Southland Manufacturing Co.

SOUTHLAND MANUFACTURING COMPANY 813 it does show that the old unit was defined in terms of job content, as opposed to job title. Furthermore, it suggests that the scope of the unit was modified by usage, if not by specific agreement, to include the vague job areas described above.1 In any event, the Board has long held that a bargaining history which was not based on appropriate bargaining units does not dictate continued existence of like unit arrangements.' tI is clear on the record as a whole that the various categories of semiskilled and unskilled production workers, together with the main- tenance men, comprise the usual production and maintenance group of a single employer, and that the skilled electrotypers and the stereo- typers, in conformity with the established pattern in this industry, appropriately constitute separate craft units. Absent any persuasive reason for breaking up the lesser skilled employees into more than one unit, therefore, Board policy requires inclusion of them all in the conventional single production and maintenance unit. Accordingly, we find that all production and maintenance employ- ees at the Employer's three plants in New York City, excluding office clerical employees, journeymen, and apprentice electrotypers and stereotypers, and all supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act.' [Text of Direction of Election omitted from publication in this volume.] Significantly, an elevator operator whom the Petitioner would exclude is a member of that Union o Benner Tea Company, S8 NLRB 1409 5 Ai.t be Petitioner has made a sufficient showing of interest, and as it indicate at the hearing that it would accept an election in the more inclusive unit, we shall direct an election in the appropllate production and maintenance unit. SO)UHLAND MANUFAC'IURI_NG COMPANY and AMALGAMATED CLOTIIING WORKERS OF AMERICA, CIO L. L. L1wINsoN and AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO W. R. STRICKLAND and AJIALGAATATED CLOTHING WORKERS OF AMERICA. CIO. Cases Nos. 34-CA-157, 34-CA-189, and 34-CA-188. May 4,1151 Decision and Order On February 27, 1951, Trial Examiner John Lewis issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair l)4 NLRB No 123. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor practices and recommending that they cease and desist there- from 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 Southland had not violated the Act by discharging or refusing to reemploy two employees and recom- mended that the allegations of the complaint be dismissed in this respect.1 Thereafter, Southland Manufacturing Company, herein- after called Southland, filed exceptions to the Intermediate Report. The Board 2 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 Respondent's exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following additions, ex- ceptions, and modifications. 1. Like the Trial Examiner, we find that Respondent Southland is engaged in commerce. We find further that, as Southland an- nually ships more than $25,000 worth of products out of State, it will effectuate the policies of the Act to assert jurisdiction in this case." 2. We find, in agreement with the Examiner, that by their state- ments at the meeting in the Community Building on August 5, 1949, Respondents Levinson (the local mayor) and Strickland (the cashier in the local bank) indicated to employees of Southland that the Respondent Southland would close its plant if the Union succeeded in its organizing campaign, and that Southland is chargeable with these statements, and thereby violated Section 8 (a) (1) of the Act.4 In reaching this conclusion, we rely on the following circumstances. Assistant Plant Manager Rackley, during working hours and on the plant premises urged the employees to attend the meeting at the Community Building. Rackley stated to the employees that Levin- son would speak about the Union at the meeting and that his re- 1 As no exceptions were filed to these findings and recommendations we shall adopt them. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this proceeding to a three -member panel [Members Houston, Reynolds, and Styles]. 3 Stanislaus Implement "and Hardware Company, Limited, 91 NLRB 618. The instant case involves only Southland 's Benson, North Carolina, plant. That plant annually ships to Southland's Wilmington, North Carolina, plant, goods valued at approximately $100,000. The Wilmington plant in turn annually ships out of State at least $50,000 worth of goods. Even if, for the purpose of applying our jurisdictional policy, we were to consider separately Southland's operations at Benson , we would still assert jurisdiction in this case, as the Benson plant annually ships more than $50,000 worth of goods to Wilmington, which in turn has a direct annual outflow of more than $25,000. Hollow Tree Lumber Company, 91 NLRB 635. 4 As no exceptions to the Intermediate Report have been filed by Respondents Levinson and Strickland , we hereby adopt the Trial Examiner's findings that by their statements at the August 5 meeting, they violated the Act as employers within the meaning of Section 2 (2) of the amended Act. SOUTHLAND MANUFACTURING COMPANY 815 marks would be of interest to the employees, thus manifesting to the employees that the Respondent Southland knew and approved of the content of Levinson's speech. Moreover, the statements made at the meeting by Strickland and Levinson themselves demonstrate that they were made with the Re- spondent Southland's approval and could only be so construed by the employees. Thus, at the meeting, Strickland, as found by the Trial Examiner, after referring to various other plants which had been forced to close after the advent of a union, stated that South- land would close its Benson plant for union activity, and that the Benson plant was too small for a union. While asserting in the course of their remarks that Southland would not be financially able to meet, any union demand for higher wages, both Levinson and Strickland indicated that, in any event, Southland would not operate under a union, citing statements to that effect by Southland's management. In this context, Levinson pointed out that the plant building was not, owned by Southland and that if the Union came in Southland could move its machinery back to Wilmington and leave the local business- men with an empty building. • Furthermore, Southland, although aware of these statements at- tributing to it a policy of economic reprisal for union activity, made no effort to repudiate them. As found by the Trial Examiner, the meeting was attended by Rackley, the assistant plant manager. Guld,, the plant manager, if not present at the meeting was, in any case,. subsequently informed of the nature of the remarks made by Levin- son and Strickland. The record discloses no effort by Respondent Southland to repudiate these remarks or to disassociate itself there- from in the minds of the employees, notwithstanding that they pur- ported to reflect the policy of Southland's management and were. consistent with similar statements made by Rackley to the employees only a few days earlier. Accordingly, we find that by its active participation in the organi- zation of the meeting of August 5, by its manifestation to the em- ployees through Assistant Plant Manager Rackley of foreknowledge- and approval of the purpose of the meeting, by its failure to disavow the statements made at the meeting, in the presence of Rackley, attrib- uting to Southland's management a purpose to engage in economic reprisals for union activity, and particularly, as Rackley, in the pres- ence of Guld, had herself made similar statements to the employees only a few days before Respondent Southland became responsible for those coercive remarks.5 As the remarks constituted warnings of "L cE H Shirt Company, Inc, 84 NLRB 248, 252 N. L R B v Taylor-Colgnatt Company, 140 F 2d 92 (C A 4) See Sun Tent-Laebbert Co., 37 NLRB 50, enf'd. as mod., 151 F,' 2d 483 (C. A. 9). 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reprisal for union activity not protected by Section 8 (c) of the Act, we find, like the Trial Examiner, that Respondent Southland thereby violated Section 8 (a) (1) of the Act. 3. Like the Trial Examiner, we find that the Respondent Southland violated Section 8 (a) (1) of the Act by acts of surveillance, interro- gation, and threats of economic reprisal, including the statements to employees Dixon and Ivy threatening the discharge of Dixon for union activity. While Rackley's statement to Dixon that she could have discharged her because of her poor production but had not done so because of her family circumstances, standing alone, may not have constituted an unequivocal threat of discharge for union activity, we find that this statement, read in conjunction with Rackley's later assertion to employee Ivy that Dixon would need more friends than she ever needed, manifested an intent by the Respondent to visit reprisals upon Dixon for union activity. Accordingly, we find, like the Trial Examiner, that by these statements of Rackley, the Re- apondent violated Section 8 (a) (1) of the Act. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders: A. That the Respondent Southland Manufacturing Company, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Threatening its employees with loss of employment or other reprisals for union activities. (b) Engaging in surveillance of the union activities of its em- ployees. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Amalgamated Clothing Workers of America, CIO, or any other labor organization, to bargain collec- tively through representatives of their own choosing, to engage in concerted activities for the purposes 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 which requires membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Post at its establishment in Benson. North Carolina, copies of SOUTHLAND MANUFACTURING COMPANY 817 the notice attached hereto and marked Appendix A.s 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'it immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent Southland to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Fifth Region in writing within ten (10) days from the date of this Order what steps have been taken to comply therewith. B. That the individual Respondents, L. L. Levinson and W. R. Strickland, acting, directly or indirectly, as agents of the Respondent Southland Manufacturing Company, shall : 1. Cease and desist from threatening the employees of Southland Manufacturing Company with reprisals for union activity, or in any other manner interfering with, restraining, or coercing the employees of Southland Manufacturing Company in the exercise of the right to self-organization, to form labor organizations, to join or assist Amalgamated Clothing Workers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or- all of such activities except to the extent that such right may be affected by an agreement which requires membership in a labor: organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Publish in a local newspaper of general circulation, and submit for posting at the Benson plant of the Respondent Southland Manu- facturing Company, copies of the notice attached hereto marked Appendix B.7 Copies of the said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by each of the individual Respondents, be submitted to the Respondent Southland Manufacturing Company for posting immediately upon re- ceipt thereof, and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to 6If this Order is enforced by decree of a United States Court of Appeals , there shall be inserted in the notice , before the words "A Decision and Order," the words "A Decree of the United States Court of Appeals Enforcing " T If this Order is enforced by decree of a United States Court of Appeals, there shall he inserted in the notice , before the words "A Decision and Order," the words "A Decree of the United States Court of Appeals Enforcing." 953841-52-vol 94-53 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees. are customarily posted. Reasonable steps shall be taken by the Respondent Southland Manufacturing Company to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Fifth Region, in writing within ten (10) days from the date of this Order what steps have been taken to comply therewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges the discriminatory discharge or failure to reemploy Mandy Parker and Mary Beasley Sawyer. 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 notify our employees that WE WILL NOT threaten our employees with loss of employment or other reprisals for engaging in union activities. WE WILL NOT engage in surveillance of the union activities of our employees. WE WILL NOT 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- 2ation, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- poses of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement which requires membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act.. All our employees are free to become, remain, or refrain from be- coming members of AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO, or any other labor organization, except to the extent that their right to refrain may be affected by a lawful agreement which requires membership in a labor organization as a condition of employment. SOUTHLAND MANUFACTURING COMPANY, Employer. Dated-------------------- By ------------------------------- (Representative ) (Title) This, notice must remain posted for 60 days after its date and must not be altered, defaced, or covered by any other material. SOUTHLAND MANUFACTURING COMPANY 819 Appendix B 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 notify all employees of Southland Manufacturing Company that : WE WILL NOT threaten such employees with reprisals for union activity or in any other manner interfere with, restrain or coerce them in the exercise of their right to self-organization, to form labor organizations, to join or assist AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement which requires membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. All employees of Southland Manufacturing Company are free to become, remain, or refrain from becoming members of AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO, or any other labor organiza- tion, except to the extent that their right to refrain may be affected by a lawful agreement which requires membership in a labor organi- zation as a condition of employment. L. L. LEVINSON. W. R. STRICKLAND. Dated -------------------- This notice must remain posted for 60 days after its date and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order John K. Pickens, Esq, for the General Counsel. Able, Shepard, and Wood, Esgs. by Norman C. Shepard and Larry F. Wood, Esqs., of Smithfield, N. C, for Respondents Levinson and Strickland. Pierce and Blakeney, Esqs., by W S. Blakeney, Esq., of Charlotte, N. C., for Respondent Southland. Mr. John R. Sulkvan, of Wilmington, N. C, for the Union STATEMENT OF THE CASE Upon charges duly filed by Amalgamated Clothing Workers of America, CIO, herein called the Union, the General Counsel of the National Labor Relations Board by the Regional Director for the Fifth Region (Baltimore , Maryland), issued his consolidated complaint , dated October 3 , 1950, against Southland Manufacturing Company, herein called the Respondent Company and on occasion, 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Southland, and against L. L Levinson and W. R. Strickland, herein called Respondents, alleging that the Respondents had engaged in, and were engaging in, unfair labor practices affecting commerce within the meaning of Section h (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. Copies of the complaint, the charges, and the order of consolidation and notice of hearing were duly served upon the Respondents and the Union With respect to the unfair labor practices, the complaint, as amended at the hearing, alleges in substance • (1) That the Respondent Southland has since on or about July 25, 1949, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by (a) urging, persuading, and warning its employees to refrain from assisting, becoming, or remaining members of the Union or engaging in union or concerted activities, (b) questioning its employees concerning membership in and activities on behalf of the Union; (c) engaging in surveillance of, and requesting and inducing its employees to engage in surveillance of, the union activities and membership of its employees; (d) threatening its employees with loss of employment or other forms of reprisal should the Union succeed in its efforts to organize its plant; (e) threatening employees that its plant at Benson, North Carolina, would cease operating if the Union succeeded in its efforts to organize the employees, (f) encouraging members of the Union to withdraw their membership, and (g) instigating, inspiring, authorizing, and acquiescing in a meeting of its employees on August 5, 1949, at which employees were told that the Company would cease operating its plant should the Union be successful in organizing the employees and that the employees would lose their jobs if they continued to join of assist the Union; (2) that Respondents Levinson and Strickland, while acting as agents of Respondent Southland, urged, persuaded and coerced employees of Southland to refrain from assisting, becoming, or remaining members of the Union or engaging in union or concerted activities; (3) that Respondent South- land discharged Mamie Parker on or about August 10, 1949, and has refused to reinstate or recall said employee because she joined or assisted the Union or engaged in concerted activities with other employees for purposes of collective bargaining or other mutual aid or protection; (4) that Respondent Southland, since on or about August 31, 1950, has refused to employ or reemploy Mary Beasley Sawyer, Because of her real or suspected membership in the Union or sympathy with and activities on behalf of the Union, or because she engaged in concerted activities with other employees for purposes of collective bargaining or mutual aid and protection? The Respondents duly filed their answers in which they denied commission of any of the alleged unfair labor practices. Pursuant to notice, a hearing was held at Smithfield, North Carolina, on various dates, between November 16 and December 1, 1950, before John Lewis, the under- signed Trial Examiner, duly designated by the Chief Trial Examiner. The General Counsel and the Respondents were represented by counsel, and the Union by its area director. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the opening of the hearing the undersigned denied a motion by Respondent Southland to dismiss the com- plaint on the ground that the C. I 0, with which the Charging Union is athliated, was not, at the time of filing the charges, in compliance with the filing require- ments of the Act: During the course of the hearing motions by Respondents to "The allegation with respect to the discharge of Saver was added at' the hearing on nnotiom,of the General Counsel, without objection from Respondents 2 See J H. Rutter-Re. Manufacturing Company. Inc , 90 NLRB 130. SOUT14LAND MANUFACTURING COMPANY 821 dismiss the complaint in whole or in part, on the merits, were denied by the undersigned. Similar motions were made at the conclusion of the hearing and ruling thereon was reserved by the undersigned Said motions are disposed of in accordance with the findings, conclusions, and recommendations hereinafter made A motion by the General Counsel made at the conclusion of the hearing to amend the pleadings to conform to the proof with respect to names, dates, places, and other formal matters, was granted by the undersigned without objection The parties waived opportunity to argue orally before the under- signed. Although afforded an opportunity to file briefs or proposed findings of fact and conclusions of law, only the General Counsel has tiled a brief with the undersigned. Upon the entire record in the ease and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Respondent, Southland Manufacturing Company, is a corporation organized and existing under the laws of the State of North Carolina. It is engaged in the manufacture of men's dress and sports shirts at its plants, located at Benson and Wilmington, North Carolina. The events at issue all relate to the Benson plant. During the 12-month period ending June 12, 1950, Southland purchased raw materials for both plants in excess of $75,000, of which 50 percent came from points outside the State of North Carolina. During the same period, it sold finished products with a value in excess of $100,000, of which 50 percent was shipped to points outside the State of North Carolina. The principal office of the Company is located in Wilmington where the operation of cutting the material into garment sections for both plants is performed, and from which the finished garments are finally sold and shipped to the trade. The Benson plant performs only sewing and finishing operations, and ships the garments to Wilmington for pressing and sale. During the year prior to November 1, 1950, the Benson plant manufactured and shipped to the Wilmington plant manu- factured garments in the value of approximately $100,000. Both plants work on the same styles and type of garments. Approximately 25 percent of the total production of both plants is manufactured at the Benson plant.' Based on the foregoing facts, the undersigned finds that Respondent Southland is engaged in commerce within the meaning of the Act, both in its total operations and at its Benson plant in particular.4 II. THE ORGANIZATION INVOLVED Amalgamated Clothing Workers of America, C. I. 0., is a labor organization which admits to membership employees of Respondent Southland. 3 The above findings a i e based on facts stipulated by the parties and on the testimony of Nathan Block , secretary -treasurer of the Company. 4 During the course of the hearing, Respondent Southland moved to dismiss the com- plaint for lack of jurisdiction on the ground that the Benson plant itself buys no cloth and sells no finished garments Ruling was reserved on said motion . Evidence was subse- quently introduced by the General Counsel, indicating the percentage of garments manu- factured at both plants Since it appears that 25 percent of Southland 's garments are manufactured at the Benson plant and since 50 percent of its finished products are shipped to points outside the State of North Carolina , it may be assumed that a substantial portion of these garments originate in the Benson plant . Respondent Southland 's motion to dismiss for lack of jurisdiction is denied. 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Background and events at issue. The Respondent Company employs approximately 100 employees , mainly women, at its Benson plant. The owners of the Company are the Block brothers who make their headquarters at the Wilmington plant. The plant manager at Benson is Moe Guld, who is assisted in the over -all supervision of the plant by Mildred Rackley, as forelady . Guld usually leaves the plant late Friday afternoon to spend the week-end with his family in Wilmington , North Carolina, returning to Benson on Monday evening or on Tuesday . During his absence Rackley is in complete charge of the plant. Both Guld and Rackley are admittedly supervisory employees. The Benson plant has been in operation since June 1946. Southland coming to Benson was due in large measure to the efforts of the Benson Development Company, a corporation formed by some of the businessmen of Benson to induce industry to come to that community , a town of about 2 ,200 population. The building occupied by the Respondent Company is owned by the Benson Develop- ment Company which leased it to Southerland for a period of 5 years at a monthly rental of $210. Southland purchased 160 shares out of the 493 shares in the Development Company, and Guld, the general manager of South- land, became vice president of the Development Company. Among those in- strumental in inducing Southland to open a plant in Benson was L . L. Levinson, an attorney in Benson who later became mayor of that community . He made several trips to Wilmington with other citizens of Benson to discuss with the Blocks the possibility of opening a branch ,plant in Benson and he later drew the contract setting forth the conditions under which the Company would occupy the building to be constructed for it by the Development Company. Levinson is not a stockholder or officer in the Development Company or in Southland. There is no evidence of union activity among the employees at the Benson plant until the latter part of July 1949 when Bennie Lee Hundley , an organizer for the Union, and his wife arrived in Benson. Several days after his arrival, Hundley began to visit the homes of employees for the purpose of inducing them to join the Union, accompanied on several occasions by Eunice Dixon, an em- ployee of Southland. Most of the events at issue occurred during the period from Monday , August 1 to Wednesday , August 12 , 1949. Early in the week of August 1, or possibly during the latter part of the previous week, a group of about 15 of Southland 's employees were called to a meeting in the office of the town clerk of Benson where Levinson , who was then mayor of the town, spoke to them about the Union. It is apparently the General Counsel 's conten- tion that the Respondent Southland was responsible for the Employees ' attend- ance at this meeting. During the middle of the week of August 1, probably on Wednesday , August 3, Forelady Rackley, in the presence of Manager Guld, made a talk to the employees at the plant regarding the Union . According to the General Counsel's version of Rackley's talk her remarks included threats of possible plant closure in the event the employees joined the Union. Late in the afternoon of Friday , August 5, Mayor Levinson and W. R. Strickland, cashier of the local bank and an officer and stockholder in the Benson Develop- ment Company , addressed a meeting of Southland's employees in the com- munity building of the town of. Benson . The General Counsel contends that the Respondent Southland inspired and acquiesced in the holding of this meet- ing at which , according to the General Counsel's witnesses, threats of possible plant closure were made . On the evening of the same day a meeting was held SOUTH LAND MANUFACTURING COMPANY 823 under the Union's auspices at Holt's Lake, a park area located a short distance .outside-of Benson. This meeting, according to the General Counsel, was kept under surveillance by Rackley. On the following Wednesday, August 10, Mamie Parker, who had joined the Union and had attended the meeting at Holt's Lake, was discharged by Respondent. On Friday, August 12, about 6 employees who had previously joined the Union left the plant during working hours and went to see the union organizer for the purpose of getting him to refund their initia- tion fee. It is apparently the General Counsel's contention that,the Respondent Southland was responsible for these employees seeking to withdraw from the Union. That same evening a union meeting was held at Parker's home which was attended by Mayor Levinson who, according to the General Counsel, further sought to induce employees to quit the Union. The Union ceased its organiza- tional activities around August 13 when the organizer left town. In addition to these events which occurred in August 1949, the General Counsel also sought to show that the Company discriminatorily refused to rehire Mary Beasley Sawyer in August 1950, she having previously been employed by the Company and having left on account of illness. B. The interference, restraint, and coercion 1. The meeting at the mayor's office During the early part of the workweek beginning August 1, 1949, or possibly during the latter part of the preceding workweek, a group of about 15 employees attended a meeting in the office of the mayor of Benson, L. L. Levinson. The testimony regarding this meeting was given by several witnesses called by the General Counsel, and by L. L. Levinson, who was called by the General Counsel as an adverse party, under Rule 43 (b) of the Rules of Civil Procedure for the District Courts of the United States. The General Counsel was apparently attempting to show through these witnesses that the meeting was inspired by the Respondent Southland and that its purpose was to prevent the unionization of the plant. The evidence, however, fell far short of this apparent goal, since it failed to establish either Southland's connection with the meeting or that the meeting was antiunion in character. The testimony regarding the nature of the meeting was generally vague and inconclusive. Myrtha Lee testified that during the meeting, which lasted about 15 minutes, Levinson "just said he wanted to inform us that the Union people were in town and some of us girls might not know what they were there for, and he just wanted to tell us they were trying to organize a Union in the factory, and that was the essence of the little talk." According to Lee, Levinson also told the group they might expect the union organizers to contact them soon but said nothing about the Union or what the group should do in the event the union people came to see them. The other employees who testified were even vaguer than Lee. Lela Register could recall only that Levinson "said something concerning the union, but I just don't remember the words he spoke." Pearl Parker's testimony paralleled Lee's that Levinson "just informed us the Union people were in town and we might be looking for them to come around to see us." Parker also volunteered the infor- mation that Levinson "didn't say anything against it that I remember." Cut out of the same cloth was the testimony of Eloise Franks, who testified that Levinson told the employees "it was our privilege to make up our minds" about joining the Union. The testimony as to who was responsible for calling the meeting was equally inconclusive, particularly with respect to establishing the Respondent South- land's connection with the meeting. According to Le9i she had heard about the 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting in the factory after the quitting bell had rung when "some of the girls said Mr. Levinson wanted to give us a little talk, so I went out there along with the other girls " Register had no recollection where she had heard about the meeting, except "just some discussion among the girls in the plant probably." When asked by the General Counsel if Rackley had told her about the meeting Register testified, "Well, I would not say definitely " According to Pearl Parker, she heard about the meeting from a number of the girls who said they were going. Parker also volunteered the information that "no one told me [to go] though " Franks similarly testified that she had heard about the meeting from some of the girls. Outside of the oblique reference in Register 's testimony that she could not say "definitely " that Rackley told her about the meeting, the only other testimony suggestive of Respondent Southland 's connection with the meeting was that of Eunice Dixon relating to a conversation with Rackley shortly after the meeting. According to Dixon's testimony , which was not denied by Rackley, the latter asked her whether she was going to invite Rackley to the union meeting at Holt's Lake ; and that when Dixon replied, "I had not thought much about it since I was not invited to the one they had the night before at the Mayor's office," Rackley told her that "they were supposed to come back, the girls that went to the office, and tell us what was said up there, since there was not room for all of us, there was not room in the building and to come back and tell us what they said." On the basis of the testimony in the record concerning this meeting the undersigned is unable to make any finding that the Respondents, Southland or Levinson, engaged in any conduct falling within the proscription of Section 8 (a) (1) of the Act. Although it may be suspected that the Respondent South- land had some connection with the attendance of a group of its employees at the meeting and that Mayor Levinson's remarks extended beyond merely calling the employees attention to the fact that the Union was in town, the evidence in the record is too inconclusive to support any definite finding in this regard. In his brief the General Counsel states, regarding this incident: "It was rather obvious that all of these witnesses were purposely withholding information from the Trial Examiner " The undersigned finds himself in accord with the General Counsel's characterization of these witnesses 6 However, although the quality of their testimony left much to be desired and undoubtedly proved a disappoint- ment to the General Counsel, this cannot serve to fill the void of substantial affirmative evidence which is necessary in order to afford a basis for the making of definite findings of wrongdoing by the Respondents. The undersigned there- fore concludes that no finding of interference with, restraint or coercion of employees, by Respondents Southland or Levinson can be based on the testimony of the meeting in the mayor's office. 2. Rackley's talk During the middle of the workweek ending August 5 (probably on Wednesday, August 3) Rackley called the girls in the plant together during the afternoon recess and addressed them on the subject of the Union. Guld was present during at least part of her remarks The occasion for this talk, according to E None of this group ever joined the - Union and all of them , except Franks , are still employed by the Company. In Franks case , it may be noted that she is the daughter of Pearl Parker, one of the employees who testified regarding this meeting All of these witnesses exhibited a similar reluctance to give testimony which might be adverse to the Company and their testimony was punctuated with convenient lapses of memory. Lee, who was one of the mainsprings of the antiunion movement in the plant, was a,particularly evasive and reluctant witness. SOUTHLAND' MANUFACTURING COMPANY 825 Rackley, was the fact that a number of the girls had asked her questions. about, the Union, such as whether they could be fired if they joined, and that after. discussing the matter with Guld,' she decided to call the girls together, and talk to them. According to Rackley she told the employees that "it was their, privi- lege to join the Union, or not join it, as they saw fit" ; that she pointed out some of the reasons why she didn't think they needed a union in Benson. such, as the fact that, "we had a nice plant here, nice heat in the wintertime, good ice water and they didn't have any boss swearing at them" ; and, that when some of the girls asked her if she would join the Union she told them, she "never felt the need to have a Union to represent me and I have had some unpleasant experiences with the Union." The version of her speech given, by a number of employee witnesses would indicate that Rackley's remarks were not quite as benign as she attempted to make it appear. These employees testi- fied that during the course of her remarks Rackley stated that not only would she not work tinder a union but that she did not think that the Company or the Blocks would either; that she also told the employees about the experience of the employees in the Wilmington plant where the Union had tried to organize the plant, resulting in the employees going on a picket line and having to eat at a soup kitchen established by the Union; and that she stated if the plant in Benson should close as a result of the Union, the employees' pay would stop while hers would continue.' Rackley admitted having told the girls that she herself would not work under a union but denied having stated that the Company or the Blocks would not operate under one With reference to the experience of the Wilmington plant and the establishment of a "soup line" for the employees, Rackley testified that she "might have mentioned that, but I don't remember it," Guld also testified that Rackley made no reference to a possible closing of the plant, as did several employee witnesses Guld likewise denied having stated after Rackley spoke, as testified to by several employees, that the Union "didn't give a hoot in hell for you except for your dollar." The undersigned is satisfied from the testimony as a whole that Rackley's speech did contain a reference to possible closure of the plant in the event of its unionization The employees who so testified impressed the undersigned, in the main, as worthy of belief. Most of them are still employed by the Company 8 and risked the Company's displeasure in so testifying. One of these, Ruth Ivy, was never a union member and had no apparent motive for testifying untruth- fully. One of the others, Lola Pleasant, although originally a union member, later withdrew and appeared to be testifying with some reluctance. Although there were some variances in their testimony as to whether Rackley said that she didn't `'think" the Company would operate under a union or made the flat statement that it "would not" operate, such differences are minor and do not affect either the undersigned's impression of the reliability of these witnesses or the conclusions to be drawn from their testimony. The undersigned does not credit the denials of Rackley, Guld, or several employee witnesses who testified that there was no reference in Rackley's speech to a possible closing of the plant. Both Rackley and Guld had an evident interest in the outcome of the proceeding and impressed the undersigned throughout as deliberately coloring their testimony or withholding information. The three employee witnesses who denied that Rackley referred to a closing of the plant were the same group who a According to Guld's testimony, Rackley had told him the girls were asking her questions and wanted to know if she could talk to them He advised her that under the Taft-Hartley law she could tell them the "facts " T The above is a consensus of the testimony of Lola Pleasant, Flossy Penny, Sudie Tart, Ruth Ivy, Emma Dean Byrd, Eunice Dixon, and Mandy Parker. 8 This includes Lola Pleasant, Flossy Penny, Sudie Tart, Eunice Dixon , and- Ruth Ivy. 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attended the meeting in the mayor's office and whom the undersigned has previ- ously found to be unreliable witnesses ° The undersigned concludes and finds that despite her purported effort to give the employees only "facts," Rackley deliberately played upon the em- ployees' natural fear of plant closure and loss of employment, and that her remarks contain the definite implication that the Company might, take such action to prevent the unionization of the plant. To this extent her remarks extend beyond the limits permissible under Section 8 (c) of the Act and fall within the proscription of Section 8 (a) (1) of the Act10 No finding of violation is based upon the remark alleged to have been made by Guld about the Union not giving "a hoot in hell" about the employees since even if made this remark would clearly be protected free speech. 3. The meeting in the community building A considerable part of the General Counsel's case against all three Respondents was devoted to the meeting which took place in the Benson Community Build- ing. The meeting was held under the apparent auspices of a group of town officials and businessmen, including Mayor Levinson and W. R. Strickland, cashier of the local bank and secretary of the Benson Development Company. About 10 minutes before the close of the workday on Friday, August 5, 1949, Levinson, Strickland, and several other men came into the plant for the purpose of inviting the employees to attend a meeting in the community building. They went into the office and asked permission to use the public address system. Strickland then stated over the loud speaker, in substance : "Attention girls, cut off your machines, Mrs. Rackley wants to talk to you." 11 Rackley then announced that there was going to be a meeting at the community building at which the mayor would speak and that she would like the employees to attend 12 By that time the 4.30 quitting bell had rung and most of the employees, including Rackley herself, went over to the community building. Although there were some differences in detail and emphasis regarding the meeting in. the community building, the consensus of the credible testimony would indicate that the following is substantially what occurred : Levinson spoke first and introduced Strickland to the employees. The latter stated that he 0 Myrtha Lee not only denied that Rackley made any reference to the fact that the Company would not operate under a Union but also that Rackley had stated she would not work under a union, a statement which Rackley herself admitted having made . Eloise Franks at first denied there was any reference to the possibility of the plant 's closing, later testified that she was not sure of this, and finally admitted she wasn't paying too much attention to the speech and could not hear too well what was said Melvinel McLamb, after testifying that she had no recollection of what Rackley said in her speech, testified , in answer to a leading question from Southland 's counsel, that Rackley did not make any reference to the fact that the Company would not run under a union. 11 In view of the above finding, it is unnecessary to determine whether, standing alone, Rackley's statement that, she herself would not work under a union constitutes a viola- tion of the Act. (Cf. West Ohio Gas Company, 76 NLRB 179, enf. denied, 172 F. 2d 685 (C. A. 6)). 11 Strickland admitted using the public address system for the purpose of inviting the employees to the meeting in the community building although , according to his testimony, he made no reference to Rackley but himself invited the employees to attend. 12 Rackley denied having invited the girls to attend the meeting or having heard Strick- land make any announcement over the public address system According to Rackley, she saw Levinson just before quitting time, standing in the vestibule of the plant near the time clock but didn't know what he was there for. Rackley's denial is not credited- in view of the overwhelming weight of the credible testimony of employees that Rackley invited them to attend the meeting after the announcement by Strickland was made over the loud speaker system . Even Lee, who made every effort in her testimony to avoid implicating the Company in any wrongdoing , testified that Rackley invited the employees to attend the meeting, SOUTHLAND MANUFACTURING COMPANY 827 was not opposed to unions and that they were alright in large communties, but that he felt the town of Benson and Southland's plant were too small for a union. In order to illustrate what might result from efforts at unionization, Strickland called attention to the experience of factories in two other communi- ties about which there had been recent reference in the newspapers. One was a shirt factory in another State which had been closed because of the organiza- tion and demands of a union, leaving the town completely bankrupt. The other was the Hart Cotton Mills located about 90 miles away in Tarboro, North Caro- lina, which had shut down because of labor difficulties. Strickland expressed the hope that the same thing would not happen in Benson, adding that, "so far as I knew there was no law to force the Southland Manufacturing Company to keep their factory open in Benson ; if they wanted to close it for Union activ- ity or for any other purpose that they could do so."" After Strickland's remarks, Levinson spoke to the employees and stated that he understood the Company was only making 10 cents profit on a shirt and could not pay any higher wages. He further called their attention to the fact that the building which the Com- pany occupied belonged to the businessmen of Benson and that if the Union came in the Company could move their machinery back to Wilmington and leave the businessmen with an empty building." It seems evident that the remarks of both Strickland and Levinson contained the definite implication that if the employees allowed the Union to come in they would be running the risk that the Company would move its plant out of Benson, leaving them without jobs. Here again, as in the case of Rackley's talk, although there was a certain putative air of "sweet reasonableness" about their remarks, the idea of the plant moving away was deliberately inculcated into the minds of the employees. The remarks of both Strickland and Levinson contained an implied threat that the Company might use its economic power to defeat the unionization of its employees. To this extent their remarks extended beyond the bounds of permissible free speech' and, if the individuals can be deemed to have acted as agents of Southland in making their speeches, all three Respondents would be equally guilty of a violation of Section 8 (a) (1) of the Act. The, evidence in the record is too inconclusive to permit the making of any definite finding as to who was responsible, in the first instance, for the holding of the meeting in the community building. Levinson had no recollection of how the meeting happened to be called, although he admitted contacting various busi- nessmen to attend. Strickland likewise had no recollection of who called the meeting. The only witness willing to admit having had anything to do with the idea of holding such a meeting was employee Myrtha Lee. Lee testified that as a result of talking to a number of the girls who iddicated "confusion" as to whether or not they should join the Union, she suggested to her husband who worked for 13 The above quotation is from Strickland's own testimony. On the whole, except for an apparent reluctance to implicate the Company , the undersigned found him to be a frank and honest witness, whose testimony contrasted favorably with the evasiveness, lapses of memory , and lack of candor of Levinson, Guld, and Rackley. 14 Levinson at first testified that he had "no memory" of making a statement to the effect that the Company could pick up its machinery and move back to Wilmington. The General Counsel's further question whether he would "deny" having made such a statement , elicited from Levinson the following response which is indicative of his lack of candor as a witness : I neither admit nor deny it, I have no recollection of having made it, and I don't think I made it, but if I did it was the expression of my personal opinion, which I think I had a right to do, and still think I had a right to do. 11 This conclusion is not based on the references in Strickland 's remarks to the experience of two other plants which closed because of unions , since it is not clear from his remarks whether these were instances where the employers had deliberately closed their plants to defeat unionization or had closed as a result of strikes or inability to meet union demands ( Cf. Mylan-Sparta Company, Inc., 78 NLRB 1144). 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Town Commissioner C M. Blackmon that the girls would like to have some responsible businessman, like W. It. Strickland, talk to them and give them some advice about the Union According to Lee, the conversation with her husband took place during the noon lunch hour on Friday, August 5. The next knowledge she had of tbe.meeting was when Rackley made the announcement in the plant later that day. The undersigned entertains serious doubt whether Lee's idea of having some of the townspeople address the employees originated from the doubts about the Union expressed by fellow employees. Her testimony in this respect was of a somewhat dubious, unconvincing character 16 Although it may be suspected from the active part which Lee took, not only in the calling of this meeting but in other antiunion activities, that her actions were not without the encouragement or knowing acquiesence of the Company, the affirmative evidence in the record is too inconclusive to permit the making of any definite finding in this respect. It may be noted, however, that the holding of the community building meeting was coincidentally timed to be held a few hours before the union meeting at Holt's Lake on the same night, of which meeting the Company officials admittedly had advanced notice. In any event, irrespective of whether the idea of holding the meeting in the community building germinated with the Company, the part which it played in the conduct thereof, once it became aware there was going to be such a meeting, is alone sufficient to establish its responsibility for any violation of the Act occurring on this occasion. The evidence is clear that prior to the meeting both Strickland and Levinson came into the plant and received permission to announce the meeting over the public address system. Although the evidence does not disclose who gave them permission to use the loud speaker, it is inconceivable that they would have made such an announcement without receiving permission from either Guld or Rackley" In any event, irrespective of who gave them permission the undersigned is satisfied that both Guld and Rackley were aware of their presence and of the fact that the employees were being invited to attend the meeting 1s In fact. Rackley herself joined in the invitation to attend the meeting and was herself present in the community building. By this conduct, the Respondent Southland became an active participant in, and cosponsor of, the meeting and, in effect, held out the speakers as representing its views. Even if the Company's sponsorship of the meeting could not be deemed authorization for Strickland and Levinson to make any references to possible plant closure in their speeches, it owed the employees a duty to repudiate the veiled threats contained in their remarks and its silence under these circumstances constituted 16 At one point Lee indicated that "more than half the girls " in the plant had expressed their "confusion" about the Union When an effort was made to ascertain the basis of this estimate and as to whether these sentiments had been expressed to her personally, Lee gave an interesting performance in the art of evasion. 11 Levinson was unable to recall who granted them permission to use the loud speaker, testifying that he couldn't "recall that Mr Guld was even there, lie may have been . . . Strickland testified that Guld was not there at the time , but that it was "possible Mrs. Rackley was in the office , I am not sure." 18 Guld testified that he left the plant for Wilmington about a minute or half minute before 4 • 30 and did not learn of the meeting until after his return from Wilmington. Several employees testified to having seen Guld in the plant around the time of the announcement and some testified to having seen him on the porch of the community build- ing as the girls went in. Since Strickland and Levinson and the rest of their group came into the plant about 10 minutes before quitting time and Guld, according to his own testimony , did not leave until a minute or a half minute before 4:30 , the under- signed is satisfied that he was still in the plant when they arrived and must have been aware of the purpose of their visit . No finding is made as to whether he was on the porch of the community building as the employees went in , in view of the uncertainty of some of the employees as to whether they had seen him there. SOUTHLAND MANUFACTURING COMPANY 829 a ratification of the statements made by these individuals.19 In view of the similarity of the threats made by Strickland and Levinson with those contained in Rackley's remarks eailier in the week, the employees were especially justified in assuming that the former's remarks represented the views of the Company. The undersigned therefore finds and concludes that Respondent Southland authorized or at least ratified the remarks made at the community building meeting and that it is therefore responsible for the references made to a possible closing of the plant in the event of its unionization. 0 The undersigned also con- cludes and finds that Strickland and Levinson were acting as agents of the Respondent Southland in making their remarks and may therefore be regarded as employers within the meaning of Section 2 (2) of the Act It is further found that by the threats of a possible closing of the plant, all three Respondents interfered with, restrained, and coerced Southland's employees in the exercise of the rights guaranteed under Section 7 of the Act, in violation of Section 8 (a) (1) thereof. 4. Surveillance On the evening of August 5, several hours after the meeting in the community building, a meeting was held under the Union's auspices at Holt's Lake, a park area located a short distance from Benson along the main highway. Several employees and the union organizer, Hundley, testified that they saw Rackley drive by the meeting place at a slow rate of speed shortly before the meeting started and that in a few minutes she turned around and drove back again. Rackley admitted driving by Holt's Lake but claimed she was on her way to have dinner with her husband in Smithfield, the nearest large community, and that she did not return until an hour later Rackley admitted seeing cars near the meeting place but denied seeing any people at the meeting. In view of the proximity of the park to the highway, it is difficult to believe that Rackley (lid not see anyone at the meeting. However, whether she saw anyone at the meeting or not, she made a special point, as will appear later from the incident involving the discharge of Mandy Parker, of taking note of some of the cars at the meeting. The undersigned does not credit her testimony that she was driving by merely to go to Smithfield for dinner and that she did not return until at least an hour later. Rackley was admittedly aware that there was going to be a union meeting at Holt's Lake that night Her presence near the scene of the meeting was more than a mere coincidence Under all the circumstances, the undersigned finds that Rackley's presence at the meeting was for the purpose of keeping it under surveillance and that thereby the Respondent Southland interfered with, restrained, and coerced its employees in the exercise of their rights to self-organization. Other evidence of surveillance was given by the organizer, Hundley, and his wife, who testified that on a number of occasions Rackley and Guld, together and separately, trailed them in an automobile while they were on their way to visit the homes of the employees during the organizational drive. On one to Guld at first testified that although he later learned there had been a meeting, he didn't know what had been said at the meeting He later admitted on cross-examination that Rackley gave him "a general idea " of what was said at the meeting, but declined to elucidate what this was because, "The time has been so long I would not know." Under all the circumstances, the undersigned is satisfied that Guld was thoroughly briefed on the meeting by Rackley In any event, since Rackley herself was admittedly present there is no question that a responsible representative of the Company was well aware of the import of the remarks made at the meeting It may be noted , in this connection, that Rackley was no minor supervisor but was second in command in the plant During Guld's absence she was in sole charge 20Waynhne Inc, 81 NLRB 511 , L & H. Shirt Company, Inc, 84 NLRB 24S. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occasion, according to the Hundleys, they were at the home of employee Zula Glover, seeking to induce her to join the Union, when Rackley burst into the house without knocking on the door, using the pretext that she wanted Glover to set her hair. Both Rackley and Guld denied having trailed the Hundleys. Rackley admitted having come into Glover's house while the Hundleys were there but claimed that she knocked on the door first and that she had come there to ask Glover's sister to set her hair. The undersigned regards it as immaterial whether Rackley burst into Glover's home or knocked on the door, or whether she asked for Glover or for her sister n Neither Glover nor her sister had ever set Rackley's hair on any prior occasion and never did it thereafter. Save for the evening in question and on the evening prior to the instant hearing, Rackley had never visited Glover's home. Under all the circumstances, the undersigned is satisfied and finds that Rackley de- liberately came into Glover's home for the purpose of interfering with the Hundleys' organizing activities. The undersigned further finds, crediting the testimony of the Hundleys, that both Guld and Rackley trailed them on other occasions during the organizing drive. By engaging in such activities they interfered with, restrained, and coerced the employees of Southland in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1) thereof. 5. The efforts to induce employees to leave the Union The General Counsel attempted to show through the testimony of various employee witnesses that the Respondents Southland and Levinson attempted to induce a number of employees to withdraw from the Union. The evidence dis- closes that on Friday, August 12, about six of the girls who had joined the Union went to the Macon Hotel, where Hundley was staying, and requested the return of the dollar initiation fee which they had paid. These employees, who had pre- viously joined the Union, were accompanied by Myrtha Lee who was not a union member. According to one employee, Ruth Ivy, Lee came to her at her machine before the girls left and said that Rackley had told her "it was all right for them to leave the plant and go get their dollar back." When the girls saw Handley at the Macon Hotel, Lee acted as one of their spokesmen in requesting the return of the dollar initiation fee. Hundley advised the girls that he had no authority to return their money but that there was going to be a meeting that night at the home of Mandy Parker at which the Union's area director, John R. Sullivan, would be present and that they could talk to him about the matter. The evi- dence discloses that both Lee and Levinson were present at the meeting in Parker's house that night. Prior to the meeting Levinson asked several em- ployees outside of Parker's house if they wanted him to get their dollar back Za lie later went into the house, after receiving permission from Parker. Both he and Lee interrupted the remarks of Sullivan to express their antiunion senti- ments. Levinson referred to a strike in a plant in Madisonville, Kentucky, and stated that that was what happened where there are unions. He also requested that the employees' dollars be returned to them, threatening to bring court action if that was not done. 21 Rackley's testimony that she knocked on the door first and that she asked to see Glover's sister was corroborated by Glover who is still employed by the Company and was obviously a reluctant witness. Ii According to the testimony of Velma Wood, who had gone with Lee to the Macon Hotel earlier in that day, Lee pointed her out to Levinson as one of the girls who wanted her dollar back. SOUTHLAND MANUFACTURING COMPANY 831 On the basis of this testimony, the undersigned is unable to make any finding that the Respondents Southland or Levinson violated the Act by inducing em- ployees to withdraw from the Union. Although it may be suspected that Rackley was aware the employees were going to the Macon Hotel to get their initiation fee back and perhaps encouraged Lee in this action, the evidence is too incon- clusive to permit any definite finding in this respect . The only evidence to con- nect Southland with this incident is the hearsay testimony of Ruth Ivy that Lee told her Rackley had stated the girls could leave the plant to get their dollar back.23 With respect to Levinson ' s participation in the meeting at Parker 's house, there is likewise no evidence that he was acting as Southland's agent or that Southland was responsible for his taking the action he did. Since he' was not directly an employer of the employees here involved and since there was no agency established with respect to this incident , it is not possible to hold South; land accountable for the action which Levinson took in seeking to induce employees to withdraw from the Union .14 6. Other incidents of interference Eunice Dixon, one of the first employees to join the Union, testified to a con- versation which she had with Rackley shortly after she had joined the Union. According to Dixon, Rackley told her she was "surprised" at Dixon for joining the Union, that Dixon could join the Union if she wanted to but that Rackley "had done more for me than the Union ever would" ; and that she could have fired Dixon for 6 months because the latter was not making her production quotas but had not done so due to Dixon's family circumstances. Rackley, who admitted knowing Dixon was a union member since Dixon lived across the street from her and she could see the Hundleys' car parked in front of Dixon's house, gave a some- what different version of the conversation testified to by Dixon. According to Rackley, they had been discussing a personal matter when Dixon asked her if the Company would get rid of a girl who joined the Union. According to Rack- ley, she then told Dixon : "Child, if I wanted to fire you, I could have for the last six months, nobody wants to. fire anybody because of the Union." The under- signed does not credit Rackley's improbable version of this incident and, based on Dixon's credited testimony, finds that Rackley made a veiled threat of possible discharge of Dixon if she continued her union activities. Employee Ruth Ivy testified to another incident in which Rackley made a veiled threat to discharge Dixon. Ivy testified that one day when she was re- turning from lunch with Rackley and several other employees they were dis- cussing the people that the union organizers had visited and one of the employees, Marjorie Raynor, commented that they had been to see her but she didn't know how they had gotten her address since she had recently moved. According to Ivy, Rackley then commented that Eunice Dixon knew where Raynor lived and, when Raynor said that Dixon did, Rackley stated that "if she [Dixon] ever had any friends she needed them then . . . , she is going to need more friends than she ever needed." Rackley testified that she did not remember making the state- ment attributed to her by Ivy but added, "I could have and it would have been something besides the Union." Raynor 26 supported Rackley's denial. According 23 It is not entirely clear from Ivy's testimony whether Lee was purporting to quote Rackley or was giving her own characterization as to what Rackley ' s permission covered. Rackley admitted that some of the girls had asked for permission to leave the plant but denied they told her where they were going. 21 Although the undersigned has previously found that Levinson acted as Southland's agent at the community building meeting , this agency , in the opinion of the'undersigned, cannot be extended to include his later action at Parker's house. ss Raynor testified under her married name , Sloan. 0 832 DECISIONS,OF NATIONAL 'LABOR :RELATIONS BOARD to Raynor's testimony, she, Ivy, and Rackley were riding back from lunch -in the 'latter's car on the occasion in .question and all 'that Rackley said was "ugh, I `have eaten so much I will go to sleep this afternoon " Although, according to Raynor she had •a clear recollection of this incident because she was "right good 'at remembering things that happened and never forget anything," her later 'testimony revealed that her 'memory about other occasions when she rode in Rackley's car .wasmot•quite as vivid. The undersigned does not credit the testi- mony of either Raynor or •Rackley regarding this incident and finds that it occurred substantially as-testified to'by Ivy2 The undersigned 'finds that Rack- ley's remarks contained a veiled•threat that Dixon'might'be discharged because of her union activity. Another incident of interference in Which Rackley participated involved 'em- ,ployee Mandy Parker. This incident 'will be discussed in the next subsection of this Report in connection with Parker's discharge. C. The discharges 1. Mandy Parker e Parker was employed by Southland from August 1947 to August 9, 1949, except for a period of about 3 months between January and April 1948 when she was out due to illness. Parker joined the Union on Wednesday night, August 3, 1949, when the Hundleys called at her home during their organizing drive The only evidence of engagement in union activity by Parker prior to her discharge on August 9, 1949, is her attendance at the union meeting at Holt's Lake on Friday evening, August 5, to which reference has been previously made. 'Parker drove to the meeting in her car and :took several other employees with her. On Monday morning, August 8, Rackley came over to Parker's machine and told her she was "surprised" to see Parker's car at the Holt's Lake meeting and at Parker's taking a'load of girls with'her. Parker -told Rackley she hadn't asked the girls to go with her but that they had asked her for a ride Rackley made some reference to a "bunch of lies"'having been told at the meeting, apparently referring to the remarks of the union organizer, and Parker replied that she had previously heard the Company's side of the story and 'had gone to Holt's Lake to hear the Union's side. During the course of the conversation, Rackley asked Parker if she had joined the union and the latter stated that she had 2' On Wednesday, August 10, after she Chad worked 51/, hours, Parker was called into the office and discharged by Guld and Rackley The reason given to her for her discharge was 'her poor production Several weeks later, subsequent to the filing of the original charge in this proceeding, the Company offered to reinstate Packer but she-cleclined to return28 The coincidence of Parker's ,discharge with her interrogation anti 'chiding by 42adkley about the Union is, to'say the :least, suspicious However, the evidence ze As ipreviously mentioned,the undersigned was favorably impressed with the testimony ,of Ivy who is still employed by the Respondent and never joined the Union Raynor, although not now employed by the Company, is related to one of its employees and appeared to be making a conscious effort to favor the Company in her testimony. 27 The findings regarding this conversation between Parker and Rackley are based on Parker's credited testimony •Rackley did not directly deny having had such a conversation, although she did deny 'knowing that any of the employees, other than 'Eunice Dixon, were union members 28 There is some difference in the testimony as to when Parker was offered reinstatement. According to Rackley, the offer was made about 2 or 3 weeks after Parker's discharge. According to the latter, she was not offered reinstatement until about 6 weeks later. In view of the findings hereinafter made, it is unnecessary to determine when the offer of reinstatement occurred SOUTI3LAND MANUFACTURING COMPANY 833 adduced by the Company establishes that Parker's production record had been poor for many months prior to her discharge and that it 'had been considering discharging her prior to the time the Union appeared on the scene. Most of the employees at the plant were employed on a piece-rate basis with a guaranteed minimum hourly rate `Where an employee was unable to produce enough to cover her guaranteed hourly earnings she nevertheless received the latter amount. The differential between the piece-rate and guaranteed earnings was recorded in the production records as an "added amount " In Parker's -case, the produc- tion records disclose that from September 1948 until her discharge on August 10, 1949, her piece-rate earnings failed 'to equal her guaranteed hourly 'earnings in ,all but 3 weeks. The "added amounts" or deficiencies were of substantial size, ranging as high as $10 a week in many weeks. It further appears that begin- ning in May 1949, notations were made several times on Parker's production records'by Guld requesting Rackley to discharge her 29 The first notation appears on her production ,card for the week ending May 3, 1949, as follows : "Rack-ley, why do you want to'keep'Mandy, we lose money on everything you put her on'?" For the week ending June'7, 1949, there appears the following notation: "Get rid of her, we'are not 'running church institution; she 'will never produce, why do you insist you will make a pocket setter out of her." Finally, on her production record for July 19, 1949, there appears,the notation. "Fire " It thus appears that, with the possible exception of the last card, all notations were made before the advent of the Union Even in the case of the last card, it seems reasonable to assume that the notation was made before the Company had any knowledge of Parker's union membership 30 On 'the basis of these records, which the undersigned finds no reason to question " it appears that Parker was steadily deficient in production for an extended period of time and that the idea of dis- charging her had germinated several months prior to the advent of the Union. The General Counsel attempted to minimize Parker's production difficulties by showing that they were due to her transfer from an operation on which she 'had been making production to one with which she had difficulty. According to Parker, she had been able to make production on the trimming of shirts and that her difficulties arose after she was 'transferred to pocket setting in October 1948. Parker testified that at the 'time of this transfer Rackiey promised *to return 'her to trimming if she was unable to make production but 'that Rackley failed to put her back on trimming although so requested. However,.an examina- tion of Parker's'production records discloses that although her transfer to pocket setting may have affected her production efficiency it does not entirely explain ,her failure to meet her production quotas While it is true that she was able to make production on trimming shirts for most of the 5 months from April 1948,x2 nevertheless, -during the entire month of September 1948, while still ,working on trimming, she failed to make her production quotas by substantial amounts. 29'Guld testified that he periodically examined 'the 'production records of all employees ,and made notations thereon ,for Rackley's attention where the record of a particular employee required it. According to Guld, he examined all the cards within a week or 2 after the end of a particular workweek °° Parker did not join the Union until the 'evening of August 3 and was not seen at the Ilolt's Lake,meetmg'by Itackley until August 5 u There was nothing about the cards to'establish that .they were.not.authentic or that the notations thereon were not made ante litean meter, 32 There is no evidence in the record as to Parker's production during the earlier period of her employment from August 1947 to January 1948 ''' Her production records disclose deficiencies in the following' amounts during September 1948 Week endrne September 7-$7 18 , 'September 14-$12 27 ; September 21-$12 52 ; and September 28-$11 86 '155841 -52-s of 94-54 S34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover, beginning around February 1949, Parker was taken off pocket setting for considerable periods of time and worked partly on trimming shirts and partly on gauging collar bands, the latter being the operation on which she had been employed prior to her leave of absence in January 1948. Yet, except for about -2 weeks, Parker failed to make production during most of this latter period According to the testimony of Guld and Rackley, Parker's transfer was a nor- mal incident of production operations. She was transferred from trimming to pocket setting in October 1948 because there was need for a girl with sewing experience and Parker's previous experience from August 1947 to January 1948, gauging collar bands, had been on a sewing operation. Although Rackley had no definite recollection of promising to put Parker back on trimming shirts if she couldn't make production on pocket setting, she testified that, "I probably did. I usually handle my girls that way." According to Rackley, however, there was no opening for Parker on trimming shirts prior to her discharge. It was.not until some weeks after Parker had been discharged that a vacancy developed on the trimming of shirts due to one of the girls leaving and Rackley then sent for Parker. In any event, whatever may have been the Company's *motive in transferring Parker to various operations and in not reinstating her to trimming there is nothing in the record to support a finding that the trans- fers were connected with Parker's union activities. The period of the first transfer to pocket setting and the subsequent transfers to other operations long .antedated the advent of the union organizing drive and the Company obviously -could not have been motivated by a desire to cause her to become deficient in production so as to afford it a pretext for discharging her. However, despite the existence of a bona fide reason for discharging Parker, ,the circumstances surrounding her discharge are not without suspicion. Although Parker was almost continuously deficient in production from Sep- tember 1948 to August 1949 and Guld had apparently been considering discharg- ing her prior to the advent of the Union, the Company's decision was strangely delayed until after the discovery of her union membership. Her production card for July 19, 1949, contains a notation to "Fire" her. Yet she was retained until August 10, several weeks later when, after having been permitted to start a new workweek and to work 51/2 hours on that day, her services were suddenly dispensed with. The Company's explanation for the delay in discharging Parker was that although Guld had tried to get rid of her a number of times, Rackley had interceded on Parker's behalf and induced Guld to give her another chance. Guld's patience was finally worn thin, according to his testimony, when his attention was called to a bundle of work turned in by Parker on the morning of August 9 which was so poorly made that all of it had to be redone. Guld testified that when the floorlady called the matter to his attention he flew into a rage and sent for Rackley, demanding that Parker be discharged. Parker's testimony reveals that shortly before her discharge both Guld and Rackley spoke to the pocket setters, including herself, about their low produc- tion and the poor quality of their work. One of these occasions was on Tues- day, August 9, the day before her discharge and the other occurred during the preceding week.34 Parker admitted that the work was so bad the girls would sometimes spend a whole day ripping out the poorly done pockets and resewing them. She emphasized, however, that the complaints made by Guld and Rack- ley were directed at all the pocket setters and not at her in particular ; and 14 The date of the earlier talk to the pocket setters was fixed by Guld and Rackley as having occurred on Monday , August 1. Parker herself did not specify the date of this conversation , except that it occurred in the week prior to her discharge. •SOUTHLAND MANUFACTURING COMPANY 835 that at no time was there any threat that she would be discharged. Guld ad- mitted that Parker was the only one of the pocket setters who was discharged, although only two or three out of the eight were making production. However, he claimed that Parker's production was the lowest and that her quality was the worst.a5 Moreover, although no pocket setters had been discharged on ac- count of their production, it was Guld's uncontroverted testimony that at least eight other employees had been discharged for that reason. Conclusions Although the circumstances surrounding Parker's discharge are not without suspicion, the undersigned is unable to find on this record that a motivating cause therefor was Parker's union activity or membership. The fact that her discharge followed within 2 days after Rackley had interrogated her and chided her for attending a union meeting is, of course, of considerable significance in determining the motive for her discharge and establishes at least a prima facie case that her discharge was for union activity. However, the evidence offered by Respondent Southland was at least sufficient to redress the balance of the evidence. While much of the Company's case was based on the testimony of Guld and Rackley, whom the undersigned has previously found to be unreliable witnesses, their testimony regarding Parker's discharge was supported in large part by the production records and by admissions made by Parker. Thus, the production records establish Parker's deficiency in production for many months prior to her discharge. They also indicate that Parker's discharge was under consideration long before the Company even heard of the Union or of Parker's connection there- with. It is undisputed that her poor production was the reason given to Parker at the time of her discharge. Although the undersigned believes that the testi- mony of Quid and Rackley regarding the warnings allegedly given to Parker about her production was exaggerated,30 it is undisputed that she was warned -on at least two occasions, albeit the warnings were given to her as one of a group. One of these occasions occurred during the week prior to Parker's discharge at a time when, so far as appears from the record, the Company had no knowledge that she was a union member. The fact that none of the other pocket setters was -discharged on account of production, while of some significance, is offset by Guld's testimony, which was left uncontroverted, that Parker's production was the worst of the group. Moreover, there is also Guld's uncontroverted testimony that the Company had discharged at least eight other employees on account of pro- duction. While, as already indicated, Guld was not a particularly reliable wit- ness, his uncontroverted testimony in this respect was not so palpably unreasonable as to be beyond belief and must therefore be accepted. Under all the circumstances, the undersigned concludes that the General Counsel has failed to sustain the burden of proof and will therefore recommend dismissal of that portion of the complaint alleging the discharge of Parker. It is found, however, that Rackley's interrogation of Parker regarding her attendance at the Holt's Lake meeting and about her union membership constitutes interference, restraint, and coercion in violation of section 8 (a) (1). "'Guld testified that he had also been considering discharging Eunice Dixon, who was one of the pocket setters, but hesitated to do so because he knew she was an active union member and was fearful his motives might be misinterpreted. m Guld testified that he warned Parker about her production on occasions "Too enumera- ble to mention." When pressed for an estimate of the number of warnings he had given to Parker, he at first stated, "So many times I could not estimate" and finally settled -for "about four times." 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The discharge of Mary Beasley Sawyer Sawyer was employed by the Company from August 1946 until May 26, 1950, when she left to have an operation. It is not clear from the testimony whether she took a leave of absence or resigned from the Company. During the period of her employment, she worked at various jobs but at the time she left she was working as a cuff setter After an absence of about 3 months, Sawyer reapplied for her job." Sawyer spoke to both Guld and Rackley and was told that there was no opening at that time for a cuff setter She never made application thereafter and was never recalled by Respondent. On the basis of the record made before the undersigned, the General Counsel has wholly failed to sustain the burden of proof with respect-to Sawyer's dis- charge. The record not only fails to establish that the Company's refusal to reemploy her was motivated by her union membership but even fails to show that the Company was ever aware of, or suspected her of, being a union member. Although Sawyer joined the union during August 1949, there is no evidence that she was particularly active in the Union The only evidence which even remotely suggests that the Company was aware of her union membership is Sawyer's testimony that after she had joined the Union, Rackley came to her machine one day and told her that the employees didn't need a union and asked Sawyer if she had joined. According to Sawyei's testimony she told Rackley she was not having anything to do with the Union, although she had in fact joined at that time. Accepting Sawyer's testimony as worthy of belief, it is insufficient to' establish knowledge, on the Company's part, of Sawyer's union membership, or that it suspected her thereof Theie is likewise nothing in the testimony regarding the circumstances of the refusal to rehire her which suggests that her union membership was responsible tor the refusal to reinstate her. She was merely told that there was no work for cuff setters at the time. According to the testimony of Gnld and Rackley, which was not controverted by the General Counsel, there were no openings at the time for cuff setters and the Company has not since its refusal to reinstate Sawyer hired any cutt setters. Since the General Counsel has failed to sustain the burden of proof with respect to Sawyer's discharge, it will be recommended that the allegation of the complaint alleging her discharge for actual or suspected union membership be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in Section III, above, occurring in connection with the operations of the Respondent Southland described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to be unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V. THE REMEDY Since it has been found that the Respondents engaged in certain unfair labor practices, it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act It has been found that the Respondents have engaged in various acts of inter- ference with, restraint, and coercion of emplovees of the Respondent Southland in the exercise of the rights guaianteed by Section 7 of the Act Because of 37 No definite date was fixed in the record as the date of Sawyer's application According to her testimony she reapplied for her job in August 1950 . According to Guld 's testimony she reapplied in September. A. OVE'RHOLT' COMPANY, INC. 837 the nature of the conduct engaged in by them, indicating strong hostility to the efforts of the employees of Respondent Southland to organize and an attempt to interfere generally with the rights guaranteed employees by the Act, the under- signed will recommend that the Respondents cease and desist not only from the conduct found herein to be illegal but from in any other manner interfering with, restraining, or coercing employees of Southland in their right to self- organization ' CONCLUSIONS OF LAW 1. Amalgamated Clothing Workers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. L. L. Levinson and W. R. Strickland are employers within the meaning of Section 2 (2) of the Act. 3. Southland Manufacturing Company, L. L. Levinson, and W. R. Strickland by interfering with, restraining, and coercing the employees of Southland Manu- facturing Company in the exercise of the rights guaranteed in Section 7 of the Act have engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent Southland Manufacturing Company has not engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act by discharging Mandy Parker or by refusing to employ or reemploy Mary Beasley Sawyer. [Recommended Order omitted from publication in this volume.] m See May Department Stores v. N . L. R. B., 326 U . S. 376. A. OVERHOLT COMPANY, INC. and INTERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL , SOFT DRINK AND DISTILLERY WORKERS, OF AMERICA, LOCAL 269, CIO1 PETITIONER. Case No. 6-RC-784. May 24, 1951. Decision and Direction of Election Upon a petition duly filed, under Section 9 (c) of the National Labor Relations Act, a hearing was held before Emil E. Narick, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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-member panel [Members Houston, Reynolds, and Styles]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 1 The petition and other formal papers were amended at the hearing to show the correct name of the Employer. 94 NLRB No. 116.