Morehead City Garment Co., Inc.

MOREHEAD CITY GARMENT COMPANY, INC. 245 ant classified advertising supervisor, manager of the advertising service depart- ment, city editor, assistant city editor, news editor, assistant news editor, sports editor, women's editor, editor of The Kentucky Post, business manager of The Kentucky Post, managing editor of The Kentucky Post, and any other super- visory employees, and guards as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. At all times since December 10, 1949, the Union has been and is now the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By failing and refusing at all times since December 10, 1949, to bargain with the Union as to the standards to be applied or the methods adopted to effect merit increases in wage rates, and by 'refusing to furnish or provide the Union with the names, rates of pay, classifications, and merit increases granted to each of the employees within the aforesaid unit, the Respondent has failed and refused to bargain collectively with the Union as the exclusive repre- sentative of the employees in the appropriate unit and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section S (a) (5) of the Act. 5. By said acts the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act and has engaged and is engaging in unfair labor practices within the mean- ing of Section S (a) (1) of the Act. 6 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] MOREHEAD CITY GARMENT COMPANY, INC. and AMALGAMATED CLOTIi- ING WORKERS OF AMERICA , CIO. Cases Nos. 34-CA-143 and 34- RC-150. May 3, 1951 Decision and Order On December 21, 1970, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report, and supporting briefs. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-mem- ber panel [Members Houston, Murdock, and Styles]. 94 NLRB No 45. 246 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD The Respondent's request for oral argument is hereby denied, as the record and briefs, in our opinion, adequately present the issues and the positions of the parties. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings , conclusions , and recom- mendations of the Trial Examiner with the exceptions, modifications, and additions set forth below. 1. The Intermediate Report contains a number of inaccuracies or inadvertences, which do not, however, affect the ultimate con- clusions reached either by the Trial Examiner or by the Board. The Intermediate Report is hereby corrected in the following respects : (a) In the opening paragraph of the Intermediate Report, the Trial Examiner stated that the complaint issued upon objections to the election held in Case No. 34-RC-150 and upon charges filed by the Union. We note that the complaint was based upon the charges alone, and that, by order of the Board, the hearing on the complaint was consolidated with the hearing on the objections. (b) The Trial Examiner stated that Morehead City, where the Respondent's plant is located, and Beaufort, the county seat, "are 2 of the easternmost cities in the United States." They are two of the easternmost cities of North Carolina. They (c) In his discussion of the supervisory status of Rosa Bell and Opal Arthur, the Trial Examiner failed to state that the Respondent did not except to the finding of the Regional Director, in his report on challenges and objections in Case No. 34-RC-150, that the votes of both Bell and Arthur had been correctly challenged on the basis of their supervisory status. (d) The Trial Examiner stated that , at all times material herein, Truman Kemp 1 and Rose Garner were in charge of the sewing room employees. This statement inadequately reflects the Respondent's supervisory setup prior to the election, which was held on October 17, 1949, as Kemp was hired during the last week in October 1949 to assume duties formerly performed by Mrs. Jackson, the president of the Respondent. (e) The Trial Examiner stated that Bertie Beacham was hired for the first time in September 1949, whereas the record shows that Beacham had worked for the Respondent during two different periods -since May 1943. ' The Trial Examiner inadvertently designated this supervisor as Murray Kemp MOREHEAD CITY GARMENT COMPANY, INC. ' 247 2. The Trial Examiner concluded, and we agree, that the Re- spondent violated Section 8 (a) (1) of the Act by various acts set forth in Section D 2 of the Intermediate Report, entitled "Inter- ference, restraint, and coercion." We do not, however, adopt the language and findings of the Trial Examiner with respect to the Re- spondent's liability for the "barber shop talk" and for the activities of the businessmen of Morehead City and vicinity, including David E. Merrill. We do not find, under the circumstances of this case, that the Respondent made the "community its agent" for the dis- semination of coercive statements, nor that it can be held to have as- sumed responsibility for the antiunion activities of the inhabitants of the community. However, we do find, as did the Trial Examiner, that the Respondent is responsible for the activities of its managerial and supervisory personnel 2 in this connection. The Trial Examiner concluded that the speech made by Super- visor Dill on the Friday prior to the election was coercive and con- tained threats of reprisal. We do not subscribe to all of the Trial Examiner's rationale in reaching this conclusion. We do, however, agree with his conclusion that the speech itself, considered alone and without regard to the conditions under which it was made or the interpretation placed upon it by the employees, contained readily ap- parent threats of reprisal. 3. In discussing the discharge of Pauline Miller in the Interme- diate Report, the Trial Examiner found that, after the election, Mrs. Jackson had announced over the loudspeaker system that any- one caught with union literature in the plant would be discharged. He concluded, and we agree, that Mrs. Jackson's announcement vio- lated Section 8 (a) (1) in that it forbade possession of union litera- ture in the plant.3 Such a prohibition is an unreasonable restraint on the rights guaranteed to employees by Section 7 of the Act. 4. The Trial Examiner found, and we agree, that Sally Smith, Lucy Miller, Margaret Rhue, Bessie Robinson, and Pauline Miller were discharged by the Respondent in violation of Section 8 (a) (3) of the Act. We also agree with the Trial Examiner's holding that in spite of the "many and extremely suspicious matters connected with" the discharge of Mattie Barbour the evidence adduced was in- sufficient to prove that Barbour was discharged in violation of the ' We find , as did the Trial Examiner , that Ruby Swinson was not a supervisor Accord- ingly, we do not base any of our findings that the Respondent violated Section 8 (a) (1) of the Act upon the antiunion meeting addressed by Swinson. ' The Respondent contends that the rule as announced by Mrs Jackson prohibited distribution of union literature in the plant The Trial Examiner discredited Mrs Jack- son's testimony with respect to the announcement and we accept his credibility findings. We therefore find it unnecessary to pass upon the effect of such a rule prohibiting the distribution of union literature. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act. We shall therefore adopt the Trial Examiner's recommenda- tion and dismiss the complaint insofar as it relates to Barbour's dis- charge. 5. The Trial Examiner found, and we agree, that the Respondent refused to employ Minnie Katherine Piner in violation of Section 8 (a) (3) of the Act. We disagree, however, with the Trial Ex- aminer's conclusion that the Respondent violated the Act by its re- fusal to employ Eleanor Trott Gillikin and Kathleen Rhue Salter as there is no showing that they were connected with the Union or that the Respondent believed them to be connected with the Union .4 We shall therefore dismiss the complaint insofar as it relates to these two individuals .5 Order Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Rela- tions Board hereby orders that the Respondent, Morehead City Gar- ment Company, Inc., Morehead City, North Carolina, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Amalgamated Clothing Workers of America, CIO, or any other labor organization, by discriminatorily discharging any of its employees, by discriminatorily refusing to hire applicants for employment, or by discriminating in any other manner in regard to the hire and tenure of employment of any of its em- ployees or any terms or conditions of their employment. (b) By interrogation concerning union affiliation or sympathies, threats of economic reprisal, promises of benefit, or in any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organiza- tions, to join or assist Amalgamated Clothing Workers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted ac- tivities 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 condition of employment, as authorized in Section 8 (a) (3) of the Act. 4 We note that the Trial Examiner stated that Salter saw Supervisor Dill when reapply- ing for employment in April . The record shows that Salter spoke only to Mrs Jackson's secretary , Isabel Rose , on this occasion. 6 Dismissal of these allegations does not affect the Trial Examiner 's conclusions, nor our concurrence therein, with respect to the illegality of the interrogation of employees and applicants for employment with respect to their union membership or sympathies. MOREHEAD CITY GARMENT COMPANY, INC. 249 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Sally Smith, Lucy Miller, Pauline Miller, Margaret Rhue, and Bessie Robinson, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. (b) Make whole Sally Smith, Lucy Miller, Pauline Miller, Mar- garet. Rhue, and Bessie Robinson, and each of them, for any loss of pay she may have suffered by reason of the Respondent's discrimina- tion against her in the manner set forth in the section of the Inter- mediate Report entitled "The remedy." (c) Offer employment to Minnie Katherine Piner, and make her whole for any loss of pay she may have suffered by reason of the Respondent's discrimination against her in the manner provided in the section of the Intermediate Report entitled "The remedy." (d) Post at its plant in Morehead City, North Carolina, copies of the notice attached hereto and marked Appendix A.6 Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and main- tained by it for a period of 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Fifth Region in writing within ten (10) days from the date of this Order what steps the Re- spondent has taken to comply herewith. IT Is FURTITER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent: (a) Violated Sec- tion 8 (a) (1) of the Act by offering money and other things of value to encourage employees to vote against the Union as an exclusive bar- gaining agent of its employees in a National Labor Relations Board election; (b) violated Section 8 (a) (1) of the Act by entering into and maintaining an agreement with an association of Morehead City residents, the terms of which agreement provided in part that if the Company would locate its operations in Morehead City, the Company would be protected against union organization of said plant; (c) dis- charged Mattie Barbour, and refused to employ Eleanor Trott Gilli- kin and Kathleen Rhue Salter, in violation of Section 8 (a) (3) of the Act ; and U In the event that this Order is enforced by a 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." 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT IS FURTHER ORDERED that the election held on October 17, 1949, among the employees of Morehead .City Garment Company, Inc., in Morehead City, North Carolina, be, and it hereby is, set aside? Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in AMALGAMATED CLOTH- ING WORKERS OF AMERICA, CIO, or in any other, labor organization, by discriminatorily discharging any of our employees, or by discriminatorily refusing to hire applicants for employment, or by discriminating in any other manner in regard to their hire or tenure of employment or any terms or conditions of employment. WE WILL NOT interrogate our employees concerning union af- filiation or sympathies, make threats of economic reprisal, prom- ises of benefit, or in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organiza- tion, to form labor organizations, to join or assist AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO, or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose 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 membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL offer to the employees named below immediate and full reinstatement to their former or substantially equivalent po- sitions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Sally Smith Lucy Miller Pauline Miller Margaret Rhue Bessie Robinson 7 When the Regional Director advises the Board that circumstances permit a free choice of representatives, we shall direct that a new election be held among the Respond- ent's employees. MOREHEAD CITY GARMENT COMPANY, INC. 251 WE WILL offer employment to the employee named below and make her whole for any loss of pay suffered as a result of the discrimination. Minnie Katherine Piner All our employees are free to become, remain, or refrain from be- coining members of the above -named union or any other labor or- ganization, except to the extent that the right to refrain may be af- fected by a lawful agreement requiring membership in a labor organization as a condition of employment. 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. MOREHEAD CITY GARMENT COMPANY, INC., 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. Intermediate Report 9 John K. Pickens, Esq., and H. Raymond Cluster, Esq., for the General Counsel. Mr. John R. Sullivan, of Wilmington, N. C., for the Union. Whiteford S. Blakeney, Esq., of Charlotte, N. C., and Philip Newman, Esq:, of Philadelphia, Pa., for the Respondent. STATEMENT OF THE CASE Upon objections filed by Amalgamated Clothing Workers of America, CIO, here- inafter called the Union, to the election held in Case No. 34-RC-150 on October 17, 1950, and upon charges and amended charges duly filed by the Union,' the General Counsel of the National Labor Relations Board, herein respectively referred to as the General Counsel and the Board,' by the Regional Director for the Fifth Region (Baltimore, Maryland), duly issued an amended complaint' dated June 8, 1950, against Morehead City Garment Company, Inc., hereinafter referred to as the Respondent, alleging that the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (1) and 8 (a) (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, hereinafter called the Act. Copies of the amended com- plaint, the charges, and notice of hearing thereon, were duly served upon the Respondent and the Union. I The original charge was filed on July 7, 1949, and was thereafter amended at various times to and including June 5, 1950. 2 The attorneys for the General Counsel appearing at the hearing are included within the term General Counsel 0 By appropriate order of the Board dated April 12, 1950, it was ordered that the objec- tions to the election of October 17, 1950, be consolidated with the hearing on the unfair labor practice complaint in Case No 34-CA-143. At the commencement of the hearing the Respondent objected to such consolidation and moved to sever the hearings. This motion was denied after argument 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the unfair labor practices, the amended.complaint, hereinafter referred to as the complaint, alleged in substance that the Respondent: (1) By various enumerated acts including, among others, the entering into and main- taining an agreement with an association of Morehead City residents, the terms of which agreement provided, in part, that if the Company would locate its op- erations in Morehead City, the Company would be protected against union or- ganization of the plant, interfered with, restrained, and coerced its employees in violation of Section 8 (a) (1) ; (2) on various dates between July 27 and De- cember 21, 1949, had discharged six named individuals because of their union membership or activity and between August 22, 1949, and January 3, 1050, had refused to employ or reemploy three named individuals because of their real or suspected membership in or activities on behalf of the Union in violation of Sec- tion 8 (a) (3) of the Act. After a motion for a bill of particulars had been granted in part, the Respond- ent filed its answer admitting certain allegations of the complaint but denying. the commission of any unfair labor practices. Pursuant to notice, a hearing was held in Beaufort, North Carolina, from June 26 to July 3, 1950, inclusive, before the undersigned Trial Examiner duly designated by the Chief Trial Examiner All parties were represented by coun- sel, participated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues involved At the beginning of the hearing the undersigned denied the motion of the Respondent to dismiss the complaint on the ground that the CIO had not complied with Section 9 (f), (g), and (h) of the Act' The parties waived oral argument at the conclusion of the hearing but a brief has been received from theoGeneral Counsel. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. TIDE BUSINESS OF THE RESPONDENT Morehead City Garment Company, Inc., is a corporation organized and exist- ing by virtue of the laws of the State of North Carolina, having its principal office and place of business located in the city of Morehead City, North Caro- lina. where it is engaged in the manufacture and processing of sportswear and wearing apparel. Substantially all of the manufacturing and processing is done on goods and materials owned by the Beaver Shirt Company, a New York corporation with its principal office and place of business in New York City. Morehead City Garment Company, Inc., in the course and conduct of its business operations at its Morehead City plant during the 12-month period ending June 15, 1950, worked on materials consisting principally of cotton and rayon cloth valued in excess of one hundred thousand dollars of which more than 50 per- cent was shipped in interstate commerce to the Morehead City plant from points outside of the State of North Carolina. During the same period, the Respondent caused to be transported and delivered products which it had processed and manufactured, consisting principally of men's sport shirts, valued in excess of one hundred and fifty thousand dollars of which more than 50 percent was shipped in interstate commerce from its Morehead City plant to points outside of the State of North Carolina. a Although there are conflicting decisions from various circuit courts of appeals on the question, the Board's position on this point is clear. MOREHEAD CITY GARMENT COMPANY, INC. 253 The undersigned finds that the Respondent is engaged in operations affecting commerce among the several States. II. THE ORGANIZATION INVOLVED Amalgamated Clothing Workers of America, CIO, is a labor organization admitting to membership employees of the Respondent. III THE UNFAIR LABOR PRACTICES A The background During the 1930's the husband of Mrs Edina M. Jackson, currently the presi- dent of the Respondent and an officer of the Beaver Shirt Company, was the manager and Mrs. Jackson herself was the forelady of a shirt factory located in Lykens, Pennsylvania, for one W. S Fox. This plant was beset with labor troubles during the last year of its operations in Lykens; Pennsylvania, when a strike, or several strikes, interrupted production for the better part of that year. During and because of these labor troubles the management- of the Lykens plant decided to locate the plant at forehead City, North Carolina, and to abandon operations in Lykens Jackson assisted in the installation of the machinery at the Mo ehead City plant In about 1936 the plant at Morehead City opened for operations with Jackson as its manager and Mrs. Jackson as its forelady. The final departure of the Jacksons from Lykens occurred in a shower of brickbats and stones thrown by union employees, according to Mrs Jackson. About :i yens later Fox sold out to Jackson and his partners. Thereafter, until the present corporation was foi med in 1947, this partnership underwent various changes in personnel but the Jacksons remained throughout as one of the chief partners as well as the manager and forelady. When Jackson died in 1947, the present corporation was formed with Mrs. Jackson as its president. Because of her added executive duties<Mrs. Jackson has slowly been forced to abandon her duties as forelady Morehead City, population 5,000, and Beaufort, the county seat located just to the east of Morehead City across the Newport River with a population of 3,000, ale 2 of the easternmost cities in the United States. In order to reach :Morehead City one definitely must make it one's destination for it is not enroute to any other place Essentially it is a beautiful ocean resort and farming area. It is served by 1 railroad which carries freight onl8 6 During the summer holiday season only, 1 airplane company has 1 flight per day into the area 6 Until recently even the highway ended in Beaufort. In other words Morehead City is, and has been, practically an isolated community. In fact it is noticeable that many of its inhabitants still retain the original English accent of their forebears. It is also noteworthy that the prevalence of old family names still continues unabated indicating an almost complete absence of any shift of population. Economically Morehead City has 2 fish factories and an asphalt company, now owned by the Lloyd A. Fry Roofing Co, in addition to the Re- spondent here Beaufort, on the other hand, has 2 fish factories and a sawmill. Farming and fishing, therefore, are the 2 main industries together with the actin ities incidental to a summer resort. On these the community exists. 6 The Official Guide of the Railways and the Steam Navigation Lines of the United States, June 1950 edition , page 562 6 Official Airline Guide , June 1950 , page 640. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Interference, rests aint, and coercion 1 Events from May to August 12, 1949 Sometime in May 1949, Union Organizers Witt and Sullivan commenced an effort to organize the employees of the Respondent. Soon they had inter- ested several of the employees including Sally' Smith, Lucy Miller, Amanda Toler, Pauline Miller, Dallas Gillikin, and Margaret Rhue. The organizing efforts originally consisted largely of the organizers visiting employees at their homes after working hours The organizers drove to these homes guided by those employees who had previously been interested in the Union. Such guides were necessary because the employees were often wives and children of farmers living at a considerable distance from Morehead City. Special busses going throughout the outlying districts each 'morning are necessary to transport the employees to the Respondent's plant. As interest grew in the Union. the organizers held union meetings at the homes of individual employees in the various districts from which employees had been recruited for employment so that the news of the Union might reach all the scattered employees. The first such union meeting was scheduled to be held one evening in June at the home of Sally Smith located in an out-of-the-way section of Beaufort. Employee Ruth Styron e learned of the scheduled meeting that afternoon, promptly told her friend Abe Silverman, then the supervisor of the Respond- ent's laundry, who in turn passed the information to Plant Manager Lonnie Dill. Dill's reaction was immediate. He decided "to go by and see just what kind of foreigner they would bring clown to run a union meeting." That eve- ning Dill drove the Respondent's bookkeeper, Pete Hooper, to the location of the Smith house and parked up the street from where Sally Smith lived. Dill and Hooper sat in this parked car during the whole meeting with paper and pencil in hand. At the same time but on the other side of the Smith house Styron and Silverman sat in another parked automobile during the meeting. During her testimony Styron attemptgd to give the impression that she and Silverman happened to be parked by the Smith house at her suggestion. How- ever, on cross-examination, Styron showed that this strategic parking of the two automobiles was neither unplanned nor unpremeditated when she testi- fied as follows : Q. Did you see his [Dill's] car? A Right off hand; I wouldn't say 1 did. Q. You didn't see his car? A. Well, I believe he was down at the other end; I couldn't see who was in it or anything about it. Q. What makes you believe he was down at the other end? A Because I was down at this end. Q. You knew you had the place blanketed, is that right? A. That's right. Mr. CLUSTER. I have no further questions. Of course the presence of these high officials of the Respondent was soon noted by those employees attending the meeting and was reported to Smith. Smith 7 Referred to in the transcript as "Sallie " 8 Sty ion worked in that section of the Respondent's cutting room, under Foreman Leo Simpson , in which the mateuals ale marked prior to then being sent to the sewing room floor Styron was a marker The Geneial Counsel contended that Stvron was a super- visor. The undersigned cannot agree as the testimony showed that she was no more than a lead man without real supervisory authority MOREHEAD CITY GARMENT COMPANY, INC. 255 thereupon went out to both automobiles and invited the four occupants parked therein to attend,the meeting. This invitation was unanimously refused but both cars were among the very last ones to leave the vicinity at the conclusion of the meeting. Dill protested during his testimony that he had chosen a very bad location to park because he could not gee. However it is obvious from the fact that the presence of the two automobiles owned and driven by high pfficials of the Re- spondent was noted by the attending employees that the Respondent accom- plished its purpose regardless of Dill's ability to see. Such obvious and open surveillance of union meetings has universally been found to constitute inter- ference, restraint, and coercion by both the Board-and the courts. It is also obvious that Ruth Styron was acting as an agent for the Respondent and was so held out to the employees at this time. Also throughout this organizing period the Union distributed leaflets both in front of the plant and also on occasion in the plant. On one occasion when leaflets were being distributed by Organizer Witt in front of the plant, Ruth Styron stood at the entrance to the plant, in the presence of Dill, and "snatched" the leaflets from the employees to whom they had been handed, crumpled them up, and tried to return them to the organizer. One employee complained that she should be allowed to read the leaflet before it was taken away from her. Another union adherent, Dallas Gilliken, in answer to Styron's statement that she would get the leaflet from Gilliken, informed Styron in no uncertain terms that "If you put your hand on me this morning, I will pop hell out of you." Ap- parently Styron took Gilliken's word for it because Gilliken entered the plant past a grinning plant manager with her leaflet in her hand Early in the campaign Mrs. Jackson made a statement over the public address system in the plant that she did not want a union and advised the girls not to join it but acknowledged that it was up to the employees to make up their own minds whether they wanted to join or not. On June 12, 1949, the Respondent was informed by letter over the signature of E. W. Witt, representative of the Union, that the Union had appointed a com- mittee consisting of Velma Lawrence, Pauline Miller, Janice Dowdy, Amanda Toler, and Sally Smith to act for it. On June 15, Manny Kay, one of the part- ners of Mrs Jackson in both the Respondent and Beaver Shirt Company, ar- rived in Morehead City on an "unplanned trip" and spoke to the assembled em- ployees in part as follows : I made a special unplanned trip to Morehead City today because of some rumors in this plant that were reprehensible or in other- words, under- handed, dishonest. Up to this time, the fact that some union was trying to get you to join up and pay dues from your earnings did not bother me very much, because to me you represent a much higher calibre of intelligence than we frequently meet and I knew that this intelligence would lead you to make the proper choice if and when the time arose, and I therefore planned to let nature take its course, fully confident of the results. While I still do not doubt the results I find that I must now talk to all of you like a Dutch uncle, . There seems to be some impression or misunderstanding to the effect that we are now recognising [sic] or dealing with the Union or the union organ- izers or a committee for the Union. This is absolutely untrue. We are not' recognising [sic] or dealing with any such group Let's all go back to work, forget all this uproar and confusion and let the union organizers go back where they came from. .. . 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Some of the employees understood Kay to advise the employees "to run the organizers out of town." Soon after Kay finished his speech Rosa Bell asked Lucy Miller how she had enjoyed the speech and was told that if they would give Miller "the damn microphone I would organize the place " In answer to that Bell stated : You everyone are fixing to get fired , everyone belonging to the Union, Mrs. Jackson is going to move the plant or close it down.' Sometime later in the month of June a meeting was held in the stitching de- partment during the lunch hour . Ruth Styron took Lucy Miller and Amanda Toler by their arms a nd led them to the stitching floor with a statement that they should -listen to the speech of Examiner Ruby Swinson as she was going to say something for their own good . Among others present during this meet- ing were Rose Garner, Opal Arthur , Rosa Bell, and Leo Simpson , all of whom were supervisory employees of the Respondent After the crowd had been gathered, Ruby Swinson , a nonsupervisory employee , told the assembled em- ployees that Mrs. Jackson had showed her a price list and that Mrs. Jackson was paying as much as she could and would go broke if she had to pay any higher prices and would close the plant if the Union came in. She also stated : Mrs Jackson would be a foot to take any snore orders if the Union came in" and then told the employees about how the Union had closed plants in nearby New Bern and Kinston. No one contradicted any of the statements made by Ruby Swinson Soon after this meeting Rosa Bell told employee Lucy Miller, "Mi s Jackson will close the plant down before she lets the Union come in there and we might as well get it through our heads and quit trying to organize the place" Rosa Bell also told Lucy Miller that she herself had been interested in joining the Union but was afraid to do so for fear she would lose her job. Lucy Miller testified that on the Friday before the Fourth of July holiday, Manny Kay and Mrs. Jackson came through the sewing room, stopped a few feet The parties at the instant heating were in disagreement as to the supervisory status of Rosa Bell and Opal Arthur. However, the Respondent did not except to the finding of the Regional Director on the Objections to the Election in Case No 34-RC-l50 that Rosa Bell's vote in that election had been correctly challenged on the basis of her supervisory status The facts prove that the Regional Director's finding was correct. There were at all times material herein 150 or 200 emplovees in the Respondent', sewing room Admittedly, by stipulation, Murray Kemp and Rose Garner were in charge of these employees Under these 2 acknowledged supervisors were Rosa Bell and Opal Arthur. The duties of these latter 2 persons were to check the work of the employees engaged in sewing , Bell on general sewing and Arthur on the small parts like collars, pockets, etc They reported and corrected all mistakes which were being made, taught all learners, reported all breaches of discipline, shifted employees from one job to another as required, and were consulted upon the w•omkmanship and efficiency of the operators. Their orders to the operators were obeyed. They very rarely, if ever, did any operating and were, therefore, paid a daily wage instead of the piecework rate as were the operators The Respondent contended, and Bell and Arthur both testified, that these persons merely "checked quality," carried orders from Kemp and Garner to the operators, and reported mistakes and breaches of discipline to their superiors, and that the operators were under no duty to obey their instructions The fact is that the operators obeyed the orders and instructions of Rosa Bell and Opal Arthur without question If the testi- mony of Bell and Arthur were true, the operators had no notice that Bell and Arthur were merely relaying orders to the operators from Kenip and Garner As aptly testified to by Mrs Jackson, the operators "knew" who their supervisors were without any official announcement thereof The operators knew both Bell and Arthui as their supervisors In view of the number of operators under the direction of Kenip and Garner, it is obvious that they could not supervise all these operators alone and without help The under- signed, therefore, finds that both Rosa Bell and Opal Arthur were supervisors within the meaning of Section 2 (11). MOREHEAD CITY GARMENT COMPANY, INC. 257 from her machine where Mrs Jackson remarked, "I had two overlocking ma- chines but sent the other back since the union mess came up." A few minutes later the two returned to within a few feet of Miller's overlocking machine where Mrs. Jackson inquired of Kay whether he thought he could find "a buyer for the plant." Both Kay and Mrs. Jackson denied that any such conversation took place as testified to by Miller They based their denial largely upon the fact that they were "not in the habit" of talking business outside of Mrs. Jackson's private office. Kay was positive that he was not in Morehead City on the day in question Otherwise his denial was based upon probabilities. The undersigned believes that Ifiller (and Margaret Rhue who confirmed her testimony as to the date) was mistaken about the date but credits her testimony otherwise for Miller gave none of the appearances of a witness who did, or would, fabricate evidence and because her testimony otherwise was corroborated or undenied. On the con trary Mrs. Jackson's testimony was frequently at variance with the facts. On July 27 Sally Smith was discharged under circumstances which will be more fully set forth hereinafter On the last day Sally Smith worked, Rosa Bell, after consulation with Rose Garner, informed employee Mattie Barbour that: "We got to get shed of Sallie Smith . . . If we don't get Sallie out of here, Mrs. Jackson is going to shut the plant down And we wouldn't have no jobs to work to." During the lunch period that same day Smith, who was one of the loudest and most outspoken advocates of the Union, had worn a CIO sign pinned to the front of her dress which read as follows' If I went to work in a factory, the first thing I'd do would be to join a union /S/ I+ RANI-LIN D ROOSEVELT. Under these circumstances there is only one implication to be drawn from the statement made by Rosa Bell On August 10 John R Sullivan as international representative for the Union signed the following waiver in Case No. 34-RC-150 and filed the same on August 12: The undersigned hereby waives any right, power, or privilege to protest any election held in the above-entitled case on any ground set forth in Case No. 34-CA-143. Dated at Winston- Salem , North Carolina this 10 day of August 1949. Thus the Union was precluded from thereafter contending that any of the events Heretofore related in this Report affected the election in that case -unless, of course, the Respondent continued to use coercive tactics to force is employees to vote against the Union or in any other manner made it impossible for a fair election to be held. However it is well-settled law that such a waiver as that above quoted does not grant to the Respondent carte blanche to commit unfair practices thereafter . The waiver is signed upon the assumption that no further unfair labor practices will be committed thereafter . If such assumption is not in fact fulfilled, then and in that event only, may the prior events be considered on the question of the fairness of the election Consequently the undersigned will, for the present , consider only whether unfair labor practices have been committed subsequent to the execution of this waiver The events in the section will, therefore , not be considered unless the Respondent has subsequently coin- initted practices which would in themselves prevent the election of October 17 from being a free expression of the desires of the employees. 953841-52-vol 94--18 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Events from August 13 to October 17, 1949 During a large part of this period applicants for employment with the Re- spondent were required to fill out an application form, a 3 x 5 card, containing a question requiring the applicant to disclose his or her union affiliation. Such a requirement is per se a violation of the Act as has been found by the Board and by the courts. Sometime in September 1949 the Respondent had some forms printed which eliminated the objectionable question 10 Although the new forms were printed during September, the Respondent continued to use the illegal form until that form was "used up." In August 1949 Minnie Katherine Piner applied for work at the Respondent's plant. After filling out her application form, she was ushered in to see Mrs. Jackson who asked her if she had been one of the girls during the previous sum- mer who had told Mrs. Jackson that they were not going back to school and thereby secured summer employment but who later returned to school Accord- ing to Mrs. Jackson, the Respondent customarily refused employment to indi- viduals who were returning to school after the summer period. Piner was unable to recall exactly what she had told Mrs Jackson the summer before After asking who Piner's friends were and with whom she rode to work, Mrs Jackson suddenly asked if she were in sympathy with the Union finer "guessed" that she was. Following an interruption Mrs. Jackson asked: "Are you for the Union?" Piner answered : "Yes" Mrs. Jackson, then dismissed Puffer telling her that if she needed Piner she would send for her To date Pier has not been summoned. - Mamie Runnings reapplied for work with the Respondent about September 21 and filled out one of the illegal application forms. After looking over the form Dill informed her that if the Respondent needed her, the Respondent would call her. She has not been called. On that same day Mildred McLawhorn also applied for work. In filling out her application form, McLawhorn came upon the question regarding whether she was, according to her testimony, "associated with any union" and not knowing what that meant, left the question blank. After looking over the form, Dill told her that he would call her if needed She has not been called. By judicious use of this illegal application form and by interrogation of appli- cants as to their union affiliation, the Respondent retained the power to affect the results of the impending election by the simple expedient of employing only those who were against the Union. That the Respondent did in fact utilize this tactic is obvious from the fact that the Respondent continued to use the illegal form after knowledge that it had no right to do so. In addition to the use of the illegal application form the Respondent's super- visors continued to inquire regarding the employees' union affiliation and to attempt to coerce the employees to renounce that affiliation by suggesting that the plant would close if the Union won the election. Sometime before the election of October 17, Rose Garner asked Amanda Toler, who was one of the most enthusiatic supporters of the Union and who still works at the plant, if she "didn't think that we would get along all right without a union, get along just as well without one as we would with one." 10 Although the Respondent placed in evidence some of these new forms which omitted the question regarding the applicant's union affiliation, the Respondent failed to produce the old 3 x 5 application form although Dill readily admitted on cross-examination that such it form had been in use and that such form contained "a question on there we had no business using." MOREHEAD CITY GARMENT COMPANY, INC. 259 Rosa Bell inquired of Dallas Gilliken if she was "for the Union" and was told that it was none of her "damn business ." She also told Amanda Toler that Ali s Jackson would not operate the plant under a union Rosa Bell also asked Lucy Miller if she had been approached to join the Union and, at a later date, told Miller that Mrs. Jackson had told her (Rosa Bell) that before she would have a union in the plant, she would have to close down the plant On a further occasion Rosa Bell informed Miller that if Mrs . Jackson ever found out that Miller was a member of the Union , she, Mrs Jackson, would fire Miller On August 9, after Miller had been laid off from work for a few days, Rose Garner suddenly drove up to Miller 's home to inquire whether Miller was ready to go back to work Miller invited Garner into the house and introduced her to Organizer Witt, and a Miss Adams who was also connected with the Union and who happened to be visiting Miller at that time . After Witt and Adams had departed, Garner inquired whether he was the union organizer and was told that he was. Garner then stated : "Well , girl, you are skating on thin ice, don't you know that ?" When Miller objected that the law gave the employees the right to join a union, Garner reiterated , "I am just warning you, you are skating on thin ice." Garner then gave as her reason that Mrs. Jackson was not going to have a union in the plant. After returning to work on August 10 in response to Garner's invitation, the operation which Miller was then working on for the first time during her em- ployment at the plant was suddenly abandoned on August 15 and Miller was laid off She has never since been recalled to work although Mrs. Jackson , during her testimony , insisted that Miller was not discharged . This question will be discussed hereinafter and found to constitute an unfair labor practice. By the time the election was only a few weeks off, it was "common knowledge," "barber shop conversation ," and "no secret" that Mrs Jackson would close the Morehead City plant if the Union won the election . This fact was the subject of conversation all over Morehead City and Beaufort wherever people congre- gated. The business community would naturally be adverse to having the largest employer of labor in the community closed. Businessmen , doctors, and even Mayor Dill of Morehead City, brother of Plant Manager Lonnie Dill , talked to the employees . Mayor Dill himself addressed an antiunion meeting a few days before the election was held. Plant Manager Dill testified that his brother's convictions on the subject were so well known that he did not even have to inquire of his brother as to which side of the question he took at this meeting. One such businessman , David F. Merrill , a merchant in Morehead City, injected himself into the election by taking it upon himself to call upon various employees of the Respondent living in his neighborhood because, as he himself testified, the plant "could close down" if the Union got in and he "knew" that these employees "needed work " As a witness Merrill disclaimed any connection with the Respondent or that he knew any of the Respondent's officials except Leo Simpson whom he had not seen at the time Merrill testified that he was unable to give any indication as to where he got his information that the plant `could " close down except that "It was the public talk . It didn 't seem to be any secret " He was an independent merchant with no ostensible connection with the Respondent. The hostility, evasiveness , and forgetfulness of Merrill as a witness spoke volumes . However he had heard that the plant "could"-not "would," as witness Merrill was careful to point out on the stand-close if the Union won the election . In a community so devoid of industries as Morehead City and Beaufort the closing of the biggest industrial concern in the area is a J 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matter of real concern not only to the employees but also to the business and professional community as well. Because Merrill, the only businessman to testify at the hearing, denied any connection with the Respondent, the Re- spondent disclaimed responsibility for Merrill's activities But 2 or 3 weeks before the election employees Mildred Esther Willis and her niece, Janice Willis, were called to Mrs Jackson's office. Mrs Jackson stepped out of the office just as the Willises walked in. Dill was seated in the office and without even looking up, he inquired : "Do you belong to the Union, or are you for us?" When the Willises hesitated to answer, Dill insisted : "Well, are you?" After the Willises acknowledged that they were for the Company, as they actually were at that time, Dill remarked that that was what he wanted to know. A few minutes later Mrs. Jackson returned and began telling them that the Union was no good and added that if the Union did come in, she defi- nitely would close the plant. To emphasize her determination in this regard, Mrs Jackson told the Willises about her departure from Lykens, Pennsylvania, where, after a year or so of union trouble, the plant was closed down and the Jacksons hurriedly departed amid a shower of brickbats and rocks hurled at their LaSalle automobile which still retained some of the dents Mrs. Jackson stated emphatically that the Union was mostly the riffraff of the employees and that she was not going to have them manage her and tell her what to do ; she would close down. Then Mrs. Jackson inquired if the Willises had any friends in the laundry who were in favor of the Union and asked who they were. Not desiring to be "stool pigeons," the Willises refused to name their friends " but Mrs. Jackson said that she knew who their friends were Then both Mrs. Jackson and Dill requested the Willises to "go out and try to talk those girls into being nonunion." The Willises agreed to do so and, in fact, , (lid make the attempt Mrs Jackson, on the other hand, testified that the Willises came to her othce without solicitation and told hei that they were antiunion and were going to by to convince the other employees to be antiunion also. Dill corroborated Mrs Jackson in part. Mrs Jackson did not deny hai ing told the Willises about her experience in Lykens, Pennsylvania The undersigned is unable to accept the testimony of Mrs Jackson about this matter because Mildred Esther Willis was one of the most impressive witnesses this Examiner has ever had the pleasure of having appear before him. Slie had signed a union card and had no other part in the Union, and, in fact, had, determined not to remain a mem- ber thereof. She did not want to betray her union friends to Mrs Jackson or at the hearing. She did not want to testify against Mrs. Jackson but was forced to testify under subpena. She was hoping for reemployment at the time she testified She impressed the undersigned as one witness who was telling the truth, the whole truth, and nothing but the truth, and, therefore, the under- signed accepts the version of the incident as testified to by Mildred Esther Willis and as found above. Thus, Mrs Jackson, herself, was publicizing the fact that the plant "would definitely close down if the Union came in." She was requesting employees to pass that word around Therefore if it became a matter of public knowledge or "barber shop conversation," that result is exactly what the Respondent re- quested should happen to that information. Thus, if the businessmen thereafter acted as it was to be anticipated that they would act when that knowledge be- "In fact Mildred Willis refused to name those persons at the hearing until ordered to do so by the Trial Examiner with the assurance that the law would protect those she named MOREHEAD CITY GARMENT COMPANY, INC. 261 came public conversation , it appears to this Examiner that the Respondent most assume the responsibility for the visits of such public-spirited gentlemen as David E . Merrill, who was only advising the employees because he knew that "they needed work " There is more than one way to enlist support for one's activities. C. The discharges 1. Sally Smith Sally Smith had worked for the Respondent at different times totaling ap- proximately 4 years Her last period of employment began in January 1949 and ended with her discharge on July 27, 1949. Previously she had been a "feller" doing an operation known as "felhn-, " In January 1949 Rose Garner assigned her to setting collars, an art she was taught by Opal Arthur and Rosa Bell After approximately a month of collar setting. Garner transferred her back to felling to replace an operator who quit. Sally Smith is a big, rawboned woman with a voice to match. She is positive znid flamboyant and will voice her opiuioils in any company. She joined the Union on May 24. She was one of the first and, due to her disposition and physique, was admittedly one of the noisiest and most vociferous advocates of the Union whose activities were well known to the Respondent. As Mrs. Jack- son herself testified, no one could doubt where Sally stood. The first of the union neighborhood meetings was held at the Smith house. This was the meeting which was "blanketed" by the Respondent's supervisory force, including Ruth Styron, equipped with pens and paper Subsequently other union meetings were also held at the Smith place but without the presence of the Respondent Sally was also busy acting as the guide for the organizers, taking them to the homes of the employees, and in otherwise getting the em- ployees interested in the Union being the type she is she definitely made no attempt to conceal her feelings and her advocacy was well known By letter dated June 12, 1949, the Respondent was unfoimeil that Sally Smith was one of the meuihers of the union committee. By June ll the threat of oiganization v1as becoming so great that Manny Kay made his "unplanned" trip to Morehead City in order to inform the employees that the Respondent was opposed to the organization of its employees Between that (late and July 27, Smith and Ruth Styron, well known for her antiunion activities in view of her assistance to the Respondent in keeping, the Smith home under surveillance, had three or four arguments in the plant over the question of the Union. Even Sally Smith acknowledged that these arguments could have been heard all over the plant. Having seen and heard both Smith and Styron, the undersigned accepts this testimony as true. On the last day Smith worked, Thiirsday, July 21, she took occasion during the lunch hour to pin on the front of her dress the large 010 placard described above. This caused considerable comment around the place. Even Lonnie Dill saw it. After work had begun that afternoon, one of the workers, a Mrs. Alice Cox, asked to see the sign but Smith refused to display'it during working hours. That same afternoon Rosa Bell asked employee Mattie Barbour to let her operate her machine awhile. While so operating Bell asked Mattie to do something for her and then saying "Let me see Garner" left the machine for a period and conferred with Garner before returning. When Barbour asked what they wanted her to do, Bell answered : "Well, Mattie, we got to get shed of Sallie Smith . . . If we don't get Sallie out of here, Mrs. Jackson is going to shut the plant down . . . And we wouldn't have no jobs to work to." Bell 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then requested that Barbour go to employee Alice Cox and tell Cox that Sally Smith had stated that the reason Cox would not join the Union was because she, (Cox) did not have the one dollar initiation fee. Bell then explained that this statement would make Cox mad and cause her to start a fight with Sally, that Mrs. Jackson would then discharge both of them and would rehire Cox but not-Sally. Barbour refused to enter into this plot stating that she was as much in favor of the Union as Sally. Thereupon Rosa Bell threatened that Barbour would be fired if she ever told Sally or Organizer Witt about this matter.' Later that same afternoon Garner informed Smith that there would be no work for her the following day, Friday, July 22.15 It was not unusual for the operators to be given a day off because of slack work. Smith herself had been given days off on similar occasions some 10 or 12 times previously On Monday and Tuesday, July 25 and 26, Smith was absent from the plant because of illness, As required, Smith reported her inability to report to work to Isabelle Rose, the Respondent's office girl." When Smith reported for work on Wednesday, July 27, Dill told her that he could not let her go into work because he was discharging her for too many "unexplained illnesses." When Dill wrote this on her separation slip, as the reason for Smith's discharge, Smith told him that he should put "union activities" as the cause. Dill shook his head and smiled. Two days thereafter, Friday, Pete Hooper, Respondent's bookkeeper, drove to the Smith house in a company car, told Smith that Mrs. Jackson wanted to see her, and drove her back to the Respondent's plant where she saw Mrs Jackson. After Smith was ushered into Mrs. Jackson's office, Mrs. Jackson said "Good Morning" and then waited quietly until Dill and Garner came into the office before saying any more. Mrs. Jackson then recalled that Sally had told Dill that he should have put union activities on her separation slip and denied that Sally had been discharged for union activities. She then stated that she had had re- ports Sally had been seen in the same automobile in Morehead City twice on Tuesday.36 Smith denied this stating that she had been home sick. Whereupon Mrs. Jackson accused Smith of not having phoned the Respondent that she was sick which Sally again denied and was corroborated in her denial by the office girl, Isabelle Rose. Next Mrs. Jackson informed Smith that she did not like the things Sally had been doing and the "disturbances" she had been "causing" but that she held no malice. Smith contended that Styron had started each of the arguments in the plant and then added that she thought Mrs. Jackson would be better off with a union in the plant as the girls would make more money and work harder. Mrs. Jackson replied that if Sally could prove to her that she had been sick, she would put Smith back to work, adding that nothing would have been said if she had appeared for work on Tuesday Mrs. Jackson first suggested that Smith's son and daughter-in-law would be satisfactory witnesses but then 11 This remarkable testimony remained undenied b3' Garner and Bell but, strangely enough, Cox very truthfully testified that she knew nothing about the plot As the innocent foil, it is highly unlikely that Cox would know a thing about the plot "The Respondent introduced the original time cards for Sally Smith and asked leave to substitute copies therefor. This permission was granted Upon receipt of the exhibits after the hearing, the undersigned has discovered that some of these copies were so in- adequately and poorly copied as to be practically meaningless This is particularly true of the copy of the time card for the week ending July 22, 1949 14 Although called as a witness by the Respondent, Isabelle Rose did not deny this testimony. 15 Smith frequently drove with the organizers in their autos. MOREHEAD CITY GARMENT COMPANY, INC. 263 changed her mind on the ground that "blood is thicker than water" and requested that Sally prove her illness through a neighbor. She also suggested that she secure a doctor's certificate. That afternoon Sally secured a statement from a Dr. Salter of Beaufort ex- plaining Sally's troubles but not specifically stating that Sally had been sick on Monday which Dr. Salter did not know as he had not been called to attend her. When Sally presented this doctor's statement to Mrs. Jackson, she was told that it was no good. Then Mrs Jackson demanded that Sally produce a neighbor as a witness. A week or two later, after a number of unsuccessful attempts to make an appointment with Mrs Jackson to see this neighbor, Smith finally succeeded in bringing a Mrs. Dominique face to face with Mrs. Jackson who told Mrs. Jackson that Smith had been sick on the Monday in question. But this time Mrs. Jackson again remarked that if Smith had reported for work on Tuesday, nothing would have been said. She then informed Smith that she would get in touch with gay and let her know his decision the following day. Mrs. Jackson never got in touch with Smith thereafter. But Smith did talk to Dill, on the phone, who insisted that she fill out a new application form and take a sewing test. This last conversation occurred about April 1950. Smith filled out the required application but she has never heard from the Respondent since nor been employed. At the hearing, for the first time, Dill advanced the reason for the discharge of Smith as being the fact that the doctor's note indicated that in her physical condition Smith would remain an irregular employee This, of course, is a drastic change of position taken after the event. Any plant employing women is always subject to this inconvenience. Like other similar plants the Respond- ent maintains a staff of operators for the express purpose of filling in in just such emergencies as this. The mere recital of the fact indicates the intensity of the desire which the Respondent had to rid itself of the presence of the Union's most vocal and effective leader. First the Respondent organized a plot in order to provide an apparently legitimate reason for discharging Smith. When that failed, the Respondent looked for other causes for discharge. The Respondent first stated that Smith was fired because of her "unexplained" absences until it was dis- covered that those absences -had been explained. Then the Respondent shifted to the fact that it did not believe Smith had been ill-until that basis was exploded. Finally after the event, the Respondent placed the reason as "irregu- lar attendance," an excuse byy which many women could be eliminated from employment. This irregularity of employment was more pronounced before Smith became active in the Union than it was afterwards as 10 of Smith's absences occurred between January and July while only 7 occurred thereafter. But no criticism was ever leveled at Smith on this account until the day she was discharged. Interestingly enough it must be noted that, while Mrs. Jackson objected to the "disturbances" in which Sally was the union protagonist, no such criticism was ever made against her antiunion opponent in each of those disturbances, Ruth Styron. This, in itself, is a good indication of the Respondent's antiunion animus. Under all the facts the undersigned can only'conclude that the Respondent discharged Sally Smith on July 27, 1949, because of her membership and activity on behalf of the Union and in order to discourage such membership and activity in violation of Section 8 (a) (3) and 8 (a) (1) of the Act. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Lucy Miller Lucy Miller was first employed by the Respondent (luring the third week of April 1949 as the operator of the large overlockmg machine. During Miller's career at the Respondent's plant she was transferred practically every 2 weeks from one job to another, never having an opportunity to stay on one job long enough to become really proficient at it. Finally Miller who never made the "mininnlm," i. e, earned enough at piece rates to equal her guaranteed dally rate, became discouraged and attempted to leave the Respondent's employ. At this time, sometime in early June, when she learned of Miller's decision to quit, Mrs. Jackson spoke to Millei. informed her that the Respondent wanted to teach her mole than one operation so that when work was slack on one job she could be transferred to another, and urged her to remain with the Respondent, telling Miller that Garner had reported to her that Miller bad sewn more zippers in her 2 weeks on that operation than anyone the Respondent had ever put on the job. At Mrs. Jackson's behest, Miller remained. On May 31 Miller joined the Union and became active in the union drive, soliciting the members among the employees, acting as a guide for the organizers in seeking out employees at their homes, in attending union meetings, and generally in helping the Union to organize the plant. As one of the active union advocates, Miller's sentiments were soon well known. On June 15, 1949, after Kay's speech of that day, Miller answered Bell's question as to how she liked Kay's speech by stating that if they would give her the "damn microphone," she would organize the plant. Lucy Miller was well known as a leader of the union group. She, like Smith, was frank, fearless, and outspoken. On one occasion, probably at the time of Kay's visit to the plant on June 15,18 Mrs Jackson and Kay stopped by Miller's machine while the employees were cleaning their machines, where Mrs. Jackson told Kay that she had sent back one of her overlock machines, and a few minutes later asked Kay if he had a purchaser for the Morehead City plant 17 After the vacation over the Fourth of July, Miller worked only a few days in the plant sewing zippers before she was laid off on the ground that there was insufficient work for her and was told that she would be sent for when needed. On August 9, 1949, Rose Garner drove up to Miller's place of abode and in- quired of Miller whether she "was ready" to go back to work. Miller said that she was and then proceeded to introduce Garner to Organizer Witt and a Miss Adams, another employee of the Union, with whom she had been conferring prior to Garner's arrival Witt and Miss Adams left almost immediately there- after whereupon Garner inquired if Witt were the union organizer. When informed that he was, Garner told Miller : "Well, girl, you are skating on thin ice, didn't you know that?" When Miller protested that the laws of the United States gave the employees the right to organize, Garner rejoined: "I am just warning you, you are skating on thin ice. Mrs. Jackson is not going to have a 'union in there." Miller returned to work the next clay, August 10, and worked for the following 31/2 days doing sleeving on the large overlock machine, an operation she had never performed before. 16 Both Miller and Margaret Rhue were mistaken in placing this conversation as having occurred on Friday before the July 4 vacation 11 Both Mrs Jackson and Kay denied that this conversation took place as above found for the reason that they "generally " did not talk business on the factory floor , but only in Mrs Jackson ' s office This denial , based upon "probabilities ," did not impress the undersigned. MOREHEAD CITY GARMENT COMPANY, INC. 265 On Monday, August 15, Garner. after informing Miller that the Respondent was abandoning the overlock sleeve operation, sent Miller to Mrs. Jackson who showed her a night letter, received from Manny Kay in Morehead City at 8: 31 a in August 14, reading as follows : "Customers object to over-lock sleeving on corduroy discontinue immediately and revert to double needle " When Miller asked if there were anything else Mrs. Jackson wanted her to do, Mrs. Jackson answered that there was nothing as Miller was "just too slow." Re- minded of Garner's compliment on other work which Miller had done, Mrs Jackson replied : "You are just too slow, we don't need you anymore." Although Mrs. Jackson insisted during her testimony that Miller was not discharged but was laid off only because the Respondent has had no work for her, Miller has never been recalled by the Respondent despite the fact that it was stipulated at the hearing that 10 employees were "hired or rehired" during August, 12 in September, 16 in October, and substantially the same number each month thereafter. One of the Respondent's exhibits in this case indicates that Miller was dis- charged because the operation she was performing had been discontinued. At the hearing the Respondent began to contend that Miller's work was un- satisfactory and that the Respondent did not rehire employees whose work was not satisfactory. As to this last an exhibit prepared by the Respondent of the employees discharged by the Respondent proves that employees were rehired after having been discharged for poor work. As for the first reason given, this testimony does not stand up under examination of other uncontradicted evidence in the record for the reason that, if Miller's work had actually been unsatis- factory, why then did Mrs Jackson urge her not to leave the Respondent's employ when Miller wanted to do so, why did Garner praise Miller's work on other operations and why did the Respondent send for Miller on August 10? Re- spondent's acts disprove the Respondent's testimony. Like Sally Smith, Lucy Miller was an ardent advocate of the Union and one who was not afraid to say so. She was dangerous to the Respondent's intention to keep the Union out of the plant Therefore the Respondent seized upon Kay's telegram of August 15 to remove her from employment in order thereby to dis- courage membership in the Union. The undersigned finds that the Respondent discharged Lucy Miller on August 15, 1949, in order to discourage membership in the Union and in violation of Section 8 (a) (3) and 8 (a) (1) of the Act. 3. Mattie Barbour Mattie Barbour began her employment with the Respondent in October 1948 as a zipper setter and continued with that as her regular occupation with interludes of pleating pockets and relabeling shirts until her discharge on September 29, 1949 She joined the Union in June 1949 and attended a number of union meetings held in the various neighborhoods. Until July 21 her union sympathy was apparently not widely known for it was on that date that Rosa Bell, after consultation -ith Rose Garner, selected Barbour as the foil-to instigate the plot of getting employee Cox mad enough to start an argument with Sally Smith so that the Respondent could fire both Smith and Cox, it being understood that Cox would be reemployed On that occasion Barbour refused to execute her part of the plot on the ground that she was as much for the Union as Sally Smith. Rosa Bell thereupon threatened to have Barbour dis- charged if she ever told either Organizer Witt or Smith of this abortive plan. It is obvious that the Respondent, and especially Bell, would thereafter be anxious to be "shed" of Barbour as well as of Smith. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, thereafter things went along as usual for Barbour until September 29, 1949, when Garner returned a large batch of shirts upon which Barbour had set the zippers. These zippers were incorrectly placed on the shirts. When Garner brought the batch of six dozen shirts to Barbour's attention, Bar- bour stated that she had set the zippers according to the notches 18 while Garner maintained that she had not. After an examination of a few shirts, both parties remained of their original opinion. In addition, Garner claimed that the operator was supposed to zip up a few shirts in order to be positive that the zippers were being set correctly. Barbour denied that there was any such instruction Garner continued to insist that the fault was in Barbour's work and thereupon discharged Barbour. She has not been reemployed by the Respondent since From the welter of testimony it is clear only that a considerable number of shirts had been sewn so that the zippers did not work correctly and that the zippers had originally been sewn by Barbour. To determine whethei the error was the fault of Barbour of that of the operator who made the notches at this time and after the parties themselves had tailed to determine that quesion after an examination at the time, would, in this instance, be largely a matter of guesswork. Although the examination was rather cursory, and although the penalty was extreme, to put it mildly, as operators doing bad work are usually only asked to make the repairs especially in the case of an operator who had served satis- factorily for 11 months," the undersigned is of the opinion that Garner had reason to consider that this erroneous work was justification for Barbour's discharge. Nor does the undersigned believe that the Respondent utilized this batch of work as a mere pretext for which to discharge Barbour The event of July 21 was in the too far distant past and Barbour's activities on behalf of the Union had been too inconspicuous and innocuous. Thus, the discharge of Barbour would not serve as a warning to the other employees that membership in the Union was suffi- cient to cause employees to lose their jobs as it did in the discharges of Smith and Miller. Admitting to severe doubts as to the correctness of this ruling due to the many and extremely suspicious matters connected with the discharge of Barbour, the undersigned is still constrained to hold that the evidence is insufficient to prove that Barbour was discharged because of her union activities and, there- fore, will recommend the dismissal of this part of the complaint. 4 Margaret Rhue and Bessie Robinson Margaret Rhue had worked for the Respondent for a number of years, the last period of employment being for about 2 years up to the time of her discharge on December 21, 1949. She was admittedly one of the best and fastest l eemmers in the plant, having been told by Mrs. Jackson that she could easily make far above the minimum rate if she cared to do so Rhue is young, enthusiastic, and full of energy Like Smith and Miller, she gives the appearance of fearing noth- ing and no one. Bessie Robinson is older and quieter. At the time of her discharge on De- cember 21, 1949, she had more seniority than any examiner in the plant by far, having been an examiner for seven consecutive years. She was also one of 78 These notches were made in the material during another operation to show the zipper setter where to place the zippers 11 Although Dill testified that Barbour had made the minimum only once during her employment with the Respondent , Barbour was employed for a period of 11 months proving quite conclusively that employees were not discharged for failure to make the minimum and that such failure was not the serious matter which the Respondent attempted to make It at the hearing MOREHEAD CITY GARMENT COMPANY, INC. 267 the best examiners as the Respondent had her do the examining of samples, work which had to be perfect. Rhue joined the Union on June 1. 1949, and immediately became one of the most flamboyant and noisy of the union adherents. She worked hard to organize the plant as the Respondent well knew. On the other hand, Bessie Robinson joined the Union in June and attended one union meeting at the home of Sally Smith. That constituted the extent of her union activity except that she did ride around in one of the organizer's auto- mobiles on the day of the election when she was seen by Styron and Garner. Both Mrs Jackson and Garner denied having any knowledge of Robinson's union affiliation which is believable as Robinson appears to have been a quiet, self- contained person. At the time we are concerned with here, the Respondent's operations were set uh on a production-line basis There were 7 such production lines where the ma- terials began at one end of the line and passing from operator to operator came out at the other end of the line a completed garment. The last operation per- formed in this line was the bottom hemming 20 The completed shirts were then examined by a staff of examiners Ni ho were located in a group perpendicular to the assembly lines and located at the end where the completed garment issued. There were 10 or 12 examiners who examined the work from all 7 of these pro- duction lines. The hemming machine on which Margaret Rhue sewed was located within 3 feet of the station at which Bessie Robinson worked and closer to Robinson than to any other examiner. Like the production workers in the plant the examiners are paid on a piece. work basis. Under the system then used in the Respondent's plant, the examiners secured their own bundles of work to examine from the hemmers The first examiner to secure a completed shirt at the end of one of these production lines was entitled to examine all the shirts in that particular bundle. Thus, if two examiners were out of work at the same time, they were in direct competition to locate and secure the first completed shirt in a new batch from one of the seven production lines. The unsuccessful contestant for this bundle of shirts would then become a contestant to locate and secure the first shirt in the next batch on another production line Thus, the competition between the examiners to secure work with which to keep themselves busy and to make a living was direct and continuous This system is not conducive to amicable relations between examiners. At the time in question the Respondent was making two types of shirts-silk and garbardme. these later commonly referred to as "gamblers." During the morning of December 21, Truman Kemp, concededly the supervisor in charge of the sewing floor, sent ;Robinson and Rhue to Dill's office where Dill discharged them foi "working in collusion, hogging the work and depriving others of work." At that time Dill had some of the work stickers in front of him which he said proved his contention. Both Robinson and Rhue denied the accusation. Rhue went into quite a tirade during which she remarked that she had been on the verge of abandoning the Union but now she would "see them fry in hell first " Rhue attempted to get Mrs Jackson to come to the sewing floor where Rhue said she would disprove the accusation. Mn. Jackson refused on the ground that she had confidence in Dill's judgment. Robinson and Rhue remained discharged and have never been reemployed. The reason assigned on their separation slips was "depriving others of work " In the last week,of October, Mrs. Jackson called the examiners and the hemmers to a meeting for the purpose of introducing them to Truman Kemp who had 20 Bottom hemming was Rhue's operation on one of these lines 4 268 DECISIONS OI, NATIONAL LABOR RELATIONS BOARD been just hired as the sewing floor supervisor About a week or two later, early in November, Mrs. Jackson again had the examiners in for a meeting in order to reprimand them because a considerable amount of bad work had been sent to the laundry and for the purpose of explaining to then the new piece rates. Mrs. Jackson told them that they would have had the advantage of these new piece rates long before had it not been for the Union. This is obviously an attempt to discourage union membership by enticing the employees away from such membership in violation of Section 8 (a) (1) of the Act. Mrs. Jackson testified that on each of the afore-mentioned occasions she had specifically told the examiners that they must share the work equally and, on the second occasion, added the warning that anyone who was not sharing the work equally would be discharged. The undersigned cannot- accept this testimony for the reason that the record is quite clear that this "hogging of the work" was supposed to have occurred during the Christmas rush, only 3 or 4 weeks before the discharge, as Irene Lewis, the head examiner, testified Thus, there was no occasion for Mrs Jackson's alleged remarks about sharing the work at the time of these meetings. Only one witness testified that Robinson and Rhue were hogging the work more than a month before the discharge and that witness proved to be an exceedingly pliant witness for the Respondent whose testimony was grossly exaggerated The Respondent originally contended that the alleged conspiracy of Robinson and Rhue "deprived others of work." Due to the uncontradicted testimony of the Respondent's own witnesses that the gambler shirts which were being pushed at this time ii ere "piling up" faster than they could be examined, as there was thus an abundance of work, the examiners could not have been "deprived of work." This contention is spurious. Next, the Respondent contended that through this combination Robinson was examining only silk shirts, the "better work." It was apparent from the testi- mony that each examiner had her own individual idea as to what constituted "the better work," some preferring to examine all silk, some all gabardine, and others a mixture of the two Furthermore, if indeed there was any distinction in the work on these garments, the difference in piece rates should have elimi- nated any difference in take-home pay. Therefore, this contention is also spurious. Strangely enough only one examiner even intimated that she was prevented from having sufficient work by Robinson and Rhue. This testimony not only contradicted the undisputed-testimony that the gamblers were piling faster than they could be examined but also this witness' own testimony disclosed that she chose never to get bundles from Rhue because she personally disliked Rhue. Thus, this accusation appeared to have been based on animosity. That this animosity between examiners was based upon union considerations came clearly to light in the testimony of the Respondent's witness, Bertie Beacham, who testified that an examiner named Mrs Ingram had complained about her "maybe because she's for the Union and I'm not" ; that she knew that Ingram "is Union as far as the company she runs around with" and that she, Beacham, "don't run around with anybody associated with the Union, that is one thing." The testimony of the examiners placed upon the stand by the Respondent in its\ttempt to sustain its numerous contentions in regard to Rhue and Robinson proved conclusively that the ardently antiunion Ruby Swinson, who was not called as a witness, was one examiner who was doing a great deal of complaining about Robinson and Rhue although there is no testimony that she herself made D MOREHEAD CITY GARMENT COMPANY, INC. 269 such a complaint to any of her supervisors. Ruby Swinson, of course, was violently opposed to Margaret Rhue, an advocate on behalf of the Union as ardent as Swinson was against it During the course of an antiunion meeting held in the plant just before the election, at which Swinson was the main speaker, Rhue had accused, and produced evidence tending to prove that the antiunion crowd was attempting to buy votes Thus the animus behind the discharge of Robinson and Rhue was the antiunion animus exemplified by Ruby Swinson. It is true that Robinson generally secured most of her work from Rhue whose machine was located only 3 feet from Robinson's station This would only be natui al due to their physical proximity. But the uncontradicted testimony proves that for a period of 2 or 3 weeks prior to the discharge, Robinson had not been securing her bundles from Rhue because for that period of time Rhue was doing the hemming before the collar setter did her work so that the bundles were being distributed from the collar setter-and not from Rhue. Thus, at the time of the alleged conspiracy, Rhue had no control over the disposal of the bundles. This, according to all the witnesses produced by the Respondent except one, was the period of time in which the conspiracy between Robinson and Rhue was supposed to have been at its worst. Nor does the contention hold water for the reason that, as Dill testified, Rhue averaged about twice as many shirts as Robinson was able to examine. Rhue and Robinson were admittedly excellent employees-except that Rhue was for the Union. This was another conflict between the union and antiunion adherents where again the Respondent had the opportunity to show conclusively to its employees that their advocacy and adherence to the Union could, and would, cause them to lose their employment. In addition, due to the fact that Ruby Swinson and other antiunion employees were the complainants, the dis- charge of Rhue and Robinson also would be conclusive proof that the Respondent favored its antiunion employees. The completely cursory investigation of the so-called charges made by Dill together with the changes in position by the Respondent necessitated by their effort to find a plausible excuse for the discharges together with the other facts of this case, convince the undersigned and he, therefor e, finds that the Respondent discharged Robinson and Rime in order to discourage union membership in vio- lation of Section 8 (a) (3) and 8 (a) (1) of the Act. 5. Pauline Miller Pauline Miller began her second period of employment with the Respondent in January 1949, and worked steadily thereafter until her discharge on Novem- ber 28, 1b49. She had terminated her first period of employment in 1938-39 when she married. During her last employment , Pauline Miller was moved from one operation to another quite considerably but had been a regular "feller" for about the last month of her employment. Miller was one of the very first employees to join the Union. She actively solicited members , passed out union literature , acted as a guide for the organ- izers . attended a large majority of the union meetings, some of which were held at her own home, and was a member of the union committee whose names were given to the Respondent by letter of June 12, 1949. She was a very active union adherent as was well known to the Respondent. A few days after the election of October 17, which the Union lost , Pauline Miller and Margaret Rhue distributed another union leaflet both inside and outside the plant and were seen by the Respondent 's supervisory personnel while 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD so engaged. A day or two thereafter, Mrs. Jackson announced over the loud- speaker system that anyone caught with union literature in the plant would be discharged.2' As held unanimously by both the Board and the courts, such a broad rule covering as it does not only the company's time but the employees' time amounts to a violation of Section 8 (a) (1) of the Act. Sometime in early November 1949, Kemp returned a few shirts with raw edges to Miller claiming that they were Miller's bad work. Miller was able to prove that she had not clone the work by means of the work stickers . Whereupon Kemp apologized , telling her not to feel so badly about it as he was showing bad work to all the girls. Pauline, like all the other operators , had work returned to be repaired when it had been badly done . She apparently was an average operator , no better and no worse. On the Friday before her discharge , Kemp saw Miller in an automobile with Organizer Sullivan . This was not unusual as Miller rode with the oiganizei s quite frequently. On November 28, after Millet had been woiking about an houi in the morning, Garner sent her to see Kemp who had three or foul shirts with raw edges in front of him and who told Miller : "This is your second offense, we wilt have to let you go." Miller was thereupon given her pay check and has never been reemployed by the Company. Kemp testified that the heinmers , specifically Margaret Rhue, were complain- ing about Pauline's work and that upon finding a bundle of 5 dozen and another of 31/, dozen of which 2Y% dozen and 11/2 dozen , respectively, had raw seams fi oni Miller 's operation , he "had no alternative" but to discharge Miller. Kemp did not deny that he told Miller that he was discharging her because of her "second offense " nor does he contend that lie showed Miller the two alleged bundles of bad work nor did he contradict Miller when she testified positively that she was only shown three or four shirts from one bundle but that no bundles were present at their interview. There is no rule at the Respondent's plant that, upon a "second offense ," the offender was to be discharged . In view of this the undersigned cannot accept Kemp's testimony that some 5 dozen out of 9 dozen shirts were incorrectly sewn by Miller. But, strangely enough, Bertie Beacham testified that she had hemmed the shirts that Miller had felled even though she had noticed the raw edges allegedly left from Pauline's operation . As Beacham 's work following this alleged bad work by Miller would obviously have had to be redone in repairing Miller's work if Beacham 's testimony were true, the undersigned cannot believe that Beacham was going to waste her time in doing work which she knew would have to be repaired and for which she would not be paid . As Beacham did her work on these shirts, the undersigned is convinced that there were only a very few shirts with raw edges from Miller's operation Beacham, a very definitely antiunion newcomer hired for the first time in September 1949, appeared not only able , but willing , to testify to anything the Respondent might want during her testimony. Through Beacham it became apparent that Miller was the only union hemmer in the plant and, like Robinson and Rhue, was for that reason unpopular with her fellow hemmers. =' Mrs Jackson testified that she notified the employees that anyone caught distributing union literature on company time and property would be discharged. As previously in- dicated the undersigned was not impressed by Mrs. Jackson's trustworthiness as a witness and is inclined to believe that her announcement over the loudspeaker was not as carefully Horded as it inas on the witness stand. Mrs Jackson's dislike of the Union was extreme. MOREHEAD CITY GARMENT COMPANY, INC. 271 Miller was an ordinary hemmer. even as Rhue acknowledged during her testimony, making her share of mistakes But her work, despite her numerous shifts in operations, had been satisfactory to the Respondent fora period of 11 months In view of the fact that Kemp carefully showed Miller only three or four shirts with bad work out of what he contended at the hearing was some 4 or 5 dozen such shirts out of two bundles of 9 dozen shirts in total, the under- signed cannot, in view of other discrepancies in Kemp's testimony, accept his testimony as to the amount of the bad work he contended Miller had done. If there had been as much bad work as Kemp claimed, Miller would have been shown all of that work Nor would Kemp have had to invent the "second offense" rule in order to attempt to justify the discharge. Nor would the Re- spondent have suddenly determined that Miller was subject to discharge after li months because she was not making her minimum on a new job at which she had worked only for approximately a month. For these reasons the undersigned is convinced and, therefore, finds that the Respondent seized upon sonic small amount of bad work, the "second offense," and the failure to make the minimum, as a subterfuge for discharging Miller because of her constant adherence to the Union even after the loss of the election and in order to discourage membership in the Union in violation of Section 8 (a) (3) and 8 (a) (1) of the Act. G Refusal to hire Minnie Katherine Piner, Eleanor Trott Gillikin, and Kathleen Rhue Salter These three cases are essentially identical and can be handled together. Minnie Katherine Piner had worked for Respondent during the summer of 1948 but had voluntarily ceased work to return to school that fall. Both Gillikin and Salter had also worked previously for the Respondent. Gillikin had ceased to work in April 1947 in order to have a baby. Salter had woiked as recently as September 1949 when she voluntarily severed her employment because of illness in her family. In August Piner applied for work, completed one of the illegal application forms, and then had an interview with Mrs. Jackson. After asking if Piner had been one of the girls who had worked for the Respondent during this summer and then left to return to school without telling the Respondent of her intention, Mrs. Jackson inquired : "Are you in sympathy with the union?" Diner's answer was, "I guess I am." Again Mrs. Jackson inquired. "Are you for the union?" To which Piner answered "yes." Mrs. Jackson finally ended the interview by saying she would get in touch with Piner if she were needed. Piner has never heard from, nor been employed by, the Respondent since. About a month after the birth of Gillikin's baby in August 1947, Mrs. Jackson sent for Gillikin, whom Mrs. Jackson had once complimented as being the fastest buttonholer in the plant, to do some work for the Respondent. Gillikin did the work as requested. Twice thereafter Gillikin reported for short periods of time in order to help the Respondent as requested. In August 1949 Gillikin applied for work when her husband lost his job. At that time Mrs. Jackson stated that she did not need help but would send for Gillikin if she did. Gillikin reapplied in October and again in December 1949. On the first occasion Mrs. Jackson stated that she thought she would have a position for Gillikin later on. But she never called for Gillikin. When Gillikin reapplied in December Mrs. Jackson had a personal interview with Gillikin in which she inquired if Gillikin would work regularly who would care for the baby, and then wanted to know if Gillikin was "for the Union" and if she were interested in the Union. 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To both these last queries Gillikin replied that she did not know anything about the Union. Mrs Jackson thereupon stated that Gillikin was too irregular and would not work but she would send for her if the Respondent needed her. Since then Gillikin has heard nothing from the Respondent nor has she been employed by the Respondent. Salter had worked off and on for the Respondent over a period of approxi- mately 5 years, her last period of employment ending in September 1949 due to illness in the family. In February 1950 Salter applied for reemployment and had a conversation with Mrs. Jackson asking her if she had an opening for her. After taking a look at the,employees on the floor, Mrs. Jackson gave a negative answer. Then Mrs. Jackson inquired whether Salter had been "tan- gled up" with the Union and if that had been the reason she had quit in Septem- ber.'- The answer u as "no." After stating that someone had told her that Salter had been mixed up with the Union, Mrs. Jackson asked if that were true. Salter again answered "no." Then Salter was asked approximately three times if she were sure about that. Thereafter Mrs. Jackson stated that three new machines were to be put in the plant and when they were set up Salter could operate one of them Although she never thereafter heard fioui Mrs Jackson, Salter again reapplied in April when she saw Dill who reiterated that, when needed, she would be sent for. Salter has never been reemployed nor heard from the Respondent since that day. By stipulation of the parties it was agreed that every month the Respondent employed or reemployed from 12 to 16 persons. It is, therefore, obvious that there was work for all 3 of these applicants who had been satisfactory employees theretofore. It was the Respondent's policy to reemploy persons whose previous work had been satisfactory in preference to inexperienced applicants. Although in the cases of all of these girls their work had been satisfactory, they never had been reemployed since the above-mentioned interrogation. 22 Although Mrs Jackson denied ever hai ing asked any of the above-named girls about the Union, she did admit that she had asked Salter if she had quit in September 1949 because of "trouble and confusion" in the plant at that time Her cross-examination at this point is of interest: Q Now I believe you testified that this last time she came in and asked for employ- ment, you asked her if she quit because of all this contusion v A. I did, I said trouble and contusion we were having here last summer. Q What did you mean by trouble and confusion? A Trouble and contusion. Q You must have had something in mind. A. Trouble and confusion Q What did you mean? A. Trouble and confusion, it could have been anything. Q Do you usually say that to employees to cover everything, you must have had something in mind? A I said she had promised me she was going to work steadily and was not going to quit Q. Why did you think she had quit? A Because she was sort of a meek kind of girl, and I thought there was too much confusion around there and I thought she quit. Q I want you to tell me what this confusion was. A I don't think that is necessary. Mr BLAKFNEY Go ahead and state, what was the trouble and confusion you're talking about. The WITNESS ALL of this activity going on there. Q (By Mr Pickens ) What activity? A. Union activity The undersigned is unable to credit Mrs. Jackson's denial and finds the facts as testified to by the three applicants as found above. MOREHEAD CITY GARMENT COMPANY, INC. 273 Why were these experienced and previously satisfactory employees rejected for employment? Especially why was Gillikin refused employment in view of the fact that Mrs. Jackson herself is the authority for the statement that Gillikin was the fastest buttonhole operator in the plant. With Piner Mrs. Jackson said the reason was that Piner had misled her the year before by stating that she,was not going to return to school in the fall. The undersigned credits Piper's denial that she has ever heard of any such rule as Mrs Jackson contended that the Respondent had, 1. e., against the summer em- ploy meat of schoolgirls who plan to return to school in the fall. With Gillikin Mrs. Jackson said the reason was that she was an irregular employee and did not report for work "when it rained" and, therefore, was undependable. That reason, however, did not prevent Mrs Jackson from seek- ing her out three times in 1947 immediately alter her baby had been born, to induce her to return to work at times when she could be useful to the Re- spondent Her "irregularity of employment" slid not seem objectionable to the Respondent at that time. With. Salter, another experienced operator, Mrs. Jackson said the reason was because her record shows that she had only worked 2 years and 1 month the past 5 years and had "lost tine" during her periods of employment Mrs Jack- son, however, was anything but definite about any loss of time during Salter's last period of employment. However, in each case, before Mrs Jackson committed herself, she made care- ful inquiry about the applicant's union sympathy. In one case, at least, she reiterated the same question three times before she purported to accept a nega- tive answer regaiding the girl's antiunion sympathy and went so far as to acknowledge that she had been told the applicant had been favorable to the Union In the case of Gillikin, Mrs. Jackson had always theretofore 'found her to be an acceptable employee until she inquired about Gillikin's union sympathies. Likewise Salter had always been an acceptable employee until Mrs Jackson learned from some person unknown that Salter was supposedly sympathetic to the Union. At the time these girls applied for employment Mrs. Jackson was not employing anyone who might possibly vote in favor of the Union Obviously she had doubts about the way these three ex-employees would vote, and consequently, she took no chances on employing them so that she would be sure that they would not vote in favor of the union. After the election Mrs Jackson remained adamant that the union question should not arise again and. for that reason, was not employing anyone who might retain her union sympathy. As it is clear from the testimony that the only reason that Minnie Katherine Piner. Eleanor Trott Gillikin, and Kathleen Rhue Salter were not reemployed by the Respondent upon application was. the Respondent's determination that no employees favorable to the Union would be employed, the undersigned is convinced and, therefore, finds that the Respondent refused to employ the above- named employees in order to discourage union membership among the em- ployees in the plant in violation of Section 8 (a) (3) and Section 8 (a) (1) of the Act D. Conclusions 1. Setting aside the election On August 12, 1949, the Union filed a waiver of all past unfair labor practices for the purpose of protesting any election which might be held in the future, re- ferring specifically to the election of'October 17, 1949. Thus, in drawing these 953841-52-vol. 94-19 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conclusions the undersigned will consider only the events recited in Section III, B, 2 of this Report and the discharges of Lucy Miller and Mattie Barbour as well as the evidence referring to the refusal to employ the three girls named in the preceding section of this Report , the other events recited above having either been waived by the action of the Union or occurring subsequent to the election . and thus could have had no influence upon the election. During the period between August 12 and October 17 the Respondent con- tinued its effort to coerce the employees to vote against the Union by the threat that the plant would close if the Union won the election. Such a statement is not protected by Section 8 (c) of the Act as an expression of an opinion. This statement definitely contained a threat and is thus removed from the protection of that section. That such a statement is coercive is too apparent for argument. That threat became so widespread in the community of Morehead City and Beaufort that it was "barber shop conversation " heard wherever local inhabitants gathered . The Respondent disclaims any responsibility for this common gossip for the reason that the inhabitants thus passing the threat around were not agents of the Respondent for whom the Respondent could be held responsible. However, this statement was being repeated by responsible supervisors of the Respondent to the employees . Garner, Bell , and others told this to the employees on numerous occasions during the period in question In fact Mrs. Jackson herself made the same coercive statement to employees Mildred Esther Willis and her niece , Janice, with instructions to them to pass it on to their union friends in the plant and to convince them to become antiunion . Thus, the Re- spondent, in effect, made "the world" in this community its agent to carry on this coercive statement and treatment and can hardly be heard to complain if held responsible for the success of its maneuver . When Respondent's instruc- tions were followed by the public and, particularly , by the businessmen and doctors of the community who, in Morehead City and Beaufort, would also be very directly affected by the Respondent 's threat, innocently or otherwise assisted in the Respondent's attempt to coerce the employees to abandon their rights under the Act, the Respondent secured the dissemination of the threat on a scale only slightly broader than it had hoped and cannot disclaim responsibility therefor. Beyond the Respondent's responsibility for this "barber shop conversation," there can be no question but that the Respondent was responsible for the re- straint caused by its supervisory personnel in repeating this threat and thus in- terfering with the free expression of its employees ' desires and by Mrs . Jackson's own orders to the Willises to convince their union friends to become antiunion with the threat that the plant would close or move if the Union won the election. Also the continued use of the application form illegally requiring the applicant for employment to disclose his or her union affiliation and the interrogation of applicants as to their membership and sympathy for or against the Union pre- vented any new union adherents from receiving employment and guaranteed that only antiunion persons would thereafter be employed , thereby assuring that the Respondent could and would exert at least that much control over the re- sults of the election. In addition, on the Friday prior to the election Dill made a speech to the employees in which he said among other things the following : Now these organizers keep hollering that the Company can not close down or move away if the Union comes in. Now let 's straighten that out once and for all:-What ever this Company's business and competitive situation requires it to do in the way of closing down or moving away, it can do just as truly whether the Union is in here or not here. What I am MOREHEAD CITY GARMENT COMPANY, INC. 275 more afraid of is not that the Company will shut clown but that the Union will shut it down. . . Do you want to take part of your money which you worked hard to earn and pay it to these outsiders while at the same time you risk your job and your whole livelihood into their hands? . . . Analyzing this statement in relation to the circumstances surrounding it, namely the "barber shop talk," the statements of the Respondent's supervisors and, indeed, even Mrs. Jackson's statement that the plant would close down or move away if the Union came in and interpreting it in the light which the em- ployees themselves would have interpreted it in their situation, this statement becomes a mere reiteration of Mrs. Jackson's threat to close or move the plant if the Union won the election. While standing alone, perhaps a technical lawyer could interpret the actual printed words of Dill's speech as being protected by Section 8 (c) of the Act. The nonlawyer employees, not being experts in the highly technical use of words, would interpret this statement only as a reiteration of the threat the Respondent had been bandying about among the employees daily That this is so is found from the testimony of the employees themselves. The Dill speech interpreted in the light of the conditions which the Respondent itself had intentionally created was coercive and contained threats of reprisal and was intended to be sueb.21 In addition to the mere threats of closing the plant, the Respondent went even further in its efforts to coerce the employees into abandoning the Union by proving to the employees, through the discharge of Lucy Miller, that those who ardently supported the union organization of the employees would be discharged. Like the case of the discharge of Sally Smith, the antiunion animus of the Respondent in discharging Lucy Miller was made as clear and explicit to the employees as it could be. This discharge of Lucy Miller was proof to the employees, if any further such proof were needed, of the dangers of losing one's livelihood if the employee had temerity to attempt to thwart the Respondent's intention to see that the Union did not win the election or get into the plant. With such proof before them it is hardly possible that the employees could express their own choice even in a secret election. Under these circumstances the undersigned finds that the Respondent' s actions here occurring between August 12, 1949, and October 17, 1949, the date of the election, were such that it was impossible for the employees to freely express their own desires at the Board election and that the election so held should be set aside 2. Interference, restraint, and coercion In view of the conclusions just preceding regarding the setting aside of the election, there is very little left to say regarding the allegations of interference, restraint, and coercion. The coercion was both patent and potent. The in- stances testified to in this case are of such well-recognized types of coercion, restraint, and interference as not to require either discussion or authority. Therefore, the undersigned finds that the Respondent violated Section 8 (a) (1) by the following acts: 1. By attempting to entice its employees from their union adherence by blam- ing the Respondent's failure to put into effect new piece rates on to the union organization campaign. 23 See N L. R. B v Kropp Forge Co , 178 F 2d 822 (C. A 7), certiorari denied 340 U. S 810. 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. By personally interrogating its employees and applicants for employment as to their union affiliations and sympathies 3. By using a form of application for employment requiring applicants to disclose their union affiliation. 4. By threatening its employees with loss of employment if they became or remained members of the Union or if they assisted the Union. 5. By threatening its employees that the plant would be closed or moved away if the ,Union carne in or won the election. 6 By ordering its employees to convince their fellow employees to become antiunion. 7. By keeping under surveillance meetings of the Union and organizational activities of the Union and its employees. 8 By attempting to instigate fights and altercations between employees in order to discourage some of its employees from becoming or remaining, members of the Union or engaging or continuing to engage in concerted activity for the purpose of collective bargaining or mutual aid or protection, and in order to create a pretense for discharging employeei,• who were thought by it to be members of, sympathetic with, or active on behalf of the Union or other labor .organizations. 9 By discharging or refusing to employ persons or employees whom the Re- spondent knew to be favorable to the Union. In his brief the General Counsel has i equested the undersigned to reverse a ruling on evidence made by him at the hearing and to admit into evidence a leaflet over the signature of one R. H Dowdy, a businessman in Morehead City, purporting to set forth the antiunion conditions under which the Respondent moved its plant from Lykens, Pennsylvania, to Morehead City in the 1930's and threatening that the plant would close if the Union won the election. At the hearing the undersigned refused to admit this document into evidence on the ground that there was no evidence produced tending to create any responsibility on the Respondent's part for the activities of Dowdy In the opinion of the undersigned, there is no evidence in the record sufficient to create a funding of agency between Dowdy and the Respondent. This case w as not tried upon the "Mohawk Valley" theory 24 under which the evidence referred to might very well have become competent The undersigned, therefore, denies the request of the General Counsel and holds the document incompetent under the agency ,theory on which it was submitted On the basis of this ruling the undersigned also finds that there is no evidence to sustain the following allegation of violation of Section 8 (a) (1) of the Act: Entering into and maintaining an agreement with an association of More- head City residents , the terms of which agreement provided in part, that if the Company would locate its operations in Morehead City, the Company would be protected against union organization of said plant. The complaint also charged that the Respondent violated Section 8 (a) (1) by : (f) Offering money and other things of value to encourage employees to vote against the Union as an exclusive bargaining agent of its employees in a National Labor Relations Board election ; . . There is competent evidence that employee Charles M Simpson and his wife, Ila, made offers of $5 and $25 to employee Peggy Arthur if she would vote against the Union at the election of October 17, 1949.' The undersigned has no doubt but that these offers were made as testified but believes that there is no evidence 24 See Remington Rand Inc, 2 NLRB 626 MOREHEAD CITY GARMENT COMPANY, INC. 277' that the Simpsons who became violently antiunion after originally being apparent union sympathizers were supervisors or agents of the Respondent for whom the Respondent is responsible ' In the absence of such evidence, they, as employees, had the right to campaign according to their personal predilections. The under- signed cannot, however, approve of their method of campaigning as the under- signed was far from convinced that the offers of money for such antiunion votes were made in jest as claimed It would hardly seem that the Simpsons would have been offering their own money for this purpose. Neither of the Simpsons impresses the undersigned as a reliable witness. However, in view of the state of the record, this particular allegation will be dismissed. 3. The discharges and refusal to employ As already indicated above, the undersigned believes and, therefore, concludes that the Respondent discharged Sally Smith, Lucy Miller, Pauline Miller, Mar- garet Rhue, and Bessie Robinson in order to discourage union membership and activity among the employees in violation of Section 8 (a) (3) and Section S (a) (1) of the Act. Each of these employees, except Bessie Robinson, so discharged was recog- nized as a leading spirit in the organizational drive of the Union and the dis- charge of each readily served as a warning to the other employees of the dangers of maintaining membership or activity in the Union. Bessie Robinson was the unfortunate victim of the necessity of the Respondent to have at least a possible pretext for discharging the union enthusiast, Rhue. As previously exemplified in the undenied plot against Sally Smith involving as it did an innocent foil, Mrs Cox, the Respondent did not hesitate to sacrifice either nonunion or unenthusiastic union members in its efforts to create pretexts for discharging persons whom the Respondent desired to be rid of because of their union ac- tivities The fact that Robinson was the unfortunate victim does not prevent her discharge from being in violation of Section 8 (a) (3) and 8 (a) (1) of the Act The discharge of Hattie Barbour, in the opinion of the undersigned, does not fit into the pattern so apparent above, lacking as it does the element of notice to the other employees of the dangers of union membership and activity and having it least a tenable basis on which the discharge was founded. Despite the existence of the obvious motive the Respondent had for being rid of Barbour, i. e, her knowledge of the Respondent's plot in the Smith discharge, the under- signed still cannot say that this actually motivated the discharge Although admitting to considerable doubt as to the correctness of this finding, the under- signed, believing that the evidence is insufficient, will dismiss the complaint as to Hattie Barbour. As rationalized above in the section of this Report dealing with the refusal to hire, the undersigned is convinced and, therefore, finds that the Respondent refused to reemploy Minnie Katherine Piner, Eleanor Trott Gillikin, and Kath- leen Rhue Salter because of its determination to discourage the union activities and membership of its employees and applicants for employment in violation of Section S (a) (3) and Section 8 (a) (1) of the Act. 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 in the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow cf commerce. • 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action which the undersigned finds necessary to effectuate the policies of the Act. It has been found that the Respondent on various dates discriminated in regard to the hire or tenure of employment of Sally Smith, Lucy Miller, Pauline Miller, Margaret Rhue, Bessie Robinson, Minnie Katherine Piner, Eleanor Trott Gillikin, and Kathleen Rhue Salter by discharging each of them or by failing to employ them in order to discourage membership in the Union The undersigned will, therefore, recommend that the Respondent immediately reinstate or reem- ploy each of the above-named employees and, in addition, snake each of said employees whole for any loss of pay she may have suffered by reason of the Respondent's discrimination against her by pa.Nment to each of them a sum of money equal to the amount she normally would have earned as wages from the date of the discrimination to the date of the Respondent's offer of reinstate- ment to her, less her net earnings during said period. It is recommended that the loss of pay for each employee be computed upon the basis of each separate calendar quarter or portion thereof during the period of the Respondent's dis- criminatory action to the date of a proper offer of reinstatement ; the quarterly periods, hereinafter called "quarters," shall begin with the first day of January, April, July, and October : loss of pay shall be determined by deducting from a sum equal to that which each employee would normally have earned for each quarter or portion thereof, her net earnings, 25 if any, in other employment during that period; earnings in one particular quarter shall have no effect upon the back-pay liability for any other quaff ter It is also recommended that the Respondent be ordered to make available to the Board upon request payroll and other records to facilitate the checking of the amount of back pay due.26 The number and variety of unfair labor practices found above clearly indicates that the Respondent has been and now is disposed to defeat concerted activity and self-organization among its employees by any conceivable ineans, and dis- closes an attitude on the part of the Respondent of fundamental hostility to the purposes of the Act. This attitude and conduct also indicates the likelihood that the Respondent may resort in the future to the similar or related unfair labor practices proscribed by the Act The preventive purposes of the Act will be thwarted unless the recommendation herein and the Board's order thereon are coextensive with this threat. The undersigned will, therefore, recommend that the Respondent cease and desist from in any manner infringing upon the rights of the employees guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following : CONOLU5IONs OF LAw 1. Amalgamated Clothing Workers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2 By discriminating in regard to the hire and tenure of employment of Sally Smith, Lucy Miller, Pauline Miller, Margaret Rhue, Bessie Robinson, Minnie Katherine Piner, Eleanor Trott Gillikin, and Kathleen Rhue Salter, thereby discouraging membership in Amalgamated Clothing Workers of America, CIO, 25 Crossett Lumber Company , 8 NLRB 440. 26 F. W. Woolworth Company, 90 NLRB 289. DAVIS FURNITURE CO., ET AL. 279 the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and Section 8 (a) (1) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. by discharging Minnie Barbour, the Respondent did not engage in any unfair labor practices. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] ALBERT LEONARD, ARNOLD DAVIS, SIDNEY DAVIS AND WILLIAM GITZES, CO-PARTNERS , JOINTLY AND SEVERALLY D/B/A DAVIS FURNITURE CO.; DOYLE FURNITURE CO., INC., A CORPORATION ; LACHMAN BROS, A COR- PORATION; HARRY FRANK, AN INDIVIDUAL , D/B/A MILWAUKEE FURNI- TURE COMPANY; A. EUGENE PAGANO AND M. DE CASTRO , CO-PARTNERS, JOINTLY AND SEVERALLY, D/B/A MISSION CARPET AND FURNITURE CO.; FRANK. NEWMAN CO ., A CORPORATION; REDLICK-NEWMAN CO., A COR- PORATION ; SHAFF'S FURNITURE CO., A CORPORATION; JOSEPH H. SPIE- GELMAN AND LEON SPIEGELMAN , CO-PARTNERS , JOINTLY AND SEVER- ALLY, D/B/A SAN FRANCISCO FURNITURE CO.; STERLING FURNITURE COMPANY, A CORPORATION; JAMES F. WILEY AND VERNA M. GARDNER, CO-PARTNERS , JOINTLY AND SEVERALLY, D/B/A J. H. WILEY THE FUR- NITURE MAN and CARROLL, DAVIS & FREIDENRICH, BY ROLAND C. DAVIS. Cases Nos. 2O-CA-250, 00-CA-264, 20-CA-253, 00-CA- 049, 20-CA-246, 20-CA-245, 20-CA-247, 20-CA-253, 00-CA-254, 00-CA-248, and 20-CA-251. May 3,1951 Decision and Order On February 16, 1951, Trial Examiner J. J. Fitzpatrick issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in unfair labor practices as alleged in the complaint and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Intermediate Report, and a supporting brief.' The Respondents also requested oral argument. ' On April 24, 1951, six employer associations flied a "Petition For Permission to File Brief Amicus Curiae or, in the alternative, to intervene in opposition to the Intermediate Report and Recommended Order of the Trial Examiner" and a "Brief in Opposition to the Intermediate Report and Recommended Order of the Trial Examiner." The petition must be denied as untimely, as the Board had already decided the merits of the case before receipt of the petition. Briefs from the parties to the case were due and had been received by March 12, 1951. 94 NLRB No. 52.