Diamond Hosiery Corp.

532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All production engineers, quality control engineers , senior planning engineers , engineers II and III, chemists I, and chemist II nonsupervisors , excluding contact maintenance men, guards , all other employees , senior process engineers , section heads in the planning division, chemists III , chemists II supervisors , and all other supervisors within the meaning of the Act.4 " [Text of Direction of Election omitted from publication.] 4 As the Petitioner has indicated its willingness to have an election held in any unit found appropriate by the Board, the Employer's motion to dismiss the petition on the ground that the Petitioner failed to propose an appropriate unit is denied. DIAMOND HOSIERY CORPORATION and AMERICAN FEDER- ATION OF HOSIERY WORKERS, AFL. Case_ No. 11-CA-444 (Formerly Case No. 34-CA-444). June 11, 1953 DECISION AND ORDER On March 17, 1953, Trial Examiner Alba B. Makin issued his Intermediate Report in the above -entitled proceeding , finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter , the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board ' has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed . The rulings are hereby affirmed . The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case , 2 and hereby adopts the findings , conclusions , and recommendations of the Trial Examiner , with the exceptions , modifications, and additions set forth below.3 1. We do not adopt the Trial Examiner ' s finding that Super- visor Ina Amos' accusing employees McLamb and Freeman of being "ringleaders with the Union," and her statement that employee Worrell was "with the Union," were violations of Section 8 (a) (1). These remarks were in the form of statements rather than questions , and the language employed was not of the type which we have held is intended to elicit a reply con- i Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles]. 2 The Respondent's request for oral argument is denied, because the record, exceptions, and brief, in our opinion, adequately present the issues and the positions of the parties 3 The date "October 1951" in paragraph numbered 10 of Conclusions of Law is hereby corrected to ''April 1952." 105 NLRB No. 66. DIAMOND HOSIERY CORPORATION 533 cerning union activity, so as to constitute unlawful interro- gation.4 2. We agree with the Trial Examiner's finding that the Respondent's discharge of Joe Steelman was discriminatory, in violation of Section 8 (a) (3). The Respondent not only threatened Steelman with discharge for his union activity some 3 months and then again a few weeks before his discharge, but also told a number of employees afewdays after his discharge that he had been discharged for his union activity. The Respondent claims that Steelman was discharged because he made a false representation to employee Geraldine Davis to induce her to leave the employ of the Respondent. However, Davis informed the Respondent, prior to Steelman's discharge, that she was not going to leave despite Steelman ' s representation to her. Thus, any seriously harmful effect that might have been caused by Steelman ' s alleged misrepresentation nevermateri- alized. Under such circumstances, the discharge of Steelman was, in our opinion, so unduly severe a penalty as to indicate that the alleged misrepresentation could not have been the real reason for the discharge. In view of the foregoing, and upon the entire record, we find, as the Trial Examiner did, that the Respondent seized upon the Geraldine Davis incident as a pretext for discharging Steelman because of his union activity. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Diamond Hosiery Corpo- ration, High Point, North Carolina , its officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in American Federation of Hosiery Workers, AFL, or any other labor organization of its employees, by discriminating in regard to the hire and tenure of their employment or any term or condition of employment. (b) Threatening employees with loss of their jobs if they assist American Federation of Hosiery Workers, AFL, or any other labor organization of its employees. (c) Informing its employees that an employee has been dis- charged because of his activities on behalf of American Federation of Hosiery Workers, AFL, or any other labor organization of its employees. (d) Threatening to close the mill in order to forestall union membership and activity by its employees. (e) Threatening its employees that those who assist the Union will not be assigned machines to operate. (f) Threatening employees that those talking about American Federation of Hosiery Workers, AFL, or any other labor organization of its employees , will be discharged. 4Cf. Old Town Shoe Company, 91 NLRB 240. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (g) Threatening its employees that certain employees are about to lose their jobs because of their activity on behalf of American Federation of Hosiery Workers, AFL, or any other labor organization of its employees. (h) Threatening its employees that those discharged by Respondent will be unable to obtain other employment in High Point because the other mills do not have unions. (i) Interrogating its employees concerning their union mem- bership and activities. (j) Promising employees that if they are not members of the Union help will be given them in getting their jobs back. (k) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization , to form labor organizations , to join or assist American Federation of Hosiery Workers, AFL , or any other labor organization , to bargain collectively through represent- atives of their own choosing , and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection , or to refrain from any or all of such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Joe Steelman immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority and other rights and privileges previously enjoyed. (b) Make whole Joe Steelman for any loss of pay he may have suffered by reason of the Respondent ' s discrimination against him in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (c) Post at its plant at High Point , North Carolina , copies of the notice attached hereto marked "Appendix A."i Copies of said notice, to be furnished by the Regional Director for the Eleventh Region, shall , after being duly signed by the Respond- ent's representative , be posted by the Respondent and main- tained by it for sixty ( 60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced , or covered by any other material. (d) Notify the Regional Director for the Eleventh Region, in writing, within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith. SIn the event that this order is enforced by a decree of the United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." DIAMOND HOSIERY CORPORATION 535 APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT threaten to close the mill because of the activities of employees on behalf of American Federation of Hosiery Workers, AFL, or any other labor organization of our employees. WE WILL NOT threaten our employees withloss of their jobs or that they will not be assigned machines because of their activity on behalf of American Federation of Hosiery Workers, AFL, or any other labor organization of our employees. WE WILL NOT threaten to discharge employees for talking about American Federation of Hosiery Workers, AFL, or any other labor organization of our employees. WE WILL NOT inform our employees that any employee has been discharged because of his activities on behalf of American Federation of Hosiery Workers, AFL, or any other labor organization of our employees. WE WILL NOT threaten that employees dischargedbyus will not be able to find other employment in High Point because the other mills do not have unions. WE WILL NOT interrogate our employees concerning their membership in and activities on behalf of American Federation of Hosiery Workers, AFL, or any other labor organization of our employees. WE WILL NOT promise our employees that if they are not members of the union they will receive help from us in getting their jobs back. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization , to form labor organizations, to join or assist American Federation of Hosiery Workers, AFL, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL NOT discourage membership in American Federation of Hosiery Workers, AFL, or any other labor organization of our employees , by discriminating in any 291555 0 - 54 - 35 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manner with regard to their hire and tenure of employment, or any term or condition of employment. WE WILL offer to Joe Steelman immediate and full rein- statement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges previously enjoyed. WE WILL make whole Joe Steelman for any loss of pay suffered by him by reason of the discrimination practiced against him. All our employees are free to become , remain, or refrain from becoming members of the above-named union or any other labor organization except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the amended Act. DIAMOND HOSIERY CORPORATION, Employer. Dated .. .............. By.................................................... (Representative ) (Title) This notice must remain posted for 60 days from the date hereof and must not be altered, defaced , or covered by any other material. Intermediate Report STATEMENT OF THE CASE Upon a charge filed March 26, 1952, by American Federation of Hosiery Workers, AFL, herein called the Union, and served upon Respondent March 29, 1952, the General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board, by the Regional Director for the Fifth Region (Baltimore , Maryland), on September 4, 1952, issued his complaint against Diamond Hosiery Corporation , herein called Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat 136, herein called the Act Copies of the charge, com- plaint, and notice of hearing were duly served upon the parties. With respect to the unfair labor practices the complaint alleged that since about October 1, 1951, Respondent has interfered with, restrained , and coerced its employees in their rights to join, form, or assist unions, by threats of reprisal or force or promises of benefit, by interrogations , by threats of loss of employment , by threatening to close down its plant, and by promises of advantages and rewards , and that on or about March 21, 1952, Respondent discharged Joe Stellman , an employee , and since that date has refused to reinstate him, because of his membership in or assistance to the Union or because he engaged in concerted activities. In its answer filed September 15, 1952, Respondent admitted the commerce facts alleged in the complaint , admitted that the Union is a labor organization , admitted that it discharged Joe Steelman on or about March 21, 1952, but denied the commission of any unfair labor practices. The answer averred further that Respondent discharged Steelman " because of disloyalty to the Respondent and because he made false or misleading representations to another employee of the Respondent in an effort to induce his fellow -employee to leave the employment of the Respondent or to intimidate her - Prior to hearing and pursuant to Respondent ' s motion for a bill of particulars, Trial Examiner W. Gerard Ryan directed that the General Counsel furnish certain particulars, which he did. DIAMOND HOSIERYCORR)RAlION 537 Pursuant to notice a hearing was held iii Hight Point, North Carolina, from October 8 through 11, 1952, before Alba B. 'Martin, the undersigned Trial Evaiutuer All parties were represented by counsel, participated in the hearing, and were afforded opportunity to be heard, to examine and cross -examine witnesses , and to introduce evidence pertaining to the issues . Respondent's motion to dismiss the complaint , made at the conclusion of the General Counsel' s case-in-chief , was denied When the saute Motion was renewed ii the coiiclusi m of all evidence, decision was reserved This motion is hereby ruled upon in accordance with the findings and conclusions herein The parties were given an opportunity but waived oral argument Respondent filed a brief , which has been carefully considered Upon the entire record in the case and front observation of the witnesses , I make the following FINDINGS OF FACT L TILE BUSINESS OF TIIE RESPONDENT Diamond Hosiery Corporation, a North Carolina corporation having its principal office and only place of business in High Point, North Carolina, is engaged in the manufacture and sale of nylon hosiery During the year just before the hearing it made purchases at its High Point plant valued in excess of $75,000, at least 50 percent of which originated outside of North Carolina During the same period it sold finished products in value exceeding $ 100,000, at least 51 percent of which was shipped or directed to points outside the State of North Caro- lina Respondent conceded and it is held that it is engaged tit commerce within the meaning of the Act 1L TIIE ORGANIZATION INVOLVED American Federation of Hosiery Workers, AFL, is a labor organization within thte meaning of Section 2 (5) of the Act, III. THE CJNFAIR LABOR PRACTICES A. Organizational background Mr A Philip Goldsmith became president of Respondent corporation (which had theretofore existed under the same name) in about 1941 or 1942, shortly after whit h event Ina Autos (then an employee, later a supervisor ) heard ruinors to the effect that "if tlie^ got tine Pinion in they would probably close the mill ' Prior to his becoming president Mr C,oldsiiutlt had nothing to do with Respondent The union referred to was not identified Ina Amos testified also that from time to time while she worked for Respondent--front about 1941 to 1944 and regularly since October 1948, handbills (presumably union handbills) were passed around the mill On cross-examination by Respondent's counsel employee Doris Meyers testified that when she began working for Respondent in 1948 someone (she could not remember who) told her That if a union "got in there" Goldsmith would close the place down, and she heard the same thought expressed from time to time thereafter Roberta McLarrib, who worked for Respondent during 1951, testified that it was "more or less a general rumor" that Goldsmith would close the plant if the Union "came in." During the summer of 1951, American Federation of I hosiery Workers began efforts to organize Respondent's employees--whether or not this was its first effort not appearing in the record Meetings for the employees were held every Monday night until enough had joined to apply for a charter , which was to November 1951 B. Interference , restraint , and coercion 1. During the time of interest herein, the period beginning 6 months prior to the filing and service of the charge, Respondent's plant at High Point has been under the operation of two vice presidents, A. Donald Brenton and William Schutpan, the latter being in charge of the manufacturing department and the former in charge of the rest of Respondent's operations, which include finishing, administration, and personnel Ben Walker, supervisor of dyeing and preboarding under Schuman, and one of Respondent's witnesses who impressed me as a credible witness, testified on cross-examination that he knew of no written or oral statement setting forth the Company's "policy with respect to the 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union." Elizabeth Garner , a supervisor under Brinton , when asked on cross-examination if there was "any Company policy with respect to what the supervisors should say to the employees about the Union" replied, "It was never told to me " Asked if Mr. Brinton or Mr. Schuman ever said anything to her about what she should say to the girls if they asked her about the Union, she replied, "No, sir." On direct examination Ralph Harbinson, supervisor of shipping who did not impress me as a credible witness, stated that "it has always been the policy of the Company for super- visors not to discuss Union activities or union , any type of union with employees , to not to interfere . . (to) be neutral." On cross-examination by the General Counsel, Harbinson said that was the Company's policy "from the beginning," "since the mill was established in 1929 " He said, however, that Brinton never gave him any instructions concerning the Union Also he recalled no instructions from Schuman Harbinson added that on occasion he has heard Brinton utter words of neutrality to one or several supervisors. On the above evidence and the entire record in the case it is found that under Schuman and Brinton no company policy of neutrality towards the Union was announced to either the super- visors or the employees and that no such policy existed. 2. In November 1951, when the local union representing Respondent's employees was or- ganized, Joe Steelman was elected its first financial secretary and treasurer He had joined the Union October 10, 1951, and had been and was active in getting others to join He went with the Union's organizers to the homes of Respondent's employees and with the organizers tried to persuade the employees to helporganizea local As financial secretary and treasurer Steelman collected dues from members of the local, filled out dues receipts and signed them, saw to it that the members received their receipts, and made out quarterly reports and forwarded them to the Union's main office in Philadelphia, Pennsylvania Steelman testified that on or about December 11, 1951 , as he was working, his supervisor, Ralph Harbinson (supervisor of the shipping department , a part of the finishing department), came up to him and said, "Joe, if you don't quit . monkeying around with that Union and going out with union organizers you will find yourself out of a job " Steelman replied that he understood he had the right under the law to help organize a union Steelman testified that in late February or early March 1952, Harbinson said to him in the plant' s cafeteria one day, " I see you are not paying any attention to what I said about the Union," and Steelman replied, "I told you before that I knew it was my rights." Although Harbinson denied making these statements to Steelman on the two occasions, and denied ever making a statement to Steelman regarding his union activities, I do not credit his denials . By their demeanor on the witness stand Steelman impressed me as the more credible witness, and his testimony is credited Harbinson was Steelman's immediate super- visor in Respondent's organization and his remarks amounted to a direct threat that Steelman would lose his job if he exercised rights guaranteed in Section 7 of the Act I find that Harbinson's remarks` constituted interference, restraint, and coercion of Respondent's employees in the exercise of these rights, Respondent thereby violating Section 8 (a) (1) of the Act. 3 In the fall of 1951 the mending department, a part of the finishing department, received, one by one, several mending machines, which replaced work done by hand In late October of that year, according to the testimony of Doris Meyers, an employee, Ina Amos, her immedi- ate superior and supervisor of the mending department, came to her and said that Mr Schuman (one of Respondent's two vice presidents) wanted the menders to get caught up so they could give the machines a try and see if they could keep up with the work Pursuant to question Amos stated that some girls would be given the machines and the others would be let go. When Meyers asked if she was in line for the next machine Ina Amos said that that was up to Mr Schuman, that if Meyers was "with the Company" she would get the next machine and if she "was not," if she was "working with the Union," then she would not, that Schuman would "fire anybody he caught talking about the Union "i In thus conversation Amos asked Meyers to tell Margie Welborn, another mender, not to talk about the Union at any time in the mill Later the same day, according to Meyers, she called Amos over to her table and "told her to tell Margie herself, that I felt like it was not any of my business." Then Meyers asked i Prior to the reorganization in July 1951 of the finishing department, which included mending, there was a rule against "too much loud and unnecessary talking at all times. Standing around other peoples tables talking or sitting at your table talking to somebody else across the aisle." Insofar as the record shows there was no rule at any time prohibiting talking by employees, and no rule prohibiting talking about the Union during nonworking time. DIAMOND HOSIERY CORPORATION 539 Amos if "Mr Goldsmith (would) close the place down if they got the Union in there" --to which Amos answered that he would, that "he closed a place down in New Jersey because of the Union " When Meyers asked how he could close this plant down, Amos replied that he "could put it in his wife's name and close the mill down and move the machinery out " When Meyers again inquired whether she was in line to get the next machine , Amos said that Schuman had said she would get the machine "if (she) was with the Company but if (she) was working for the Union (she) would not get it." Meyers then asked if the other girls would keep their mending machines, and Amos replied that all would except one, Lil Freeman Amos added that Lil Freeman and Roberta McLamb were on their last legs in there "because they were working for the Union." She added that anyone discharged from Diamond would not be able to get a job at any other mill "because the other mills here didn't have unions." Roberta McLamb, then a mender (but no longer an employee), testified that on about October 22, 1951, Ina Amos came to her table and whispered that not at any time "for my sake as well as for hers, was Ito mention 'you know what "' Roberta McLamb testified further that on about October 23, 1951, she, Doris Meyers, and Margie Welborn went to where Ina Amos was and registered a complaint with her , that during this conversation Ina Amos told Doris Meyers that she would get a machine if she was with the Company and against the Union; that Amos accused the witness and Lil Freeman of being "ringleaders with the Union" and said also that Catherine Worrell, another employee, was "with the Union." Amos said that three girls had come to her and told her that the witness had tried to get them to jointhetlnion or had tried to arrange for "somebody to talk to them " Roberta McLamb testified also that at about the same time Ina Amos, Lil Freeman, and she were sitting together in the cafeteria one day, Ina Amos said that if the Union "came in," Mr. Goldsmith "would close the mill down and move it further South." Doris Meyers testified that on about April 17, 1952, Ina Amos asked her if Lil Freeman belonged to the Union, and added that if she did not belong Amos would help her to get her job back at the plant, that Mrs Leonard (industrial nurse and personnel director) and Mr. Schuman had heard that Freeman was working with the Union, that "somebody had told [Ina Amos] they had seen Lii's car at the Union meeting place", that if Lil Freeman did not belong to the Union, Amos would help her get her job back, for she did not want Freeman to lose her seniority. Freeman was the second oldest in seniority among the menders. Ina Amos denied the statements attributed to her by witnesses Meyers and McLamb She testified that the new mending machines were given to the menders on the basis of seniority and that Doris Meyers, being the fourth oldest in seniority, received the fourth machine which arrived. Accepting this as a fact, it appears that arrival of the machines to replace work being done by hand nevertheless afforded Mrs Amos a fine opportunity to speak against the Union Amos admitted that she customarily lunched in the cafeteria with her employees She testified that when she was away from the plant Lil Freeman was on a 60-day sick leave, beginning in about March 1952 Accepting this as a fact, the forthcoming return of Freeman sometime after April 17, unless she was to be barred because of her union activity, afforded Mrs Amos an opportunity to inquire whether in fact she was an active union member with the triple purpose and result of warning other employees, setting the record straight with higher superiors, and assisting Freeman if she was union proof In the fall of 1951, Meyers, McLamb, Freeman, and Welborn, the four menders who were actively promoting the Union, several times asked mender Clarice Hutchins to come to a certain house on specific evenings to attend meetings to discuss the Union. As Hutchins never attended and did not care to join the Union, the other girls "cracked at" her in the plant One day Ina Amos found her crying at her table and Hutchins explained that she was tired of being talked about for not going to a meeting or joining the Union Amos took the matter up with Mr. Schuman, vice president, and told Hutchins Schuman had said to tell her she was free to use her own judgment about joining or not joining the Union, and that if she did not want to, to tell the other girls she was not interested. About the same time, at lunch in the cafeteria, Ina Amos told a group of menders who had not joined the Union that if they did not want to join "they can't force you into it " Amos never told Meyers, McLamb, Freeman, and Welborn that they had a right to join and assist the Union if they wanted to. According to the credited testimony of Roberta McLamb it was customary , despite the rule forbidding it, for the menders to leave their machines or tables from time to time and go to other tables and talk. Ina Amos did the same thing Yet the only warning notice Ina Amos ever filed against an employee, under a system ofwarmng notices instituted in the fall of 1951, was against Roberta McLamb for doing just that. As discriminatory application of the rule was not alleged as an unfair labor practice , however, I make no finding that it was 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roberta McLamb testified further that Ina Amos "would always go from table to table whispering to the girls , and I would hear about it from the girls " She stated that on a specific occasion just before Christmas 1951, when she was called into the office of Vice-President A Donald Brinton, "it was all over the mill in five minutes when I went to Mr Brinton's office, before I got back in the Mill " During the course of his testimony Mr. Brinton used the phrase, " . in a mill where there are rumors " and the phrase, ". . . no one got a warning unless the whole mill knew of it...... It is concluded that during the fall of 1951, rumors spread freely through the mill During this period the employees were working up an organizational momentum which resulted in the obtaining of a charter in November, which meant that union adherents must have been well identified Yet Ina Amos incredibly testified, in effect, that she did not know who among the employees in her department were members of the Union, and she stated that the first she had heard the Union mentioned inside the mill was on the occasion in November when she had found Clarice Hutchins crying Considering the entire record in the case, the testimony of Doris Meyers and Roberta McLamb set forth above is credited Ina Amos' denials are not It is held that Ina Amos' statements to Doris Meyers that if she was with the Company she would get the next machine and if she was working with the Union she would not, that Schuman would fire anybody he caught talking about the Union, that Goldsmith would close down the plant if the Union got in, that Lil Freeman and Roberta McLamb were on their last legs because they were working for the Union, and that anyone discharged by Respondent would be unable to get a job elsewhere be- cause the other mills don't have unions; were threats and were statements which interfered with, restrained, and coerced Respondent's employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent thereby violating Section 8 (a) (1) of the Act Of like consequence and violation were Amos' accusing McLamb and Freeman of being ringleaders of the Union and her saying that Catherine Worrell was "with the Union," statements cal- culated to evoke from them answers relating to union activities, Amos' statement to McLamb and Freeman that if the Union came inMr Goldsmith would close the mill and move it further south, Amos' questioning of Doris Meyers as to whether Lil Freeman was a member of the Union, and stating that if she was not she would help her get her job back It is held further, that in telling Doris Meyers that she could help Lil Freeman get her job back if she was not a member of the Union, Ina Amos uttered a promise of benefit not protected by Section 8 (c) and in violation of Section 8 (a) (1) of the Act 4 Faye Osborn worked for Respondent as an employee from November 1950 until January 1952, at which time she voluntarily left She joined the Union about October 27, 1951. She testified that on about October 16, 1951, her immediate superior (Elizabeth Garner, supervisor of pairing in the finishing department ) carne up to her , asked how she was getting along, and then said, "I hear you are a ringleader of the Union." Astonished at this remark Osborn de- nied the allegation She asked who gave Garner that idea and the latter replied, "I just heard it " A minute or so later Garner again turned towards Osborn and said, "You are a Union member, aren't you9" When the witness denied this also, Garner asked, "Are you sure?" Osborn testified further that on about October 24, 1951, still before she had joined the Union, Garner, while discussing some work with her, said, "If you girls get the Union in here, it will be worse than what it is, you will always be hiring new girls like [Arvel Brand] 2 because they are so strict, the Union is so strict " Elizabeth Garner denied making these statements to Osborn. Garner impressed me as a credible witness and a more crediblewitness thanOsborn. This conclusion is based upon their demeanor on the witness stand and in the hearing room, and upon their answers on cross as well as direct examination Garner's denials are credited. 5 John C Emerson, an employee, testified on direct examination that about November 15, 1951, Ben Walker, supervisor of dyeing and preboarding, said to him, "I understand you and Joe Steelman are big union workers down there " In repeating this statement on cross- examination Emerson added that after the above statement Walker said, "I don ' t understand what you want with a union, becausewepay as much wages as anybody, and work as much time as anybody " Emerson stated that he just then remembered the additional statement, and that he had not discussed the testimony he was going to give with the General Counsel 2Arvel Brand is another company in High Point. Although the record contains numerous spellings of this company, the record is hereby corrected so that the name shall appear as above. At Arvel Brand a local of the International Ladies' Garment Workers Union apparently represented the employees, Osborn's mother being president of the local. Osborn herself worked at Arvel Brand for several months before working for Respondent. DIAMOND HOSIERY CORPORATION 541 Ben Walker, a credible witness, denied this testimony. I did not find Emerson a credible witness . Walker's denial is credited. 6. The General Counsel attempted, but in my view failed, to prove that Alex Moser, vice president of the local union, was deprived of overtime work as a maintenance man because of his union connection . He worked as a maintenance man for nearly a year, then worked in the shipping department for 2 months, and then returned to maintenance work, which he continued to do until he voluntarily left Respondent 's employ some 412 months later. He assisted the electrician and did some carpentering. Moser was an unreliable witness. Though well-inten- tioned , he was loquacious , rambling, and more given to repetition than to accuracy . In several instances he changed his testimony on cross-examination, and generally he was confused on dates. He was positive that he had not received 1 hour of overtime after his return to main- tenance, which occurred October 1, 1951, but on cross-examination admitted that he had worked some overtime around Christmastime. At first he said that one Watts had been em- ployed prior to his return to maintenance, and later admitted that Watts arrived only a week before Moser resigned in February. Moser claimed in effect that during that last week Watts did some overtime work to which Moser was entitled. Fred Wiley, the next highest man under Schuman and superintendent of the manufacturing department, which includes maintenance, testified without contradiction that Watts was employed to clean machines, that he was paid less money for that work than Moser was receiving, and that at least twice after Moser returned to maintenance Wiley asked him to work overtime and Moser refused for personal reasons . He testified that after Moser 's return to maintenance there was not as much main- tenance work to do, and that that was the reason why Moser received less overtime work than he had received during his earlier period atmaintenance work . Wiley's testimony is credited. The General Counsel contended but failed to prove that after Moser's return to maintenance, Fred Wiley in an antiunion move told him not to go to the cafeteria. Wiley testified without contradiction that Brenton and then Wiley noticed that Moser was going to the cafeteria too often and spending too much time there, that Wiley then autioned Moser that he should limit himself to once in the morning and once in the afternoon, which was what all other employees were limited to. Wiley's testimony is credited. C. Discharge of Joe Steelman At the time of his discharge on March 21, 1952, Joe Steelman had worked for Respondent for about 4 years and 4 months , He had been there longer than anyone else in the shipping de- partment, where he worked. During this period of time he had been a satisfactory employee, and during at least a part of the time had had supervisory duties and a supervisory title. Although it was claimed that several evenings he did not report for overtime work when he was supposed to, 3 the record indicates by the absence of anything to tiie contrary and the testimony of at least one of Respondent 's witnesses , that no action or statement of his during this period was deemed by Respondent to undermine the employees or the Company except the statement which led to his discharge , considered below. Those who participated in reaching the decision to discharge Steelman were Vice - President A. Donald Brinton , during whose 14 months with Respondent only one previous person had been discharged, the personnel director, Mrs. Mary Lee Leonard, who had been with Respondent about 3 months, and Ralph Harbinson, supervisor of the shipping department , an old employee who had been away for 7 years and been back about 11 months. Steelman 's discharge grew out of a statement he overheard Ralph Harbinson make one day during the Christmas rush in December 1951, when presumably many employees and certainly Harbinson and the girl who worked in his office , Geraldine Davis , were working many hours overtime, were tired , and were making some mistakes . The statement, referred to hereafter as the Harbinson statement , was to the effect that he was going to have to replace the girl in his office--meaning Geraldine Davis . Roy Phillips , a subpenaed witness who impressed me as neutral in the dispute and a credible witness , overheard the statement , and so did Steelman, and although Harbinson denied making it I am convinced that he did so , and so find. He made the statement to nobody in particular when he was standing near the printing machines in the plant after all of the printers had left . He made the statement just after Geraldine Davis had come out to him from her office, had talked with him, and had left. And'he made the statement within the hearing of Roy Phillips and Joe Steelman. 3Steelman denied receiving a warning notice because of this, although Harbinson testified he gave him one. Steelman's denial is credited. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Harbinson statement came back to management in March 1952, several months after it was uttered , at which time Harbinson denied making it and Steelman was discharged , allegedly for repeating it to Geraldine Davis , a 19- or 20-year old girl who did office work for Harbinson The circumstances are given below On Tuesday, March 18, 1952, while Geraldine Davis--referred to herein as Geraldine, as she was throughout the testimony--was on routine business in the shipping department, she saw that there was "not anyone in the vicinity," she saw Joe Steelman, and she went over and initiated a conversation with him. Geraldine and Steelman had been friendly while they worked for Respondent and in the conversation they confided in each other in a manner not to be ex- pected, except in the mutual feeling of friendship and trust. Steelman testified that the con- versation opened with Geraldine telling him that she was going to look for another job, naming two other companies in High Point whereshehad prospects. He then said to her that since she had decided to do that, he "could tell you a remark that I overheard Mr. Harbinson make about you." He then pledged her to secrecy, and after she had agreed to tell no one, told her that he had overheard Harbinson say that it "looks like I am going to have to replace the girl that works in my office." He did not tell her when he had overheard it, and she did not ask when. The conversation ended at that point. Both assumed that Harbuison was referring to Geraldine. Geraldine's testimony varied somewhat from Steelman's. According to her she opened the conversation with the remark that a new girl had been hired the previous day (which Steelman already knew) and that perhaps now Geraldine would get a raise, that she hadn't had a raise since she had been working there--which she thought "rather disgusting." She then added that she had "been thinking about quitting," and that "if I decide to quit I have two places I can put applications in." According to Geraldine she told Steelman that she liked to work for Respond- ent but could not "work for the money they were paying me." It was then that Steelman pledged her to secrecy and related overhearing the Harbinson statement. Whether or not Geraldine indicated a final determination to quit and seek another job before Steelman repeated to her the overheard Harbinson statement, there is no proof (contrary to the allegation in the answer) that in repeating the statement Steelman was motivated by any sense of disloyalty towards Respondent or by any desire to induce Geraldine to leave her employment or to intimidate her. The fact that after hearing the statement in December Steelman kept it to himself for 21' months and then repeated it to Geraldine as a confidence, suggests that he told her only after she had indicated a final determination to leave and that his assumption was that repeating it then would have no bearing upon her employment relationship. It is so found. Nevertheless, the statement disturbed Geraldine greatly. The next day, Wednesday, March 19, she told Harbinson, for whom she worked, that she would like to quit the following Friday, 2 days hence; that she was going to Virginia to live with her father's people for a while. Harbinson, surprised, said that he was sorry to have her go, that whenever she wanted to come back to work, he would do what he could to get her job back or even a better one. Harbinson had several weeks before recommended a raise for Geraldine and, according to the latter, had informed her of the fact.4 On March 19 he did not mention that fact. Had he on March 19 told her he was trying to get a raise for her the events of the next several days might not have occurred. Harbinson reported to Mrs. Mary Lee Leonard, personnel director, that Geraldine had given notice and was going to quit, and requested Mrs. Leonard to speak to Geraldine as he was very much in need of her services. Late in the afternoon, March 19, Mrs. Leonard called Geraldine to the first-aid room and endeavored witha number of leading questions but without success to discover why she was leaving. In testifying Mrs. Leonard explained that on the previous Friday she had taken the new employee, Edith Kenny, in to Geraldine, had introduced them, and had told Geraldine that Kenny would start to work Monday morning to help her, that they were to work together. Mrs. Leonard testified further that there was more work than Geraldine could do, that she had been working so much overtime that "it was working a hard- ship on her." Geraldine testified that Harbmson told her Edith Kenny would take over quality control, one of Geraldine's functions, but that Geraldine would continue with the rest of her work. On the witness stand both Harbinson and Geraldine remembered only one instance during her 6-month employment when Harbinson called a mistake to her attention, and that occurred 4In testifying Harbinson contradicted himself in this respect, saying that he had informed Geraldine he was working on a raise for her, and a few moments later saying that he had not informed her. DIAMOND HOSIERY CORPORATION 543 in December 1951.5 On that occasion she entered a certain style of garment in the wrong column of a report she was writing. (It is not necessary to determine whether this was the error which evoked the Harbinson statement.) Thus in the following March she had no cause to believe that she was going to be discharged or transferred from her job. A feeling of security she should have had but did not have should have been enhanced by the fact that Edith Kenny was brought in the day before her conversation with Steelman, to help her, as Geraldine understood, not to displace her. Nevertheless she was disturbed over what Steelman told her. In testifying she volunteered, "E . . I am easy to be upset about my job anyway .. . Thursday morning, March 20, 1952, Brinton, Harbmson, and Mrs. Leonard came up to Geraldine bringing with them a girl from the folding department, and according to Geraldine's testimony Brinton said that they had been trying to talk the other girl into taking Geraldine's job "if we can't talk you into staying on." Geraldine replied that she still thought she would quit. Having thought it over in the meantime, that afternoon in a further conversation 6 Geraldine informed Mrs. Leonard that she had changed her mind and had decided to stay. After she told her this, Mrs. Leonard urged her to disclose what was bothering her, with the result that Geraldine, having first pledged her to secrecy, related what Steelman had told her about overhearing the Harbinson statement. Inpledgingher to secrecy, according to Geraldine's testimony, she told Mrs. Leonard that "I want you to promise me you won't mention it to anyone, for if you do I am afraid I will get somebody in trouble, as well as myself, and I rather not have that ...... Mrs. Leonard promised. Having promised, Mrs. Leonard told the whole story to Brinton, the vice president, thatafternoon. Brinton replied that Mrs. Leonard's hands were tied, that she had given Geraldine her confidence and that the latter's secret was to be kept. Mrs. Leonard was the first member of management to whom Geraldine disclosed what was bothering her, and she told her secret after she had already stated that she had decided to remain. In saying that she would stay, Geraldine said nothing to the effect that she could no longer work in the plant if Steelman continued working in it Mrs Leonard understood that as things stood at that moment Geraldine would have continued working, Steelman would have kept his job, and no one else would have known anything about the incident. Asked why she didn't go to Steelman and iron the matter out with him first, Mrs. Leonard replied, "Because Geraldine asked me not to tell it, she swore me to secrecy." She testified that she told Brinton, "because I never keep secrets from Mr. Brinton. He is my superior and I report to him everything of importance and Ifeltthatdefinitely was something of importance." Although the truth or falsity of whether Harbinson had in fact made the Harbinson statement had not at that point been inquired into or established, Mrs. Leonard testified that she thought this matter important because I thought it was undermining our employees to tell a thing like that if it was not true; and I could not see why Ralph would want to replace her when she was so vital to him, that he was keeping her overtime every day to keep up with his work. It appears from this testimony that when Mrs. Leonard first heard of the Harbinson statement her mind jumped to the immediate conclusion that Harbinson had not made it and to the im- mediate conclusion that Steelman had not told Geraldine the truth. Friday morning, March 21, 1952, Harbinson and Geraldine had a further conversation con- cerning her departure. According to Harbinson he initiated the conversation after getting her timecard from the time clock in order to get her last check made out for her. According to Geraldine she "went to Ralph" and said, "Ralph, what are you going to say if I tell you I decided to stay on." A third possibility is that Thursday evening or Friday morning Mrs. Leonard told Harbinson Geraldine's secret with the caution that she herself had pledged not to tell so that Harbinson would have to dig it out of Geraldine if he wanted to be informed of it officially. In any case at the beginning of the conversation Geraldine told Harbinson that she 5During that month Geraldine was the only girl doing work for Harbinson, and she was making out a daily report, a weekly report, and doing quality control work. Harbinson testified that although she was overloaded and a few mistakes were made, she was "doing an extra good job for the amount of work she had to do .... she was doing a grand job " He added that her work improved after December 1951. Brenton testified that Geraldine "was a relatively new employee and we were in our Christmas rush and mistakes were probably happening . . . . " 6 Mrs Leonard testified she "dropped back in Geraldine's office"; Geraldine testified she went to Mrs. Leonard. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had changed her mind and had decided to stay on. After she had told him that, Harbinson undertook to find out the real story fromher. According to Harbmson 's account he said to her: Geraldine . . . I thought about this last night after I went home , and I told my wife that there was something or another disturbing you, you had not told me the truth about the matter, and I would like to know what the trouble is, if it is something I have done, or rather if it is something that will induce you , if it is criticism of me , or if it is something else, I would like to know. (Emphasis supplied.) According to Geraldine's account, Harbinson said: I can tell there is something bothering you . . . I went home last night and told my wife you would not up and quit out of a blue sky without any reason at all, and I want to get to the bottom of it, I want you to tell me why you decided to leave . (Emphasis supplied.) According to Harbmson, at this point Geraldine started to cry. There is no testimony that she had cried before in any conversation concerning her leaving . It is held she cried because she was forced to break faith with Steelman. Then she said , "Well, I was not supposed to tell you. but . . . I am going to tell you"--and she related what Steelman had told her --the Harbinson statement. According to Geraldine this upset Harbinson very much. Harbinson testified that he did not deny making the Harbinson statement , but he said to Geraldine that if he planned to replace her he would tell her so rather than Joe Steelman or anyone else. On direct examina- tion Harbinson testified he then told Geraldine , "well, you go on back to work and I will see about it. . . . I will investigate it." On cross-examination of Harbinson this had become, "I told her to go on back to work and settle down and I would see her later about it." The record does not disclose what , if any , investigation Harbmson himself made of this matter. Certainly he did not discuss it with Steelman, the only person with whom he could have threshed out the questions of whether Harbmson had made the statement, when, to whom, and under what circumstances . His failure to speak to Steelman about it prior to his going to Brinton about it suggests that Harbinson wished to use the incident against Steelman. When Vice-President Brenton arrived at his office that Friday morning at about 9 o'clock, Brinton testified that "they were already there ." Who was there is not completely clear. Harbinson testified that he himself waited until Brinton arrived that morning and "presented the matter to Mr. Brinton"--which seems to exclude the presence of Mrs. Leonard. Brinton testified, however, inconsistently with Harbmson, that he never discussed the Steelman case alone with Harbmson . Mrs. Leonard had no recollection as to who was in Brinton's office when she arrived there pursuant to a telephonic summons for her to go there . Brinton testified the story of Steelman's discharge "began when Ralph Harbinson came to my office and told me that he found out that Geraldine Davis was leaving because Joe told lies that he overheard Ralph saying that he was going to replace the girl in his office." After Harbinson presented the matter to Brenton , the latter told him to bring in Steelman. In doing so Harbinson said to Steelman, according to the latter, " I want to see you in the office, I am going to bring this damn thing to a showdown"--which suggests in Harbinson either a closed mind or an upset condition , or both. Brinton testified that during the ensuing meeting Harbinson was upset. When Steelman arrived at Brmton's office with Harbinson, he found there Brinton and Mrs. Leonard. The testimony is somewhat conflicting as to the exact order of events and statements dur- ing the next 21z hours , the period during which Brenton , Mrs. Leonard , Harbinson, and Steelman remained in Brinton 's office. From all of the testimony the picture emerges about as follows. At no time during the conference did either Harbmson or Mrs . Leonard inform Brinton that Geraldine had already decided to stay , and that the situation had changed to that extent since his last knowledge on the subject . Throughout the conference Brinton 's assumption seems to have been that Geraldine was going to leave. At the beginning Brinton asked Harbinson to'relate what Geraldine had said to him, which he did. From the beginning Steelman admitted telling Geraldine he had overheard Harbinson say he was going to have to replace the girl in his office, but denied that the Harbinson verb was "fire" or "discharge." From the beginning Harbinson denied making any statement at all to Geraldine of the nature ascribed to him by Steelman. After a few moments Brinton had Harbinson bring in Geraldine. As he told her to come with him to Brinton's office Harbmson , by contrast with his treatment of Steelman , said to DIAMOND HOSIERY CORPORATION 545 Geraldine, according to her testimony , "nothing to worry about , don't be afraid of anything, nobody is going to bother you, everything is going to be all right." When she arrived in Brmton's office she found herself confronted by not only three supervisors but also Steelman, with whom she knew she had broken faith. According to her , Brenton said to her , "Geraldine, I want you to tell me exactly what Joe told you"--which she did , using the verb " replace." Then Geraldine was told to return to her work . While she was in the room Geraldine was crying and hysterical. Brenton then asked to whom Harbmson allegedly made the Harbinson statement, or who might have overheard it. On direct examination Steelman said that he thought it was made near one of the printing machines on a Saturday morning in December. Brenton then asked to whom Harbinson allegedly made the Harbmson statement, or who might have overheard it. In his direct examination Steelman said that he replied the statement had been made near one of the printing machines on a Saturday morning in December , (In his cross-examination Steelman allowed that possibly he did not state when the statement was made until after the printers had been brought in and dismissed.) Brinton then had brought in the three printers and a fourth who worked near the printing machines, and they all , with blank faces, denied overhearing the Harbinson statement. Respondent's testimony was that Steelman did not state when the Harbmson statement had been made until some time after the printers had been excused , until the morning was well along. After Brenton learned the statement had been made the previous December , he did not call the printers back and ask them if they had heard such a statement in December --it having been assumed before by all that the statement had been made shortly before they were con- ferring, March 21, 1952. Ample opportunity was given Steelman to name any other employees who might have over- heard the statement , but he was able to come up with no other thoughts. He testified credibly that not until several months later did he remember that it was Roy Phillips who had been working with him that day in December when the statement was made. Brinton , Mrs. Leonard, and Harbinson exercised no imagination on their own in an effort to obtain testimony corroboratory of Steelman 's allegation or of Harbinson 's denial. They could have ascertained who were the printers in December and contacted them . They could have questioned other employees who worked with and around Steelman in December , which would have included Roy Phillips. Late in the conference Harbinson said that he would leave up to Brinton and Mrs. Leonard "what they would do with Joe." After more discussion Harbinson asked if they wanted bun to get Steelman 's time, and Brenton replied, "I don't see anything else to do." During the discussion the representatives of Respondent informed Steelman that they did not want him to go back in the mill , not even to get his hat and coat, and they said they would pay him up until 3 o'clock that afternoon , the regular checkout hour. At the end Brinton gave Steelman until 3 o'clock that afternoon to decide whether he wished to resign and receive a letter of recommendation , or to be discharged. Steelman replied that he would leave the decision to him, and did not return. That afternoon in his own handwriting Brenton wrote a "separation notice" for Steelman, dated that date, reading as follows: Told Geraldine Davis that Ralph (her Supr.) that he (Joe) heard Ralph say he was going to "fire" her. Called in 4 Printers who never heard remark made . Joe was lying and causing employee to "quit on 3 day notice rather than be fired ." Geraldine is a good worker and we cannot afford to lose her. Vicious talk inexcusable. Told Joe so--and let him go. ADB On March 28,, 1952, 7 days later, Harbinson wrote a "separation notice" for Steelman, reading: Creates dissatisfaction of employee by telling untruths . Proof indicates no truth in re- marks made. This notice was, initialed by Harbinson and signed by Mrs . Leonard. In this connection it should be noted by contrast that when Geraldine held out on him for 2 days and he accused her of not telling him the truth , Harbinson neither contemplated nor took punitive action. On the afternoon of his discharge , March 21 , Steelman went to Greensboro, North Carolina, some miles from High Point, and talked with the district manager of the Union . reporting to 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him Harbinson's threats to him concerning his union activities and the incidents concerning Geraldine Davis. His complaint led to the filing of the charge herein a few days later, on March 26. On cross-examination by the Union's counsel, the only testimony he gave, Brinton stated a number of reasons why Steelman was discharged. He testified that some months later he told some other employees, "Joe was discharged because he had made a statement which caused a girl to leave...." He told the same employees the decision concerning Steelman "was based on the fact we found that he maliciously made a statement to Geraldine." At another time Brinton, when asked who caused Steelman to be severed from the Company, replied, "I did, because he didn't come back"--referring to Steelman 's failure to return on the afternoon of March 21. A little later Brinton testified that Steelman "was fired because he didn't tell the whole truth apparently"; that Steelman's "major sin" was his failure to tell Geraldine that he had overheard the Harbinson statement in December and his thereby leaving the impression with her that he had overheard it recently. Brinton said Steelman's "minor sin" was his failure to inform Geraldine of the Company's system of notices under which discharge for bad work came only after 2 prior notices (Geraldine had received none). However, Brinton ad- mitted that he did not know whether Geraldine knew about the notice system, and did not know whether Steelman knew whether Geraldine had been present at the meeting in the cafeteria in about October 1951, when Brinton explained the notice system to employees. A week or so after Steelman's discharge, at the end of March, when Ina Amos and a number of employees sitting at a table were discussing a strike at a chair factory, one of the em- ployees asked Amos about Alex Moser, a former employee who had quit a few weeks before and who had been vice president of the local union. According to the credited testimony of Doris Meyers, Ina Amos replied that Moser had quit and gone to work somewhere else, that "he thinks he can come back if he wanted to just like Joe Steelman," that Steelman "was one of the leaders and he thinks he was fired for lying when really he was fired for working for the Union." Conclusions: The preponderance of the credible testimony in this case convinces me that the repetition of the Harbinson statementwas the occasion of but not the reason for Steelman's discharge. As found above, some 3 months and then again a few weeks before his discharge, his direct supervisor threatened Steelman that his union activities would cost him his job. The substance of those remarks indicated thatHarbmsonknew somethingof the nature of Steelman's activities and that he was keeping a close tab on them. And within a few days after the discharge a fellow supervisor of Harbinson's in the finishing department, who was in a position to be informed, told a number of her employees that Steelman had been discharged for working for the Union 7 In view of the openness of Steelman's union activities and Harbinson's undoubted knowledge thereof, the presence of rumors in the plant, and the fact that, as the record shows, Harbinson worked harmoniously with Mrs. Leonard and Brinton who worked closely together, it is clear to me that Harbinson's knowledge of Steelman's union activities was shared by Leonard and Brinton. They did not deny such knowledge. Under these circumstances it is reasonable to infer that Harbinson was advised as to whatBrinton thought about such activities and in warn- ing Steelman as he did was speaking from such knowledge. Before either Leonard or Harbinson learned what had upset Geraldine they had both been told by Geraldine that she had changed her mind and had decided to stay. And when they learned what Steelman had told her they both jumped to the conclusion that Steelman had done some- thing wrong, that this was something important, and that Brinton should be told about it instantly. Had they and Brinton been objective and openmmded towards Steelman they would have realized that Geraldine had been unduly upset, that her fear had been completely un- founded, and they would have played the matter down, possibly cautioned Steelman that Geraldine was young and sensitive and to be careful not to upset her and let the matter drop. Instead they made a big issue of it. Harbinson in particular decided to have a "showdown" with Steelman. Insofar as the record shows Harbinson and Steelman had worked together in harmony up to that point, the only issue between them calling for a "showdown" being Steelman's defiance of Harbinson's warning concerning the former's union activities. Had Harbinson's antiunion motivation not been shared by Brenton, had Brinton been open- minded towards Steelman, he would have conducted a quiet investigation alone, would have talked individually with Harbinson, Geraldine, and Steelman, and then gone on to the printers and probably some others--and then made up his mind what to do. Instead he conducted a shallow, face-saving, investigation with three superiors present and placed the burden of proving that Harbinson made the statement upon Steelman --during which he completely over- 7Cf. Edward M Jenks, 81 NLRB 707. DIAMOND HOSIERY CORPORATION 547 looked that what caused Geraldine 's hysteria was being forced to confront Steelman in front of three supervisors and having to confess breaking faith with him. On the entire record it is held that Respondent seized upon the Geraldine incident as a pre- text for getting rid of Steelman because of his activities on behalf of the Union. It is held that by discharging Steelman on March 21 , 1952, Respondent unlawfully restrained and coerced its employees in violation of Section 8 (a) (1), and discriminated against Steelman in regard to his hire and tenure of employment, thereby discouraging membership in the Union, in violation of Section 8 (a) (3) of the Act. It is held further that Ina Amos' statement to several employees about a week after Steel- man's discharge, that Steelman was really discharged for working for the Union, was a state- ment which interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent thereby violating Section 8 (a) (1) of the Act. Respondent contended but failed to prove that Steelman was a supervisor within the meaning of the Act. The testimony was conflicting as to dates, authorities, and responsibilities, partly because the latter two were greatly effected by a reorganization in July 1951 of that portion of the mill in which Steelman worked, the so-called finishing department, which included shipping. The testimony showed that although Steelman may have had supervisory authority prior to this reorganization , he did not have thereafter . At the time of his discharge, and for at least 6 months theretofore, Steelman was an order picker in the shipping department. His duties were to fill orders by getting the required goods out of bins and assembling them in one place. When he ran out of orders he sometimes went to the office for more, a function shared by others. Frequently he worked alone on one of Respondent's brands. During rush periods he was sometimes assisted by others. Hehad no authority to hire or fire or discipline or responsibly recommend such, and the exercise of any authority he had was of a routine or clerical nature and did not require the use of independent judgment. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities, set forth in section III, above, occurring in connection with Respond- ent's operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States , and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and that it take certain affirmative action de- signed to effectuate the policies of the Act. Respondent having discharged Joe Steelman because of his union and concerted activities, I recommend that Respondent offer to him immediate and full reinstatement to his former or a substantially equivalent positionB without prejudice to his seniority and other rights and privileges and make him whole for any loss of pay he may have suffered by reason of Respond- ent's discrimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discharge, the date of the discrimi- nation against him, to the date when , pursuant to the recommendations herein contained, Respondent shall offer him reinstatement, less his net earnings during said periods Loss of pay shall be determined by deducting from a sum equal to that which Steelman would normally have earned for each quarter or portion thereof, his net earnings , if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. The quarterly periods described herein shall begin with the first day of January, April, July, and October. 10 It is recommended further that Respondent make available to the Board upon request payroll and other records , in order to facilitate the checking of the amount of back pay due. it Because of the Respondent's unlawful conduct and its underlying purpose and tendency, I find the unfair labor practices found are persuasively related to other unfair labor practices B The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827 9Crossett Lumber Co., 8 NLRB-440, 497-8; Republic Steel Corporation v. N. L. R B., 311 U S. 7 10 F. W Woolworth Company, 90 NLRB 289. 'IF. W. Woolworth Company, supra 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proscribed and that danger of their commission in the future is to be anticipated from the course of the Respondent 's conduct in the past. 12 The preventative purpose of the Act will be thwarted unless the order is coextensive with the threat. In order, therefore , to make effec- tive the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor prac- tices , and thereby to minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, I will recommend that Respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. CONCLUSIONS OF LAW 1. Diamond Hosiery Corporation is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. American Federation of Hosiery Workers , AFL, is a labor organization within the mean- ing of Section 2 (5) of the Act. 3. In December 1951 and again in late February or early March 1952 , by threatening Joe Steelman with the loss of his job if he continued working for the Union , Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. In October 1951, by threatening to employees that Respondent would close its mill if the Union "got in," Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. In October 1951, by stating to Doris Meyers that if she was with the Respondent she would be assigned the next machine and if she was working with the Union she would not, Respondent interfered with , restrained , and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. In October 1951, by stating to Doris Meyers that Vice-President Schuman would dis- charge anybody he caught talking about the Union , Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and there- by has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. In October 1951, by stating to Doris Meyers that certain employees were "on their last legs" with Respondent because they were working for the Union , Respondent interfered with, restrained , and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 8. In October 1951, by stating to Doris Meyers that anyone discharged by Respondent would be unable to get a job elsewhere in High Point because the other mills did not have unions, Respondent interfered with, restrained , and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 9. In October 1951 , by accusing certain employees of being "ringleaders " with the Union, and of being "with the union," Respondent interfered with , restrained , and coerced its em- ployees in the exercise of rights guaranteed in Section 7 of the Act, and thereby has engaged ui and is engaging in unfair labor practices within the, meaning of Section 8 (a) (1) of the Act. 10. In October 1951 , by interrogating employees concerning membership in the Union, Respondent interfered with, restrained , and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act , and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 11, In April 1952, by stating to Doris Meyers that if Lil Freeman did not belong to the Union she would be helped in gettingher job back , Respondent interfered with, restrained and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 12. In late March 1952, by stating to employees that Joe Steelman was really discharged for working for the Union , Respondent interfered with, restrained , and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 12 N. L. R. B. v. Express Publishing Co , 312 U. S 426. J. SULLIVAN & SONS MANUFACTURING CORPORATION 549 13. By discriminating in regard to the hire and tenure of employment of Joe Steelman, thereby discouraging membership in American Federation of Hosiery Workers, AFL, Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and 8 (a) (3) of the Act. 14. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] J. SULLIVAN & SONS MANUFACTURING CORPORATION, Petitioner and TEXTILE WORKERS UNION OF AMERICA, CIO J. SULLIVAN & SONS MANUFACTURING CORPORATION and J. SULLIVAN & SONS MFG. CORP . INDEPENDENT UNION, Petitioner . Cases Nos . 4-RM-87 and 4-RC-1789. June 11, 1953 DECISION AND DIRECTION OF ELECTION Upon separate petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated' hearing was held before Herbert B. Mintz, hearing officer . The hearing officer's rulings2 made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three -member panel [Members Houston,. Murdock, and Peterson],,. Upon the entire record in this case , the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Textile Workers Union, CIO, herein called TWU, asserts that the J. Sullivan & Sons Mfg . Corp. Independent Union, herein called Independent , is not a labor organization within the meaning of the Act. We find no merit in this conten- tion. The constitution and bylaws of the Independent , received IThe cases were consolidated for hearing by order of the Regional Director dated March 24, 1953. 2 The hearing officer referred to the Board for ruling the TWU's motion to dismiss the "RC" petition on the grounds that: (1) The independent is not a labor organization; and (2) a contract between the Employer and TWU operates as a bar. As regards the first and second grounds, this motion is denied for reasons hereinafter stated in paragraphs num- bered 2 and 3 respectively, infra. The TWU further contends that the petition should be dismissed for the reason that the Independent was not in compliance with Section 9 (f), (g), and (h) of the Act at the time the petition was filed. We find no merit in this contention. The Board has frequently held that compliance is a matter for administrative determination and is not a litigable issue. Florence Manufacturing Co., Inc., 92 NLRB 185; Muntz Television, Inc., 92 NLRB 29. We are, moreover, administratively satisfied that the independent is in compliance. 105 NLRB No. 65.