McComb Manufacturing Co.

596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that the Respondent has engaged in the unfair labor prac- tice of refusing to bargain collectively with the chosen representative of its employees. It will therefore be recommended that it cease and desist there- from and from like and related conduct and it will further be recommended that the Respondent bargain collectively, upon request, with the Union as the exclusive representative of its employees in the aforesaid appropriate unit. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. Blue Mountain District Council of Lumber and Sawmill Workers, affiliated with the United Brotherhood of Carpenters and Joiners of America, A. F. of L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees, excluding office, clerical, and supervisory employees 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. Blue Mountain District Council of Lumber and Sawmill Workers, affiliated with the United Brotherhood of Carpenters and Joiners of America, A. F. of L., was, on May 15, 1950, and at all times since has been the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bargain- ing within the meaning of Section 9 (a) of the Act. 4. By refusing on and after June 20, 1950, to bargain collectively with the aforesaid Union as the exclusive representative of the employees in the appro- priate unit, Respondent has engaged in and is engaging in an unfair labor prac- tice within the meaning of Section 8 (a) (5) of the Act. 5. By the aforesaid unfair labor practice, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging in an unfair labor practice within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] MCCOMB MANUFACTURING COMPANY AND MRS. O. H. STRINGER and INTERNATIONAL LADIES' GARMENT WORKERS' UNION7 A. F. L. Case No. 15-CA-235. July 26, 1951 Decision and Order On March 20, 1951, Trial Examiner W. Gerard Ryan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in unfair labor practices and recommending that it cease and desist therefrom and 95 NLRB No. 82. McCOMB MANUFACTURING COMPANY 597 take certain affirmative action, as set forth in the copy of the Inter- .mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in other alleged unfair labor practices and recommended that the complaint be dismissed in this respect. Thereafter, the Respondent filed exceptions to the Inter- mediate Report and a supporting brief. No exceptions were filed by the General Counsel or the Union. The Board 1 has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. We find no merit in the Respondent's exception that the Trial Examiner erred in failing to sustain its motion to dismiss the com- plaint on the ground that the charge upon which the complaint is based was not signed by anyone authorized at the time to file it. The original charges and the amended charges upon which the complaint was predicated were filed on behalf of the Union by Margaret LaValla and Mrs. Lillian Benson, respectively, who signed the charges as in- ternational representatives of the Union; LaValla also represented the Union at the' hearing. The Act provides that the Board may issue a complaint "whenever it is charged that any person has en- gaged in" unfair labor practices (Section 10 (b) ). The Board's Rules and Regulations provide that such a charge "may be made by any person," including a labor organization. No showing of authority to make the charge is necessary. Wilson do Company, Inc., 31 NLRB 440; enforced 126 F. 2d 114 (C. A. 7) ; cert. den. 316 U. S. 699. Nor do we find merit in the Respondent's contention that the Trial Examiner should have sustained its motion to dismiss the complaint on the ground that the record contains no proof of compliance by the Union or its parent organization with the filing, requirements of Section 9 (f), (g), and (h) of the Act at the time the complaint was issued. The Act does not, as a condition to the exercise of its juris- diction, require pleading and proof by the Board that the Union has complied with these .requirements. N. L. R. B. v. Greensboro Coca Cola Bottling Co., 180 F. 2d 840 (C. A. 4), March 6, 1950, 25 LRRM 2499; N. L. R. B. v. Red Rock Co., 187 F. 2d 76 (C. A. 5), February 15, 1951, 27 LRRM 2355; N. L. R. B. v. Vulcan Forging Co., 188 F. 2d 927 (C. A. 6), March 23, 1951, 27 LRRM 2534. Moreover, the Board is administratively satisfied that both the charging union and the 'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel (Chairman Herzog and Members Murdock and Styles]. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I A. F. of L., its parent organization, have been in compliance at all times material hereto. See Sunbeam Corporation, 94 NLRB No. 134; Swift dd Company, 94 NLRB No. 137; cf. Highland Park Manufac- turing Company, 340 U. S. 927. Order Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, McComb Manu- facturing Company of McComb, Mississippi, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from interrogating its employees with respect to their membership in the Union or activities in its behalf; threaten- ing its employees with loss of employment or, that the plant will close if the Union organizes its employees, or in any like or similar manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form labor organizations, to join or assist International Ladies' Garment Workers' Union, A. F. L., or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of 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 plant in McComb; Mississippi, copies of the notice attached hereto and marked "Appendix A." 2 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by the Respondent, be posted by it im- mediately 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 to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Fifteenth Region in. writ- ing within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges: (a) That the Respondent discriminatorily discharged and 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." McCOMB MANUFACTURING COMPANY 599 failed to reinstate Opal Hayes, Laura Wingate, Katherine R. John- son, Viola M. Boyd, Katherine C. Johnson, Nelma Harvey, Willard Johnson, and Jensie Heck in violation of Section 8 (a) (3) of the Act; (b) that the Respondent told its employees that it had a list of all employees who had joined the Union; and (c) that the co-Respond- ent, Mrs. O. H. Stringer, had engaged in and was engaging in unfair labor practices affecting commerce. 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 interrogate our employees in any manner as to their union activities, nor threaten them with loss of employment or that we shall close the plant, or in any like or similar manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist INTERNATIONAL LADIES' GARMENT WORKERS' UNION, A. F. L., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Sec- tion 8 (a) (3) of the Act. All our employees are free to become, remain, or refrain from be- coming members, of the above-named union or any other labor organi- zation except to the extent that this right may be affected by an agree- ment in conformity with Section 8 (a) (3) of the Act. MCCOMB MANUFACTURING COMPANY, Employer. By ---------------------------------------- (Representative ) (Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order Upon a second amended charge filed on April 18, 1950, by International Ladies' Garment Workers' Union, A. F. L., herein called the Union, the General Counsel 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the National Labor Relations Board' by the Regional Director for the Fifteenth Region (New Orleans, Louisiana), on August 4, 1950, issued a com- plaint against McComb Manufacturing Company, herein called the Respondent, and Mrs. O. H. Stringer, herein called the co-Respondent, alleging that the Re- spondent and the co-Respondent had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947, herein called the Act. Copies of the complaint, the charge, the first amended charge and the second amended charge, upon which the complaint was based, together with notice of hearing thereon, were duly served upon the Respondent and the Union. Copies of the complaint, the second amended charge, and notice of hearing were duly served upon the co-Respondent. With respect to the unfair labor practices, the complaint, as amended at the hearing, alleged in substance that: (1) The Respondent discriminatorily discharged and refused reinstatement to eight named employees because of their membership in and activities on behalf of the Union and in order to discourage union membership and activities of its other employees; and (2) the Respondent and the co-Respondent from May 10, 1949, to the date of,the complaint had (a) required supervisory personnel to determine and report to the Respondent persons active in the Union ; (b) interrogated employees as to their membership in the Union; (c) interrogated employees about visits of union representatives to their homes; (d) threatened employees with loss of jobs or other benefits because of their union membership and activities; (e) threatened the employees that the plant would close unless said.employees forgot about the Union ; (f) told em- ployees that the Respondent had a list of names of all employees who had joined the Union ; (g) offered to-employees steady employment if they would abandon the Union; (h) told discharged employees that said employees would be rehired if they would abandon the Union ; (i) made promises of benefit to employees to cause said employees to cease their union membership and activity ; and (j) by other acts and conduct interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act. In its answer filed on August 29, 1950, and amended at the hearing, the Re- npondent admitted certain allegations of the complaint but denied the commission of any unfair labor practices. The co-Respondent filed a letter on August 11, 1950, in which the allegations of the complaint were denied and which has been accepted without objection as an answer and motion to dismiss the complaint by the co-Respondent. Thereafter on August 29, 1950, the Respondent moved to dismiss the complaint, to strike certain allegations from the complaint, and for a bill of particulars. Trial Examiner Sydney S. Asher, Jr., denied the motions to dismiss the complaint and to strike certain allegations ; and granted in part, and denied. in part, the Respondent's motion for a bill of particulars. Pursuant to notice a hearing was held in McComb, Mississippi, from November 21, 1950, to December 1, 1950, inclusive, before W. Gerard Ryan, the undersigned Trial Examiner , duly designated by the Chief Trial. Examiner. The General Counsel, the Respondent, the co-Respondent, and the Union participated in the hearing and were afforded full opportunity to be heard, to examine and cross- examine witnesses , and to introduce evidence bearing upon the issues. At the close of the General Counsel's case-in-chief, the Respondent moved to dismiss the complaint. Decision was reserved on the motion to dismiss the entire 1 The General Counsel and his representative are herein referred . to as the General Counsel ; and the National Labor Relations Board as the Board. . McCOMB MANUFACTURING COMPANY 601 complaint but the allegations contained in paragraph VII, subparagraphs (a), (g), (h), and (i), and the amended portion of the complaint with respect to paragraph VII insofar as it referred to Louis Alford and acts alleged to have been committed by him were also dismissed without objection. The allegations in the complaint alleging that the co-Respondent was an agent, officer, or repre- sentative of the Respondent were also dismissed on the ground that there was no evidence in support thereof. At the conclusion of the testimony, the parties were afforded opportunity to argue orally and to file briefs, proposed findings of fact, and conclusions of law. The Respondent moved for dismissal of the complaint for failure of proof. Decision was thereupon reserved and is now disposed of as hereinafter indicated. Motion by the co-Respondent to dismiss the complaint against her was granted. Briefs have been filed by the General Counsel and the Respondent .2 Upon the entire record in the case, and from my observation of the witnesses, I make the following : FINDINGS OF FACT* 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Mississippi corporation having its principal office and place of business at McComb, Mississippi, where at all times since August 1949, it has been engaged in the manufacture of nylon, rayon cloth, and lingerie. Between August 1949 and May 1950, the Respondent purchased raw materials valued in excess of $200,000, 90 percent of which came from States other than the State of Mississippi. During the same period, the Respondent manufactured and sold products whose value was in excess of $100,000, all of which was sold in States other than the State of Mississippi. I find that the Respondent is engaged in commerce within the meaning of the Act. II- THE ORGANIZATION INVOLVED International Ladies' Garment Workers' Union, A. F. L., is a labor organiza- tion which admits to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Introduction The Respondent came into existence in the latter part of July 1949, and occupied the same premises which had previously been occupied by two previous concerns which had given up the building.' During the month of August 1949, the Respondent undertook to train its first employees and engaged the services of Miss Helen Brown of Milwaukee, Wisconsin, to train its supervisors. Initially hired for 3 weeks, she remained in the capacity of head supervisor of the sewing department for about 6 months. In the first week of September, the plant began production at which time the'sewing department was moved to the second floor of the building. On October 3, 1949, the Respondent hired Robert I. Cole, an industrial engineer, to develop and maintain production and quality standards. Cole guided Brown and her line supervisors in the build-up of the working force, 2 The time for filing briefs was extended, by an Associate Chief Trial Examiner to January 11, 1951. 3In making the findings herein, I have considered and weighed the entire evidence. It would needlessly burden this Report to set up all the testimony on disputed points. Such testimony or other evidence as is in conflict with the findings herein is not credited. 'The latest occupant was a garment manufacturer known as Kay-Ruth. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the adoption of proper methods of work in the various operations performed by the employees, the elimination of bottlenecks, and the flow of production of the required quality and volume. While the first operations in the sewing depart- ment were from finished material, within a matter of weeks the new plant had established all its present departments for the manufacture of lingerie, from the knitting of the fabric through dyeing and finishing of the cloth into and through the making of the garments ready for retail sale. Other departments of shipping, receiving, warehousing, and office administration were set up along with the manufacturing units. Most of the General Counsel's case was confined to the period from September to November 30, 1949, during which there were from 34 to 42 supervisors. When Cole assumed his duties on October 3, there were 126 employees in the plant, 73 of whom were in the sewing room ; a month later, there were 182 of whom 118 were in the sewing room ; and at the first of December 1949, there. were 240 employees, 151 of whom were in the sewing room . As of November 1, 1950, there were over 400 employees employed in the entire plant. Early in September 1949, the Union began its attempt to organize the Re- spondent's employees which has continued to the present time. For the times material to the complaint, the activity on the part of the Union, for the most part, had been the solicitation of members by personal calls from organizers who individually called on employees during their off-duty hours at their homes in the evenings. The organizers obtained signatures from prospective members on the promise that such information would be held strictly confidential and that policy was maintained to the extent of not offering any signed union cards in evidence at the hearing. I mention this policy of secrecy as to which employees had joined and the dates on which they had joined the Union because' it seems to me to have an important bearing when weighing the evidence offered to prove that the Respondent knew that certain employees alleged to have been discrimi- natorily discharged had joined the Union or were active in its affairs. Corrobora- tive evidence in the form of written records is usually helpful when it becomes necessary to fix the date when an.employee joined the Union in order to compare that date with the date of discharge. Some employees who had joined the Union were ignorant of the identity of coemployees who also had joined. In view of that it requires persuasive proof that the Respondent knew that the alleged dischargees were members of, and/or engaged in, activities for the,Union, when such information was lacking even among the employees themselves in the crucial early days of the organizational campaign. B. The alleged discriminatory discharges' 1. Opal Hayes The complaint alleged that the Respondent discharged Opal Hayes on October 28, 1949, and thereafter failed and refused to reemploy her because of her membership in and activities on behalf of the Union, and in order to discourage union membership and activities of its other employees. The answer denied that she had been discriminatorily discharged or denied reemployment and averred that her termination was for legal and proper reasons. Hayes was employed by the Respondent from July 27, 1949, to October 28, 1949. Prior to her employment 5 Supervisors of the Respondent within the meaning of the Act were : Maurice Perlstein, president ; Richard Busby, manager ; Robert Cole, engineer in charge of production ; Helen Brown , head supervisor in sewing department ; and Line Supervisors Laura Dunnaway, Theo Terrell , Eunice Smith, Addie Barron , Eula Prescott, and Nellie Reeves. Foreman Lippman replaced Helen Brown sometime in February 1950. ' McCOMB MANUFACTURING COMPANY 603 with the Respondent, she had been employed in the Kay-Ruth garment factory for approximately 6 years, during the last 2 of which she had been a supervisor over approximately 40 employees. Hayes was hired by Helen Brown to be trained with others for supervisors. A program was planned to train the girls for supervisors by teaching them all the machine operations required for the making of women's slips and then teaching them to be inspectors. Hayes had not operated a sewing machine at her prior place of employment and when hired told Brown that she did not like to work on sewing machines. Brown explained that in order to be a supervisor she would have to be trained on the, sewing machines and work up. The first few days of her training she, like others, sewed on scraps in order to become familiar with the operations of the machine. After 3 or 4.days sewing scraps, she worked on the operation known as sewing seams on slips for approximately 3 or 4 weeks. In the latter part of August, at her own request, Hayes became an inspector and continued to be 'an inspector until she was discharged. The work of inspector required trimming the threads of the finished nylon slip and also examining it for workmanship, material, and grease spots before it was sent to the shipping department as a first-class garment. As an inspector, her first supervisor was Eula Prescott, her second supervisor was Laura Dunnaway, and about the middle of September she moved to the line where Addle Barron was supervisor and remained under her supervision during the remainder of her employment. Hayes testified that she first became aware of union activities in late Septem- ber or early October approximately 4 weeks prior to October 27 when an organizer for the Union asked her to sign a union card. Hayes did not join at that time but said she was interested in the Union and asked for time to think it over and discuss it with other employees. She testified that her union activities con- sisted of talking about the Union with other employees who were in favor of it and also talking with her supervisors ; and, with the exception of giving an application card for union membership to an employee, Georgia Mae Anding, on October 28, the day she was discharged, did not distribute any cards nor solicit any employees to join the Union.6 Hayes testified that she discussed the Union with employees at the plant during rest periods and noon hours at which times the employees discussed the organizers, which employees' houses the organizers had visited, and whether it would be a good thing to have a union at the plant. Some of the employees, including those in favor of and those opposed to the Union expressed the thought that the plant would close if the Union succeeded in organizing the employees. On October 14, the day when Perlstein, the presi- dent of the Respondent, made his first speech to the employees, Hayes remarked to Helen Brown that he had made a nice speech, to which Brown agreed. Hayes then asked Brown what she thought of the Union organizing the employees, to which Brown replied that she was neutral on the subject. Hayes then asked her if she had ever worked in a plant where it was organized and Brown replied that she had. When Hayes pursued the subject by asking Brown which condi- tions Brown would rather have at the Respondent's plant, she answered that it made no difference to her and walked away. Hayes testified that the first time Supervisor Smith spoke to her about the Union was 2 or 3 weeks before she was discharged when Smith asked her what she thought about the Union and Hayes replied that she did not know. Then Smith said that it looked like the girls ought to do the right thing, to which Hayes again replied that she did not know. Smith then, according to Hayes, remarked, "Well, you know definitely that if there is a union formed in this plant that Mr. Perlstein will. close it down." 9 Anding disputed Hayes on the date by testifying that it. was not October 28, but a week prior thereto that Hayes gave her the card. - 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hayes replied that the railroad shop was organizing and inquired why the Re- spondent's employees could not organize . Smith answered, "Well, you say that the railroad shops are organizing , but they are not working now." Hayes said, "Yes, you just watch. The unions always get what they ask for, labor is always getting what they ask for and I can't see why ladies can 't be organized as well as men." In her testimony , Smith admitted that she did have conversation with' Hayes (first placing it in September but, on cross-examination, in October) in which the subject of the railroad shops organizing was discussed , and when Hayes said she did not see why the girls could not organize the same as the men replied to Hayes , "Neither do I." At another time, Hayes testified that Smith directly asked her if she had joined the Union but Hayes, did not tell her she had or had not joined ; and that Smith passed by her inspecting table several other times and expressed hopes that the employees would exercise good judgment and not organize the Union. Hayes testified that she joined the Union in . October and "thinks" it was on October 27. She testified further that never at any time while she was an inspector was she criticized by Brown or any other supervisor , except that Addie Barron talked to her about wanting to be transferred to other jobs .? . Hayes testified further that she always inspected all the garments on her line ; that at times when there were no garments on her line to inspect she helped out by inspecting on other lines, and at numerous times when there was no work to be inspected , did other jobs on the floor ; and that at Brown's direction she trained two employees to be inspectors . She specifically denied that Brown ever told her that unless she improved she would be discharged , and admitted that she smoked every day at rest period in the rest room and once or twice during her entire employment had smoked during working hours in the rest room when there was nothing else for her to do. She denied further that Brown or Barron had ever talked to her about the number of times she went to the rest room. Hayes also admitted that she felt that Brown did not like her as well as some of the other girls and a few days after her discharge told Smith she felt Brown did not like her and maybe she was the cause of her discharge . Hayes continued to testify that in the late afternoon of October 28, Brown said that she hated to tell her that Richard Busby, the manager, had told Brown to tell her that she would not be needed any more because her production record was insufficient, to which Hayes protested that Brown knew Hayes inspected all the garments her line required and she did not have work to do all the time ; whereupon Brown replied that was what Busby had told her and Hayes could talk to Busby if she wanted to. Hayes thereupon similarly protested to Busby and informed him that she needed her job and if he would rehire her she would be willing to take any job in the plant where he saw fit to place her . Hayes testified that he replied that he would have to let her go and train someone else , but that as the plant grew, more inspectors would have to be trained and when he saw where he could use her again he would call her which would possibly be in a week or two. Richard Busby testified that although he was production manager for the Respondent during the year 1949 , he did not personally order the discharge of any of the eight alleged to have been discriminatorily discharged . His version of the conversation with Hayes was that it opened by her inquiring if he knew she had been discharged to which he replied in the negative . He testified that Hayes admitted that she knew she did not produce well , that she was not satis- fied and wanted to be a supervisor ; and that she inquired if there would not be a place for her, possibly in the shipping or pressing department or in the dye 4 The record does not disclose what Barron said to he McCOMB MANUFACTURING COMPANY 605 house. Busby testified that he told her if anything opened up and there was a place he thought she could fill that she would be called back. He denied that he gave any specific time within which she would be recalled. Helen Brown testified that during the first 2 weeks of Hayes' training on the sewing machines she found her to be discontented and "coaxed" her to stay on the machine because she knew that Hayes wanted to be a supervisor and it was necessary for her to have the required power machine training. When the time Caine for the other trainees on the machines to begin their training as inspectors, Brown testified that Hayes asked if she too could not begin inspecting saying that she did not want to sew and would never learn because she did not like it. Brown then told her if she was an inspector without the sewing machine training, she could never recommend her to be a supervisor. Thereupon Hayes asked if there would not be a finishing department in the plant which she could supervise, but Brown informed her that she still would have to learn the sewing in order to be a supervisor there. Brown transferred Hayes to inspecting about the middle or latter part of August and testified that as an inspector she found Hayes to be restless, "not knowing what she wanted" and that Hayes kept in- quiring if there was not something else for her to do such as a finishing depart- ment which she could supervise. Brown testified that Hayes' work as an inspec- tor was good on some days and bad on other days; that her production was very poor and Brown tried to get her to increase it. In reply to Brown's inquiry as to how she was doing, Hayes replied, "I don't know. I don't think that I will ever 'make it." Brown answered that if she did not work, she would never make it. Brown further testified that the quality of her work as an inspector insofar as cleaning the garments and passing flaws in workmanship was inferior and that her production did not increase nor the quality of her work improve. According to Brown, she spoke to Hayes many times about absenting herself from her workplace by wandering around the room or being in the rest room, and Hayes complained that it tired her to stand still and she wanted a job where she could wander around ; and when Brown cautioned her about smoking during working hours, Hayes replied that she had to have a smoke. Brown denied that she knew that Hayes had joined the Union ; and denied Hayes' testimony that Busby had ordered Brown to discharge her and testified that Busby had not ordered her to discharge Hayes. According to Brown when she discharged Hayes on October 28, Hayes inquired if she could see Busby and Brown agreed. Brown testified that Supervisor Barron had complained many times about Hayes taking back work to the operators, that Hayes was not nice about it and the girls had objected. Brown testified that Hayes should have put defective work aside for the supervisor or service girl to take to the sewing machine operators. Supervisor Addie Barron corroborated Brown as to the quantity and quality of Hayes' work. She testified that both Robert Cole, the production engineer, and Brown were pressing her because of Hayes' low production; but, instead of discharging her earlier, Barron had asked that Hayes be given another trial for a week or so and when there still was no improvement Hayes was discharged by Brown. Robert Cole, then plant engineer for the Respondent, together with Brown and each line supervisor were responsible for the production output. As such, Cole testified that he observed the aptitude and amount of production of the employees. He testified that at the weekly meetings held with the supervisors he usually required each supervisor to submit the names of three employees who were the lowest producers. Hayes' work and her aptitude were discussed for at least two meetings before she was discharged and that after he had reviewed her work and worth as an employee he voiced his opinion that he did not want her 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD retained as an employee. With respect to the percent of efficiency records introduced into evidence, Cole explained that in the beginning the inspectors kept their own production records and turned them over to the supervisors until such time as the Respondent was able to set ratings on inspectors. Such records which were turned over to the supervisors were not kept by the Company with the result that the production of Hayes is not, reflected on that record for the weeks prior to those listed. Hayes' percent of efficiency for the 3 weeks listed (presumably the last 3 weeks of her employment) is respectively: 18.2 percent; 15.4 percent ; and 22.1 percent, which is the lowest rating for any of the inspectors listed. On the accredited testimony of Brown, Cole, Busby, and Barron, I find that Opal Hayes was discharged for cause. There is no evidence whatsoever in the record to show that any. official of the Respondent or any supervisor knew that Hayes was a member of the Union or active in its behalf.' From Hayes' own testimony she was not active in the Union's campaign, except for talking about the Union with her fellow employees and supervisors. To her supervisors she was noncommittal as to what she thought about the Union and on one occasion when Supervisor Smith directly asked her if she had joined the Union, Hayes did not tell her that she had or had not joined. Her activity for the Union certainly could not have been particularly noticeable or marked, because she took 4 weeks in which to "think it over" before joining on October 27. There is only the remote possibility that Smith may have drawn an inference of sympathy for the Union from Hayes' remark inquiring why the girls in the plant could not have a union if the men in the railroad shops had one, to which Smith replied that neither did she know. Since Smith was not her supervisor, had no part in her discharge, and the time of such conversation was so long before Hayes' discharge, a conclusion that it contributed to the reasons for her discharge would be highly speculative and based on nothing more than surmise. Accordingly, I find that neither Hayes' membership in nor her activities for the Union were known to the Respondent and were not the reasons for her discharge. The evidence is insufficient to support the allegations in the complaint insofar as Opal Hayes is concerned, and, accordingly, to that extent the complaint should be dismissed. 2. Laura Wingate The complaint alleged that the Respondent discharged Laura Wingate on November 4, 1949, and thereafter failed and refused to reemploy her because of her membership in and activities on behalf of the Union, and in order to dis- 8 The chart containing the efficiency percentages was prepared by the Respondent at the request of the General Counsel prior to the hearing. No such chart was in existence prior to January 1950 when the Respondent first began to make such records. G The General Counsel in his brief states that prior to October 27, Hayes had spoken in favor of the Union to Eunice Smith and was known as an active union supporter citing, in support of the statement that her favoritism toward the Union was common knowledge; the fact that Mayor Wall, knowing her to be a union supporter, spoke to Hayes in a res- taurant at noontime on the day she was discharged and urged her to try to persuade employees at the plant from joining the Union. The Respondent in its brief relies on this episode as tending to prove that Hayes was not known as an active union supporter. There is no proof in the record that Wall knew Hayes to be a union supporter. It was stipulated that evidence as to Wall's conversation was offered only as background evidence, not binding on the Respondent and limited only to show that it was common knowledge throughout the community that the Union was engaged in organizational activities. At that point in the record, the Respondent conceded that it knew the Union was organizing prior to October 14 pointing to the fact that it gave the General Counsel a copy of Perlstein's speech to the employees on October 14. McCOMB MANUFACTURING COMPANY 607 courage union membership and activities of its other employees.'0 The answer denied that she had been discriminatorily discharged and averred that her termination was for legal and proper reasons. Wingate was employed as a sewing machine operator from September 15, 1949, until her discharge on November 4. Her main job was sewing seams but for the first 2 weeks of her employment had also "darted" on the garments. The highlights of Wingate's testimony are that she joined the Union in October 1949, but does not know the date ; that her supervisor, Laura Dunnaway, once told her that the Respondent had a list of the employees who had joined the Union and the Company would discharge them , but does not know how many days or weeks it was before her discharge that Dunnaway said it, except that it was in October ; that about every day in the week before she was discharged Dunnaway asked her if she had signed a union card but Wingate denied at all times that she had signed a card and , finally, after Dunnaway had nagged her day after day for several days about the Union, told her on the day before she was discharged that she had joined the Union; that she saw Perlstein, the Respondent 's presi- dent, on November 4 shortly after her discharge to protest her discharge stating that her production was greater than Gladys Honea's, who had not been dis- charged, to which Perlstein replied that he had come to McComb to build a plant and not to have it torn down ; and that on the evening following her discharge, Dunnaway telephoned to say she was surprised when Wingate was laid off- that if Dunnaway had known she was going to be discharged , Wingate could have apologized for joining the Union , secured the return of her union card, and continued to work. The Respondent in its defense offered the testimony of Dunnaway and Perlstein , who denied the antiunion statements and conduct attributed to them. Helen Brown and Robert Cole testified that the discharge was for cause, not motivated by discriminatory reasons. Brown testified that she had spoken to Wingate more than once about her work; that she could not or would not follow instructions and that she discharged her for low production output. Cole testified that Wingate was the first operator he worked with in the sewing department in early October,; that she was very nervous, had a poor aptitude for the job, and held up the production of other operators who followed her operations ; that he had sat at her machine and instructed her how to sew but when he left her she reverted to her own way ; and that at .the supervisors ' meeting held the day before she was discharged he voiced his opinion that she should be discharged . Cole testified further that there could be no comparison between the work of Honea and Wingate, for each performed separate sewing operations , except when Honea did the same as Wingate because of lack of work for Honea and slow production on the part of Wingate. While there is conflict in the testimony whether Wingate ever sewed as many as 6 or 12 dozen per hour ( standard production was 23 dozen ) Dunnaway's testimony that Wingate never reached 50 percent efficiency is borne out by the precent of efficiency records in evidence. Wingate testified that it was the people around her, not the machines, that made her nervous and that she once asked Brown to transfer her from sewing machine work to some other work. She testified that her reason for the request was that she knew she could not make the production. Wingate demonstrated her unreliability as a witness, on cross- examination , by the following testimony : A. I wanted to get off the machine and I wanted to do it because I knew more production was going to be pushed on me and I knew I couldn't do it. 10 Laura Wingate is also referred to in the record at times as Laura Alice Wingate, and as Alice Wingate. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. You couldn't do what? A. Make the production. Q. And how long before you were discharged was that? A. I don't know, about four months , four weeks. Q. Give us your best estimate. A. It was in November while I was working there. Q. No. You mean, it was in November that you told Helen Brown that you would like to be moved off the machine? A. No. I didn't work but three or four days in November. Q. Why did you say it was in November, then? A. I said it was in October . I didn't say it was in November. Q. What part of October ? The middle ? Or the end? A. I don't know. It was in October while I was working. Q. Now, just what did you say to Helen Brown? A. I asked her could she move me on another job that that lint was terrible. Q. And what was the lint doing? A. Well, I was afraid .it would cause me to have asthma. Q. It wasn't giving you trouble with the asthma already? A. No, not any more than anything else. Q. What other job did you ask for? A. I don't remember just what I asked her. I just asked her to move me off the machine, Q. And that was the reason you wanted to be moved ? On account of the lint? A. That is about it, yes. That is the only reason. Q. And that is the only reason? A. Yes. Q. . . . What did you mean a while ago when you said that you knew you couldn't make production . and that was the reason you wanted to be moved off the machine? A. I didn't say I couldn't make production. I said I could make it if anybody else could. Q. You didn't say a moment ago that you knew you couldn 't make the production? A. I don't think I said I knew I couldn't make production. Q. So the only reason that you wanted to be moved off the machine was that the lint was bothering you and you were afraid it was going to bother your asthma? A. That is right. The above testimony elicited from Wingate on cross-examination unwittingly corroborated the Respondent's defense by admitting that she herself knew she could not make the production quota. On the accredited testimony of Dunnaway, Brown, Cole, and Perlstein, I find that Wingate was discharged'for cause. The evidence is insufficient to support the allegations in the complaint insofar as Laura Wingate is concerned and accordingly to that extent the complaint should be dismissed. 3. Viola M. Boyd The complaint alleged that the Respondent discharged Viola M. Boyd on November 4, 1949, and thereafter failed and,refused to reemploy her because of her membership in and activities on behalf of the Union and in order to McCOMB MANUFACTURING COMPANY 609 discourage union membership and activities of its other employees. The answer denied that she had been discriminatorily discharged and averred that her termination from employment was for legal and proper reasons. Boyd was hired on September 7, 1949, and operated a sewing machine as a side seamer until the week prior to her discharge. During the last week of her employment from October 31 through November 4 she was an inspector , succeeding Opal Hayes who was discharged on October 28. She signed a union card about October 12 or 15, and thereafter became active in the Union's campaign. She supplied the Union with names and addresses for its organizers to visit and accompanied them to employees' homes and talked to them. She talked to the girls in the plant every day, before and after work , at noontime and recess. Her activity on behalf of the Union was known to the Respondent . In the rest room on the day after she signed her union card she solicited several girls to join in the presence of her supervisor, Addie Barron, while discussion was had among the girls whether it was a good idea to have a union in the plant . Barron told the girls at that time that she had worked in shops that were organized in which there were very good working conditions. Other employees had also reported to Barron that Boyd had asked them to join the Union and asked Bar- ron's advice to which Barron replied that was for each to decide for herself. One week before she was discharged, Boyd testified that Helen Brown had told her that her production record was not as high as it should be and she was being transferred from operating a sewing machine to inspecting garments and that if she could not qualify as an inspector in that week she would be discharged. Boyd testified further that she protested it was not fair to expect her to be able to do what was expected of her as an inspector in 1 week. During that week, Boyd testified that her supervisors , Barron and Brown, told her they thought she would make a good inspector ; nevertheless on Monday, November 7, she was discharged for the reason given to her that her production was not sufficient. At that time she asked Richard Busby, the manager, if he thought she should make production as an inspector in 41/2 days to which he replied in the affirma- tive and handed her her pay check. In the following week, Boyd testified that she telephoned to Maurice Perlstein , the Respondent's president, and told him that the co-Respondent, Stringer, had informed her she would get her job back if Boyd would tell Perlstein she was sorry she joined the Union and that Perl- stein replied that he could not discuss the matter over the telephone but he would be glad to talk to her at the plant. On cross-examination, Boyd denied spending an excessive amount of time away from her work in the rest room ; and claimed that her production was as good as anyone else's. She further denied that when Brown transferred her to inspecting work, she told her to stay at her inspecting table or she would be discharged-and then stated she "did not remember" Brown telling her that. She repeated that she had spoken openly in the plant about the Union from the day she joined and that everyone heard her; but admitted that she did not know the union organizers were in town contacting employees as early as September until they contacted her on October 12 or 15, the day she signed the union card . After her discharge, she worked with the union organizers for the following year and it was stipulated that Boyd received salary checks from the Union in stated amounts after her discharge. . Helen Brown and Addie Barron , whose testimony I credit, both testified that in spite of their efforts to help Boyd improve the quantity and quality of her work, she failed to do so. Her weekly percent of efficiency for her 7 weeks as a machine operator were respectively : 6.6 percent ; 20 percent ; 16 percent ; 25 percent ; 20.5 percent ; 22.5 percent ; and 23 percent. Her work record was 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discussed several times at the weekly supervisors' meetings. It was shown that not only did Boyd spend an unusual amount of time away from her work- place, but the quality of her work was poor and her production low. Cole at that time was insisting that Barron increase the production of the girls on her line and weed out those who did not improve. Boyd urged Barron to let her keep her job because she was a widow with two children to support and Barron for that reason put off discharging her. A week prior to her discharge, Brown told Boyd that the Company could not spend any more time with her ; that Brown was satisfied Boyd could never be an operator because she could not get her production out. It was at that moment, on the verge of imminent dis- charge, that Boyd asked Brown to transfer her to inspecting work. Brown agreed provided Boyd was willing to stay at her place of work and show Barron that she was interested in working. According to Brown, not only did Boyd fail to improve but became worse. As an inspector Boyd was careless and sloppy in her work. She failed to clean garments properly, discarded numerous gar- ments as "seconds" which could have been used and which later were reinspected and classified "firsts." Perlstein's testimony is credited that when Boyd tele- phoned to him she said she used to work there and would like her job back; that he told her to apply in the usual manner ; that when she told him that Mrs. Stringer had said she could have her job back if she got her card back from the Union, he inquired who Mrs. Stringer was and then told Boyd that Stringer had no authority to speak for the Respondent, and that if she wanted her job again to apply in the regular manner. I have considered the emphasis laid by General Counsel on the fact that Boyd was transferred to the job of inspector and dis- charged after a trial period of only 41/2 days. Standing alone, without explana- tion, such circumstance might well be significant in spelling out discriminatory discharge. But when the fact that she was discharged after 41/2 days' trial is viewed against the background of 7 weeks' poor work as an operator, that the transfer was made at her own request, and that her work as an inspector gave no indication that she would be any better than she was as an operator, such discharge after such a short trial period loses its significance. At best it could be nothing more than surmise and suspicion which is insufficient to establish violation of the Act. I believe and find that giving to Boyd another opportunity to make good as an inspector when she had made such a poor record of production as an operator, was not a scheme to transfer her and then fire her after a week's trial as an attempt to cover up a discriminatory discharge, but actually was made in good faith by the Respondent who had every justification to discharge her on October 28 on the basis of her production record as an operator. Instead of tending to prove that her transfer to inspector was a maneuver to cloak a discriminatory discharge, it tends to prove to me that she was being given every opportunity to find a job that she could perform without regard to her known membership and activities for the Union. . Neither do I credit Boyd's testimony that Brown and Barron told her in her last week of employment that she would make a good inspector ; nor that Boyd, at the time she was transferred to in- specting, protested that a week's trial would be unfair. In view of Boyd's con- tinued poor work record, the efforts of Barron and Brown to help her improve her work and giving her an opportunity to do another job by transferring her at her own request to inspector, I am convinced that her discharge was not moti- vated by discriminatory reasons but was for cause and I so find. The evidence is insufficient to support the allegations of the complaint insofar as it refers to Viola M. Boyd and, accordingly, to that extent, the complaint should be dismissed. McCOMB MANUFACTURING COMPANY 4. Katherine C. Johnson 611 The complaint alleged that the Respondent discharged Katherine C. Johnson on November 11, 1949, because of her membership in and activities on behalf of the Union and thereafter failed to rehire her, and in order to discourage union membership and activities of its other employees. The answer denied that she had been discriminatorily discharged and averred that the discharge was for legal and proper reasons. Katherine C. Johnson was employed as a machine operator on September 27, 1940, sewing elastic around the legs of panties. Since that particular sewing operation was more difficult than other work on the garment, the training period. was 12 weeks, compared to an 8-week training period for other sewing opera- tions. Two weeks before her discharge her work had been discussed at super- visors' meetings and on November 7 she was warned to improve her production. On November 11 her supervisor, Theo Terrell, discharged her and gave her a slip which stated the cause for discharge was "production and training not on schedule." She was told that she was let go because her production was low; but when the Company established a training line sometime in the future when production was better she would be called back. Johnson thereupon replied to Terrell that she need not strain herself about calling her back to work. When discharged, she was producing from 1Y/ to 2 dozen garments per hour instead of an expected 3 dozen per hour for that period in hef training" Full production requirements were 5 dozen per hour but 100 percent efficiency was not expected at that time. Production of 2 dozen instead of 3 dozen per hour would therefore mean she was producing at the rate of 40 percent when 60 percent was expected. The percentage of efficiency chart submitted for her shows that she attained 18.2 percent each week for the first 3 weeks of her em- ployment and 38 percent, 35.9 percent, and 42.2 percent for the last 3 weeks. Katherine C. Johnson joined the Union around November 1, 1949. Her union activities consisted of. talking to some girls in the plant about the Union and handing application cards in the plant to employees Katherine R. Johnson and Jensie Heck. After giving the card to Katherine R. Johnson in the week prior to November 4, Johnson returned it before noon unsigned. At first Kather- ine C. Johnson testified that in the week prior to her discharge she got Heck to sign a card at noon hour. Later, she corrected that by saying Heck did not return the card because Heck had already signed one." The other instance of union activity testified to by Katherine C. Johnson was that'she brought union leaflets in a brown paper bag into the plant early in the morning of November 11, the day of her discharge; that she put them in the rest room of the plant before 7 a. in., while several employees were there but she spoke to no one in there ; that on her way from the rest room she discussed the leaflets with her sister-in-law and coemployee, Blanche Freeman, who was outside the rest room. She testified further that Supervisor Eunice Smith came to her machine and asked her if she had left a brown paper bag in the rest room to which she replied that she had not;" and that she was discharged later that same day. Two witnesses for the General Counsel dispute Katherine C. Johnson concern- ing the date when she brought the leaflets into the plant. Nelma Harvey, who was also discharged on that same day, testified that the leaflets were put in the "For 2 weeks prior to November 11, Supervisor Terrell had made hourly checks on the number . of garments produced by the operators. 17 Heck testified that she joined the Union on October 28. is Smith had examined the brown paper bag and found it to contain union leafiefs. 961974-52-vol. 95-40 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rest room a day or two before her discharge and that Supervisor Smith asked Harvey if she knew who had brought them in. When Harvey replied that she did not know, Smith, according to Harvey, requested her to find out the girl who had done it. Harvey later reported to Smith that she had not found out the identity of the girl who had brought in the leaflets. It was stipulated that if Blanche Freeman had been called by the General Counsel she would have testi- fied that she (Freeman) had been questioned about the leaflets around Novem- ber 1. Richard Busby, for the Respondent, fixed the time when they were brought into the plant to be before October 14 because he stated he had definitely discussed the matter with Perlstein, the president, prior to October 14, which was the date of Perlstein's first speech to the employees. Thus the evidence relied upon to provide a foundation for an inference that the Respondent must have known that Katherine C. Johnson brought the leaflets into the plant on November 1.1 and because of that precipitately discharged her a few hours later is insufficient. I find the evidence is insufficient to establish that the Respondent had any knowledge that Katherine C. Johnson was a member of the Union or had taken any part in union activities." The evidence supports the defense that she was discharged for cause, and I so find. The evidence is insufficient to support the allegations of the complaint insofar as it relates to Katherine C. Johnson and to that extent the complaint should be dismissed. 5. Katherine R. Johnson The complaint alleged that Katherine R. Johnson was discharged by the Respondent on November 4, 1949, because of her membership in and activities in behalf of the Union and in order to discourage membership and activities of its other employees. The answer denied that she had been discriminatorily discharged and averred that she was terminated for legal and proper reasons. Katherine R. Johnson did not belong to the Union and was not active in its affairs. She knew the Union was attempting to organize the Respondent's employees, but testified that she did not know what a union was or "what it stood for." The General Counsel contends that Katherine R. Johnson was discharged by mistake ; that the Respondent had meant to discharge discriminatorily Kath- , erine C. Johnson on November 4, but through mistaken identity Katherine R. Johnson was discharged. The Respondent contends that she was discharged for cause and not through mistake. In the week prior to November 4, Katherine C. Johnson had given' her a union application card but she returned it unsigned. Her percent of efficiency attained weekly was : 11.9 percent ; 25 percent ; 28.8 percent ; 25.5 percent ; 42.5 percent ; and 35.5 percent. Her work performance prior to her discharge had been dis- cussed by her supervisors for at least two meetings a week apart and she finally was discharged on November 4, after several warnings, for the reasons stated on her separation slip, discussed infra. When she was discharged she sought out Maurice Perlstein, the Respondent's president, told him that she had not signed a union card and that she thought he had made a mistake, because there were 14 In making this finding I have considered carefully the testimony of Katherine R. Johnson and Maurice Perlstein in connection with the discharge of Katherine R. Johnson, infra, and find that even though Katherine R. Johnson suggested to Perlstein when she was discharged on November 4 that she was being mistaken for Katherine C. Johnson, she did not tell him that Katherine C. Johnson was a member of the Union nor engaging in its activities. She stated her reasons for believing a mistake had been made were that there were two Johnsons who sewed . elastic and that she ( Katherine R. Johnson) had been praised for her work . When Perlstein asked her why she was so sure she told him that she had always been told she had been doing good work. McCOMB MANUFACTURING COMPANY 613 two Katherine Johnsons who ran sewing machines. When Peristein asked her why she was so sure, she replied that she had been told she was doing good work ; and if she had not been doing so, she did not want them telling her that she was. Katherine R. Johnson did not tell Perlstein that Katherine C. Johnson was a :member of the Union nor that she had been solicited by Katherine C. Johnson to join the Union. Peristein told her he would look into the situation, asked her for her address to identify which Johnson she was, and told her if a mistake had been made it would be corrected ; and that later on when a training school would be set up, some of the presently discharged employees whom they did not have a chance then to train thoroughly would be taken back. Katherine R. .Johnson was recalled for work by the Respondent on March 6, 1950, and follow- lug her return to work had several different jobs with the Respondent. The General Counsel contends that the separation slip of Katherine R. Johnson showing reasons for her discharge as compared. with the separation slip of Katherine C. Johnson and other employees is proof of discriminatory discharge, through error, of Katherine R. Johnson and discriminatory refusal to reemploy Katherine C. Johnson and other discharged employees. Respondent listed five reasons for the discharge of Katherine R. Johnson : "(1) bad quality (2) poor performance (3) waste materials (4) can't catch on to her job (5) needs too much supervision." The separation slip of Katherine C. Johnson, as those of other employees shows one reason "production and training not on schedule." To prove the mistaken identity theory that Katherine R. Johnson was discrimina- torily discharged on November 4, it must be, established that the Respondent had known of Katherine C. Johnson's membership in and/or activities on behalf of the Union prior to November 4; and had on or prior to that date selected Katherine C. Johnson for discriminatory discharge. The comparison of the sep- aration slips will not supply proof or an inference of discriminatory discharge in the absence of such knowledge on the part of the Respondent. There is no such proof in the record. Since I have found, supra, that the Respondent had no knowledge that Katherine C. Johnson was a member of the Union or active in its affairs and did not discriminatorily discharge Katherine C. Johnson, it follows that Katherine R. Johnson was not discriminatorily discharged in the mistaken belief that she was Katherine C. Johnson, and I so find. The evidence is insuffi- cient to support the allegations of the complaint insofar as it relates to Katherine R. Johnson and to that extent the complaint should be dismissed; 6. Jensie Heck The complaint alleged that the Respondent discharged Jensie Heck on or about March 6, 1950, and thereafter refused to reemploy her. because of her membership in and activities on behalf of the Union and in order to discourage union membership and activities of its other employees. The answer denied that she was discharged for discriminatory reasons and averred that her ter- mination was for legal and proper reasons. Heck worked as a sewing machine operator from October 12, 1949, until March 7, 1950, with the exception of a period during which she was laid off (January 14, 1950-February 14, 1950). On Friday, March 3, 1950, Heck was laid off for lack of work caused by shortage of elastic. On her separation slip, signed by Foreman Lippman, she was rated as having good skill, medium production, and average deportment. Heck had signed a union card on October 28, 1949, and had solicited members. for the Union away from the plant during nonworking hours, from time to time. She provided the use of her automobile in which she and organizers for the Union rode on visits to employees' homes. During. the 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period of her layoff ( January 14-February 14) she went around "more than ever" with the organizers soliciting signatures . She did not solicit any signa- tures at the plant and by her own admission kept her membership in the Union "a little bit of a secret" insofar as the plant was concerned until Saturday,. March 4, 1950, which is the first time the record indicates that the Respondent had any knowledge of her union membership or activities . On that date , having: been told by her cousin , who was, secretary of the local chamber of commerce,. that a member of the chamber of commerce had. requested her to tell Heck to. withdraw from the Union or she would not have a job, Heck went to the plant and talked with the manager, Richard Busby. She told Busby about the message- she had received, informed him she had signed a union card, would not withdraw it, and was 100 percent for organized labor. Busby told her that the Respondent. had nothing to do with the chamber of commerce and it was the policy of the Respondent that she was free to join the Union. At the same time he also. indicated to her that the Respondent disapproved having its plant organized and. cited an hypothetical example that if she and Busby operated a filling station,. they would want their employees to run it as Busby & Heck would desire and. not as the employees saw fit, in order to make a profit. During the conversation, with Busby, she also told him ". . . I didn't plan to continue to do my work as I had been doing it and hoped that he didn't feel hard toward me about it,. and I felt like if anybody made production that I could be one of those that made- it." Busby replied, "That is the kind of girls we need, Jensie . We need some- body that has that attitude." Busby assured her the Respondent had no, complaint regarding her production. . Believing that she was to return to work on Tuesday , March 7, Heck reported for work and after punching in at the time clock went directly to her machine. Another employee was sitting there but left when Heck asked her what she was, doing there. After working approximately 20 minutes , Foreman Lippman asked her what she was-doing and who had asked her to come to work. Heck replied that Supervisor Nellie Reeves had told her to come in which Reeves denied. An argument then ensued between Heck and Reeves during the course of which Heck called Reeves and Lippman uncomplimentary names. Lippman inquired , "Who do you think is running this , Jensie? to which Heck replied, "Well, I guess you are Mr. Lippman; but I think you had better get a supervisor who won't get things so confused and cause arguments ." Lippman thereupon told Heck to go home and stay home until he called her. Heck then left the plant and has never been recalled, although following an unsuccessful attempt to telephone Lippman she went to the plant and asked him to confirm her understanding that she was to stay home until he sent for her, which he did. Later in the afternoon of March 7, Supervisor Reeves informed Lippman that if he ever brought Heck back to work she. (Reeves ) would quit her job. Lippman agreed not to reinstate Heck. The General Counsel in his brief emphasized the point that Lippman did not immediately discharge Heck for her conduct in calling her supervisor and fore- man uncomplimentary names but waited until that afternoon until Reeves told him he had the alternative of employing Reeves or Heck and terms such a se- quence of events incredible . To me it is clear that Heck's discharge was not for discriminatory reasons but was traceable to her conduct in the plant on March 7; undoubtedly willing to overlook it at the time . as not calling for discharge, he later had to make his choice when Reeves in the afternoon gave him the alter- native of choosing between her and Heck. Thus, what had begun as a business dispute developed into a matter of mounting personal pique involving injured feelings as far as Reeves was concerned until she demanded and obtained Lipp- McCOMB MANUFACTURING COMPANY 615 man's assurance that he would not recall Heck. I find the evidence is insufficient to support the allegations of the complaint insofar as Jensie Heck is concerned .and accordingly to that extent the complaint should be dismissed. 7. Nelma Harvey The complaint alleged that the Respondent discharged Nelma Harvey on No- vember 11, 1949, because of her membership in and activities on behalf of the Union and in order to discourage membership and activities of its other em- ployees. The answer denied that she had been discriminatorily discharged and .averred she had been terminated for legal and proper reasons. Harvey was first employed by the Respondent on September 27, 1949, and worked until her discharge on November 11, 1949. She was recalled to work on February 14, 1950, and laid off on May 9, 1950. She has been working for the Respondent since she was recalled on May 24, 1950 . Harvey did not join the Union until after she returned to work in February 1950. The General Counsel •contends that she was discharged by the Respondent in the mistaken belief that Harvey was a supporter of the Union. During her employment , she operated a power sewing machine , hemming the flare leg of panties. As shown supra, Helen Brown was the supervisor in charge of the entire sewing department and Eunice Smith, Brown 's assistant, was the supervisor in charge of the floor . On and after October 22 , 1949, Nellie Reeves was Harvey's immediate supervisor . About 10 days prior to her discharge on November 11, 1949 , Harvey informed Smith that the employees were trying to form a Union and asked for Smith's opinion. Smith replied that she did not think it was a good thing at that time when the plant was just getting started. Approximately 1 week before her discharge , Harvey had a discussion with Theo Terrell, also a supervisor ( not however over Harvey ) during which Harvey said that the Union was a "good thing" and chided Terrell that she had set an example by quitting and then returned to work for higher wages . Terrell replied they better leave the Union alone-that it was not a thing for them and the employees did not need it. A day or two before her discharge , Supervisor Smith asked Har- vey if she knew who put some union circulars in the rest room and when Harvey replied that she did not know and was not having anything to do with the Union, Smith asked her to go into the rest room during recess and ask who had put it there, Smith opining that they might lose their jobs if the Union came in and saying to Harvey, "You better find out who put it in there , you might lose your job." When Harvey went to the rest room at recess, Smith was there and Harvey asked the girls no questions . Later that same day, before the afternoon recess, Harvey told Smith that she could not find out who had put the leaflets in the rest room and informed Smith, "I haven't anything else to do with it." A day or two later, on November 11, 1.949, at approximately 3: 45 in the afternoon , Supervisor Reeves notified Harvey that she would have to let her go, to which Harvey replied, "Okay," turned off her machine and left. Harvey then sought out the plant man- ager, Richard Busby , and told him that if he was laying her off because of the Union, that she had not joined the Union. Busby then placed a telephone call but .although she was present she does not know to whom he spoke nor what he said. After concluding his conversation on the telephone, he told her that she would be recalled and put on a training line when they started to train more people. The General Counsel submits the case of Harvey on the basis of her efficiency rating for the 7 weeks preceding her discharge on November 11, which is set forth to be for each week respectively : 3.0 percent ; 6.4 percent ; 23.7 percent ; 34.5 percent ; -49.7 percent ; 47.50 percent ; and 49.7 percent . Harvey's percent of efficiency rat- ing is not solely determinative of the issue presented . Her chart shows a very 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD marked improvement for the first 4 weeks, and then an average of 48.96 percent. for the last 3 weeks. Supervisor Reeves decided to discharge her after her work had been discussed at supervisors' meetings and when, in Reeves opinion, she- had shown no improvement after repeated warnings by Reeves. Robert Cole, plant engineer who also participated in supervisors' meetings, had observed that her work was slow and of poor quality. The General Counsel maintains that the chart disproves the Respondent's defense that Harvey's production was low,. while.the Respondent contends the chart supports its contention. Whether the efficiency attained is high, medium, or low is not clear from the record. Nor can Harvey's percent be compared with the ratings given other hemmers named on the. chart because their work included different operations on different machines than Harvey performed. The record' is not sufficiently clear to establish that the chart, in and of itself, supports-either the contention of the General Counsel or the Respondent. I find there is no evidence to support the allegations of the complaint that Harvey was discharged because of her membership in or activities on behalf' of the Union ; or to support the contention that her discharge was the result of mistaken belief by the Respondent that she was a supporter of the Union. I. can find no instance in the record where the Respondent could have any basis fol mistakenly believing that Harvey belonged to the Union or was active therein. prior to February 1950. Harvey's remarks to Supervisors Theo Terrell and Eunice Smith, supra,.were not enough for the Respondent to conclude mistakenly that she belonged to the Union, was active therein, or a supporter thereof par- ticularly when she had so positively declared later that she was not a member- and wanted no part of the Union. The complaint with respect to Nelma Harvey should be dismissed. 8. Willard Johnson The complaint alleged that the Respondent discharged Willard Johnson and. thereafter refused to reemploy him because of his membership in and activities. on behalf of the Union and in order to discourage union membership and activities of its other employees. The complaint was amended at the hearing to read that he was discharged on January 10, 1950; recalled on or about February 20; and then discharged on or about March 8, 1950. The answer denied that he had been discriminatorily discharged and averred that his termination was- for legal and proper reasons. Johnson began work for the Respondent as an electrician's helper in July 1949, and about 1 month later became a warper when a warping machine was. installed in the knitting room. On or about January 10, 1950, he was laid off because of lack of yarn and because the machine which he had been using was to be rebuilt. He was selected for the layoff instead of his coemployee,. Jesse Renfroe, who was his junior in length of service, because Johnson had a. record of unexcused absences from work greater than Renfroe had. Between January 10 and February 20, he inquired several times for his job and Roach, his supervisor, told him he would be notified when to return to work. Following such later notification, Johnson returned to work on February 20 on the second. shift, 3 p. in. to 11 p. in. (instead of on the first shift, 7 a. in. to 3. p. m.) because a supply of yarn had been received which Roach wanted to run although it would require two shifts on the other warping machine since the machine which Johnson had been operating was still out for repairs. When he returned on February 20, Johnson was told by Roach that he would be put back on his former machine when it was returned and was also warned by Roach not to be absent again from work without letting Roach know in advance. McCOMB MANUFACTURING COMPANY 617 Johnson testified that on the day previous to his discharge in March, he had been arrested for speeding in Baton Rouge, Louisiana, and detained in jail which resulted in his reporting for work at 6 p. in. instead of 3 p. in.; and that he then asked Roach if he wanted him to work 8 hours begining at 6 p. in., to make up for his lost time, but Roach replied that he did not and since he was short of yarn to come 'in at 3 p. in. the next day ; and that when he arrived at work at 3 o'clock the next day, Roach discharged him. Roach, whose testimony I credit, testified that on March 9, 1950, Johnson did not report for work nor notify him that he would be absent. When Johnson called for his pay check the following morning (Friday) which was payday, Roach discharged him for his unexcused absence from work the day previous. The Respondent disproved that Johnson had ever been arrested or jailed in Baton Rouge and so thoroughly discredited him as a witness that I place no reliance on his testimony. The evidence fails to show that, if he did join the Union, that fact ever came to the attention of the Respondent, for by his own admission, Johnson took no part in nor showed any interest in union activities. His testimony that, on one occasion, in the presence of Renfroe and Hazel Roach (the wife of Supervisor Roach but not herself a supervisor) he defended his right to have union organizers visit his home, is not sufficient to establish that the Respondent had knowledge of his union membership or activity. He testified that he had nothing to do whatever with the rest of the employees as to whether or not they were interested in the Union ; that his only contact with the Union had been that he was asked to join' and he did so. On direct examination, he testified that 3 days before he was laid off in January, he signed a union card when the organizers for the. Union came to his house ; but, on cross-examination, he admitted that he did not know when he had joined ; that it could have been at any time and he could not even recall, whether it was before or after Christmas. The Respondent called Jesse Renfroe who testified that Johnson had admitted to him that he had not joined the .Union when the organizers came to his house in January. I find the evidence is insufficient to support the allegations in the complaint insofar as Willard Johnson is concerned and accordingly, to that extent, the complaint should be dismissed. C. Interference, restraint, and. coercion The evidence adduced to support the allegations of the complaint that the Re- spondent violated Section 8 (a) (1) of the Act has been detailed supra, with respect to the alleged interrogation by the Respondent of its employees as to their union membership and activity ; threats to close its plant ; threats to employees that they would lose their jobs and other benefits ; and telling them the Com- pany had a list of union supporters. Employees Opal Hayes, Katherine C. Johnson, Blanche Freeman, and Nelma Harvey testified that Supervisor Eunice Smith engaged in conduct which, if believed, constituted a violation of Section 8 (a) (1) of the Act. Hayes testi- fied that Smith directly inquired whether Hayes had joined the Union ; on another occasion had asked Hayes what she thought of the Union and when Hayes replied that she did not know, Smith stated that the girls ought to do the right thing, for if a Union was formed, Perlstein, the president, would close the plant; and that Smith made further comments about the Union during working hours on several occasions expressing her hopes that the girls would use good judgment and not orgaaive the Union. Katherine C. Johnson testified that Smith questioned her to find out if she had left a brown paper bag in the rest room. This has reference to the bag which contained union circulars which 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Johnson had testified she had left in the rest room. It was stipulated that Free- man would have testified if called that Smith asked her about November 1 if . . she knew who had left the union leaflets in a paper bag in the rest room. Harvey testified that Smith asked her if she knew who had put the union literature in the rest room and when Harvey told her that she did not know, Smith told her to go into the rest room during recess period and inquire who put it there ; that Harvey went to the rest room (Smith was in the rest room at the time) but Harvey asked no one about it ; and that when Harvey reported later in the day that she could not find out who had done it, Smith threatened that the girls might lose their jobs if the Union came in, or Harvey would if she had anything to do with the Union. Smith denied the testimony of the foregoing witnesses but admitted that she had asked a group of girls collectively if any of them had left a brown paper bag in the rest room. On the accredited testimony of Hayes, Katherine C. John- son, Harvey, and Freeman, I find that Smith threatened that the Respondent would close the plant if the Union succeeded in organizing the employees ; ques- tioned Hayes as to her membership in the Union ; questioned the employees indi- vidually and severally in an effort to find out the identity of the employee who had brought the union leaflets into the plant ; threatened Harvey with the loss of. her .job if she had anything to do with the Union and further threatened that other girls might lose their jobs if the Union succeeded. I further credit Har- vey's testimony that Supervisor Theo Terrell threatened that the employees might lose their jobs if the Union was .successful. Accordingly, I find that the Respondent by the aforesaid interrogation and threats thereby interfered with, restrained, and coerced its employees in violation of the provisions of Section 8 (a) (1) of the Act. On the accredited testimony of Supervisor Laura Dunna- way I find that she did not question Laura Wingate as to union membership nor ask her who the organizers for the Union were, and in that respect, the Respond- ent did not violate the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE I find that the activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Sec. tion I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since I have found that the Respondent has engaged in unfair labor practices violative of Section 8 (a) (1) of the Act, I shall recommend that the Respondent cease and desist therefrom and take certain affirmative action designed to ef- fectuate the policies of the Act. Upon the basis of the above findings of fact, and upon the entire record in the_ case, I make the following : CONCLUSIONS OF LAW 1. International Ladies' Garment Workers' Union, A. F. of L., is a labor or- ganization within the meaning of the Act. 2. 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. STANOLIND OIL AND GAS COMPANY 619 - 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 ( 6) and (7) of the Act. 4. The Respondent has not discriminated as to the hire and tenure of employ- ment of Opal Hayes, Laura Wingate; Katherine R. Johnson, Viola M. Boyd, Katherine C. Johnson, Nelma Harvey, Willard Johnson, or Jensie Heck in viola- tion of Section 8 (a) (3) of the Act. [Recommended Order omitted from publication in this volume.] STANOLIND OIL AND GAS . COMPANY and INTERNATIONAL UNION OF .OPERATING ENGINEERS, AFL, PETITIONER. Case No. 39-RC-285. July 26,1951 Supplemental Decision and Certification of Representatives On May 31, 1951, pursuant to the Decision and Direction of Elec- tion issued by the Board in the above-entitled proceeding on May 3, 1951, and amended on May 24, 1951, an election by secret ballot was conducted under the direction and supervision of the Regional Direc- tor for the Sixteenth Region. At the close of the election, a tally of ballots was furnished the parties by the Regional Director. The tally shows that there were approximately 93 eligible voters and that 83 ballots were cast, of which 39 were for the Petitioner, and 33 against the Petitioner, and 11 were challenged. No objections to the conduct of the election were filed by either of the parties. Inasmuch as the number of challenged ballots could affect the out- come of the election, the Regional Director, in accordance with the Board's Rules and Regulations, conducted an investigation and, there- after, on June 8, 1951, issued and served upon the parties his report on challenges. On June 25, 1951, the Employer filed exceptions to the Regional Director's report. In his report on challenges, the Regional Director found that Peggy J. Brown, Ora L. Breetz, and Margaret. G. Wilson, challenged by the Petitioner, were plant clerical employees and within the appro- priate unit and therefore eligible to vote in the election. He rec- ommended that the challenges to their ballots be overruled. No ex- ceptions having been filed to his findings and recommendations with respect to these three employees, we adopt his findings and recommen- dations with respect to them. The Regional Director further found that Kitty R. Blackburn, Frederick B. Davis, William C. Erwin, Nancy L. Fish, Robert R. Freeman, Charles J. Kleb, Jr., Conway D. Odom, and William B. Reeves, Jr., also challenged by the Petitioner, were in fact office cleri- 95 NLRB No. 79.