)(1) of the Act. In this posture, and effective December 16, about 4 months after the September in- crease, another wage increase was granted. McLaughlin testified that there was no policy of general wage in- crease at the plant and that Thornhill made all the deci- sions on wage increases and only the instructions to put them into effect were conveyed to him from Thornhill. Since Thornhill did not testify, the record is silent as to what considerations prompted the wage increase of De- cember 16. On this record, I am satisfied that the granting of the wage increases raises a presumption that the increase was made to undermine the Union;s organizational effort and it became incumbent upon Respondent to produce evi- dence to show that the wage increase was not related to the union activity among its employees. Delchamps, Inc., 234 NLRB 262 (1978). The Respondent has failed to pro- duce such evidence, especially since Thornhill did not testify. In these circumstances I am persuaded that by granting the wage increase of December 16 Respondent interfered with the rights of its employees in violation of Section 8(a)(l) of the Act. 4. The allegations of coercion (a) Interrogation of Turnmire In essence, the remarks made by Latham to Turnmire constituted unlawful interrogation. Although the remarks were not framed in the customary interrogative form, it was the natural tendency of such remarks to solicit a re- sponse from Turnmire which would disclose her union sympathies, and is none the less coercion. However, Respondent's basic contention is not that the remarks were not unlawful interrogation, but that they were made at a time when Latham was not a super- visor. In this regard Respondent argues that while Latham had substituted for Deboard as a supervisor in the McDonald unit, Deboard had resumed her supervi- sory position and Latham was an employee at a time of the conversation. This being the case, such remarks made by one employee to another cannot be unlawful. In her testimony, Turnmire put the time of the conversation at "approximately 2 weeks before Thanksgiving" in 1977. Later, upon cross-examination concerning the date, she fixed the date as November 11, using Thanksgiving as a reference. Deboard testified that she had resumed her su- pervisory duties on November 9 and Latham thereafter was working as an employee. It is my opinion that while Turnmire did fix the date as November II, this was erroneous, and the conversa- tion actually occurred some time shortly prior to that, at a time when Latham was still a supervisor. In reaching this conclusion I note that Latham was wearing a black supervisor's smock at the time of the conversation and remarked to Turnmire that she was "going back to a ma- chine on Monday." This testimony from Turnmire, which I credit, is unrebutted, particularly since Latham did not testify, and suggests that the conversation oc- curred while Latham was still a supervisor, probably during the week preceding November 11. In summary, despite the uncertainty concerning the exact date, I conclude that Latham unlawfully interro- gated Turnmire at the approximate date alleged in the complaint at a time when Latham was still a supervisor in violation of Section 8(a)(1) of the Act. (b) Warning to Bill Miller (January 19, 1978) As concluded earlier herein, the rule prohibiting union activity is unlawful. It is undisputed that Miller was issued a written warning by McLaughlin by way of en- forcement of the rule. Since the rule is itself unlawful, as an interference with the employees' organizational rights, the enforcement of the rule also constitutes unlawful in- terference. Accordingly, I conclude that McLaughlin's warning to Miller violates Section 8(a)(l) of the Act. 5. Deloris Blevins' discharge It is clear that McLaughlin believed that both Blevins and Miller were union supporters since the time of Ble- vins' original discharge on December 16. After she was rehired she continued to pursue activities on behalf of the Union, particularly along with Miller in authoring a prounion article in the union newsletter in January 1978. It is apparent based on this record that Blevins was en- gaged in susbstantial union activity and Respondent was aware of her involvement. It is the position of the General Counsel that Blevins was discharged on February 24 because of her union ac- tivity. Respondent contends that she was discharged not because she engaged in any union activity but because she had engaged in excessive talking on the job. In my opinion the General Counsel's position must prevail. JEFFERSON APPAREL COMPANY 561 In examining the record, it is apparent that talking was routine, pervasive, and condoned throughout the plant. The nature of the sewing machine operator's work ap- pears to make it possible for employees to work and con- verse at the same time. In fact there are no rules against talking in the plant, except to the extent that such talking is excessive, affecting production. While it does appear that some employees were warned for talking, Blevins was the first to be discharged for that reason. Respondent contends that Blevins talked excessively, but the testimony of those who worked closest to Ble- vins belies this position. Eller testified that all the em- ployees in the vicinity talked all day long as they worked and that she told McLaughlin at the time of Ble- vins' discharge that she talked as much as Blevins. Re- spondent called no employee witnesses to refute this tes- timony. While Respondent contends that Blevins' verbos- ity disturbed other employees, they produced no other employees to support this contention, and none of the employees testifying appears to have been disturbed by Blevins talking. While Marsh's notations as to excessive talking appear at certain dates on her production sheets, Blevins was never advised that these notations were being made. In these circumstances, I conclude that the evidence does not show that Blevins talked more than any of the employees around her. As to the matter of her talking having a detrimental effect on her production, this does not appear to have been the case. While her production was not up to the piece rate level of $3 an hour, consideration must be given to the fact that she was still in training. Moreover, according to Eller, Blevins had a better production record than she did. Respondent produced only Blevins' production sheets which showed mainly fair to average production. Any justification for the discharge based on poor production lacks the appropriate available docu- mentation. Moreover, Blevins' production record itself notes an improvement in production, even as late as Feb- ruary 24, 1978, her last day of employment. In summary, I cannot in these circumstances conclude that Blevins was discharged for excessive talking or low production despite the written notations and warnings given to her. I conclude, particularly in context with Re- spondent's other unfair labor practices found herein, that the proffered justification was in fact a pretext and the real motivation for Blevins' discharge was her activity on behalf of the Union in violation of Section 8(a)(3) of the Act. 6. Warning of Miller (February 27, 1978) Based on the facts as set out above, it appears to me that Miller was in fact harassing Marsh. There appears to have been no legitimate justification for her comments, and Miller was not able to offer any adequate explana- tion, indeed, any explanation at all, for having made the remarks. In my opinion McLaughlin's disciplinary warn- ing was justified and directing her to limit her conversa- tion to company business must be read in context with Miller's conduct. In these circumstances, the warnings was not illegal interference with employee conduct under Section 8(a)(l) of the Act. IV. THE EFFECT OF THE UNFAIR L.ABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's oper- ations described in section 1, above, have a close and in- timate relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in, and is engaging in certain unfair labor practices, I shall recom- mend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I find that Respondent discharged Deloris Ble- vins for reasons which offended the provisions of Section 8(a)(3) of the Act. I shall therefore recommend that Re- spondent make her whole for any loss of pay which she may have suffered as a result of the discrimination prac- ticed against her. The backpay provided herein with in- terest thereon to be computed in the manner proscribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).'4 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Ladies' Garment Workers' Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in, and is engaging in, unfair labor practices proscribed by Section 8(a)(1) of the Act. 4. By unlawfully discharging Deloris Blevins on or about February 24, 1978, Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(3) of the Act. Upon the foregoing findings of fact, conclusions of law, 5 and the entire record and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: L' See, generally, Isis Plumbing & Heating Company, 138 NLRB 715 (1962). The General Counsel urges, in a supplemental brief, an interest rate increase to 9 percent. However, in this regard I am obliged to follow the precedent established by the Board as set out in the above-cited cases I note, however, that the I.R.S "adjusted prime interest rate," and the formula adopted by the Board in Florida Steel, 'will raise the interest rates to 12 percent effective February 1. 1980 '" In its brief, Charging Party urges that unalleged violations be found in connection with statements made by Supervisors Clarisy Howell and Margaret Latham, even though neither testified. In my opinion, these matters have not been fully litigated and therefore findings thereon are not appropriate. JEFFERSON APPAREL COMPANY 56! 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER' 6 The Respondent, Ashley Warp Knitting, Inc., d/b/a Jefferson Apparel Company, its officers, agents, succes- sors, and assigns, shall: I. Cease and desist from: (a) Promulgating or enforcing any rule prohibiting union activities on company time while permitting other types of solicitations or activities on company time where the purpose thereof is to interfere with union or- ganization. (b) Threatening to close its plant if the employees ac- quire union representation. (c) Interrogating employees concerning their union sentiments or affiliations. (d) Granting wage increases to employees for the pur- pose of impeding or interfering with their self-organiza- tional activities; provided, however, that nothing herein shall be construed to require their revocation of any wage increases heretofore granted. (e) Discharging or otherwise discriminating against any employee for engaging in protected concerted activi- ties. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which I find is necessary to effectuate the policies of the Act: " In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (a) Offer to Deloris Blevins immediate and full rein- statement to her former job or, if it no longer exists, to substantially equivalent employment, and make her whole for any loss of pay she may have sufferd as a result of discrimination practiced against her in the manner set forth in the section of this Decision entitled "The Remedy." (b) Rescind and expunge any reference to any unlaw- ful warning from Billy Miller's employment record. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facilities at Jefferson, North Carolina, copies of the attached notice marked "Appendix."17 Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by Re- spondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 11, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. ' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."