L & H Shirt Co, Inc.

In the Matter of L & H SHIRT COMPANY, INC. and AMALGAMATED CLOTHING WORKERS OF AMERICA, C. I. O. Case No. 10-C.A176.Decided June 14, 1919 DECISION AND ORDER On February 11, 1949, Trial Examiner George A . Downing issued his Intermediate Report in the above-entitled proceeding finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (1) and 8 (a) (3) of the Act, 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. The Trial Examiner also found that the Respondent had not unlawfully discharged Ruth Wilson as alleged in the complaint , and recommended the dismissal of that allegation. Thereafter, the Respondent and the General Counsel each filed excep- tions to the Intermediate Report with supporting briefs.' The Board 2 has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed . The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs , and the entire record"in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent that they are consistent with the additions and modifica- tions hereinafter set forth. 1. We agree 'with the Trial Examiner's finding that Ruby Graham was discriminatorily discharged by the Respondent . The Respond- ent asserted as a defense throughout the proceeding that it had dis- charged Graham for insubordination . It did not, as the Trial Ex- 1 The Respondent 's request for oral argument is denied , because the record , the Inter- mediate Report , the exceptions , and the briefs adequately present, in our opinion , the issues and positions of the parties. 2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Gray]. 84 N. L. R. B., No. 30. 248 L & H SHIRT COMPANY, INC. 249 aminer stated, assert faulty work performance as an additional rea- son for the discharge. It is nevertheless significant, as reflecting on the real motive for the discharge, that Chief Forelady Nichols, who discharged Graham, inconsistently announced to the employees that Graham's unsatisfactory work was the reason therefor-a basis later disavowed by the Respondent and discredited by the Trial Examiner. From the Trial Examiner's recital of the evidence, and upon the en- tire record, it is also clear that Graham's alleged insubordination, even if it did occur, was the result of a situation deliberately con- trived by the Respondent to rid itself of Graham because of her activities on behalf of the Union. We therefore conclude, as did the Trial Examiner, that Graham was discharged because of such ac- tivities and not because of insubordination .3 2. We disagree with the Trial Examiner's finding that the dis- charge of Ruth Wilson did not constitute a violation of the Act. We base our decision upon the following specific evidence adduced at the hearing, which, in contrast to the brief summary thereof contained in the Intermediate Report, is here set forth in detail. Prior to the discharge of Ruby Graham, certain of the Respondent's employees, anticipating possible recriminatory action against Graham because of her leadership in union activities, had agreed to walk out in the event that the Respondent discharged Graham. On the morn- ing of Graham's discharge, employees stopped work, and gathered together in groups discussing the discharge. Nichols, the chief fore- lady, approached the group of which Wilson was a member and offered the explanation that Graham had been discharged because of faulty work. Wilson, acting as spokeswoman, expressed the girls' disbelief of the explanation. Whereupon Nichols stated, "Well, girls, if you are not going to work, get out-there is the door, you can get out. . . . If you don't get out, I will call the police and have you put out." Wilson replied, "Mrs. Nichols, you can have us put out, but I don't believe it." Wilson then turned and proceeded to the rest room. Most, but not all, of the other girls went to their machines. After a short interval, Nichols went to the rest room and forthwith said to Wilson, "Ruth, now, if you are not going to work, get out." At that point Wilson protested the Respondent's alleged ill-treatment of employees. Then, according to the testimony of Wilson, the fol- lowing colloquy occurred : 8 Contrary to the Trial Examiner, we do not regard as "unprecedented" Nichols' exam- ination of Graham's work on the day before her discharge Graham herself testified that it was not unusual for Nichols to inspect the work turned out by employees This modification , however, does not affect our resolution of the issue concerning Graham's discharge. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "I [Wilson] says, `Mrs. Nichols,' I says, `you know that there has been some rumors' going around here.' I says, `Why haven't you called the girls together and tried to straighten it out V "She says, `I haven't heard any rumors.' "I says; `You have.' "She says, `Well, if there is any rumors going around, you are the whole cause of it.' "I says, `I am not the cause of it.' "She says, `Well, you are fired, and you can go to the office and get your time card'." 8 The Trial Examiner concluded, as contended by the Respondent, that Wilson was discharged because she refused to obey Nichols' order to go to work or leave the plant.' We find, however, that Wilson was not discharged for that reason. The work stoppage which set in motion the series of events leading to Wilson's discharge was a concerted effort on the part of the Respond- ent's employees, to protest the; unlawful discharge, of Ruby ,Graham brought about by Graham's union activities. -Wilson ' perhaps for- tuitously, but nevertheless because she acted as spokeswoman for the other girls in refusing to accept as true the reason assigned by Nichols for the discharge of Graham, emerged as the ostensible leader of the protesting employees. Wilson's discharge, which followed almost immediately thereafter, appears to us as an attempt on the part of the * Wilson testified that she was referring to rumors which circulated prior to the dis- charge of Graham to the effect that the Respondent would discharge employees who joined , or had anything to do with , the Union. "Nichols ' version of the incident is substantially similar to that of Wilson's, but differs In the reporting of the remarks made by herself and by Wilson The Trial Examiner, finding that there was no substantial conflict in the factual details relative to Wilson's discharge, did not resolve the credibility issue created by the portions of their testimony in which Nichols and Wilson differed from each other . According to Nichols ' version, after the original interchange with Wilson, she waited a while in order to allow everyone concerned to calm down , and then entered the rest room and expressed surprise that Wilson had not gone to work Wilson stated that she was not going back to her machine to work, and inveighed against the Respondent 's ill-treatment of its employees and its failure to pay the proper amounts for overtime . Nichols answered Wilson's accusations , and then stated; "However, Ruth , that is neither here,nor there . The attitude that you have shown me and the way that you have conducted yourself on my floor warrants that I can 't work with you any longer I will ask you to go to your machine, pick up your book , and I will report you through the office , check you out." In view of the Trial Examiner 's failure to credit the testimony of Nichols on other issues, and his specific accordance of credibility to Wilson's testimony with respect to Nichols' announcement that she had fired Graham for faulty work , we credit the testimony of Wilson appearing in the text , above, regarding the events which led to her discharge. BThe General Counsel contends that the order given Wilson provided , according to the vernacular of the plant and locale , only an alternative of either returning to work or of being discharged Because the discharge of Graham constituted an unfair labor practice, and because employee reaction thereto constituted a work stoppage in protest against Graham's discharge, the General Counsel further contends that such an order was not legally privileged. In view of our finding that Wilson, in fact, was not discharged for disobedience of the order given her, we do not pass upon these contentions of the General Counsel. L & H SHIRT COMPANY, INC. 251 Respondent to remove that leader, who had shown her independence by protesting the action of the forelady. Significantly only Wilson was discharged by the Respondent al- though Nichols' order to go to work was addressed to all the girls in Wilson's group, and although it appears that not only was the order disobeyed by these girls,' but that other employees similarly ordered had- not returned to their work by the time Nichols followed Wilson to the rest room. The fact that Nichols acted precipitously in dis- charging Wilson, without providing her even the smallest interval of time in which to obey the order issued in the rest room, is also indica- tive of the fact that disobedience was not the cause of the discharge. Equally revealing of the actual motivation was Nichols' statement, made just before she discharged Wilson, that Wilson was the cause of the rumors going around the plant to the effect that the Respondent would discharge employees who had dealings of any kind with the Union." Under all the circumstances, therefore, we conclude that the Re- spondent discharged Ruth Wilson because of her leadership in the concerted work stoppage which followed the unlawful discharge of Ruby Graham.9 By so doing, we find that the Respondent interfered with rights guaranteed to employees in section 7 of the Act, and thereby violated Section 8 (a) (1). We also find that such conduct discouraged membership in the Union in violation of Section 8 (a) (3) of the Act. T To this effect , and supporting;our conclusion as to the reason for , and effect of, Wilson's discharge, is the testimony of Sadie F . Hodge, a witness whose testimony on other issues was credited by the Trial Examiner, but whose testimony is not mentioned in the Intermediate Report in connection with the issue of Wilson's discharge. Hodge testified that the girls in Wilson' s group sat down at their machines when Wilson went to the rest room , but that they then "jabbered a while," and did not decide to go to work until they learned that Wilson had been discharged. 8 See the not inconsistent testimony of Nichols, quoted above in footnote 5, showing that Wilson and Nichols argued over plant conditions directly before Wilson was dig- charged. U The Respondent not only contended that Wilson was discharged because she disobeyed Nichols' order , but also assigned Wilson' s insubordinate use of improper language to Nichols as an additional reason for the discharge Nichols testified that Wilson used the words "hell," "damn ," and "another word that I don't care to repeat" during the course of her conversation with Wilson in the rest room. Another witness for the Respondent testified that Wilson "cursed" Nichols, but stated that she neither remembered nor cared to repeat what was said Wilson denied saying anything like the remarks attributed to her by Nichols in which the word "hell" was allegedly used Two witnesses for the General Counsel testified that they overheard pacts of the conversation between Nichols and Wilson in the rest room, but that no profanity was used. On the basis of such evidence , we are unable to accept the Respondent's contention. The events which transpired immediately after Graham' s discharge , Wilson's role in those- events , the exclianges "between Wilson and Nichols, and especially Nichols' failure to mention it specifically when she discharged Wilson, have convinced us that the alleged use of improper language was, even if true, a trifling matter under the circumstances and was not a contributing factor in Wilson's discharge. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Whether the discharge of Wilson be regarded as a violation of Section 8 (a) (1) or Section 8 ( a) (3), we shall , in order to effectuate the policies of the Act, order that Wilson be reinstated and made whole for loss of earnings from the date of her discharge to the date of the Intermediate Report, and from the date of our Decision herein to the date of the Respondent's offer of reinstatement. 3. The Trial Examiner concluded that the Respondent was respon- sible for the coercive statements made at the employee meeting on December 11 by Cook, the local banker, and Taylor and Horn, local businessmen. Without passing , however, as the Trial Examiner did, on'-whether such liability may be based on technical agency principles, we hold that in view of the circumstances in which the statements were made, the Respondent was under a duty to repudiate and deny their validity. Accordingly, by its failure to take any such action, the Respondent became responsible for the utterances , and thereby vio- lated Section 8 (a) (1) 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 , L & H Shirt Company, Inc., Cochran, Georgia, and its officers , agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Amalgamated Clothing Workers of America, C. I. 0., or in any other labor organization, by discharg- ing 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 activities, and offering them raises in pay in order to discourage union activ-, ities ; (c) Threatening and warning its employees to refrain from assist- ing, becoming members of, or remaining members of Amalgamated Clothing Workers of America, C. 1. 0., or any other labor organization; threatening to chase the aforesaid union, or any other labor organiza- tion, out of Cochran, Georgia; and threatening to close down, or to move, its mill to another locality because of the afore -mentioned union, or any other labor organization; and (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization , to form -labor organizations , to join or assist Amalgamated Clothing Workers of America, C. I. 0., or any other labor organization , to bargain collec- L & H SHIRT COMPANY, INC. 253 ''tively 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 activ- ities 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 amended Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Ruby Graham and Ruth Wilson immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; (b) Make whole Ruby Graham for any loss of earnings she may have suffered by reason of the Respondent's discrimination against her, by payment to her a sum of money equal to the amount she nor- mally would have earned as wages during the period from the date of her discharge to the date of the offer of reinstatement, less her net earnings during said period; (c) Make whole Ruth Wilson for any loss of pay she may have suf- fered by reason of the Respondent 's discrimination against her, by payment to her a sum of money equal to the amount she normally would have earned as wages during the periods : ( 1) from the date of her discharge to February 11, 1949, the date of the Intermediate Report herein , and (2) from the date our Decision and Order herein to the date of the Respondent's offer of reinstatement ; less her net earnings during such periods. (d) Post at its mill at Cochran , Georgia, copies of the notice at- tached hereto marked "Appendix A." 10 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, after being duly signed by the Respondent 's representative , shall be posted by the Respondent immediately upon the receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced, or covered by any other material; and (e) Notify the Regional Director for the Tenth Region in writing, within ten ( 10) days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER GRAY, concurring in part and dissenting in part : I disagree only with the holding of my colleagues in reversing the Trial Examiner's finding that Ruth Wilson was discharged for cause. "In the event that this order is enforced by decree of a 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." 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Following the discharge of Graham, employees congregated in groups around the plant. Nichols, the chief floorlady, approached the group of which Wilson was a member, and, as detailed in the Inter- mediate Report, discussed with them the reason for Graham's dis- charge. Wilson, acting as spokeswoman, expressed disbelief in the ex- planation offered by Nichols. Thereupon, according to Wilson's own testimony, Nichols then stated, "Well, girls, if you are not going to work, get out-there is the door, you can get out. . . . If you don't get out, I will call the police and have you put out." Wilson replied, "Mrs. Nichols, you can have us put out, but I don't believe it." Wil- son then turned and went to the rest room. Most of the other girls returned to work. After a short interval Nichols went to the rest room and again, ac- cording to Wilson's testimony, forthwith said to Wilson, "Ruth, now, if you are not going to work, get out." Wilson offered no explana- tion for her presence in the rest room. She countered, however, with remarks and questions concerning the situation in the plant and the Respondent's alleged ill-treatment of its employees, to which Nichols responded. Nichols ultimately broke off the conversation by telling Wilson she was discharged. The sole reason for the presence of these employees in the plant was to work, for wages. The record shows that Wilson twice was given the option of either going to work-her reason for being on the pay roll-or leaving the plant. The granting of such a choice was legally privileged under the circumstances. It is clear, moreover, that Wil- son did not comply with the alternative accorded her. In the first instance, she expressed doubt as to Nichols' power to have the girls removed from the plant; and, instead of going to work as directed, she went to the rest room. On the second occasion, she offered no explanation for her presence in the rest room, and made no effort to comply with the order specifically repeated for her alone; instead, she expressed her defiance by countering with remarks and questions concerning plant conditions. Under these circumstances, I agree with the Trial Examiner's find- ing that Wilson was lawfully discharged for her disobedient refusal either to return to work or leave the plant. I would accordingly dismiss the complaint in this respect. 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 °RelationsAct,,we hereby notify our employees that: - L & H SHIRT COMPANY, INC. 255 WE WILL NOT discourage membership in AMALGAMATED CLOTH- ING WORKERS OF AMERICA, C. I. 0., or in any other labor organi- zation, by discharging or by refusing to reinstate any of our em- ployees, or by discriminating in any other manner in regard to their hire or tenure of employment. WE WILL NOT interrogate our employees concerning their union activities, and we will not offer them raises in pay in order to discourage union activities. WE WILL NOT threaten and warn our employees to refrain from assisting, becoming members of, or remaining members of AMALGAMATED CLOTHING WORKERS OF AMERICA, C. I. 0., or any other labor organization; we will not threaten to chase the afore- said union, or any other labor organization, out of Cochran, Georgia; and we will not threaten to close down, or to move, our mill to another locality because of the afore-mentioned union, or any other labor organization. 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 or- ganization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or any other mutual aid or pro- tection, and to refrain from any or all such activities except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL OFFER to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges enjoyed, and we will make them whole, in the manner .provided in the Decision and Order, for any loss of pay suffered as the result of our discrimination against them : Ruby Graham Ruth Wilson All our employees are free to become or remain members of the above-named union or any other labor organization. L & H SHIRT COMPANY, INC. Employer. Dated-------------------- By --------------------------------- (Representative) (Title) 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. 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT Messrs. T. Lowry Whittaker and William J. Rains, for the General Counsel. Messrs. Legare Davis and Frank A. Constangy, of Atlanta, Ga., and Mr. John F. Floyd, Cochran, Ga., for the Respondent. Mr. Peter Zubal, of Atlanta, Ga., for the Union. STATEMENT OF THE CASE Upon a charge filed January 26, 1948, by Amalgamated Clothing Workers of America, C. I. 0., herein called the Union, the General Counsel of the National Labor Relations Board' by the Regional Director for the Tenth Region (Atlanta, Georgia) issued a complaint dated August 2, 1948, against L & H Shirt Company, Inc., of Cochran, Georgia, herein called the Respondent, alleging that the Respond- ent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and '(7) of the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act. Copies of the complaint, the charge, and the notice of hearing were duly served on the Respondent and the Union on August 2,1948. With respect to the unfair labor practices the complaint alleged in substance : (1) that from on or about December 3, 1947, and since, the Respondent, by its officers, agents, and employees, more particularly by Plant Manager B. H. Schwe- bel, Forelady Lillian A. Nichols, Floorlady Flora Hinson, Mayor Jimmy Dykes, Banker Jim Cook, General Contractor Luther Horn, and Philip Tayler, and in violation of Section 8 (a) (1) of the Act, had interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 by the following acts "committed, authorized, instigated, and acquiesced in" by the Respondent: (a) statements and conversations discouraging activity on the part of its employees for the purposes of collective bargaining and other mutual aid and protection, and discouraging membership and activities among its employees in the Union ; (b) interrogated its employees concerning their union activities ; (c) threatened and warned employees to refrain from assisting, becoming mem- bers of, or remaining members of the Union ; (d) threatened to close the mill down because of the Union; (e) threatened to move the mill to another locality because of the Union; (f) threatened to chase the Union out of town; and (g) offered its employees a raise in pay in order to discourage union activities ; and (2) that in violation of Section 8 (a) (1) and (3) of the Act the Respondent on or about December 9, 1947, discharged Ruby Graham and Ruth Wilson and thereafter failed and refused to reinstate them because of their membership in and activities on behalf of the Union and because they engaged in concerted activities with other employees for the purposes of collective bargaining and other' mutual aid and protection, thereby discriminating in regard to their hire and tenure of employment in order to discourage membership in the Union. On or about September 17, 1948, the Respondent filed its answer in which it ad- mitted certain allegations of the complaint but denied the commission of any unfair labor practices." Pursuant to notice a hearing was held from November 9 to 19, 1948, both inclu- sive, at Cochran, Georgia, before the undersigned Trial Examiner, designated by 1 The General Counsel and his representatives are herein referred to as the General Counsel, and the National Labor Relations Board as the Board 2 Defendant's original answer contained in addition to a general denial of the alleged discriminatory discharges , an affirmative averment that the discharges were "for cause," but by amendment made prior to the hearing the affirmative matter was eliminated , leaving only the general denial. . - r L & H SHIRT COMPANY, INC. 257 the Chief Trial Examiner. The General Counsel and the Respondent were represented by counsel and the Union by a representative. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues was afforded all parties. Respondent's motion for a more definite statement of certain allegations of the complaint made as the hearing opened was denied. At the conclusion of the General Counsel's case-in-chief, Respondent moved to dismiss the complaint in its entirety and in the alternative to dismiss separately various paragraphs and subparagraphs thereof. All such motions were denied with the exception of those which sought to strike from the complaint the names of Mayor Jimmy Dykes, Banker Jim Cook, General Contractor Luther Horn, and Philip Tayler, on which ruling was reserved. They are disposed of by the findings, conclu- sions, and recommendations herein. At the conclusion of the evidence Re- spondent renewed its motions to dismiss the complaint and certain paragraphs thereof and also moved to dismiss additional paragraphs of the complaint. Such motions were denied. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDING OF FACT I. THE BUSINESS OF THE RESPONDENT L & H Shirt Company, Inc., is a Georgia corporation which operates a mill at Cochran, Georgia, where it is engaged in the manufacture, wholesaling, and distribution of cotton shirts. During the year ending January 1, 1948, which is representative of the ,period involved in this proceeding, Respondent purchased raw materials consisting principally of cotton, thread, and buttons valued in excess of $100,000, approximately 75 percent of which value was purchased out- side the State of Georgia and shipped in interstate commerce to its Cochran mill. During the same period the Respondent manufactured and sold finished prod- ucts consisting principally of cotton shirts valued in excess of $250,000, approxi- mately 90 percent of which value was sold and shipped to customers outside the State of Georgia. The Respondent does not dispute that it is engaged in inter- state commerce within the meaning of the Act, and the undersigned finds that it is so engaged. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Clothing Workers of America, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of Respondent. M. THE UNFAIR LABOR PRACTICES A. The events 1. Background and setting Respondent's factory, which employs from 350 to 375 employees, is located in a small town of 2,464 population (1940 census). The plant consists of the fol- lowing departments: cutting room, manufacturing (or sewing room), pressing, boxing, and shipping ; and the flow of work through the various operations was in that order. The manufacturing department, herein called the sewing room, was the largest, employing approximately 200 employees, and the pressing depart- ment is the next largest. The pressing room and the boxing room were separated 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by walls; but the other departments occupied allotted portions of open space within the plant building. In the sewing room, for example, the 'employees, worked in view of each other and of the head forelady whose desk was centrally located. During all periods covered by the complaint Respondent' s plant man- ager and general manager was B. H Schwebel, its chief forelady in the sewing room was Lillian A. Nichols,' and its head forelady in the pressing room was Mrs. Ellis Fawcett. There were no foreladies in the other departments, whose employees were directly responsible to Schwebel. The sewing room, in which the shirts were actually manufactured, operated on a production line basis; and it was itself subdivided into a parts department, in which the separate parts of the shirt were made, and a finishing department, in which the various parts were assembled, joined, and sewn together into a completed shirt. The floor- lady (assistant forelady) in the parts department under Nichols was Lola Mae Roland and a similar position in the finishing department was held by Bertha Benson. Each of these subdepartments employed from 75 to 100 employees.) In addition, there was an assembly girl, Mrs. Flora Hinson, -whose job it was to assemble the various parts when completed in the parts department and supply them as needed to the operators in the finishing department ; there were approxi- mately 20 "inspectors" in the finishing department and there were approximately 4 "time girls" who worked under Mrs. Nichols' immediate supervision and who served in a general utility capacity, doing anything that was needed which did not consist of a piecework operation. The time girls were paid by the hour rather than at piece rates and Nichols kept their work cards and made the entries thereon. Respondent's office staff consisted of a bookkeeper-stenographer, Mary M. Gullatt, and two clerical employees, Christine Lucas and Birdie Mae Bellflower, the latter of whom is identified in the record as a time clerk and pay-roll clerk .4 ' As forelady of the largest department of the plant, Nichols occupied a position of con- siderable responsibility and importance , second only to Schwebel , Respondent's general manager and plant manager. Respondent's recognition of her prominence in its organiza- tion is demonstrated by her selection as its sole representative (other than counsel) at the hearing Neither Schwebel or Greenberg (the owner of Respondent company) appeared or testified at the heaiiug. 4 The disposition preliminarily at this point of issues as to whether certain persons occupied supervisory status will facilitate an understanding of the significance of cer- tain later events. Those issues concerned Lola Mae Roland , Bertha Benson , Flora Hinson, the time girls , and Mary M Gullatt, it being conceded that Schwebel and Nichols were supervisors Without attempting to summarize in detail the evidence as to Hinson, Gullatt, and the time girls, the undersigned finds that the preponderance of the evidence fails to establish that any one of them possessed aiiy of the specific authorities enumer- ated in the disjunctive in Section 2 (11) of the Act, including the authority "respon- sibly to direct" as recently construed by the Board Amended Decision, Matter of The Ohio Power Company, 80 N L R. B 1334. It is therefore, concluded that said employees are not supervisors within the meaning of the Act. A closer question is presented in the cases of Roland and Benson , and some analysis of the evidence is necessary. The sewing room ( manufacturing department ) under Nichols' general supervision as chief forelady employed some 200 employees Roland as floorlady (or assistant forelady ) was in charge of the subdepartment ( called the parts department) under Nichols ' general supervision and Benson occupied a corresponding position in the finishing department. Each subdepartment employed from 75 to 100 employees ; and. there were a substantial number of additional employees in the sewing room who were directly responsible to Mrs. Nichols , such as time girls , inspectors, etc. The evidence negatives the possession by Roland and Benson of any of the specific alternative authori- ties enumerated in Section 2 (11) with the exception of the authority "responsibly to. direct." That clause has not been given a literal construction by the Board , but a nar- row and qualified meaning to accord with the intention of Congress as indicated by the legislative history. In the opinion of the undersigned , the employees in question fall L & H SHIRT COMPANY, INC. 259 Most of Respondent's employees were compensated on a piecework plan with an underlying minimum hourly guarantee. New employees were hired at the minimum guarantee but were placed on piece rates sometime after having ac- quired adequate proficiency to equal or exceed "production," i. e., a sufficient output at existing piece rates to equal the minimum hourly guarantee. The mini- mum guarantee down to a time shortly before the period covered by the complaint (i. e., beginning December 3, 1947) was 50 cents an hour, and the more proficient workers frequently earned at piece rates wages substantially in excess o* the guarantee. The foregoing findings are based on evidence on which there is no substantive dispute. A week or two before December 3, 1947, Plant Manager Schwebel, desirous of spurring increased production from the less proficient pieceworkers whose piece rate earnings were falling short of the minimum guarantee, announced a reduc- tion in that guarantee from 50 cents an hour to 40 cents. The evidence is in conflict as to whether (a) the reduction was to take effect immediately or was to be postponed conditionally on increased production, and (b) whether an increase in piece rates was announced simultaneously. The undersigned finds that the preponderance of the evidence is that there was no increase in piece rates an- nounced or given and that the threatened reduction in the minimum guarantee was not actually put into effect. Nevertheless many of Respondent's employees apparently misconstrued the tenor of the announcement and assumed that their wages were actually being cut ; and this misapprehension extended even to some of the pieceworkers who ordinarily earned in excess of the 50-cent minimum. In the latter cases the misapprehension appeared to be induced in part by the failure of the employees to understand clearly the basis on which their earnings were being computed.' Thus, though it is established that Respondent maintained on Nichols' desk a schedule of piece rates which was available for inspection and that the employees knew it was there and occasionally consulted it, some of them were still unable to reconcile their pay-roll earnings with their production at the posted rates. Nor were the plant floorladies or the office clerical staff able to dispel their confusion. Their confusion was aggravated by the fact that such within the narrow area marked out by the Board in Matter of The Ohio Power Company, supra Thus, it is clear from the evidence that aside from Nichols, there was no one available except Roland and Benson to direct or supervise in any manner the numerous employees in each subdepartment of the sewing room and it is also clear that Roland and Benson were above the grade of straw bosses, leadmen, set-up men, and other minor super- visory employees. The evidence shows that during Nichols' absences each was in com- plete charge of her subdepartment, and that during Nichols' presence each was in im- mediate charge of her subdepartment under Nichols' general supervision One of the circumstances considered by the Board in determining the supervisory status of an in- dividual where the evidence does not fairly show that he possess the power to exercise independent judgment with respect to any of the authorities contained in Section 2 (11) of the Act is the proportion or disproportion of supervisors over rank and file employees in the unit. Matter of The Ohio Power Company, supra Thus, the Board has found that certain persons were supervisors where a contrary finding would leave only 3 super- visors for 175 employees (Matter of Morowebb Cotton Mills Company, 75 N. L R B. 987), and where the persons in question were responsible for the output of 8 to 30 em- ployees (Matter of Steelwcld Equipment, Inc., 76 N. L. R. B. 831) It is inconceivable that only a single individual, Nichols, should have possessed supervisory status in a unit of 200 employees and that floorladies under her over subdepartments of 75 to 100 em- ployees each should have no supervisory authority (Matter of Morowebb Cotton Mills Company, supra). Under the evidence here, however, such would be the result were Respondent's contention to be sustained. The undersigned concludes that Roland and Benson each occupied the status of a "supervisor" within the statutory definition. 'The General Counsel's witnesses who so testified were Ruby Graham, Ruth Wilson, Ruby Williams, and Mary Delane Dunn 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD floorladies as Bertha Benson were unable to inform them what was necessary to make "production." In fact, Benson, called as Respondent 's witness, admitted that she herself did not at all times know how their piecework was figured. Furthermore, Graham testified that Respondent 's bookkeeper , Mary M. Gullatt, . informed her that she knew the employees didn't understand the basis on which they were paid, and that an explanation would shortly be made by Schwebel and Gullatt. Gullatt did not deny Graham's testimony to that effect. In any event it is clear from the record that prior to the announcement of the reduction in the guarantee there was no interest among the employees in a union and no suggestion of organizational activities. As expressed by Martha Hall, a witness for the General Counsel, ". . until Mr. Schwebel told us we would have to work for the 40-cents an hour, I don't think anybody was too interested in the Union." 2. The Union leaflets ; the inception of concerted activity. It was in this setting that the Union, apparently by coincidence, began an organ- izing campaign. On the morning of December 3, Peter Zubal, the Union's State Director, distributed among the employees outside the plant entrance as they reported for work, leaflets which were designed to stimulate interest and to elicit further inquiry. Thus, annexed to the leaflets were detachable slips which could be signed and mailed to the Union's vice president in Atlanta by employees who "would like to have more information about how to get the Amalgamated Union and better wages and working conditions in our factory." The employees' reaction was instantaneous Between 180 and 190 such slips were mailed in and were received by the Union within a day or two of the dis- tribution. Many of the slips were mailed in separately but many others were assembled or collected .within the plant and mailed in single envelopes. Ruby Graham collected 36, including her own, and mailed them in 1 envelope during the noon hour on the day of the distribution. Six others were brought to her in the plant the same afternoon or the next morning and were also mailed in. Ruby Williams similarly collected a number of slips in the plant and mailed them in with her own. Within a day or two, and during the week which ended De- cember 6, Zubal returned to Cochran with a staff of organizers and immediately began a membership drive. Graham became a member of the Union at that time, furnished union representatives a list of names and descriptions of employees, obtained signatures of employees to membership cards, and also actively assisted some of the organizers who were engaged in the campaign under Zubal's direction. The extent of the organizational activities is not clearly indicated by the evi- dence. It does appear, however, that during the period of 2 or 3 weeks following the distribution of the leaflets, the union representatives continued the member- ship drive, visiting employees in their homes, and that union meetings were held. There is no evidence that the activities culminated in the organization of a local. Indeed, it appears that the organizational drive failed ; and so far as is shown by the evidence the union activities, as well as other concerted activities among the employees, ceased within 2 or 3 weeks after December 3 and certainly before Christmas. Respondent learned of the concerted activities at once. Nichols admittedly observed the distribution of the leaflets by the union representatives and reported the fact to Schwebel ; she also saw a copy of the leaflet the same day. Nichols also learned promptly that some of the employees were mailing in the slips attached to the leaflets. That information also promptly reached Schwebel as shown by his statement to Ruby Graham on Thursday afternoon ( December 4) that he had L & H SHIRT COMPANY, INC. 261 learned that she had mailed in some of the leaflets.' Nichols in fact boasted of her ability to keep abreast of the activities of the organizers . Thus, according to the testimony of. Netha Lee Crosby, Nichols informed her one morning that she knew of Crosby's visitors [union representatives] the night before and she added that "I knew where they were last night and knew (sic) where they. were going to be tonight." 3. The Respondent's reaction The Respondent took immediate steps to combat the concerted activities as reflected in a series of acts and statements by Nichols . Those acts and statements recited below were testified to by various \i itnesses for the General Counsel whose names are indicated and whose testimony is credited.7 a. Ruby Graham. Early Thursday morning ( December 4) Nichols inquired of Graham and Esse Amerson whether they had mailed in any of the union slips. Amerson parried the inquiry. Graham admitted mailing some slips and added that she wouldn't withdraw them. Later on the same morning Nichols again questioned Graham as to the number of leaflets she had mailed in. Graham informed her 36, and Nichols wrote down the number on a piece of paper. Nichols also told Graham on that occasion that the Union would try to hold a meeting in Cochran but "We will run them out . . . We will not let them hold the meeting." b. Fausti.ne Garrett. Some days after Garrett had mailed in the union slip through Ruby Graham , Mrs. Nichols called witness to her table , questioned her as to whether she had sent in the slip and why she had done so . Nichols said, among other things, that "We didn't want the Union ; that the plant would be closed down and we would be without a job if the Union came in" ; that "they" wouldn't have a union there and that "they " would close the plant first. Nichols also asked. Garrett on that occasion if she was for the union , saying that if Garrett was for the union she didn't want her. On another occasion the time of which is not definitely fixed, except that it occurred during the period of the concerted activities,' Garrett sought from Nichols an explanation why Mary Delane Dunn in whose car witness rode to and from the plant, had ceased bringing her to work.' Nichols replied that if Garrett didn't have a ride it wasn't her fault and "if I could get a ride, I could work on if I weren't for the Union . If I was for it, she didn 't want me." c. Mary Delane Dunn. Garrett's testimony to the ride incident , supra, is cor- roborated by the testimony of Mary Delane Dunn to whom Nichols had pre- viously made the corresponding statement that "she wouldn't blame me for it, 8 Graham's testimony to that effect is undenied on the record , through Nichols and Gul- latt were present with Schwebel at the time of the incident 7 Though chronologically some of these incidents may have followed the discharges and the employee meetings later refeired to, they are grouped here and are treated together for convenience. For the sake of brevity , the undersigned has excerpted and summarized only the core of Nichol's coercive and intimidatory statements In some instances, as in the case of Graham , Garrett , and Hodge , such statements were made during the course of long conversations in which Nichols made a variety of statements derogatory to and disparag- ing of the Union which were not, however, clearly of a coercive character. 9 Though Garrett's recollection of time was indefinite , her testimony was carefully and thoughtfully given and she was a candid and disinterested witness Respondent's counsel twice commented favorably on her presence and manner of testifying 9 A number of Respondent 's employees lived in outlying rural communities and Respond- ent's management encouraged employees with cars to transport others who were without means of transportation . It was because of this that Dunn had first conferred with Nichols before cutting off Garrett 's ride. 853396-50--vol 84-18 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that she didn 't care whether I went and got the girl anyway because the girl was tangled up with this Union."10 During the day the leaflets were distributed Dunn heard Nichols makelthe, remark "a couple of times" as she went up and down the aisles that anyone who had mailed in the union leaflets would be fired. At about the same time Nichols had also made the statement in the aisles that she could point out each and every one "that had anything to do with the Union, and that if they didn't watch, they would be fired over it." d. Martha Hall. Sometime after the leaflets were distributed, estimated by Hall at from 1 to 2 to 3 weeks, Nichols made the statement in the presence of a group of girls, including Hall, that "the plant would close down if we got a union in there." e. Lois Yearty. On the day of the discharges (December 9), or within 2 or 3 days thereof, Nichols made the statement at the end of the line "that the plant would 'close if the Union came in." ii f. Sadie F. Hodge. On the Friday after the discharges and after the employees meetings later referred to, Hodge approached Nichols for an explanation of an attitude of displeasure manifested toward her. Hodge assumed the attitude was due to a report that she had held a union meeting and Nichols corroborated that assumption : ". . . She said she had heard that I had given a union meet- ing . . . she said she didn't think that I would give a union meeting, and she begin ( sic) to tell me then that Mr. Greenberg wouldn 't operate under a union and that he would close [the plant] down That he wouldn't have no union. That I wouldn't have no job. And asked me if I needed a job, and I told her I did, and she said, `well if you want a job, you had better not be giving no union meet- ing, nor have anything to do with a union meeting'" Nichols also said that the plant had been moved from another State on account of the Union, that the Union tried to take over, that it moved to Cochran, and that Greenberg could pick it up there just as well as he could some other State and that the employees would all be out of a job. On the same occasion , Mrs. Nichols questioned Hodge as to whether she had filled out and mailed in a union leaflet and whether she had filled out a membership card. Hodge had done both but lied to Nichols saying she had not. g.' Netha Lee Crosby. Sometime after mailing in the Union leaflet, Crosby was visited at her home after work by two union representatives, her only visitors of the evening. The next morning as Crosby punched in her time card Mrs. Nichols came over to her machine and said, "she heard I had visitors that night" and continued "I know where they were last night and knew where they were going to be tonight." Nichols, testifying for the Respondent, entered either specific or general denials to all of the foregoing statements attributed to her by the witnesses for the General Counsel . Myrtle Carroll testified for the Respondent in specific rebuttal 10 Testimony as to conversations between Garrett and Dunn concerning the termination of the ride ai rangement , admitted over Respondent's objection , is considered herein only as showing the background to and the motivation for the separate conversations which each had with Nichols n Witness testified that Myrtle Carroll had put the inquiry to Nichols which elicited the response quoted Cai roll, called by Respondent , denied putting the inquiry to Nichols or having herself heard the statement, but she did not deny that Yearty might have heard such a statement. Yearly is positive in her testimony that she heard Nichols make the statement, and the undersigned credits her testimony . She may , of course, have been mistaken in her recollection that Carroll was present and put the inquiry that elicited Nichols' response. L & H SHIRT COMPANY, INC. 263 of the testimony of Lois Yearty that Carroll had put the inquiry which elicited Nichols'- statement that "the plant would close if the Union came in," and she testified further that she did not herself hear such a statement but she did not deny that Yearty may have heard such a statement . Otherwise the testimony of Respondent's witnesses was to the general effect that they had not themselves heard Nichols make statements of the type attributed to her by the witnesses for the General Counsel. Respondent's evidence is wholly inadequate to overcome the cumulative weight of the testimony of the seven witnesses for the General Counsel whose testimony is credited ; and the undersigned finds that Nichols in fact made the statements above summarized. Evidence was also offered that Schwebel made statements similar in content to those made by Nichols, to Graham. Graham testified that in her Thursday afternoon conference with Schwebel (attended also by Nichols and Gullatt), he informed her, that he had learned of her action in mailing in the union leaflets, asked here what she knew about the Union,,and warned her that she was "just before getting a bad experience." Schwebel did not testify, and Nichols and Gullatt, though testifying did not deny the statements were made. The under- signed finds that the statements were made Mary Delane Dunn and Ann McCarthy both testified to statements made by Schwebel during the employee meetings hereinafter referred to According to Dunn, Schwebel said that Mr. Greenberg would shut the plant down before lie would go under a union and McCarthy testified that Schwebel said that Greenberg would move the plant before he would let the Union come in; that "they" knew a place "they" could move it to and that "they" would have it moved "if we kept on about the Union." It is found, however, that Schwebel did not make the statements relative to Greenberg closing or moving the plant which were attributed to him by Dunn and McCarthy. McCarthy was uncertain as to whether the remarks relative to Greenberg were made by Schwebel or by one of the business men who had been called in to the employee meeting, and Dunn was uncertain of the time or the occasion when the remarks were made. No one of the several other witnesses attributed the remarks to Schwebel, but some of the General Counsel's witnesses attributed them to one or more of the business men who spoke at the 5 p. m. meeting. which is treated infra, p. 269. 4. The discharges a. Ruby Graham The evidence shows that Ruby Graham, a cuff sewer, was the most active of Respondent's employees in the concerted activities which began on December 3rd and in attempting to procure the organization of a union by the employees. It likewise establishes that she was one of Respondent's most efficient and fastest workers, and that she was one of the operators selected to do special work such as silk sh irts and sample shirts which required particular care. Graham's reputation in these respects was well known among the employees and Respon- dent's witnesses did not attempt to challenge it, though Nichols and Roland en- deavored to suggest that Graham, like all the faster operators, would become a little careless if not carefully checked. The evidence is undisputed that the proportion of Graham's "rejects" (faulty work) was no greater than that of other operators, I hat her rejects normally ran about 7, 8, or 9 cuffs a day out of a pro- duction of from 1,000 to 1,200 pairs, and that they consisted of cuffs with a raw edge, a bad stitch, or a skipped stitch due to the faulty operation of the machine. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Such faulty cuffs were normally discovered by the cuff turners and returned to. the operator for correction. No cuff sewer had ever been discharged for faulty work prior to Graham's discharge. Graham had never been criticized for faulty work and had in fact been complimented by Airs Nichols for her work on silk shirts. However, when Graham took the lead in the concerted activities which began with the distribution of the union leaflets on December 3rd, she made herself a marked woman in the eyes of herself and of the other employees because of -Nichols' repeated threats to discharge anyone who had mailed in the leaflets; and some of the employees for whom Graham had mailed in the leaflets agreed tentatively that if Graham were discharged, they would stage a walkout in protest. Further events corroborated the employees' impression that Graham was marked for discharge. Reference has already been made under Section 3, hereof, to the two occasions on Thursday morning when Nichols sought out Graham and to the coercive statements then made On those occasions Nichols also made a number of remarks disparaging of the Union and Graham in turn complained to Nichols of certain conditions in the plant which the employees objected to and also of the fact that her pay was "coming up short" and that she had been unable to obtain a satisfactory explanation from the bookkeeper, Mrs. Gullatt. Graham also then referred to the rumor that she had heard that Schwebel would discharge anyone who had anything to do with the Union, and stated "Airs. Nichols, I am ready to be fired." Nichols replied "I will leave that up to Mr. Schwebel " 12 Thursday afternoon, just before closing time, Nichols sent for Graham the third time that clay, telling her Schwebel wished to see her in the office. There, in the presence of Nichols and Gullatt, Schwebel questioned Graham 13 about her criticism of Gullatt for incorrectly computing her pay. Schwebel and Gullatt went over with Graham some of her recent time cards and work cards, showed her how to figure her pay, and Schwebel suggested she take them home and see if she could find a mistake. Schwebel then turned to the question of the Union activities, stating "I've also been told that you mailed in some of these slips." When Graham admitted it, Schwebel inquired whether she realized the mistake she was making and inquired what she knew about the Union. When Graham replied that the only way to learn anything was to experience it, Schwebel told her that she was "just before getting a bad experience." The conference ended at that point, a few minutes before 6 p. m., when the person with whom Graham rode to and from work knocked on the door. Graham was not paid for the time after 5 p. in. Friday morning Graham called to Schwebel's attention errors in the wage computations on two of her work cards aggregating between $1 and $175, the cards were refigured, and Graham later got the money. There is no evidence that Graham's complaints about errors in her pay or the steps leading to the correction thereof played any part in the ultimate discharge. On Monday morning (December 8) Nichols began making an unprecedented examination of all cuffs which Graham made and she took the first completed bundle to her desk. These findings are based on Graham's credited testimony which is corroborated in material respects by the testimony of Sadie Hodge, Mary 12 This finding is based on the credited testimony of Graham which is not specifically denied by Nichols . Nichols' response clearly implies recognition that the rumor was correct and that Graham's fears were not without foundation. 13 These findings are based on Graham's credited testimony . Schwebel did not appear at the hearing or testify as a witness and Gullett did not deny Graham 's testimony nor did Nichols on material particulars. L & H SHIRT COMPANY, INC. 265 Delane Dunn and Ruth Wilson, witnesses for the General Counsel. Shortly before quitting time Roland told Graham that Mrs Nichols was going to ask her to "stay in" after work." Thereupon, Graham indicated her unwillingness to remain and Roland expressed her concurrence, stating, "Well, I don't blame you; I wouldn't stay either." Nichols did not, however, ask Graham to stay and Graham did not care to anyway because she did not .want to miss her ride home and because she had "stayed in" the previous' week without pay in order to straighten out with Schwebel and the office force the errors in her pay. In any event Graham left without first reporting to Nichols. The next morning (Decem- ber 9), Graham was discharged when she reported for work. When Graham went into the plant shortly before 7 o'clock, her time card was not in the rack and when she called that fact to Nichols' attention, Nichols replied "No, you don't have a card and you won't need a card." When Graham inquired the rea- son, Nichols began to show her the completed cuffs in the first bundle Graham had made the previous morning, on some of which there was a little more seam on one end of the cuff than on the other. Nichols criticized her for doing such imperfect work 15 and inquired further why witness had not stayed in Monday evening. Graham responded that Lola Mae Roland hadn't told her to stay in. Nichols said, "Lola Mae shouldn't have done that" and thereupon discharged Graham and sent her to the office to get her pay. Nichols' version of the incident is as follows : Her selection of the particular bundle of cuffs was a part of her routine inspection. The work was "unusually bad" and that is what attracted her attention to it. She didn't at first know it was Graham's but found out later that it was and sent word through Roland for Graham to see her at 5 p. in. Graham did not do so. On Tuesday morning Nichols immediately checked with Roland who stated that she had conveyed to Graham Nichols' express direction to remain. Thereupon, Nichols called Graham to her desk, criticized her for the faulty work contained in the previous day's bundle and then turned to the question of Graham's disobedience of her request to remain. When Graham offered no excuse except to say "I just didn't," Nichols told her that the faulty work and "the attitude that you have taken in refusing to comply with my request definitely shows me that I can't keep you any longer," and thereupon discharged her. Questioned on cross-examina- tion, Nichols did not deny saying in a previous written statement 16 that she had at first decided only to warn Graham but when Graham failed to show up as requested and had told another girl about it, she had decided to fire Graham. But testifying that she had talked to no other girl after Graham's departure the night before or before her arrival the next morning, Nichols offered no con- 14 Respondent contends that Roland actually conveyed an express request from Nichols that Graham should remain (Roland so testified), and that Graham's disobedience was one of the causes for the discharge. From his observation of the demeanor of the to witnesses and their manner of testifying, the undersigned credits the testimony of Graham Re- spondent also attempted to discredit Graham's testimony of the incident by calling Nora Abney as its witness to testify that Graham had informed her she proposed to disregard the request. However, Abney's testimony was itself discredited by a prior contradictory statement given to Graham and to Laymia George, a representative of the Union, shortly before the hearing. "The fault +o which Nichols called attention was a particularly trivial one for whicn .no cuff sewer had been criticized before. In fact, Mary Delane Dunn, a witness for the General Counsel, testified to a defect substantially more serious, i e., the placing of a size 16 cuff on a size 14 shirt, which had been openly condoned and directed by her floorlady, Bertha Benson, who, though testifying in Respondent's behalf, diii not deny the incident. "Made for the Respondent but exhibited by Respondent 's counsel to a member of the General Counsel's field staff during the investigation. The statement was not offered in evidence. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vincing explanation of how Graham's attitude of "open defiance" to which ulti- mately she pinned the discharge had been communicated to her. Furthermore, in endeavoring to quiet the girls and terminate the work stoppage which ensued immediately after Graham 's discharge ,17 Nichol's announcement to the employees as testified to credibly by Ruth Wilson and Mary Delane Dunn was that she had discharged Graham for faulty work . Dunn's testimony was that "all the girls refused to go to work and most of them was going to walk out, and Mrs. Nichols came through and said that she had fired her for dissatisfactory work." Even more significant is Wilson's testimony that when Nichols ap- proached the group of,girls in which she was standing , she said, "Girls, now I haven't fired Ruby for the Union. I have fired her for bad work." Under all the foregoing circumstances the undersigned does not credit Nichols' testimony that Graham's disobedience to orders constituted any part of the reason for the discharge. b. Ruth Wilson The evidence pertaining to the discharge of Ruth Wilson will be briefly summarized since there is no substantial conflict in the factual details which are essential to a determination of the question whether Wilson was discharged on account of her participation in concerted activities. Wilson did not join the Union but she did sign and mail to the Union through another employee one of the union leaflets. She also joined in the concerted activities that followed Graham's discharge, as herein related, and her own discharge grew out of and followed that discharge almost immediately. It has already been pointed out that due to Graham's active and admitted part in collecting and mailing union leaflets and Nichols' repeated threats in relation thereto, the employees had con- sidered Graham as marked for discharge, and there had been previous discus- sion and tentative agreement among some of the girls that they would walk out if Graham were fired. The employees' forebodings received additional impetus no doubt, from Nichols' unprecedented scrutiny of Graham's work on Monday. In any event, a more or less general work stoppage occurred immediately after the discharge and the employees congregated in groups discussing the discharge and the action they should take. Nichols came through the plant, according to the credited testimony of Mary Delane Dunn, and stated that she had fired Graham for "dissatisfactory work," and according to the credited testimony of Wilson, Nichols had announced to the group in which Wilson was standing that she had not fired Graham on account of the Union but had fired her for bad work, and ordered the girls to get back to work. There was general dis- belief, if not amazement, that Graham had in'fact been fired'for the reason assigned and there was discussion by the employees to that effect and of the question whether they should walk out in protest or refuse to go back to work unless Graham were called back. When Nichols made her announcement to Wilson's group, Wilson, making herself the spokesman, stated flat disbelief. Nichols then again ordered the group back to work, telling them they would either have to get to work or leave the plant or else she would have them put out. When Wilson questioned Nichols' power to put the employees out of the plant, Nichols stated that she would show them and went toward the office. The group thereupon dispersed, most of the girls going to their machines and Wilson, after a short interval, to the rest room. A few minutes later Nichols followed Wilson to the rest room and again told her that if she weren't going to work 17 This incident is treated more fully under the recital of Ruth Wilson 's discharge, infra. L & H SHIRT COMPANY, INC. 267 she -would have to get out of the plant. Upon Wilson's refusal to do either, Nichols forthwith discharged her. The entire time which elapsed between the discharges did not exceed 45 minutes. Wilson was paid for 1 hours' work that day. 5. The first employee meeting ; the wage cut abandoned The concerted activities that resulted in and which followed the Graham dis- charge did not end with the Wilson discharge. Although the real "rabble" as one witness expressed it lasted only a few minutes and though most of the em- ployees went back to their machines even prior to the Wilson discharge, many ,did ,not resume work immediately, and even after they did, there was much more conversation than usual. As expressed by Anne Elizabeth Mullis (fre- quently referred to in the testimony as Beth Holland), testifying for Respond- ent, "things were in an uproar" because "everyone was discussing whether they wanted a union or whether they didn't." In a small plant like the present one it is a reasonable inference and the under- signed finds that these activities came to the notice of the plant manager. Matter of Quest-Shon Mark Brassiere Co., Inc., 80 N. L. R. B. 1149; N. L. R. B. v. Abbott Worsted Mills, Inc., 127 F. (2d) 438, 440 (C. A. 1). That inference is supported by the fact that Schwebel actually took note of the situation and called a meet- ing of the employees shortly before the noon recess, at which he urged the employees to quiet down and to go back to work. The evidence does not establish definitely whether the meeting was called the same day as the discharges or on the following day. The evidence is also somewhat conflicting as to the occurrences at-the meeting.. Respondent's witnesses generally did: not recall the meeting or failed to recall what occurred at it and the testimony of the General Counsel's witnesses was in some respects contradictory as to the occurrences. The following findings are based mainly on a synthesis of the testimony of Sadie F. Hodge, Martha Hall, Lois Yearty, and Ruby Williams, witnesses for the General Counsel, who gave the clearest account of the meeting. Schwebel wanted to know what all the hold-up and disturbance was about, why the girls didn't come and talk to him, and stated that if they were in "trouble" and wanted to talk with him, he was ready and willing to talk with them at any time.18 Nichols, referring to the reduction in the minimum guarantee to 40 cents an hour, replied that she didn't think the girls were satisfied with the wages they were getting. After some discussion, Schwebel promised that the wage cut from 50 cents to 40 cents would not go into effect until further notice ; and he concluded by urging the employees to quiet down and to get back to work. Though some of the General Counsel's witnesses were under-the impression that at that= meeting Schwebel also suggested that groups of employees engaged in each manufacturing operation appoint a representative to confer with him on wage rates, the preponderance of the evidence is that such suggestion was made at the subsequent 5 p. m. meeting and the undersigned so finds. See infra, p. 269, et seq. 6. The employee petitions Sehwebel's suggestion that he stood ready and willing to discuss with the employees their "trouble" bore immediate fruit. Charline Hair Curtis, employed in the parts department under Lola Mae Roland, prepared in the plant a petition (often referred to in the testimony as a circular) on white notebook paper. Its 1l It was this suggestion that doubtless inspired the preparation and circulation of the petition later referred to, the chief purpose of which, according to its sponsor , was to effect a meeting between Schwebel and the employees , for the discussion of their "problems " 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contents can best be reconstructed 10 from a reconciliation of Curtis' testimony with that of Mary Delane Dunn, Ruby Williams, and Sadie F Hodge, the three latter of whom had the clearest recollection of the contents of the petition and whose testimony is credited. It referred to the danger that the plant might close down and move away, to the resultant suffering among the employees, particularly the widows and their children who would have to go hungry; it suggested that the employees should forget about the Union and should talk to Mr. Schwebel and see if they couldn't do business with him instead of having the Union; and it con- cluded with the suggestion that all who were willing to forget the Union should sign, and the employees would then go ahead with their Christmas party as they had planned. In addition Curtis prepared a shorter petition on legal-size yellow lined paper on which to procure signatures. That petition read : All who are interested in meeting him half way please sign your name and we will meet Mr. Schwebel this p. in after work Curtis thereupon enlisted the aid of Anne Elizabeth Mullis (Beth Holland) in circulating the petition throughout the plant. This was accomplished by 'dividing up the yellow sheets and copying the short petition above quoted at the top of the first page circulated by Mullis. The yellow sheets as circulated by Curtis were accompanied by the petition on white paper which was either annexed or affixed to the top yellow sheet, though there is some indication that at times the white petition was folded back and was not seen by some of the Curtis Sig- natories. However, Mullis circulated only a copy of the yellow petition and she testified that she did not remember the white sheet. Strangely, however, the Mullis section of the petition contained an introductory line, in a different hand- writing from Curtis' reading, "For those who are against the Union," and Mullis, called as Respondent's witness, testified on cross-examination that the line was on the sheet when she circulated it, but she was unable to state who wrote the line or to identify the handwriting. Both girls were engaged in circulating the petitions the entire afternoon of Thursday, December 11, and Curtis spent an additional 2 hours on Friday morn- ing completing the circulation. Although they had their regular work to do, they performed no work during the time but that fact was not called into com- ment by their supervisors and they were paid for the time as hours worked. The circulation occurred openly and in full view of persons in the plant. Curtis' testimony is conflicting as to whether she obtained permission to circulate the petitions. At first denying that she had seen anyone to get permission to circulate the paper, she then testified she had, during Thursday morning, talked about it to Floorlady Roland, who had read the white paper, and that Mrs. Roland knew she was circulating it. Permission is certainly to be implied under these circumstances. Furthermore, Sadie F. Hodge, also a witness for the General Counsel, testified that Curtis, in presenting the petition to her, told her that • she had obtained Mrs. Nichols' permission to circulate it. Hodge also testified that subsequently she saw Curtis talking with Nichols and that Curtis had the petition in her hand at the time. In view of the finding elsewhere made that both Nichols and Curtis were "supervisors" within the meaning of the Act, it is immaterial which of them approved the circulation of the petitions. As a matter of fact though both of them testified as witnesses for the Respondent, 19 The petition on white notebook paper was not produced at the hearing and its pres- ence remains unaccounted for. It bore no signatures Other petitions on legal-size yellow lined paper, prepared by Curtis for the reception of signatures , were produced by Respond- ent on the General Counsel 's motion at the hearing and were introduced in evidence. L & H SHIRT COMPANY, INC. 269 neither made any reference to the petitions or attempted to deny the above testimony that each had authorized the circulation. In view of that fact and of the circumstances attending the circulation, the undersigned finds that the petition was circulated with the full knowledge, acquiescence, and approval of both Nichols and Roland. In fact, the petition was circulated so openly and its purpose so well known that news thereof had penetrated to Respondent's office. Thus, Mary M. Gullatt, Respondent's bookkeeper-stenographer, testified that she had heard the employees were circulating a petition to ask Schwebel to meet with them that afternoon, the purpose being to discuss with him the various problems the girls were discussing among themselves, including the Union Indeed knowledge of such desire obviously reached Schwebel himself who acted thereon by calling an employee meeting between 4: 30 and 5 p in that afternoon and who opened it by commenting on the fact that the employees had themselves requested the meeting. However, the petition itself was not presented at the meeting, having already served its purpose in effecting the meeting. The findings in this section of the report are based on a reconciliation and a synthesis of the testimony of the witnesses both for the General Counsel and for the Respondent. Where there are conflicts between the testimony of Curtis for the General Counsel and Mullis, for the Respondent, the conflicts have been resolved in favor of Mullis' testimony. Similarly, where conflicts exist between Curtis and tpe other witnesses for the General Counsel, they have been resolved against Curtis whose testimony was far from candid if not implausible on a number of points, including particularly the purpose of the petition, her alleged failure to obtain permission to circulate it, her reasons for continuing to circu- late it on Friday morning, and the disposition she made of it. Indeed, Curtis' disposition of the petition was shrouded in a mild mystery. According to Curtis, after she procured the return of Mullis' section and completed her own circula- tion on Friday morning (December 12) all sections of the petition disappeared from her machine "into thin air." Although she asked she found no one who knew what had become of them but she did learn from Nichols 3 weeks before the hearing that the petitions were in the office. But Mullis denied that she returned her section of the petition to Curtis, stating that as well as she remem- bered she had laid it either on Mrs. Nichols' table or on Flora Hinson's table. On motion to produce made during the hearing, Respondent produced petitions, in three different sections, on yellow paper but its Counsel disclaimed knowledge of any petition on white ,paper. 7. The 5 p. m. meeting In apparent conformance to the request of the petition Schwebel called a meet- ing shortly before 5 p. m. on Thursday afternoon (December 11). Although some of the General Counsel's witnesses testified to express anti-union and other coer- cive statements made by Schwebel on the occasion," the undersigned finds that the preponderance of the evidence on the record as a whole is that such state- ments were not made by Schwebel but that statements of similar content were made by other speakers as hereinafter referred to. Similarly, it is found that the suggestion that certain business men from the town be called in to express their views on the Union emanated from certain of the employees, that Schwebel 20 That he wouldn't have a union in the plant ; that the plant would be shut down rather than permit it to go under the Union , that Mr Greenberg (identified in the record as the owner of the Company) had plenty of money and would shut the plant down before he would permit a union ; that Greenberg knew of another place to move the plant to and would move it before he would let the Union come in. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD acted in pursuance of their wishes in calling in the speakers, and that the evidence fails to establish that Schwebel attempted to direct, control, or influence the state- ments which they made. The occurrences prior to the calling in of the business men are most clearly summarized by Respondent's witness, Gullatt,21 whose testimony is amply corroborated and is credited. The following findings are based on it and on supplementary testimony of corroborating witnesses. The meeting was an informal 'one, open' to free' expression- by the, employees. Schwebel'. presided, commented that the meeting had been called at the request of the employees themselves and inquired what it was the employees wished to take up with him., One of the first suggestions was that Schwebel discuss the Union, but he refused to do so. Schwebel was then informed, among other things, that the employees wanted higher wages and someone suggested 2 weeks vacation with pay, and someone suggested paid holidays.22 After some discussion Schwebel commented that nothing was being accomplished and suggested that the employees engaged in each of the different operations select a representative to confer with him in their demands. He added that he would do all he could for them with Mr. Greenberg with whom he would take the matter up; and that "he was sure we would get our raise." Thereafter one of the employees referred to a rumor that some of the business men in town were in favor of the Union-and -when -others ,expressed, a, desire,to hear,.the men in question state their views, Schwebel directed that the men be called in. After a few minutes wait the following business men appeared, were presented by Schwebel, and spoke : Mr. Jim Cook, banker ; Mr. Phillip Tayler, business man; Mr Luther Horn, business man ; and a Mr. Whitehead, a salesman from out of town who happened to be calling on Mr. Tayler when the telephone call come from Respondent's plant 23 Although the speeches lasted from 5 to 19 minutes each, according to estimates, witnesses both for the General Counsel and for the Respondent were each able to -recall only a few phrases. In fact, the testi- mony of the witnesses for the Respondent was directed mainly to the point that the outsiders had been called into the meeting at the request of the employees themselves and they made either slight reference or no reference to the specific content of the speeches. Typical of the testimony of Respondent's witnesses was the statement by Evelyn Register : "They got up there and said whatever they were going to say" ; and by Opal Holland : "They didn't state whether they were for or against the Union. They were discussing that there was any problem they could help us with." On the other hand, witnesses for the General Counsel testified to the specific statements summarized below made by one, or, more of the,speakers from outside : a. Sadie F. Hodge: "Mr. Jim Cook -. . . was talking about what a nice man Mr. Greenberg was and he said he would not work under no union. He said he had moved his plant from another State . . . on account of the Union. He said the Union tried to take over out there and he moved, and he said he would not work here in Cochran under no union." . . . 1\Ir. 21 Gullatt did not hear the talks made by the business men. r It is of great significance that these are the three chief benefits which the union leaflet inferred could be realized from self-organization. Of further significance in this connect tion was Gullett's testimony that the "Union situation" was one of the matters which it was the purpose of the petition to have discussed at the meeting, and Garrett's testimony that the leaflets or the union activities caused by the leaflets in some way led to or brought on Schwebel's talk at the meeting. 23 An attempt was also made to reach Mayor James Dykes, but he was not located. L & H SHIRT COMPANY, INC. 271 Cook, he kept going on and said he had known Mr Greenberg ever since he had come to Cochran . . . that he knowed lie was as good as his word . . . he said he knew he wouldn't have no union in that factory. He would close it down or move it away . . . and he told us that we had better let the Union alone and not have anything to do with it and that he knowed what he was talking about, that Mr. Greenberg would not operate with no union.'' "All, the rest-of the speakers [except Whitehead] said that in their testimony, they said that Mr. Greenberg would not work under no union." b. Ruby Williams: "Phillip Tayler said that he had been to Mr. Greenberg's home and knowed he had plenty of money, and he could close his doors and would never open again if the Union got in there and he could live without ever opening the doors again." c. Anne Lou McCarthy: 24 "He said that Greenberg could move the plant and says he could and would before he would let the Union come in . . . said that he knew a place that they could move it and they would have it moved . . . He said if we kept on about the Union and all he said [Greenberg] would have it moved." d. Faustine Garrett: "They said that we should all get together and talk with Mr. Schwebel about our troubles if our wages weren't high enough . . . to suit us talk with him about it and tbiey thought that it could be arranged in a way ^, to suit. us. and i we -wouldn't. have,,to . join ; a union,. . . to get, better » pay. Garrett attributed the above statement to Phillip Tayler and to one of the other -speakers at the meeting. e. Martha Hall: Both Luther Horn and Jim Cook said that "if we got a union -wouldn't any of us have a job." The only evidence offered by Respondent which approached a denial of the foregoing was the testimony of Myrtle Carroll that she did not hear any of the -men make a reference to closing the plant. Significantly, none of the Respond- ent's supervisors attempted to deny that the speakers from outside the plant made the statements attributed to them by the General Counsel's witnesses. The meeting adjourned between 5: 35 and 5: 40 p. in. and the employees went home. They were not paid for the time after 5 p. in. Thereafter pursuant to Schwebel's suggestion at the meeting, various groups of employees did select representatives who did confer with Schwebel on wage rates. As a result of those conferences increases were shortly put into effect in the piecework rates averaging 10 percent. The minimum hourly guarantee re- mained at 50 cents. There was also testimony by at least two of the General Counsel's witnesses that, during the general period of the concerted activities in the plant, the representatives selected by various groups of employees also conferred with Mayor James Dykes in his office and at his request and that one of such conferences was on the same night as a union meeting. However, there is no evidence which connects the Respondent with Dykes' actions, which so as the record shows were a voluntary effort on his part to assist in effecting a settlement of Respondent's labor difficulties. There is no evidence that there was, subsequent to the enactment of the new wage scale, any further union activities among Respondent's employees nor evi- dence of further acts of interference, restraint, or coercion. 24 McCarthy was inclined to attribute this statement to Schwebel, but was uncertain whether it was made by Schwebel or one of the business men who spoke at the meeting. For reasons stated, supra, p. 263, it is found that the statement was not made by Schwebel, but by one of the other speakers 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Concluding findings 1. Interference, restraint and coercion The evidence summarized under subdivision A hereof establishes that imme- diately upon becoming aware of its employees' concerted activities, Respondent through its general manager and plant manager, Schwcbel, and its chief forelady, Nichols, inaugurated a deliberate and studied program of interference, restraint and coercion designed to forestall the Union and to defeat the organizational ef- forts of its employees and that it continued its campaign until successful in pro- curing the ultimate cessation of the concerned activities. The earliest and most obvious manifestation of Respondent's reaction to and policy toward its em- ployees' concerted activities was exhibited in the series of coercive, intimidatory and threatening statements and acts by Nichols which began immediately after the inception of those activities. Evidence of her acts and statements are sum- marized in subdivision A, 3 and 4 hereof Those statements included inquiries and other attempts to ascertain which of the employees had mailed in the union slips, which had joined the Union or were "for" the Union; statements that if employees were for the Union, she didn't want them, and that she didn't care if an employee's ride arrangements were terminated because the employee was "tangled up with the Union" ; intimidatory statements and threats directed toward discouraging further mailing of the union slips and to discharge or other- wise punish employees who had mailed them, or who had given a union meet- ing, or who had anything to do with a union meeting; statements claiming knowledge of past and future organizational activities ; 25 statements that the Union would not be permitted in the plant and that the plant would close down if the Union came in; statements that Greenberg would close down and would not operate under a Union and would instead move the plant to some other state. The undersigned concludes that by these acts and statements Respondent engaged in interference, restraint, and coercion of its employees' rights to self-organiza- tion as guaranteed by Section 7 of the Act. . Of similar consonance were Schwebel's questioning of Graham as to her action, in mailing the union slips, his inquiry of her knowledge of the Union, and his. ominous warning that she was "just before getting a bad experience." The under- signed finds that these statements also were coercive and intimidatory and that they interfered with the rights guaranteed by iSection 7 of the Act. But the foregoing constituted only the more obvious indicia of Respondent's coercive campaign in furtherance of its policy to forestall the Union and to thwart the employees from organizing and from bargaining collectively. Other steps in the campaign followed with apparent ordered precision. Thus, Schwebel's prediction of Graham's fate was shortly brought to pass by her discriminatory discharge (as found infra, page 275). Thereupon, with the leader gone and the work stoppage quelled, Respondent set about the more delicate maneuver of weaning the employees away from the Union and from selecting a representative of their own choosing to bargain with it on the various grievances which had reached a climax. This is attempted (and accomplished) by convincing its em- ployees that they could deal with it directly and that their demands for higher wages and other bargainable matters could be satisfactorily negotiated without 25 While the complaint does not allege that Respondent engaged in surveillance and while Nichols' remarks to Crosby do not establish that Respondent engaged in surveillance, her remarks were intended and were understood to foster that impression and hence were as intimidatory in character as surveillance itself. Matter of Harold W. Baker Company, 71 N. L. It. B. 44, 53 ; Matter of S W. Evans & Son, 81 N. L. It. B. 161. L & H SHIRT COMPANY, INC. 273 the interposition of a union or other representative of their own choosing and by interposing a bargaining process of its own choice. The progressive steps in this maneuver, are clearly revealed by the evidence. First there was the calling of the noon meeting, Schwebel's recognition there of the "hold-up" and the "trouble." his statement that he was ready to talk with the employees about the "trouble," his inquiry why they didn't come in to talk with him, and his immediate cancella- tion of the previously announced wage reduction. His invitation to the employees to talk or meet with him was obviously the inspiration of the petitions which were prepared by Curtis and circulated by her and Mullis. Significantly, those petitions were not confined to a mere suggestion that the employees meet with Schwebel, but they contained statements of a strong anti-union character which were plainly intended to call for a choice between renouncing the Union and meet- ing directly with Schwebel. They were circulated with the permission, knowl- edge, and full acquiescence of Roland and Nichols, neither of whom attempted to deny testimony that each of them had authorized its circulation. Full knowl- ^edge of the circulation and of the purpose had also penetrated, prior to the calling of the meeting within the relatively cloistered confines of Respondent's office to its bookkeeper, Gullatt. Under these circumstances, the inference is clearly justi- fied that knowledge of the circulation of the petitions and of the success thereof bad also reached Schwebel Matter of Quest-Slaon Mark Brassiere Co., Inc., supra; N. L. R. B v. Abbott Worsted Mills hie., supra, particularly in view of his timely action in calling the meeting which the petitions solicited. In any event the Respondent utilized the meeting to continue its campaign to forestall the Union and to deal directly with its employees. It has been pointed out that the union leaflet had intimated that certain specific and concrete benefits might be realized from the formation of the Union, and that the question of the Union and the three chief benefits 'referred to in its leaflet were the subjects brought into discussion at the meeting. After ascertaining that the employees were interested in higher wages, vacations with pay, and paid holidays, Schwebel assured them that he would take up their demands with Greenberg, that he would do all he could for them with Greenberg, and that "he was sure we would get our raise." But pur- porting to find the open and general discussion an unsatisfactory method of negotiating with the employees, Schwebel suggested that the girls engaged in each separate manufacturing operation select a representative to confer with him. Schwebel's suggestion was accepted and negotiations were subsequently had which resulted in a general increase in piecework rates of approximately 10 percent. The Union "situation" was also discussed. The preponderance of the evidence is that Schwebel himself refused to express an opinion about the Union when requested to do so and that he was acting on the suggestion of some of the employees themselves when he called the town businessmen into the meeting. Under those circumstances, Respondent ordinarily would not have been responsi- ble for the content of their talks, at least in the absence, as in the present record, of evidence that it inspiled their statements. However, the speakers did not confine themselves to expressing their own views in regard to the Union nor to suggesting to the employees that they should deal directly with Schwebel and not through a union ; but one or more of them represented that they were aware of Greenberg's views and attitude toward the Union and proceeded to state them. Those views were entirely in accord with similar statements expressed by Nichols 2e The complaint does not charge that the circulation of the petitions constituted an unfair labor practice, and no finding is made to that effect. The petitions are highly sig. nificant, however, as the links between the two employee meetings and as background to the second meeting and the occurrences thereat. 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as herein found, that is, that Greenberg would not operate under a union and would close the plant clown and move it•to another State or location. Schwebel stood mutely by, making no attempt to deny that the speakers correctly expressed Greenberg's views or that. such views did in fact represent Respondent's atti- tude and policy toward the Union. Under these circumstances, in the absence of a disavowal, Respondent's employees had every reason to believe that in pro- fessing to state Greenberg's views and attitude toward the Union, the business- men spoke with the authorization of the management, or at least that their state- ments were an authentic expression of Respondent's attitude Schwebel, over- looking or ignoring Respondent's duty to deny that those statements correctly represented Respondent's policy and attitude, did nothing to disavow them and permitted Respondent to receive the benefit of the clearly coercive effect thereof. It is elementary, of course, that an affirmance of an unauthorized act may be in- ferred from a failure to repudiate it. Restatement, Agency, Section 94; and see Matter of International Longshoremens and Warehousemen Union, CIO, Local 6, et at., and Sunset Line and Twine Company, 79 N. L. R. B. 1487. The manifesta- tion of the principal may consist of his failure to object to the unauthorized conduct, particularly where under all the circumstances a reasonable person in the position of the principal, knowing of the unauthorized acts and not consent- ing to them, would do something to indicate his dissent Restatement, Agency, Section 26 (d) ; and see Sunset Line and Twine Company, case, supra. The undersigned therefore concludes that by its failure to disavow, Respondent adopted and approved the coercive statements made at the employee meeting by Jim Cook, Phillip Tayler, and Luther Horn, and made itself a party thereto in violation of Section 8 (a) (1) ,of the Act. Matter of Fort Worth Transit Co., 80 N. L. R. B. 1422; of A' L. P. B. v. Fred P. Weissman Co , 170 F. 2d 952 (C. A. 6) decided November 29, 1948, enforcing Matter of Fred P. Weissman Co., 69 N. L. R. B. 1002 The undersigned also finds that in view of Respondent's knowledge of current efforts to organize a union and of the other concerted activities among its em- ployees referred to herein, its announcement at the noon meeting of the with- drawal of the previous wage cut and its assurance at the 5 p m. meeting that further increases would be forthcoming (the latter promise being shortly re- deemed), were motivated by a desire to forestall the organization of a union and to prevent the free selection by the employees of representatives of their own choosing, and that by its said announcements and promises Respondent offered its employees raises in pay in order to discourage union activities, in violation of Section 8 (a) (1) of the Act At one point during the hearing Respondent's Counsel cited the proviso in Section 9 (a)27 as justification for Respondent's action in negotiating and in ad- justing the employee grievances. That clause is obviously of application only as a proviso to the main body of the Section which provides for the exclusive representation in an appropriate unit by representatives selected by a majority of the employees ; it is obviously without application to the facts in the present case. Respondent has abandoned its foregoing position in its brief but asserts instead that the negotiations at the meeting constituted collective bargaining, as well as the subsequent negotiations which were conducted through repre- sentatives selected in the manner suggested by Schwebel. If this be collective 21 "Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative , as long as the adjustment is not inconsistent with the terms of a collective -bargaining contract or agreement then in effect." L & H SHIRT COMPANY, INC. 275 bargaining, it is obviously not of the type guaranteed in the Act since it was engaged in only after the Respondent had successfully thwarted its employees attempts at self-organization, had prevented their free choice and selection of their representatives, and had interposed instead a bargaining arrangement of its own choice. Furthermore, its present contention that the employees were engaging in collective bargaining with it precludes its reliance (intimated dur- ing the hearing) on the provision in Section 7 which extends to employees the right to refrain from concerted activities. Aside from this it is clear that the provision in question has no application to the present situation which contains no suggestion of coercive acts of the Union against employees who did not wish to join. See Conference Report, House Report 510, 80th Congress, pp. 38-40. ". . . The reason for its inclusion was that similar language had appeared in the House bill and since Section 8 (b) (1) of the Senate bill, which was retained by the conferees, made it an unfair labor practice for labor organizations to re- strain or coerce employees in the rights guaranteed them in Section 7, the House conferees insisted that there be'express language iii Section 7 which would make the prohibition contained in Section 8 (b) (1) apply to coercive acts of unions against employees who did not wish to join or did not care to participate in a strike or a picket line." Cong. Rec., Senate, p. 7001. 2. Discrimination a. The discriminatory discharge of Ruby Graham Respondent assigned two reasons for its discharge of Graham, faulty work and disobedience to orders. No extended comment on the first assigned reason is necessary ; the undersigned finds that the preponderance of the evidence (sum- marized in subdivision A, 4 hereof) establishes that faulty work did not con- stitute any part of Respondent's real reason for discharging Graham. An anal- ysis of the evidence discloses that the same is true of the other reason which Respondent assigned. First, as has been previously found, Roland who was Graham's immediate supervisor, conveyed no express request that Graham should report to Nichols at 5 p. in, but informed her only that Mrs. Nichols pro- posed to request her to stay. Graham thereupon indicated that she didn't wish to remain and Roland expressed apparent concurrence in her proposed conduct. Whether or not Roland subsequently reported correctly to Nichols, the Re- spondent, through its supervisor Roland, was fully apprised of Graham's in- tention not to remain, certainly in the absence of an express direction from Nichols. As none was given there was no order to be disobeyed. Nichols' attempt to relate the discharge to a disobedience of orders fails in view of the lack of any showing that there was any basis therefor, in view of Nichols' conflicting and unconvincing explanation as to how she arrived at the decision to discharge, and finally, in view of her announcements, in endeavoring to quell the uprising and prevent the concerted walk-out, that she had fired Graham for bad work and not on account of the Union. The undersigned finds that the as- signed reason "disobedience to orders" formed no part of the real cause of Respondent's discharge of Graham ; that it, like faulty work, was a trumped up excuse to remove the leader among the employees in the Union and the other concerted activities, which action Respondent's supervisory officials had both threatened and predicted ; and that it was a step in Respondent's de- liberate campaign to prevent its employees from organizing and from engaging in other concerted activities. These findings are unaffected by the correspondence between Graham and Nichols in March 1948, in which Graham applied for reinstatement. Graham's 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD letters are considered herein of significance only as establishing the fact of her application for reinstatement. Her letters consist almost entirely of self serving declarations as contended by Respondent's Counsel; they consist mainly of apologies for having become involved with the Union and of rather naive disa- vowals of the Union. Nichols' reply is similarly a self serving declaration in which she endeavored to translate Graham's first letter into an apology' for poor work and for a "disrespectful attitude." I therefore conclude that Respondent discharged Graham because of her activities in behalf of the Union and because she engaged in the other concerted activities herein found, thereby discriminating in regard to her hire and tenure of employment in order to discourage member- ship in the Union, and that in so doing Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. b. The alleged discriminatory discharge of Ruth Wilson The evidence summarized under subdivision A, 5, hereof, reveals that when, during the work stoppages that followed Graham's discharge, Nichols addressed the group of girls for which Wilson became the spokesman, she offered them the alternative either of going back to work or leaving the premises. Later in the rest room Nichols offered Wilson the similar option. The extension of this option was within Respondent's legal privileges ; it was not required to permit Wilson or any of the other employees who had engaged in the work stoppage to remain on the job and at the same time to refuse to do its lawful bidding. Matter of Pz.naud, Inc., 51 N. L. R. B. 235; cf. Matter of Gardner-Denver Co., 58 N. L. R. B. 81, 82, 83; Norfolk Shipbuilding and Drydock Corp., 70 N. L. R. B. 391, 393. Significantly, the alternatives were not to return to work or be discharged, but to return to work or leave the premises. Matter of Electric Auto-Lite Co., 80 N. L. R. B. 1601. When Wilson persisted in her refusal to do either, Respondent was within its rights in discharging her. IV. THE EFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set out in Section III, above, occurring in connection with the operations described in Section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to be unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent, L & H Shirt Company, Inc., has engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act (61 Stat. 136), the undersigned will recommend that it cease and desist rherefrom and take certain affirmative action in order to effectuate the policies of the Act. It has been found that Respondent discriminatorily discharged Ruby Graham. It will be recommended that Respondent offer her immediate and full reinstate- ment to her former or substantially equivalent position,28 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 such discrimination by payment to her of a sum of money equal to that which she normally would have earned as wages as 28 See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 N. L. R B 827. L & H SHIRT COMPANY, INC.. 277 an employee from the day of the discharge to the date of the Respondent's offer of reinstatement, less her net earnings during such period.`B , It has also been found that the Respondent has engaged, in certain-acts of interference, restraint, and coercion. It will be recommended that the Respondent cease therefrom. The wide variety and the extensive nature of the.unfair labor practices found to have been committed by the Respondent manifest, in the opinion of the Trial Examiner, a determination generally to thwart and to defeat the self-organization of its employees, and the Trial Examiner is of the opinion and finds that there is danger of the commission of other and additional unfair labor practices. Therefore, in order to effectuate the guarantees of Section 7 of the Act, it will be recommended that the Respondent be ordered to cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization.80 Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. The operations of the Respondent, L & H Shirt Company, Inc., a Georgia corporation, at its mill at Cochran, Georgia, constitute commerce within the meaning of Section 2 ( 6) and (7) of the Act. 2. Amalgamated Clothing Workers of America, C. I. 0., is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminatorily discharging Ruby Graham, Respondent discriminated in regard to her hire and tenure of employment, thereby discouraging membership in Amalgamated Clothing Workers of America, C. I. 0., and has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)' (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of' law, the undersigned hereby recommends that the Respondent, L & H Shirt Company, Inc., its officers, agents, successors, and assigns shall ; 1. Cease and desist from : (a) Discouraging membership in Amalgamated Clothing Workers of America, C. I. 0., or any other labor organization, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Amalgamated Clothing Workers of America, C. I. 0., 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 bar- gaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 21 See Matter of Crossett Lumber Co., 8 N. L. R. B. 440, 497-498. 00 See May Department Stores V. N. L. R. B., 326 U. S. 376. 853396-50-vol. 84-19 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer to Ruby Grahain immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or othei rights and privileges ; (b) Make whole the said Ruby Graham for any loss of earnings that she may have suffered by reason of the Respondent's discrimination against her by payment to her of a sum of money equal to the amount which she normally would have earned as wages during the period from the date of her discharge to the date of offer of reinstatement, less her net earnings during said period ; 31 (c) Post at its mill at Cochran, Georgia, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Tenth Region, after being duly signed by the Respondent's rep- resentatives, shall be posted by the Respondent immediately upon the receipt thereof and maintained by it for sixty (60) consecutive days thereafter in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Tenth Region in writing within twenty (20) days from the date of the receipt of this Intermediate Report what steps the Respondent has taken to comply therewith. It is further recommended that, unless on or before twenty (20) days from the receipt of this Intermediate Report the Respondent notifies said Regional Direc- tor in writing that it will comply with the foregoing recommendations, the Na- tional Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. It is also recommended that the complaint, insofar as it alleges that the Re- spondent discriminatorily discharged and failed to reinstate Ruth Wilson in vio- lation of Section 8 (a) (1) and (3) of the Act, be dismissed. 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) days 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, Rochanibeau 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 exceptions 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 fur- ther provided in said Section 203.46 should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. 81 See footnote 29, supra. L & H SHIRT COMPANY, INC. 279 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 11th day of February 1949. GEORGE A. DowNING, Ti ial Examiner. APPENDIX A NOTICE To ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Re- lations Act, we hereby notify our employees that: WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees 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 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 OFrER to the employee named below immediate and full rein- statement to her former or substantially equivalent position without preju- dice to any seniority or other rights and privileges enjoyed, and make her whole for any loss of pay suffered as a result of the discrimination: Ruby Graham All our employees are free to become or remain members of the above- named Union or any other labor organization. We will not discriminate in, regard to hire or tenure of employment or any term or condition of employ- ment against any employee because of membership in or activity on behalf of any such labor organization. L & II SHIRT COMPANY, INC., Employer. Dated-------------------------------- By--------------------------------- (Representative ) ( Title) 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.