Opelika Textile Mills, Inc.

In the Matter of M. SNOWER & COMPANY, DIVISION OF OPELIXA TEx- TILE MILLS, INC. and AMALGAMATED CLOTHING WORKERS OF AMER- ICA, C. 1. 0. Case No. 14-C-1273.-Decided April 29, 1919 DECISION AND °ORDER On January 28, 1949, Trial Examiner Charles L. Ferguson 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, the Intermediate Report, and the Respondent's exceptions and brief, in our opinion,' adequately present the issues and the positions of the parties. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds 'that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the modifications noted below. 1. The Trial Examiner found, and we agree, that the Respondent interfered with, restrained, and coerced its employees, in violation of Section 8 (a) (1) of the Act, by interrogating employees regarding their union activities; by threats, made to individual employees and in a speech to the assembled employees, that the plant would be closed if the Union succeeded in organizing it; and by discriminatorily dis- charging Katherine Morgan at the time and under the circumstances in which her discharge occurred. Unlike the Trial Examiner, how- ' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three-member panel [Chairman Herzog and Members Houston and Murdock]. 83 N. L. R. B., No. 38. 290 M. SNOWER & COMPANY 291 ever, we do-not+rely on the "course of action" pursued by the Respond- ent;' nor on the warning to the union organizer that the plant would close if organized, as there is no showing that that particular state- ment was communicated, or intended by the Respondent to be com- municated, to the employees? 2. The Trial Examiner found that the Respondent discriminatorily discharged Katherine Morgan and Iola Baker. We find unpersuasive the various contradictory reasons advanced by the Respondent for these discharges, and therefore, and for the reasons set forth in the Intermediate Report, agree with the Trial Examiner that Morgan and Baker were discharged in violation of Section 8 (a) (3) of the Act. 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, M. Snower &- Company, Division of Opelika Textile Mills, Inc., Cairo, Illinois, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in Amalgamated Clothing Workers of America, C. 1. 0., or in any other labor organization of its employees, by discriminatorily discharging or refusing to reinstate any of its employees, or by discriminating in any other manner in regard to their hire and tenure of employment, or any term or condition of employ- ment; (b) Interrogating its employees concerning their union affiliations, activities, or sympathies; (c) Threatening to close the plant if the employees organize a union ; (d) In any other manner interfering with, restraining or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Amalgamated Clothing Workers of America, C. I. 0., or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activi- ties, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as guaran- teed in Section 7 of the Act. 3 Matter of Parkaide Hotel, 74 N. L. R. B. 809. 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2.'Take the following affirmative action which the Board find's will effectuate the policies of the Act (a)' Offer to Katherine Morgan and Iola Baker immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; (b) Make whole Katherine Morgan and Iola Baker for any loss of pay they may have suffered by reason of the Respondent's discrimina- tion against them by payment to each of them of a sum of money equal to the amount which she normally would have earned -as wages 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 at its plant in Cairo, Illinois, copies of the notice attached ,hereto and marked "Appendix A." 8 Copies of said notice, to be fur- nished,by the Regional Director for the Fourteenth Region, after being signed by representatives of the Respondent, shall be posted by the Respondent 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 Fourteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order 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 discourage membership in'AMALGAMATED CLOTH- ING WORKERS OF AMERICA, C. 1. 0., or in any other labor organiza- tion, by discriminatorily discharging or refusing to reinstate any of our employees, or by discriminating in any other manner in re- gard to their hire and tenure of employment, or any term or con- dition of employment; WE WILL NOT interrogate our employees in any manner concern- ing their union affiliations, activities, or sympathies; WE WILL NOT threaten employees that we will suspend opera- tions or take any other economic reprisal if AMALGAMATED CLOTH- 3In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted in the notice, before the words "A DECISION AND ORDER," the words, "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." M. SNOWER & COMPANY 293 ING WORKERS OF AMERICA, C. 1. 0., or any other labor organization, succeeds in unionizing our plant. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist AMALGAMATED CLOTHING WORKERS OF AMERICA, C. I. 0., or any other labor organ- ization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- rose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL OFFER to Katherine Morgan and Iola Baker immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges they previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination against them. All our employees are free to become, remain, or refrain from be- coming, members of the above-named union or any other labor organi- zation except to the extent that this right may be affected by an agree- ment in conformity with Section 8 (a) (3) of the amended Act. M. SNOWER AND COMPANY, DIVISION OF OPELIKA TEXTILE MILLS, INC., Employer. By ------------------------------------------- (Representative) (Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER Messrs. V. Lee McMahon and Harry G. Carlson, for the General Counsel. Mr. Sidney W. Hollander, of Chicago, Ill., for the Respondent. Mr. Nile Hagy, of St. Louis, Mo., for the Union. STATEMENT OF THE CASE Upon a charge filed March 10, 1947, by the Amalgamated Clothing Workers of America, CIO, herein called the Union, the General Counsel of the National Labor Relations Board,' by the Regional Director for the Fourteenth Region, 'The General Counsel and his representatives at the hearing are herein referred to as the General Counsel , and the National Labor Relations Board as the Board. 844340-50-vol. 83-20 294 DECISIONS OF ;NATIONAL LABOR RELATIONS BOARD (St. Louis, Missouri), issued his complaint dated June 27, 1948, against M. Snower, Division of Opelika Textile Mill's,- Inc., an Illinois corporation ' with ' its principal office at Chicago, Illinois, and operating a branch plant at Cairo, Illinois,' herein called the Respondent,' alleging that the Respondent had en- gaged in and was engaging 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, and Section 8 (a) (1) and (3) of the Act as amended by the Labor Management Relations Act, 1947, 61 Stat. 136.' Copies of the complaint, the charge, and the notice of hearing were duly served upon Respondent and the Union. With respect to unfair labor practices, the complaint alleges, in substance, that "from on or about January 1947," and continuing to the date of the com- plaint, Respondent interrogated its employees concerning their union affiliations and activity and threatened to close its Cairo plant if it was organized by the Union and that on March 4 and 5, 1947, respectively, Respondent discharged employees Iola Baker and Katherine Morgan, and since then has refused and failed to reinstate them, because of their union activities. By its answer, filed June 22, 1948, Respondent admitted it was "engaged in interstate commerce," but denied that it had engaged in any of the unfair labor practices alleged in the complaint. Pursuant to notice, a hearing was held at Cairo, Illinois, on July 27 and 28, 1948. before the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and the Respondent were represented by coun- sel and participated in the hearing. The Union was represented by its Regional Director. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the close of the evidence a motion by the General Counsel to conform the pleadings to the proof "in regard to names, dates and places" was granted with- out objection. Both counsel waived oral argument and leave was granted to file briefs or proposed findings and conclusions, or both, on or before August 12, 1948. Subsequently the time for filing briefs was extended to August 24, 1948. I timely received and have examined and considered the briefs filed herein by the General Counsel and counsel for the Respondent respectively. Upon the entire record in the case, and from my observation of the witnesses, I make the following : - - - FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT It was stipulated, of record, by and between counsel for Respondent and the General counsel that: M. Snower and Company, Division of Opelika Textile Mills, Inc., is an Illinois corporation with its principal office and place of business located at 361 W. Chestnut Street, Chicago 10, Illinois and with a branch factory at 2715 Commercial Avenue, Cairo, Illinois where the Respondent is engaged in the manufacture, production and sale of washable service apparel. During the year 1947, a representative period, the Respondent purchased raw materials consisting principally of cotton for its Cairo plant in excess 2 The complaint alleges unfair labor practices at this branch plant. 8 The Respondent is also variously referred to herein as Snower , the M. -Snower Com- pany and the Company. 4 June 23, 1947, Public Law 101, 80th Congress, Chapter 120, 1st Session. Referred to at times as the Amended Act or the Act, as amended. 0 M. SNOWER & COMPANY 295 of $25,000 in value of which approximately 90% was shipped to the Cairo plant from points outside the, State of Illinois. During the same period, Respondent sold finished products in excess of $50,000 of which approximately 90% was shipped from the Cairo plant -to points outside the State of Illinois. Respondent concedes that it is engaged in commerce within the meaning of the National Labor Relations Act as amended. H. THE LABOR ORGANIZATION INVOLVED It was further stipulated, of record, by and between counsel for Respondent and the General Counsel, and I so find, "that the Amalgamated Clothing Workers of America, CIO, is a labor organization, within the meaning of the National Labor Relations Act, (Section 2 (5)) admitting to membership employees of the Respondent." III. THE. UNFAIR LABOR' PRACTICES A. Background For many years the firm of D. L. Marx and Company owned and operated a small manufacturing plant located at Cairo, Illinois. Reference is made in the testimony to operations of the Marx firm in 1938 and continuously thereafter to September 6, 1946, the date Respondent, M. Snower and Company, took over the plant and the business from the Marx firm, although the testimony indicates the Marx firm had in fact operated the plant for a much longer period. The Marx firm was a partnership composed of Stanley A. Marx and his father. Stanley A. Marx, the key management personality and authority in this controversy, was the active plant manager. When the name Marx is hereinafter used the reference is to Stanley A. Marx. The Marx firm made "`cotton work garments" and em- ployed from 30 to 40 girls and women in the operation of the various machines and the performance of other tasks in connection with their manufacturing business. The testimony discloses that a very informal and mutually friendly-relationship existed between Stanley A. Marx and his employees. There were no specific or announced rules or requirements governing employee conduct nor does it appear that any definite or generally accepted and enforced rules as to employee conduct had become established by practice or custom. Marx seems to have had a kindly, understanding, and helpful attitude toward the employees which was reciprocated by them. As illustrative of the friendly relationship between Marx, "the boss," and the employees, they generally addressed him and referred to him as "Stanley."' Marx was in close and personal contact with the employees during working hours. There was no union organization or union or concerted employee activity in the Marx plant. Apparently the employees had ready and unrestricted access to "the boss" at all times in reference to wages, working conditions, and grievances. Marx held and was firmly of the opinion that a union in the plant could serve no beneficial purpose and would not be in the best interest of either the employer or the employees. As of September 6, 1946, the Respondent, M. Snower and Company, "took over"' the Marx plant and has operated same since that date. Stanley A. Marx was 5 Girls employed at the plant, as witnesses, referred to Marx, in their testimony, as Stanley and the testimony is that- "all the girls in the plant called him Stanley." 8I am not clear whether Snower purchased or leased the Marx plant. It is my impres- sion that Snower purchased the plant from the Marx firm, at least the machinery. Anyway Snower "took over" ( term used in the testimony) full control on the date stated. 296 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD 0 employed and continued by the Snower Company as manager. In his capacity as manager for Snower, Marx was the sole supervisor at the plant. He did the hiring, made assignments of work and tasks, and exercised the same authority in reference to the employees that he formerly had exercised as owner and manager. It appears that the Marx employees were continued as Snower employees and per- haps some new employees added, as Marx testified that after Snower "took over" the employees numbered "in the neighborhood of 50." All of the employee and former employee witnesses who testified in this proceeding had worked for the Marx firm and continued, upon the change in ownership, to work for Snower. These witnesses referred to Marx as "our only boss" and "our boss all of the time." The same personal manager and employee relationship and administration that had existed during the Marx ownership continued without change or limi- tation after Snower took over. There was no change of any kind whatsoever in personnel policies or practices and no rules of any kind relating to employee con- duct were announced. Under the Snower operation there was a change in the method of paying the employees, in the materials used and the type of garment manufactured. Snower turned to the manufacture of "washable cotton apparel." The description of these garments is not clearly given in the testimony but as the undersigned understands they consisted largely of washable work coats and dresses of the type, by way of illustration, used by nurses, dentists, barbers, and other professional and business workers. M. Snower and Company operated a plant at Chicago, Illinois, where it maintained its principal office, and other plants, in addition to this Cairo, Illinois, plant, at other points, all engaged in or connected with the manufacture of garments and wearing apparel. B. Interference, restraint, and coercion 1. Statement of evidence bearing on the allegation of interference, restraint, and coercion The Snower Company was opposed to unions in its plants and, according to the testimony of Marx at the hearing, none of its plants had been "unionized." In a speech' to the employees of this Cairo plant Marx stated that the president of the Snower Company had informed him (Marx) that the "Chicago plant had always resisted unionization and that they intended operating their organization as a unified whole." Marx testified that he was informed of, and heard talk about, the formation of a union at the Cairo plant as early as November 1946, that he learned of it "through reports" made to him by employees and "the usual sewing room talk" and thereafter "heard about it constantly from women talking across the room." Katherine Morgan had, with interruptions of varying length, worked for the Marx firm since 1938 and was employed by Marx at the time Snower took over the plant. Iola Baker 8 had worked for Marx only a short time before Snower took over. As did the other girls and women employed by Marx, Morgan and Baker continued as employees of Snower. "Sometime before Christmas," or This speech will be discussed later herein when reached in the course of the chrono- logical statement of events. 8Iola Baker and Katherine Morgan are the two girls alleged to have been discrimi- natorily discharged on March 4 and 5, 1947, respectively. M. SNOWER & COMPANY 297 "around Christmas" 1946,' Marx directed Baker, his office girl, to "look up Katherine's (Morgan ) record and see how much she was making an hour." Baker did so and advised Marx of the amount and while , in her testimony, she could not recall the exact amount shown by the records, she remembered "it was an average rate." Marx then remarked to Baker that Morgan "had been doing some agitating and he supposed" Baker "had heard about it already" and "asked" Baker to send Morgan, who was working in the factory on the second floor, down- stairs to the office.10 Baker notified Morgan that "Stanley wanted to see her downstairs." The following is Morgan's accredited account of the interview, which, as is presently noted, was not denied in any particular by Marx in his testimony and was in fact confirmed by him : "I went downstairs and Stanley told me to sit down, that he wanted to talk to me. He said he had heard there were a lot of rumors going around that I was agitating for a union. I told him I wasn't agitating for a union and knew nothing of one at that time. He told me not to hold a grudge against girls upstairs, he did not hear it upstairs but heard it out of town. He said, 'As you know M. Snower . . . is a small concern here and they will probably just move out the machinery.' He did not think they would let us organize here, as they weren't organized in Chicago. He also said he didn't know if I was depending upon my job for a living or not but of course some of the girls had to work. He would hate to think of me being the cause of some of the other girls losing their jobs." Morgan testified that at this point she "started crying," whereupon Marx said : "Don't go back upstairs crying for I do not want the girls to think I am bawling you out for work. If you haven't been agitating for the Union don't start it and don't mention this conversation upstairs for I do not want any of the girls to know about it." Marx's testimony that he was aware of union sentiment and talk among the employees as early as November 1946 has been related above. In that connection he was asked, on cross-examination, "Did you do anything about it in November." To which Marx replied: "No, I called Katherine (Morgan) downstairs, as she testified. The words she testified were substantially right." Shortly after the interview with Katherine Morgan a girl named Roberta Castellano made application for work at the Snower plant. Marx rejected her application on the grounds, as he stated to Baker , that Mrs. Castellano's husband was "an agent for a laundry union" and if he hired her "some of the girls might think she was up there to organize." He directed that a notation be made "below her name in the application book, that her husband was an agent for the laundry union." From the beginning of the union talk and discussion in the factory and through- out the period of time covered by the union activities involved in this proceeding Marx reported the union activities and developments to the Chicago office. Most of these reports were made'verbally to Mr . Katz and Mr. Cohn, company officers or representatives, either at the Cairo plant or by telephone to Chicago. He kept the Company currently informed of new developments which he considered of consequence. He stated that he "sifted the chaff from the wheat." Such visits as Mr. Katz, Mr. Cohn or other representatives of the home or principal office of Snower and Company at Chicago made to the Cairo plant were in connection with periodic conferences with Marx and inspections or surveys of operations in general. So far as the evidence discloses they at no time exercised, or at- tempted to exercise, any authority over or supervision of local personnel relations 0 Baker testified, "Sometime before Christmas" and Morgan , "around Christmas," 1946. 10 The quoted portions are excerpts from the undenled and accredited testimony of Iola Baker concerning this incident. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or management affairs or to interfere with, alter or-change the personnel policies and attitudes so long established and followed by Marx. Except as otherwise noted the events herein set out occurred during 1947. The latter part of January, Blaine Draper, an organizer for the Amalgamated Clothing Workers of America, CIO, arrived in Cairo with the purpose of organ- izing a union at Respondent's plant. Draper first contacted Iola Baker at her (Baker's ) home. When Baker advised Draper that she (Baker) worked in the office, Draper, expressing some doubt as to Baker's eligibility for membership in the Union, requested "names of girls working on the floor so that she might call on them." Baker gave Draper "four or five names." Draper testified that Katherine Morgan was "among the first employees" she contacted. On that occasion Draper called on Morgan at her (Morgan's) home at night and solicited Morgan's support of the Union. Morgan told Draper, "I am for the Union and will do all I can to help organize." Another employee, Nola Steele,' was present at this conference and both Morgan and Steele there and then enlisted in the union organizational campaign and both became members of the organizing committee which was later formed. Morgan immediately became active in behalf of the Union and openly espoused the union cause. She approached employees on the plant premises, before work and during the lunch period, seeking to interest them in the Union. She testified that she personally talked with "about half of the employees" about the Union, explaining the "benefits': she thought the employees "could get out of it." The evidence indicates that Morgan was the most active and openly aggressive mem- ,her of the organizing committee.' Baker talked privately with the employees about the Union expressing opinions favorable to the Union's Respondent's plant was housed in a two-story building. The first floor was used for storage and shipping and a small office. The entire second floor" was used for the manufacturing or production operations. On the morning of Feb- ruary 10, Morgan, who worked on the second,. or shop floor, went "back to the furnace to get warm," as the girls-were wont to do on cold.mornings before commencing work, where she was joined by two other employees, Geneva Meredith .and Nola Steele Marx was seated about 5 feet from the furnace at a "folding table which he was using as a ,desk." He said something to Morgan which she did not understand and she walked over to the table. The following account of the ensuing conversation is taken from the accredited testimony of Morgan, which was not denied or controverted by Marx. " He (Marx ) said, 'Katherine, you lied to me didn't you.' I asked, What about. He said, 'Before when I talked to you about agitating for a union you did not stop.' I said, 'Stanley, I did not have anything to do with starting this Union.' He said, 'Well if you did not "Nola Steele afterwards married one Meredith and as Nola Meredith testified as a witness at the hearing. She is variously referred to in the record as Nola Steele, Nola Meredith, and Nola Steele Meredith. 12 As illustrative of this is the testimony of Elsie Smoot, one of the employees. Smoot ,worked for the Marx Company and continued as a Knower employee until sometime in -September 1947. Smoot testified that Morgan was the first person who talked to her about the Union and that she told Morgan that she -(Smoot) "would'go for the Union." This occurred at the plant in January or February.. As to Morgan's activities, Smoot testified Morgan was busy on behalf of the Union, "any time she had a chance" talking .to employees at the plant "before work, at noon, and in afternoon," "morning and noon at the factory and afternoon (after work) at the drug store " as Smoot testified that Baker talked with her many times, at least "a dozen times," about the Union. 14 As I understand the arrangement the entire second floor was one room , open space, without partitions. M. SNOWER & COMPANY 299 start it you are not doing.-what I asked you to do in keeping it going.' He told me I seemed to forget easy, that I must have forgotten what sufferings my hus- band, daughter and I had during the strike at Valley Steel. My husband was employed at Valley Steel and they went on strike.1"5 In the early part of February, after the union organizational activities were well under way, Marx asked Baker, the office girl, if she "had been approached yet as to joining the Union." Baker testified that thereupon she asked, "What he meant" and told him she "did not know what he was talking about" and ,that "he just turned around and walked off." This conversation occurred in the after- noon after the lunch hour and later that same afternoon Marx told Baker that "the girls were wasting their time" and "he did not think the older girls would go for the Union." On February 11, presumably in the evening or at least after working hours, the organizing committee (all employees of Respondent) met with Draper, the union organizer, at the Cairo Hotel. Morgan driving an automobile owned by Geneva Meredith conveyed the members of the organizing committee to the meeting. Morgan let the other girls out of the car on Washington Street near the intersection of Washington and 8th Streets "to go over to the hotel" and she then "went on to pick up another girls 18 When Morgan stopped the auto- mobile on Washington Street to let the girls out Marx was observed in his auto- mobile, which was standing on 8th Street at the intersection, "just ready to enter into Washington." On the following day, February 12, at about 2:30 or 3 o'clock in the afternoon, during working hours, Marx pulled the power switch and shut down the machines and standing at or near the switch read a prepared speech to the employees who remained at their machines during its delivery. At the conclusion of the speech he turned on the power and work was resumed. After delivery of the speech, Marx directed Baker to make typewritten copies of it and "if any of the employees wanted to read the speech to give it to them." Marx verified General Counsel's Exhibit 3 as being a copy of the speech. A copy of that exhibit, being the full text of the speech, is attached hereto as Appendix A. Marx testified that he was prompted to make this speech by the request of "some of the employees" that he "say something to them" advising "how I stood on the matter" (the Union). An abstract of paragraphs 1 to 5, inclusive, of the speech follows. Marx com- menced by stating, "I am reading these remarks to you to prevent any distortion or misrepresentation of what I have to say." He replied to a charge, which he said had been made, that all he (Marx) "is thinking about is his job" with the assertion that "maybe" he was "thinking about your jobs too" but submitted that "should you decide in favor of a closed shop, it will indicate a reflection on your lack of satisfaction with the present management (Marx) and I shall notify M. Snower and Co. that they are free to terminate my contract." He then noted that, under the Marx management, the employer-employee relationship had been 15 Geneva Meredith fully corroborated Morgan's testimony concerning this incident. ,Her testimony was that, on this occasion, "Stanley said, 'Katherine you lied to me.' Katherine was standing by the furnace. She went three or four steps over there and said, 'What did you say Stanley ?' He said, 'You lied to me about agitating for a union.' She said, 'I am not agitating.' He said, 'At least you are not doing what I told you to' I got a hold of her dress and said, 'Come on Katherine, don't say any more, let's go to our machines' " This witness added that Marx also said, "You forget easy. You forget how Preacher (Morgan's husband) did at Peoria, and your sufferings on account of Valley Steel." The other employee at the furnace that morning, Nola Steele , said she was at the furnace the morning Marx "talked to Katherine about her union activities" but she did not hear what was said. 10 The context indicates a committee member. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "singularly happy" and "you have always had direct access to the management for any complaints and grievances." Marx next observed that "tension" had existed in the plant "since this issue arose" and inquired, "Are you happier with this division than you were before?" It was then recalled that "at one time," about 1920, the Marx firm "operated a closed shop" and that the Union "had a paid business agent here, who kept the employees continually stirred up and divided into two camps" and "they were kept busy playing union politics." Marx here stated that he wished to "say a word in favor of collective bargaining," that "in a large plant, where workers become mere numbers, it 'is their only method of presenting grievances or complaints to the management," and added "a word of praise for the national labor unions in our industry . . . as splendidly operated organizations run in a truly democratic manner." To this point Marx confined his remarks generally to permissible expression of "views, argument or opinion" " about the organization of a union at this plant, indicating unmistakably that in his opinion a union would not serve the best interests of the employees and would impair the pleasant employer-employee relationship that had so long existed there. In paragraphs 6 and 7 an abrupt change in the pres- entation of the matter is made. As requisite to a proper consideration of the statements and representations therein made, in the light of the allegations of the complaint, the full text of these paragraphs is set out, as follows : The acceptance or rejection of a contract is something entirely out of my hands and rests with the top management,of M. Snower & Co. In talking with the President, Monday morning, and telling him of this matter, he stated that the Chicago plant had always resisted unionization and that they in- tended operating their organization as a unified whole. Their investment in this plant represents a trifling amount of their capitalization and it is my belief that they could easily write off the entire venture as a total loss without suffering unduly. On the other hand, this industry promises to be a good thing for the town in absorbing surplus female labor and a good thing for you in affording secure employment, at a fair wage. The fact that your are here indicates that you wish to work, as a means of livelihood, to supplement other income or for other good and sufficient reasons. We Do know that we will continue operating as an open shop. We Do Not know if we will continue operating as a closecl shop. Remember the story of the dog who wanted to swap his bone for the one that his reflection in the water carried. It isn't always the best policy to swap the known for the unknown. It is true that some other firm might buy out M. Snower & Co.'s holdings in Cairo and operate under a contract but there would be a shut down for a protracted period and obtaining proper machinery today is a critical,prob- lem. A firm in Mounds City has had its building ready for four months and has been unable to start operations because of this lack. In paragraph 8 Marx surmised that "the professional organizer had probably promised you that she will obtain the same rate for you that prevails at the Chicago plant." He then explained that there is a 20 percent differential oc- casioned by the cost "of freighting materials back and forth, duplication of management and . . . doing business under two roofs instead of one" and asserted that "this plant would be shut down before" the Company would pay the employees the same rate paid at the Chicago plant. The remainder of the speech, paragraphs 9, 10, and 11, appears to be generally permissible views, 11 Sec. 8 (c), Labor Management Relations Act, 1947. M. SNOWER & COMPANY 301 arguments, and opinion. Reference was made to some statements allegedly made by the "professional organizer" concerning "rest periods during the morning and afternoon" and Marx reminded the employees, "You girls have been free to take these periods with very few restrictions and those only when the privilege was obviously abused." A policy of impartiality in the apportionment and as- signment of work was declared and acknowledging the "finest kind of coopera- tion and compliance" on the part of the employees in the past, Marx reminded them that he "likewise" had "tried to comply with your requests when they were reasonable and within my power." Marx next surmised that "in your washroom and hotel-room conferences, during your morning pow wows . . . and in visits of the organizer to your homes you have probably been promised a paradise" but cautioned them to remember "there just isn't any Santa Claus" and the Company "will still require production to meet pay rolls." The speech then concludes with this statement : "Let me say, that there will be no reprisals against any girl active in this movement. It is something entirely within her rights and we wish you to know that your jobs are secure as long as you produce satisfactorily and on a parity with other employees and so long as M. Snower and Company continues to operate under my management in Cairo." As noted Marx delivered his speech to the employees about midafternoon of February 12. "The girls (employees) interested in the Union" held a "meeting" that night or "evening" at the Odd Fellows Hall. The employees were notified of this meeting, at the plant during the day, by members of the organizing commit- tee who "just let them know there would be a meeting and asked them" to. attend. Morgan personally talked to "several" of the girls about the meeting. Also organizers stood at the exits as the girls left work that day handing out "bills" advertising the meeting.18 Baker testified that she attended this meeting, that it was the only one of the union meetings she attended, that at that time 35 or 40 girls were employed at the plant and "almost half" or "between 15 and 20" were present at the meeting. Baker further testified that on the following day, Feb- ruary 13, Marx came to her and said he was "surprised that many of our people would go to the meeting and be interested in the Union" and "surprised that you (Baker) of all people would be dissatisfied with your job" and asked where she could "find another job as good as the one" she had there.19 Elaine Draper, the union organizer, testified that in February, the day following or "shortly" after Marx delivered the speech to the employees she went to the plant about 5 or 10 minutes after "quitting time . . . for the purpose of seeing" Marx "and talking to him . . . in private." Prior to that time she had seen Marx on two occasions but had not conversed with him. She had decided to seek a private interview with Marx in an effort to persuade him to cease his "activities" and "suggest to him he might have violated the law by his actions." Entering the plant she heard "female voices" on the second or shop floor and "realized that some of the girls had not yet left the plant." As she did not think it advisable to discuss the matters she had come to talk over with Marx with employees present she tarried at the "foot of the stairs" leading to the second floor to await the departure of the girls on the second floor whose voices she had heard. At that instant she discovered that a conversation or discussion about the Union was in progress at or near the stair landing on the second floor in which a man, whom, as will presently be noted, she later found to be Marx, and three of the girl employees were engaged . This prompted her to "listen to the rest of the con- 18 From the testimony of Katherine Morgan. " Baker's testimony concerning this incident was not controverted in any particular or even referred to by Marx in his testimony. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD versation" and she overheard the following. Marx said : "The difference is whether the plant is independently owned or foreignly owned. If it is a local plant and the men own the machinery and buildings, then the Union has got them by the short of the hair but if it is a foreign-owned plant they probably do not have much invested and can easily shut the plant down and move out. I suspect it will only cost this Company $15,000 to shut this plant down and that is not very much." At this point one of the girls said : "That is what I have been afraid of, that they would come in here and shut us down." Marx then stated : "When this all dies down, I am going to have some pleasant things to tell you. I can't tell you now, but I have talked to some of the people in Chicago and I think we will have some good news for you girls." Whereupon one of the girls exclaimed : "Gee, I hope so. This has been a pleasant place to work and I would not want to see the plant shut down." To this Marx replied : "You do not have to worry. I think most of the girls in here know they have a good job and they want security. I don't think they are going to throw that overboard." Some other conversation followed in which the girls mentioned invitations to union meetings which they had declined and then the girls started down the stairs. When Draper heard the girls coming down the stairs she started up the stairs and met the three girls "face to face." Draper recognized one of the girls as Dottie Glaub, an employee upon whom she had called at her (Glaub's) home. Draper did not know the names of the other girls but said she had seen them- "coming in and out of the plant" and "around the plant." On the second floor Draper found Marx standing "just a bit back from the stairway." The only other person in the room was a janitor "who was off in a corner sweeping." Draper introduced herself to Marx and told him she was sending a letter that day to all of his employees and "wanted him to see it. and know what we were saying." At the same time Marx gave Draper a copy of his speech to the employees, which he had delivered on February 12, "the day before or shortly before," and signed it for her. Draper then told Marx she had come to see if "we could reach an understanding," that she "thought he was violating the law in talking to some of the girls the way he had been," and that if he continued she "would be forced to file charges" of unfair labor practices against him. Marx denied that he had "coerced or intimidated" any of the em- ployees and said that "they were free to join the Union," but that he had been told by the president of the Company that he (the president) "would never sign a union contract, . . . would not put union labels in some of his garments and not in others and would not have a closed shop ever," and that he (Marx) "personally believed that the shop would close down if the Union came in." Marx again denied "intimidating the girls." Draper then told him that she had "stood at the foot of the stairs . . . and heard the conversation with Dottie Glaub and the other two women" and reminded him that the girls' remarks in the course of that conversa- tion indicated that they understood his statements to mean that the plant would be shut down if the Union came in, and asked him why, if that was not what he meant, he did not correct the interpretation the girls had placed upon his remarks. Marx said he "did not believe in being contentious." Shortly Marx terminated the conversation by walking to the stairs where he stopped, permitting Draper who was following to precede him down the stairs.'* 20 Draper's account of this incident and the conversations had and overheard is accepted as being substantially correct. It was not controverted in any particular by Marx nor 'as'any inquiry whatsoever made of Marx concerning the matters to which Draper testi- fled. Draper said that "immediately after" the conversations and incidents related she made notes thereof and of "what was said" which were later incorporated in a "complete statement of everything I had done or seen or heard in connection with the plant, the dates and the meetings." M. SNOWER & COMPANY 2 Conclusion as to interference, restraint, and coercion 303 Marx's day-by-day personal contact with the employees in this small plant and the close relationship which existed between them has been noted. Marx's testi- mony and admissions, set out above, and the circumstances developed by the whole testimony show that from the very inception of the union talk or "agita- tion," as Marx termed it, he was fully aware of, and kept informed about, what was going on in reference to union activity and who, among the employees, were promoting and supporting the union movement. The evidence clearly shows that the Snower Company and Marx, as their manager, agent, representative and spokesman at this plant, with full authority to hire and fire and direct all opera- tions there, were opposed to the organization of a union in the plant. The first issue that arises is whether that opposition took the form, through Marx's activities, of interference, restraint, and coercion of the employees as those terms are used in the Act. From the time the first rumor of union "agita- tion" came to his ears, to the date of the last union activity mentioned in the testimony, Marx's paramount theme by innuendo, suggestion, and implication, and, in fact, by unmistakable language, was to the effect that the organization ,of a union would imperil or endanger the employees' jobs and that rather than recognize the Union and enter into a union contract, the Company would close the plant, or at least withdraw from the Cairo operation. In his arraignment of Morgan, "around Christmas 1946," concerning "rumors" that she was "agitating for a union," Marx gave it as his opinion, and he was in a position to know and undoubtedly did know the Company's attitude, that the Company "would not let" the employees organize and forecast as the probable consequence of union or- ganization in the plant that the Company would "just move out the machinery," i. e., cease operations there. In this connection, Marx observed that "some of the .girls had to work" and "he would hate to think" that Morgan, through her activi- ties on behalf of the union, might be "the cause" of those girls "losing their jobs." The meaning stands out that if it union came into the plant, the Snower Company would cease operations and the girls would lose their jobs. Upon Morgan's denial that she had been "agitating" for the Union, as apparently at this paint she had not, Marx warned her not to do so in the future. This warning by "the boss" to an employee not to exercise the right, guaranteed her by the Act, to advo- cate and support the organization of a labor union in the plant was itself, as I view it, coercive in intendment and did not fall within the category of a mere expression of views, argument or opinion. This is particularly true in this in- stance and generally so as to Marx's statements about the Union as they were usually linked with a direct or implied threat of loss of job or that the Cairo plant would close or cease operations if a union was organized there. The next instance noted in the statement of facts, set out above, was the rejec- tion by Marx of an applicant for employment on the sole ground, as he stated to his office girl, that the applicant's husband was "an agent for a laundry union" and his direction that a "memorandum to that effect be made" below her name in the application book. It was thus made quite clear to Baker, the office girl, who was at least sympathetic to the Union, that if Marx discovered that an appli- cant for work was even remotely tainted with union connections, she would not be considered for employment. Marx's angry reprimand of Morgan, at the furnace on February 10, in the presence-and hearing of another employee, when he charged that Morgan had "lied" to him and had disregarded his earlier warning or admonition to her not to participate in union activity, certainly was coercive-in nature, if not in effect, 304 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD insofar as Morgan was concerned as it did not halt her union activities. In a small plant such as this, reports of such incidents generally have widespread cir- culation and are well calculated to intimidate the employees in the exercise of their right of self-organization. The test is, whether the employer's statements and conduct may reasonably be said to tend to interfere with the free exercise of his employees' rights under the Act and not whether some individual employee was thereby actually restrained or deterred in the exercise of such rights." As the union organizational activities rapidly expanded, early in February, Marx interrogated Baker as to whether she had been "approached" about joining the Union. Baker evaded a direct answer. On the day following a meeting of the organizing committee, the night or late afternoon before, Marx delivered his prepared speech under the circum- stances described above. The central theme of the speech was that the Shower Company would not continue operations at Cairo if a union was organized at that plant. This thought is rather adroitly woven into other parts of the speech, but is most emphasized in paragraphs 6 and 7, which are set out in full above. Here, the employees were told that the Company's Chicago plant "had always resisted unionization" and that the Company "intended operating their organi- zation as a unified whole." I construe this, as undoubtedly it was intended to be and was understood, to mean that the Company pursuant to its over-all policy in reference to "unionization" would not continue its operations at the Cairo plant if a union were established there. This construction is supported by the next statement to the effect that the Company could close the Cairo plant, "write it off as a total loss . . . without suffering unduly" as its "invest- ment in this plant represents a trifling amount." It will be noted, in consider- ing this speech, that Marx varies his use of terms in referring to union organi- zation and it is apparent that he uses the terms organize, unionization, and closed shop synonymously. In his statement that "We do know we will continue oper- ating as an open shop. We do not know if we will continue operating as a closed shop," the "We" apparently includes or embraces, and is limited to, the employees and Marx, that is, in this summary of the situation confronting them, Marx associates himself with the employee. The meaning of this last statement becomes clearer in the light of the following statement that, "It is true some other firm might buy out M. Snower & Co.'s holdings in Cairo and operate under a contract but there would be a shut-down for a protracted period and obtaining proper machinery today is a critical problem." He illustrated this last-mentioned difficulty about obtaining machinery by citing the experience of another firm which had had its plant building ready for occupancy for 4 months but had not yet received delivery of the necessary machinery. He made it clear enough, I think, that as an open shop the Snower Company would con- tinue operations, but that the only likelihood of operations continuing there if a union was organized in the plant was that some firm who would recognize, and operate under a contract with, the Union would "buy out" the Snower Company's holdings in Cairo. Even so, he says by inference, which I think is plainly implicit, the Snower Company would remove its machinery and a new company or firm would have to equip the plant, which would result in a "pro- tracted period" of unemployment. There are other passages in this speech which indirectly bear upon the main theme, but the language cited and discussed suffices to demonstrate that a threat to close the plant, or that the M. Snower 1 N. L. R. B. v. Ford Bros., November 15, 1948, 170 F. (2d) 735 (C. A. 6) ; N. L. R. B. v. Illinois Tool Works, 153 F. (2d) 811, 814 ; N. L. R. B. v. Link-Belt Company, 311 U. S. 584,588. M. SNOWER & COMPANY 305 Company would withdraw from the operation of the plant, if a union was organized, was interposed as a barrier to the union organizational efforts which had about that time commenced to make considerable headway. It is interesting that before delivering it, Marx sent a copy of his speech to the Company's Chicago office. Evidently, upon their examination of it, those in authority at the Chicago office realized that the speech transgressed and thereupon wrote Marx "not to make the speech." His answer was, "I am sorry, I have already made it." A meeting of the employees interested in the organi- zation of the Union was called for the night following the speech and was held at the Odd Fellows Hall. Less than one-half of the employees attended. The next day, in commenting on the union meeting of the night before, Marx told Baker, who had attended the meeting, that "he was surprised" that she "of all people would be dissatisfied with your job" and asked where she could "find another as good as the one she had there." This was in line with and a con- tinuance of the course he had -assiduously pursued of implying that in some way the employees' jobs and the continuance of their jobs was contingent upon their repudiation of the Union. Marx's statements, his speech to the employees, and his uncompromising oppo- sition to the union movement, and manner of expressing same, prompted Draper, the union organizer, to call on him on the day following the delivery of the speech to remonstrate and request that he desist from activities calculated to interfere with, restrain, or coerce the employees in their right to organize. I have related above the discussion about a union in the plant, overheard by Draper, in which Marx and three of the girl employees participated. On that occasion, Marx told the girls that "it would only cost this Company $15,000 to shut this plant down and that is not very much." When the girls expressed apprehension about the plant being "shut down," Marx expressed the belief that most of the girls em- ployed there would not "throw" their job and the security it afforded "overboard." Here was a reiteration of the theme of his speech and his prior statements, linking the continuance of operations and the girls' jobs to a repudiation of the Union. In this conversation he also told the girls, in substance, that he had talked to the Company's officials in Chicago and that when the union activities ceased he would have "some good news for them," which he could not tell them "now," thus, in effect, holding out a promise of benefits of some sort; in connection with their jobs, which would accrue to them upon elimination of the union movement in the plant. In the ensuing conversation with Draper, Marx was direct in his statements. He told her that the president of the Company had declared that "he would never sign a union contract . . . and would not put union labels on some of his garments and not on others and would not have a closed shop ever." Marx then expressed his opinion as to how that company policy would be implemented, if necessary, at the Cairo plant, I. e., "that the shop would be closed down if the Union came in." I am constrained to observe here that although the Company's principal officers had full knowledge of the content and purport of Marx's speech to the employees and despite the fact they apparently realized that it passed the bounds of privi- leged speech, or, at least, questioned its propriety, as evidenced by their direction to Marx that he not deliver it, they, nevertheless, by their complete silence and inaction approved and ratified it as they took no action of any kind to repudiate the threats and implications contained therein and to so inform the employees. I find that Marx's interrogation of Morgan and Baker about union activities and their union attitudes and sympathies constituted interference, restraint, and coercion as those terms are used in Section 8 (1) of the Act. 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I further find that by the course of action pursued, as aforesaid, by and through its agent and representative, invested with full management authority at its. Cairo plant, Marx's various statements to individual employees and groups of employees and to the union organizer and his speech to the employees, whereby its employees were met, harassed and deterred in their efforts to form a labor union by threats that if they did so the plant would be closed or its operations there withdrawn with the consequent loss of their jobs coupled with the implied promise of the benefits of job continuance and security, and other intimated but undisclosed benefits, if they would desist therefrom, Respondent interfered with, restrained, and coerced its employees at this plant in the exercise of the rights. guaranteed to them by Section 7 of the Act2 and thereby violated Section 8 (1) of the Act. C. Discharge of Katherine Morgan 1. Evidence relating to the discharge of Morgan A 40-hour week of five 8-hour days, Monday through. Friday, was maintained. However, the weekly wage was computed upon a week of 5 days from and includ- ing Wednesday to and including the following Tuesday. On Wednesday morning, February 19, Katherine Morgan was ill and unable to report for work She sent her "piecework tickets" for the workweek ending the day before, Wednesday, February 12, to Tuesday, February 18, both inclusive, to Marx by her husband. She stated at one point in her testimony that she told her husband to tell Marx that she was ill and could not report for work. She also stated that when her husband "took them (the tickets) over, Stanley knew I would not be there He 'knew if I did not report and sent my tickets by someone else I would not be at work." Marx testified that when Morgan's husband delivered the tickets, on February 19, he did not "say anything about Katherine being ill," that he merely "handed them to me and said `Here are Katherine's tickets,' " and that he (Marx) "probably" said, "thank you." Marx did not make "any inquiry at the time." Morgan's husband did not testify. It appears, and I so conclude, that on this occasion, Morgan's husband did not tell Marx that she was ill. The Morgan home, at that time, was "about half a block southeast of the factory on the other side of the street." Morgan did not have a telephone in her home. Morgan did not feel physically able to return to work until Wednes- day, March 5, 2 full calendar weeks and 10 work days from February 18, the last day she worked. During this time she did not call a doctor and was not under a doctor's care nor was she confined to her bed or to her home the whole time. However, so far as the evidence shows, the only occasions during that period that she did leave her home were trips to a grocery store "across the street" from her home. The number of these trips is not given. She stated, that she "figured" her illness as a "gall bladder attack," that her "stomach was. swollen" and that there were "four or five days during that period" that she "could hardly wear" her clothes and that her "stomach was so swollen" she "could not fasten" her dress. 22 Peoples Motor Express, Inc., 74 N. L. R B. 1597; Morrison Turning Co., 77 N. L. R. B. 670; Steinberg & Co., 78 N. L. R. B. 211; Artcraft Hosiery, 78 N. L. R. B. 833; Sunland Biscuit Company, Inc., 78 N. L. R. B. 714; Dixie Manufacturing Co., 79 N. L. R. B. 645; Electric City Dyeing Co., 79 N. L. R. B. 872; Piedmont Wagon and Manufacturing Co., 79 N. L. R. B. 967; N. L. R. B. v. Hoppes Mfg. Co., 170 F. (2d) 962 (C. A. 6, decided Nov. 29, 1948 ) ; N. L. R. B. v. Gate City Cotton Mills, 167 F. (2d) 647 (C. A. 5, 1948). •M. SNOWER & COMPANY 307 Morgan testified that at noon on Friday, February 21,'the third day of her illness and absence from work, Nola Steele 23 came: over from the plant to visit her and at that time she asked Steele to tell Marx that" she was ill and "would not be in to work for a few days." With the exception that she was unable to fix the exact date, Steele corroborated Morgan's testimony concerning this incident. Steele testified as follows : she went to see Morgan one day at noon "because I knew she (Morgan) was sick." Steele had worked that morning. She could not recall the date of this noontime visit but stated that Morgan "had been sick several days." On that occasion, Morgan asked her "to tell Marx that she (Morgan) was sick" and "would not be in to work for a few days." Upon returning to work that afternoon, Steele delivered Morgan's message to Marx "at the factory, on the second floor," and told him Morgan was "sick" and "it would be a few days before she could come back to work." There was only one instance that she conveyed such a message to Marx on behalf of Morgan and that was during Morgan's illness preceding her termination. Steele went to see Morgan several times during her illness. She testified that Morgan "was swollen a lot . . . her stomach was swollen" and "her face looked like it was swollen." Steele "tried to get her to go see a doctor because I thought she needed to " Marx, called as a witness by Respondent, testified that during the period "between February 18 (the last day Morgan worked) and March 5" (the date she reported able to return to work) Morgan "did not get in touch with" him "to advise" him "that she was sick or could not come to work" and that no one came to him "during that period" and told him "that Katherine Morgan had sent them to advise that she was sick." He admitted that early in that period he learned of Morgan's illness, stating that he "first found out Katherine was supposed to be sick three of four or five days after her absence," which would have been "three or four or five days" after February 18. Marx said that at that time "some of the girls told me that Katherine was sick or that he heard Katherine Morgan was sick." On cross-examination, Marx further admitted that Nola Steele "possibly" told him that Katherine was sick and "possibly other girls told me that too." In'reply to questions by the Trial Examiner on this phase, Marx said that "Nola Steele told me Katherine was sick. At least I heard that from some of the girls," that , it was "common talk" among the girls (em- ployees) that Morgan was sick, "that he knew some of the girls had been to see her" and knew "she was reported sick." During the morning of Wednesday, March 5, after an absence of 10 work days on account of the illness described, feeling that she was able to return to work, Morgan went to a telephone and called Marx. The following accredited testi- mony of Morgan relates the ensuing conversation and immediate subsequent events.R4 Morgan told Marx that she "would be in that day at noon," that she could not work that morning as the party she had engaged to "keep" her little girl could not report until noon. Marx said he "could not use me any more," that "I had been off about 2 weeks and he had to inquire to find out anything 23 Appeared as a witness under her married name of Nola Meredith , having married after the events here noted Nola Steele Meredith -was an employee and a friend of Morgan. See footnote 11. 24 The testimony of Morgan , the substance of which is here set out, was not controverted by Marx. In fact in reply to a question by Respondent 's counsel, "What was the conver- sation with Katherine Morgan on March 5 , when she called on the telephone?" Marx replied, "I can't remember that" Later he testified , "When she (Morgan ) appeared for work, I told her that her services were no longer required." 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about me, whether I was sick or what was wrong ." Morgan then said that she had "sent word in by Nola Steele."28 Marx said that she (Morgan) "knew it was customary in other plants" that an employee when absent "should report within a 24-hour period." Morgan replied, "it had not been customary in that plant." Thereupon Marx said, "Starting now it will be the rule if girls are off more than 24 hours without reporting they are automatically fired." The tele- phone conversation was terminated by Morgan inquiring "about coming up and getting my things" and Marx telling her that "it would be all right for me to get them." On the following day, Morgan and Iola Baker, who had been discharged on March 4 went together to the plant to see Marx and inquire about collecting unemployment compensation. Morgan's accredited testimony concerning state- ments by Marx on this occasion relating to her discharge or termination of her employment was that Marx "told me that so far as my work, my speed and ability he would give me a reference anywhere I wanted to go, that it was absenteeism that had fired me, not only now but in the past" and "that from now on it was going to be the policy if the girls (when absent) did not report within 24 hours they were automatically fired, even if the Company was organized they would still fire." Concerning this incident, Baker credibly testified that when Morgan asked Marx "why she had been fired," Marx said, "he was firing her because( of absenteeism and the rule to report within 24 hours." Whereupon Baker told Marx that "it was too late to tell her (Morgan) about that for we had not known about that rule before, any of the employees." To which Marx replied, "That is going to be the rule from now on." Baker also confirmed Morgan's testimony about Marx's statement assuring a favorable reference "as far as her (Morgan's) work was concerned." 2T On March 5, the day he discharged Morgan, or that her employment was definitely terminated,28 and the day after Baker's discharge, Marx communicated with the Chicago office by telephone concerning the action taken by him in respect to both girls. Following this telephone conversation, and on the same day, he wrote an undated letter to the Respondent Company directed to its Chicago office "attention Mr. Max Katz." 29 The first paragraph of the letter reads as follows : In answer to your inquiry as to the reason for the discharge of Katherine Morgan and Iola Baker from our employ, I herewith give you the details : in the case of Katherine Morgan, her services was always satisfactory with the exception that she was never dependable from the standpoint of attend- ance. Hitherto she had always managed to send me word as to reasons for her absenteeism within a rational time and this even when she lived in the country, a distance of about twelve miles from town. She now lives 25 On cross-examination Morgan stated that she did not "remember too exact" whether it was in the telephone conversation or the conversation with Marx when she went to the plant on the following day that she reminded Marx that she had "sent word in by Nola." 28 The evidence relating to the alleged discriminatory discharge of Iola Baker will be set out and reviewed later and separately. 27 The testimony of Morgan and Baker about Marx's statements at this time concerning Morgan's discharge and the quality of her work is accepted as being generally correct. It was not controverted by Marx. 2e The word "terminated" is used in deference at this time to one position taken by Respondent at one point in the hearing, hereinafter more fully discussed , which appeared to be that Marx did not really discharge Morgan but that in fact Morgan quit the employ- ment and the insistence that the use of the term "discharge" in that connection was improper. 20 This letter is in evidence as General Counsel's Exhibit 6. M. SNOWER & COMPANY 309 within a short block from the plant and even sent her husband here with her envelope and tickets without so much as a "by your leave." Common courtesy would dictate this. If protracted absenteeism of this sort were tolerated, it would destroy every vestige of discipline in industry "0 "About March 13," Harold Greenberg, a Field Examiner for the Board, called upon Marx at the Cairo plant and discussed with him "the charges" filed herein by the Union. In the course of that interview Marx said that at the time he discharged Morgan and Baker he had written a letter to the Respondent Com- pany stating the reasons for their discharge and in that connection told Green- berg the grounds or reasons for the discharges he had set forth in that letter 81 °Greenberg then requested that Marx supply him with a copy of the letter. Marx demurred saying he "would rather" Greenberg "get it from the company." Marx did not produce and Greenberg did not, on this occasion, see Marx's copy of the letter. Thereupon Greenberg requested the Respondent Company's Chicago office to furnish a copy of this letter. Apparently upon receipt of this request Respond- ent concluded it would be advisable to have Marx revise and rewrite his original letter of March 5 setting forth his reasons for discharging Morgan and Baker before same was submitted to the Field Examiner. According to Marx "either Mr. Snower or Mr. Katz" called him by telephone from the Chicago office and told him, in substance, that he would receive a "pre-written" letter, by mail, from the Chicago office for his signature as a substitute for his original letter of March 5, that "they were appearing at a hearing in St. Louis and wanted certain irrelevant facts (appearing in the original letter) omitted" in this "second letter." When Marx received the letter which had been prepared for him in the Chicago office and directed to "M: Snower & Company," at that address, instead of merely signing and forwarding it as he had been instructed to do he "rewrote" it with "several modifications." Referring to the letter, prepared for him by Respondent's Chicago office, Marx said, "I made the letter," which he wrote based upon this "pre-written" letter, "conform with those facts," that the only material modification that he could recall was in a statement in the "pre-written" letter that Katherine Morgan "lost money every week" which he "changed" to-read "every week but one" for "there was one week she did make production," and that "there were two or three other small changes, they may have been changes in the wording." 32 Marx then returned the "pre-written" letter which he had received from the Chicago office to that office and pursuant to instructions from either "Mr. Katz or Mr. Snower," he did not recall which, "The remainder of this letter relates to the discharge of Iola Baker and is not quoted at this time. The quoted first paragraph constitutes all that was said in this letter about Morgan. el This was the letter written by Marx on March 5 (he stated that as the date) in conformity with the telephonic request of Respondent 's Chicago office that he advise them in writing of the grounds of discharge of Morgan and Baker and is the same letter above referred to and from which the portion relating to Morgan is quoted in full, General •Counsel's Exhibit 6, see footnote No. 29. 82 This new, revised , rewritten and much altered letter, with both omissions from and additions to his original letter, which was finally written and signed by Marx as a sub- stitute for his original letter, was dated March 12. It is apparent that it was pre-dated and that the whole plan was conceived and executed after Greenberg 's interview with Marx "about March 13" when Marx had divulged the existence of his original letter written March 5 to the Company explaining the grounds of the discharges . In the telephonic conversation advising Marx that the Chicago office was forwarding him a prepared substitute letter for his signature , it was mentioned that the substitute letter was desired in connec- tion with Respondent's attendance at a conference to be held later in St. Louis (Board's Regional Office ). The letter notifying Respondent of that conference, according to a state- ment of record by Respondent's counsel, was dated March 19. 844340-50-vol 83-21 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mailed the new or substitute letter in a "pre-written addressed envelope" to the .Board (at the St. Louis Regional Office) Limiting attention at this time solely to that part of the substitute letter relating to Morgan," it will be noted that more than 2 weeks after Morgan was discharged the Respondent's Chicago office in drafting the letter for Marx which was to be submitted and represented as a letter from him to the Company setting forth his reason or ground for discharging Morgan, wrote as follows : Katherine Morgan was performing an operation in a sectional stitching operation. Her attendance was always erratic, in spite of the fact that the company lost money every week in an effort to make her an efficient operator. Finally, she did not appear for work at all for two weeks following the 18th of February. She sent me no word about the reason for her absence. As far as I knew she might have quit, or found herself another job. No firm can operate successfully with this kind of attendance 85 Marx dutifully copied this paragraph into the substitute letter with only one change, adding the words "but one" after "lost money every week," and signed and forwarded the letter. In the cross-examination of Marx his attention was directed to the following statement in his original and bona fide letter to the Company, "in the case of Katherine Morgan, her services was always satisfactory with the exception that she' was never dependable from the standpoint of attendance." To questions then propounded, Marx replied as follows : Q. So the element of the quality of her work was not considered by you when you discharged her, is that correct? A. Well, she always did her work well, and she was always very willing to do what she was told to do. She never was a high-speed merchant on the machines. Q. The question is, is there anything you considered in connection with her discharge other than absenteeism? A. At that time merely the absenteeism ae Q. Did you later get some additional reasons? A. No. ' 3' This new and revised letter was put in evidence as General Counsel 's Exhibit 5. This letter was received at the St. Louis Regional Office on March 24. Under date of April „21, Field Examiner Greenberg wrote 'the Respondent, at its Chicago office, as follows : On March 24, 1947, you submitted to me a letter signed by Mr. Marx in reply to my request of March 19, 1947 . In my discussion with Mr. Marx at Cairo I was advised of the contents of the letter which he sent to your Chicago office and it 'appears that the communication which you submitted with your letter of March 24 and purporting to be the original communication of Mr. Marx has been edited. . . . You are requested to furnish me with a copy of the original communication sent to the Chicago office by Stanley A. Marx setting forth his position with regard to the discharge of Iola Baker and Katherine Morgan. Respondent made no response to this request. However, upon a subpena duces tecum Respondent at the hearing produced Marx's original letter to the Company relative to the discharges and same was put in evidence by the General Counsel as General Counsel's Exhibit 6 , heretofore referred to with the portion relating to Morgan quoted. 3' The deletions, omissions, and changes from Marx's original letter relating to Baker will be noted later. 35 Last paragraph of General Counsel's lxhibit 6, constituting all that is said in this purported letter about reasons for Morgan's discharge. as Marx's testimony as a whole indicates that in using the term absenteeism in connec- tion with the discharge of Morgan he meant her absence from work after February 18 when she was ill. i M. SNOWER & COMPANY 311 Q. Were you instructed to terminate Baker and Morgan by the Chicago office? A. No, sir. A new weekly time card, for each employee, for the ensuing 5-day workweek was placed in the time card rack either after work hours on Tuesday afternoon or on Wednesday morning "before work stated." a7 Baker made up the cards and, according to Marx's testimony, "she put them in the rack occasionally" and he "did occasionally." Marx testified that "about 12 days after February 18," which would be Sunday, March 2, or "possibly on the second Saturday after she quit," " which would be 11 calendar days, or 8 workdays, he removed Morgan's time card from the rack because "I presumed she had quit . . . figured she had quit," that at the time he took Morgan's time card out of the rack he decided to "dispense with" Morgan's "services," that "whenever a girl is absent over a week, without an explanation, they generally quit" and "after an employee is absent over a week without an explanation I would pull any employee's card." In that connection, and in reply to a question whether the time cards "were always pulled at the end of a week" if a girl had been absent without an explanation, Marx said : "No, they were not, especially when the girl notifies us before hand they are going to return." Marx further said that when Morgan called him by telephone on the morning of March 5 and told him that she was ready to come back to work, he would have permitted her to return to work if she had reported her illness to him. At this point, the Trial Examiner made this inquiry of Marx : "Then the reason you dis- charged her was because you say she had not reported her illness to you," to which Marx answered : "That is right " Whereupon, counsel for Respondent protested that the word "discharged" in the question had "confused" the witness. The position seemed to be that any assumption that Marx had discharged Morgan was improper and erroneous, that he had not discharged her at all, that, in fact, Morgan had quit her employment, or, at least, Marx having received no report of her illness or explanation of her absence, had acted upon that assumption, and in support of this theory, Marx then, in response to questions by counsel for Respondent, said: "When I pulled her (Morgan's) card, I considered her as hav- ing quit. When she appeared for work, I told her that her services were no longer required." This position that Marx did not discharge Morgan; taken late in his testimony and as the hearing was drawing to a close, was in the face of Marx's original letter of March 5, wherein he set out his "reason for the discharge of Katherine Morgan" and the identically same language used in the substitute letter which officials of the Company, at the Chicago office, themselves prepared for Marx to sign as if it were his own letter to the Company, and the term "dis- charged" had been used throughout the preceding cross-examination of Marx and in his explanations of the termination of Morgan's employment. Shortly before, during the cross-examination of Marx, substantially the same question had been asked and answer given as follows : Q. Can you state whether or not it was the fact Katherine (Morgan) did not report her absence or was it the absenteeism which caused her to be discharged? A. The fact she did not report and give an excuse. Q. And remained out without an excuse? A. Yes. 17 The new workweek began on Wednesday. 0 Which was Saturday , March 1. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2-Conclusion as to the discharge of Morgan I have set out the substance of, and in many instances verbatim, the uncon- troverted, accredited, and accepted testimony relating to Morgan's enterprising union activities, showing that she was one of the first to enlist in the union cam- paign, became the leading member of the organizing committee, energetically endeavored,to interest her fellow employees in tho union cause, openly carried on union electioneering and campaigning among the girls in and about the plant before work hours and during lunch period and after work at the "drug store," and informed the employees, at the plant, of scheduled union organizational meetings and solicited their attendance. It was quite clear that Marx was informed and fully aware of Morgan's activities and resented them. "Around Christmas" 1946, he first charged her with union "agitation," which at that time she denied, and very pointedly warned her that if she was not " agitating for a union," as he said rumor had it, not to do so, associating his warning with the implication of danger to job tenure and security that a union in the plant involved. When the union campaign got under way and Morgan became a con- spicuous supporter and advocate of the Union in the plant, Marx harshly re- proached her for disobeying his previous injunction to abstain from union agita- tion and told her she had "lied" to him. Morgan had first been employed by the Marx firm about 1938. There were seven or eight interruptions of varying length during the following 8 or 9 years, some for periods extending over several months, the one next preceding her last employment, which commenced in August 1946, and continued without inter- ruption with the Marx firm and then Snower to the time of her discharge, ex- tended from December 1945 to August 1946, during which time she and her husband had operated a restaurant. She had never been discharged or laid off, and Stanley Marx had always put her to work when she reported. She said her return to work on several occasions, and specifically on the last occasion, after one of these interruptions, was at Marx's solicitation. When Morgan, despite Marx's personal warning and admonition to her to refrain from union agitation, became so active and assumed a sort of leadership in promoting the Union, Marx seemed to have taken it as a personal affront to him. He admitted on cross-examination that he "felt'-" that in supporting the Union both Morgan and Baker "betrayed the confidence" he "had in them," and that he was "pos- sibly" not only "disappointed" but "somewhat angered with them for doing it." The unyielding policy of opposition by the Company and Marx to the organiza- tion of a union in the plant has been noted. It is with the background of estab- lished and, for the most part, uncontradicted facts, hereinbefore stated, in mind that the discharge of Morgan or the termination of her employment on March 5, is now considered. I have quoted above verbatim all that part of Marx's original and bona fide letter which related to Morgan. In this letter to the Company written,on March 5, the very day Morgan's employment was termi- nated, Marx stated he was setting forth his "reason for the discharge of Katherine Morgan." It is so worded that at first blush it is somewhat difficult to determine whether Marx was claiming that he discharged Morgan for ab- senteeism generally, including both the 10 workdays she was absent on account of illness, and absenteeism prior thereto, or as appears to me to be what he was really saying, that she had been absent during the period she claimed to be ill without advising him "within a rational time" the "reasons" therefor, not as required by any rule about reporting, but as a matter of "common courtesy." This construction is supported by Marx's testimony that it was not "absenteeism M. SNOWER & COMPANY 313 which caused her to be discharged," but that he discharged Morgan because she did not report her illness, had not reported and given an excuse, had "remained out without an excuse" and that he would have permitted- her return to work on March 5 if she had reported her illness to him. Thus, in his testimony, Marx reiterated and adhered to the grounds for Morgan's discharge which he first and originally assigned although they were inconsistent with other and later claims injected retroactively as reasons for that action. These will be later discussed. There was much testimony about absenteeism generally, to the effect that absenteeism from a half day to 2 or 3 days in a week, with even longer periods of absence not uncommon, was prevalent and frequent and had been during both the Marx years of operation and the period after Snower took over, that there was no rule about absenteeism, that Marx could not recall anyone who had been discharged for absenteeism, and that none of the witnesses recalled anyone who had ever been reprimanded or discharged for absenteeism . But since absenteeism generally, or prior to Morgan's absence on account of illness, was not assigned by Marx as a reason for her discharge, I shall not discuss of analyze the evidence relating thereto. I shall first weigh the integrity of Marx's claim that he discharged Morgan because she did not report her illness to him and was absent during that period without an explanation. There was no rule about reporting when absent from work. Marx said that usually when a girl was absent for several days, a report of some kind was made or explanation given, and if a girl was absent for more than a week and he heard nothing from her in explanation, he assumed , usually correctly, that she had quit. There was nothing in the evidence to indicate that a bona fide illness was not an acceptable explanation for absence from work. In fact, Marx said, as has been related, that had Morgan reported her illness to him, he would have permitted her to return to work. Marx did not claim, nor was there any proof tending in the least to indicate, that Morgan was malinger- ing. The evidence is to the contrary. Apparently, when the girls did report, no sort of a formal report was required or made. An informal method of com- munication was followed. I accept and believe the testimony of Morgan that when Steele visited her at noon on Friday, February 21, the third day of her absence from work, she requested Steele to tell Marx that she was ill and "would not be in to work for a few days," and the testimony of Steele, to the effect that, in the afternoon of that same day, upon returning to the plant from her noon- time visit to Morgan, she delivered Morgan's message to Marx, at the plant, and told him that Morgan was "sick" and "it would be a few days before she (Mor- gan) could go back to work." In an evasive sort of way Marx seems to deny that Steele delivered such a message to him. However, his whole testimony on this phase of the matter tends to discredit his denial and, in fact, tends to cor- roborate Morgan and Steele. It will be recalled that he said he "first found out" Morgan was ill "about 3 or 4 or 5 days after her absence" when "some of the girls" told him she was sick. As noted, Friday, February 21, was the third day of Morgan's absence. The plant did not work on Saturday or Sunday, the fourth and fifth days of her absence. Thus it seems reasonable to conclude that the first information which came to Marx about Morgan's illness was that conveyed to him by Steele on Friday afternoon, the third day of Morgan's absence. Then, there are Marx's admissions that Steele "possibly" told him Morgan was sick, that "Nola Steele told me Katherine was sick , at least I heard that from some of the girls," .that it was "common, talk" among the girls that Morgan was sick, that he knew some of the girls had been to see her, and " she was reported sick." 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find that on the third day of Morgan's absence on account of illness, she sent the message, above set out, by Steele to Marx, advising him of her illness and absence from work on that account, and that Steele delivered that message to Marx, at the plant, during the afternoon of the same day, and that Marx was fully advised that Morgan's absence from work was due to illness. Yet, in the face of the testimony just reviewed, and particularly Marx's admis-' sions, more fully set out in the foregoing statements of facts, Respondent took the position, near the close of the hearing, that Marx did not discharge Morgan at all, that after 8 workdays had passed without an explanation of Morgan's ab- sence, Marx assumed she had quit and removed her card from the rack. Marx said that it was at that time he decided to "dispense" with Morgan's services. When Morgan reported able to return to work, Marx said he told her that her services were no longer required. There is no evidence tending to show that at that time Morgan had been replaced or that Marx had no work for her, or that he offered to return her to work at the earliest time that work was available'. Marx made no complaint as to Morgan's work.- In my opinion, Marx's own testi- mony bearing on the termination of Morgan's employment, taken as a whole, leaves the proposition that Marx, in good faith, believed Morgan had quit and that his course of action was governed and motivated by that belief and not by her union activities, without any real or substantial support. When Morgan telephoned Marx on the morning of March 5 to report that she was ready to return to work that day, Marx told her he "could not use" her any- more, that she "had been off about two weeks" without any explanation to him for her absence. When she reminded him that she had "sent word" to him via Steele, Marx did not deny that he had received such report, but implied that custom at other plants required that such report be made within 24 hours. He tacitly admitted there was no such custom in that plant, but stated that there- after that would be the rule.38 The next day, in talking with Morgan and Baker, he again sought to invoke the failure to report within 24-hour rule or custom, but was reminded' that none of the employees had ever before heard of such a rule or custom in that plant. He seemed then to abandon that pretense as he did not thereafter resort to it. Another example of what I believe was an endeavor to fortify the discharge of Morgan against a possible charge of discrimination on account of her union activities, was the device conceived by the person or persons in the Chicago office who drafted the letter which they directed Marx to sign and substitute for and in lieu of his original letter to the Company. In that letter they assigned as one of the reasons for her discharge that she was an inefficient operator. Al- though Morgan's efficiency had not been assigned by Marx as a reason for, or as having any bearing upon, her discharge and Marx considered her services as a machine operator satisfactory, as evidenced by his statement in his original letter that "her services was always satisfactory," his statement to Morgan the 'following day that so far as her "work" and "ability" were concerned, he would give her a "reference anywhere" and his testimony, he signed this letter, written sometime after March 13, purporting to set out the reasons motivating his dis- charge of Morgan on March 5, and containing this new and additional reason therefor. In view of the foregoing, it hardly seems necessary to discuss the merits of the belated allegation of inefficiency since Marx, as a witness, did not even claim that the quality of Morgan's work had anything whatsoever to do with his decision to dispense with her services, and in fact, he admitted that it 39 He did not, as a matter of fact , thereafter announce such a rule. M. SNOWER & COMPANY 315 did not. I shall observe, however, as to the merits of the matter, that if the. Company had discharged all of its employees who had not by that time made production, they would have had to discharge a 'very considerable portion of their working force. Some witnesses estimated that not over half of the em- ployees- had, by that time, made production: The girls were paid a minimum guaranteed wage. If in any I week the total piece rates equaled the guaranteed wage, a girl was said to make production that week and any excess of piece rates over the guaranteed wage was paid to her and was referred to as a bonus. For the reasons stated I am unable to give weight or credit to any of the various explanations advanced by Respondent purporting to show that Morgan's dis- charge was in no way related to her union activities but was for one or the other or all the reasons produced. As I analyze and evaluate the evidence relating to Morgan's discharge, the intermeshing facts and circumstances lead undeviatingly to but one conclusion, and I so find, that the real and motivating reason for her discharge was her unioh activities. I therefore find that Morgan's discharge was in violation of Section 8 (3) of the Act: In this connection, I further.'find that, in view of the time and circumstances of her discharge, and her prominence and leadership in the union organizational movement, the discriminatory dis- charge of Morgan was intended, and reasonably calculated, to coerce and restrain the employees generally in the exercise of their right of self-organization in viola- tion of Section 8 (1) of the Act. D. Discharge of Iola Baker 1. Evidence Baker was employed by the Marx firm "about August 26, 1946." 40 She applied for office work but first went to work for the Marx firm in the factory upon assurance by Stanley Marx that "as soon as Snower took over" she would be assigned to the office, and shortly after the Snower operation commenced " Marx transferred her to the office. Her work in the office consisted of preparing, col- lecting, and replacing the time cards, making up the pay roll,'' taking care of the correspondence, filing, and general office work. - The office was on the first floor but "it was not well heated" and a desk was also provided for her use on the second or factory floor. Marx said she "used the upstairs desk more than the downstairs office." Baker did some "folding" work upstairs, an operation in connection with production. Referring to the "folding" work, Baker said, "When- ever they got behind I helped out. Some days I would work almost all day up there (folding) and the next maybe I would not work at all." On March 4, Marx discharged Baker. In the letter which he wrote to the Company on March 5,93 setting forth the grounds of discharge of both Morgan and Baker, he stated, as to the grounds for Baker's discharge : Iola Baker occupied a position requiring trust and confidence. I left the petty cash in her charge and never bothered about checking it since I trusted her honesty. My suspicions were aroused when I considered just where an outsider had obtained complete mailing lists of our payroll roster. I dis- 40 At that time her name was Martin, Iola Martin . She married one Baker the follow- ing December and is referred to generally in the testimony as Baker. In a few'instances, the name Martin is used. 41 Snower took over on September 6, 1946. 42 Which was forwarded to the Chicago office and checks to cover same were sent from that office to the Cairo plant. 13 General Counsel's Exhibit 6. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tinctly remembered having seen her type these lists from our history record cards. At the time I merely believed them to be for a convenient method of office record but now realize that they were furnished to others, contrary to your explicit instructions and mine, that such matters, were to be held in strict confidence. I examined the petty cash box in the safe, Tuesday, March 4th. All I found therein was some small change totalling 67¢ and below the cash box a cash sack containing a slip for $10.00 cash advanced by me to pay a freight bill before the arrival of our last petty cash check and for which I have long been reimbursed. Upon Iola's arrival I asked her where she- kept the petty cash. She told me in the desk. This angered me since I had told her several times before that this was to be kept in the safe. I told her that if she could not do things our way we would have to get someone who' could. I proceeded to total the petty cash slips and they totalled $58.41. I asked whether we had any cash on hand and she produced two five dollar bills from a lower drawer. In explanation ; this all occurred at the upstairs desk Which she had been using because of the poorly heated downstairs office I asked whether that was all we had on hand and she immediately became apologetic and defensive saying that I, needn't expect her to make it good since she had already paid in $20.00 and her husband had to give her $5.00 of this. I was astounded by the mere fact that anyone should give up twenty dollars without making some inquiries and this was the first intima- tion of this that I had. She stated that this shortage had existed for some time and that she thought that I had borrowed the money. I told her that at no time had I taken anything from the drawer without telling her or leaving an I. O. U. slip. Any half way competent office girl would make inquiries if there were a shortage of 1¢. Would anyone, in his right mind retain an employee in this sort of a situation? The figures for the discrepancy are as follows : $10.67 cash on hand ; disbursements accounted for $58.41, shortage $30.92. I feel my responsibility in this matter in not checking this account more assiduously and am entirely willing to make up the difference. The evidence relating to the first mentioned consideration which Marx stated caused him to discharge Baker, I. e., a belief that Baker had made and furnished "mailing lists" of the employees to an "outsider" or to "others" will be first summarized. On cross-examination Marx was asked who was the "outsider" referred to in that part of his letter concerning "mailing lists." To which he replied, "The Amalgamated Clothing Workers' organizer" ( Elaine Draper). His attention was then directed to his statement in the letter, "I distinctly remembered having seen her type these lists from our history record cards" and he was asked , "To what lists do you there refer ?" His answer was, "Names and addresses of all of our employees." In answers given to further questions on cross-examination " concerning this factor, Marx testified as follows : that it was the practice to maintain current typewritten lists of employees, that it was "necessary" to "make new lists . . . from time to time," that the lists he saw Baker typing on the occasion referred to could have been to replace previous lists "which were not completed," that the statement in his letter that these lists were furnished to an "outsider" or to "others" was based wholly upon suspicion, that Baker's typing of the suspected lists, to which he referred, occurred on "the day before her discharge," that the "suspicion" that she was preparing "Respondent's counsel did not interrogate Marx concerning this phase of the Baker discharge. M. SNOWER & COMPANY 317 the lists for the nion organizer came to him "that night" or "the evening" of the day they were typed, and that he discharged her the next morning. Field Examiner Greenberg testified that in his interview with Marx, "about March 13," heretofore mentioned, Marx stated, as one of the grounds for dis- charging Baker, that "he had seen her type a list of employees' names and he had not given her any instructions to type those names and it was his opinion that she had turned the list over to the Union which was attempting to organize the plant." Greenberg then asked Marx whether he (Marx) "had seen or had reason to know directly" that this list of employees "had been turned over to the Union." Marx replied, "There are some things one does not know but one feels." However, Marx admitted to Greenberg that the lists which he had seen Baker typing on March 3, were then (on March 13) "in the official book where personnel records were kept." This admission prompted Greenberg to ask, "Since the list is in the book how did you assume she had given it away?" Marx replied, "he just felt that way and did not know for sure." Greenberg further testified that, in the course of this interview, Marx further said, as further ground for her discharge, that "Baker's cash box was short of money, that she was inefficient in keeping the record and . . . had had to make up some amounts because she told him that." Greenberg also stated that in reply to his (Greenberg's) inquiry Marx said "those reasons (for Baker's discharge as above related) were reported to the Company at the time" and that "he had written a letter's to them telling them about that reason" (the suspected delivery of a list of names and addresses of employees to the union organizer). He said he also mentioned the cash box incident's Greenberg said that in the beginning of the interview he asked Marx "whether he would give me an affidavit," that Marx "was unwilling to do so," that thereupon he (Greenberg) undertook to make a written notation of the conversation "while I talked to him, what I wrote was incorporated in a file memorandum dated the same day," and that "as best I can remember . . . he (Marx ) said, that the prime motivating factor in the lischarge was the giving of the list of employees to the Union." On cross-ex- amination Marx denied that he told Greenberg that the suspected giving of a list of-employees' names and addresses to the Union was the "prime factor" in the discharge of Baker and stated that on that occasion he said "It was an under- lying reason." On redirect examination counsel for Respondent inquired of Marx and answers were given as follows : Q. Was the reason for her discharge the fact that she was making a list for someone else? A. Possibly a secondary reason. In the letter contrived in Respondent's Chicago office,47 and purporting to be the letter from Marx to the Respondent Company advising "the reason for the discharge of Katherine Morgan and Iola Baker," all references and statements to the suspected making and transmitting by Baker of a list of employees' names and addresses to the union organizer, appearing and set out in Marx's original letter of March 5, were deleted and omitted and no hint or intimation of that consideration appears in the substituted letter supplied, as aforesaid, pursuant to u Marx's original letter (General Counsel's Exhibit 6). 46'Greenberg's testimony, as above set out, and to this point, was not denied or con- troverted by Marx and is accepted as being a substantially correct version of Marx's statements to Greenberg concerning the grounds or reasons for his discharge of Baker. The evidence relating to a shortage -in the cash box will be later fully set out and reviewed. 47 Presumably after March 19, see footnote No. 32. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the request of the Field Examiner fora copy of the letter to the Company about which Marx had advised him on March 13. When Marx was asked why the substituted letter omitted all reference to Baker's typing and giving the union organizer the suspected lists as a reason for her discharge, contained in his original letter, he stated that his original letter. "was a little verbose and that sort of a thing and the letter I received had that omitted." The latter part of his answer referred to the letter prepared for and sent to him by the Chicago office to be substituted for his original letter which substitute he copied and forwarded to Greenberg with only minor and immaterial changes. During the conference at the St. Louis Regional Office, on March 28. at which Respondent was represented by Katz, Greenberg inquired of Katz why the statements "bearing on Mrs. Baker's typing a list of names and the allegation that she gave it to the Union representative," which Marx had told him were con- tained in his letter to the Company, had been omitted from the communication forwarded to him (Greenberg). In reply, Katz said, "because the Company is no longer relying on that aspect of the case." The further reason assigned by Marx for the discharge of Baker, as hereto- fore noted, was based upon a shortage in the petty cash box which he claimed he discovered for the first time on the morning of March 4, the date he discharged her. The evidence about the cash box, how it was handled and the existing short- age, consisting almost wholly of the testimony of Baker, called as a .witness by the General Counsel, and Marx as a witness on behalf of the Respondent, was rather full and in detail and in some phases somewhat contradictory and conflicting. Shortly after Snower took over, a petty cash box containing $100 in cash was in- stalled at the Cairo plant. The petty cash fund was. used "to pay for machine parts bought locally" and to pay "freight bills" and "small bills around the plant.". While it appears that Baker generally and for the most part made the dis- bursements from the petty cash box and attended to paying the bills chargeable against that fund Marx also made such payments from the box. Marx says he instructed Baker "how we kept our petty cash box, $100 on hand or accounted for by petty cash slips" with the "slips put under the tray in the box." Baker said she received and followed instructions to pay small local bills, of the kind mentioned, out of the petty cash funds, put the receipted bills in the box and when she had about $70 or $80 worth of receipted bills on hand to send them to the Chicago office. That office would then send the Cairo plant a check, in the amount of the receipted bills so forwarded, to replenish the petty cash fund. She estimated that in the 5 months she worked in the office she had sent in receipted bills, in this manner, and received checks in return by way of reimbursement, "a half dozen or so times." Both Baker and Marx said that the petty cash box "was kept in the safe downstairs in the office." Baker said that the "safe was not kept locked all of the time," that it was "locked part of the time and part of the time it wasn't," that she did not know the combination of the safe and "if it was locked and a-bill came'in and Stanley (Marx) was not there I had no-way of getting into the safe to pay the'bill so sometimes it was left unlocked," and that "the greater part of the day it was left unlocked." In this connection Baker said that there were times when both she and Marx were upstairs on the production floor, that she did not have a key to the office downstairs and the office was left unlocked, and that the same building entrance was used for the downstairs office and the second floor production or factory room.- Marx agreed that Baker did not know the combination of the safe '' and could not unlock the safe when''the" w Marx stated that Katz was the only , person other than himself who knew the com- bination. M. SNOWER & COMPANY 319. "combination was entirely thrown" in the manner in which the safe was locked at night but said that "generally" or "usually" during the day the dial was set so that the safe could be unlocked by merely turning "to the figure 10 and back to 0" and that Baker had been instructed how to operate this day lock and that she could open and had opened the safe "in that manner." Marx said he also in- structed Baker that "when money was taken out of the box she should put in a slip for it," that when he "took money out of the box she should put in a slip" and that "she had access to the box and if she needed a little change all right but to always put in an IOU." Baker testified that she never at any time "borrowed money out of the box" or took any of the petty cash fund for her own use, that she did not check the box "very often," that when the cash in the box got low she would forward the receipted bills which had accumulated since the last previous transmittal. to the Chicago office, that from the beginning "the box was short, not much at a time," that, "because I was new on the job I felt it was my responsibility if the box was short," that "I could have made some mistake in giving change or maybe lost a bill (which she had paid ) or something of the sort," that at first upon discovering shortages she "made up" the shortages in small amounts, "as much as $5 but not more than that" at any one time, that the amounts which she thus "made up" aggregated "as much as $20 altogether," that at the times she made up shortages she "did not know Marx had been taking money out of the box," that when she "learned" or discovered that Marx was "taking money out of the box I didn't feel it was my responsibility to put the money back," and that thereafter she did not make up any shortage appearing in the petty cash fund. Marx said he did not know of Baker ever having taken money from the petty cash box. He freely admitted that at various times he took money out of the box but said that he always "accounted for it by making out IOUs or telling Iola Baker to make out one." Marx further said, "if I needed a dollar change I would take it out of the box, I would say a couple of times a week various weeks" and "at other times I would go without touching the box for weeks on end." In answer to the question , "what would you say was the largest amount you took from the cash box ," Marx replied , "I suppose about $10." The following covers Baker 's testimony about Marx taking money from the cash box. She said that "it was just the latter part of the time I worked there that I saw him take it." When she saw Marx take money from the box she "did not ask him what amount he was taking " nor did she "ask him for an IOU." The cash box "was open and he (Marx ) could help himself" and "sometimes he told me how much he was taking and sometimes he didn't." He never did "tell me to keep track of it. . . . There was only one time I re- member him putting an IOU or anything of the sort in the box and that was when he took $20 to go to St. Louis to see some of his relatives or something;" At times "he would come in the office in the afternoon and say he was hungry, get money from the box and go down the street to get something to eat." At such times he would say, "I am short." She had seen him at various times take $1 or $2 from the box. Fridays he would take , "maybe $5." "Sometimes the box balanced and sometimes it didn't. . . . Sometimes he took money, out and put it back in and it , would, balance." , She based this last statement she said on the fact that "there were times money was taken and it .would appear back later and I figured he was the only person that would,take it." Biker's summary was that for some reason "the box kept getting shorter and shorter." 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On cross-examination, Baker stated that she did not, at any time, tell Marx there was a shortage nor did she mention the shortage to Katz of the Chicago office during any of his visits to the Cairo plant or advise the Chicago office of a shortage when she transmitted receipted bills for reimbursement. As to Marx, she explained that "he was my boss," he knew he was taking "money out and that the box did not balance all the time." As to notifying the Chicago office, she said, "I did not feel it was my responsibility" to write the Chicago office of tell Mr. Katz that "there was a shortage in the box . . . because I knew where the shortage was. . . . I knew it was Mr. Marx taking it out. After all, he was my boss." Elsie Smoot worked in the factory or production room as a single needle operator. She and Baker were roommates from Sep- tember to the date of Baker's marriage in ' December 1946. Smoot testified that on one occasion during that period, the time is not fixed, Baker told her there was a shortage in the cash box. Marx said that "when Snower first took over" he checked the petty cash box '.quite frequently" until "possibly the first of the year" (1947), that he "then became very casual about it" and thereafter "left it pretty well in her (Baker's) charge," that he generally checked it "before sending in for a check to make up the deficiency" and that he "probably" made a check of the box on such occasions in January and February." Marx asserted that at the times he checked the box, prior to March 4, there was no shortage and that the discrepancy dis- closed by the check he made on that morning was the first knowledge or infor- mation he had of a shortage. There was some confusion in Marx's testimony concerning the time he first made an audit of the cash box-on the morning of March 4. On cross-examina- tion, Marx was asked, "Did you examine the cash box before or after Iola Baker came in that morning?" He replied, "examined the cash box before she came in." At another point in the cross-examination Marx was asked, "What was the reason for you checking the cash box at this particular time?" In reply he explained that "a couple of days prior" he had asked Baker "how we were fixed for petty cash and she said we were running low and I said she had better send for a check and I asked her this morning (March 4) whether she had sent for the check and she said no she had not. I went to the cash box to find out whether the petty dash slips' had been sent off." Later in the cross-examina- tion, Marx was asked if the suspicion which he said had come to him the night df March 3 that the lists he had seen Baker typing that day were intended for the use of the union organizer caused hint "to look in the petty cash box" on the morning of March 4. He answered, "it possibly helped. I also wanted to see whether the check-had been sent." The testimony of Marx concerning his examination or checking of the cash box was in substance, that he looked for the cash box and found it in the lower drawer of the upstairs desk, that at that point Baker came in and he reminded her of the instructions that the box was to be kept at all times in the safe, that he then looked in the box and inquired of Baker where the cash was and that she replied it was in the safe, that he-then inquired as to the where- abouts of the petty cash slips, which were not in the box, and that Baker said they were in a pigeonhole in the upstairs' desk.- It does not appear from Marx's testimony whether at the time Marx says Baker "came in" that she was then reporting for work or whether she had earlier reported for work and merely happened to enter the room -at that moment, nor does it appear from either w Marx said that Baker " sent in" for the checks to reimburse the petty cash box. However it appears that she did so when and as he directed. A•" I M. SNOWER & COMPANY 321 Marx's testimony or that of Baker whether the box had been in the safe during the preceding night and Baker had, after reporting for work, that morning taken it from the safe to the upstairs desk. All Baker said about tills was, "About half hour after I got to work Stanley came to me and asked where the petty cash box was. I told him and he got the petty cash box and checked the slips and cash in the box then he asked me if I knew that the box was short." On cross-examination, Baker was asked, "Isn't it a fact that on March 4, the day Mr. Marx found the shortage, the cash box was upstairs?" Her answer was, "I don't remember if it was or not." To the next question, "Isn't it a fact further that there was the sum of $10 and something in the safe downstairs at the same time?" She again answered, "I don't remember." By reference to the full text of that part of Marx's letter relating to Baker's discharge, set out above, it will be noted that there Marx stated that he "examined the petty cash box in the safe" the morning of March 4, that all he found in the box was some change totaling 67 cents, that on Baker's arrival he asked her where she kept "the petty cash" and she told him in the desk, which angered him, that the petty cash slips totaled $58.41, that upon his inquiry as to cash on hand Baker pro- duced two 5-dollar bills "from a lower drawer" and that "this all occurred at the upstairs desk." In his testimony, Marx said he found 67 cents in the cash box and "slips" in the amount of $54 and that when he went downstairs there was $10 in currency in the safe "leaving $30 unaccounted for." 5" Marx stated that he then asked Baker, "why the shortage" and that "she immediately said 'I am not going to make it up. I have paid back $20 already. I borrowed $5 from my husband to pay back part of it,'" that he then "asked how long the shortage had existed and she said "three weeks," that he told her "if she could not do things our way I would have to let her go," and that he thereupon fired her "because of the shortage in the cash box" and "not having any satisfactory explanation of the shortage." Baker said that when Marx asked her if she knew the box was short, she replied that she did and that "the box had been short practically ever since" she had worked there and that Marx then said, "I should have told him" whereupon she "told him he should know, for he took money from the box from time to time and that is why I wouldn't say anything about it." She further said the shortage had existed "over a period of several weeks." 2. Conclusion as to discharge of Baker The facts relating to Baker have been set out in the preceding statements of fact. She was the first employee contacted by the union organizer and gave the union organizer the names of four or five employees who, she thought, might be interested in the Union, among whom was Morgan. The organizer was of the opinion that on account of her position as an office girl, Baker would not be eligible for membership in the Union. However, throughout, Baker was sym- pathetic to the union movement and while she did not actively and openly espouse the Union, as did Morgan, she did express herself as favoring the Union cause in private conversations with some of the girls. Marx at all times made his position of opposition to the Union and displeasure towards those supporting it very 'ao The assets as thus stated total $64.67 leaving an unaccounted shortage of $35 33. In his original letter quoted above and also the substitute letter Marx stated the assets were cash $10.67, and petty cash slips $58 41, making a total of $69.08 and leaving a shortage of $30.92. A I A A. I 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clear to Baker . I think he early discovered or suspected how she felt about the Union., Baker evaded his questioning early in February as to whether she had been solicited to join the Union. She avoided discussing the matter with him at the various times he attempted to talk to her about union activities in the plant. I think the inference well grounded that Marx became suspicious and distrustful of Baker when he was unable to get any response from her to his efforts to draw her out on the Union and concluded , rightly, that she was siding with the union advocates. There are indications in the record that Marx had sources of information about nearly everything that went on in connection with the attempt to organize the Union, certain anti-union employees who were quick to report to him; and as his resentment against those supporting the organization of a union increased, he came to feel , as he admitted in his testimony , that Baker had "betrayed the confidence" he had reposed in her and he was not only "disappointed " but "some- what angered" with her. Came his speech on the afternoon of February 12, and the meeting of the union supporters that night at the Odd Fellows ' Hall which was the only union meeting Baker attended. The next day Marx indicated to Baker that he was informed as to those of the employees who attended the meeting, and in that connection , and as a part of the same conversation, ex- pressed surprise that she "of all people" would be dissatisfied with her job, implying that her attendance at the meeting so indicated , and asked her where she could "find another job as good as the one" she had there, a warning of the consequences that might result from her union association. When, during the day of March 3, he saw her typing the list of names and addresses of the employees, it apparently did not at first arouse his suspicion as the compilation of that kind of list was a periodic routine in the office How- ever, that evening, or that night , the suspicion came to him and mounted quickly to a conviction that she had been preparing the list for the union organizer. Apparently this was the product of his imagination for by that time he felt Baker was disloyal to him and had betrayed his confidence and he viewed her every act through eyes .beclouded by suspicion and distrust. He could produce no facts or evidence to even remotely sustain his belief that Bkker ever gave such a list to the union organizer. The only support he could advance for such belief was that "there are some things one does not know but one feels." Ten days later, he admitted to the Board 's Field Examiner that the very lists which he had seen taker compiling and which had aroused his fevered suspicion to the point of "realization," which he speaks of in his letter of March 5, were then reposing in the personnel file where such lists were customarily kept. The following morning, March 4, actuated by the suspicion about the list which had come to him the night before, by that time ripened into a belief , and without making any investigation whatever to see if the lists he had seen Baker typing the day before were in the office files, or to determine whether she had typed them in the ordinary course of periodically making up a corrected and current to ,date list of employees, he made his examination of, the cash box. I do not per- ,ceive the logical connection , .but Marx seems clearly to say in his letter to the Company, that his suspicions about the cash box were aroused when he realized "Baker had furnished mailing lists of the employees " to an "outsider," meaning, as he explained, the union organizer . On cross-examination he said his suspi- cions about the list "possibly" had something to do with causing him to check the rash box. In his letter to the Company setting forth his "reason for the discharge of . . . Iola Baker," he first refers to his "realization" that Baker had made up and furnished these lists to "an outsider" or "others." The Field Examiner, M. SNOWER & COMPANY 323 Greenberg, testified that Marx told him the "prime motivating factor" in the discharge of Baker "was the giving of the list of employees to the Union." Marx said that he told Greenberg it was an "underlying reason" and at the hearing 'he called it "a secondary reason." The very fact that Respondent's officials, in the Chicago office, unaware of what Marx had previously told the Field Examiner about his motivation and statements made in his letter to the Company, undertook to conceal from the Examiner the motivation expressed by Marx in his letter setting forth his reason for discharging Baker, by contriving the substitute letter omitting every vestige of what Marx had said in his bona fide letter about the suspected lists, was, in and of itself, a significant recognition, in effect, that Marx had been actuated by a discriminatory motive. In the face of Marx's letter, his testimony, and the other evidence adduced at the hearing bearing on this motivation, Respondent at the hearing attempted to 'dismiss this phase of the ease in its entirety by merely saying that it "no longer relies on that aspect of the case." Nor has Respondent touched upon this aspect of the case in its brief here. Respondent seemingly would have us, in effect, expunge from the record, and give no consideration whatever to, the exhibits and evidence tending to show that the motivating factors in the discharge of Baker were Marx's animosity toward her because of her sympathetic support of the union cause and his groundless belief that she lent assistance to the union organi- zational campaign by furnishing the union organizer a list of names and addresses of the employees. But, Marx's letter was put in evidence and it and his testimony and that of Baker and Greenberg and certain other witnesses, whose testimony relate in some measure to this phase of the case, are a part of the record and must be weighed and considered in passing on the case as to Baker, and in deter- mining the motivation affecting her discharge. That Marx's belief that Baker was supporting the Union and lending assistance to the union organizer was a moving factor in his decision to discharge her is established by his own somewhat tempered testimony at the hearing, that it was an underlying reason and a secondary reason. In view of the care exercised by the Field Examiner to correctly record Marx's statements to him on March 13, I am inclined to give credit to his testimony that Marx told him on that occasion that it was a primary factor. The very term underlying, used by Marx, itself implies, what in fact the evidence and circumstances indicate that it was, a basic motivation for her discharge. Thus, it appears that the motivation for Baker's discharge was her support of the Union and refusal to go along with Marx in opposing it and his increasing displeasure and animus toward her on that account. I have set out separately and in detail, and I believe objectively, the evidence relating to the cash box incident in order to present fully that part of the case as to Baker upon which alone Respondent would base its explanation of her dis- charge. However, as I have said, this cannot be segregated from the basic motivation arising out of Marx's suspicion that Baker was lending assistance to, and supporting, the union organizational campaign. There were not two separate, distinct and unconnected motivations. Marx's letter reveals that lie was moved to the ultimate action taken by his suspicion or belief that Baker had furnished the union organizer with the list, which was the culmination of his increasing suspicion and distrust of Baker because of her attitude toward the Union during the weeks the campaign had been in progress. Despite the intimation Respondent injected into the case, without directly asserting such to be the fact, Baker was not the custodian to whom the petty cash box was entrusted, nor was she in sole charge thereof. Primarily, it was Marx's responsibility. True she was instructed and authorized to make disbursements ^z4Aim 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the box, and made the major portion of such disbursements, but Marx also made payments out of the box and in addition freely dipped into the box at any time he needed ready cash. He said $10 was the largest amount he had taken at any one time, though how many times he took a sum of that or an approximate amount is not stated or estimated. Baker further testified, and I accept her testimony in that respect, that Marx never told her to "keep track" of the money he took out of the box and that she knew of only one occasion that he put an 1. 0. U. in the box. In the face of Baker's denial, I reject Marx's statement that he ofttimes took money from the box and told Baker to make out an I. O. U. He would have it appear that he customarily went to the box, took out the money, and instead of then putting in an I. O. U. himself, told Baker to do so for him. I am not impressed with Marx's claim that the first knowledge he had of a shortage in the cash box was the morning of March 4. Despite his statement in his letter to the Company that he had never checked the petty cash box, he testified that he checked it "quite frequently" prior to the first of the year 1947, but became casual about it thereafter. Moreover, he had daily access to the box, put it in and took it out of the safe, frequently took money out of it for his personal use and made business disbursements from the box, and admittedly checked it at the times in January and February of 1947 that the receipted bills were forwarded for reimbursement. Smoot testified that Baker told her prior to December 1946 that there was a shortage in the cash box. I think Marx must have known, and did know, that this box was chronically out of balance or short, but be at no time prior to this morning of March 4, took Baker to task about it or made any inquiry of her concerning the cash box or a shortage therein. Baker had worked as an office girl approximately 5 months and Marx made no complaint about her work during that time. Marx's tendency to allow his bias to affect his sense of proportion and valuation, and indeed, his version of events, is illustrated by the statement in his letter, "Any half-way competent office girl would make inquiries if there were a shortage of one cent" (referring to the shortage in the petty cash box). The quotation I think suffices, without comment, as experience with variations in an office petty cash box is not un- common. Numerous indices of a like or similar character in his letters, state- ments, and testimony impel me to discredit his profession of shock, indignation, and surprise that a shortage existed in the cash box on the morning of March 4, and his protestations of ignorance of any shortage prior to that date and that in his course of dealing with the cash box he had always punctiliously put an I. O. U. in the box or directed Baker to do so for him. Marx never saw or knew of Baker taking any money from the box for her own use, though he had told her she was privileged to do so if she needed "a little change." It is my opinion that, upon a consideration of all the evidence bearing on the matter, that a finding that Baker was solely responsible for the shortage would not be warranted and could not be sustained. In his letter and in his testimony, Marx links his examination o2 the petty cash box onthe morning of March 4, with his suspicions and distrust of Baker aroused by her sympathy with and support of the union cause culminating dur- ing the night of March 3, when he concluded that she had during that day pre- pared the suspected list. Marx's first order of business the next morning was the cash box. Even about this, his statements are characteristically confusing. .He said in his letter that he examined the cash box in the safe before Baker's arrival, and in his testimony said he found it in the drawer of the upstairs desk. He said in his letter that when Baker arrived he asked her where she kept the petty cash and that she said in the desk and then produced two $5 bills 0 M. SNOWER Sa COMPANY 325 from the drawer of the upstairs desk. In his testimony he said that the $10 in currency was in the safe downstairs. In his letter he placed the shortage of $30.92, in his testimony he computed it as $35.33. The whole cash box incident savors too much of a pretext seized. upon by Marx in an endeavor to bolster the discharge of Baker which he had previously determined upon. Even if it be thought that some valid justification for Baker's discharge based upon the cash box shortage, or Baker's handling of the cash box, existed, neverthe- less I am compelled, upon the evidence as a whole, to conclude that the real reason prompting and moving Marx to discharge her was his belief that Baker was in sympathy with, and had assisted, the Union and his resentment of her attitude generally with respect to the Union 61 Although Respondent has not raised the question, and in fact has endeavored, as we have observed, to ignore Baker's suspected offense of aiding the union organizer as a consideration in connection with her discharge, I have considered whether Baker was employed in a confidential position and Marx could be said in good faith to have believed that she had divulged confidential information to the union organizer. While her work was predominantly office work, as her work as a folder in connection with production was irregular, yet her work in the office was wholly of a clerical nature. She had no supervisory authority whatever, performed no management functions, and had no part or authority in the formulation or execution of labor or personnel policies or affairs. Nor, according to my way of thinking, could the suspected list, under the circum- stances, be deemed confidential matter. In this small plant the employees were acquainted. Obtaining names and addresses of employees presented no difficulty for the union organizer since they were easily obtainable. Furthermore, in view of the fact the union campaign had been under way for 2 months, it is unlikely that in this small plant, with an average of about 40 employees, that the union organizer, the organizing committee composed of employees, and others interested in the Union, had not contacted the employees, did not know who were employees and their names, and how and where they could be reached. We have already pointed out that such belief as Marx may have held about the suspected lists was apparently without any reasonable basis in fact and the product of his imagination. In summation, it is my conclusion that Baker's discharge was motivated by Marx's suspicions and the belief born thereof that she was supporting, aiding, and abetting the union organizational efforts and his feeling that in doing so she had betrayed his confidence and acted in a disloyal manner toward him in his efforts to defeat unionization in the plant. I therefore find that Baker's dis- charge was in violation of Section 8. (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent as set forth in Section III, above, occurring in connection with its operations as 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 engaged in certain unfair labor practices it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 51 Sunnyside Winery, 77 N. L R. B 94. 844340-50-vol. 83-22 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It has been found that the Respondent discriminatorily discharged Katherine Morgan and Iola Baker because they participated in union activity and advocated, supported, and assisted the formation of, or the attempt to form, a labor union in its said plant. It will therefore be recommended that the Respondent offer to each of these employees immediate and full reinstatement to her former, or a substantially equivalent, position,63 without prejudice to her seniority or other rights and privileges, and make her whole for any loss of pay she may have suffered by reason of the Respondent's discrimination against her by payment to her of a sum of money equal to that which she normally would have earned as wages from the date of her discriminatory discharge to the date of the Respond- ent's offer of reinstatement, less her net earnings 53 during said period. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Amalgamated Clothing Workers of America, CIO, 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 Kath- erine Morgan and Iola Baker, thereby discouraging membership in a labor or- ganization, Respondent has engaged in, and is engaging in, unfair labor prac- tices, within the meaning of Section 8 (3) of the Act and Section 8 (a) (3) of the Act as amended. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (1) of the Act and Section 8 (a) (1) of the Act as amended. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS • Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, I recommend that Respondent, M. Snower & Company, Division of Opelika Textile Mills, Inc., and its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Amalgamated Clothing Workers of America, CIO, or any other labor organization of its employees, by discriminatorily dis- charging or refusing to reinstate any of its employees or by discriminating in any other manner in regard to their hire and tenure of employment, or any term or condition of employment ; (b) Interrogating its employees concerning their union affiliations, activities or sympathies ; (c) Interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act by threats of economic reprisal or force or promises of economic benefits ; (d) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of their right to self-organization, to form labor organi- 12 "Former position wherever possible and if such position is no longer in existence then to a substantially equivalent position." The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch, 65 N L. It. B. 827. ' 13 Term "net earnings" as here used , defined in Crossett Lumber Company, 8 N. L. It. B. 440 and Republic Steel Corporation v. N. L. R. B., 311,13. S. 7. M. SNOWER S; COMPANY 327 zations, to join or assist the Amalgamated Clothing Workers of America, CIO, or any 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, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which I find will effectuate the pol- icies of the Act : (a) Immediately offer to Katherine Morgan and Iola Baker each full rein- statement to her former, or a substantially equivalent, position without prejudice to her seniority or other rights and privileges ; (b) Make whole Katherine Morgan and Iola Baker, each for any loss of pay she may have suffered by reason of 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 from the date of her discharge to the date of Respondent's -offer of reinstatement, less her net earnings during said period ; (c) Post at its plant at Cairo, Illinois, copies of the notice attached hereto marked "Appendix B." Copies of said notice, to be furnished by the Regional Director for the Fourteenth Region, shall, after being signed by Respondent's representative, be posted by Respondent 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material ; (d) Notify the Regional Director for the Fourteenth Region, in writing, within twenty (20) days from the date of service of this Intermediate Report 'what steps the Respondent has taken to comply herewith. It is further recommended that, unless on or before twenty (20) days from the w&ceipt of this Intermediate Report, Respondent notifies said Regional Director, in writing, that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring Respondent to take the action aforesaid. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty (20) clays from the date of service of the order transferring the case to the Board, pursuant to Section 203 45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Inter- mediate Report and Recommended Order 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 six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Statements of ex- ceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made, as required by Section 203.85. As further provided in said Section 203.46,-should any party desire permission to argue orally ibefore the Board, request therefor must be made in writing to the Board within ,ten (10) days from the date of service of the order transferring the case to the Board. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions. recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said 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. Dated at Washington, D. C., this 28th day of January 1949. 'CHARLES L. FERGUSON, Trial Examiner. APPENDIX A I am reading these remarks to you to prevent any distortion or misinterpreta- tion of what I have to say. I understand that you girls are about to, or have already made a decision as to whether or not you wish to be organized. As one young lady so eloquently put it, "all the S. O. B. is thinking about is his job" Maybe hes thinking about your , jobs, too; it could just be possible. In any event, it will mean very little skin off my hide. While the job wasn't exactly thrust upon me, it was offered me with- out any solicitation on my part and became one of the conditions of purchase of the D. A. Marx Co. by M. Snower & Co. Should you decide in favor of a closed shop, it will indicate a reflection on your lack of satisfaction with the present management and I shall notify M. Snower & Co. that they are free to terminate my contract. We have considered the employer-employee relationship, in this plant, singularly happy. Any misunderstandings were readily adjusted on a friendly basis. Under this management and that of my Father, preceding me, you have always had direct access to the management for any complaints and grievances. Most of you have observed the tension existing in this plant since this issue arose. Are you happier with this division than you were before? It may interest some of you to know that the D. L. Marx Company operated a closed shop at one .time. One or two of you were employed here then and may remember it. This was about 1920 and 1921. They had a paid business agent here, who kept the employees continually stirred up and divided into two camps. They were kept busy playing union politics during all their working hours. Let me say a word, here, in favor of collective bargaining. In a large plant, where workers become mere numbers, it is their only method of presenting griev- ances or complaints to the management. Also a word of praise for the national labor unions in our industry; both the A. F. L. International Lady Garment Workers Union under Dubinsky and the Amalgamated union under the late Sidney Hillman, are and were recognized as splendidly operated organizations run in a truly democratic manner. The acceptance or rejection of a contract is something entirely out of my hands and rests with the top management of M. Snower & Co. In talking with the President, Monday morning, and telling him of this matter, he stated that the Chicago plant had always resisted unionization and that they intended operating their organization as a unified whole. Their investment in this plant represents a trifling amount of their capitalization and it is my belief that they could easily write off the entire venture as a total loss without suffering unduly. On the other band, this industry promises to be a good thing for the town in ab- sorbing surplus female labor and a good thing for you in affording secure employment, at a fair wage. The fact that you are here indicates that you wish to work, as a means of livelihood, to supplement other income or for other good and sufficient reasons. We do know that we will continue operating as an open M. SNOWER & COMPANY 329 shop. We do not know if we will continue operating as a closed shop. Remember the story of the dog who wanted to swap his bone for the one that his reflection in the water carried. It isn't always the best policy to swap the known for the unknown. It is true that some other firm might buy out M. Snower & Co's. holdings in Cairo and operate under a contract but there would be a shut down for a pro- tracted period and obtaining proper machinery today is a critical problem. A firm in Mounds City has its building ready for four months and has been unable to start operations because of this lack. The professional organizer has probably promised you that she will obtain the same rate for you that prevails at the Chicago plant. There is a 20% differential in your piece-work scale. I know enough of production costs to realize that this plant would be closed down before this would occur. This difference is largely absorbed by the necessity of freighting materials back and forth, duplication of management and the cost of doing business under two roofs instead of one. She has made much of rest periods during the morning and afternoon. You girls have been free to take these periods with very few restrictions and these only when the privilege was obviously abused. I regret, as much as you do, that the customers of M. Snower & Co. want other items besides short white drill coats. In apportioning work, I have tried to be as impartial as I know how to be. If 1 have favored anyone with the simpler and more preferred jobs, it has been the beginners and those of you who have lagged in production. We can't coast all the time ; every once in a while there is a hill to climb. And let me say here that I have seldom ordered any of you to do anything. In almost every instance where I have made a request I have had the finest kind of cooperation and compliance and I have likewise tried to comply with your requests when they were at all reasonable and within my power. In your wash-room and hotel-room conferences , during your morning pow- wows, while I'm absent from the plant and in the visits of the organizer to your homes you have probably been promised a paradise . Try to remember that there just isn't any Santa Claus and that M. Snower and Co. will still require production to meet payrolls. In closing, let me say, that there will be no reprisals against any girl active in this movement. It is something entirely within her rights, and we wish you to know that your jobs are secure as long as you produce satisfactorily and on a parity with other employees , and so long as M. Snower & Co . continues to operate under my management in Cairo. APPENDIX B 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 interfere with , restrain or discourage the organization and membership of our employees , or any of them , in the AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO, or any other labor organization , by the interroga- tion of employees , or any of them, concerning their union affiliations , activi- ties or sympathies, or by express or implied threats to close our plant and cease operations if a labor organization is formed in the plant or by promises of economic benefits conditioned upon our employees refraining from the 11 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD formation of such labor organization, or by discharging, or refusing to reinstate, any of our employees, or discriminating in any other manner in re- gard to their hire and tenure of employment or any term or condition thereof, because of membership in or activity on behalf of such labor organization. WE WILL NOT, in any other manner, interfere with, restrain or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the above-named Union 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 Katherine Morgan and Iola Baker immediate and full reinstatement to their former, or substantially equivalent, positions without prejudice to any seniority or other rights and privileges they previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination against them. All our employees are free to become or remain members of the above-named union or any other labor organization. M. SNOWER AND COMPANY, DIVISION OF OPELIKA TEXTILE MILLS, INC., Employer.. By --------------------------------------------- (Representative ) ( Title) Dated-------------------- This notice must remain posted for sixty (60) days from the date hereof, and must not be altered, defaced, or covered by any other material. 11