J.P. Stevens & Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. P. Stevens & Co., Inc., and Amalgamated Clothing & Textile Workers Union of America-Textile Di- vision J. P. Stevens & Co., Inc., and Amalgamated Clothing & Textile Workers Union, AFL-CIO-CLC. Cases 5-CA-8169, 5-CA-8169-2, and 5-CA-8621 September 24, 1979 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND TRUESDALE On October 27, 1978, Administrative Law Judge Claude R. Wolfe issued the attached Decision in this proceeding. Thereafter, Respondent, the General Counsel, and the Charging Party filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified and re- stated herein. 1. The Administrative Law Judge found, inter alia, that Respondent did not violate Section 8(a)(1) of the Act when Plant Manager Cruze told employee Mont- gomery, a union organizer, "Don't you lose them union cards in your pocket," and when, later that day, he commented to Montgomery, "I see you haven't lost your union cards." The Administrative Law Judge found that while Cruze's remarks con- firmed Respondent's knowledge of Montgomery's continuing union activity, they did not constitute an I Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. Respondent also contends that the Administrative Law Judge's credibility resolutions, findings, rulings, and interpretation of the evidence showed bias and prejudice on his part against Respondent. In particular. Respondent contends. inter alia, that the Administrative Law Judge's denial of Respon- dent's motion to reopen the record or accept affidavit evidence on the ques- tion of an appropriate remedy is illustrative of the Administrative Law Judge's alleged bias and prejudice against Respondent. We find Respondent's allegations of bias and prejudice to be totally with- out merit. Upon our full consideration of the record and the Administrative Law Judge's Decision, we perceive no evidence that he prejudged the case, made any prejudicial rulings, or demonstrated a bias against Respondent in his analysis or discussion of the evidence. In this regard, we specifically affirm the Administrative Law Judge's ruling on Respondent's motion to reopen the record or accept affidavit evidence. J. P Stevens & Co., Inc., 239 NLRB 738, fn. 4 (1978). unlawful interference with Montgomery's rights un- der Section 7 of the Act. We disagree. Against the broad backdrop of Respondent's nu- merous other acts of interference with its employees' Section 7 rights, as found by the Administrative Law Judge and affirmed herein, and in the narrower con- text of Respondent's repeated acts of discrimination against Montgomery because of his union activities, also as found herein, the import of Cruze's remarks to Montgomery in this particular instance becomes clear: Respondent was letting Montgomery know that it was watching him closely and that it was acutely aware of his union organizational activities. In these circumstances, we find that Cruze's remarks to Montgomery not only created the impression that Respondent was engaged in surveillance of Mont- gomery's and his fellow employees' union activities but also constituted an attempt on the part of Re- spondent to restrain Montgomery from assisting the Union or from otherwise engaging in protected con- certed union activity. Thus we conclude that Respon- dent's conduct in this instance violated Section 8(a)(1) of the Act in both of its aforementioned aspects. See, e.g., Intertherm, Inc., 235 NLRB 693 (1978); The Stride Rite Corporation, 228 NLRB 224, 230 (1977). 2. The General Counsel and the Charging Party have excepted to the failure of the Administrative Law Judge to grant a number of additional remedies. In light of the clear and longstanding proclivity of Respondent to commit similar violations at its other facilities in response to the organizing efforts of its employees, and for the reasons set forth in J. P. Ste- vens & Co., Inc., 239 NLRB 738 (1978),2 we agree that additional, more stringent remedies are warranted in this case. See also J. P. Stevens & Company, Inc., 240 NLRB 33 (1979). Therefore, in accordance with our decisions in the J. P. Stevens & Co., Inc. cases cited above, we shall modify the Administrative Law Judge's recommend- ed cease-and-desist provisions explicitly to include all of Respondent's facilities, companywide. Addition- ally, we shall order that Respondent shall have the attached notice signed by its president, its chairman of the board and other directors, and the highest managerial official of the plant or location where the notice is posted; that Respondent shall mail a copy of the notice to each of its employees at each of its cor- porate facilities at his or her home addresses; that Respondent shall post a copy of the notice at each of its corporate facilities; that Respondent shall read no- tice to all of its employees or have it read to them by a Board agent at each of its corporate facilities; and that Respondent shall include the notice in appropri- I As indicated in that case. and as noted by the Administrative Law Judge herein. Respondent has repeatedly been found by the Board to have engaged in various unfair labor practices. 245 NLRB No. 20 198 J. P. STEVENS & CO. ate company publications, such as employee newslet- ters. Further, for the reasons stated in J. P. Stevens & Co., Inc., 239 NLRB 738 and 240 NLRB 33, we shall order Respondent to accord the Charging Party. at all of its plants, access to bulletin boards, lists of employ- ees, and nonwork areas and to grant the Charging Party speaking opportunities. Finally, inasmuch as several of the violations found herein were committed by minor supervisors, we shall order Respondent to issue written instructions to all of its supervisors at its Angle-Ferrum plant in Rocky Mount, Virginia, to comply with the attached notice. See J. P. Stevens & Company, Inc., 240 NLRB 33 (1979). Our dissenting colleague evidently agrees with us that some extraordinary remedies are warranted in this case in view of Respondent's demonstrated pro- clivity to violate the Act, a proclivity which we would note has been repeatedly found to emanate from the highest levels of Respondent's corporate manage- ment. N.L.R.B. v. J. P. Stevens & Co., Inc., 563 F.2d 8, 13, 22 (2d Cir. 1977); J. P. Stevens & Co., Inc. v. N.L.R.B., 380 F.2d 292, 304 (2d Cir. 1967); J. P. Ste- vens & Co. Inc., 240 NLRB 579 (1979). Yet, despite her agreement with most of the remedies outlined above, our colleague would decline to accord the Union access to Respondent's facilities or to require Respondent's chairman of the board and other direc- tors to sign the notices to employees. Her position in this respect is insupportable. Initially, we regard as misplaced our colleague's re- liance upon a settlement stipulation in an entirely un- related 10(j) proceeding3 to support her views regard- ing the appropriateness of extraordinary remedies in this case. As we recently held in a decision in which our colleague participated, 4 the fact that Respondent may have complied with this stipulation following the commission of other unrelated unfair labor practices in no way vitiates the need for, or the Board's author- Prior to the issuance of the Administrative Law Judge's Decision herein. but after the heanng. the General Counsel filed a petition for a 10(j) injunc- tion against Respondent in Morio v. . P. Stevens d Co., Inc., 78 Civil No. 0294 (D.C.N.Y. 1978). Thereafter, the Board approved a settlement stipula- tion in the 10(j) proceeding whereby Respondent agreed-pending litigation of the underlying complaints alleging violations of Sec. 8(a) 1), (3). and (4) of the Act at various of Respondent's facilities-to reinstate certain discharged employees, to rescind certain disciplinary warnings, and to post notices at most of its plants and to mail said notices to employees employed at those plants. ' 239 NLRB 738 (1978). We consider unpersuasive our colleague's attempt to rationalize her previous participation in this case. which involved Respon- dent's Roanoke Rapids, North Carolina, facility. Thus. we note that our colleague's purported reliance on the "extensive violations of Section 8(aX5) and (I)" in the Roanoke Rapids case is nowhere mentioned in that Decision. nor did she disavow the Administrative Law Judge's primary reliance therein upon the Respondent's long history of labor lawbreaking. Further, we are puzzled by her suggestion that Respondent's violations here-which include unlawful threats, promises of benefit. creating the impression of surveillance, and discrimination against employees for engaging in union activity-are somehow less "serious" than those it committed at Roanoke Rapids. ity to grant, extraordinary measures to remedy the unrelated, albeit presettlement, unfair labor practices. It is, essentially, Respondent's demonstrated and longstanding proclivity to violate the Act-and there- after, we might add, often to ignore remedial orders of the Board and on occasion of the courts-which has justified the imposition of extraordinary remedies in the past and which justifies imposition of them here. And, unlike our dissenting colleague, we are not willing at this time to presume that this longstanding proclivity to infringe the rights of employees has been ended by Respondent's agreement in a 10(j) settle- ment stipulation to restore and maintain the status quo ante pending final litigation of cases entirely unre- lated to this one. Nor is this conclusion altered by the fact that the stipulation also included some notice- posting provisions reaching other plants, including the one involved herein. Thus, we are perplexed by our colleague's willingness to presume that Respon- dent has complied with the I0(j) settlement stipula- tion while at the same time agreeing with the Admin- istrative Law Judge's denial of Respondent's post- hearing motion that the record in this proceeding be reopened so that Respondent could present evidence regarding precisely the issue of Respondent's alleged compliance with the stipulation. In agreement with the Administrative Law Judge, we consider the ques- tion of whether Respondent has complied with that stipulation irrelevant to the appropriateness of extraordinary remedies in this case. And we must confess that we are not certain of the basis for our colleague's agreement with the Administrative Law Judge's ruling in this regard. Moreover, we reject our colleague's contention that in applying these additional extraordinary measures here we will blunt their effect because of their use in recent cases. This position, taken to its logical conclu- sion, would preclude the issuance of any extraor- dinary remedies used against Respondent in the re- cent past, a result which we doubt our colleague advocates. Accordingly, in view of her proffered ra- tionale for withholding extraordinary remedies, we can discern no basis for her agreement here with some extraordinary measures, but not others. Thus, for our part, we consider the extraordinary measure or requiring Respondent's chairman of the board and other directors-in addition to its pres- ident-to sign the notices to employees necessary to impress upon the employees, whose rights have been repeatedly and flagrantly infringed by Respondent in the past, that Respondent has been ordered to cease its unlawful nationwide policy of interfering with em- ployee rights and that this Order rests not only on the authority of the Board and of the courts but also on the personal integrity of Respondent's individual offi- 199 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cers and directors who bear ultimate responsibility for those policies. Similarly, in accordance with the Board's decision in J. P. Stevens & Co., Inc., 239 NLRB 738 (1978), we consider an access remedy ap- propriate to dissipate the effects of the extraordinary violations committed by Respondent. See also J. P. Stevens & Co., Inc., 240 NLRB 33 (1979); United Dairy Farmers Cooperative Association, 242 NLRB 1026, fn. 16 (1979); Florida Steel Corp., 242 NLRB 1333, fn. 11 (1979). Contrary to Member Murphy's assertion, the Board is not thereby forcing "Respon- dent .. . to support the Charging Party's campaign." Rather, the access provisions of our Order permit Re- spondent's employees to determine whether to sup- port or not to support the Charging Party in an atmo- sphere free of further restraint and coercion. In this connection, we find it unnecessary to consider at this time Member Murphy's hypothetical question as to what might happen if another union intervenes in an election proceeding involving Respondent and the Charging Party. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified and set out in full below, and hereby orders that the Re- spondent, J. P. Stevens & Co., Inc., New York, New York, its officers, agents, successors, and assigns, shall, on a corporatewide basis: I. Cease and desist from: (a) Discouraging union activity or membership in the Union or any other labor organization by dis- charging, refusing to reinstate, or issuing written warnings to its employees or otherwise discriminating in any manner with respect to their tenure of employ- ment or any term or condition of their employment. (b) Threatening employees with reprisals because they engage in union activity. (c) Promising its employees benefits if they do not engage in union activity. (d) Threatening employees that the identity of union card signers will become public knowledge. (e) Telling employees that signing union cards will have "serious consequences." (f) Inviting and encouraging employees to report the identity of union card solicitors. (g) Creating the impression that employees' union activities are under surveillance by the employer. (h) Discharging any employee because he or she has participated in the investigation of unfair labor practice charges. (i) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of their Section 7 rights. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Robert Montgomery immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to any seniority and other rights or privileges previously enjoyed by him. (b) Make Robert Montgomery whole for any loss of pay he may have suffered by reason of his unlawful discharge and refusal of reinstatement. Said backpay shall be computed in the manner set forth in the sec- tion of the Administrative Law Judge's Decision enti- tled "The Remedy." (c) Expunge and physically remove from its rec- ords and files any warning notices and any references thereto relating to the warnings issued to Donald Thurmon on September 15, 1976, and to Robert Montgomery on September I and October 1, 1976. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post in conspicuous places, including all places where notices to employees are customarily posted, at each of Respondent's corporate facilities, for a period of 60 consecutive days, copies of the attached notice marked "Appendix A."5 Copies of said notice, on forms provided by the Regional Director for Region 5, shall be signed on behalf of Respondent by its pres- ident and the chairman of its board of directors and, in addition, by each of the members of the board of directors and by the highest managerial official of the plant or other corporate facility in which the notice is posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (f) At such reasonable time after entry of this Or- der as the Board may request, convene during work- ing time, by departments and shifts, all its employees at each of its corporate facilities and, at its option, either have the notice read to the employees by the highest managerial official of the plant or other cor- porate facility or provide facilities and permit a Board agent to read the notice to the said employees. In the event Respondent chooses to have the notice read by its official, the Board shall be afforded a rea- 5 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted By Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 200 J. P. STEVENS & CO. sonable opportunity to provide for the attendence of a Board agent. (g) Reproduce and mail to the home of each of its employees at all of its plants a facsimile of the afore- said signed notice, together with the letter appended hereto as "Appendix B." Said letter shall be repro- duced on the Company's regular business stationery and signed by the highest official of the recipient's plant. Also, include in appropriate company publica- tions, such as employee newsletters, a copy of the no- tice, together with Appendix B. Respondent shall provide the Regional Director for Region 5 with proof of such mailing and publication. (h) Upon request of the Union, made within 2 years from the date hereof, immediately grant the Union and its representatives reasonable access to the plant bulletin boards and all places where notices to employees are customarily posted, at each of Respon- dent's plants, for a period of 1 year from the date of request. (i) In the event that, during a period of 2 years following entry of this Order, any supervisor or agent of Respondent convenes any group of employees at any of Respondent's plants and addresses them on the question of union representation, give the Union reasonable notice thereof, and afford two union rep- resentatives a reasonable opportunity to be present at such speech, and, upon request of said representa- tives, permit one of them to address the employees for the same amount of time as Respondent's address. (j) If, within the next 2 years, the Board schedules an election in which the Union participates at any of Respondent's plants, then, upon request by the Union, afford at least two union representatives rea- sonable access to each of Respondent's said plants and appropriate facilities to deliver a 30-minute speech to employees on working time, the date thereof to be within 10 working days before but not within 48 hours prior to any such election. (k) Upon request of the Union, immediately fur- nish it with lists of the names, addresses, and job clas- sifications of all of Respondent's employees at each of its plants as of the latest available payroll date, and furnish a corrected, current list to the Union at the end of each 6 months thereafter during the 2-year period referred to above. (1) For the same 2-year period, upon request of the Union, without delay, permit a reasonable number of union representatives access for reasonable periods of time to all its canteens and rest areas, and other non- work areas, including parking lots, within each of its plants, for the purpose of communicating orally and in writing with the employees in such areas during changes of shift, breaks, mealtimes, or other nonwork periods. Respondent shall formulate rules on this sub- ject in the same manner as provided in J. P. Stevens & Co., Inc., 239 NLRB 738 (1978) and 240 NLRB 33 (1979). (m) Reproduce and give to each supervisor at its Angle-Ferrum plant in Rocky Mount, Virginia, a fac- simile of the aforesaid signed notice, and give written instruction, signed by the highest official at the plant, to each supervisor to comply with the provisions of the notice. Respondent shall provide the Regional Di- rector for Region 5 with proof of its compliance with this paragraph. (n) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. MEMBER MURPHY, concurring and dissenting in part: I agree with my colleagues' findings and conclu- sions as to the unfair labor practice allegations in this case.6 However, for the reasons discussed below, I do not agree with the imposition of certain extraordinary remedies in this case, although I have imposed them on this Respondent previously. I do not agree under the facts in this case that the equal access which the Board imposes here is an ap- propriate remedy. Accordingly, I disagree with para- graphs 2(i), (j), and (1) of the Order and would not require that the Charging Party be afforded equal time to respond to any address by Respondent or the right of access to Respondent's plants to deliver a 30- minute speech if an election is directed or access to nonwork areas of the plants. My agreement with the imposition of these rem- edies in J. P. Stevens & Co., Inc., 239 NLRB 738 (1978), was premised on the extensive violations of Section 8(a)(5) and (1) found therein, including re- fusal to bargain in good faith; numerous unilateral changes in wages, hours, and other terms and condi- tions of employment; refusal to provide information; and four instances of outright bad-faith bargaining.' I Under the circumstances of this case, I agree with my colleagues and the Administrative Law Judge that Respondent violated Sec. 8(aX( ) of the Act (I ) by telling its employees in a speech that the identities of union authoriza- tion card signers could become public knowledge and (2) by telling its em- ployees in notices that the signing of union authorization cards could have "serious consequences." In reaching these conclusions in this case, however, I do not rely. as the Administrative Law Judge does, on the Board's decisions in The Lundy Packing Conmpany. 223 NLRB 139 (1976), and L S. Ayres & Company, a Division of Associated Dry Goods Corporation. 221 NLRB 1344 (1976). in both of which cases I registered partially dissenting positions. I find those cases distinguishable, since here. unlike Lundy Packing and L S. Ayres. the speech and notices to the employees were delivered against a backdrop of repeated unfair labor practices on the part of Respondent in the case at hand as well as in numerous prior cases over many years. Under these particular circumstances, the aforementioned portions of Respondent's speech and no- tices take on colorations of restraint and coercion in this context which in my view, were not present in the context of similar statements made by the employers in Lundy Packing and L S Ayres, supra ' With regard to the other three cases relied upon by my colleagues in imposing the extraordinary remedies herein. I did not participate in the (Continued) 201 DECISIONS OF NATIONAL LABOR RELAT'IONS BOARD I believe that such extraordinary equal-access rem- edies indeed are and should remain just that- extraordinary. They should be imposed only in cir- cumstances wherein an employer's unlawful activity in a particular case is so relentless, pervasive, and ul- timately destructive of a union's representational pos- ture that such extraordinary equal-access remedies appear to be the only realistically effective method for rectifying the wrongs done to such a union. J. P. Ste- vens & Co., Inc.. 239 NLRB 738 (1978), was such a case. The unlawful activity engaged in by Respon- dent in the instant case, while certainly serious and in no way to be condoned, is nevertheless not of a kind and degree which either warrants or is appropriately remediable by the extraordinary equal-access rem- edies imposed by my colleagues in this case.' Additionally, I note that in April 1978, subsequent to the events in this case, Respondent entered into a settlement stipulation with the Board in an unrelated 10(j) proceeding, Morio v. J. P. Stevens & Company, Inc., 78 Civil 0294 (D.C.N.Y. 1978). In that settle- ment stipulation, Respondent agreed to cease dis- couraging its employees from joining the Charging Party through discriminatory personnel actions or production decisions; imposing coercive conditions on employment; threats of discharge, plant closure, or other reprisals; grants or promises of benefits; warnings to employees that the identity of authoriza- tion card signers could be revealed to Respondent; or statements or implications to the employees that Re- spondent would never recognize, bargain with, or en- ter into a contract with the Charging Party or any other union. Respondent further agreed to cease in- terrogation of employees about their union activities or sympathies: to cease surveillance, or creating the impression of surveillance, of employees in regard to their union activities; to cease unlawful prohibitions or restrictions on employees in regard to solicitation or distribution of union materials; to cease instructing employees not to sign union authorization cards; and to cease any other manner of interference, restraint, or coercion of employees in the exercise of their Sec- tion 7 rights. These promises were set out in a notice to employ- ees which, pursuant to the terms of the settlement stipulation, was signed by the chairman of Respon- dent's board of directors and the highest Respondent official at each plant at which the notice was required Board's Decision in J. P. Stevens & Co., Inc.. 240 NLRB 33 (1979), and I dissented in the imposition of these remedies in Florida Steel Corporation, 242 NLRB 1333, fn. 11 (1979), and United Dairy Farmers Cooperative Asso- ciation, 242 NLRB 1026, fn. 15 (1979). m Thus. contrary to my colleagues' suggestion. I am not weighing the rela- tive seriousness of the violations found in the Roanoke Rapids case and this case. Rather, I am concerned only with the equal-access remedies my col- leagues would impose vis-a-vis the nature of the violations found herein. to be posted. The notices were thereafter posted at each of Respondent's plants encompassed within the scope of the settlement stipulation, including Respon- dent's Angle-Ferrum plant at Rocky Mount, Virginia, involved in this proceeding. A copy of the notice was mailed to each employee at every afftected plunt, and to each of Respondent's supervisors and managers at those plants, together with a letter from the chairman of Respondent's board of directors instructing each supervisor and manager to abide by the provisions of the notice. In approving this settlement stipulation, the Board clearly indicated its satisfaction with Respondent's in- tention to adhere to all of the promises made therein. Inasmuch as the unlawful activity engaged in by Re- spondent herein occurred well prior to its entering into the settlement stipulation. such previous miscon- duct in no way constitutes a breach of those subse- quent promises undertaken by Respondent. Absent any evidence in the instant case to show that Respon- dent has since breached its promises, I would not. under the circumstances of this case, impose the aforementioned equal-access remedies on those grounds either.'° I also disagree with one other aspect of the rem- edy-I would not require that the notice to employ- ees be signed by Respondent's chairman and board of directors. I believe that the imposition of such an extraordinary remedy is, under the circumstances, ill ' Contrary to my colleagues, 1 see no inconsistency between my reference to the aforementioned settlement stipulation and our affirmation of the Ad- ministrative Law Judge's denial of Respondent's motion to reopen the record or accept affidavit evidence on the question of an appropriate remedy. In that motion. Respondent sought to adduce evidence of four policies and procedures which it claimed to have voluntarily implemented on corpo- ratewide basis for the asserted purpose of assuring its future compliance with the Act Also, Respondent therein summarized the contents of the aforemen- tioned settlement stipulation, which is, of course, a matter of public record in any event and no less properly the subject of our notice than any other public judicial proceeding. Although Respondent has not renewed its motion to reopen the record before us, it nevertheless has cited the Administrative Law Judge's denial of its motion as evidence of his alleged bias and prejudice against Respondent in this proceeding. As stated in fn. I supra, we find no evidence of any bias and prejudice on the part of the Administrative Law Judge, and it is in this regard that we specifically affirmed his ruling on Respondent's motion as not being moti- vated by any bias or prejudice against Respondent on the part of the Admin- istrativv Law Judge. The record not having been reopened to adduce addi- tional evidence on the question of. inter alia, whether or not Respondent has complied with the terms of the settlement stipulation, the record is thus necessarily devoid of' any evidence of noncompliance. Thus, I have taken notice of the terms of a settlement stipulation properly within the cognizance of the Board and necessarily have found no evidence in the record of any noncompliance therewith that might arguably support the imposition of the extraordinary remedies which my colleagues impose in the instant case. ' Finally, by imposing these equal-access requirements, my colleagues not only are forcing Respondent to support the Charging Party's campaign but also are raising serious questions as to the validity of any election by limiting equal access only to the Charging Party. See my dissenting positions in Flor- ida Steel Corporation. supra at fn. I I, and United Dairs Farmers Cooperative Association, supra at fn. 15. 702 J. P. STEVENS & CO. advised. I recognize that I joined my colleagues in imposing this requirement on Respondent in J. P. Stevens & Co., Inc., 239 NLRB 738, and that the U.S. Court of Appeals for the Second Circuit has twice imposed it on Respondent in connection with civil contempt proceedings arising from Respondent's fail- ure to comply with previous Board Orders. NV.L.R.B. v. J. P. Stevens & Co., Inc., 563 F.2d 8 (2d Cir. 1977); N.L.R.B. v. J. P. Stevens & Co., Inc., 464 F.2d 1326 (2d Cir. 1972). But the imposition of this same extraordinary remedy in the instant case is an exer- cise in redundancy, which routinizes for this Respon- dent what is and should remain an extraordina,r re- medial measure. The imposition of this requirement in 240 NLRB 33 and 579--in which I did not participate-both of which decisions issued within 60 days of the issuance of the Board's Decision in 239 NLRB 738. may have already heralded the start of this routinization. To reimpose this unique remedial measure repeatedly and so rapidly will inevitably devalue it in the eyes of Respondent's employees and ultimately blunt what- ever real remedial force it may have on Respondent's board of directors. It also could well mislead Respon- dent's employees into thinking that Respondent has violated the settlement stipulation. For these reasons I would not, in this case, require Respondent's board of directors to sign the attached notice. In all other respects I concur in the remedial order adopted herein. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had a chance to give evidence, the National Labor Relations Board has again found that we violated the National Labor Re- lations Act. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representa- tives of their own choosing To act together for purposes of collective bargaining or other mutual aid or protection To refrain from any or all these things. We intend to abide by the following at all of our plants and other corporate facilities: WE WILl. NOT, at any of our plants or other corporate facilities, discourage membership in Amalgamated Clothing & Textile Workers Union of America-Textile Division, or any other labor organization, by discharging, refus- ing to reinstate, or issuing warnings to you or in any other manner discriminating against you in regard to your continued employment or other term or condition of employment. WE WI'l NOl, at any of our plants or other corporate facilities, tell you that signing union cards will have serious consequences or other- wise threaten you with reprisals because you sign union cards or engage in other union activity. WE WII. NOT, at any of our plants or other corporate facilities, threaten you that the names of union card signers will become public knowl- edge. WE WII.I. NOT, at any of our plants or other corporate facilities, ask you to report to us the names of union card solicitors. WI: WILL NOT, at any of our plants or other corporate facilities, create the impression that we are engaging in surveillance of your union activi- ties. WE WILL NOT discharge any employee be- cause he or she has participated in the investiga- tion of unfair labor practice charges. WE WILL NOi, at any of our plants or other corporate facilities, in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by the National Labor Re- lations Act. WE WILL send a copy of this notice with an explanatory letter to each of our employees at his or her home address; WE Wil.. have this notice read to all of our employees at each of our plants or other corporate facilities; WE WILL publish this notice in appropriate company publications, such as employee newsletters: and WE WILI. give all of our supervisors at our Angle-Ferrum plant in Rocky Mount, Virginia, copies of this notice and instruct them to comply with its provisions. WE WILL grant the Union, as ordered, access to our bulletin boards, access to our nonwork areas, speaking opportunities, and lists of the names and addresses of our employees at each of our plants. WE WILL offer Robert Montgomery immedi- ate and full reinstatement to his former job or, if that job no longer exists, to a substantially equiv- alent position, without prejudice to his seniority or other rights or privileges enjoyed by him. and make him whole for any loss of wages he may have suffered by reason of our unlawful dis- charge of him, with interest figured on the back- pay due him. WE Wll l erase and physically remove from 203 I)EC(ISIONS OF NATIONAL. LABOR RELATIONS BOARD our records and filed the warnings, and any ref- erences to those warnings, given to Donald Thurmon on September 15, 1976. and to Robert Montgomery on September I and October 1, 1976. All our employees are free to join or assist Amalga- mated Clothing & Textile Workers Union of Amer- ica-Textile Division, or any other union. J. P. SIEVENS & CO., INC. APPENDIX B Dear Stevens Employee: This letter, and the enclosed notice, is being sent to all J. P. Stevens employees to inform you of a recent decision of the National Labor Relations Board* re- lating to the Stevens facilities in Rocky Mount, Vir- ginia. The Amalgamated Clothing & Textile Workers Union of America, AFL-CIO, has been trying to or- ganize the Rocky Mount hourly employees for the purpose of having them select that Union as their collective-bargaining representative. After a hearing, the National Labor Relations Board found that the Company violated the law by issuing written and ver- bal warnings to employees in order to discourage their union activities, and those of others: discharging and refusing to reinstate employees because of their union activities; theatening employees with reprisals for supporting the Union; creating the impression that employees' union activities were being kept un- der surveillance; promising employees benefits if they rejected the Union; telling employees that the iden- tity of union card signers would become public knowledge; telling employees that the signing of union cards would have "serious consequences"; and inviting or encouraging employees to report on those employees who had signed cards. As you can see from the enclosed notice, the Com- pany has promised that we will take certain actions to correct these violations and that, in the future, we will comply in good faith with the labor laws. Therefore, anything that you may have heard which would indi- cate that the Company does not intend to comply in good faith and fully abide by the Nation's labor laws, at any of its plants, is completely erroneous. Sincerely yours, (Plant Manager) *245 NLRB 198 (1979). DECISION S I A EMENI OF 11i CASI CLADIJ R. WOLF.E, Administrative Law Judge: This pro- ceeding was heard before me at Roanoke, Virginia, on Oc- tober 26 28. 1977, pursuant to complaints issued on March 30 and September 26, 1977. and amended at hearing. The charges were timely filed and served on September 13 and 27, 1976. and May 16, 1977, by the Amalgamated Clothing and Textile Workers Union, AFL-CIO-CLC, hereinafter referred to as the Union. The complaints allege violations of Section 8(a)( 1), (3), and (4) of the National Labor Rela- tions Act, herein called the Act, in that J. P. Stevens & Co., Inc., herein referred to variously as Respondent, the Em- ployer, or the Company, by its agents, unlawfully interro- gated employees: posted notices to employees containing statements amounting to interference with, restraint, and coercion of the employees; issued written warnings to Rob- ert Montgomery and Donald Thurmon because of their union activities; and discharged Robert Montgomery be- cause of his union activities and his participation in the investigation of the charge in Case 5 CA 8169. Respondent timel' answered these allegations and denies the commis- sion of any unfair labor practices. Upon careful consideration of the entire record,' my ob- servation of the witnesses as they testified, and the post- hearing brielfs of the parties. I make the following: FINDNNGS AN) (C()N(I.USI()NS I. J RISI(IN The complaints allege, Respondent admits, and I find that J. P. Stevens & Co.. Inc., is a Delaware corporation engaged in the manufacture and distribution of textile products at its plant in Rocky Mount. Virginia, and that during the 12 months preceding the issuance of each of the complaints, a representative period, Respondent manufac- tured finished products valued in excess of $100,000 and sold and shipped finished products valued in excess of $100,000 from its Rocky Mount, Virginia. plant to points located outside Virginia and that the Respondent is, and has been at all times material herein, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. I.ABOR ORGANIZAIONS The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 'On August 3, 1978. Respondent filed a motion to reopen the record, or accept affidavit evidence, on the question of an appropriate remedy. I denied the motion on September 5. 1978. On September 20, 1978. Respondent wrote asking me to take judicial notice of a General Counsel advice memorandum. On October 23, 1978. I declined to do so. 2 On March 14. 1978. the General Counsel filed a supplemental brief cov- ering a request for remedy inadvertently omitted from his earlier post-hear- ing brief: On April 17. 1978, 1 accepted the supplemental brief in the absence of any objection, with leave to Respondent to file an answering brief I later discovered that Respondent had earlier opposed the receipt of General Counsel's supplemental brief, but the opposition of Respondent had not been Forwarded to me for consideration. In any event I do not see that the General Counsel's supplement is of any great moment inasmuch a I would draft an appropriate remedy for any violation found. regardless of brief requests. 204 J. P. STEVENS & CO. 111. HE UNFAIR L.ABOR PRA(CTIC(tS A. Findings of Fact and Preliminarn Conclusion.s The Union commenced an organizing campaign among Respondent's employees at its Angle and Ferrum plants. which constitute the Rocky Mount. Virginia. facility, in May 1976. Robert Montgomery signed a union authoriza- tion card on May 11, 1976, and Donald Thurmon signed one on May 12, 1976. Both thereafter solicited authoriza- tion cards from other employees and participated in the distribution of union literature. After the commencement of the Union's campaign, pro- and antiunion factions developed among the employees, with both engaging in propaganda efforts in support of their respective views. There is no showing that the anti- union employees were acting on behalf of' Respondent or that Respondent took any part in organizing or sponsoring their activities. On August 5 and 6, 1976, T. J. Griffin, group manager, South Boston group for Respondent, and an admitted su- pervisor, spoke to the employees. The speech was delivered to six groups, and the entire work force was thereby ad- dressed by Griffin. The format of the meetings with the employees consisted of an introduction of Griffin by Rich- ard T. Cruze, plant manager of the Angle-Ferrum plant, and then the reading of a written speech by Griffin. The speech in its entirety follows: I have asked Mr. Cruze to hold this meeting here today in order that I might come and talk with you on a subject of far-reaching importance to all of you. In order that I may be entirely clear in what I say to you and in order that there may be no doubt or misun- derstanding as to what I do say I am going to refer to some notes which I have here before me. As you are aware, the Textile Workers and the Amalgamated Clothing Workers Union is now putting on a campaign to try to get into the Angle and Ferrum Plants. A good many questions are being asked with regard to this matter, and we want to answer these questions as clearly as we can for everybody alike. We believe that you are all entitled to know what the situ- ation is, and what our Company's position on it is, and what may be expected with regard to the entire matter. In the first place, this Union campaign is a subject of concern to our Company. It should be also-and just as truly-a matter of concern to each and every- one of you-for it is important to your future and the future of your families. From long experience, we are deeply convinced that a direct relationship between a Company and its employees serves the best interests of both-and that a Union, in the long run, undermines that rela- tionship, and builds a barrier between the Company and its employees-and sooner or later brings fric- tion and dissension and often serious trouble for all concerned. It is our sincere belief that if this Union were to get into these plants, it would not in the long run work out to your own best interests. It is therefore our intention to oppose this Union and by every lawful and proper means to prevent it from coming in here. We suggest and recommend to you that you ap- proach this subject with care-that you make no de- cision and take no action on it without first weighing the whole matter thoroughly. We would like to make it clear to you that those who might join or sign up with this Union will never get any advantage nor any preferred treatment of any sort over those who do not join or belong to any Union. We would also like to make it clear that it is not necessary, and it is not every [sic) going to be neces- sary. for anybody to belong to the Textile Workers or the Amalgamated Clothing Workers Union or any other Union. in order to work for this Company. The Law of Virginia guarantees this to qou and we assure it to you. Now people often have the idea that when a Union comes into a plant. then automatically wages go up. and new fringe benefits are added, and whatever any- body wants changed will be changed. This is a ver misleading and mistaken idea. The truth and the fact is that if this Union were to get in here, there is no waN that it could force this Company to do anything that the Company did not consider to be wise or practical. Of course, the Union could try to pressure the Com- pany hby pulling you out on strike. But the Stevens Company has no intention of giving in to an strike pressure now or at any time. In saying this. I do not intend to seem harsh or arbi- trary. I simply think it is important that everybody should understand the facts about this matter while there is yet time and before anybody goes down the wrong road believing that a Union can accomplish things which in truth it cannot accomplish. Everybody knows that where Unions are is where strikes generally take place. And everybody knows that strikes mean trouble and tension and strain and strifie-which often ends up in serious violence. Nor is violence the only danger connected with a Union strike. While Union officials keep their jobs and draw their salaries, striking employees stand around for days and weeks, and sometime months. earning nothing. They draw no unemployment compensation. Debts and obligations pile up on them and on all their possessions and belongings. Even more important those who folow a Union out on strike run the risk of losing their jobs. For it is the right of a Company to replace those who leave their jobs and go out on strike. And those who are so re- placed have no automatic right to come back and get their jobs. even when the strike has ended. All these things you should consider-you should give careful thought. J. P. Stevens has approximately 85 plants and more than 40.000 employees. These two plants are probably the smallest anywhere in the Corm- pany. Yet when Stevens raises wages. it never over- looks these plants. You get the same wage raises and increased benefits, right along with the largest of Ste- vens' plants. It is only recentl1 that you, along with 205 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other Stevens employees, received a sizeable wage in- crease. On top of that, you have also recently been given a guaranteed pension plan. Do you really think it likely-does it stand to rea- son-that if you were to form a Union here, Stevens would then give you higher wage increases and benefits than it has given to 40,000 other employees? The Unions have been beating and banging on Ste- vens for many years. Never yet has the Company given the employees in any one plant any wage increase or benefits of any kind that it did not give to its other plants. Upon facts such as these, is it really common sense to believe that by starting up a Union in these plants, the Company will give up and come down here and put into effect higher wages and benefits than it has anywhere else? Whoever believes that-and who- ever follows those that tell him or her that-is not thinking or reasoning very clearly. A Union can start trouble for all. But who do you think stands to gain from such trouble. If a Union got in here and became your representative and started a strike, can you picture these plants with a little more than 200 employees winning such a strike against Ste- vens with more than 40,000 non-Union employees? In this matter you need to consider what is to your own best interests-not what some Union organizers want you to do! Now on the subject of signing up with the Union, I understand that the Union organizers, or some of your fellow employees, are telling you that if you sign a card for the Union, then it will be kept confidential and nobody except the Union or the Labor Board will know that you have signed a Union card. You are en- titled to know that this may not be true. Nowadays, Unions often try to get into a plant on the basis of the Union cards, without employees hav- ing voted on the matter at all. Where this happens, the signed Union cards are taken to a public hearing, usu- ally at the Court House. The cards are laid on the table, and people are put on the witness stand. They are questioned as to whether the cards do bear their true signature and as to the circumstances of their sign- ing the cards. In such situation, as you can see, the signed Union cards are anything but confidential. They become pub- lic as everything in a Court proceeding is made public. Now it is for you to decide whether this gives you any concern or not. But the point is that when the Union assures you that the cards will always and necessarily remain confidential, they may be very seriously mis- leading you. Another thing you need to realize is this. If and when a Union comes in, there are rights you now have which would then be taken away from you and given to the Union. If a Union gets into a plant, then it becomes the agent and representative of the employees who work in that plant, whether that suits their wishes or not. It can make decisions for them, whether they like it or not. For example, you now have the right to take up your problems directly with the management of this Corn- pany and the right to settle your affairs for yourself with the Company. If the Union comes in that right will be taken from you and placed in the hands of the Union. Therefore you need to consider- if this Union were to come in here, who would get to be the shop stewards and the committeemen to handle the affairs of every- body else. Are you ready to turn over your business to them-and place your future in their hands? That is what you would have to do, if this Union were to get into this plant. It is your interests that you should consider in this matter. It is your interests that are at stake! Whatever our problems may be, the Union is not the road toward making things better. It is the road toward making them far worse! Certainly, not everything here is perfect. But they, can be improved and corrected-and I can assure you that is what we desire to do and intend to do. We can work things out by pulling together. But we can never work them out by pulling apart! I can promise you our cooperation toward that end and I sincerely hope that we may have yours! Thank you for your attention, and we will now ad- journ this meeting. I do not credit Robert Montgomery's testimony that some time in August 1976, prior to the 24th day of that month, he told Walter Altice. his supervisor, that he was in favor of the Union and wanted to know more about it and that Altice replied that he was not for or against the Union, and that if the Union got in and there was a strike, the Company had a right to hire other people to take their places. Altice denies having any such conversation with Montgomery, and I observed nothing in Altice's demeanor to cause me to doubt his testimony on this point. It was my distinct impression that Montgomery was making a con- scious effort to place the date of the alleged conversation with Altice at a time prior to his warnings of August 25 and 26, which are alleged to be discriminatorily motivated. In assessing Montgomery's credibility on this matter I have also taken note of his vagueness and inconsistent testimony with respect to his union activities. Thus, he testified on direct examination that he wore a union button, which he had procured at a Labor Day rally of the Union in 1976, every day thereafter except for the last 2 weeks of his em- ployment, when it became lost. Then on cross-examination, when confronted with a prehearing affidavit which he gave to the General Counsel including a statement that he wore the btton a couple of weeks until he lost it, he demonstra- bly equivocated by stating that he did not know exactly how long he wore the button but that it could have been 2 weeks or longer. On the basis of this testimony, I am per- suaded that at best he wore the union button for a couple of weeks after he obtained it in September 1976, and not thereafter. With respect to passing out union literature. Montgomery was again initially vague and placed this lit- erature distribution by him sometime in August or Septem- ber 1976. On cross-examination, after examination of an affidavit given by him to the General Counsel on September 23, 1976, he conceded, after some equivocation, that the occasion on which he passed out handbills was September 206 J. P. STEVENS & CO. 22, 1976. Accordingly, I find that he had not as yet done any handbilling at the time he received his warnings of Au- gust 25 and 26, that his wearing of union button also oc- curred after this discipline was assessed, and that the Em- ployer has not been shown to have had knowledge of his union activities prior to the time the discipline was assessed. Donald Thurmon credibly testified that he had been wearing a union button from the time he received it on Labor Day 1976 until the time of the hearing. His only testimony in regard to when Montgomery wore a button was with respect to the time that he and Montgomery put out leaflets, which I have concluded was September 22. La- bor Day in 1976 was September 6, and September 22. the date of the leaflet distribution, comports with the testimony of Montgomery that he did wear the button for about 2 weeks after he received it. Montgomery was issued written warnings by Respondent on August 25 and 26, 1976, for poor work performance. On September 1, 1976, he received a written warning for alleg- edly intimidating an employee pertaining to the signing of a union card. This warning grew out of a conversation be- tween Montgomery and new employee Lillie Preston on August 31. 1976. Preston testified that Montgomery told her there were a lot of people, including her brother. for the Union and that if she did not sign a union card, she would be sorry and would lose her job. She told her brother about the incident, and he told her that she should tell her super- visor. The following day she told Walter Altice of Mont- gomery's statement of the consequences if she did not sign, and Altice asked her if she would sign a complaint against Montgomery. She said she would and did. The statement was composed by Altice and reads, "This employee came to me and asked me to stop Robert Montgomery from appli- cate [sic] pressure on her about sign [sic] union cards." Altice then issued a warning to Montgomery reading: "A second shift employee from W-R-2 has come to me and told me that she wanted this employee to stop intimidating her pertaining to the signing of a card pertaining too [sic) out- side activity. The purpose of this report is to inform this employee that we will not tolerate intimdition [sic] of any employee. Refused to sign." Montgomery acknowledges that he was written up for allegedly trying to force Ms. Preston to sign a union card. He claims he asked her to sign a union card. She refused even though he told her several people, and he believed even her brother, had signed. She still refused to sign and said she was not for the Union. I observed Ms. Preston to be an honest, forthright wit- ness, albeit confused at times by questions posed by coun- sel, and I credit her and conclude that Montgomery did tell her she would be sorry and would lose her job if she did not sign a union card. On October I Montgomery received another written warning, for threatening employee Edward Jimmy Robert- son for refusing to sign a union card. According to Robert- son, about a week before September 30. 1976. Montgomer gave him a completed union card while he was eating sup- per and told him to take it home, read it. and sign. Robert- son took it home, read it, tore it up, and threw it in the trash. The next night at supper, testified Robertson, Mont- gomery asked him about the card, and Robertson told him what he had done with it. Montgomer\ allegedl asked if Robertson knew he was supposed to return the card. Rob- ertson replied he did not, and it Montgomer\ wanted it he could go get it out of the trash can. whereupon Montgom- ery told him the two of them would settle it outside. About a week later Montgomery gave Robertson another card at supper with the same instructions. Robertson disposed of it in the same fashion. Robertson testified that after getting the last card from Montgomery. he told employee Wayne Wray of Montgomery's action and was advised to file a complaint with Acting Supervisor Housman. Robertson says he had intended to do this before Wrail suggested it and that he did subsequently tell Housman what Montgom- ery had said and that he wanted to file a complaint because he was tired of Montgomer riding his back. Housman told him that if he wanted to file a complaint, that would be the best thing to do. because masbe Montgomer would then leave him alone. Robertson signed a complaint on September 3). 1976. probably prepared by Housman. because Robertson does not read well, which contains a statement by ousman reading, "This employee complained that another emplo\ ee was putting pressure on him to do things against his will." It also contains Robertson's purported statement reading, "Robert Montgomery was putting pressure on me to sign a card, and if I did not sign the card we would settle it Otil- side." The warning issued to Montgomer b Walter Altice. which Montgomer refused to sign, reads as follows: On September I. 1976 ou were given a written warn- ing for threatening an employee for refusing to sign a union card. Yesterday. September 30. 1976 it came to our attention that ou again threatened another em- ployee for refusing to sign a union card. We recognize your legal right to engage in lawful union activitx, However, the law prohibits our threatening. intimi- dating and coercing employees who chose to exercise their right to refuse to participate in union actiities. This is to notify ou that ou are being given a final written warning. In light of sour prior discipline record if you again threaten. intimidate or coerce ne of our fellow employees in any way, or engage in other mis- conduct, you will be immediately discharged. Way ne Wray, a known antiunion employ ee. also signed a statement on October I stating: On September 30, 1976 Wayne Wrak approached me (Walter Housman) and said that Robert Monitgonmer? was putting pressure on Jimmy Robertson to sign a union card. Wayne stated that Jimm. a loom cleaner on Second shift W.R. I. told him of this problem and said that he did not want to sign the card. Wa\ ne said that Robert had told Jimmy that it he didn't sign the card the company would get rid of him. Wra's statement that MlontgomerN told Robertson the Compan would get rid of him does not comport with Rob- ertson's claim and is palpably false hearsa\. Montgomery's ersion is that he gafe Robertson three cards on the first occasion and merel' asked him to sign one and return it. He states that he slipped Robertson aother 207 DECISIONS 01' NATIONAL IABOR RELATIONS BOARD card at breaktime about a week later because he believes Robertson said something to the effect he had lost the ear- lier cards. He states he does not quite remember what Rob- ertson said. Donald Thurmon, a refreshingly forthright and credible witness, saw Montgomery give Robertson a card on Sep- tember 30, but does not recall what conversation was had. Robertson impressed me as an unlettered man trying as best he could to thread his way through the maze of ques- tions propounded to him and answer them honestly. His testimony contains considerable confusion, occasioned, I believe, by his limited comprehension of the language. One does not, however, have to be erudite to be honest, and I am persuaded that Robertson testified honestly to that which he recalled. Robertson, Montgomery, and Thurmon are in substan- tial agreement as to what occurred when Robertson was given the second union card. Montgomery does not deny Robertson's credible account of Montgomery's statements during the second meeting between the two with respect to Robertson's destruction of the card previously given him. On the whole, I conclude that Robertson's version of the sequence of three contacts with Montgomery regarding union cards is accurate. Montgomery did not testifv yea or nay about the second contact, and I do not believe his as- sertion that he gave Robertson three cards on their first contact. Accordingly. I find that Montgomery did invite Robert- son to settle the matter outside when he learned of Robert- son's destruction of the cards and that it was Robertson's idea, although encouraged by Wayne Wray,. to report Montgomery's conduct to Respondent. On September 7, 1976, Montgomery asked Donald Thur- mon to be a witness to a conversation he was going to have with Walter Alticc. The two of them went to Altice's office, where both informed Altice that they were union support- ers. On September 15 Montgomery received a verbal warning for unsatisfactory work performance, and hurmon re- ceived a written warning for failure to start up a tie hack warp. Thurmon is a loom fixer of some 15 years' employ- ment by the Respondent. He is responsible for 80 looms. Walter Altice concedes that Thurmon is the best of the five loom fixers supervised by him, and Thurmon credibly testi- fied that he had never before received a written warning. I also credit his uncontradicted testimony that all loom fixers were issued a fixers guidebook by Respondent, that he re- ceived his from Altice a few years prior to the hearing, that he was instructed by Altice to give priority to the fixer's duties set forth therein in the order in which they appear, and that he had always done so. "Start up new warps" is numbered last in the list of duties.' 3 he pertinent entry in the Ixonm i.er, Reminder Booklet reads as 1ol- lows: . Fixer's Duties & Responsibilities I. Communicate job conditions with on-coming Fixer. 2. Assist Weaver in turning Pick Clocks. 3. Patrol alleys during shift observing loom, warp and cloth condi- tions. 4. Check Shuttle Boxing on each loom at least once per shift. 5. Check and clean --off Shuttles each shift. According to Thurmon, Supervisor Walter Altice began flagging more looms than usual on September 8, 1977, urged Thurmon to move faster, and kept increasing the number of flags throughout the week until Altice flagged 25 to 30 looms on September 15 in addition to those flagged by the weavers. Thurmon asserts that between 10 and 15 flags were the normal number raised each shift prior to Septem- ber 8 and that, along with the increased flagging,' Altice throughout the week, until September 15 repeatedly, told him he was not trying to do his work, was not fast enough. or was not doing the work properly. Prior to September 8 he had never had any problem with Altice of this nature. Thurmon worked the second shift, from 4 p.m. to 12 p.m. On September 15 a warp was shut down on the first shift and remained off through Thurmon's shift. Thurmon testi- fied that the warp had been prepared by the warpman and the smash hand and was ready to start by 5 or 6 p.m. and that Altice kept after him throughout the night to start it up, but he was so busy working on the extraordinary num- ber of flagged looms, which had priority over a warp start- up, that he was unable to get to it until about 10 p.m. In the interim, Altice several times had told him to start the warp up and treat it like a flagged loom, but Thurmon's response was that this was not the procedure he always followed in starting new warps in that he had always worked on warps after he got the flagged looms running. Thurmon recounts that when he went to the loom about 10 p.m., he found the warp brakes needed cleaning and asked Altice to get the loom cleaner to clean the brakes and brakedrum because this is the first step in starting a new warp. Altice then had it cleaned, or cleaned it himself, and Thurmon worked on other flags. After the brakes were cleaned, Thurmon could not find the shuttle at the warp, or elsewhere, and procured a requisition from Altice for a new shuttle. He then pro- cured a new one from the supply room, prepared it, and returned to start the loom. This was around 10 p.m., and by then other looms had been stopped off by the weavers, and he went to work on them. He did not get the loom started that night. At 1:25 p.m., states Thurmon. Altice called him into the office and showed him a written warning for not getting the warp started. Thurmon refused to sign it. According to Thurmon, he was in Altice's office until about 11:45, at which time he prepared to go home, and when he left there were still 20 to 30 flags up. Thurmon concedes that he has talked to Altice on several occasions other than September 15 about starting up warps, but denies he was ever shown any warnings by Altice prior to September 15. Altice's version is that he did not treat Thurmon any differently after September 7 and did not flag an unusual number of looms in Thurmon's section between September 8 and 15 or flag any for general overhaul or major center fork overhauls or that he observed any unusual number of looms flagged during that period. He avers that there were 6. Inspect Cloth on each loom as needed during the shift. 7. Repair all flagged looms. 8 Locate and fix chronic problem looms. 9. Start up new warps. 'Thurmon credibly testified that Altice was just flagging these extra looms for general checkups. 208 J. P. STEVF.NS & CO(). only about 12 looms flagged on September 15 during Thur- mon's shift and that Thurmon was not busy all night as he claimed. He further states that he never instructed an loom fixer that the enumerated order of duties in the loom fixers guidebook was the order in which the work should be done. According to Altice. the warp in question was readN to be started about 8 p.m., Thurmon got an order for a new shuttle from him. and the new warp had not been started hb 11:25 p.m. Therefore, he called Thurmon in and asked why he had not started the warp, received the reply that Thur- mon had not had time, and issued a written warning to him for not getting the warp started. lie also states that he gave Thurmon verbal warnings on March 6, 1975. for filing to run trial pieces off a warp to make sure he had fixed it correctly, and on August 31, 1976. for not starting up a new warp. The record is clear that notations of verbal warnings are not shown to employees. I have found Altice to be incredible in other situations. and this may be properly considered in evaluating his credi- bility with regard to the September 15 events.' In contrast. Thurmon, who testified with calm assurance. impressed me as one of the most forthright and honest witnesses appear- ing before me in this case. I am, therefore, persuaded that of the two, Thurmon gave the more believable testimony, and I credit his version of the circumstances of September 15 leading to his written warning. Another verbal warning for unsatisfactory performance was issued to Montgomery on October 20, 1976. He re- ceived no other warnings from the Employer prior to his separation from employment, but his supervisor did make a notation for the record6 on February 18, 1977, regarding his unsatisfactory quality of work. On October I. 1976, Respondent posted a notice to its employees reading as follows: Notice To Employees It has come to our attention that some of our employ- ees have been threatened with physical violence for refusing to sign a union card. This is a typical high pressure tactic. Threats are in violation of the Federal Law and will not be tolerated. We are sorry that our employees are being faced with this union coercion. The employee who made the threat has been given a final warning. Further conduct of this sort will result in termination and the matter will be turned over to the proper authorities. Any other employees who threaten an employee for refusing to sign a union card or refus- ing to participate in union activities will be dealt with accordingly. Virginia is a right to work state. Under State and Fed- eral Law you are free to refuse to be associated with this union, its threats and its coercion. You can be sure that the Company will see to it that your rights under the law will be protected. If you are threatened in any 5N.L. R. B. v. Pittsburgh S.S Compan. 337 U.S. 656. 659 (1949). Verbal warning records and notations for the record are not shown to the affected employees. wa. let our supervisor knou .Ind we ill putt a1 top to it. .1. 1' SteNens & (' o.. c. \Angle & F[errum It'lints I R. I . (rtuze ManagLer On September 23. 1976. Respondent wa Sett a eItter hs the Uinion identitfing 21 ernplo ccs. mncluding I'hurmon and Mlontgoniery. as mctilhers o, the Ilnoii's orgaini/inli committee and c<attiotlng the fImpl, WCr not to ireat ftlese people an! differenl than oiher emplo ces. Russell Jenkins was MontmitollI's lom fixer utL11 thle week of' Dccenlber 19. 1976. when e as replaced i1 IItl; position bh Jamiles Wiminer.' Jenkins. a bhluntl main o some 40 ears' experience as a loom fixer \who ';Ias inclined t1 teslik in generalities plaiil considered MonlgontierN to be an extremely por weaver and credibli testified that he had given notice to Altice that he was going to quit because Monlgomiery asked him twice to sign a unio card and that when he refused Montgomery retaliated hby putting the flags up on many of his machines to mnakC it look like thes wecre in need of repair when they were not. I am persuaded from his testimorny and that of Altice thit he was solicited b! Montgomrery shortl! beftre WVimmer took his place as Montgomery's fixer during the week ol Decenmber 19.' All of the warnings issued to Montgomery occurred wshile he was working with loom fixer Jenkins and mitay not hbe attributed to the fact that Jenkins' replacement. Wimnier. was an antiuniont employee. which he clearl] was. Subse- quent to the August 25 and 26 warnitgs to Montgomner. weaver instructor l.arr Mc(iGuire was directed to perform a weaver analysis on Montgoinery. le did so on August 27 and found various faults in Monlgomer\'s performance. lie was then assigned to, work with Mlontgomery for several days, retraining him on starting up looms alnd performing related duties. According to Mc(;uire's credible teslmony. he pointed out some of Mintgomer 's mistakes to him and showed him the correct way to do his work, and by the end of the instructional period Montgotiery was doing a ver good job. I also credit Mc(;uire's testimony that at the time he made his analysis. Montgomery was making several mis- takes which adversely cffected his work performance. Montgomer's performance was aain analyzed on )ecent- 7 The loom fixer repairs the loom,, on which Ihe eaer urks is the need arises, and the production from the looms is theretre dependent on hoth the weaver's performance and prompl. correct assessment of repairs needed nd on proper and tinely repairs made on the loonms by the fixer I Some confusion with respect to the time that olntgomer 3 solicited Jen- kins to sign a card was occasionlled General (unel's efforts o secure testimon from Aitice to the effect tha;l Jenkins had complained Ito him about Montgomers's solicitation in about Juil 197, bul I am satisfied that. although confused by Gieneral Counsel. Altice ornl testified in response to a leading quaestio that it occurred sometime in 1976 I s later test nion thail it was around hunting selson in N,.senmher together silh Jenkins' uncon- Iradicied and credible testtimens that he put in hi, nlotice that he as going to quit shorlls alter his difficulies uiilh Monrgomers regarding c.ird signing and was then transferred off MNintgomner's 1 ,is, ihlch Irans-er occurred during the u eek (it December 19 upp), i . ,i clusSlin n the time t s)liciit tion i obsersed Jenkins ti he i on liesll .iin. depile hi, leniden t answer questions with generalities ai;i, plnrin l ishc rellled til 10lgolll- ery's work perfirmalnce I) (FCISIONS O() NA IO()NAI. I.A()OR RI.AT IONS BOARI) her 29, 1976. and Mairch 28. 1977, as part of a ouline analy sis if all weavers by Nlc(uire. I he analsis of l[ecetiher 29 shows that his perfii mance Was considerably better than it was on August 27 and that. but for a couple of minor instances, he was following cor- rect procedures. . he analysis of March 28 in dicated that his work had once again deteriorated, and he was not following procedures in several wa Is. In sum, MNontgomnerys per- tormance was below par during the analysis of August 27. "as satisfactory on D)ecember 29. and had again deterio- rated to bout the level of August 27 when his work was analyed on March 28. Of the II other weavers analyzed during the period March 21 April 4, 1977, none had half as many detects noted on their individual analysis reports as did %Montgomery. I'here is no showing that these weavers analysis f)rms completed bh McGuire were in anyway tinged by antiunion considerations, and I credit McGuire's testimony that the forms actually reflect his personal obser- sation of the defects noted thereon. On March 25. 1977, Wimmer accused Montgomery of tl;agging a lot of looms just for the purpose of getting Wim- mer angry. Montgomery denied this and told Wimmer that he was just trying to do his job. I credit Montgomery's testimnon to this effect, and I also credit his testimony that Winmer threatened to stop off all of' M onitgoimery's hoorrns and make sure that lie was not going to make any money during this period. Ater this conversation Montgomerv told supervisor Altice what Wiiumer had said to hinm. Montgomnery also claims that while hlie was talking to Altice. Winmmer was standing nearby and laughed and said that he was indeed going to cut all of MnmtgomCery's looms offt and that he was not going to make a penny. MNlntgom- ery further testifies that he went to see Altice at the end of the shift and complained that Wimmer had indeed cut off every alternative loom and that Montgomery wanted some- thing done about it, or he would file charges with the Board. Altice allegedly said nothing to this. Altice denies that he was ever with Montgomery when Wimmer made an) statement about cutting off Montgomery's looms so he would not make money or that Montgomery ever told him that. lle further denies that Montgomery ever told him that if he did not stop Wimmer the matter was going to the Board. I am persuaded, in view of the obvious animosity between Montgomery and Wimmer and Wimmer's failure to deny Montgomery's testimony with respect to the events of March 25, that Wimmer did in lact threaten to stop off Montgomery's looms and that he did indeed stop off some of them on that day'. I further conclude that inasmuch as Wimmer was called as Respondent's witness and was not asked to testify about the events of March 25, particularly the statements that Montgomery claims he made in Altice's presence, it is reasonably inferable that had he so testified. his testimony would not have corroborated Altice. Accord- ingly. I credit Montgomery's recital of Wimmer's provoca- live statement in Altice's presence that he was going to cut off Montgomery's looms. I further conclude that Montgom- ery did later that day report to Altice that Wimmer had shut off half his looms and did tell Altice that he wanted the situation corrected, or he would file charges with the Board, because these actions were consistent with Montgomery's habit of reporting to Altice, were natural reactions to Wim- mer's perfection of his threat to stop looms, and Montgom- ery's testimony on the matter had the ring of truth. According to Altice. after Montgomery told him that Wimmer was bothering him. Wimmer entered Altice's of- fice and complained that Montgomery was a poor weaver. Altice told Wimmer to let Montgomery alone and to do his own job. On this occasion, March 25. 1977. Altice issued a verbal warning to Wimmer which reads as follows: "I talked to this employee about running his job not to keep on complaint [sic] about what his weaver was doing in line of running his job. Also told him not to say any thing else to him about his job." Wimmer and Montgomery had another altercation on March 30, 1977, when Wimmer called Montgomery a name reflecting that Montgomery was stupid.' Montgomery asked Wimmer what he had against him. Wimmer replied that hejust did not like Montgomery's face and that Mont- gomery was not a good weaver and should not even be in the factory. Montgomery responded that if Wimmer would fix the looms right. neither would have any worries. Ac- cording to Montgomery. Wimmer raised his fist, and Mont- gomery ran from him down the loom alley. Ultimatelx Montgomery stopped. and Wiimmer grabbed him by the shirt collar, pushed him against an operating loom, and asked Montgomery to go into the restroom with him, which Montgomery refused to do. At that point Wimmer again called him dumb, and Montgomery said that Wimmer was the one that was dumb because he had witnesses to Wim- mer's conduct. Wirmer said that Montgomery should not bother going to Altice about the indicent. because Altice would not do anything about it, and he then left. Wimmer's version is that Montgomery asked him why he did not like him and that he told Montgomery that he had nothing against him and that all he wanted to do was to run a good job. ie concedes talking to Montgomery but denies grabbing him, putting his hands on him, or calling him ei- ther a dumb ass or a dumb SOB. Employee Lillie Preston testified that she was working on March 30 and saw Montgomery and Wimmer standing and talking to each other in the weaver's alley, but that she saw nothing but talk between the two of them. She denies seeing any pushing. Jim I'a odges. loom fixer. testified that he had been working on March 30. when he saw Wimmer and Montgomery arguing for a few minutes. and then he saw Wimmer grab Montgomery by the shirt collar and push him back against a running loom. He saw the two argue a few minutes and then break it up and go back to their jobs. He did not hear what the two said. tHe denies seeing Mont- gomery running, asserts that he believes that Montgomery and Wimmer talked about a minute before Wimmer touched Montgomery. and that Wimmer only grabbed Montgomery once that he saw. I am persuaded that Hodges was an entirely credible witness testifying directly only to that which he saw without embellishment, and that Preston either did not see that portion of the alteration that Hodges ' Montgomery testified that Wimmer called him a dumb ass. or a dumb SOB. or something like that. and there was much examination ias to what words were used I do nl see that it makes any difference which words were used. because the import ol Wimmer's statement is clear. and I credit Monl- gomers that Wimmer did in facl call him a dumb ndividual regardless of which last word he used in the description (10 J. P SEVENS & ('() saw or was not being candid because of her previous con- frontation with Montgomery. Between the two, Montgom- ery was much more believable than Wimmer. who did not impress me at all as a witness and incredibly attempted to conceal his strong antiunion feelings by asserting that he was not really in favor of or against the Union in spite of the fact that he openly distributed leaflets opposing the Union. Although I do not credit Montgomer's testimony in all respects. as reflected in this Decision. I do credit his version of the incident, with the exception that he ran from Wimmer just before Wimmer caught up with him as he stopped and grabbed him by the shirt collar. I regard this as a bit of embroidery by Montgomery and believe that Hodges correctly testified as to what actually happened in terms of Wimmer's physical touching of Montgomery. I do. however, credit Montgomery's testimony as to the conver- sation between him and Wimmer before and after the phys- ical act. Montgomery claims that after the incident of March 30 he went to Altice's office but, noting that Wimmer was in the office with Altice, left and returned later. According to Montgomery, when he returned he asked Altice if he had heard what had happened, and Altice said that he had not. Montgomery told him of Wimmer's actions and said that it Altice did not do something about it, he would file charges. Montgomery also states that Altice replied that he had talked to Wimmer about it and would talk to him again. Altice's version is that Montgomery came to him on March 30 and told him that Wimmer had been bothering him again, but did not give him any specifics as to how he wvas being bothered or that anything more than words had passed between him and Wimmer. Altice does agree with Montgomery that he told him that he would talk to Wim- mer again. I think it most improbable that Montgomery would have proceeded to Altice's office to inform him about Wimmer's confrontation with Montgomery, including the grabbing and pushing, without detailing Wimmer's actual behavior. Accordingly, I do not believe Altice's testimony that he was not told by Montgomery what happened or that he did not find out the details of the matter until the following day. Altice did call Wimmer into his office on March 30 and tell him that the expected Wimmer to quit bothering Mont- gomery and to let him alone and start doing his own job. Altice issued a verbal warning to Wimmer on March 30. which is recorded on a personnel action report form thus: "I talked to this employee about threat [sic] his weaver & to leave him alone & do his job." The following day Montgomery filed assault charges against Wimmer. Altice issued a written warning to Wim- mer on April I stating, "It came to my attention today that this employee did threaten another employee with physical violence. The Personal sic] on this report is to inform this employee that this type of conduct will not be tolerated." Below this statement by Altice. Wimmer wrote. "I did not hit this employee nor did I threat him." Both signed the form in the appropriate places. Montgomery claims that on March 31. after he had filed his assault charges, he read the lips of Wimmer's brother Glen, who called him a SOB, but that he did not hear him say this. He also claimed that employee Wayne Wray told him that he had better hope that he had c e, in the hack ot his head. Neither of these emplosees arc hskpcr.llsors nor agents of Respondent. but both are shown be th record to be members of the antiunion faction of the emplo! ees. I place no weight on Montgomler 's testimlons as to h;ll Ite gleaned from reading Glen Winminers lips. but I credit him with respect to the statement he reports that Wa lne Wra made. In any case. I do not tind that the actions of Wra' or Glen Wimmer are attributable to Respondent. Rthlcr. I conclude that theN are attributable to the tact hat one .ris James Wimmer's brother, the other was his triend. and all three were antiunion employees, hereas Montgormer \las clearly for the Union. After these statements troi Wra, M lontgoniers went to see Altice again and complained ot p ing on hii alnd threats and assaults which he thought the Lmploer had sponsored and said that he was going to file charges wtith the board. Altice's repl', was a denial )f compIan sponsor- ship of Wimmer's actions and a statement that all he could do was talk to Wimmer as he did before. I do not credit Altice's denial that MontgomerN came to him after Wra had talked to him and reported as Montgomery testified. I am convinced from an examination of the pattern of Mont- gomery's actions that he had embarked on a course of ad- vising Altice of everb incident he considered to be harass- ment or unfair treatment and that it is more probable that he reported this incident with Wra to Altice than that lie did not. I therefore credit Montgomer' in this instaiince. On April . 1977. the Respondent posted a notice signed b, Plant Manager Cruze reading as follows: Notice It has come to our attention that one of our employeces has been accused of harassing another employee on the job. The employee has been warned that this tpe of conduct will not he permitted and a final written warn- ing has been placed in his file. This is to advise all employees that no threats, harass- ment, or physical violence of any kind will be permit- ted at the plant. Any violations of these basic rules of Good Conduct will result in disciplinary action. up tlo and including discharge. Montgomery's last day of work was March 31. On ,April 1, 1977. he went in to speak to Plant Manager Cruze. On direct examination, Montgomery testified that when he first went in to see Cruze, he told him that he had been thinking seriously' about quitting if he could not get laid off and that if he could not get laid off, he would quit. He explained that he wanted a temporary layoff because of his nerves and because he had been physically assaulted in the factory and was fearful for his life. He further averred that he was told that Cruze could not lay him off and that he would have to get a doctor to do it. On further questioning. he anmended this version to reflect that he told Cruze that he wanted a temporary layoff because of his nerves and because he had been physically assaulted and was frightened for his life. Montgomery continues that he then went to the doctor. got ' his refers Ito James wimmei 211 I)l.('ISIONS ()1 NAI IONAL LABOR RELA lIONS BOARD some medicine and went back to ('ruze because the doctor told him that he did not have a paper to fill out to bring back to ('ruze for being laid off, and he therefore returned to get such a paper ronm (ruze. ('ruze then purportedly told him that he did not have any such paper and he that had already filled out a paper that said that he had quit. Montgomery rejoined that he had told ('ruse when he talked to him previously that he had been thinking seriously about quitting if he could not get laid off, and if he could not get laid off he would quit. ('ruze showed him a termi- nation of employment form on which he had indicated that Montgomery had quit because of health. The form further bore the notation "Employee came to plant manager told him he had quit because of health (nerves)." After Cruze showed this paper to Montgomery. Montgomery told him that he had not quit, an the two of them engaged in a short argument, with ('ruze maintaining that he had quit and Montgomery maintaining that he had not. Thereafter, Montgomery obtained a completed Virginia Employment Commission Request for Physician's Certifi- cate of tealth, dated April 4. 1977. indicating that the doc- tor signatory thereto had examined him on April I and found that the nature of his illness or disability was an anxiety problem, not a physical problem, and placed Mont- gomery on medication. 'The doctor checked the form to in- dicate that Montgomery was physically able to work. After securing this completed form Montgomery returned to the plant on April 4 to see Cruze. lie was attired in his work clothes and had his tools with him. lie told C(ruze that he felt better since he had the weekend to recuperate, that he had not quit, that he w.as ready to go back to work. and that if (Cruze did not let him go back to work. he would conclude that Cruze had fired him. Prior to this discussion about quitting. he had offered to show the doctor's statement to Cruze. but Cruze refused to examine it. Once again the two argued about whether or not Montgomery had quit until Montgomery left, with the parting shot that he would take it that he had been fired. Montgomery did not give any times of day for these conversations with Cruze on April I and 4 when he was on direct examination. On cross-examination Montgomery testified that he went in to see Cruze a little bit after 12 o'clock and does not know how long the conversation lasted because he did not have a watch or clock. lie concedes that he was very ner- vous and was upset. lie further testified that he left the plant after talking to Cruze, went to the doctor, and then returned to the plant for the second time on April I. On cross-examination he also identified the termination of em- ployment form which Cruze had completed and then con- ceded that he had stated in a pre-hearing affidavit that when he went in to talk to (ruze and told him that he had not quit and asked to see the terlination of employment form C(ruze had opened his desk drawer and pulled out a paper that had been crumpled up. The document in ques- tion is in evidence as General C(ounsel's exhibit and clearly has not been crumpled up. lie further concedes that he was nervous and upset when he returned to talk to Cruze and does not remember everything that had happened, but knows that he did say that he had been thinking of quitting, but he did not say he quit, and that Cruze told him on his return visit that he was trying to twist his own words. When Montgomery was later recalled as a rebuttal wit- ness by the General Counsel, after Cruze testified. he di- rectly and succinctly testified that the first time that he talked to (Cruze on April I was sometime after 8 a.m. be- cause the office did not open up until 8 a.m. and that he then saw Cruze immediately. The second time he saw C(ruze, according to his rebuttal testimony. occurred after 12 o'clock. (ruze testified, both when called as an adverse witness by JGeneral Counsel and when later called as a witness for Re- spondent, that Montgomery came to his office on April I, sometime between 1:30 and 2 p.m., and said that he wanted to quit because of his health and that he had talked to several people who had advised him that would be the best thing to do. Cruze told him that he still had his job and that it was there for him, and if he wanted to quit, that was Montgomery's decision to make. Montgomery engaged in a conversation with Cruze about collecting unemployment because it was his opinion that he would not be able to work for several weeks, and he was concerned as to whether or not he could get unemployment benefits. Cruze told him that he did not know and that he could go to the doctor and get a statement from the doctor to take to the unemploy- ment commission, at which time it would be up to the un- employment commission to make the determination. Cruze denied that Montgomery asked him for a temporary layoff or a medical leave of absence" and testified that Montgom- ery said that he wanted to quit because of his health. Mont- gomery also told Cruze that James Wimmer did not like him for some reason and that Wimmer had grabbed his shirt. Cruze told him that he hoped that the Wimmer inci- dent had not happened. According to Cruze, at about 4:15 p.m. on April 1 Montgomery returned to Cruze's office with some pills and said that he had got something for his nerves and inquired whether or not he needed a doctor's excuse. Cruze told him that he did not, because he had voluntarily quit. Cruze first stated, as an adverse witness, that Mont- gomery said that he had not quit after he read the termina- tion papers. When called in Respondent's case, Cruze testi- fied that when Montgomery returned for the second time on April 1. he wanted to be sure that he was voluntarily separated and not discharged and that Cruze then showed him the termination papers that showed that he had quit because of his health. According to Cruze, Montgomery seemed to be satisfied, shook hands with him, and left. This obvious inconsistency between the two versions of the same meeting causes me to credit Montgomery's version, con- firmed by Cruze's first version. On April 4. around 3:15 p.m., claims Cruze Montgomery and Donald Thurmon came to his office. Montgomery said that he wanted to talk about his job and Cruze told him that this was a confidential matter between himself and the Company and it did not involve Thurmon. Thereafter. Montgomery went into the office, put a doctor's statement on Cruze's desk, and said that he was ready to go to work. Cruze told him that he quit, and Montgomery replied that u Cruze concedes that Respondent has granted medical leave to emplo- ees who are permitted to thereafter return to their formerjobs and that there is a possibility of return to the same job for separated employees vsho return at a time that their prior job Is open J. P. STEVENS & CO. he had not but had been laid off. Cruze again reminded him that he had quit and read the termination papers. This ex- change went on several times until finally Montgomery stated that Cruze was firing him, which Cruze denied. Montgomery asked why Cruze would not put him back to work. Cruze again told him that he quit on Friday and had read the termination slip, that his job had been posted.'" that Cruze's hands were tied, and that that was all there was to it. According to Cruze, Montgomery then said that he would see Cruze at the National Labor Relations Board. I do not credit Cruze's testimony to the effect that a rea- son for not rehiring or reinstating Montgomery on April 4 was the fact that his job had been vacated and had been posted on April 4. Cruze concedes that nobody signed up for Montgomery's job, the Company used temporary relief on the job to do Montgomery's work until such time as they trained someone else and put them on the job, and he did not know on April 4 whether or not the job had been filled. These factors play a considerable part in my determination that Cruze was not being candid when he gave the job post- ing as a reason for not offering Montgomery his job back. His stated reasons for not rehiring Montgomery, including the various other reasons he advanced regarding prior work performance, were dealt a telling blow by the following tes- timony of Cruze: Q. (Ms. Nelson) On April 4, did you offer Mr. Montgomery his job back? A. No. Q. Could you tell me the reason why? A. No, ma'm. Although I have some difficulty with Montgomery's testi- mony about his meetings with Cruze on April 1 and 4, raised by his inconsistent testimony about the times of the meetings, his claim that the separation report was crumpled when it was not, and his tendency in other instances to enlarge on the facts, I credit his claim that he did not quit as Cruze claims. The reasons advanced by Cruze not to take Montgomery back are not believable, nor were they deliv- ered in a convincing manner. Cruze impressed me as an overly apologetic witness, consciously dissembling on mat- ters to be considered critical. Neither witness was a model of credibility in terms of demeanor or consistency, but I observed Montgomery to be the more believable on the issue of whether or not he quit and the content of the meetings of April I and 4. Further- more, I believe it reasonable to conclude that Montgomery would not have returned the second time on April I had he quit, nor would he have returned merely to ask if he needed a doctor's excuse had he been aware he had quit or been terminated. I am persuaded that Montgomery was indeed upset over his confrontation with James Wimmer when he first visited Cruze and that he asked for a temporary layoff. which Cruze parried with advice that Montgomery would need a doctor's certification to secure leave. I am convinced that when Montgomery left to seek a doctor's statements to war- rant leave or temporary layoff, Cruze seized on Montgom- ery's comment that he would quit if he could not obtain a 12 According to Cruze, the job was posted for 48 hours. layoff and completed thie termination of emploment tform showing Montgomiery had quit and should not h rehired. When Montgomery returned seeking the proper form for the doctor. Cruze confronted him with the completed termi- nation form. Montgomery protested. ('ruze did not relent. and Montgomery left. In my opinion. Cruze effectivel dis- charged Montgomery by telling him he had quit, on both April 1 and 4, when Montgomery had not done so but had. rather. sought the requisite doctor's report to secure a layoff or leave in lieu of the other alternative of quitting that he had stated as a possibility. From April 5 through April 9. 1977. Respondent posted a notice to its employees, measuring 19 by 25 inches. At the top of the notice, in large red letters, was the statement "SIGNING AN ACTWU UNION CARD CAN HAVE SERIOUS CONSEQUENCES." Below that legend. in small black type but with certain words in red (and in larger size than the black type. hut smaller than the legend quoted, to emphasize certain points), the notice advised em- ployees of their right to sign or refuse to sign a "blue card,." and further advised them to read the card carefully. understand what it meant, and "BEWARE" of how the Union used the cards. Below that message Respondent af- fixed a copy of a union card printed on blue paper an mea- suring 8 by 10-1/2 inches. With the exception of the head- ing on the card, which reads "Amalgamated Clothing and Textile Workers' Union," as opposed to the title "Textile Workers' Union of America" which appears on the cards signed by Thurmon and Montgomery, it reads the same as the actual cards utilized by the Union. In the margins on both sides of this large card facsimile Respondent entered comments regarding the legal effect of signing such a card. Below the card the notice has a subheading "YOU SHOULD ALSO KNOW!" in red. Under this subheading there are four numbered paragraphs. In the first paragraph Respondent states that at several J. P. Stevens plants em- ployees had signed union cards in anticipation of an Na- tional Labor Relations Board election, but since the Union had won only I of 14 elections at the Company, it was now afraid to let the employees vote and was trying to get a majority of the employees to sign the cards and then force the Union on the employees "through legal technicalities." The second numbered paragraph states that signing a card is a serious matter which could result in having a union forced on them, that it would be unwise to sign a card unless the employee is willing to turn job rights over to "union outsiders." that employees have a legal right to re- fuse to sign the cards and should not sign one unless they want to be unionized, and if anyone threatens, harasses, or puts them under undue pressure to sign a card, "let our supervisor know and we will put a stop to it." Paragraph 3 tells the employees that if they signed a card and then later changed their minds, they would have considerable diffi- culty in getting it back, and they should therefore think carefully before signing anything "as serious as a union card." Paragraph 4 reads, "No one who signs a card or joins the union will get preferential treatment over those who refuse to sign or join and vice versa." This statement is in red ink, followed by a subparagraph in black reading. "[lf you have any other questions about blue cards ask any " The union cards are printed on blue paper. 213 DECISIONS OF NATIONAL LABOR RELATIONS BOARD member of management and you will get a truthful an- swer." On May 26, 1977, the Company posted another notice, which remained posted for about a week on all eight bulle- tin boards in the plant. This notice measures 9 by 12 inches and is headed, in large green letters, "Blue Card Facts." Immediately below it is a reproduction of the charging union's authorization card. Below that in capital black let- ters is the following: Quite Often Employees Sign Union Cards Similar To The One Copied Above, Simply To Get The Union Organizer "Off His Back." It Requires A Strong Willed And Loyal Employee To Withstand The Repeated Harassing Contacts Made By Union Organizer Or Pusher. We Are Grate- ful That We Do Have These Strong Willed And Loyal Employees. The Union Card Can Be Used As A Legally Binding Document. You Should Not Sign It Unless It Is Thor- oughly Understood And You Are Willing To Abide By Its Consequences. At the bottom of the notice appears the statement, in green, "Signing A Blue Card Can Have Serious Conse- quences." On or about June 7, 1977, Respondent posted another notice, which remained posted until the time of the hearing. This notice measures approximately 10-1/2 by 21 inches and is again lettered in red and black with a blue reproduc- tion of the union card in the upper third of the document. The reproduction of the union card is preceded by the fol- lowing: NOTICE TO J. P. STEVENS & CO., INC. EMPLOYEES SIGNING AN ACTWU UNION CARD CAN HAVE SERIOUS CONSEQUENCES You have a legal right to refuse to sign a blue card, or to sign but before you even consider signing a card READ IT CAREFULLY-UNDERSTAND what the words mean-and BEWARE of how the union uses these cards The following appears below the union card facsimile: REGARDLESS OF WHAT A UNION ORGA- NIZER SAYS ABOUT THESE BLUE CARDS IN AN EFFORT TO GET YOU TO SIGN-CON- SIDER THESE FACTS: I. IF YOU SIGN A BLUE CARD, YOU MAY BE GIVING UP THE RIGHT TO VOTE IN A SE- CRET BALLOT ELECTION-At several J. P. Ste- vens plants employees have signed union cards think- ing that they would get to vote in a secret ballot NLRB election. However, since the union has filed for 14 elec- tions in our Company in the past and has won only I, they are now afraid to let Stevens employees vote their free choice. The ACTWU is now trying to get a major- ity of employees to sign cards and then force their union on the employees through legal technicalities. 2. THEY WANT YOUR SIGNATURE-If you sign one of these cards it can be legally binding on you before the courts and the NLRB. The union wants your signature-but they don't come right out and say it. They say instead "Do not Print". That is typical union doubletalk. 3. IF YOU "DECLARE" THAT THE ACTWU IS YOUR "REPRESENTATIVE IN COLLECTIVE BARGAINING" YOU ARE TURNING CERTAIN OF YOUR INDIVIDUAL RIGHTS OVER TO THE UNION-This means you want the union to be your exclusive spokesman to speak on your behalf with the Company. If the plant becomes unionized by any means, your right to deal with the Company as an individual without union interference is restricted. 4. GIVING THE UNION THE RIGHT TO MAKE DECISIONS ABOUT YOUR "WAGES, HOURS AND ALL OTHER CONDITION OF EM- PLOYMENT" IS LIKE WRITING THE UNION A BLANK CHECK WITH RESPECT TO YOUR JOB RIGHTS-"Wages, hours and all other conditions of employment" are, of course, very important, aspects of your job. If you sign a card you are saying that you want the union to make decisions about these impor- tant things for you. 5. UNLESS YOU WANT TO BE UNIONIZED. YOU SHOULD NOT SIGN A BLUE CARD-Sign- ing a blue card is a serious matter-it can result in having a union forced on you. It would be unwise to sign a blue card just to "Get an organizer off of your back", because of pressure from other employees, to emphasize some problem, or for any other reason, un- less you are willing to turn your job rights over to these union outsiders. You have an absolute legal right to refuse to sign these cards. If anyone threatens you, harasses you or puts you under undue pressure to sign a card, let your supervisor know and we will put a stop to it. 6. ONCE YOU SIGN A CARD, DON'T EXPECT TO GET IT BACK-Our experience has shown that employees who sign union cards seldom succeed in get- ting them back from the union organizers even though they change their minds and ask for their cards back. Don't make a hasty decision-think things through be- fore signing anything as serious as a union card. 7. NO ONE WHO SIGNS A CARD OR JOINS THE UNION WILL GET PREFERENTIAL TREATMENT OVER THOSE WHO REFUSE TO SIGN OR JOIN AND VICE VERSA. DON'T BE MISLED BY WHAT UNION ORGANIZERS SAY! IF YOU HAVE ANY OTHER QUESTIONS ABOUT BLUE CARDS ASK ANY MEMBER OF MANAGEMENT AND YOU WILL GET A TRUTHFUL ANSWER In addition to the various other allegations raised by the complaint, Montgomery testified that in February 1977 he was working when Richard Cruze approached him and said, "Don't you lose them union cards in your pocket." He was carrying union cards in his top pocket of his shirt at that time. Montgomery replied that he was not about to. 214 J. P. STEVENS & CO. Later on that evening Cruze returned and said, "I see you haven't lost your union cards." Cruze testified to having a conversation with Montgomery about 5:30 p.m. in Febru- ary 1977. According to Cruze, he was walking down the alley, and Montgomery was bending over the looms with a bunch of papers in his pocket, and Cruze said, "Robert, the papers in your pocket are going to fall out." Cruze denies telling him not to lose the union cards in his pocket, saying to him that he saw that he had not lost the union cards, or ever discussing union cards with Montgomery at any time. Cruze's version was unconvincingly delivered and struck me as a conscious contrivance. I credit Montgomery's ac- count of the events of that day. W. T. McGinnis, Jr., who was the training supervisor in January 1977, testified that a part of his duties was to orient new employees and that he talked to new employee David Turner on January 25, 1977. During this conversation he told Turner that J. P. Stevens did not want a union in the plant, that it was a nonunion plant, that Turner would nev- er have to join the Union to work in the mill, and that Virginia had right-to-work laws. He told Turner that people would be asking him to sign union cards and that he should give it careful consideration before he signed one, and its also told him if he was ever bothered in any way by individ- uals approaching him about union cards, he should let the Company know about it. McGinnis concedes that he said essentially the same thing to other new employees that he had said to Turner. Turner's recollection of the conversa- tion is that McGinnis said there was probably be somebody coming around with blue cards trying to get him to sign one, and he told McGinnis that he did not know anything about the union, and he doubted that he would sign one. According to David Turner, in April 1977, after the no- tice that was posted on April 5 had been up a few days, Superintendent Richard Hodges came by and asked Turner if he had seen it on the bulletin board. He replied that he had, and Hodges told him that the Company did not need any more of those blue cards." Hodges testified that he 1 After General Counsel unsuccessfully attempted to elicit testimony from Turner regarding statements of Hodges to him about signing one of the blue cards and Turner's memory failed completely on the matter. Turner was shown his pre-heanng affidavit given before the General Counsel on May 24, 1977. After reading the document, he still could not remember what Hodges had said to him and stated that his statement was true at the time that he gave it, but it might not be worded exactly as Hodges put it. General Coun- sel offered the pre-hearing affidavit as a memorandum of past recollection recorded, and I rejected it, reserving to the parties the right to argue the matter of admissibility in their briefs. Respondent took the position at the hearing that it could not be introduced as substantive evidence, and the General Counsel took the position that it should be admitted under Federal Rule 803(5): Recorded Recollection-a memorandum or record concerning a matter about which a witness once had knowledge but how has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memo- randum or record may be read into evidence but not itself be received as an exhibit unless offered by an adverse party. In his post-hearing brief, the General Counsel noted that the admissibility of a memorandum of past recollection recorded is governed by the circum- stances of each case and then contended that because the affidavit was sworn on May 24, 1977, approximately 6 weeks after the posting of the notice in question, the affidavit was sworn to while the events were fairly "fresh" to the affiant and occurred "at or near the time of the events" and cited Wig- asked Turner if he had read the blue card notice and then told him that the Company did not need the Union. He denies asking him any questions about his or any other employees' union activity or whether he had signed a blue card. There is no substantial difference between the testi- monies of Turner and Hodges, and I conclude that Hodges. by calling Turner's attention to the notice and informing him that the Company did not need anymore of the blue cards, conveyed to him what the notice already made clear-Respondent did not want its employees to select the Union as their representative. B. Final Conclusions Respondent has a history of unlawfully retaliating against union organizational efforts that has continued for some 14 years'5 without respite or deviation. Both the Board and the courts have repeatedly found J. P. Stevens in violation of the Act,'6 and the record of this continuing litigation reveals an unparalleled recidivism. I have taken note of this prior history in arriving at my conclusions in this case, but I am convinced that even if this history did not exist, the evidence before me, standing alone, requires the results I reach. The chronological context of the alleged unfair labor practices and significant surrounding events is quite reveal- ing: 1976 May-The Union commences organizing. August 5 and 6-Group Manager Griffin delivers his speech to all employees. About August 30-Montgomery concededly doing good work. September I-Montgomery is warned for intimidat- ing Preston. Respondent therefore obviously had knowledge of his union activity by September I. September 7-Montgomery and Thurmon openly declare their stand for the Union. more on Evidence in support of this contention. I have considerable discre- tion to receive into evidence hearsay statements, but I am of the opinion that the affidavit, taken by the very General Counsel who tried the case after a charge had been filed, is in the nature of a post lrtam motam statement to be treated with caution. I am also mindful of the generally well established pnnciple, which Respon- dent points out, that pre-trial affidavits cannot stand on their own as sub- stantive evidence. In this connection I have examined the Board's recent Decision in Alvin . Banr and Co., Inc., 236 NLRB 242 (1978), which in- volved the substantive use of prior inconsistent statements, and I find the facts warranting use of affidavits as substantive evidence in that case to be distinguishable from the facts in this case. Furthermore, I note Turner's testimonial uncertainty about the matter in that he testified that the state- ment he made was true at the time that he made it, "but it might not be exactly how he put it, you know." This hedging by Turner. together with his absolute failure of recollection of something so significant as an inquiry from a supervisor regarding the signing of union cards at a time Turner specifi- cally remembered everything else that Hodges had said with regard to the notice, leads me to believe that all that transpired was that Hodges asked Turner if he had read the notice and then either told him either that the Company did not need any more of the union cards or that the Company did not need the Union. I shall not belabor the subject further inasmuch as I am persuaded that my ruling at the hearing was correct, and I hereby reaffirm my ruling excluding Turner's affidavit from the record as substantive evi- dence of a violation. ' J. P. Stevens and Co., Inc., 157 NLRB 869 (1966). 1t It would be superfluous to cite the multiple cases decided over the years. 215 DECISIONS OF NATIONAL LABOR RELATIONS BOARD September 15-Montgomery is verbally warned for alleged unsatisfactory work. September 15-Thurmon receives his one and only written warning in 15 years. October I-Montgomery warned for allegedly threatening Robertson. October I-Notice to employees posted warning of discipline for threatening employees with physical vio- lence for refusing to sign a union card and soliciting employees to report "threats." October 20-Montgomery is given verbal warning for alleged unsatisfactory work. December 29-Weaver analysis shows Montgomery doing good work. 1977 January 25-Supervisor McGinnis tells new em- ployee Turner that Stevens does not want a union in the plant, he would never have to join a union, and to report to the Company if he is bothered by individuals soliciting union cards. McGinnis concedes that he has told the same thing to other new employees. February-Plant Manager Cruze makes remarks to Montgomery with regard to union cards in Montgom- ery's pocket. March 25-Antiunion employee James Wimmer tells Montgomery, in the presence of Supervisor Wal- ter Altice, that he is going to shut off Montgomery's looms so he will not make money. Altice says nothing in Montgomery's presence. Altice later that day gives Wimmer a verbal warning for complaining about Montgomery. March 30-Montgomery is physically grabbed by James Wimmer. Montgomery reports this to Altice. Altice says he will "talk" to Wimmer and later give a verbal warning to Wimmer about threatening Mont- gomery. March 31-Montgomery files assault charges against James Wimmer. April I-Altice issues a written warning to Wimmer on making threats of physical violence. Respondent posts a notice warning employees against "threats, harassment or physical violence of any kind." Montgomery is discharged. April 4-Montgomery is refused reinstatement. April 5-Respondent posts a notice to employees with regard to consequences of signing union cards. Between April 5 and 9-Superintendent Richard Hodges asks employee David Turner if he has read the April 5 notice and tells him that the Company does not need any more union cards. May 26-Respondent posts a notice about conse- quences of signing a union card. June 7-Respondent posts another notice about the "serious consequences" of signing a union card. This chronology reveals an unfolding pattern of anti- union propaganda issued by Respondent, punctuated with unfair labor practices. I agree with the General Counsel's contention that Group Manager Griffin's August 5 and 6, 1976, speech was designed to and had the calculated effect of informing the employees that selection of the Union would be futile and cause harm to the employees. Specifically, I find that the speech conveys the message that if the Union were to get in, working conditions would get worse, and then promises im- provements if the employees pull together with Respon- dent. This is essentially a "carrot and stick" message, and I conclude that Respondent thereby unlawfully threatened worsening working conditions in retaliation for union suc- cess and unlawfully promised unspecified improvements in the conditions if the employees rejected the Union. Both the threat and the promise are independent violations of Section 8(a)(l) of the Act, intefering with, coercing, and restraining employees in the exercise of their Section 7 rights. Similarly, the construction of the specter of a strike doomed to fail, with accompanying "trouble and tension and strain and strife-which often ends up in serious vio- lence" and other hardships visited on the employees, ac- companied by unequivocal statements that Respondent's stance is implacable resistance to a union selected by its employees, makes it plain that it would be Respondent with its obdurate opposition that would cause these hardships to fall on the employees if they defy Respondent's wishes in the matter. This is no reasoned discussion of the pros and cons of representation. It is a plain threat of reprisals against employees by destroying or diminishing their eco- nomic well-being because they have the temerity to use their lawful rights. I further find that the Respondent deliberately raised fears that it would gain knowledge of the identity of card signers by telling them: Nowadays, Unions often try to get into a plant on the basis of the Union cards, without employees hav- ing voted on the matter at all. Where this happens, the signed Union cards are taken to a public hearing, usu- ally at the Court House. The cards are laid on the table, and people are put on the witness stand. They are questioned as to whether the cards do bear their true signature and as to the circumstances of their sign- ing the cards. In such situation, as you can see, the signed Union cards are anything but confidential. They become pub- lic as everything in a Court proceeding is made public. Now it is for you to decide whether this gives you any concern or not. But the point is that when the Union assures you that the cards will always and necessarily remain confidential, they may be very seriously mis- leading you. I am persuaded that this message is violative of the Act within the holding of The Lundy Packing Company, 223 NLRB 139 (1976), because the most likely concern that employees might have about being revealed as a card signer is a fear that Respondent would know and retaliate. The speech seeks to capitalize on that fear and deter would-be signers. I am not impressed by the various self-serving attempts throughout the speech to portray unlawful statements as 216 J. P. STEVENS & CO. legitimate efforts to inform. This is a stratagem common to skilled evaders of the Act. and the long history of J. P. Stevens in labor litigation demonstrates a familiarity with carefully concocted schemes to violate the Act without de- tection. The unfair labor practices discussed hereinafter confirm that expertise, and lend meaning to the speech. In sum, I find that the speech, delivered against a backdrop of' continuous unfair labor practices by Respondent at other of its locations over a long period of years, transgressed the bounds of Section 8(c) of the Act and violated Section 8(a)(l) of the Act. Its overriding message to the employees is that selecting a union would be futile and to stay away from the Union or be injured by Respondent's retaliatory measures. I have found that Robert Montgomery did threaten Ms. Preston with loss of her job if she did not sign a union card. That he may not have been able to effectuate the threat does not excuse it or make it less a threat. I have also found that he invited Jimmy Robertson to settle the matter out- side when Robertson told him he had destroyed his union card. The invitation is susceptible of different meanings, but I find it unnecessary to discourse thereon. Montgomery's conduct in neither instance is to be condoned, but the pun- ishment meted out in the form of written warnings on Sep- tember I and October I, 1976, is in striking contrast to the verbal warning dealt James Wimmer on March 30, 1977. for physically grabbing Montgomery. Altice, although told of the details by Montgomery, merely warned Wimmer about threats. Respondent knew by September 1, from Preston's complaint, that Montgomery was for the Union. and it also well knew that James Wimmer was against the Union. I find it more than coincidence that the antiunion employee got the lesser penalty for the more severe miscon- duct. Altice's failure to speak up when Wimmer, in his pres- ence on March 25, 1977, threatened to cut off Montgom- ery's machines amounts to condonation of Wimmer's statements and confirms my opinion that Respondent was more lenient with those disposed to its antiunion views that with union adherents. Altice's private verbal warning to Wimmer later that day that he should stop complaining about Montgomery and leave him alone does not appear a sufficient response to Wimmer's conduct in his presence or anything more than a pro forma slap on the wrist. Accord- ingly, I find that although Montgomery's statements to Ms. Preston and Robertson may have merited discipline, the disparity in severity between the warnings given to the anti- union employee and those given to the union employee warrants a conclusion that Montgomery received the writ- ten warnings on September I and October I, 1976. because of his union sympathies and that the written warnings were, therefore, designed to discourage his union activity and vio- lated Section 8(a)(3) and ( 1I) of the Act. Respondent's prep- aration of the warnings before it even talked to Montgom- ery about the incidents bespeaks its eagerness to intimidate him him to refrain from soliciting at all, without bothering to fairly investigate the circumstances of the subject matter of the written warnings, and an unseemly haste and ready willingness to accept the evidence of antiunion employees without further inquiry. Inasmuch as Montgomery was concededly doing satis- factory work after retraining in late August 1976 and was doing good work when a weaver analysis was performed on December 29 and inasmuch as I find no persuasive credible evidence in the record that his work was deficient during the intervening period, I find that the verbal warnings given him for unsatisfactory performance on September 15, 8 days after he forthrightly announced his stand for the Union to Respondent, and October 20 were predicated on pretextual reasons and were in fact given because of his continued union advocacy and were violative of Section 8(a)(3) and (I) of the Act. Thurmon's written warning of September 15 followed a week of harassment and piling on of work by Altice com- mencing the day after Thurmon openly declared his union sentiments on September 7. The swift sequence of events. combined with the deep-seated antiunion hostility of Re- spondent, leads me to believe that Altice deliberately cre- ated work for Thurmon to the extent that he was overbur- dened and then seized on Thurmon's inabilit 5 to get the warp started due to the work created for him as a pretext for the written warning. Thurmon, an admittedly outstand- ing employee, was caught in a vise. If he worked on the warp, he would not get the flagged machines repaired, which would have left him open to warning on that score. Altice created the situation of too many flagged looms be- cause Thurmon had announced he was for the Union. Altice's action in this respect. although not alleged, was discriminatory in itself and was designed to curb Thur- mon's enthusiasm for the Union. Altice then compounded his actions with his reaction to the warp incident, which would probably have been avoided if Thurmon had not been loaded with make-work. Thurmon was not insubordi- nate and did nothing more than follow established priori- ties. Significantly, he continued to be an outstanding em- ployee after he received the written warning. I find that Altice, after "riding" Thurmon for a week. seized on the opportunity to give him his only written warning in 15 years in order to impress upon Thurmon the disadvantages of being a union supporter and thereby violated Section 8(a)(3) and (I) of the Act. Although in other circumstances I might find Respon- dent's October I notice to be appropriate, I am persuaded that it was posted to discourage employees from soliciting union cards and to encourage them to report those who solicited. Even Robertson did not claim he was threatened with physical violence. Indeed. his complaint was that Montgomery was plaguing him about signing a union card. I have considerable doubt. after viewing the two men, that Robertson had any fear of Montgomery. That he did not is evidenced by his defiant language in telling Montgomery that he had torn up his card and thrown it in the trash can. and Montgomery could go get it if he wanted it. Apart from the two incidents for which Montgomery was disciplined. there is no evidence or even a slight indication that any other card solicitor was in any way bothering, harassing, or "threatening" employees. The Montgomery incidents pro- vided Respondent with a convenient pretext upon which to base its October I notice, and the haste with which it was prepared and posted suggests an intention to capitalize on every incident. no matter how limited, to issue broad ukases calculated to dampen prounion ardor and activities. Ac- cordingl. I conclude and find that the October I notice was 217 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but another device of Respondent designed to unlawfully discourage union solicitation and violated Section 8(a)(1 ) of the Act. Training supervisor McGinnis' admitted statements to new employee David Turner on January 25, 1977. which he concedes making to other new employees during their ori- entation and which were not solicited by Turner, continue the pattern of company interference with employee rights. McGinnis' statement to Turner that J. P. Stevens did not want a union in the plant could not help but impress on this employee the danger of being an object of his employer's disfavor, with consequences adverse to his employment sta- tus flowing therefrom. McGinnis made no effort to reassure him on this score, and his instruction that Turner should report any person bothering him in any way about signing union cards amounts to nothing more than a bald direction to inform the Company of the identities of solicitors. State- ments of the sort delivered by McGinnis. even if delivered in an overtly friendly manner, are reasonably calculated to impress on an employee that union activities by him would subject him to his employer's wrath and that one way of staying in the company's graces would be to abjure such activities and report on those who do not. I therefore find that McGinnis' statements interfered with, restrained, and coerced Turner in the exercise of his Section 7 rights and violated Section 8(a)(1) of the Act. Plant manager Cruze's remarks to Montgomery, in Feb- ruary 1977, with regard to union cards in Montgomery's pocket confirm his knowledge of Montgomery's continuing union activity. I have found that Cruze discharged Mont- gomery on April 1, 1977, and refused to take him back, for untenable reasons, on April 4, 1977. 1 further find that inas- much as Cruze's reasons for terminating him are unbeliev- able, they may properly be regarded as pretextual. It is axiomatic that the giving of a false reason for an action warrants an inference that the real reason is unlawful. The combination of false reasons for separation and refusal to reinstate, Respondent's longstanding strong hostility toward the Union's organizational efforts, Montgomery's active role on behalf of the Union, Respondent's knowledge of that role, and Respondent's other unfair labor practices designed to deter union activity convinces me that Mont- gomery was discharged and refused reinstatement in order to discourage his union activities and those of others, and these actions against him were in violation of Section 8(a)(3) and (1) of the Act. The evidence does not support the allegation that his discharge and refusal of reinstate- ment violated Section 8(a)(4) of the Act. I have carefully examined the April, May, and June, 1977 notices to employees and conclude that the message to employees in the April and June notices, "If anyone threat- ens you, harasses you or puts you under undue pressure to sign a card, let your supervisor know and we will put a stop to it," may reasonably be interpreted as an invitation to employees to report the identities of solicitors who in any way approached them in a manner subjectively unaccept- able to the employee being solicited, wheresoever the solici- tation might occur. In my opinion, this broad invitation to inform tends to restrain and coerce employees in their right to engage in protected activity and violates Section 8(a)(1) of the Act." The earlier. October I notice dealt with the same matter after the incidents with Montgomery reported by Ms. Preston and Jimmy Robertson. and there is no evi- dence of any other incidents of like or more serious nature. Montgomery had been terminated, and it would seem that the repeated invitations to report by Respondent were grounded on nothing more than its continuing attempt to dissuade union activism by intimidating employees inclined to solicit authorization cards. All three of the notices contain the warning to employees that signing a union, or "blue," card can have "serious con- sequences." Respondent contends that the "consequences" listed on the notices are the ones referred to and are indeed "serious consequences" which it has an absolute right to explain to its employees. Interestingly, the notices only refer to serious consequences caused by employee or union ac- tion and leave to the imagination of the employees what other "serious consequences" might arise, if any, from em- ployer action. The selective listing of consequences consid- ered serious by the Employer suggests its true purpose to be discouragement of card signing. I find Respondent's efforts to distinguish between "serious consequences" and "serious harm" to be a distinction without a difference. The intent is obvious, and wordplay cannot change it. As Respondent concedes, a "serious harm" statement has been found illegal in an early J. P. Stevens case." The Board also found a "serious harm" statement illegal in another J. P. Stevens case." The import of the message, delivered in the context of the other unfair labor practices found herein and the overall pattern of Respondent's repeated violations of the Act, was not changed by the substitution of "consequences" for "harm." I am persuaded that any distinction between the two would not be readily apparent to an employee audi- ence unskilled in the nuances of legal legardemain. The Board has recently found a statement that "the signing of a card can be very serious" to be violative of Section 8(a)( I) in the context of accompanying employer comments to the effect that the identities of card signers could become known in the course of cross-examination:.0 This latter con- text is supplied by Griffin's speech stating that cards were not confidential and became public in a public hearing. For the foregoing reasons, I conclude and find that the notice statements to employees that signing a union card could have "serious consequences" constituted threats to employ- ees, in violation of Section 8(aX 1) of the Act. The remarks of Superintendent Hodges to employee Da- vid Turner, a few days after April 5, drawing his attention to the April 5 notice, containing a union card, and telling him either that Respondent did not want the union or that Respondent did not need any more union cards put Turner on notice that signing a union card would incur Respon- " Sunnyland Packing Cnpaon). 227 NLRB 590. 595 (1976): Poloron Prod- ucts of Mississippi. Inc., 217 NLRB 704. 707 (11975)1 Lutheran Hospital of Milwaukee. Inc.. 224 NLRB 176. 178 t976): Bank o S I.ouis. 191 NLRB 669. 674. "8J. P. Stevens and Co.. Inc. 157 NLRB 869. 872 (1966), enfd. 380 F.2d 292 (2d Cir. 1967). cert. denied 389 U.S. 1005 (1967} . P. Stevens & Co. Inc. 167 NLRB 266. 302 ( 1967). enforcement denied in perlinent parn 406 F.2d 1017 (4th Cir 1968). 20 L. S. Ayres & Company. a Division o 4ssciated Drn (;oods (,rporatiiln. 221 NLRB 1344 1976). 218 J. P. STEVENS & CO. dent's displeasure and restrained and coerced him in the exercise of his statutory rights, in violation of Section 8(a)( 1) of the Act. I do not find the warnings issued to Robert Montgomery on August 25 and 26. 1976. to be unlawful, because the General Counsel has not shown that Respondent had knowledge of Montgomery's union sympathies prior to September 1. 1976, and I cannot infer such knowledge from the record before me. Nor do I find the comments of Cruze to Montgomery in February 1977 with regard to the union cards in Montgomery's pocket to be unlawful interrogation as the complaint alleges. This latter incident establishes Re- spondent's knowledge of Montgomery's union adherence at that time, but no more. IV. TIlE EFFSCrI OF lt UNFAIR I.ABOR PRACTII(CES UPON COMMERCE The activities of Respondent set forth in section 111, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and suh- stantial 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. Upon the basis of the following findings of fact and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By issuing a written warning with regard to his work to Donald Thurmon on September 15, 1976, because he engaged in union activities and in order to discourage his union activities, Respondent has violated Section 8(a)(3) and () of the Act. 4. By issuing written warnings to Robert Montgomery on September I and October 1, 1976, because he engaged in union activities and in order to discourage his union activi- ties, Respondent has violated Section 8(a)(3) and (1) of the Act. 5. By issuing verbal warnings with regard to is work per- formance to Robert Montgomery on September 15 and Oc- tober 20, 1976, because he engaged in union activities and in order to discourage such activities, Respondent has vio- lated 8(a)3) and (1) of the Act. 6. By discharging Robert Montgomery on April I. 1977. and thereafter refusing to reinstate him, in order to discour- age union activities among its employees, Respondent has violated Section 8(a)(3) and (1) of the Act. 7. By threatening its employees with reprisals if they sup- ported the Union, Respondent has violated Section 8(a)( 1) of the Act. 8. By promising its employees unspecified benefits if the, rejected the Union, Respondent has violated Section 8(a)(1) of the Act. 9. By telling its employees that the identities of union card signers would become public knowledge, Respondent has violated Section 8(a)( ) of the Act. 10. By telling employees that the signing of union cards would have "serious consequences," Respondent threat- ened its employees in violation of Section 8(a)(1) of the Act. II. By inviting and encouraging emploees to report the identities of union card solicitors, Respondent has violated Section 8(a)( ) of the Act. 12. The unfair labor practices set forth hereinabove are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. 13. Respondent has not committed any other unfair la- bor practices alleged in the complaint. Tilt RiM I-I)Y In order to remedy the unfair labor practices found herein, my recommended Order will require Respondent to cease and desist from further violations: to expunge the warning of September 15. 1976. given to Donald Thurmon and the warnings of September I and 15, and October I and 20, 1976, given to Robert Montgomery from Respon- dent's records; and to offer unconditional reinstatement to Robert Montgomery to his former job and make him whole for all wages lost by him as a result of his unlawful dis- charge. such backpay and interest thereon to be computed in the manner prescribed in F. W Woolworth Companr, 90 NLRB 289 (1950). and Florida Steel Corporation, 231 NLRB 651 (1977). n2 In addition to the foregoing, my recommended Order will require Respondent to post an appropriate notice to all em- ployees at all of its plants and will further require that the notice be read to all its employees at the Angle-Ferrum plants involved herein by an official of Respondent in the presence of a Board agent. The posting requirement is con- sistent with prior Board direction with respect to Respon- dent, and the reading of the notice to employees is a nec- essary remedy inasmuch as it appears that some of the employees at Rocky Mount do not read well, if at all. In the event the appropriateness of this broad notification remedy has been affected by Respondent's compliance if any' with other recent Board and court orders. I am confident that the Board will modify it if the Board deems modification appropriate. [Recommended Order omitted from publication.] 21 See. generally. Isis Plumbhing & Heaing Co, 138 NLRB 716 (1962) 22 J Stevens & Co., Inc., 220 NLRB 270 (1975) 219