International Shoe Co.

In the Matter Of INTERNATIONAL SHOE CO. (SEARCY, ARKANSAS, PLANT) and UNITED SHOE WORKERS OF AMERICA, CIO Case No. 32-CA-41.Decided December 9, 1949 DECISION AND ORDER On June 21, 1949, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in one of the unfair labor practices alleged in the complaint. Thereafter the Respondent filed exceptions to the Intermediate Report, with a supporting brief. The Respondent has requested oral argument. This request is denied inasmuch as the record and brief, in our opinion, adequately present the issues and the positions of the parties. The Board 1 has reviewed the rulings of the Trial Examiner and finds no prejudicial error therein. The rulings are hereby affirmed.2 The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications .3 i Pursuant to the provisions of Section 3 (b) of the Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three- member panel [Members Houston , Reynolds, and Murdock]. 2 We think the Trial Examiner properly rejected Respondent 's Exhibits 7, 8, and 9, in view of the purpose for which they were offered . In effect Respondent offered them to show that there was no question in the minds of its employees of their right to organize without fear that the plant would close. These union circulars stated, among other things, that the voters need not worry about the plant shutting down if the Union won , as such closing had not resulted at other plants of the Respondent when they became organized. The circulars were in no way ratified or adopted by the Respondent and appear to show, if anything, that a question had arisen in the minds of the employees which the Union found it expedient to answer. 3 In line 6 on p. 491 of the Intermediate Report, the April 27 election was inadvertently referred to as occurring April "29". We note also that in line 37 on V. 493, Benz's reply to Waddell 's answer that he favored the union has been omitted. Benz, according to Waddell, replied that he didn't "think that was the way to feel about it." In the same paragraph we note that it was Foreman Gilbert Hapke, ' the bottoming foreman, rather than Benz who said Waddell would be sorry if he voted for the union. 87 NLRB No. 64. 479 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. The Respondent contends that there was no duty upon it to bar- gain because the Regional Director improperly set aside the April 27, 1948, election, and the July 1, 1948, election was invalid both because it should not have supplanted the earlier election and because it was based on a pay roll not agreed upon by the parties. This Board has recently considered in some detail, in McMullen Leavens 00.,4 the effect of consent election agreements such as the one in this proceeding,5 which give the Regional Director final authority and contemplate a certification of the bargaining representative by him. As we pointed out in the McMullen case, it is implicit in such :agreements that the parties will forego usual post-election procedure 6 and substitute the Regional Director's determination as final. We do _not disturb his determination unless the ruling is arbitrary and capri- cious. On the facts here presented we find, in accord with the Trial Examiner, that the Field Examiner's report on the April 27 election was properly made in the customary manner, and that the Regional Director was entitled to rely upon it in reaching his conclusion holding the first election invalid and directing a second election. Hence we find that the Regional Director did not act arbitrarily or capriciously.' We likewise find that it was within the discretion of the Regional Director to select a new pay-roll date for the second election, and that the selection of a current pay roll was consistent with Board practice and custom in directed election.' We hold, in accord with the Trial Examiner, that the second or July 1,1948, election, was a valid election, and that the Respondent violated Section 8 (a) (5) of the Act by refusing on and after August 5, 1948, when the results of the July 1 election were certified, to bargain collec- tively with the Union as the exclusive representative of its employees in the appropriate unit; and has thereby violated Section 8 (a) (1) of the Act by interfering with, coercing, and restraining its employees in the exercise of their rights guaranteed in Section 7 of the Act. 4 83 NLRB 948. 5 Pursuant to Sec. 203.54 ( a) of the Board 's Rules and Regulations. I It should be noted that the usual post-election procedure does not necessarily include a hearing on exceptions to the Regional Director's Report on Objections , as contended by the Respondent. Sec. 203 .61 (b) of the Board 's Rules and Regulations provides that the Board "may decide the matter forthwith upon the record , or may make other disposition of the case." Continuing, it states that the Board "may" direct a hearing if the exceptions appear to raise substantial and material issues. In this case , the Respondent having given the Regional Director authority to make a final decision on any question concerning the election, may not now be heard to claim that it was prejudiced and thereby deprived of due process because the Regional Director determined to hold a second election rather than a hearing concerning the conduct of the first election. 7 The Board's Statements of Procedure , Sec. 202 .18 (a) (4 ), specifically state that a "regional director may void the election results and conduct a new election" if, after an investigation , the objections are found to have merit. s McMullen Leavens Co., footnote 4, above. INTERNATIONAL SHOE CO. 481 2. In accord with the Trial Examiner 0 We find that the Respondent likewise violated Section 8 (a) (1) of the Act by interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act, in that supervisors 10 and repre- sentatives of the Respondent (1) questioned Jim Purcell, Rex Smithy, Calvin Yarbrough, Charles F. Webb, John Dee Waddell, and John 0. Bailey concerning their disposition or attitude toward unions or their voting intentions,11 and (2) stated that the plant could or would close, and that the business would be turned over to the Union if it were designated by the employees, the latter statement constituting a threat to abandon the operation.12 3. Turning to the 8 (a) (3) charges, we find, in accord with the Trial Examiner, that the record sustains the discrimination charge based on the Respondent's refusal to reemploy Agnes Hoofman, but that it does not sustain the charge based on the discrimination against Doris Selfs Wells concerning her seniority. In its brief the Respond- ent contends that the Trial Examiner showed bias because he dis- credited the testimony of Personnel Director Sisson and Foreman Walthers in sustaining the Hoofman charge but credited testimony of the same witnesses in recommending a dismissal of the Wells charge. We think no exception can be taken to the Trial Examiner's conclu- sions inasmuch as the Intermediate Report shows "thoughtful and discriminating evaluation" of the testimony 13 We believe that it 9In amplification of the Trial Examiner's statement at the bottom of page 494 of the Intermediate Report that it was "not in the least astonishing" that certain of Respondent's supervisory employees overstepped the line of activity permissible tinder Section 8 (c) of the amended Act, we note that Respondent's Assistant Industrial Relations Director Brown testified that the Searcy supervisory employees were given no instructions not to inquire into union affiliations or sympathies. In effect the instructions seem to have been limited to warning supervisors against making promises or threats. We also note from the same testimony that no notices were posted by the Respondent informing employees that foremen or other company representatives had no authority to coerce or threaten them. "The Trial Examiner considered the alleged supervisory status of Kenneth (Pete) Thatcher but did not make a specific finding that Thatcher was a supervisor when lie made the statements set forth in the Intermediate Report. We so find. 11 Such questioning is coercive per se. Its effectiveness need not be shown, as con- tended by the Respondent. Standard-Coosa-Thatcher Co., 85 NLRB 1358 ; Minnesota Mining & Mfg. Co., 81 NLRB 557 ; Waynline, Inc., 81 NLRB 51.1. Compare Opelike Textile Mills, Inc., 81 NLRB 594. ",Alliance Rubber Co., 76 NLRB 514, and cases there cited. For a similar decision under the amended Act see Morristown Knitting Mills, 80 NLRB 731. 'IN. L. R. B. v. Pittsburgh S. S. Co., 337 U. S. 656. In addition we note no real incon- sistency in the Trial Examiner's evaluation of the testimony of these two witnesses. As to Sisson, the printed record bears out Sisson's nervous and impatient temperament which the Trial Examiner observed at the hearing. She testified with regard to Wells that "Doris" was only "a little country girl" and that she (Sisson) had explained the new application which automatically created a current seniority date "as well as I could explain anything to Doris." That Sisson was unable successfully to explain to Wells just what her seniority would be after her 10-day absence, seems entirely consistent with Sissons revealing to Hoofman, in exasperation, the reason behind the Respondent's refusal to reemploy Hoofman. As to Walthers, his testimony with regard to Wells' 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has been established by a preponderance of the credible evidence that Hoofman was refused reemployment because of her advocacy of the Union, and that by such refusal the Respondent discriminated in regard to the hire or tenure of employment of Hoofman in violation of Section 8 (a) (3) of the Act and thereby violated Section 8 (a) (1) of the Act by interfering with, coercing, and restraining its employees in the exercise of rights guaranteed them in Section 7 of the Act. We shall dismiss the 8 (a) (3) allegations of the complaint with respect to Wells. The Remedy We have found that the Respondent has refused to bargain in violation of Section 8 (a) (5) and 8 (a) (1) of the amended Act and has engaged in other acts in violation of Section 8 (a) (1) and 8 (a) (3) of the amended Act. We shall order the Respondent to cease and desist from engaging in such conduct. In our opinion the Respondent's conduct discloses a fixed purpose to defeat self=organization and its objectives. Because of the Respondent's unlawful conduct and its underlying purpose we are convinced that the unfair labor practices found are persuasively related to the other unfair labor practices proscribed by the Act and that the danger of their commission in the future is to be anticipated from the course of the Respondent's con- duct in the past. The preventive purpose of the Act will be thwarted unless our Order is coextensive with the threat. In order, therefore, to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and to minimize strife Which burdens and obstructs commerce, and thus to effectuate the policies of the amended Act, we.will order that the Respondent cease and desist from infringing in any manner upon the rights guaranteed by Section 7 of the amended Act. ORDER Upon the basis of the above findings of fact and the entire record in the case, and pursuant to Section 10 (c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby seniority is not the basis of the 8 (a) (3) finding and was limited to statements that' he had turned in an exit report on her when he found on the third day of her absence that she had left town , and that she had not complained to him about her seniority. We agree with Walthers ' testimony in denying , knowledge of IIoofman's union activity and explaining why he put "troublesome" on her exit report a month after letting her go with the implication that she would be rehired , does not merit credence. He admitted that he Was "apprised" that many of the employees were active in the union and that lie had discussed the subject with other supervisors . That part of his testimony was definitely unreliable in which he twice denied that he had made any statement that the plant would close if the Union organized it and then recalled , on cross-examination, that he had said that if anyone shut the doors of the plant, it would be the Union. INTERNATIONAL SHOE CO. 483 orders that the Respondent, the International Shoe Company, Searcy, Arkansas, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with United Shoe Workers of America, CIO, as the exclusive representative of all production and maintenance employees at the Searcy, Arkansas, plant except for office and clerical employees, watchmen, guards, professional employees, and supervisors as defined in the Act; (b) Discouraging membership in any labor organization by refus- ing to reinstate employees because of their membership in or activity on behalf of such organization or in any other manner discriminating in regard to their hire or tenure of employment or any term or condi- tion of employment; (c) Interrogating employees in regard to their membership in, in- terest in, identification with, or activity on behalf of, United Shoe Workers of America, CIO, or any other labor organization of its em- ployees, or in any other mamier interfering with, restraining, or coerc- ing employees in the exercise of their right to self-organization, to form labor organizations, to join or assist such organizations, to bar- gain 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, 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 condi- tion of employment as authorized in Section 8 (a) (3) of the Act, all as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Agnes Hoofman immediate employment at work com- parable to that which she performed just before her lay-off on or about March 1, 1948, and make her whole for any loss of pay she may have sus- tained by the payment to her of a sum of money equal to that she would have earned as wages from April 19, 1948, to date of the offer of em- ployment, less her net earnings during said period ; (b) Upon request, bargain collectively with United Shoe Workers of America, CIO, as the exclusive representative of all production and maintenance employees at the Searcy, Arkansas, plant excluding office and clerical employees, watchmen, guards, professional employees, and supervisors as defined in the Act; (c) Post at its plant in Searcy, Arkansas, copies of the notice at- tached hereto and marked Appendix A.14 Copies of said notice, to be 14 In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words: "A DECISION AND ORDER;" the words : "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING" 877359-50-vol. 87-32 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Fifteenth Region (New Orleans, Louisiana) in writing within ten (10) days from the date of this order what steps Respondent has taken to comply herewith. IT Is FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent has discriminated against Doris Selfs Wells concerning her seniority in violation of Section 8 (a) (3) of the Act, 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 by means of interrogation, threats to move or close the plant, or in any other manner, interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to join or assist UNITED SHOE WORKERS OF AMERICA, CIO, or any other labor organiza- tion, 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, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring mein- bership, in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL bargain collectively upon request with the above- named union as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees except for office and clerical employees, watchmen, guards, professional em- ployees, and supervisors as defined in the National Labor Relations Act. INTERNATIONAL SHOE CO. 485 WE WILL offer immediate employment to Agnes Hoofman and make her whole for any loss of pay she may have suffered as a result of the discrimination against her. All our employees are free to become or remain members of this Union, or any other labor organization, or to refrain from so doing, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the amended Act. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. INTERNATIONAL SHOE COMPANY. Employer. By ------------------------------------ (Representative ) ( Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof and must not be altered, defaced, or covered by other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER C. Paul Barker, Esq., and R. Boyd Stark, Esq., of New Orleans, La., for the General Counsel. Richard O. Burner, Esq., and A. G. Eberle, Esq., of St. Louis, DIo., for Respond- ent. Jerome A. Cooper, Esq., of Birmingham, Ala., and Mr. Tone Anderson, of Searcy, Ark., for the Union. STATEMENT OF THE CASE Upon a charge and an amended charge duly filed by United Shoe Workers of America, CIO, herein called the Union, the General Counsel for the National Labor Relations Board, herein called respectively the General Counsel' and the Board, by the Regional Director for the Fifteenth Region (New Orleans, Louisiana), issued a complaint dated January 24, 1949, against international Shoe Company (Searcy, Arkansas, plant), herein called 'Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act as amended, 61 Stat. 136, herein called the Act. Copies of the charge, the amended charge, the com- plaint, and notice of hearing were duly served upon Respondent and the Union. With respect to unfair labor practices, the complaint alleged in substance that: (1) since on or about August 5, 1948, to the date of issuance of the com- plaint, Respondent has continuously refused to recognize and bargain with the Union although since on or about July 1, 1948, the Union has been, and now is, the majority representative of Respondent's employees in an appropriate unit; (2) on or about April 13, 1948, Respondent revoked seniority rights of Doris Selfs wells 2 and on April 19, 1948, refused to reinstate or reemploy Agnes Hoof- i This designation is also used in. reference to the attorneys appearing in behalf of the General Counsel in this proceeding. 2 Named in the complaint as Doris Selfs. 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD man in the case of each because of their membership in and activity on behalf of the Union; and (3) since on or about February 19, 1948, Respondent in- terrogated employees as to membership in the Union, exacted promises of em, ployees that they would not become members of or vote for the Union, promised benefits to employees who voted against the Union, threatened to discriminate against employees who engaged in union activity and threatened in the event employees selected the Union as bargaining representative, to move or close its plant. By such conduct, the complaint alleges, Respondent violated Section 8 (a) (1), (3), and (5) of the Act. Respondent's answer dated February 1, 1949, admits the principal jurisdic- tional allegations in the complaint, denies that either Wells or Hoofman were subjects of unlawful discrimination, denies the assertions as to interrogation or promises of benefit or threats of retaliation concerning or directed toward employees' protected activity under the Act, admits that it has refused to recognize or bargain with the Union, asserting, affirmatively, that no enforce- able obligation to do so exists in that the Union has never been selected or desig- nated by a majority of Respondent's employees in accordance with the terms of the Act or in consonance with the Board's Rules and Regulations. Pursuant' to notice a hearing was held before the undersigned Trial Ex- aminer, duly designated by the Chief Trial Examiner, at Searcy, Arkansas, on February 8, 9, 10, 11, and 28, 1949. All parties were represented, participated in the hearing, and were afforded opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues. Subsequent to the close of the hearing briefs were filed by the General Counsel and by Respondent. Upon the entire record in the case and from my observation of the witnesses, I make the following : FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT International Shoe Company, a Delaware corporation, having its principal offices in St. Louis, Missouri, operates, among others, a plant at Searcy, Arkansas, for the manufacture of footwear. With respect to the Searcy plant, Respondent in 1948 purchased raw materials and supplies having a value in excess of $500,000, of which more than 25 percent was purchased without the State of Arkansas. In the same year, Respondent manufactured and sold finished products valued in excess of $500,000, of which more than 25 percent was sold and shipped to points outside the State of Arkansas. II. THE ORGANIZATION INVOLVED United Shoe Workers of America is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain 1. The appropriate unit The complaint alleges, Respondent's answer admits, the evidence indicates, and I find that all maintenance and production employees of Respondent at its INTERNATIONAL SHOE CO. 487 Searcy plant, except for office and clerical employees, watchmen, guards, pro- fessional employees and supervisors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 2. The Union's majority in the unit On April 19, 1948, agreement for consent election,' earlier executed by the Union, Respondent, and an agent of the-Board, was approved by Regional Director John F. LeBus. The agreement provided for the conduct of an election under the supervision of the Regional Director among the employees in the appropri- ate unit to determine whether they wished to be represented by the Union for pur- poses of collective bargaining. The period ending April 11 was selected for de- termining eligibility. The election was conducted on April 27 and resulted in the rejection of the Union by a vote of 134 to 92. Challenges were insufficient to affect the result. Thereafter, the Union filed timely objections to the election, alleging interference on the part of Respondent prior to the election of such character as to render the result suspect and to require that the election be set aside. LeBus assigned the case to his agent, Anthony Sabella, a field examiner, for investigation and report. Under date of May 26, Sabella reported to LeBus, reciting in some detail the evidence of Respondent's interference upon which he based his recommendation that the election be set aside. On June 8, by formal report, served on the parties to the agreement, LeBus set aside the election, giv- ing as reasons that the investigation disclosed several of the supervisory em- ployees to have made statements to employees prior to the election which inter- fered with the exercise of a free choice of a bargaining representative. Respondent immediately excepted to the report in an appeal to the Board, con- tending: (1) that the statements of supervisors to which the report adverted, were not in fact made; (2) that it had no opportunity to examine the witnesses upon whose statements LeBus appeared to have relied and that no forum was provided for it to meet or explain the allegations contained in the statements ; (3) that LeBus disregarded competent and truthful information given to him by Respondent's agents ; (4) that LeBus failed in his report to set forth the facts upon which his conclusions were based thus depriving Respondent of due process ; and (5) that LeBus denied to Respondent rights secured to it by Section 8 (c) of the Act. The exceptions continued with an affirmative assertion that the conduct of Respondent's agents prior to the election was unexceptionable, a prayer that its exceptions be sustained, and a request that a hearing be held upon all the issues raised. The Board refused to consider the exceptions and denied Respondent's motion for reconsideration. Simultaneously, Respondent and LeBus entered into a spirited exchange of letters in which Respondent charged, and LeBus denied, that the Board agent charged with the duty of investigating the objections did so with a reckless disregard of the facts, interviewed only union members, designedly minimized or discredited explanations or denials offered by Respondent's supervisors, and that his, LeBus', action in setting aside the election was arbitrary or capricious. A new election was held on July 1, using the pay-roll date of June 27, to deter- mine eligibility. Respondent's challenges to ballots cast by persons whose names did not appear on the payroll of April 11 (the eligibility date for the first elec- 8 Apparently a standard form bearing identification NLRB 651 ( 12-30-47). 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion) were overruled by LeBus. Upon a final tally reflecting 169 votes for the Union, 119 against, and 2 unopened challenged ballots, LeBus, on July 28, issued a certificate to that effect finding the Union to be the exclusive representative of all the employees in the appropriate unit for the purposes of collective bargaining. The validity of the certification The agreement for consent election provides, inter alia: Said election shall be held in accordance with the National Labor Rela. tions Act, the Board's Rules and Regulations, and the customary procedures and policies of the Board; provided that the determination of the Regional Director shall be final and binding upon any question, including questions as to eligibility of voters, raised by any party heret' relating in any manner to the election . . . The Regional Director shall . investigate the matters contained in the ob- jections and issue a report thereon . If objections are sustained , the Regional Director may, in his report , include an order voiding the results of the elec- tion and, in that event, shall be empowered to conduct a new election under the terms and provisions of this agreement at a date, time and place to be determined by him .. . Clearly, the agreement empowered him, after investigation , to set aside the result of the April 27 election and to order the one for July 1. It is not within the purview of my authority here to substitute my judgment for that of LeBus, to evaluate the result of the investigation and independentlyto conclude that his action was or was not that which I would have taken . By the terms of that_ agreement , such discretion was lodged in LeBus. None other was empowered to exercise it.' There is , however , matter for my consideration . Wide as was the field for independent and final judgment accorded to LeBus , General Counsel readily admits that his action in pursuance to the grant must comport generally to such standards of sound administrative practice and unbiased judgment as to withstand such a charge of arbitrary or capricious conduct as Respondent levels. It was Incumbent upon LeBus in discharging his function under the agreement, to hold elections in accordance with the Act, the Board's Rules and Regulations, and the customary procedures and policies of the Board. I am convinced that he did so as to the April 27 election and, indeed , no contention to the contrary has been advanced. Leaving aside , for the moment, the charge of arbitrary or capricious conduct, I conclude that there was nothing attending the election of July 1, which clearly would appear to offend the letter or spirit of these strictures. He had found the April 27 election to be invalid and thus was not deterred by any provision of the Act in scheduling another for July 1. The Board's Rules and Regulations do provide for such another election in the event the earlier one has been set aside . It is the customary procedure and policy of the Board to set aside an election upon a determination that the free choice of employees has suffered interference. There remains for consideration only the assertion that LeBus ' action was arbitrary or capricious . Initially, it should be realized that the burden of supporting this assertion is that of Respondent.. There is no requirement that 4 Capitol Greyhound Lines, 49 NLRB 156, 159, enforced 140 F. 2d 754, 758, 759. INTERNATIONAL SHOE CO. 489 the action of an administrative officer, exercising authority purportedly within the limits of a grant, be shown affirmatively to be free of that taint c Following receipt of the Union's objections, Sabella went to Searcy to investi- gate them. On May 26, he reported to LeBus in part as follows : The investigation reveals substantial evidence of illegal conduct and is presented in the form to show its source. Foreman Ralph Miller Kenneth Johnson and Harold D. English, employees, jointly aver that Miller either said the plant "would" or "could close if the union came in," that our privileges "would" or "could be cut out and that the Company would be a lot stricter to us." Jim Purcell, Rex Smithy, Billy Paul aver that a.week before the election, Miller told them "that the plant would shut down or move if the union came in." Foreman Paul Bentz Cecil Cobb avers that up to a week or two before the election, Bentz told a group of employees including him that "we would be sorry if we voted for the union because the plant would close down and we would lose our jobs." Bobby McGilliam told the undersigned that Bentz and Thatcher told him to vote against the union. Assistant Foreman Kenneth Thatcher Thatcher is assistant to Bentz and is commonly called Pete. Rex Smithy avers that he was questioned by him as to how he was going to vote and later told by him that "if the union got in they will probably close the plant down, people like you will lose your job." In somewhat similar vein is the remark ascribed to Thatcher by Billy Paul, who avers that the former told a group of workers in the toilet "when the union comes in here, it won't be me who will lose his job. They'll send back to St. Louis and send me out again. You'll be the one who will lose your job." Billy J. Duncan also heard Thatcher say before the election "if the union got in the factory it would probably close down." Instructor Ometha McConnell McConnell told Doris Selfs in the fitting department , "don't vote for the union because it is not any good . If you vote for it the plant will close down and you will lose your job." 5 Everett v. Brown, 198 N. Y. Supp. 462 , wherein the Court stated : If the arbitrators keep within their jurisdiction their award will not be set aside because they may have a erred in judgment either upon the law or the facts. When the evidence is closed the arbitrators are the sole judges of its weight and what decision should be made, and are free to adopt such a course as they deem best adapted to bring about a just decision in the matters in controversy. If their decision is against the weight of evidence, or if perchance there is no evidence in the record to support it , it may still be founded upon principles of equity and good conscience and the court is powerless to review the action of the arbitrators in a motion to confirm their award. . . . The partiality of an arbitrator must be clearly shown before the court will set aside his award for that reason . The burden of showing partiality rests on the party making the charge. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Personnel Director Sisson Doris Selfs avers that she was rehired by Mrs. Sisson, and told, "I will rehire you if you promise not to vote for the union. Your seniority will not be taken away if you don't vote for the union." Miss Selfs duly promised and was rehired, but her seniority was taken away when it was discovered that she was attending union meetings. Agnes Hoofman, an employee temporarily laid off, went to see Mrs. Sisson about a job, on or about April 19th. She was told that she was working in favor of the union and then "you will never work in the Searcy plant again." There is other evidence in the files which indicate that Mrs. Sisson was particularly active in manifesting her opposition to a union, both in her questioning of applicants for employment and in her relations to employees. There is also some evidence in the files to indicate that some employees were called into plant superintendent Hovey's office for the ostensible pur- pose of presenting the Company's side of the story. Chas. Meyers, industrial relations supervisor for the Arkansas plants was present at some of these sessions. There is evidence that in presenting the Company's side much care was taken to go into detail into a comparison of conditions in the plant with actual conditions in the organized plant, for the purpose of showing that a union was unnecessary for the achievement of these benefits. It is unclear whether they were held out as a promise of benefits in consideration of a vote against the union aspect. The undersigned has considered the denials of unlawful activity of the supervisory employees interviewed. He has been particularly impressed by the lack of credibility of Foreman Bentz and Asst. Foreman Thatcher who impressed him as shifty, evasive, and unreliable. On the basis of entire investigation the undersigned recommends that the election be set aside on the grounds that the statements, utterances and opinions expressed by some of the supervisory employees were not privileged as free speech and were calculated to and did interfere with the free choice of the employees at the polls. Attached to the report were reports of interviews with the plant superin- tendent, two foremen, an assistant foreman, an instructor, and the industrial relations supervisor. These interviews reflected the denials of supervisors that they had uttered threats to employees in connection with the Union and admissions that they had told employees that they would benefit as much with- out as with a Union. Sabella's report concluded that the statements given in support of the Union's objections merited belief ; that the Compnay's denials did not. Respondent's exceptions to LeBus' Report on Objections were answered by LeBus on June 28. In this answer LeBus disclosed substantially the evidence garnered by Sabella upon which LeBus ordered the April election set aside. Respondent's assertion that Sabella evidenced bias and prejudice against Respondent by interviewing, for the most part, witnesses known to be favorable to the Union is without merit. It is the duty of an objecting party to point to the sources of evidence upon which it relies and in most instances these sources will naturally be in some manner identified in interest with the ob- jector e Further, Sabella did interview representatives of Respondent and, 0 See Matter of Lunder Shoe Corporation, 79 NLRB 1406. INTERNATIONAL SHOE CO. 491 although he did not give credit to much of what they told him, included the substance of these interviews in his report. LeBus was entitled, as he did, to rely upon Sabella's report' Believing, as reasonably he may have, that employees were threatened with the closing of the plant should the Union win the election, his action in setting aside the result of the April 29 election was neither arbitrary nor capricious and was within the authority granted him by the consent election agreement. I so find.8 It follows that the July 1 election was a valid election. The contention of invalidity advanced by Respondent based upon the use of a pay-roll period for purposes of eligibility differing from the one used in the April election lacks merit. In that agreement the parties were, in effect, designating the use of a current pay roll. It is completely consistent with the spirit and purpose of the agreement, as well as with Board practice and custom, to use a current pay-roll date to determine eligibility in the second election. I find that on July 1, 1948, the Union was, and at all times since has been, the duly designated bargaining representative of the employees in the aforesaid appropriate unit, and that pursuant to the provisions of Section 9 (a) of the Act, the Union was on July 1, 1948, and at all times since has been, and now is, the exclusive representative of all employees in the aforesaid unit for the pur- poses of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. The complaint alleges, Respondent's answer admits, and I find that on 'or about August 5, 1948, and at all times since, Respondent refused and now refuses to bargain with the Union as exclusive bargaining representative of the employees in the appropriate unit. Having found its reason for such refusal, viz, the asserted invalidity of the July 1 election, to lack merit, I find that by such refusal Respondent has violated Section 8 (a) (5) of the Act and has thereby interfered with, coerced, and restrained employees in the exercise of rights guaranteed in Section 7 of the Act in violation of Section 8 (a) (1) of the Act. B. Interference, restraint, and coercion 1. Conduct before February 19, 1948 The complaint alleges that from on or about February 19, 1948, Respondent violated Section 8 (a) (1) of the Act upon a number of occasions and by various acts and words. :Many of the witnesses for the General Counsel testi- fied to similar occurrences happening prior to the February date. Such testi- mony was offered and has been considered by me only as background. No finding of unfair labor practice will be based upon acts or conduct occurring more than 6 months before the filing of the charge on August 19, 1948. Alice Fay Nichols testified credibly that she was employed July 14, 1947, and when interviewed upon that occasion was asked by Plant Superintendent C. J. Hovey how she felt about the Union and was told by Hovey that a union would not help working conditions. Robert Watkins testified credibly that upon the occasion of his employment on December 7, 1947, Foreman Ralph Diiller inquired if he had ever belonged to a union and observed that a union would do no good. 7 There is no merit in Respondent's contention that it was entitled to a hearing on the objections. See Matter of Miehle Printing Press t Manufacturing Co., 58 NLRB 1134, 1135, 1136. .8 See Matter of McMullen Leaves Company, 83 NLRB 948. 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Billy Junior Duncan testified credibly that upon the occasion of his employ- ment on September 29, 1947, Personnel Director Pearl Sisson told him not to pay attention to union organizers, that they were only after his money. O. C. Horton testified credibly that upon the occasion of his employment on October 6, 1947, Sisson asked him if he were a member of a union, remarked that a union was not wanted in the plant, observed that a union would cause nothing but disturbance and expressed the opinion that none of the employees was capable of performing a steward's duties. Burnadean Watkins testified credibly that upon the occasion of her employ- ment on August 11, 1947, Superintendent Hovey asked her what she thought about a union and remarked that none was needed at the plant. Rex Smithy testified credibly that upon the occasion of his employment on November 18, 1947, Mrs. Sisson remarked that if a union "came in" Smithy would probably have to go back to the farm.' On the same date, Foreman Miller asked Smithy how he felt about a union and stated that the plant could not operate with a union. John Dee Waddell testified credibly that upon the occasion of his employment on November 6, 1947, Foreman Paul Benz inquired if he had ever belonged to a union and asked how he "felt" about it. Benz went on to say that a union organizer would probably appear and told Waddell that Respondent was paying union wages and that a union would secure no advantage to the workers. On the same occasion Superintendent Hovey inquired, "You have belonged to the Union?" and when Waddell admitted that he had, remarked that there was no union in the plant and, that Respondent didn't want one. Hovey admitted questioning Waddell concerning unions and that he had done so with other applicants. Foreman Miller made a general denial of such interrogation but then admitted inquiring of Smithy how he "felt" about a union. Miller denied saying that the plant could not operate with a union. Mrs. Sisson denied that she inquired of applicants concerning their disposition toward unions but explained that applicants sometimes inquired of her if the plant was organized. On such occasions, Sisson agreed, unions were discussed. She denied that an applicant's expressions concerning a union affected his opportunity for employment and denied telling Duncan to avoid organizers or suggesting that Smithy might have to go back to the farm, and could not recall asking Horton if he were a union member. Foreman Benz was not called as a witness. I do not credit the denials of Miller and Sisson. The question of their credi- bility will be discussed later in this report. I find that prior to February 19, 1948, Respondent's supervisors questioned applicants concerning their disposition toward unions and, upon the occasions set forth above, stated that union organization would gain them no advantage and might be followed by loss of employment. 2. Conduct following February 19, 1948 Kenneth D. Johnson, Billy Ray Paul, and Jim Purcell testified credibly that in mid-March 1948,10 Foreman Miller said to them that a union would gain them no advantage and that the plant could close down if the union came in. Paul testified, further that in mid-April 1948, Assistant Foreman Pete Thatcher re- 0 Whence he came to the plant. 10 Johnson placed this occurrence in late February . Purcell was not hired , however, until March 8 and I find his recollection that it happened a week or two after that date to be more accurate. INTERNATIONAL SHOE co. 493 marked to Paul that the union would not help the employees ; that if it "got in there," Paul would be the one to lose his job ; Respondent would find other work for Thatcher. Jim Purcell testified further that upon the occasion of his employment on March 8, Superintendent Hovey asked if he belonged to a union ; Foreman Miller said, "if they got to where they couldn't handle their business there by themselves, and the union had to come in, they would just turn the business over to them and let them run it to suit theirselves." " Billy Junior Duncan testified that shortly before the April election, Assistant Foreman Thatcher said that if the union "came in" the plant probably would be closed. O. C. Horton testified that shortly before the April election, Foreman Benz advised him to stay away from union organizers, that a union was not needed in the plant. Rex Smithy testified that shortly before the April election, Assistant Foreman Thatcher asked him how he intended voting and when Smithy replied that he would vote for the union, remarked, "guys like you will lose your job" ; that the plant would close down but that he, Thatcher, would go back to St. Louis to work. Still according to Smithy, Thatcher again spoke to him about a week before that election, saying that Smithy should be careful how he voted as it was getting late to get the ground in shape for a crop! On still another occasion, according to Smithy, Foreman Miller told a group of employees numbering at least four that the union would not help them and that the plant could not operate with a union. Calvin Yarbrough testified that upon the occasion of his interview for employ- ment on April 15, 1948, Mrs. Sisson asked him how he felt about the union and a few days later advised him to stay away from the union. Also on April 15, according to Yarbrough, Superintendent Hovey advised him to remain aloof from those he might hear talking about a union. Charles F. Webb testified that during his employment interview in June 1948, Foreman Benz asked, "what do you think about the union?" to which Webb replied that he opposed it. Two days before the July election, Benz, according to Webb, observed that an election was impending and asked Webb to "talk to the boys around here," that Benz would see that Webb was "took care of." John Dee Waddell testified that about a week before the April election, Fore- man Benz asked him how he "felt" about it. Waddell replied that he favored the union. Within a day or two, according to Waddell, Foreman Hopke asked the same question and inquired as to the identity of the union organizers. Benz said finally that Waddell would be sorry if he voted for the union. John O. Bailey testified that when he was interviewed for employment by Foreman Benz on May 12, 1948, Benz inquired if he knew anything about a union, stated that Respondent did not want a union, and could give the employees more than a union could obtain for them. Superintendent Hovey testified that he frequently asked applicants for employ- ment if they were union members ; pointed out to them that Respondent main- tained the same conditions in its unorganized plants as in those which were organized; denied conditioning employment upon an applicant's attitude toward unions ; and asserted that he had never prophesied that the plant would be closed. He further testified that prior to the April election he instructed all supervisors that they had a right to answer employees' questions concerning the union but " I interpret this statement as a threat to abandon the operation. 12 Again, the "back to the farm" motif. 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that they must refrain from uttering threats to influence employees in their exercise of choice. His testimony, as set forth above, is credited. Kenneth (Pete) Thatcher, an instructor in the making department, was characterized by witnesses for the General Counsel as an assistant foreman. Thatcher testified that as an instructor, "I help the boys with their problems, try to find the mistakes, if they have anything wrong, try to correct it." Thatcher did no actual hiring but upon two occasions interviewed applicants for employ- ment and from April 21, 1948, when his foreman, Ralph Miller, went on leave, was the only supervisor in the making department. Although never formally designated as a foreman, Thatcher attended supervisors' meetings. At such a meeting a week or two before the April election, Thatcher was instructed, he testified, that the law had been changed, that foremen were free to speak to employees ; that, if questioned, foremen could state their views and opinions but must refrain from employing threats or promises of benefits. Also, if questioned, foremen were to explain to employees that conditions of employment in the Searcy plant were as advantageous as in those plants where the employees were represented by a union. During the meeting, Thatcher dis- cussed with other supervisors his experience with another employer when a dispute with a union resulted in the closing of that plant for several months.. Thatcher testified that he did not recall discussing such a happening with em- ployees although practically all of them inquired of him concerning the union.. Thatcher conceded that he did not want the union to succeed in its organizational effort. Thatcher denied telling any employee that the plant would close in the event of union success, denied suggesting to Smithy that it was getting pretty late to put the ground in shape for a crop, denied inquiring of any employee how he voted, and denied suggesting that Smithy and others would lose their jobs if the- union succeeded in organizing the plant. Foreman Ralph Miller denied: (1) that he had ever asked an applicant for employment if he were a union member; (2) that he said anything to Purcell! about voting for or against the union; (3) that he told any employee that tho' plant could close; or (4) that the plant could not operate with a union. Miller admitted that he asked Smithy how he "felt" about the union and that, when employees sought his opinion about a union, he told them they would secure no benefit from it. Mrs. Pearl Sisson, personnel manager of the Searcy plant from April 1947, to April 29, 1948, denied saying that the plant would be moved in the event of unionization ; advising Duncan to avoid union organizers ; suggesting to Smithy that he might have to go back to the farm if the plant were organized. Sisson further testified that she did not believe she asked Yarbrough how he "felt" about the union, denied that she advised him to stay away from the union, and did not recall asking Horton if he were a member of the union. Conclusions as to interference, restraint, and coercion The testimony of witnesses produced by the General Counsel as to interroga- tion concerning union membership and as to threats to move or close the plant in the event of union success, was presented in a straightforward and convinc- ing manner and to some extent was mutually corroborative. It is believed. Cre- dence is lent to this testimony by the fact that Respondent admittedly opposed the unionization of its plant and that it was willing and eager to secure the defeat of the Union in the election. Even though instructed not to employ threats or INTERNATIONAL SHOE CO. 495 hold forth promises to employees in connection with union activity, it is not in the least astonishing that supervisors eager to advance the announced interest of their employer would overstep the line between permissible conduct and that which the Act proscribes in an effort to secure the Union's defeat. Superintendent Hovey admitted questioning employees concerning their dis- position toward unions. Despite their denials, I cannot credit the testimony of Sisson, Miller, and Thatcher 13 that they did not do the same. I am persuaded that such interrogation was routine, that Respondent's management in Searcy persistently sought to satisfy its curiosity in these matters. By such ques- tioning directed to Jim Purcell, Rex Smithy, Calvin Yarbrough, Charles F. Webb, John Dee Waddell, and John O. Bailey, and by statements that the plant could or would close and that the business would be turned over to the Union in the event it was designated by the employees, Respondent interfered with, restrained, and coerced employees in the exercise of their rights under Section 7 of the Act and thereby violated Section 8 (a) (1) of the Act. Lso find.14 C. The alleged discrimination Agnes Hoofman testified that she was employed December 9, 1947, at the Searcy plant and was assigned to a variety of jobs during her tenure. On or about March 1, 1948, Hoofman was among a number of, employees who were laid off by Foreman Walther. According to Hoofman, Walther stated that the lay-off was temporary. Hoofman joined the Union 2 or 3 weeks after she began her employment and thereafter talked in favor of the Union to other employees during the lunch periods and after hours. On the day of her lay-off she discussed the where- abouts of the union organizer with another employee at a point in the plant where Foreman Walther had opportunity to overhear. On April 19, in the belief that other laid-off workers had been recalled and new employees hired, she applied to Sisson for reinstatement. According to Hoofman, Sisson at first as- serted that no jobs were open but upon being pressed to explain why Hoofman was not recalled before new employees were hired, stated that she knew Hoof- man to favor the Union and that she would never be recalled. Sisson then left the office, according to Hoofman, and a man whom she did not know came in to explain that only her foreman, Walther, could tell her why she was not re- employed. Foreman Walther testified that Hoofman was laid off in a reduction in force and solely because there was not sufficient work in the plant to require her services. Of the 27 workers laid off at the same time, 11 have since been re- hired. At the time of Hoofman's lay-off, Walther filled out a temporary lay-off slip which recited that if she were not reinstated within 30 days, the lay-off could become permanent. On March 29, Walther filed a further report, de- nominated "Exit report," which served to change Hoofman's status from tem- porarily to permanently laid off. On this report Walther indicated that Hoof- man's workmanship was average, her production slow, her disposition fair and her type "troublesome," 1° Walther explained that he considered Hoofman 13 Neither Foreman Benz nor Foreman Hopke was called as witness. It was not suggested that they were unavailable. 14 Statements containing threats or promises of benefit of course find no protection in Section 8 (c). 15 On January 29, a month before the lay-off, Walther reported that -Hoofman's quality and quantity were fair, her attitude good, and her attendance excellent. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD troublesome because during the period of her employment she persistently sought to be assigned to steady work instead of being used to fill in temporarily in various phases of the processes performed in the fitting room. Walther indi- cated on the exit report that he would not rehire her. Hoofmans activity on behalf of the Union was moderate. From January 1948 until she was refused employment on April 19, I find that she successfully solicited two or three employees to join the Union, talked in favor of the Union in conversation with her fellow employees, visited the homes of some of them to advance the Union's cause, and met occasionally with the union organizer. I doubt that she thereby was called sharply to the attention of any of Respond- ent's supervisors as an outstanding protagonist of the Union. It is highly prob- able, however, that in a community as small as Searcy (pop. 1940 census, 3,670), the management of the plant was accurately advised of the identity of those who outwardly manifested that they favored the Union 16 When Hoofman was laid off on March 1, no mention was made of any charac- teristic which might militate against her further employment. On the contrary, she was told that the lay-off was temporary. There is no indication on the lay-off slip Respondent kept as a record that she was not to be recalled when work was available. Nonetheless, on March 29, Walther indicated on the exit slip that she was not to be rehired. Why? His description of her conduct which he called "troublesome" is quite unconvincing and had she actually proved annoying in the manner he testified, I cannot believe that he would have given her,only a temporary lay-off on March 1 when the opportunity was there for him .to make the lay-off permanent. Sometime between March 1 and March 29, Walther determined that he would not rehire her. Since during that period she did nothing so far as the record reveals that would have come unfavorably to Walther's attention other than work in support of the Union, I conclude that her union activity must have been the determining factor. Sisson testified that Hoofman applied for reinstatement a great many times after March 1 and that Hoofman was told Walther had no work suitable for her. Hoofman had performed a variety of tasks during the time she worked. There is no showing that similar work was not still being performed on April 19. Sisson denied having any conversation with Hoofman wherein Hoofman was told that she would not be employed because she had shown her favor for the Union. However, Sisson's testimony left the impression that Hoofman's requests for reinstatement were sufficiently frequent as to constitute an annoyance. Sisson testified that Hoofman was "quite a visitor" at the personnel office, intimating that her requests for reinstatement were frequent and persistent. Considering Sisson's nervous and impatient temperament,17 her opposition to the Union, and the unconvincing reason given by Walther for the refusal to rehire Hoofman, it is easily to be believed that Sisson in exasperation revealed the true reason to Hoofman underlying her inability to regain her place on Respondent's pay roll. Furthermore, the conversation occurred on April 19, after the signing of the consent election agreement and just over a week before the April election, at a time when Respondent was actively campaigning against the Union. At such a time Respondent would have been unwilling to add to the Union's strength by 16 N. L. R. B. v. Abbott Worsted Mills, Inc., 127 F. 2d 438, 440 (C. A. 1). ^7 Manifested to some extent by her manner on the stand. On at least two occasions from April 29, 1948, to the date of the hearing, Sisson entered a hospital for treatment of a nervous condition. INTERNATIONAL SHOE CO. 497 hiring a union advocate if it could be avoided.18 In consideration of all the evidence on this point, I conclude that the reasons advanced by Walther and Sisson for the refusal to rehire Hoofman constituted pretexts and that the true reason was revealed by Sisson as set forth in Hoofman's testimony. I find that Hoofman was refused reemployment on April 19 because of her advocacy of the Union, that the effect of the refusal was to discourage. member- ship in the Union, and that by such refusal Respondent discriminated in regard to the hire and tenure of employment of Hoofman in violation of Section 8 (a) (3) and (1) of the Act. Doris Selfs Wells was first employed by Respondent on December 4, 1947, and thereafter worked steadily through March 31, 1948. On the latter date some question was raised at the plant concerning work for which she claimed credit, perhaps improperly. In any event Wells did not again report for work until April 12. When she did'so her foreman, Walther, explained that having been absent for such a period without excuse and without notifying Respondent, her employment had been terminated. Walther, however, took Wells to Sisson's office for her to make application for employment. Wells did so and was rehired on April 13 and placed on the same job she left on March 31. According to Wells, on April 12 Sisson said that Wells would be reemployed if she would promise to stay away from the Union and would even be permitted to retain her original hiring date for purposes of seniority. Wells testified that she gave the promise but then for the first time became active in support of the Union, talking in its favor to her fellows and soliciting them to join. After reinstatement, on April 18, d'ells' pay check carried the original hiring date ; on April 25, no hiring date; and on May 2, the date of her reinstatement, April 13. It is the contention of the General Counsel that Sisson at first kept her alleged bargain, crediting Wells with the December hiring date, then, learning that Wells was active for the Union, changed the date to April 13 and that Wells thereby was the subject of discrimination. Respondent explained that checks for all regular employees are prepared in St. Louis well in advance of 'the pay period when they are to be used and that employees in the St. Louis office entered upon the checks all information which can, be placed there in advance of issuance, including name and hiring date. Thus, it is explained, in the case of Wells, there was already a check in the Searcy plant available for the purpose of paying her for her work during the week ending April 18, it being necessary only to enter upon the check the amount she earned that week. ' Accepting Respondent's explanation this check would of course have on its face Wells' original hiring date. No check was sent from St. Louis for the April 25 date because when checks for that date were sent it appeared from the St. Louis records that Wells no longer was an employee. Hence her check was made out in full at the Searcy plant and no hiring date was placed on it. The check for May 2 came from St. Louis and recited the new hiring date. Respond- ent's explanation is believable and I do not find that the checks are evidence in support of the complaint of discrimination against Wells. 18 How strongly Respondent felt in this connection is no better exemplified perhaps than by the forced resignation of Sisson. Her husband, a production employee at Respondent's Bald Knob plant 12 miles from Searcy, where the Union had earlier been certified, after consultation with one of Respondent's officials joined the Union. The Union at Searcy sought to make capital of this convert so closely connected with the official family. There- epon, other officials of Respondent, fearful, according to Sisson, that the Union's chances in the April election were being thereby enhanced, required that Sisson resign. She then was placed on sick leave, entered a hospital, and has not since worked for Respondent. 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wells did not impress me favorably as a witness. She appeared eager to tell that which would support the case against the Respondent but reluctant and somewhat evasive upon cross-examination. I do not believe that she was active in support of the Union despite her testimony in that connection. One would normally expect that an advocate such as Wells described herself to be, in per- suading others of the advantages to be gained by unionization and in soliciting them to join, would be sufficiently persuaded by her own arguments to take out .a membership for herself. Wells never joined the Union. Sisson denied making any offer to Wells concerning her seniority date and ex- plained that she had no power to effect a change in that connection. I have heretofore found Sisson not to be a witness whose testimony commands belief but I am persuaded that she testified truthfully as to this incident and I do not credit Wells' version of the conversation with Sisson on April 12. I shall recom- mend therefore that the allegation in the complaint alleging discrimination against Wells be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in Section III, above, occurring in con- nection with the operations of Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to constitute unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that Respondent has engaged in certain unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Union represented a majority of the employees in the appropriate unit on the date Respondent refused to bargain collectively with it, I will recommend that Respondent upon request be required to bargain with the Union. Having found that Respondent discriminatorily refused employment to Agnes Hoofman on April 19, 1948, I will recommend that Respondent offer em- ployment to her and make her whole for any loss of pay she may have sustained by reason of such refusal by payment to her of a sum of money equal to that she would have earned as wages since April 19 to the date of the offer of employment, less her net earnings during that period.19 Having found that Respondent did not discriminate against Doris Selfs Wells in regard to her seniority date, I will recommend that the allegation in the com- plaint to that effect be dismissed. Upon the basis of the- above findings of fact and upon the entire record in the .case, I make the following: CoNOLUSIONS OF LAW 1. United Shoe Workers of America, CIO, is a labor organization within the jneaning of Section 2 (5) of the Act. 2. All maintenance and production employees of Respondent at the Searcy,. Arkansas, plant, except for office and clerical employees, watchmen, guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section D (b) of the Act. 19 Matter of Crossett Lumber Co., 8 NLRB 440, 497-498. INTERNATIONAL SHOE CO. 499 3. United Shoe Workers of America, CIO, on July 1, 1948, was, and at all times since has been, the exclusive representative of all employees in the afore- said appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on August 5, 1048, and at all times since to bargain collectively with United Shoe Workers of America, CIO, as the exclusive representative of its employees in. the aforesaid appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section S (a) (5) of the Act. 5. By discriminating in regard to the hire and tenure of emp'o-, meat of Agnes Iloofman, Respondent discouraged membership in the Union in violation of Section 8 (a) (3) of the Act. 6. By refusing to bargain with the Union, by discriminating in regard to the hire and tenure of employment of Agnes Hoofman, by interrogating employees in regard to union membership and activity, by threatening to move or close its Searcy plant, and by threatening employees with loss of employment in con- nection with their union activity, Respondent interfered %vith, restrained and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act and thereby violated Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 8. Respondent has not engaged in any unfair labor practice with regard to fixing the seniority date of Doris Selfs Wells. RECOMMENDATIONS Upon me basis of the foregoing findings of fact and conclusions of law, I' recommend that Respondent, International Shoe Company, Searcy, Arkansas, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with United Shoe Workers of America, CIO, as the exclusive representative of all production and maintenance employees at the Searcy, Arkansas, plant except for office and clerical employees, watchmen, guards, professional employees, and supervisors as defined in the Act; (b) Discouraging membership in any labor organization by refusing to rein- state employees because of their membership in or activity on behalf of such organization or in any other manner d:scrimir.ating in regard' to their hire or tenure of employment or any term or condition of employment; (c) Interrogating employees in regard to their membership in, interest in, identification with, or activity on behalf of United Shoe Workers of America, CIO, or any other labor organization of its employees, or in any manner inter- fering with, restraining, or coercing employees in the exercise of their right to self-organization, to form labor organizations, to join or assist such organiza- tions, 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. 2. Take the following affirmative action which I find will effectuate the policies of the Act : (a) Offer to Agnes Hoofman immediate employment at work comparable to that which she performed prior to March 1, 1,948, and make her whole in the manner set forth in Section V, above, entitled "The remedy" ; (b) Upon'request, bargain collectively with United Shoe Workers of America, CIO, as the exclusive representative of all production and maintenance eni- 877359-50-vol. 87-33 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees at the Searcy, Arkansas, plant excluding office and clerical employees, watchmen, guards, professional employees, and supervisors as defined in the Act ; (c) Post at its plant in Searcy, Arkansas, copies of the notice attached hereto and marked Appendix A. Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and maintained by it for a period of sixty (60) consecutive days thereafter in con- spicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Fifteenth Region (New Orleans, Louisiana) in writing within twenty (20) days from the date of receipt of this Intermediate Report what steps Respondent has taken to comply herewith. It is futher recommended that the complaint, insofar as it alleges that Respondent violated Section 8 (a) (1) and (3) of the Act in relation to the seniority date of Doris Selfs Wells, be dismissed. It is also recommended that unless on or before twenty (20) days from the date of the receipt of this Intermediate Report, the Respondent notifies the said Regional Director in writing that it will comply with the foregoing recom- mendations, the National Labor Relations Board issue an order requiring Respondent to take the action aforesaid. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board, 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 Recommended Order or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Immedi- ately 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. State- ments of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As 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 21st day of June 1949. WALL ACE E. ROYSTER, Trial Examiner. INTERNATIONAL SHOE CO. APPENDIX A NOTICE TO ALL EMPLOYEES 501 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 by means of interrogation, threats to move the plant, or in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist UNITEn SHOE WORKERS OF AMERICA, CIO, or any other labor organiza- tion, 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. All our employees are free to become or remain members of this union, or any other labor organization. WE WILL bargain collectively upon request with the above-named union as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment or other conditions of employment, and if an understanding is reached, embody such understand- ing in a signed agreement. The bargaining unit is : All production and maintenance employees except for office and clerical employees, watchmen, guards, professional employees, and supervisors as defined in the National Labor Relations Act. WE WILL offer immediate employment to Agnes Hoofman and make her whole for any loss of pay she may have suffered as a result of the discrimi- nation against her. INTERNATIONAL SHOE COMPANY, Employer. By ------------------------------------ Dated ---------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by other material.