Goodall Co.

In the Matter of GOODALL COMPANY and UNITED GARMENT WORKERS OF AMERICA, AFL Case No. 10-CA-597.-Decided October 26, 194.9 DECISION AND ORDER On July 27, 1949, Trial Examiner Herman Marx issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (1) of the Act, and recom- mending 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 violated the Act by granting a wage increase to its employees, and recommended the dismissal of such allegation of the complaint. Thereafter, the Respondent filed exceptions to the Intermediate Re- port, with a supporting brief No exceptions were filed by the General Counsel. The Board 2 has reviewed the rulings of the Trial Examiner at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and the brief, and the entire record in the case. The Board hereby adopts the findings,3 conclusions, and recommendations of the Trial I The Respondent's request for oral argument is denied , because, in our opinion , the rec- ord, the Intermediate Report, the exceptions , and the brief adequately present the issues and the position of the parties. 2 Pursuant to the provisions of Section 3 (b) of the Act , as amended , the Board has delegated its powers in connection with this case to a three-member panel [ Chairman Herzog and Members Houston and Gray.] 3 There are several passages in the Intermediate Report in which the Trial Examiner explores the motivation and intent behind certain of the Respondent 's acts and state- ments , some of which he found to be violative, and others to be nonviolative , of Section 8 (a) (1) of the Act. We agree with the Trial Examiner 's ultimate finding with respect to these acts and statements . We note in passing, however, that the test for interference, restraint , and coercion under the Act involves a determination as to whether an employer's conduct and statements may reasonably be held to have tended to interfere with the free exercise of employee rights under the Act; and that the inquiry does not turn upon tie Employer's motive or intent. See Matter of Louisville Title Agency, 85 N. L. R. B. 1344, and cases cited therein. 86 N. L. R. B., No. 127. 814 GOODALL COMPANY 815 Examiner. In so doing, the Board does not rely upon any unfair labor practice occurring prior to July 24, 1949, a date 6 months before a copy of the charge was served upon the Respondent. ORDER Upon the entire record in the case, and pursuant to Section 10 etc) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Goodall Com- pany, Talladega, Alabama, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Engaging in surveillance of the self-organizational activities of its employees on behalf of United Garment Workers of America, AFL, or any other labor organization; (b) Interrogating its employees concerning their membership in, and activities on behalf of, United Garment Workers of America, AFL, or any other labor organization; (c) Threatening its employees with wage reductions and loss of insurance benefits because of their support of United Garment Workers of America, AFL, or any other labor organization; and (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist United Garment Workers of America, AFL, or any other labor organization, to bargain col- lectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its plant in Talladega, Alabama, copies of the notice attached hereto marked "Appendix A." 4 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 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. In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted in the notice before the words : "A DECISION AND ORDER," the words : "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material; and (b) 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. IT Is FURTHER ORDERED that the complaint , insofar as it alleges that the Respondent violated Section 8 (a) (1) of the Act by granting a wage increase to its employees, and that the Respondent violated Section 8 (a) (5) of the. Act by refusing to bargain With the Union, be, and it hereby is, dismissed. APPENDIX "A" NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT engage in surveillance of the self-organizational activities of our employees on behalf of UNITED GARMENT WORK- ERS or AMERICA, AFL, or any other labor organization. WE WILL NOT interrogate our employees concerning their mem- bership in, and activities on behalf of UNITED GARMENT WORKERS OF AMERICA, AFL, or any other labor organization. WE WILL NOT threaten our employees with wage reductions and loss of insurance benefits because of their support of UNITED GAR- MENT WORKERS OF AMERICA, AFL, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-orga.niza- tion, to form labor organizations, to join or assist UNITED GAR- MENT WORKERS OF Al ERICA1 AFL, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. All our employees are free to become or remain members of the above-named union or any other labor organization. GOODALL COMPANY, Emaployer. Dated--------------------- By-------------------------------- (Representative) (Title) GOODALL COMPANY 817 This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER Morgan V. Martin, Esq., and Charles M. Paschal, Esq., for the General Counsel. Thomas G. McConnell, Esq., of Knoxville, Tenn., and Brewer Dixon, Esq., of 'Talladega, Ala., for the Respondent. STATEMENT OF THE CASE I On January 19, 1949, United Garment Workers of America, A. F. L.,' filed a charge' with the Regional Director for the Tenth Region of the National Labor Relations Board.' On March 28, 1949, the General Counsel' of the Board issued a complaint, alleging that the Respondent, Goodall Company, had engaged, and was engaging, in unfair labor practices affecting commerce, within the meaning of Sections 8 (a) (1), 8 (a) (5), 2 (6) and 2 (7) of the National Labor Relations Act (49 Stat. 449-457, as amended by 61 Stat. 136-163), herein referred to as the Act. Copies of the charge and complaint were duly served upon the Respondent. With respect to the alleged unlawful conduct, the complaint alleges that on or about July 8, 1948, a majority of the employees in an appropriate unit at the Respondent's plant in Talladega, Alabama, designated the Union as their collective bargaining representative; that on or about that date, "and at all times thereafter," although previously requested to do so, the Respondent re- fused, and still refuses, to bargain collectively with the Union, as the repre- sentative of the employees, in violation of Section 8 (a) (5) ; and that "from on or about July 21, 1948, and at all times thereafter," engaged in conduct con- stituting interference with, and restraint and coercion of, its employees in the exercise of rights guaranteed to them by Section 7, thus contravening Section 8 (a) (1)• The Respondent filed an answer in which it denies, in substance, the commission of any unfair labor practices' Pursuant to notice duly served upon the Respondent and the Union, a hearing was held at Talladega, Alabama, on May 10, 11, 12, 13, 17, 18, 19, 20, 24, and 35, 1949, before the undersigned, Herman Marx, duly designated as Trial Examiner by the Chief Trial Examiner.' ' United Garment `Yorkers, A. F. L., will be referred to herein as the Union. S Amended charges were filed on January 24 and March 16 , 1949. Among other aver- ments, the original charge contained an allegation that the Respondent had discriminatorily discharged certain employees . The amendments related to that allegation which was deleted from the amended charge filed on March 16 . As this proceeding does not involve any discriminatory discharges , the original and the amended charges are in all material respects substantially the same. The National Labor Relations Board will be referred to herein as the Board. References herein to the General Counsel includes the attorneys who appeared on his behalf at the hearing. 6 As will hereafter appear, the allegations of the complaint dealing with the alleged refusal to bargain were dismissed at the hearing upon motion of the General Counsel. Aside from the several denials that the Respondent committed any unfair labor practices, its answer deals primarily in voluminous terms with the alleged refusal to bargain. As that phase of the complaint has been dismissed , no useful purpose would be served here in summarizing the applicable averments of the answer. 0In connection with the issue of representation , Messrs. Algie M. Moseley, Jr., and Byron D . Boyett, members of the Talladega , Alabama, Bar, asserting that they represented 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the hearing, the Respondent moved to dismiss the complaint on the ground that it was not signed and issued by the General Counsel, but that its issuance was "the action of the Union and the Board acting independently of the General Counsel." The motion was denied. Before any testimony was taken, the Respondent moved orally and in writing to dismiss the complaint and to strike its several allegations of unfair labor practices on the ground that the charge and the complaint show "affirmatively" that the alleged unlawful conduct oc- •curred more than 6 months prior to the filing and service of the charge. The motion was denied.' The Respondent then moved for leave to file an amendment 'to its answer to the effect that the claimed unfair labor practices had occurred more than 6 months prior to the filing and service of the charge. The motion was granted and the amendment was filed. At the close of his evidence, the General Counsel moved, without objection from the Respondent, to dismiss the portions of the complaint pertaining to the Re- spondent's alleged refusal to bargain with the Union. The General Counsel's motion was grounded on the fact that he had failed to establish that the Union represented a majority of the employees in the unit.' The motion was granted. The General Counsel and the Respondent were represented at the hearing by counsel and participated therein. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, adduce evidence bearing on the issues, submit oral argument, and file briefs. The parties waived oral argument at 163 of the Respondent's employees filed with the Examiner a petition for intervention, and moved on behalf of the persons named therein for leave to intervene in the proceed- ing. The General Counsel objected to the application for intervention. The Respondent's counsel asserted that it had no objection to the granting of the motion. In response to an inquiry from the Examiner, Respondent's counsel informed him that its position would be that the Union did not represent a majority of employees in the unit. The attorneys who presented the petition, in response to an inquiry from the Examiner, stated to him that they did not contend that the Respondent would not "adequately or effectively" present its position on the issue of representation. After hearing argument on the petition, the motion for leave to intervene was denied. 7 The complaint alleges that the claimed violations of Section 8 (a) (5) occurred on or about July 8 and 21, 1948, "and at all times thereafter." Similarly, the violations of Section 8 (a) (1) are alleged to have occurred, "from on or about July 21, 1948, and at all times thereafter." The phrase "and at all times thereafter" negates the Respondent's contention that the affirmative allegations of the complaint require its dismissal because of the statutory bar contained in Section 10 (b). 8 On the first day of the hearing, the General Counsel served a subpena duces tecunm on the Respondent requiring it to produce pay-roll data bearing on the issue of representa- tion. The Respondent filed a petition to revoke. After hearing argument thereon, the Examiner denied the petition on the ground that the documentary data described in the subpena were relevant to issues raised by the pleadings and were described with sufficient particularity. Upon the Respondent's application and in accordance with Section 203.31 (b) of the Board's Rules and Regulations, the Examiner directed that the petition and his ruling thereon be made part of the record. After the Examiner ruled on the petition, the Respondent declined to produce the indicated records. To establish the Union's agency to represent the employees, the General Counsel introduced membership cards signed by employees and designating the Union as the signatories' representative. After the General Counsel had completed that phase of its proof (shortly before the close of the hearing), the Respondent announced that it would produce its pay-roll records in accordance with the terms of the subpena. The General Counsel and the Respondent's attorneys thereupon made a joint inspection of the records. The examination resulted in a stipulation establishing the number of employees in the unit on the date the Union requested the Respondent to bargain and the number (including signatories of cards) who had terminated their employment before that date. The stipulated facts established that those who had signed cards did not constitute a majority of the persons employed in the appropriate unit on the date the Union requested the Respondent to bargain. GOODALL COMPANY 819 the close of the hearing. The General Counsel has not filed a brief. The Respond- ent has filed a brief which has been read and considered. Upon the entire record and from his observation of the witnesses, the Trial Examiner makes the following : FINDINGS -OF FACT 1. THE BUSINESS OF THE RESPONDENT Goodall Company is a Maine corporation and is authorized to transact business in Alabama. Its principal office is located in Cincinnati, Ohio. The Company is engaged in the manufacture, sale, and distribution of men's and boys' wash and tropical suits. It operates plants in Talladega, Alabama ; Danville, Kentucky ; Somerset, Kentucky ; Knoxville, Tennessee ; Cincinnati, Ohio ; and Blackville, South Carolina. During the year ending December 31, 1948, the Respondent purchased for use at its plant in Talladega, Alabama, raw material valued in excess of $5,000, ap- proximately 90 percent of which was purchased outside of the State of Alabama and shipped in interstate commerce to the Talladega establishment. During the same period, the Respondent manufactured men's summer work pants and boys' cotton wash suits at its Talladega plant at a value in excess of $5,000 approxi- mately 90 percent of which was shipped in interstate commerce to points outside the State of Alabama. The Examiner finds that at all times material in this proceeding the Respondent was engaged in interstate commerce and that its operations affected interstate commerce within the meaning of the Act s II. THE LABOR ORGANIZATION INVOLVED United Garment Workers, A. F. L., is a labor organization affiliated with the American Federation of Labor and admits to membership persons employed by the Respondent at its plant in Talladega, Alabama. 9 The jurisdictional finding made above is based on a synthesis of averments contained' in the Respondent's answer ; stipulated admissions by the Respondent appearing in the record of a representation hearing held on September 2, 1948 (see Case No. 10-RC-303; the record in that case was introduced in evidence in the instant proceeding at the Respondent's request) ; and testimony by Samuel Shuchter, the Respondent's vice president in charge of production. While the evidence unquestionably sustains the finding of jurisdiction, the record itself is somewhat confused on the matter. The complaint alleges that during 1948, the Respondent received raw materials at its Talladega plant in excess of $1,000,000 and shipped finished products from the plant at a valuation in excess of that sum; and that approximately 90 percent of the materials received came from without the State. The applicable averment in the answer is not wholly responsive to the complaint. It admits receipts and shipments, respectively valued in excess of $5,000 (without mentioning any period ) and that approximately 90 percent of both receipts and shipments were made in interstate commerce. Actually, within the context of the record as a whole, it is manifest that both the receipts and shipments were greatly in excess of $5,000. The Respondent admitted at the representation hearing on September 2, 1948, that the Respondent's principal office is located in Cincinnati and that during the "past fiscal year" the Respondent received raw materials in excess of $100,000 at its Talladega, plant and shipped therefrom finished products valued in excess of that sum. It was-. further admitted by the Respondent at that hearing that approximately 90 percent of the. raw materials were received from points in other states and approximately 95 percent of the finished products were shipped out of the State. It may also be noted that the Talladega plant receives goods manufactured in some of the other plants, including- Knoxville, Tennessee, and is used as a shipping point for such goods (see Shuchter's.. testimony). .820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory statenment10 Samuel Shuchter is a vice president of Goodall Company and in that capacity directs "all of the operations" of the concern and is "in full charge of (its) labor policies." His office is located at the Respondent's principal office in Cincinnati, Ohio. He usually visits the plant every 2 weeks, "sometimes once in a month, and only occasionally once a week." The two main production units of the Talladega plant are the Coat and Pants Departments . For some unspecified period prior to July 14 , 1948, there does not .appear to have been a resident manager of the plant . During that period, the several departments were in charge of superintendents ( sometimes referred to as foremen in the record) who apparently were directly responsible to Shuchter. Joseph De Stefano was in charge of the Pants Department, and Joseph Paluzi of the Coat Department. These two departments are divided into sections which -operate under the direction of female supervisors (sometimes referred to in the record as foreladies). The supervisors are responsible to their respective super- intendents. The plant also employs a personnel manager, referred to in the rec- ord as Brother or Preacher Chappell. On July 14, 1948, Carl Steffensen who had, prior to that date , been superin- tendent of the Coat Department at the Respondent's Knoxville plant, was assigned by the Company to the duties of general manager of the Talladega establishment .and as superintendent of its Coat Department." Steffensen remained at the plant in his dual capacity until April or May of 1949 and then returned to Knox- ville to resume his former duties. During his tenure, Steffensen was assisted by John Sullivan who apparently had supervisory duties of an undefined nature. Sullivan succeded Steffensen as general manager and was engaged in that capacity at the time of the hearing. Organizational activity was begun by the Union among the Talladego employees in March 1948 when Mary L. Johnson, a representative of the Union met with a group of employees. She distributed membership cards among them and in- formed them of the procedure to be followed in soliciting and witnessing signa- tures. During the next few months, a number of the Respondent's employees were active in securing the signatures of others on the cards. By July 8, 1948, over 230 employees had become members of the Union. On July 8, 1948, the Union wrote to the Respondent, informing it that a majority of the employees at the Talladega plant "desire to be represented" by the Union, and requesting "a conference for the purpose of bargaining on a contract." The letter, which was registered, was received by the Respondent on July 13, 1948. On July 12, 1948, the Union filed with the Board a petition for certification. Upon due notice to the Respondent and the Union, a representation hearing was held on September 2, 1948, before a hearing officer of the Board. In November 22, 1948, the Board entered an order, prescribing the appropriate unit and directing an election to determine the question of representation.12 The election was at first set for December 15, 1948, but was postponed by the Regional Director to io The prefatory statement is based on uncontradieted evidence adduced at the hearing. However , it is not designed to set forth all the undisputed facts in the case, but is primarily intended as a preliminary basis for the discussion of the evidence . Reference will be made at other appropriate points to undisputed facts not set forth in this section. 11 The record does not disclose what disposition was made of Paluzi , the superintendent of the Coat Department, after Steffensen arrived at the plant. 12 See Case No. 10-RC-303. GOODALL COMPANY 821 January 19, 1949. Some few days before January 19, representatives of the Respondent and the Union agreed to meet on the evening of January 18 for the purpose of making arrangements (such as the designation of observers) for the holding of the election. The meeting date was confirmed by the Union in a wire sent to the Respondent by Mrs. Johnson on the morning of January 18. On the morning of January 18, Shuchter assembled all of the employees of the Talladega plant in a cafeteria or canteen located on the premises and made a speech to them. Late that afternoon, Mrs. Johnson, who was then in Talladega sent a wire addressed to the Respondent at its local plant informing it that the Union's representatives would not appear at the meeting scheduled for that eve- ning. Also on the afternoon of January 18, the Regional Director wired the Respondent that the Union "alleges interference with election by Company" and that the "election scheduled for tomorrow, January 18, will not be held 'Until investigation can be made of Union's allegations." Thereafter, the Union filed with the Board a "Withdrawal Request," dated January 19, 1949, requesting the withdrawal of its petition for certification. On January 27, 1949, the Board entered an order granting the Union's request for the withdrawal of its petition. B. The issue The question presented is whether between the time organization of the plant began and Shnchter's preelection speech (and culminating in that speech) the Respondent engaged in various acts of misconduct in order to interfere with, restrain, and coerce its employees in the exercise of the rights guaranteed to them by Section 7. C. The allegations of interference, restraint, and coercion In the main, the General Counsel rests his claim of violations of Section 8 (a) (1) upon evidence designed to establish that the Respondent (1) spied upon and kept its employees under surveillance; (2) initialed, assisted, and partici- pated in the circulation among its employees for their signatures of documents setting forth that the signatories were withdrawing from the Union ; (3) inter- rogated employees concerning their membership in the Union and their activities therein; (4) made coercive statements to employees; (5) discriminatorily granted working conditions or privileges to employees who were not members of the Union, while withholding them from union members; and (6) granted a wage increase to its employees for the purpose of discouraging membership and activity in the Union. (1) The alleged surveillance of employees The General Counsel produced the testimony of Pauline Borden who was em- ployed as supervisor of a section in the Pants Department until November 22, 1948, when she was discharged because of a reduction in personnel. Approximately 25 persons were employed in the section under her supervision. De Stefano was her immediate superior. According to Mrs. Borden, from time to time Shuchter held meetings of the supervisors. She testified that union activity was discussed for the first time at such a supervisors' meeting after "the Union was well on its way." The witness "suppose (d)" that the meeting was held "as early as May 1948." Without speci- fying who issued the instructions at this meeting, Mrs. Borden asserted that "mostly we (supervisors) were instructed to try to talk down the Union as much as possible." Supervisors, according to the witness, were also instructed "not to 867351-50-vol. 80-53 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD make any promises to the girls for better jobs or for worse" and "to break up any groups of girls that were talking" in order "to stop them from talking." Thereafter, according to Airs. Borden, she and other supervisors, including Bernice Slagle, Leila Pollard, and Pearl Bozeman, engaged in finding "out who was passing cards and who belonged to the Union." In order to carry out her instructions, Airs. Borden testified, whenever she "saw any girls talking, I would go stop them, if possible" and that during the noon hour, "I watched them go. to the rest room, tried to stop any crowds that were standing around from talking about Union. If they were talking about Union, I just walked among them and, of course, they stopped. And I was around in the rest room to see that no one gave out cards." The witness asserted that she and other supervisors would report to De Stefano such information as they could acquire concerning the employees' union activities. The substance of her reports, Mrs. Borden stated, was to tell De Stefano "about the girls that I found belonged to the Union, and what they did, who they talked to, and about how many times they went to the rest rooms." The witness asserted that De Stefano, on such occasions, would tell her "to keep my eyes open and see what was going oil." "All supervisors were supposed to do that," she testified, and when supervisors made reports to De Stefano, he would instruct them to "keep checking" and "keep after them." Mrs. Borden affirmed that she "kept pretty close check" on "particular em- ployees,".naming Mazie Payne, Elsie Whitley, and Mary Stringfellow, and that De Stefano gave her "special instructions" concerning Mary Stringfellow. Ac- cording to the witness, De Stefano instructed her "at all tines . . . to keep my eye on her and not let her talk to anyone, and if she went to the rest room, if I couldn't go, to send someone to see that she didn't talk to anybody, or who she talked to." Mrs. Borden stated that she carried out De Stefano's instructions. She also testified that "after awhile" she became familiar with the identity of all of the union members employed in her section. Her first information on that score came about the beginning of May 1948 when De Stefano told her "there were certain girls in my section that was egging this union on" and named Elsie Whit- ley, Mary Stringfellow, and Mary Bates as members of the Union. "After that," Mrs. Borden asserted, "I began trying to find out myself who belonged and who didn't," and she asked every girl in her section whether she belonged to the Union. "They wouldn't tell me that they themselves were members," the witness testi- fied, "Then I would go ask someone else about it and they would turn around and say that the other girls had signed." According to Mrs. Borden, whenever she ascertained the names of union members in her section, she would report that fact to De Stefano, and "he would tell (her) he already knew that." Mrs. Borden's evidence received partial corroboration from the testimony of Virginia Bone who is still employed by the Respondent and, during Mrs. Borden's tenure, was employed in the latter's section. According to Miss Bone, Mrs. Borden instructed her to follow other employees into the rest room in an effort to find out who was "passing" and "signing" cards. Miss Bone stated that during a period of two or 3 months "when those cards were passed around," it was her practice to follow Elsie Whitley and Mary Stringfellow to the rest room, both during working hours and the lunch periods, in order to find out whether they were securing signatures of other girls to union membership cards. Miss Bone also testified that she saw the two employees securing signa- tures and that she reported the result of her observations to Mrs. Borden. Beginning some time in May and extending into September 1948, the local membership of. the Union met weekly (on Friday evenings) in space over a drug store located in the business district of Talladega. Several doors from the GOODALL COMPANY 823 Union's meeting place is a grocery store operated by the husband of Imogene Y. Grogan who had been employed in De Stefano's department for some months in 1947. According to Mrs. Grogan, she was friendly with individuals who were em- ployed in the office at the plant, and it was her custom to visit them there from time to time. She testified that on one such occasion in August 1948 she was chatting with De Stefano in the sewing room when he asked her to "come down to hip, office" because "he wanted to talk to me." According to the witness, she went with De Stefano to his office. Her version of the ensuing conversation follows : _ ... "I (De Stefano) am going to ask you to do something. You don't have to, if you don't want to. That's left up to you." He said, "Do you -," said, "Do you know where the Union hall where they meet at is?" And I said, "Yes, I think it's about several doors down from the store." And he said, "Well, do you ever see people going in and out, there?" And I said, "Well, I have never paid much attention to it," and of course I wasn't interested. And he said, "Well," said, "how late do you stay in the store on Friday nights?" And I said, "We usually close about 6: 00 or 6: 30." And he said, "Well, don't you see people going up in the Union hall?" And I said, "Well, I never specially noticed and, anyway, we are usually away before that time." And he said, "Well," well, he wondered if it would be possible for him to get the key some Friday night and I asked why and he said that he would like to get a check on some information that was given him that every Friday night at 9: 00 o'clock (sic) called him and gave him an estimation of how many people were at this meeting, and that the last meeting the report came to him that there were 80 something there and he wanted to know if be was getting a correct report. That he didn't know who it was called him but they called him every Friday night at 9: 00 o'clock and so I told him I didn't know whether he could get the key, or not, because my husband and his brother owned the store and he would have to see them about it. Mrs. Grogan also testified that she did not give De Stefano the key.13 She was not cross-examinated by Respondent's counsel. 13 Mary L. Johnson, the Union's international representative testified that on two occasions, once in May and another time in July 1948, she saw De Stefano in the vicinity of the Union's meeting hall. She stated that on the first occasion, she left the meeting to observe him (apparently she had been informed of his presence in the area) and that she saw him crossing the street "within a fourth of a block" of the meeting hall. Mrs. Johnson testified that the second time she saw him in the vicinity, shortly before the meeting began, he was standing on a corner close to the place where she had previously observed him. Standing alone, the evidence of De Stefano's presence in the vicinity of the meetings is not significant, particularly as the area involved is in Talladega' s business district. However, De Stefano was not produced as a witness, although still employed by the Respondent, nor was his absence explained, and Mrs. Johnson's uncontradicted testimony assumes point and significance in the light of Mrs. Grogan's undisputed evidence that De Stefano told her that "every Friday night" he received a report by telephone from a person whom "he didn't know" and who told him "how many people were at" the meetings. Mrs. Grogan's testimony suggests the possibility that De Stefano's mysterious informant "every Friday night" was none other than himself, and that possibility is underscored by the uncontradicted testimony of Mrs. Borden and Miss Bone. However, 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD De Stefano , who is still employed by the Respondent and who is heavily involved in the General Counsel's evidence of unlawful surveillance of employees, was not produced as a witness , nor did the Respondent explain his absence. Appropriate weight has been given to his failure to testify ." Needless to say, the conclusions reached herein do not rest alone on the fact that the testimony of Mrs. Borden, Miss Bone, and Mrs. Grogan stands uncontradicted in the record. Based on the demeanor of the witnesses , the content of their testimony , and the fact that the evidence of all three contains mutually corroborative elements, the Examiner credits the testimony, as outlined above, of Mrs. Borden," Miss Bone, and Mrs. Grogan. It may be noted that the Examiner does not regard De Stefano 's suggestion to Mrs . Grogan as an unfair labor practice ; rather, it was an effort to commit one. The significance and relevance of his conversation with Mrs . Grogan reside in the fact that it lends corroborative support to proof that he did, in fact, on the Respondent's behalf, direct supervisors to engage in surveillance of employees in order to hamper union activities of employees and to ascertain the number and identity of those who joined the Union , information which was not legiti- mately the concern of the Respondent. Additional evidence of the Respondent's policy of keeping employees unlawfully under surveillance is found in testimony given by William Hindman. Hindman testified that Steffensen gave him an increase shortly after the manager assumed his post, and that the latter told him at that time that he (Hindman ) had been "knocked." According to the witness , he "kept wondering about it," and when he quit in February 1949 ( Steffensen offered him an increase to remain), he asked Steffensen whether the latter 's statement that the employee had been "knocked" was "involved in the Union in any way ." The manager , Hindman testified , responded that "before he ( Steffensen ) came down here to the Talledega plant," he "had heard it from the high officials"" and had "watched me around all over the plant and checked on me, and found out I wasn 't involved in the Union in no way." Steffensen , who was present at the hearing , entered no denial of Hindman's testimony . The Examiner credits Hindman and finds that Steffen- sen made the remarks attributed to him. The Examiner finds that the Respondent spied upon its employees and kept them under surveillance in order to ascertain the number and identity of members in view of the findings made herein concerning the Respondent's surveillance of its employees, it is unnecessary to resolve the question whether De Stefano's presence in the vicinity of the meeting place stemmed from an unlawful purpose. "The well known rule is applicable . . . that when a party produces such evidence as it is in his power to produce, its probative effect is enhanced by the silence of his opponent and also where the party on whom rests the burden of evidence as to a particular fact has the evidence within his control and withholds it, the presumption is that such evidence is against his interest and insistence" (N. L. R. B. v. Ohio Calcium Co., 1.33 F. (2d) 721 (C. A. 6)). 15 In appraising the credibility of Mrs. Borden, the Examiner has taken into consideration the fact that she was discharged and the possibility that her testimony was motivated by personal resentment. In that connection, it may he noted that she is now employed in a similar supervisory capacity in another garment plant in Tennessee and that her discharge was not prompted by allegations of inefficiency or misconduct (the Respondent gave her four weeks' pay when she was terminated), but stemmed from a reduction in Supervisory personnel attributable to economic conditions. Upon observation of the witness and a consideration of her testimony, particularly in the light of the evidence as a whole, the Examiner concluded that the witness testified honestly and according to her best recollection. 16 From the context of the testimony, it seems-clear that what Steffensen had heard "from the high officials" was that Hindman was affiliated with union activity. GOODALL COMPANY 825 of the Union and to interfere with and discourage their union activities, thus violating Section 8 (a) (1) of the Act. (2) The circulation of documents whereby employees purported to withdraw from the .Union." According to Steffensen's testimony, on some unspecified occasion after his arrival at the plant, but prior to August 23, 1948, he asked De Stefano and Chiarantano (another supervisory employee) "if there were any employees who .had expressed the fact that they did not care to have the Union, and they said there was." Steffensen testified that he asked De Stefano and Chiarantano for the names of such employees and was given the names of Frances Butter- worth, Shelley Blackburn, Sarah Hannah, Kathleen Adair, Isabelle Williams, Mary Tant, and Mary Bynum. According to Steffensen, he talked to these employees "individually" and "they told me that they didn't see any use of having a union come into the plant, they thought things were going all right, and they still felt that way." Then, Steffensen testified, he assembled these seven em- ployees in his office and "suggested to them that the procedure,-told them they had just as much right to campaign against the Union as the Union had to campaign ; if that was the way they felt, that was a perfect right. I suggested that they form a committee, that they hold meetings and elect officers." A week or so later, Steffensen called the seven employees into his office again and inquired whether they had formed a committee and the girls replied that they had done so. Steffensen testified that during the second meeting he reiterated to the "com- mittee" their right to campaign against the Union and "emphasized to them. very definitely that they were given no promises, they were doing it voluntarily" and "that they were absolutely on their own." On or about August 23, 1948, the Respondent prepared at its Cincinnati office some 25 mimeographed forms, with spaces for signatures, and Shuchter sent them to Steffensen at the Talledega plant. Steffensen admitted that he gave the forms to Chiarantano with directions to distribute them to the seven members of the "committee." The forms contained the following mimeographed recital: We, the employees of the Talledega plant of Goodall Company, having previously signed membership application cards in the United Garment Workers Union (A. F. of L.) hereby voluntarily of our own choice and free will withdraw our signatures and hereby declare such union membership application cards null and void ; and we request the Labor Relations Board not to consider our names in connection with any union application. Soon after the arrival of the forms, members of the committee circulated them among the employees at their work benches, requesting them to sign the docu- ments . In some cases , the request was accompanied 'by an inquiry whether the given employee was a member of the Union." Circulation of the petitions oc- curred during working hours , and the individuals circulating them and soliciting 17 The findings bearing on the origin and distribution among the employees for their signature of forms purporting to state the signatories ' withdrawal from the Union are based on evidence given by Carl Steffensen, plant manager, during the period in question, and on the uncontradicted testimony of employees (see testimony of Hurst, Whitley, Blankenship , Borden , Ford , Moore, Parker , Bone, and Stone ). Steffensen was called as a witness by the General Counsel under Rule 43 ( b) of the Federal Rules of Civil Procedure governing the calling and examination of adverse parties and their agents. 18 See testimony of Maye Bell Hurst and Easter W. Moore. In connection with the request that she sign , Mrs. Moore was asked about her membership by a supervisor , Gladys Yarnell , and not by one of the seven employees circulating the forms. 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signatures left their work to do so. During the solicitation of the signatures, supervisors were present in their respective sections and interposed no objec- tion. Solicited employees testified that when they were approached for their signatures, they were asked if they "wished" or "wanted" to sign, and one employee (Hurst) stated that when she was asked to sign, Chiarantano told her she "didn't have to sign it" and if she did not, she "could still work." Solicitation of signatures was not confined to the seven girls who formed the committee at Steffensen's suggestion. The uncontradicted and credited evidence shows, and the Examiner so finds, that supervisors of sections and members of the righer echelons of the local management (Sullivan, De Stefano, and Chia- rantano) solicited the signatures of employees. Sullivan, who succeeded Stef- fensen as manager, on one occasion summoned a group to his office (Elsie Whitley, who had been the object of surveillance and was active in securing signatures to union membership cards was in the group) a and told them that "he didn't know who had signed cards and who hadn't, but . . . that was our (the em- ployees') business" and that "there was a petition in there, if we wanted to sign it, or there was one in the plant if we wanted to sign it." In some cases, after employees had declined to sign the forms at the request or instance of the committee, supervisory personnel followed the rejected request with personal solicitation of employees who had declined, in some instances sug- gesting that the documents be signed under covert circumstances. Thus, Chiar- antano told Maye Bell Hurst "if I wanted to sign one of them, I didn't have to be put on the spot to sign it; that Mr. Shuchter would mail me one and I would mail it back to him." Similarly, Gladys Yarnell, a supervisor, asked Easter W. .Moore, after the latter had refused to sign at a committee member's request, if she bad joined the Union and told her that if she wished to withdraw "you may go down to the office around 5: 00 and there will never be no criticism made-no compliments, no criticism, no way if you want to take your name off." The evidence reflects a conscious, although unevenly applied," effort by the Respondent to make it appear that the circulation of the forms was a project originated and executed by the committee. That is made manifest not merely by the fact that employees were used as the primary instrument for the solicitation of signatures, although the forms originated with the Respondent and were distributed to the committee by the management, but by Steffensen's demeanor as a witness and the nature of his testimony. The documents were initially mentioned in the evidence when Steffensen was asked by the General Counsel whether he was "aware that the employees were circulating a petition asking the employees if they desired to withdraw from the Union." He responded in the affirmative and then testified as follows : By Mr. MARTIN : Q. When did you first become aware of that? A. I don't remember the date, sir. a Mary Bates who was named by De Stefano in a conversation with Mrs. Borden as one of those (including Elsie Whitley) who were "egging the Union on" was also among the group summoned to Sullivan's office. 20 Mrs. Borden testified, without contradiction, that "at first we supervisors were sup- posed to have nothing to do with them (the forms), but I passed mine around part of the way." Her version of supervisors' instructions is supported not only by the manner in which she executed them, but by the evident fact that the primary burden of circulating the forms was placed upon the seven employees, with supervisors playing it secondary or supporting role in suggesting to employees, at least some of whom had previously declined to sign, that they affix their signatures ; in making the forms available for signature in the office; and in colleting and assembling the executed forms after they had been circulated. GOODALL COMPANY 827 Q. Who told you about it? A. I believe Mr. Chiarantano told me about it. * * * * * * * Q. What did Mr. Chiarantano tell you about it? A. He told me there was a petition being circulated in the shop that the - certain people were taking it around. Q. Could you tell us who those people were and what those positions were? A. No, I didn't know who they were. Q. Did you know what their positions were? A. They were workers in the plant. Q. What did you do about it? A. Nothing. By Mr. MARTIN : Q. Mr. Steffensen, exactly what did Joe Chiarantano tell you about these petitions? - A. I cannot tell you exactly. He notified me that there was a petition going around. Q. And what was the contents of the petition? Did he tell you that? A. I believe he did. Q. What- A. I believe that it was a petition where certain - to withdraw union certain employees who had expressed a desire they wanted to withdraw the - their signature from a union card which they had previously signed. Q. And you did nothing about it? A. I did nothing about it. Q. Were the petitions here brought into your office? A. There were a few copies I found on my desk with about six or seven names on it, I think. By Mr. MARTIN : Q. After you found those petitions on your desk, what did you do with them? A. I gave them to Joe Chiarantano. Q. With what instructions? A. I told him, give them to the girls that were circulating the petitions, if he knew who they were? Q. Any further instruction? A. No, sir. Both the text and tenor of the quoted testimony manifest an effort by Stef- fensen to convey the impression that lie had only a casual knowledge of the forms and that his policy was one of the disinterest in their existence and non- participation in their origin and circulation. However, at later points in his testimony at least some part of his real connection with the forms was revealed, and he gave evidence which markedly conflicts with the quoted testimony in several significant particulars. It was after he gave the foregoing testimony that the examination of Stef- fensen disclosed his conversations with the members of the committee which was formed at his suggestion, and it was at that point that he testified to their names, stating that De Stefano and Chiarantano had furnished them at his request. 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The origin of the forms and the committee's connection with them were revealed at a subsequent point in Steffensen's testimony after Respondent's counsel offered to introduce "substantially an exact copy of what was on the petition" (the withdrawal forms). The General Counsel then sought leave and was granted permission to examine Steffensen on voir dire as to the authen- ticity of the proffered document. The ensuing examination of Steffensen then disclosed that he had in his possession 25 mimeographed forms (the contents of which ha ire been set out above) with appended signatures of employees ; that the form, were prepared and mimeographed by the Respondent in its Cincinnati office and sent to Steffensen by the Company ; and that about August 24, 1948, he turned them over to Chiarantano with directions to give them to the 7 employees who had formed a committee at his suggestion. Significantly, at another point in his testimony, Steffensen agreed that the committee was formed about August 24, the approximate . date when the forms were received from Cincinnati and circulated in the plant for signatures. Steffensen's testimony given under the voir dire examination and at other points conflicts significantly with his initial description of his connection with the wthdrawal forms. First, his earlier statement that he did not know who circulated the forms appears to be untrue, for he admittedly secured the names of the girls from De Stefano and Chiarantano and directed the latter to give the forms to those employees. Second, it also appears to be untrue, as stated in his earlier testimony, that he first became aware of the documents' circulation when "Chiarantano told me about it." According to his later testimony it was he who told Chiarantano about the circulation of the forms, for it is evident that he gave them to the foreman to give to the seven employees for that purpose. That Steffensen did "nothing about it" is also contrary to the facts, because the plain import of his later testimony is that it was lie who started the circulation of the forms by giving them to Chiarantano with instructions for their disposition. Moreover, the availability of the forms for signature in the office and the so- licitation of signatures by supervisory personnel directly responsible to him makes it incredible that Steffensen was merely passive in the affair. Third, the clear intendment of his initial references to the forms was that the sum of his connection with them was his discovery of a "few copies" on his desk which he gave to Chiarantano to "give to the girls that were circulating the petition, if he knew who they were." Chiarantano "knew who they were" because Steffensen told him when the forms first arrived to give them to the 7 mem- bers of the committee. Furthermore, the forms came to Steffensen not as a "few copies" which he "found" on his desk, but as a group of at least 25 prepared by the Respondent in Cincinnati and obviously sent to the Talledega plant for circulation .' Steffensen denied that the committee was formed for the purpose of circulating the documents, stating somewhat equivocally that it was formed "for the pur- pose of using their efforts to keep the Union from getting the majority in the plant." His denial and his claim that he "emphasized" to the committee "that they were absolutely on their own ," as well as his professions of propriety, must be tested both in the light of the objective facts and the evasions and conflicts n According to the uncontradicted and credited testimony of Pauline Borden, the ea- supervisor, a week before the arrival of the forms , Shuchter held a meeting of the super- visors and told them "there would be some papers " to "be passed to the girls and (to) tell the girls they could sign these and it would withdraw their names from the cards. They were under no obligations if they hadn't paid any dues to the Union." GOODALL COMPANY 829 appearing at significant points in his testimony. That the committee was not "absolutely on their own" is made manifest by the fact that Steffensen suggested its formation at about the time the forms were circulated ; that the Respondent prepared the forms ; that the Company gave supervisory support to, and afforded facilities for, the solicitation of signatories ; and that supervisors solicited sig- natures for the documents. To the Examiner, it appears that Steffensen's initial effort to convey an im- pression of unconcern and nonparticipation by him in the circulation of the forms was no more than a projection of the devious nature of the project, for it is evident that the Respondent sponsored, supported, and assisted the circulation of the forms, while endeavoring, by using employees as the primary instrument for the solicitation of signatures, to create a facade of dissociation from the undertaking. The record is barren of any evidence that any employees, whether members of the committee or not, suggested the circulation of the forms, and all of the credible evidence points to the conclusion that the project was initiated and executed by the Respondent. The Examiner finds that the Respondent initiated, supported, assisted, and participated in, the circulation of the forms and the solicitation of signatories for them and that it thereby violated Section S (a) (1) of the Act22 (3) The alleged interrogation of employees According to Mrs. Borden's testimony, she interrogated every employee in her section in an effort to find out whether they were members of the Union. The sense of her testimony is that she undertook the interrogation as part of the fulfillment of her instructions to keep the employees under surveillance and to report her findings to De Stefano. She made such reports to him and included the names of individuals she had ascertained, as a result of her interrogation of employees, to be members of the Union. De Stefano did not testify and her testimony as to the reports stands uncontradicted. As set forth in another part of this report, the Examiner credits Mrs. Borden's testimony outlined above. Easter W. Moore testified that when Frances Butterworth (a member of the. committee formed at Steffensen's suggestion) asked her to sign one of the with- drawal forms, she declined to do so; that thereupon Miss Butterworth said, "You have signed a Union card," to which Mrs. Moore made no response ; 23 that on a later occasion Gladys Yarnell, the section supervisor, asked her (Mrs. Moore) whether she had "signed a Union card" ; that she replied in the affirmative ; and 2a The signed withdrawal forms, although purporting to make a "request" of the Board, were never turned over to it. They remained in the Respondent's possession. The fact that they were circulated only a few days before the representation hearing suggests the possibility that it was contemplated that they be used in some fashion in connection with that hearing, although they were not produced there. In fact, Steffensen claims that the 25 executed forms. produced at the hearing before the Examiner were turned over to him on September 1, the day before the representation hearing. "The girls didn't quite know what to do with them. I said I will take care of them," Steffensen testified. In view of the finding made above, it is not important to determine whether the 25 forms were in fact returned to him under the claimed circumstances, but it is noteworthy that there is uncontradicted evidence that forms were made available and maintained in the Respond- ent's office for employees who did not wish to sign in the workrooms where other employees could see them sign. am The statement, "You have signed a Union Card," by Miss Butterworth does not appear in the record as a question. There is doubt in the Examiner's mind whether Miss Butter- worth intended it as an interrogation or whether she was merely stating it argumentatively. Accordingly, the Examiner makes no finding whether it was an inquiry as to Mrs. Moore's membership. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Miss Darnell then suggested that if Mrs. Moore wished to do so, she could sign a form in the office. Mrs. Moore's testimony was not contradicted, and the Examiner credits it. Another employee, Maye Bell Hurst, also testified without contradiction that Sarah Hannah (a member of the committee formed at Steffen- sen's suggestion), in asking her to sign a withdrawal form, inquired whether she had signed "a Union card." Standing alone, the inquiries by Miss Darnell and Miss Hannah would probably have limited significance, but they were made as part, of a program sponsored and fostered by the Respondent to interfere with the employees' right of self-organization.24 Within the framework of the evidence as to the function Mrs. Borden, Miss Darnell, and Miss Hannah were performing when they interrogated employees concerning their membership in the Union, the Respondent must bear the re- sponsibility for the interrogations. The inquiries as to union membership were unlawful, and, as a result, the Respondents violated Section 8 (a) (1) of the Act. Maye Bell Hurst testified that in May or June 1948. about a month after she joined the Union, Joseph Paluzi, superintendent of the Coat Department, came over to her machine and criticized her work as "trashy" and that he then summoned her to his office where he criticized the quantity and quality of her work and told her "you have got your mind on something besides this work," and (it) "seems like you lose in awful lot of time." The witness stated that she denied that her work was poor and that she returned to her machine. Accord- ing to Mrs. Hurst, later that day, while she was talking to two other employees during working hours, Paluzi came over and spoke to her again. -Mrs. Hurst's version of the conversation follows : Well, he came over there and asked nie what I was talking to the girls about, and I said, "What do you mean, Mr. Paluzi." He said, "You know what I mean." I said "Union'?" He said, "yes, and we are not going to have it." According to Mrs. Hurst, she commenced to cry and Paluzi left. She testified that he returned later that afternoon and spoke to her about the Union, stating "they can't offer you nothing that we can't offer you." 1'aluzi, Mrs. Hurst testi- fied, brought up the employees' insurance benefits and "asked me what they had offered me," asserting that "they (the Union) couldn't offer me anything as good as they were giving me." Under cross-examination, the witness enlarged some- what on the afternoon conversations with Paluzi. She asserted that Paluzi came to her and asked if she had asked "anybody that morning to sign a card," but that she denied it; that he said he would "take your word for it"; and that he then looked at her work and told her it looks "better now." It is not clear whether this colloquy was part of the conversation about what the Union "had to offer." The witness did not mention the conversation concerning a card signature under direct examination. In any event, the Examiner does not regard any part of the conversation as an unfair labor practice. Paluzi's comparison of "what the union had to offer" with the Respondent's insurance benefits is an expression of opinion protected by Sec- tion 8 (c) of the Act. The inquiry attributed to Paluzi as to "what they (the union) had offered me" must be regarded within the context of his statement as the expression of an argumentative viewpoint and not as a probe for information 2' The text of the forms and the fact of their circulation suggest , at least, an implied inquiry as to the union membership of all the employees who were asked to sign them. By subjoining a signature to the text an employee expressly admits that she is a member of the Union . The presentation of such a form for signature is in effect an implied inquiry or a solicitation of information whether employees had "previously signed membership application cards in the United Garment Workers Union." GOODALL COMPANY 831 concerning Mrs. Hurst's union activities. Mrs. Hurst was talking to other employ- ees (luring working hours after Paluzi had criticized her work. While there is evidence that employees were not forbidden to talk while at work, and the circu- lation, during working hours, of the withdrawal forms several months later pre- sents the question whether the Respondent discriminatorily permitted antiunion activities, while it forbade prounion conduct, it is not clear that Paluzi's inquiry was anything more than the exercise by him of his managerial responsibility to expedite production. There is no evidence that he found fault with Mrs. Hurst's work in order to harass or discriminate against her. The evidence does not afford a basis for a conclusion that that was his intent. All the testimony establishes is that there was a difference of opinion between them concerning the subject. Either could have been honestly wrong about the quality of the work. The Exam- iner finds that Paluzi did not unlawfully interrogate Mrs. Hurst concerning her union activities. Mary Stringfellow testified that in May or June 1948, De Stefano summoned her to his office and told her, "Every time I turn my back, you are knifing me in the back" ; that she asked him what he meant ; and that he criticized her production, telling her that if she got her mind on her business, her production would improve. According to Mrs. Stringfellow, De Stefano then told her that he had been in- formed that she "was a Union organizer" and asked her if she was one, and she denied it. He also told her, she testified, that she "was jeopardizing the plant" by "getting Union cards signed and messing with the Union," and asked her if that was true, to which she responded that that was "none of his business" and that her union activity was her privilege. She asserted that De Stefano also told her "that if she had as little friends as (she) did in that plant, that he would quit and leave town." The conversation, she testified, terminated with his telling her "to get my mind off of the Union" and to "go on back there at the machine and set down and get my mind on my business and I would do better." The witness stated that she was thereafter summoned to De Stefano's office several times and that on such occasions "it always started out something about my production," and he would tell her that if she "didn't do better he would have to terminate" her. Such conversations, Mrs. Stringfellow asserted, "wound up, then, about the Union," and in his references to the Union, "he would ask me if I got the cards signed and jack me up about not having my mind on the business and having it on the Union ; not doing it better, or production, and . . . what was the cause of it." Mrs. Stringfellow asserted that on one of the occa- sions, he asked her if she would quit her job if he were able to prove that another operator "could sew a thousand a day" ; that she refused to "give up my job . . . until you terminate me" ; and that he responded that "he didn't want to," but "just wanted her" to do her work. Mrs. Stringfellow also testified that she had a conversation with De Stefano about a month before the date scheduled for the election:' As related by the witness, De Stefano spoke to her cordially. De Stefano, she said, opened the conversation by informing her that he had "something to tell" her and that this "this is more than an apology. It's a confession." Then, according to the wit- ness, he said, among other things, that he had "mistreated" her and caused her supervisor, Mrs. Borden, to so do, but that both had acted in accordance with The witness "wouldn't say definitely" when it was that she had her last conversation (set out above) with De Stefano. She estimated that it occurred about a month before the election. Her estimate is partially corroborated by the fact that Bernice Slagle was then her supervisor. Mrs. Slagle took over Mrs. Borden's section when the latter left on November 22, 1948, about 2 months before the date set for the election. 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD instructions, and that "he was sorry" for the mistreatment. Mrs. Stringfellow testified that De Stefano, prefacing his remarks with the statement, "now that we are friends again," then asked her "to forget about the Union and take sides with the Goodall Company, and informed her that, if she would do so, she "could have a job with the Goodall Company as long as there was a Goodall Company." According to her testimony, she responded that she "wouldn't say" she "would forget" the Union, and that "just to show him I had a heart and that I was willing to cooperate With him, . . . if he would stop the supervisors and the company employees from trailing me back and forth from the rest room and places, . . . I would go back and get on my job and do the best I could and try to cooperate with him and the company ..." De Stefano did not testify and Mts. Stringfellow's version of her several con- versations with him is uncontradicted. In appraising her credibility, it may be borne in mind that she was one of those most active in the Union and that there is undisputed and credited evidence establishing her activity was a matter of special concern to the Respondent and that she was placed under close surveil- lance pursuant to De Stefano's instructions. These factors afford corroboration for substantial portions of her testimony. Based on his observation of the witness and the record as a whole, including the absence of any contradiction of her testimony, the Examiner credits Mrs. Stringfellow's account of her con- versations with De Stefano. His last talk with her provides evidence of a design to harass her because of her union activity and shows that he was moti- vated more by a desire to criticize her for that and to pry into her affiliation with, and sympathy for, the Union than by any genuine concern about her produc- tion. Significantly, the last conversation occurred only a month before the date on which the election was scheduled to be held and was devoted to an effort to convert an active member of the Union into one of its opponents, with an offer of a reward if she would comply. The Examiner finds that De Stefano's interrogation of Airs. Stringfellow con- cerning her union activities and his offer of an inducement if she would "forget it (the Union) and take sides with the Company" violated Section 8 (a) (1). (4) Alleged statements interfering with or restraining or coercing employees Shuchter made a number of speeches to the employees dealing with the Union and related matters. Some were made to sectional groups, usually in one of the offices, while others were delivered to assemblages of all the employees in the plant's cafeteria. There is evidence that lie began to deliver such talks concerning the Union about May 1948, 2 or 3 months after organizational activity began. He spoke to assembled employees about the Union during the summer months of 1948 (either in July or August). It is undisputed that he delivered a speech on January 18, 1949 (the day before the election was scheduled to be held) to all of the employees who were assembled for that purpose in the cafeteria. The General Counsel's evidence of the substance of Shuchter's speech on January 18 was adduced through the testimony of Elsie Whitley, Virginia Bone, Mary Stringfellow, William Hindman, and Maye Bell Hurst, all employed by the Respondent on the date in question. Mrs. Hurst, who is no longer employed by the Company, gave the following account of Shuchter's remarks : Q. And will you tell us, the best you can, just what Air. Shuchter had to say on that occasion? GOODALL COMPANY 833 A. Yes, sir. Well, he said he was going to speak to us on two issues, wages-concerning wages and Union, and so he went ahead and he stated to us about the wages, and about, you know, about the contract-what they was paying in other states. How much, and the hours was higher, and all. He went on and stated all that to us, and then he told us, he said, this mill down here didn't want the Union. He said Newberry Foundry doesn't want the Union, and he says, "We don't want the Union," and he says, "Do you know-" They had a blackboard and the ballot drawn up on it, and he showed us that and he said, "Here is how you will vote tomorrow," and he pointed out on the ballot and he said, "There is the Yes sign and there is the No sign," and he says, "on tomorrow I can't be out here, but," he. says, "I will be up in town and," lie says, "I am going to be praying God will guide your hand to vote No when you vote tomorrow and," he said, "I have got 572 people in here and I want 572 No votes and," he says, "another thing, if you vote Union here," he says, "Brother Chappell won't have a job up there in that office." He says, "It will be some outsider from maybe way off somewhere here." He says, "Tomorrow is going to prove whether you like me or not. Tomor- row is going to prove whether you like Goodall or not. And," he says, "tomorrow is going to prove whether you like Brother Chappell or not." Q. Do you remember any mention of the-Do you recall anything else that he said on that occasion? A. He did say that if we got the Union, we wouldn't have the insurance that we had. If we got the Union, they couldn't give us what we was getting. We wouldn't have any insurance if we got the Union. Q. Do you recall whether he said anything about wages? A. Yes. He said, "Now, listen" he says, "if you-all get a union," he says, "remember I am the one going to bargain and," he said, "I am going to tell you, I am going to give you the lowest contract that can be got and I am going to tell you that will be a deduction in your wages from what you are getting now." Elsie Whitley's version does not differ in significant substance from that given by Mrs. Hurst. Mrs. Whitley, who is still employed by the Respondent, asserted that Shuchter made a comparison between wage scales and insurance benefits in effect at the plant and working conditions secured by the Union elsewhere ; that he stated that "he wanted us all to. vote the next day" ; that he wanted as "many no votes" as there were "eligible voters," which he approximated at "between five and six hundred employees" ; that he told employees that "if we voted the Union in, he would give us the lowest contract the Union provided for" and "we would not have" the insurance benefits "that we had already out there" which "they (the Union) didn't provide" ; and that he informed them "that if we voted the Union in, that would mean Brother Chappell's job." 26 26 Shuchter delivered another talk to the employees (in groups) earlier in January, fixed by some witnesses at about January 14. In asking Mrs. Whitley about Shuchter's reference to Chappell, the General Counsel inquired, "Was anything said in that January 14 speech or January 18 speech about Brother Chappell?" The witness then gave the testimony about Chappell outlined above. From the context of her testimony as a whole, it appears that she intended to place the reference to Chappell on January 18 and not earlier, particularly as at another point, in describing the January 14 talk, she testified that all she could remember definitely was that "he (just) let us know that he didn't want the Union in there." 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Miss Bone, who is still an employee and was one of those who solicited signa- tures (at the request of a member of the committee) for the withdrawal forms prepared by the Respondent, testified that Shuchter "said that if the Union came in, we would be paid according to the Union regulations, which would be lower wages" ; that he told them that "the Union didn't furnish * * the insurance like we had out there" and that the employees "wouldn't have" the insurance "if it (the Union) came in" ; and that he stated that "if the Union came in, we would have somebody else to represent us with the Company other than Brother Chap- pell." William Hindman was formerly employed by the Respondent as a mechanic and quit his employment voluntarily. He was not a member of the Union. Hindman initially testified that Shuchter told the assembled employees that he had "checked" wages paid in both union and nonunion phmts ; that the Respondent paid "as much as 30 to 40 cents per hour more than where there was a union plant" ; that the Respondent paid for six holidays a Year; and that in the election "you could vote as you wished to." and "let your conscious [sic] be your guide. You could vote Yes or No." The witness also stated that Shucliter said that there were "around five hundred or something" eligible voters (under further question- ing Hindman approximated the figure mentioned by Shuchter as about 570) ; and that Shuchter pointed to a sample ballot drawn on a blackboard, showing the employees the respective places for "Yes" and "No" votes and told them to vote "any way they wanted to." In his initial testimony concerning the speech, Hindman was asked by the General Counsel whether Shuchter had said anything about insurance benefits and the fact "that if the Union would come in, that you might make less money." The witness responded that he did not remember. Then, after refreshing his recollection,' he testified that Shuchter "said he would rather have everyone to vote No," that as well as I (Hindman) remember, I believe lie (Shuchter) said if if it did go Union he would cooperate under the lowest contract the A. F. of L., United Garment Workers, had, would ask for that" ; that Shuchter stated that "union (United Garment Workers) plants up North paid wages as low as 521/2 cents an hour," and "if the Union came in," the wages of some employees would be increased and of others decreased, because some employees were " making production," thus earning more than others, and "it" (unionization) would cut some of them and raise some of them because it (earnings) wasn't balanced." Mary Stringfellow testified that in the January 182'speech, Shuchter compared wage rates and insurance benefits prevailing at the plant with those in effect at 2111indman had been interviewed on January 23, 1949, a few days after Shuchter's speech by a field examiner employed by the Board. Hindman gave the investigator a signed statement in which the former recounted Shucliter's speech. The witness' memory con- cerning the speech was faulty. Upon his testimony that the statement made only a few days after the speech contained substantially what he had told the field examiner on the subject of Shuchter's statement concerning wages, the undersigned permitted the witness to read the statement to refresh his recollection. 28 Mrs. Stringfellow gave the testimony set out above in response to the General Counsel's Question as to "What was said in Mr. Shuchter's speech of January 17, 1949." She indi- cated at a later point that the statements attributed to her by Shuchter were made by him in his January 18 speech. Her testimony with respect to that speech is intermingled with references to a talk she asserts Shuchter made to sectional groups of employees in the pay-roll office on January 17 (apparently the one fixed by other witnesses, including Shuchter, as occurring earlier in January). From the context of Mrs. Stringfellow' testimony as a whole, it appears to the Examiner that it was the intendment of her testi- mony that Shuchter made the remarks, set forth above in the body of this report, in his January 18 speech. GOODALL COMPANY 835 union plants ; that he said that "the Goodall Company didn't want the Union, and if we voted the Union in, that they would take our 10 percent away; that they would take our insurance, hospital, and doctor bills away" ; and that he stated "we were to vote tomorrow how we liked him as a Vice President, how'we liked Mr. Chappell as a personnel manager, and what we thought of the Goodall Com- pany." The witness also testified, in substance, that Shuchter pointed to a sam- ple ballot on the blackboard, stating that "we had somewhere around 575 em- ployees, and he wanted them all No votes," and that "he couldn't be with us when we voted, but lie would be down in town praying that God would guide us right, and that when we went into the booth to vote, that we would mark an 'X' in the No square." Mrs. Stringfellow concluded her account of the speech by asserting that Shuchter "said that if we didn't want to find the doors of Goodall closed on Thursday morning, that we had better vote No." Shuchter, under examination of the General Counsel, gave the following version of his January 18 speech: z9 I called the people together to bring the issue before them as to what this election will represent, what they might gain by it and what they might lose by it. The issue, I told them, wasn't a question of working conditions, of over- time provisions, of vacation with pay, of paid holidays, of life insurance, of accident and health insurance, that the Union promised to give these people. I told them that they have already in very, very large measure and above what the United Garment Workers offers to its constituents. I told them that the issue really is whether these people at Talladega like and approve the labor policy and the management of Goodall Company, and not an issue of social benefits or other things. I did treat at great length the question of wages at that meeting, because the Union has made them promises in their pamphlets of increased wages. I cited to them that our basic wage is so much higher, between $2 and $8 a week, than some of the contracts that I have consulted that the United Garment Workers has with the needle trade. I then told them that I can't see any benefit why any worker will pay $1.50 a week for the privilege that I negotiate with Miss Johnson, or any other representative of the United Garment Workers, and bring down their basic wages to the level of the contracts that Miss Johnson or the United Garment Workers had. This is just a summary. * * * * * * I wound up in telling them that they have a right to vote any way they want ; that only their conscience should be their guide. They have a right to vote for the Union, and they have a perfect right to vote against the Union. That the only interest I had was that they shall vote whichever way they want to vote, and I expressed the hope that they will vote unanimously against the Union and for the Goodall Company. That, in very brief, was the content of my speech. At other points in his testimony Shuchter denied asserting "that if the Union came in" and the Respondent "was compelled to bargain," he "would give them the lowest possible rate under the contract." He also denied making "a state- ment that if the Union was voted in * * * that the Goodall plant would close its doors," asserting that he had "publicly denied" to the employees that he had Shuchter was called as an officer of an adversary party under rule 43 (b) of the Federal Rules of Civil Procedure. 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made such a statement. Asked whether he had, in any of his speeches, "either inferentially or directly" made a statement that if the employees "voted the Union in," their insurance benefits "would be taken away from them," Shuchter replied, "I would have to be a dope, Mr. Martin, to make such a statement. I know too much about the labor law on our statute books not to make such a statement nor was the intention of Goodall company to ever do what you are suggesting here." Shuchter also denied stating "that in the event the Union came in, Preacher Chappell would lose his job, or even mentioning him by name in any of his speeches ( including that on January 18), although the witness, without specifying the speech, stated that he had "made a statement about his (Chappell's) department." Shuchter did not elaborate on his statement about Chappell's department. The versions given by the General Counsel's witnesses differ in some details, both significant and insubstantial, but the Examiner does not regard the variances as controlling on the issue of the credibility of the witnesses. It is neither sur- prising nor unusual to find differences among witnesses in paraphrasing or repeating another's remarks, particularly after the passage of a substantial period of time, and such variances may be expected to increase with the number of persons called to testify concerning the subject in question. Although differing in varying degree concerning some phases of the speech,30 essential agreement exists among all five employees that Shuchter said in funda- mental substance that if the Union were selected as the bargaining agent, the Respondent would reduce wages and withdraw prevailing insurance benefits. The version offered by Shuchter himself contains more than a subtle intimation that selection of the Union would result in reduced wages. Based upon his appraisal of the powers of recollection and reliability 31 of all the witnesses, including Shuchter,' against the background of all the evidence, the Examiner finds, crediting the testimony to that effect, that Shuchter, in effect and substance, told the employees that if they selected the Union as their bargaining 30 In essence, all the General Counsel's witnesses attribute to Shuchter language, varying in the different versions, to the essential effect that selection of the Union by the employees as their bargaining representative would result in lower wages and the elimination of their insurance benefits ; all of the witnesses, except 'Miss Bone, attribute to Shuchter a demon- strative exhibition as to his own preference with respect to the election ; Mrs. Hurst and Mrs. Whitley impute to him statements which expressly or by implication convey the mean- ing that designation of the Union would mean the loss of Ch ippell's services to the em- ployees;Mliss Bone asserts that Shuchter in effect said that selection of the Union would mean that Chappell would no longer "represent" employees "with the Company" ; all of the witnesses, except Hindman, state that Shuchter mentioned Chappell ; and Mrs. String- fellow asserts in effect that Shuchter threatened to close the plant if the employees desig- nated the Union. 31 In the judgment of the Examiner, and lie so finds, the five employees testified accord- ing to their best and honest recollection, although lie also finds that the recollection of the speech by Mrs. Stringfellow and Hindman is not as reliable as that of Mrs. Hurst, 'Mrs. Whitley, and Miss Bone. However, the recollection of Mrs. Stringfellow and Hindman on the subject of the wage reduction and insurance benefits finds substantial corroboration in the testimony of the three other employees. 12 The examiner does not regard Shuchter as a reliable witness. In testimony favorable to the Respondent, Shuchter's demeanor and his evidence manifested an aggressive and emphatic certainty, but on occasions when it coincided with the Respondent's interest, lie testified with what appeared to be calculated evasiveness. Both in the text of his testi- mony and his demeanor, his propensity to evade became particularly manifest in his re- sponses to questions bearing on the number of employees in the plant (vital on the issue of representation) and on the period when lie became aware of organizational activity in the plant. Moreover, his professions of lawful conduct should be considered against the background of the unlawful labor practices previously described. GOODALL COMPANY 837 agent, the Respondent would reduce wages of employees from higher scales paid by the Company to the lower levels of contracts held by the Union," and that the Company would withdraw prevailing insurance benefits. It is also found that Shuchter's remarks with respect to the wage reduction and the insurance benefits violated Section 8 (a) (1). With respect to Chappell, Hindman does not mention him, and Mrs. String- fellow quotes Shuchter as stating that employees were to vote "how we liked Mr. Chappell." The question is presented whether the references by Shuchter to Chappell as•variously reflected in the testimony of the other three witnesses violated the statute. While Shuchter is quoted as saying, in effect, that desig- nation of the Union would result in the elimination of Chappell's job (Hurst and Whitley) or that he would no longer represent the employees (Bone), it is not clear that language to either effect is violative of the statute. It is true that Chappell was more to the employees than a personnel manager, organizing sports and recreational activities for them and listening to their personal problems, and that they esteemed him highly, but as reflected in any of the versions, it is not clear that Shuchter intended to convey a threat of withdrawal of the benefits extended by the Respondent through Chappell. The versions of Mrs. Hurst, Mrs. Whitley, and Miss Bone (particularly hers) are susceptible to a construction that Shuchter intended not a threat of withdrawal of privileges but to convey the meaning that designation of the Union as the bargaining agent for the employees would mean the elimination of Chappell's functions as a personnel manager who represented the employees and the substitution of the Union as their representative. The Examiner concludes that the alleged references to Chappell in any of the versions did hot violate Section 8 (a)." 13 The Respondent's brief mistakenly quotes Shuchter as testifying that in his January 18 speech he told the employees that "if they joined the Union," he "would have to nego- tiate . . . with Mary Johnson, or any other representative of the United Garment Workers, and bring their working conditions and wages to the level of the contracts that she is holding and to the level of the contracts of our competitors." Actually, Shuchter testified that he made the foregoing statement "about two weeks before the 18th" (of January) when he "spoke seven hours . . . to these people in groups of 100." ( Specifying various dates earlier than January 18, Witnesses Hurst, Stringfellow, Hindman and Whitley also testified to an occasion when Shuchter addressed employees in sectional groups, but they did not quote him as stating on such an occasion as to bow he "would have to negotiate.") In connection with the erroneous assumption that Shuchter made the quoted statement on January 18, the Respondent's brief cites N. L. R. B. v. Enid Coopera- tive Creamery Assn., 169 F. (2d) 986 (C. A. 10), as authority for the view that Shuchter's statement as to how he "would have to negotiate" is a legitimate expression of opinion. The Enid case was one in which supervisory employees, in arguing against unionization stated "that if the employees were unionized they might have to take a reduction in salary. " It may be noted that the statement Shuchter claims he made earlier in January is dissimilar to the statements in the Enid case (his purported statement does not say he "might" have to reduce wages but, in part at least, states he "would have to 'negoti- ate . . . and bring their working conditions and wages" to a lower level). Be that as it may, the fact is that the earlier January statement, whether made or not, is not involved in the January 1.8 speech. Therefore, with every respect for the Court of Appeals for the Tenth Circuit, it is unnecessary to speculate either as to the soundness or appli- cability of the Enid case, for it is clear that, under long-established doctrine, Shuchter's statement, in effect and substance, with respect to wages, as found above, violated Section 8 (a) (1). See, among others, N. L. R. B. v. Brezner Tanning Co., Inc., 141 F. (2d) 62 (C. A. 1.) ; N. L. R. B. v. Fairmont Creamery Co., 143 F. (2d) 668 (C. A. 10), cert. den. 323 U. S. 752 ; N. L. it. B. v. American Pearl Button Co., 149 F. (2d) 311. (C. A. 8) ; platter of Air Associates, Inc., 20 N. L. R. B. 856; Matter of Merchants Freight, 57 N. L. R. B. 340. 1 In view of the conclusion reached with respect to any of the versions of Shuchter's references to Chappell, a resolution of the question of what, if anything, Shuchter did say on the subject is unnecessary. 867351-50-vol. 86-54 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although the Examiner finds that Airs. Stringfellow testified to the best of her recollection concerning the speech, he does not regard her recollection of some of its significant phases as reliable.' The undersigned does not credit her testimony that Shuchter said that if the employees voted for the Union, he would close the plant. None of the other four witnesses quote Shuchter to that effect. In fact, Mrs. Whitley whom the Examiner regards as a reliable witness, stated that Shuchter did not mike a statement to that effect. The Examiner finds that Shuchter did not, in words or substance, state in his January 18 speech that the plant would be closed if the employees voted for the Union. The General Counsel adduced evidence of allegedly coercive statements by Shuchter during the course of other speeches by him to employees. Easter W. Moore, an ex-employee who had belonged to the Union, testified that some time in July 1948, in a speech to the. employees assembled in the plant cafeteria, Shuchter stated that "they (the Company) didn't want the Union," and that "they would not run if they did get the Union, that they didn't have to operate and they would not, if they (the Union) got in." According to Mrs. Moore, Shuchter repeated substantially the same thing in other speeches in or about September and October 1948. Some time in the fall of 1948, the witness stated, Shuchter also said that, "if the Union came in," the employees' wages would be cut. Under cross-examination, Airs. Moore testified that Shuchter "usually got around to it" (the subject of closing the plant) "in each one of those speeches" and she expressed a "guess" that he made the statement in "three or four" of the speeches. The Examiner formed the impression that Airs. Moore testified according to her best understanding and interpretation of Shucliter's statements, but the under- signed entertains some doubt about the witness' power to paraphrase and repeat with substantial accuracy months later the statements of others on such matters as Shuchter made the subject of his speeches. It is apparent that he spoke ex- tensively on the effects of unionization. It is not unlikely that Alrs. Moore read into his statements the meaning that unionization would result in the closing of the plant. In the light of his appraisal of Airs. Moore, the Examiner does not regard Airs. Moore as a reliable witness on the subject of Shuchter's speeches, and he does not credit the phase of her testimony in question, in the absence of cor- roborating evidence of a credible nature.30 No other witness testified that Shuchter in those periods made the statements concerning the closing of the plant, imputed to him by Airs. Moore. The evidence does not preponderantly establish that Shuchter made such statements in the speeches mentioned by Mrs. Moore. Mrs. Borden, who left the Respondent's employ several months before the Janu- ary 18 speech, testified that, in speeches Shuchter made to the employees before her termination, he said that "if the Union came in," the Respondent "would have to pay like other companies in .this area that had the Union," and "he ex- plained" concerning the insurance benefits "that the Company was paying a part of it, and that we might not have it if the Union came in." Mrs. Borden asserted 36 Mrs. Stringfellow's testimony, as outlined in other sections of this report, is either uneon tradicted or corroborated by other evidence, or both. 36 Mrs. Moore's testimony that Shuchter made a statement that wages would be "cut" is corroborated to some extent in substance, but not in terms, by Mrs. Borden whom the Examiner regards as a reliable witness. As found at another place in this report, Mrs. Borden imputed to Shuchter statements which, in the light of the evidence as a whole, the Examiner regards as assertions, in effect, that the Respondent would reduce wages in the event of unionization of the plant. The Examiner finds that Shuchter did not use the term "cut" in referring to wages, as stated by Mrs. Moore, but that in his speeches in 1948, Shuchter made the statements concerning wages imputed to him by Mrs. Borden. GOODALL COMPANY 839 that the statements with respect to wages and insurance, were made "in all the speeches" made by Shuchter between the time when organizational activity began and the date of the representation hearing (September 2, 1948). The witness was asked whether Shuchter mentioned "any figures" in connection with his statements concerning wages, and she responded, "Not that I recall." Shuchter, who testified during the General Counsel's case in chief, and before Mrs. Borden gave her testimony, denied that he had ever made statements to the effect that if the employees "voted the Union in," the Respondent would withdraw insurance benefits and "would give them the lowest possible rate under the contract." He did not testify in rebuttal, and there is no denial by him that, during the course of speeches made during Mrs. Borden's tenure, he made statements that in the event of unionization, the Respondent "would have to pay like other companies in the area that had the Union." The Examiner regards Mrs. Borden as a reliable witness and does not consider Shuchter to be such. The Examiner credits Mrs. Borden's testimony., Shuchter's remarks must be considered against the back- ground of the other evidence, including that relating to the unfair labor practices in which the Respondent engaged during the period of the speeches in question. Regarded in that light, his remarks concerning what the Respondent "might" do with the insurance benefits must be considered as a coercive interference with the employees' right to self-organization. While lie mentioned no figures in the speeches described by Mrs. Borden, such talks have an ancestral connection with his speech of January 18, 1949, in which he made it plain that wages paid under the Union's contracts were lower than those paid by the Respondent. Moreover, there is undisputed evidence that at a meeting of the supervisors held in July 1948, he gave them information to the effect that the Company was paying higher wages than those provided by the Union's contracts, and authorized the super- visors to tell employees what the comparative rates were.34 In the opinion of the undersigned , the intendment of Shuchter's speeches, in the light of all the evi- dence, was to tell the employees that in the event they designated the Union as their bargaining agent, they would be paid on the basis of lower wage scales reflected in contracts held by the Union in other plants. The undersigned con- cludes that the statements concerning wages attributed by Mrs. Borden to Shuchter violated Section 8 (a) (1). According to the testimony' of Elsie Whitley, on the day before the election, while she was at work, she heard Bernice Slagle, her supervisor, tell an employee, Mildred Causey, that "if the Union was voted in the plant would be moved- closed and moved away in three weeks." Apparently referring to the same oc- casion, although she was not mentioned in Mrs. Whitley's testimony, Virginia Bone testified that while she and Mildred Causey were talking, Bernice Slagle 87 That supervisors acted upon Shuchter's instructions "to talk the Union down" (Bor- den) by discussing wages with employees is evidenced by the testimony of Katy Parker who worked in the Pressing Section (part of the Coat Department) and was paid at the rate of 65 cents an hour. According to her uncontradicted and credited testimony, Jake Sutherland , her supervisor , spoke to her , while she was at work, about the Union , express- ing an unfavorable opinion concerning it' and asserted, "if we got the Union, that they (the Respondent) wouldn't pay us but 53 cents an hour." In the light of the evidence as a whole, the Examiner finds that Sutherland's remarks concerning wages violated Section S (a) (1). Dirs. Parker also testified that Shuchter , in a speech about August 1, 1.948 , stated that the Respondent "didn't want" the Union at the plant and that "nobody (could) snake them pay more than 53 cents an hour, would be the top wages. " The Examiner regards the remarks attributed by Dirs . Parker to Shuchter as too obscure to warrant a finding whether they constituted a violation of Section 8 (a) (1). 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "came up and * * * said if the Union came in that the plant would be closed down within two or three weeks." Bernice Slagle did not testify and Mrs. Whitley's and Miss Bone's testimony was uncontradicted. The Examiner credits their testimony. While there is no evidence that Miss Slagle had the right to hire and fire or make any effective recommendations concerning the employees, there is evidence that her predecessor, Mrs. Borden, did not have such functions. How- ever, there were approximately 25 employees in Miss Slagle's section and the evidence as a whole supports the conclusion that it was the function of super- visors of sections to direct the work of the employees under their supervision. Moreover, according to the credited evidence, Shuchter had instructed the super- visors at a meeting "to try to talk down the Union as much as possible." 38 The credited evidence shows that supervisors were closely associated with, and par- ticipated in, unfair labor practices in which the Respondent engaged. Within the framework of the evidence as a whole, the legal responsibility for Miss Slagle's remarks is that of the Respondent. Her statement concerning the closing of the plant violated Section 8 (a) (1). Mrs. Borden testified that, during her tenure as a supervisor, "occasionally, the girls would walk up and ask me if the plant would close clown, and I would tell them that it might." Apparently, she would make such statements in casual conversation when "no more than just one or two of them (employees) would be talking." Under cross-examination, Mrs. Borden testified that none of her supervisors ever instructed her to make such statements. Virginia Bone, who worked in Mrs. Borden's section, testified that during the early stages of the organizational activity, Mrs. Borden told her that the plant would move to another location. As stated earlier in this report, the Examiner regards both Mrs. Borden and Miss Bone as reliable witnesses. He credits their testimony. The record does not indicate that she made the remarks in conjunction with any conversation about the Union or that they were associated in her mind with any union activity. The General Counsel has the burden of establishing that her stlitements to employees violated the Act. The text of her examination and of her testimony is too scant to permit a legitimate inference that she made the statements in conjunction with union activity in the plant or that they were directed at such activity. For all that appears she might have had some other purpose in making them. The evidence does not preponderantly establish that her assertions to employees that the plant "might" or "would" close violated the statute. Mrs. Whitley testified that it was her practice to sell candy at the plant to the other employees before the commencement of the day's work. She stated that her supervisor knew that she was doing it and that nothing was said by the local management about it "for a long time." According to Mrs. Whitley, De Stefano told her to discontinue her sale of candy. She testified that after the withdrawal forms were circulated De Stefano asked her if she knew why he had "stopped me from selling candy" ; that she responded she "bad no idea"; that he then stated that it was because she had been getting union cards signed while she was selling candy ; and that she told De Stefano that she had not done so. De Stefano did not testify and Mrs. Whitney's testimony stands uncontra- dicted. The Examiner credits her testimony. He finds that De Stefano's direc- 38 There is evidence that Miss Slagle worked at the plant as a supervisor during Miss Borden's tenure and, like the latter, kept employees under surveillance, making reports as to her findings to De Stefano. The record' is silent, however, as to whether she attended the supervisors' meeting referred to by Mrs. Borden. GOODALL COMPANY 841 tion that she discontinue the sale of candy, as well as the expression to her of the reason for his action, was a coercive interference with the rights guaranteed to her by Section 7, and the Respondent thus violated Section 8 (a) (1). Addi- tional support for the conclusion reached may be found in the fact that the Re- spondent-freely permitted employees to leave their work and solicit other em- ployees, while the latter were at work, to sign the Respondent's mimeographed forms purporting to effect the signatories' withdrawal from the Union. According to Mrs, Whitley, on the day when she was asked to sign a form purporting to effect her withdrawal from the Union, De Stefano spoke to her at her machine, asked her opinion about the Company, and told her, "You think it is a good company to work for, but yet and still not good enough for you to take your name off of the Union card." Mrs. Whitley testified that she responded that her membership "is my business" ; that De Stefano asked her to reconsider her refusal to sign the withdrawal form and said, "Elsie, I can tell you one thing. * * * You know what, if you hadn't been in this Union where would you have been to-day? * * * You would have been in the coat shop right now as supervisor." De Stefano did not testify, and Mrs. Whitley's testimony was not contradicted. The Examiner credits her testimony and finds that as a result of De Stefano's remarks the Respondent violated Section S (a) (1). (5) Alleged discrimination in granting working conditions and privileges As found above, employees were kept under surveillance and their conversations were interfered with at the plant in order to prevent them from discussing the Union or circulating cards for membership therein, and this policy was applied by the Respondent even when the employees were not at work. Elsie Whitley was forbidden to sell candy before working hours, and, according to her undis- puted and credited evidence, De Stefano told her that the reason for the prohibi- tion was the solicitation (as he claimed) by her of memberships in the Union while selling the candy. There is uncontradicted evidence, which the Examiner credits, that supervisory personnel forbade employees to circulate union member- ship cards "during working hours on company time." ' On the other hand, the Respondent distributed antiunion leaflets during working hours; Shuchter made antiunion speeches during such periods (on one occasion, according to his testi- mony, he consumed 7 hours in talking to groups of 100, which means that he probably consumed an average of between 1 and 2 hours talking to each group) ; and supervisors and employees solicited signatures for the withdrawal forms during work periods. The issue presented by the foregoing evidence is not whether an employer has a right to prohibit union activity during working hours or to snake speeches to employees during that time or to engage in antiunion propaganda. The ques- tion is whether he may reserve such rights to himself, while at the same time interfering with, or preventing, employees from talking about a union and solicit- ing members for it. It is well established that discriminatory conduct of that a' See testimony of Mary Stringfellow. She testified that employees were "all the time reminded" by Paluzi not to solicit memberships during working hours, and that Shuchter made a statement to that effect in a speech. Her testimony was not contradicted. It is corroborated by the undisputed evidence of the Respondent 's policy of keeping employees under surveillance and of Interference with their conversations in order to prevent them from discussing the Union and soliciting memberships in the organization . See, also, the uneontradicted evidence of Mrs. Whitley with respect to the "candy" incident and of Mrs. Hurst concerning her conversation with Paluzi. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nature violates the statute.`° The Examiner finds that in engaging in antiunion activity during working hours and in authorizing and permitting supervisors and employees to do so, while prohibiting employees from soliciting memberships for the Union and interfering with discussions concerning it, during working hours, the Respondent discriminated against its employees and thus violated Section 8 (a) (1).91 The General Counsel adduced evidence designed to establish that the Respond- ent discriminatorily refused to keep Dirs. Stringfellow's machine in a state of repair and that the refusal was motivated by her union activity. The evidence is undisputed that Mrs. Stringfellow was active in the Union. She attended all but one of the meetings, solicited memberships in the Union, and secured the signatures of 14 employees to membership cards. The evidence as a whole establishes that she was one-of the more ardent advocates of the Union. As" found elsewhere in this report, she was one of several referred to by De Stefano as "egging this union on," and under his instructions, she was made the special object of surveillance by her supervisor, Mrs. Borden, who would either follow her or send someone else to the rest room when she went there. Mrs. Stringfellw.v, as are other employees, is employed on a piece-work basis. Her earnings depend on her production. If her machine is in such a state of disrepair that it cannot be used, her production capacity is lowered and her earnings reduced. According to Mrs. Borden, "all during the -Union" (campaign), De Stefano told her to treat them ("Union people") in a way that they would quit." She stated that he (lid not tell her "exactly what to do in order to make them quit," but, with respect to Mrs. Stringfellow; "he just told me to discourage Dirs. Stringfellow as much as possible, not have anything clone to her machine, she was complaining about her machine, don't have anything done there, keep on her tail, if she goes to the rest room not let her talk to anyone. * * If she (sic) standing talking to anyone, go up and tell her to get back to her machine." Mrs. Borden testified that Mrs. Stringfellow had trouble with her machine, but "not as much as she thought she did." "At times," she stated, "I went over and looked at the machine and tried it out myself, and I have had the machinist come and look at the machine, sometimes there would be something wrong with it and sometimes there wouldn't be." Mrs. Borden agreed that the other girls in her section could secure a plant machinist's services without her help when their machines needed repair, and she stated that Dirs. Stringfellow was the only one in her section who could not secure the assistance of a machinist unless the super- visor requested it. The witness affirmed that "there were times" when the machine needed repair and she diet not request a machinist's services, but she as- serted that she did not do so because she was too busy. William Hindman, formerly employed as a machinist at the plant, testified that in May or June 1948, De Stefano told him and another mechanic not to re- 41 N. L. R. B . v. M. E. Blatt Co., 143 F. (2d) 268 ( C. A. 3), certiorari denied . 323 1'. 8. 774; N. L. R. B. v. Peyton Packing Co ., 142 P . ( 2d) 1009 ( C. A. 5), certiorari denied, 32:3 U. S. 730 ; N. L. R. B . v. Harbison-Walker Refractories Co., 135 F. (2d) 837 (C. A. 8) ; N. L. R. B . V. Winona Knitting Mills, Ine., 163 F. (2d) 156 ( C. A. 8) ; N. L. R. B. v. American Furnace Co., 158 F. (2d) 370 ( C. A. 7). +1 It may be noted in passing that well over 230 union membership cards were intro- duced in evidence . The voluminous evidence bearing on-the circumstances under which they were signed establishes that all but a few were signed outside of working hours ('see testimony of the witnesses to the cards ). Only two of the cards were specifically identi- fied as having been signed during work periods ( see testimony of Pertie Bright). G00DALL COMPANY 843 pair Mrs. Stringfellow's machine without his prior permission. Hindman as- serted that he took "it on myself" on one or two occasions to make minor ad- justments in her machine. Hindman also testified that machines of some other employees broke clown as much or more frequently than Mrs. Stringfellow's; that he had no instructions to secure prior authorization from De Stefano to fix the machines of other employees ; aid that there were occasions when De Stefano personally sent him to fix the machines of other employees, including Kathleen Adair, a member of the committee formed at Steffensen's suggestion, who gave him (Hindman) "quite a bit of trouble." The witness stated that, varying with the nature of given work, sewing machines require adjustment; that "some (em- ployees) can do it (make adjustments), and some can't"; and that Mrs. String- fellow was one of those who could not. Vernon H. Horn, another machinist, testified that it was the practice of opera- tors to report difficulties with their machines directly to him and that lie would then make any necessary repairs. He stated that he fixed Mrs. Stringfellow's machine twice at her request. He denied that he had ever been given "any special instructions" with respect to any employee's machine. Mrs. Stringfellow testified to difficulties she had with her machine. Some of the machinists, she asserted, would respond to her request for help, while others would not do so. "Well, they would always have somewhere else to go," she testified, "but never came around. Several of them wouldn't come around. Some would." She stated that she "couldn't hardly ever get" Thatch (a supervisory machinist) and "very seldom" Simpson (another machinist) ; that she "didn't call on" Horn much "because he was one of their newer machinists" ; and that Hindman would come oftener than the rest, but that he, too, would not come "sometimes." According to the witness, Mrs. Borden would "occasionally" secure a machinist for her, but that it was "mighty seldom." Mrs. Stringfellow, stating that she was inexperienced "and didn't know how to regulate" the machine, asserted that from time to time she would ask other employees to assist her with the necessary adjustments. She also testified that when she "couldn't get the supervisor" to provide her with mechanical assistance, she complained to De Stefano, and "sometimes he would bawl me out about it, and say it was me, it wasn't the machine. Sometimes he would go get the machinist and bring them back there and make then fix it." Mrs. Stringfellow also testified that she spoke to Steffensen, but it does not appear that she told him about her difficulties in securing mechanical assistance. "I mentioned to hint about my breaking thread," she stated, "but mostly what I mentioned to Mr. Steffensen was about the way I was treated when I was trying to make production and asked him to cooperate with me and helping me so I could make production." She asserted that after she spoke to Steffensen, "it seemed like I got a little better service." The question involved is not whether Mrs. Stringfellow was overly anxious about her machine or magnified12 its defects. The issue is whether De Stefano, 12 The only evidence that Mrs. Stringfellow magnified her machine difficulties consists of Mrs. Borden's statement that the former (lid not have as much trouble "as she thought she (lid." The Examiner credits Dirs. Borden, but from the context of the evidence as a whole and his observation of Mrs. Stringfellow, he believes that she asserted her requests for repairs in good faith. Moreover, she was inexperienced, understandably concerned about her production , and it appears from Hindman 's testimony that it was not unusual for employees like her , who lacked mechanical capacity to seek assistance in making minor repairs or adjustments. The Respondent presented no evidence to show that Mrs. String- fellow magnified her machine difficulties or that that was the reason why she did not receive assistance under the same conditions as other employees. S44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a responsible agent of the Respondent, embarked on a program to create difficult working conditions for Mrs. Stringfellow because of her union affiliations and activities. That he did- so appears in the uncontradicted testimony of Mrs. Borden and Hindman, which the Examiner credits. The record as a whole reflects hos- tility by De Stefano toward Mrs. Stringfellow because of her union activities. He made her the special object of surveillance, even to the extent of having her followed to the rest room over an extended period, interrogated her about her union membership and sympathies, suggested that she quit, and finally, as the date of the scheduled election grew near, admitted mistreating her, and solicited 'per assistance against the Union, promising her continued employment. It is true that she (lid receive some service from machinists, but she was unable to get it as freely as other employees. Her testimony suggests that conditions improved for her after she complained to Steffensen, but that does not nullify the fact that De Stefano, a responsible supervisory employee, had previously engaged in coercive interference with her work. The evidence as a whole establishes, and the Examiner so finds, that because of Mrs. Stringfellow's activities in the Union, De Stefano discriminated in the mechanical facilities afforded to her and estab- lished hampering conditions for the performance of her work, thereby violating Section S (a) (1). (6) The wage increase On July 12, 1948, the Respondent granted a 10 percent wage increase to all of its employees at the Talladega plant. . The General Counsel contends that it was designed to discourage membership in the Union. For the reasons set out below, a determination of that question is unnecessary. The charge was filed on January 19, 1949, more than 6 months after the increase became effective, and the question arises whether the statute of limita- tions contained in Section 10 (b) bars the issuance of a complaint based on the rise in wages. It may be asserted that where a wage increase violates Section 8 (a) (1), it constitutes a continuing violation because it is reflected in weekly or other recurring salary payments, periodically reminding employees that they do not need the assistance of a union or of collective bargaining, and thus consti- tutes a continuing interference with the employees' right of self-organization. The Examiner does not agree with that view. If tenable with respect to wage increase, the theory should apply equally to a discriminatory discharge, for an unlawful dismissal affects not only the employee involved, but is often a continu- ing discouragement of union activities by other employees. Yet, there is no doubt that the 6-month limitation for the filing and service of a charge based upon a discriminatory discharge begins to run from the date of the discharge. In the opinion of the Examiner, the averments of the complaint pertaining to the wage increase are barred because the charge was filed more than six months after the increase became effective. The Examiner will recommend that such allegations be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. GOODALL COMPANY V. THE REMEDY 845 In the opinion of the Examiner, the evidence reveals an underlying opposition by the Respondent to the policies and objectives of the Act. The undersigned finds that the unfair labor practices disclosed by the record were extensive and prolonged and are closely related to other unfair labor practices proscribed by the statute, and that a danger of their commission in the future is to be antici- pated from the conduct of the Respondent in the past. In order to make effective the interdependent guarantees of Section 7, it is necessary, therefore, that the undersigned recommend to the Board that its order be made coextensive with the threat of future disregard by the Respondent of its statutory obligations. Accord- ingly, the Examiner will recommend that the Respondent be directed to cease and desist from in any manner interfering with, restraining, and coercing its employees in the exercise by them of the rights guaranteed by Section 7. Having found that the Respondent has engaged in unfair labor practices viola- tive of Sections S (a) (1) of the Act, the Examiner will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the allegations of the complaint pertaining to the granting of a wage increase to the employees at the Talladega plant are barred by the 6-month limitation prescribed by Section 10 (b) for the filing and service of charges, the Examiner will recommend that such allegations be dismissed. Upon the basis of the foregoing findings of fact and of the entire record in this proceeding, the undersigned makes the following : CONCLUSIONS OF LAW 1. United Garment Workers, A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its said 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). 3. The aforesaid labor practices are unfair labor practices affecting commerce, within the meaning of Sections 2 (6) and (7) of the Act. 4. The averments of the complaint pertaining to the granting of a wage increase to the employees at the Talladega plant are barred because the charge in this proceeding was filed and served more than 6 months after such wage increase was granted. RECOMMENDATIONS On the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, the Examiner recommends that Goodall Company, of Talladega , Alabama, its officers, agents, successors , and assigns , shall : 1. Cease and desist from in any manner interfering with , retraining , or coercing its employees in the exercise of their right of self-organization , to form, join, or assist labor organizations, to join or assist United Garment Workers , A. F. L., 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 , and to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as authorized in Section (a) (3) of the Act, as guaranteed in Section 7 thereof. 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Examiner finds will effec- tuate the policies of the Act: (a) Post at its plant in Talladega, Alabama, copies of the notice attached to this Intermediate Report marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being signed by the Respondent's representative, be posted by the Respondent, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material; (b) 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. The Examiner recommends that so much of the complaint as alleges that the Respondent committed an unfair labor practice by granting its employees a wage increase be dismissed. . It is further recommended that unless on or before twenty (20) days from the receipt of this Intermediate Report, the Respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty (20) 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, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report and Recom- mended 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 desig- nate 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.S5. As further 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. 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 27th day of July 1949. HERMAN MARX, Trial Examiner. GOODALL COMPANY APPENDIX A NOTICE TO ALL EMPLOYEES 847 Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT in any manner interfere with, restrain , or coerce our em- ployees in the exercise of their right to self-organization , to join, or assist UNITED GARMENT WORKERS, A . F. L., to bargain collectively through repre- sentatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual activities for the purpose of collective bargaining or other mutual aid or protection , and.to refrain from any or all of such activities except to the extent that such right mar be affected by an agreement requiring membership in a labor organization as condition of employment as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof. GOODALL COMPANY, ----------------------------- Employer. Dated------------------------ By---------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof , and must not be altered , defaced, or covered by any other material.