Blue Bell, Inc.

514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of views and opinions , free from restraint or coercion , cannot be gainsaid . However , the significant timing of the August 21 announcement , together with the antiunion context in which the announcement was made, furnished the employees with a reasonable basis for believing that the benefits suggested by the Employer would be forthcoming without the aid of union representation , and clearly implied a promise of economic benefit which interfered with their free exercise of the right to choose a bargaining representative.? In my opinion , the majority decision herein departs from well-established Board precedent , 8 approved by the courts, 9 delineating the area in which employers ' preelection state- ments exceed the bounds of allowable free speech . The in- stant decision , by sanctioning a clearly implied promise of gain by the Employer who possessed the power to convert prophecy into reality , makes serious inroads upon the em- ployees' statutory freedom of selection. I would sustain the Petitioner ' s objection and adopt the Regional Director ' s recommendation that the election be set aside. ?Main Fisheries Corporation, 99 NLRB 604. $Maine Fisheries Corporation, supra; Majestic Metal Specialties, Inc., 92 NLRB 1854; Lake Superior. District Power Company, supra; Schwarzenbach Huber Company, supra The National Plastic Products Company, 78 NLRB 699. 9 See N. L. R. B v. Nabors, 196 F. 2d 272, 276 (C. A. 5); N. L. R. B. v. Bailey Co., 180 F. 2d 278 (C A. 6); N. L. R. B. v. La Salle Steel Co., 178 F. 2d 829 (C. A. 7) BLUE BELL, INC. and AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO. Cases Nos. 15-CA-355 and 15-RC-513. December 24, 1953 DECISION AND ORDER On June 18, 1953, Trial Examiner Eugene E. Dixon issued his Intermediate Report in this consolidated proceeding , finding that the Respondent had engaged in and was engaging in certain unfair labor practices , and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. Thereafter , the Respondent filed exceptions to the Intermediate Report. The Board has reviewed the rulings made by the Trial Ex- aminer at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed . The Board has considered the Intermediate Report, the Respondent ' s excep- tions, and the entire record in these cases , and hereby adopts 107 NLRB No. 118. BLUE BELL, INC. 515 the findings, conclusions, and recommendations of the Trial Examiner with the following modifications and additions. 1. In agreement with the Trial Examiner, we find that the Respondent discharged 3 employees, Shirley Frederick, Jewel Taylor, and Bettie Necaise and laid off for 2 weeks a fourth employee, Willie Lee Smith, because of union activity on their part, in violation of Section 8 (a) (3) and (1) of the Act. With respect to Shirley Frederick the Respondent contends that she was legally discharged because she helped to prepare and signed a letter, addressed to the Company's vice-president, Weant, which referred to his "obvious contempt for the truth," and three times characterized him (Weant) as aliar. This letter was distributed to employees at the plant and elsewhere. At the time of her discharge, Superintendent Day told Frederick that he could not have her "going around calling Mr. Weant a liar." This letter, dated July 20, 1951, was in reply to a letter from the Company to the employees, setting forth arguments against the Union and signed by Weant.i It was answered in a further letter from the Company, dated July 27, 1951, stating that the union organizers "falsify the facts."2 The Trial Examiner found that the preparation and signing of this letter by Frederick was protected concerted activity within the meaning of the Act, and that, accordingly, her discharge was a violation of Section 8 (a) (3). We agree, but in so doing we expressly limit our ruling to the specific facts of this case. We recognize that during election campaigns employees have the right, not only to express their own views, arguments, and opinions, but also to challenge and to comment upon the statements and opinions of their employer. But such a right is not unlimited. The right of employees to challenge and to comment upon the statements and opinions of their employer must be exercised with a due regard for the proper respect which employees owe their employer in the interest of main- taining discipline and order. It must also be exercised within the limitations which decency and fairness rightly imposes upon all campaign propaganda. As this Board has previously observed, an employee by engaging in concerted activity does not acquire a general nor an unqualified right to use disre- spectful epithets toward or concerning his employer.3 An em- ployee may be lawfully discharged because of what he says or does in the course of an organizing campaign, if under all the circumstances his conduct either exceeds the bounds of legitimate campaign propaganda or is so disrespectful of his employer as seriously to impair the maintenance of discipline and order and thus render the employee unfit for further service. 'See appendix A 2 See appendix B. 3Betcher Manufacturing Co., 76 NLRB 526, 527; N. P. Nelson Iron Works, Inc , 78 NLRB 1270. Cf Bausch and Lomb Optical Co.. 72 NLRB 132. 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under all the circumstances of this case , we find that Frederick ' s letter did not exceed the proper bounds of con- certed activity , as noted above . Her use of disrespectful epithets was evoked in part by equally strong criticism of the Union by the Employer , and occurred in the course of an exchange of letters containing charges and countercharges. Moreover , without in any way endorsing such conduct, we do not believe that, considered in the context of this case, Frederick ' s questioning of Weant's veracity or referring to him three times as a "liar" can be said, absent other evidence, to have so seriously impaired the maintenance of discipline and order as to have rendered her unfit for further service.4 Accordingly , we conclude that Frederick ' s discharge violated Section 8 ( a) (3) of the Act.5 Willie Lee Smith was admittedly disciplined because she distributed the Frederick letter to employees in the plant. The Respondent ' s contentions relating to her are related to Fred- erick's discharge . Like the Trial Examiner , having found that Frederick was protected for her conduct in relation to the campaign letter , we find that Smith was protected in dis- tributing it. As we accept the Trial Examiner ' s credibility findings , we find that she did not distribute it on company time in the plant.6 Concerning Ira Jewel Taylor, the Respondent asserts that the Trial Examiner ' s ruling that she was discharged because of union activities , rather than absenteeism , " seems to be pure and simple assumption ." We find no merit to this contention. Contrary to the assumption of our dissenting colleague , there is no evidence that her excused absences were irresponsible. She was discharged without having been criticized for the number of her absences or warned against being absent for such reasons as seemed sufficient to make predictable that the ab- sence would be excused , as the others had been. Like the Trial Examiner , we consider the sequence of events revealing. In March, Superintendent Day told Taylor she was smart for not having joined the Union and praised her and her work. In the middle of September she was criticized for 1 day's drop in production , although she maintained the weekly average. At the same time , Day let Taylor know that he knew she had been getting names and addresses for the Union . He told her that the union drive was over and that they might as well go back to work. A few weeks later she was absent for 4 days because of a family funeral. Although Day denied that her husband had called , Mrs. Taylor testified that Oliver , who did not testify, told her when she reported for work that she was discharged because Day had said the funeral was only 1 day rather than 4. The Trial Examiner found that disparate treatment of ab- 4Cf. N L. R. B. v. Illinois Tool Works, 153 F. 2d 811 , 815 (C. A. 7) 5 As it is clear that the Respondent viewed the Frederick letter as a union circular, we need not decide whether a single employee would be protected for such critical comment. See appendix B 6Standard Dry Wall Products, Inc. v. N. L. R. B , 188 F. 2d 362 (C A. 3) BLUE BELL, INC. 517 sences and personal problems indicated' discrimination in Taylor's discharge for a trivial matter so soon after Day first verified her union activities, and we agree. Like the Trial Examiner, we deem it immaterial that Taylor may have assured her husband that she wanted to stop working. The Re spondent also contends that the fact that Bettie Necaise did not disown or explain her failure to repair certain rejects which she had marked repaired indicates that she was not discriminatorily discharged. According to her credible testi- mony the rejects which she had premarked, as was the custom, were removed before she had a chance to repair them, a fact of which she had complained to her supervisor before she was called into the office concerning them. As her supervisor to whom she had already complained was in the Respondent's office when she was questioned concerning the rejects she had marked repaired, we think it understandable that she remained mute when confronted with her supervisor's similar silence. She could not deny that she had premarked them; she could have stated that it was her custom and that of other em- ployees to premark them or she could have stated she didn't know how they had been removed. Considering the fact that her supervisor knew this and could, more appropriately, have re- ported it, we cannot agree without our dissenting colleague or the Respondent that her silence signified that her discharge was warranted rather than that she thought any attempt to justify herself was obviously futile. In her case, too, we think that the ambiguities of the situation are clarified by setting this in- cident in context. A little less than a month earlier, Day had accused her, a member of the organizing committee, of threatening the colored employees. He cautioned that he would fire her if he heard any more rumors like that. She was dis- charged immediately after the Union filed objections to conduct affecting the election. Like the Trial Examiner, we conclude that her discharge involved entrapment, and was discriminatory. 2. Like the Trial Examiner, we find that the Respondent vi- olated Section 8 (a) (1) by solicitation, interrogations, and threats that the plant would close if the Union came in and that the employees would thereby lose their jobs. 3. In view of the coercive conduct engaged in by the Re- spondent prior to the election, we also find that the election was not an expression of the employees' free choice, and that it did not represent their free, untrammeled, and uncoerced wishes as to collective -bargaining representative. Accordingly we shall set the election aside and direct that another election be held at such time as the Regional Director determines to be appropriate. ORDER Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the RespondentBlue 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bell, Inc., Natchez , Mississippi , its officers , agents, suc- cessors , and assigns shall: 1. Cease and desist from: (a) Discouraging membership in Amalgamated Clothing Workers of America, CIO , or any other labor organization, by discriminating in any manner in regard to the hire , tenure of employment , or any term or condition of employment , of their employees. (b) Interrogating their employees concerning their union membership and activities. ( c) Threatening to close its plant if a union comes in. (d) Discriminatorily enforcing a no-solicitation rule, or other rules. (e) In any other manner interfering with, restraining, or co- ercing its employees in the exercise of their rights to self- organization , to form labor organizations , to join or assist the above -named Union, or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose 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. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Offer to Ira Jewel Taylor, Shirley Frederick , and Bettie Necaise, according to the terms and under the conditions set forth in "The Remedy" section of the Intermediate Report, im- mediate and full reinstatement to their respective former or substantially equivalent positions , without prejudice to their seniority and other rights and privileges , and jointly and sever- ally make them and Willie Lee Smith whole in the said section. (b) Post at their plant in Natchez , Mississippi, copies of the notice attached to the Intermediate Report marked "Ap- pendix C."7 Copies of such notice , to be furnished by the Regional Director for the Fifteenth Region, shall , after being duly signed by the Respondents ' representative , be posted by the Respondents immediately upon receipt thereof and be maintained by them 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 Respondents to insure that the said notices are not altered , defaced, or covered by any other material. (c) Notify the Regional Director for the Fifteenth Region in writing within ten (10 ) days from the date of this Order what steps the Respondent has taken in compliance herewith. 7 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner," the words "A Decision and Order." In the event 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." BLUE BELL, INC. 519 IT IS FURTHER ORDERED that the election of August 1, 1951 , in Case No . 15-RC-513 be , and it hereby is, set aside, and that a new election be conducted therein at such time as the Regional Director determines appropriate. IT IS ALSO ORDERED that the complaint herein be, and it hereby is , dismissed in all other respects. Member Rodgers , dissenting in part: I cannot agree with the majority ' s conclusion that Ira Jewel Taylor and Bettie Necaise were discriminatorily dischargedin violation of the Act. In my opinion , Taylor's record of persistent absenteeism was a proper and reasonable basis for her discharge. Within a period of 7 months this employee admittedly absented herself from work for 35 days --an average of 5 days per month, or approximately 25 percent of the total working time . Moreover, immediately before her discharge , she was absent without leave for a period of 4 days. In view of this record, and the light treatment accorded it by the majority , it is difficult to perceive any situation in which persistent and irresponsible absenteeism can ever be aproper basis for discharge , once the employee becomes engaged in union activity. With respect to Necaise , the preponderance of the evidence, in my opinion , does not support the majority ' s finding of un- lawful discharge. This employee falsely marked as "repaired " items which she had not in fact repaired. This action on her part was a clear violation of company rules. When confronted with this evidence of her misconduct, the employee stood mute , offering no explanation whatsoever. The Employer thereupon and with complete justification discharged her. Where, as here , the Employer had proper cause for dis- charging the employee , the majority should not rely on scant evidence and repeated inference to make a finding which in essence places the Board in the position of substituting its own untested ideas of business management for those of the Em- ployer. Chairman Farmer took no part in the consideration of the above Decision and Order. APPENDIX A The first paragraphs of Weant's letter read: As you undoubtedly have already heard, the CIO Union is claiming it represents you and that it is your agent. We have insisted that the question as to whether this is true or not true be put to a vote or an election by secret ballot. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Labor Board has ruled that this shall be done. So, if the Union does not back out, you will very soon have the opportunity of voting by secret ballot as to whether you do or do not want this Union to come in here. The Frederick letter answered these paragraphs as follows: I am in receipt of your letter of recent date addressed to all Blue Bell employees , Natchez, plant . Your obvious contempt for the truth is indicated in the first paragraph of your letter wherein you stated that "the Company in- sisted that this issue be settled by a vote in a secret election." The record proves that you lied in this state- ment because I was present at the hearing held by the National Labor Relations Board wherein your attorney fought hard to prevent us from having an election. We won that fight and we are going to win the election. The next eight paragraphs of the Weant letter asserted and re- asserted the following concerning the Union : " What they are after is money--YOUR MONEY." Frederick replied to such statements by stating in her second paragraph: You deliberately misrepresented the facts again when you said that the Union Organizers were "around here" trying to " get your money "--we, more than 300 Blue Bell employees , both men and women, asked through a petition that the union help us in our efforts to get a union set up at Blue Bell , and for your information we are willing to pay a reasonable amount in union dues, which of course is none of your business! The Weant letter continued further to analyze the claims of the Union, asserting, e.g.: And what do these organizers claim they can do for you? What do they say they can get for you that you do not already have? As for wages and earnings --you are up with, and in many cases above , the plants which are our competitors in this general line of work . That is where we intend to keep your pay. The policy of Blue Bell has always been to pay its people the highest wage scale pos- sible and meet competition. The Frederick letter countered: You lied again when you said that "as for wages you are up with , and in many cases above , other plants in the gen- eral line of work." I know from personal knowledge that the garment plants right here in Mississippi under union contract pay much higher wages, in the union shops the standards are lower, they have seniority, the workers are BLUE BELL, INC. 521 not moved around from job to job without regard for their seniority and pay rate , in the union shops under CIO con- tracts the company pays for the insurance , the union employees get at least 4 hours pay when they report for work and are sent home, they also get several paid holi- days (not worked ), the union employees get their griev- ances settled and most of all they don 't have to put up with "the few" who are always runningtothe supervisors, and getting all the breaks. The remainder of the Frederick letter contained some harsh statements, as did the remainder of the Weant letter , but the portions quoted above contain the statements to which Day objected. APPENDIX B This three page letter contained such statements as the following: Most important of all , you will find that in its circulars the union has not answered , nor even undertakento answer, most of the matters which we brought up. Our letter speaks the truth and they cannot answer it . That is why it has so outraged them. The truth is what defeats the union! The organizers know that , and that is why they have started spitting venom instead of sensibly discussing the facts. And what is more, they falsify the facts. In one of their circulars they say that we went to the hearing leading up to the election and had our attorney to try to keep you people from having any vote or election at all. On the con- trary, what we tried to do at the hearing was to get for all the employees , except supervisors , the right to vote in the election . While the arrangements for the election have been in progress , the union has done its best to try to make it as inconvenient as possible for you people to vote. First, it wanted the election held downtown in the hopes that only a few of you would go to the trouble of going down there and voting. Next , it wanted the voting hours to be narrowly limited so that many of you wouldn't have time to vote. All of that we opposed , insisting that the election be held as near the plant as possible and that the voting hours be as broad as possible so as to make it just as convenient as we could for all of you to vote. Intermediate Report STATEMENT OF THE CASE On April 13 , 1951, Amalgamated Clothing Workers of America , CIO, herein called the Union, filed with the National Labor Relations Board, herein called the Board, a petition in Case No 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RC-513 for certification of representatives for the employees in a specified unit at the Natchez Mississippi, plant of Blue Bell, Inc , herein called the Respondent After a hearing on the Union's petition the Board, on July 11, 1951, directed that an election be conducted among said employees to determine whether or not they desired to be represented by the Union for the purposes of collective bargaining Pursuant thereto an election was conducted on August 1, 1951, in which a majority of the voters were against the Union. i On August 6, 1951, the Union filed objections to the election. On November 9, 1951, the Board's Regional Director for Fifteenth Region (New Orleans, Louisiana), issued his report on objections in which he recommended that the Board direct a hearing on the objections On December 4, 1951, the Board issued an order directing a nearing on the issues raised by the Union ' s objections. Previously, on May 9, 1951, the Union had filed with the Board, unfair labor practices charges against Respondent . Six amended charges were subsequently filed . 2 Upon these charges the General Counsel of the Board 3 by the said Regional Director issued a complaint against Respondent dated August 5, 1952, alleging that Respondent had engaged in and was en- gaging 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 With respect to the unfair labor practices, the complaint as amended alleged that Re- spondent interfered with, restrained , and coerced its employees by (a) Interrogating employees as to their union affiliations or sympathies ; (b) threatening to shut the plant down if Union came in; (c) circularizing , sponsoring , or permitting to be circulated petitions which were re- straining and coercive regarding union activities , (d) attempting to persuade certain employees to discourage other employees from union membership or activities , (e) ordering employees to vote against the Union; (f) threatening employees with loss of employment or loss of bene- fits if Union came in; (g) surveillance of union meetings , (h) referring to the Union as a "bunch of Communist stool pigeons", (i) promulgating discriminatory " no-solicitation" rule and enforcing it in a discriminatory manner; (j) statements and conversations interfering with and restraining activity on the part of its employees for the purpose of collective bargaining and other mutual aid and protection , and interfering with and restraining from membership and activities among its employees in the Union 4 The complaint further alleged that Respondent discriminatorily discharged or laid off various employees because of their union activities 5 In its answer Respondent denied committing any unfair labor practices. Simultaneously with the issuance of the complaint the Regional Director issued an order consolidating the hearings on the complaint and the election . Copies of the charges , complaint, order of Consolidation , andnotice ofhearmgwere duly served upon the parties Pursuant there- to a hearing was held in Natchez, Mississippi , from September 22 through 27 The General Counsel and Respondent appeared by counsel and the Union by a representative All parties par- ticipated in the hearing and were afforded full opportunity to be heard , to examine and cross- examine witnesses, and to introduce evidence Counsel declined the opportunity to argue the issues orally but reserved the right to file briefs A short brief was filed by the General Counsel-- none by the Respondent. Upon the entire record of the cases and from my observation of the witnesses, I make the following: i There were 484 eligible voters. 198 votes were cast for the Union, 258 against There was 1 void ballot, 6 were challenged. 2 These charges were filed August 27, September 7 and 25 in 1951; and February 18, March 5, and August 1 in 1952. 3The General Counsel and his representative at the hearing are referred to herein as the General Counsel. 4 The complaint was amended at the hearing adding the following allegation: k. Discharging Foreman Dungan in order to discourage membership in the Union 5 Those named as dischargees were Ellie Murl Delaney, Shirley Frederick, Helen Pepper, Bettie Necaise, Jewel Taylor, Myrtle Wisner, Sally Turner, Euna Ratcliff, Lois Golman, and Lamar Felter. Willie Lee Smith was allegedly the laid-off employee. BLUE BELL, INC. FINDINGS OF FACT L THE BUSINESS OF THE RESPONDENT 523 Respondent , Blue Bell , Inc , is and has beenduring the period material herein a corporation duly organized under and existing by virtue of the laws of the State of North Carolina, and qualified to do business in the State of Mississippi. At all times material herein, Respondent has maintained principal offices in Greensboro, North Carolina, and New York City, New York, with an office and plant at Natchez, Mississippi, where it is engaged in the manufacture of work clothing The Respondent, in thecourseand conductof its business at Natchez , Mississippi, during the year ending December 31, 1951, which is representative of all times material herein, pur- chased raw materials , consisting principally of cotton piece goods and thread, of a value in excess of $ 150,000, approximately 90 percent of which was purchased outside the State of Mississippi and shipped in interstate commerce to theNatchez , Mississippi , plant. During the same period Respondent manufactured and sold finished products , consisting of cotton work clothes, of a value in excess of $200,000, approximately 90 percent of which were sold and shipped to customers outside the State of Mississippi Respondent admits and I find that it is engaged in commerce within the meaning of the Act IL THE LABOR ORGANIZATION INVOLVED Amalgamated Clothing Workers of America, CIO, is a labor organization within the meaning of the Act. Ill. THE UNFAIR LABOR PRACTICES A. Sequence of events Early in 1951 the Union began a campaign to organize Respondent' s employees . An initial meeting was held on February 9 at the home of Geneva Williams, one of the employees An organizing committee of about 30 employees was established About 10 days later E. W. Weant, Respondent' s vice president in charge of manufacturing, whose headquarters are in Greensboro, North Carolina, arrived in Natchez, Mississippi, spending 4 or 5 days there. According to his testimony the Natchez plant had not been showing a profit for years During the period lust prior to his visit management had been concerned about the fact that costs were going up in Natchez and production going down Accordingly , it was decided to visit the plant to see what could be done to improve the situation The testimony shows that Respondent had started production on a new civilian line in late 1950 and had also taken an army contract about the same time These two operations re- quired considerable changes in machinery and procedures and resulted in a great number of personnel shifts all of which had a tendency to slow production and increase costs. Never- theless, it is quite clear, I find, from the testimony of Chief Engineer L. K. Mann and Weant's own admission , that an important , if not the only reason for Weant's visit to Natchez was the union campaign which had started shortly before From the reluctant testimony of Plant Superintendent Hubert Day it appears that plans to counteract the union threat were discussed at that time by top management. Accordingly, rules against visiting in the plant by employees were tightned up, individual coke and rest breaks were abolished in favor of periodic organized rest periods, and all solicitation during work hours prohibited The union campaign culminated in an election August 1, which the Union lost by a wide margin. Weant and the Respondent's president, Morris, were at Natchez shortly before and during the election. The day before the election speeches were made by Weant and other officials to the employees over a loudspeaker system in the plant late in the afternoon after which the employees were allowed to go home being paid for the remaining half hour of the workday During the entire period from the beginning of the union campaign until about 6 weeks after the election the Respondent engaged in various acts alleged by the General Counsel to have been in violation of the Act. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Interference, restraint, and coercion Late in March, Ina Lee Barrow was called into Plant Manager Rippitoe's office He told her, "I guess you know what's going on in our plant and that if a union comes in our plant I believe there is going to be more hair pulling than can be taken care of. You have lots of influence and you can get down there and help us out " Barrow replied, "I can't, Mr Rippi- toe " He said, "Ina Lee, you have been listening to a lot of outside talk . . if you saw a big black snake coming in the door, Ina Lee, wouldn't you try to do something about it? I would mean the same " Barrow said, "Mr Rippetoe, if there was a black snake coming in that door, these people out in the plant are big enough and old enough and some of them are ugly enough to know what they want, and I couldn't do anything about it." Rippetoe asked, "and then you can't help us? " Barrow replied, "No, Mr. Rippitoe." As she walked out Rippitoe said, "any time you get ready to talk to me, Ina Lee, come back " This testimony is undenied Rippitoe did not testify I credit Barrow and find that Reppi- toe's solicitation of Barrow's aid in counteracting theunion campaign constituted interference with the employees' rights and was a violation of Section 8 (a) (1) of the Act During the spring of 1951 Rippetoe called several other employees to the office and, with- in the meaning of Section 8 (a) (1) of the Act, engaged in restraining, coercive, and inter- fering conduct against them as follows: 1. Rippitoe told Ola Edwards, "Ola, I am not going to ask you if you did or didn't join the Union," and went on to say, "If somebody told you there was a rattlesnake at your door you would want them to warn you, wouldn't you? " He also told her she could be of great help to the Company and asked her how she felt about the Company. 2. Ellie Murl Delaney was asked about the rumors going around the plant. She was also asked if she had been going to any union meetings. Learning that she was going to one that night, Rippitoe told her that was her privilege but that it was best to stay away. 3 Zella Lee Tatum was asked, "Zella, has anyone mentioned anything about the Union to you?" 4 Annie Murray was asked in substance what she thought the Union could do for her that could not be done by the Company after having been told by Rippitoe that he had heard she was doing a "lot of talking" and asked why she had lost confidence in him. According to Charlene House's testimony, sometime in March after 6 p. m an old friend, Bonnie Smith accompanied by the latter's sister, Supervisor Sue Lyons, called on her at her home Smith asked House if she had signed a union card and learning that she had not done so, asked House to sign a petition for the Company. House signed At this point Lyons stated that the Union was a good thing but that Blue Bell was paying as much as it could, that the first thing a union would ask for was a wage increase accordingly "they would just have to close the plant down " Lyons' testimony was that she and her sister had been to town one evening and Smith had told her she wanted to stop to see House, telling Lyons she would only be a minute and not telling her what the purpose of her visit was Lyons waited quite a while in the car then went to the door and asked her sister if she was going to stay all night. Smith said she was ready to leave They "passed a few words" with House and left Lyons denied that her sister made any mention of the petition to her and denies the remarks attributed to her by House Lyons testified that she had visited House at her home several times with her sister On one occasion she attended a shower at the home of House's mother. I credit House's testimony and find that Lyons' remark about closing the plant was coercive I further credit Jessie Lanehart's testimony that Lyons told her in April at Lanehart's machine that a union might cause them to lose their jobs and close down the plant. Although denied by Plant Superintendent Day, I find that in the latter part of March Ira Jewel Taylor, during a discussion with Day about the discharge of Taylor's sister Delaney, was asked by Day how she stood in the Union Learning that Taylor had not signed a union card Day told her she was a smart girl--that he liked her and that her work was good. According to Wisner's undenied and'credited testimony Supervisor Laird asked Wisner in March (at her machine) what she thought about the Union I also find contrary to his testimony that Supervisor Roy Smith asked Lamar Felter how he felt about the Union Respondent violated the act by the foregoing interrogation of its em- ployees6 and by its threats that the plant would close if the Union came in and that the em- ployees would thereby lose their jobs 7 6 Standard- Coosa- Thatcher, 85 NLRB 1358 ; Syracuse Color Press Inc., 103 NLRB 1017. 7 Bryan Manufacturing Company, 94 NLRB 1331 , Royal Palm Ice Company, 92 NLRB 1295; Stokely Foods, Inc v. N L R B , 193 F 2d 736 (C A. 5). BLUE BELL, INC. 525 According to Lillian Dillingham' s testimony , about 2 months before the election she was at her mother's home with her sister , Supervisor Thelma Rogers , and another sister, Jewel Prichard , an employee of Respondent also. During a conversation at which her mother and father were present Rogers made the statement that if the Union came in the plant it would close--that that was information Rogers had gotten from the Company ' s "higher ups." In her testimony Rogers denied making the statement . Rogers' denial was corroborated by the testimony of Mr . and Mrs . R. W. Prichard , the parents in question . In view of Dillingham's admission on cross-examination that there was a "good deal of hard feeling" between her and Rogers and, after persistent denials and evasions by Dillingham , that she might have made the threat to a third party that she was " out to get" Rogers, I credit Rogers' testimony as to the matter. A former mechanic , William E. Hill, Jr ., testified that shortly after the campaign started, his supervisor , Roy Smith, told him and a group of other mechanics " that the plant would close if (the Union) came in, but it wouldn' t be from the reason of the Union , they'd have other reasons ." Smith denied the statement . I credit Hill. The evidence establishes ,, I find , that Respondent 's tightening of its rules also included a rule against solicitation during working 'tours . I also find that several of Respondent's me- chanics and carpenters took the initiative in February and March in getting various employees to sign an antiunion petition during working hours. The undenied credited testimony of the General Counsel ' s witnesses , Lanehart , Frederick, Felter , Murray, Delaney , Dillingham, Turner , and Hill, Jr ., advert to incidents involving themselves or others in which mechanics Rutherford , Pitts , Jackson, and carpenter Reed solicited employees ' signatures on an anti- union petition during working hours . Among other places the signing sometimes occurred at the individual' s machine , sometimes they were taken to the carpenter shop, or the bins to sign, on one occasion a whole group was called behind some packing cases by Rutherford for that purpose . In addition, Hill, Jr., testified that he had solicited several signatures himself. According to Hill's further testimony at the time Smith made the statement that the plant would close if the Union came in, a group of mechanics were discussing the petition in Smith's presence. Smith commented that it would necessary to get "a certain amount on the petition." Day testified that he had heard a petition was being gotten up to stop the Union and that he instructed the supervisors to have nothing to do with it ; that if they saw it being circulated , to stop it whether it was on company time or not. In his direct testimony Smith denied any such discussion occurring . He did testify, how- ever, that mechanic Lyonel Pitts called him behind a cabinet one day, pulled the petition out of his pocket , handed it to Smith and said, "Here , look at this petition." Smith looked at it, handed it back and said , that he (Smith) " didn't have anything to do with it, it was his busi- ness ." He also told Pitts "not to get any names in the plant , not to be caught in the plant getting signatures." Smith also testified that to his knowledge he never again saw the peti- tion. On cross-examination Smith at first testified that he did not recall any incident when he saw a group of people in the machine shop with carpenter Reed in the spring of 1951. Then he admitted he saw employees there with Reed several times . Asked if that was not against the rules he testified , " I have seen them back with Mr . Reed drinking coffee," and that he would not say that was against the rules . Explaining his concept of the rules he testified that "They are free to go anywhere in the plant they please when rest period comes." Although Smith was the supervisor of the mechanics , carpenters , and oilers , he testified it was not his job to keep people out of the machine shop or to keep them from talking to carpenter Reed during rest periods . Yet he testified he did not know when girls were in talking to Reed whether they were on rest periods or not . Nor did he question them as to whether or not they were on rest periods. Several employees testified undenied and credibly for the General Counsel that after the rules were tightened they were criticized for and prevented from talking to other employees during working time, or even going to another department during lunch time . Thus it appears and I find from Wisner ' s testimony that the employees were not allowed to go into another department during lunch time ; early in March , Shirley Frederick was called to Day's office and told she would have to eliminate " visiting" on her part completely ; Ira Jewel Taylor testified that in September , during her lunch period , she was talking to Carolyn Clary at the latter's machine while Clary was working . Day came over and asked if she had permission to do so . Learning that she did not he told her that from then on she was to get permission from both supervisors to talk to another employee working under a supervisor different than she. 3 37593 0 - ^5 - 31 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel maintains that the mechanics and the carpenters were acting as agents for Respondent in matters pertaining to the union campaign. On his representation that such agency would be disclosed I allowed testimony of interrogation of employees by mechanics as to the employees' union activities and other testimony of illegal conduct by mechanics if they were acting as Respondent's agents. The record does not establish such agency. Accordingly, the instigation of the above petition cannot be attributed to Respondent. Therefore, I find no merit in the General Counsel's allegations that Respondent circularized or sponsored the petition. But the preponderance of the evidence does show, I believe, that the Respondent knowingly and discriminatorily permitted the circularization of the petition. The wholesale open solici- tation of signatures by the mechanics at a time when the rules had been tightened, and were being otherwise strictly enforced, shows a disparity of conduct on the part of Respondent toward the union advocates interfering with the rights guaranteed its employees in the Act-- I so find.8 This disparity is all the more apparent when considered in the light of Respond- ent's action regarding its employee Willis Lee Smith which appears below. The union meeting at Williams' home on February 9 broke up about 9:30 p. m. According to Williams' testimony, standing on the porch at that time with several of the departing guests, she saw employee Bettie Hughes drive by the house with Plant Superintendent Day in the car. The porch was located about 25 feet from the street which made a right-angle turn at the edge of or just beyond her property. There was no street light at the point or in front of the house but the porch light was on. Williams' testimony was that Hughes was driving her own car with Day on the front seat beside her. Williams called Shirley Frederick's attention to the car and occupants.9 The car proceeded past the house on the side of the street opposite the house and turned the corner. Ten to twenty minutes later the car drove by again by which time most of the people had left. Frederick was still there when the car came by again. On direct examination Frederick testified only that Williams called her attention to Day driving by the house, and that Frederick thought "there was a lady in the car" but does not know who she was. On cross-examination she further testified that she saw Day and the car only once and then changed her testimony to the effect that she saw the car both times it passed. She also testified that Williams had said Day was in the car but "wanted to make sure" and asked Frederick "is it? " Then she denied that Williams had indicated any un- certainty about the matter but later admitted she was not sure of Williams reaction. Frede- rick was unable to say whether Day was looking toward the house as the car passed. Nor could she testify that she recognized the driver of the car as a person she had ever seen before. ii Day denied the entire incident. i credit Day. Apart from the inherent improbability of being able to see who was in an automobile at night on the opposite side of the driver from the point of observation some 30 to 40 feet away, there is such damaging conflict in the General Counsel's evidence as to make it unacceptable. Nor, even though I credit Lois Golman's testimony that she saw Supervisor Harold Poin- dexter standing on the sidewalk on Main Street in Nachez at the Union Hall entrance as em- ployees came out of a union meeting one evening, do I find that such evidence establishes surveillance on the part of Respondent. Sometime during the first half of August, Supervisor Frank Dungan was called into the of- fice by Plant Manager B. R. Rippitoe who told Dungan he was not being discharged but was advised to resign. Rippitoe told Dungan the latter's work was good but that Respondent did not like what was going on in the union campaign; that Dungan had been showing partiality to the union people and "it was showing up on other employees that were nonunion." Dungan resigned. I find no violation of the Act on this evidence. The General Counsel also alleges as a violation of Section 8 (a) (1) of the Act, statements made to the employees by management referring to the Union as a "bunch of Communists stool pigeons." In his brief the General Counsel admits, citing Globe Wireless, Ltd., 88 NLRB 1262 and Editorial "El Imparcial" Inc., 92 NLRB 1795, that the Board has held the contrary but argues that the Board should be given a chance to review its rulings in this 8 Salant R• Salant Inc , 92 NLRB 417; Jaques Power Saw Company, 95 NLRB 440 9It was only on cross-examination that she testified that she mentioned this matter to Frederick. Although not specifically saying she mentioned it the first time the car passed the house the context of her testimony, I find, so shows ii She testified that she did not know Berrie Hughes by name. BLUE BELL , INC. 527 regard. I find nothing in the reports to indicate that the Board has changed its view. Accord- ingly I find no violation here. C. The discrimination 1. Lamar Feller Felter worked for Respondent as an oiler . Roy Smith was his supervisor . According to Felter's direct testimony he joined the Union in March. Sometime in May, about 3 months after he was hired , Smith called Felter into the shop and started talking to him about the Union. Smith said that all the mechanics were against the Union and asked Felter to take the same position . Smith also asked how Felter "was " on the Union telling him that he had heard that Felter was for the Union. Felter said he had not yet made up his mind. During this conversation Smith gave Felter a 5-cent an hour raise explaining to him that it was because his "work was going on good." Asked whether or not anything was said to him about his work between this time and the election Feller testified , "Not that I remember." His employment terminated sometime in August. On cross-examination Felter testified that he quit his job at Smith 's request. At that time Smith had told him his work was unsatisfactory . Smith did not explain his comment and Felter did not request an explanation. But Felter did ask Smith if the latter would give him a good recommendation which Smith said he would do. Smith testified that when he hired Felter he told him that as an oiler Felter had the oppor- tunity , if he showed an interest in his work and did a good job, to work up to the position of mechanic . At the time Smith gave him the 5-cent raise Felter had not shown much progress, but gave him the raise because as a matter of policy raises were given to new men on the payroll as long as Felter then had been. He also discussed Felter 's work at the time and en- couraged him to do a better job. According to Smith's further testimony Felter thereafter did not show any progress and did a poor job. Two instances were testified to by Smith, neither identified as to time, in which he criticized Felter about his work . Finally Smith told Felter that he had shown "practically no progress " and to advise him to quit , that if his work continued as it was he would never be able to progress to the position of mechanic and that he would eventually be let out . Felter quit. Although testifying that at the time he was given the raise, Felter volunteered the information that he was not for the Union. Smith de- nied any of the other comments about the Union at that time attributed to him by Felter. He further testified that so far as he knew , up to the time he heard Felter testify, Felter was against the Union. While the testimony of both witnesses in this matter is subject to question in some respects, I conclude and find that the General Counsel has failed to establish by a preponderance of the evidence that Respondent had knowledge of Felter 's union adherence or membership at the time he was discharged . By Felter 's own admissionhe signed the antiunion petition. According to him he told Smith he had not made up his mind about the Union . Smith's testimony, which I am inclined to credit was that Felter told him he was not for the Union . The only evidence which might support knowledge of his union attitude was Felter's testimony that he associated with prounion employees . This , without more substantial evidence of knowledge , on the part of Respondent , is insufficient to support the General Counsel's allegation of discrimination against Felter. 2. Helen Pepper Pepper was a native of Great Britain having come to this country as the wife of an Ameri- can serviceman. She started working for Respondent in April 1950. During Weant's first visit to the plant in early 1951 she had a conversation with him in the office regarding com- ments he had made pertaining to unionism in Britain . She questioned his analysis of conditions there telling him what they did have was because of the unions. Pepper 's work was on sew down curtains . Several other girls were also engaged in the same operation. Among the regular size bundles requiring this operation were bundles of large size pants coming from Myrtle Rushing who sewed buttons on the large pants . It is clear that Rushing had no authority regarding the distribution of these bundles to the curtain girls, that being the function of the bundle boy. According to Pepper 's testimony , after the union campaign started she began to get a disproportionate number of the big bundles , many of them brought to her by Rushing or by 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the bundle boy at Rushing's direction. On the day of her discharge Pepper complained to Thelma Rogers, her supervisor, about the matter. Rogers told her the bundles had been coming off another line, that she shouldn't be doing them, that it was unfair and that she would take it up with the supervisor of the line in question. Pepper thereupon continued working. Later, returning to her machine after the lunch recess Pepper found another large bundle. She picked it up, took it to Rushing, and threw it down. Then Pepper saw Rushing go toward the supervisor. Soon Rogers came to Pepper's machine, checked her out and took her to Assistant Superintendent Adams. Adams asked why she had refused work. Pepper told him she had explained to her supervisor. Adams told her she had no right to refuse work, that she "hadn't been doing right" and had taken time off without notice. Thereupon she was discharged. On cross-examination Pepper testified that the disparity in distribution of the big bundles was happening to "the other girls too," and that when called into the office she stated she would not do any more of the large bundles then changed her testimony denying she made the statement. It appears that some months previously management had caught Pepper trying to avoid doing some of her rejects by disattaching the tags identifying them as hers. She was warned at that time if there was ever again any occasion to call her into the office about her work she would be discharged. While it could be that Rushing and the bundle boy conspired against Pepper regarding the distribution of the large bundles, there is nothing to show that Respond- ent condoned such conduct or was aware of it before Pepper was called into the office about it. Furthermore, there is considerable doubt from Pepper's own testimony just how real the disparity, if any was. In any event, based on the entire record about the incident, and in view of Pepper's previous aberration and warning I find her discharge not to have been discrim- inatory within the Act but to have been for cause. 3. Euna Ratcliff Ratcliff had worked for Respondent 2 years during the war and returned about January 1951 at which time she was put on side and inseaming, a new operation to her. During the war her work was never criticized and she had made production. She joined the Union at the beginning of the campaign and attended the initial meeting at Williams' house. She also became a member of the organizing committee and on the day of the election transported people to the polling place in one of the organizers' cars. About 3 weeks before the election she was called into Day's office where, in the presence of her supervisor, Laird, Day asked her if she knew that her unit hour had fallen. She said that she did, explaining "I haven't been feeling well lately. I can hold my unit hour up until a little after dinner and then it begins to fall and I can't seem to hold it up--and I have been having quite a lot of machine trouble lately." Day told her they couldn't keep girls who did not make a 60-unit hour. Ratcliff said, "I'll do my best and that's all I can do." Day replied that if she failed to do so he would have to let her go. On the day of the election Ratcliff obtained a month's leave of absence to have an operation. At this time she received a copy of her leave slip, which she never read. About 10 days after starting her leave she learned that she was pregnant and would not have the operation. She decided to use the remainder of her leave to rest up. Ratcliff was to have reported for duty on September 3. She had gone to Brookhaven some 75 miles from Natchez to get ner niece to take care of her children intending to be back on the 2d. Her niece not being home she waited over the 3d and called Day the morning of the 4th to tell him why she hadn't come in the day before. He told her there was no need for her coming in as they had already terminated her explaining that she hadn't gotten in touch with the Company in any way to let them know if she was coming back or not. She protested that she didn't know she was supposed to do so. Day said, "You did know you were supposed to re- turn to work yesterday morning" to which Ratcliff replied, "sure did," and tried to explain the circumstances. Day would not listen to her. Day's testimony supported by a blank copy of a leave of absence request shows that unless a request for an extension is made prior to the termination of an employee's leave, her name is removed from the payroll if she fails to return to work. According to Day this policy is strictly enforced and is automatic. The evidence reveals that on July 20, 1951, Inez Tew applied for and received a 3-week leave expiring August 13. 'lbw had not reported back for work as of August 27 and was terminated. Day testified credibly that the reason Tew was not BLUE BELL, INC. 529 terminated until August 27 was because he was absent on his vacation and did not process the termination until he returned. On the record I could hardly hold that Respondent's action regarding Ratcliff was discrim- inatorily motivated. While the 2-week difference on the timing of the 2 terminations gave rise to a suspicion of disparity , Day's explanation is plausible. Furthermore , there is nothing to show that Tew would have been permitted to resume work had she appeared after her leave had expired but prior to August 27. Nor is there any reason to believe that Respondent would have taken any overt action for several days after September 3 regarding Ratcliff had she not pointed up the issue by her call to Day on September 4. 4. Lois Golman Golman worked several times for Respondent since 1941 quitting each time . Her last con- t}nuous employment dated from July 1950 at which time she was on a back -sergmg operation. She joined the Union and was on the organizing committee . About a month before the election she passed out union literature in front of the plant before and after work and during the lunch hour. Rogers passed by her on one of these occasions but made no comment. According to her testimony , before her last period of employment Golman had never been called to the office , discharged, or criticized about her work. After February 1951 , Golman began having an unusual amount of machine trouble . Before the Union came in Golman had had trouble making production but had no complaints about it On about April 1, however, she was called in Day 's office and told in the presence of Rogers , her supervisor , that she was not making a 60 -unit hour and that Respondent would not keep girls who did not make production . She was also told that she would be given a week to attain production . Golman did not mention machine trouble to Day at that time. Although she continued to have machine trouble she did not thereafter mention it to her supervisor. Golman was 1 of 2 back sergers on her line. The other was also called in Day's office about her production at the time Golman was According to Golman the other serger's pro- duction was at best no higher than hers In May, Golman was again called into the office and warned that she had to get her produc- tion up. She made no comment nor did she complain about machine trouble . About a week before she was discharged she was again called in to the office -- this time by Adams. Park- hurst, who was now her supervisor , was there too. Adams commented that she had not been making standard , " that he knew she could because she had done so in years past. Golman pointed out that the production standard was less those days . Adams asked what her pro- duction was currently . She replied that it was 311 bundles . '2 According to her testimony that was exactly 60 units or standard. Adams reminded her of her previous warnings and told her he would give her another week to make production She told Adams she was having a lot of machine trouble and had to wait for thread - -which was unusual Golman did not remember if she had machine trouble or not that week. In any event her production for the week was below 60. On August 30 Golman was called to the office. There Day told her her grace period was up, that she had not "made it," to punch out and wait for her time. Golman refused to punch out but received her time . Golman could not recall if her serging mate Hazel Plunkett was still working at that time or not. Powell testified credibly that Golman at the time of her discharge was the lowest of 9 sergers except for a learner who had been hired 10 weeks before and 1 other who was out at the time and never returned to work. Except for these 2 Golman had been lower than the others for approximately 4 months . Furthermore , during the last 4 weeks of her employment she had 25 minutes of machine trouble all of which occurred on the first day of the 4-week period. From Powell 's cross-examination it appears that Plunkett was the employee referred to in his direct examination who was below Golman in production . The week ending August 19 was the last time Plunkett worked. Although the circumstances of Golman's employment, union activity , and discharge raises a suspicion of illegal discrimination against her by Respondent, I do not believe that the General Counsel's allegation regarding her has been established by necessary preponderance of the evidence. iiA 60- unit hour was standard or as it is sometimes referred to herein "production " i2 From its context I find this to have been her production for the particular day involved The record shows, and I find , that production was computed and considered on the basis of weekly averages. 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Considering Golman's previous employment record and the fact that she had always been a submarginal operator and particularly in view of the warnings (which started long before Golman passed out union literature at the plant) and the length of time she was given to achieve production I find her discharge to have been for cause and not discriminatory. 5. Sally Turner Turner had worked continuously for Respondent from 1945 to the time she was discharged. She had also worked for Respondent prior to 1945. She testified as follows: Prior to joining the Union in 1951 she had never been criticized about her production. Although she was not a speedy, high-unit operator she had made production on her operations except on the army contract upon which the company wanted perfect work. She, along with the 6 or 7 other side and inseamers on the army contract, complained to Weant and top management about the rate on their work. Mann told them they would be given 10 units until management was able to make studies on the operation which the employees agreed was fair. As a result of the survey the standard was set at 1/4 of a bundle less but the operators were required to do their own ripping which they had not been required to do previous to the study. They were also told that management was now satisfied that they could make production. Along in March, Turner began having trouble with her machine skipping stitches. This continued to the day she was discharged. In April the army side and inseamers were called in by Mann and told if they did not gain speed it would be necessary to replace them. 13 Turner complained that her machine was not as fast as it should be and was told it would be checked. On one occasion the last part of April, Day and Powell were at her machine which was making unusual noise. Turner called it to their attention. One of them commented, "Well, it does make a racket," but nothing was done about it. She asked mechanic Rutherford to fix it. He listened to it and said "Well, if it gets any worse, let me know." and walked off. Ten days before her discharge she was again called in the office. Day asked, "Sally, why aren't you getting production? " She replied, "Well, Mr. Day, I just don't know. I just can't seem to get it. My machine sews bad and those bundles are bad." Day said, "Well, I want you to get production." She said, "Well, Mr. Day, you don't want me to get it any worse than I want to get it." He asked, "Sally, do you really want to get it? " She told him she did. Then he said, "If you want to, you can; I will give you two weeks to get production and if you don't have it in those two weeks I'll have to let you go." Turner had worked with her supervisor, Parkhurst, in the 40's as a fellow operator--a friendly relationship existing between the two at that time. However, according to Turner, as of March or April 1951 this relationship had changed. Parkhurst then "nagged" Turner "a lot." As an example of Parkhurst's antagonistic attitude toward Turner the latter testi- fied about a conversation between the two relating to a mix-up of bundles on the part of some other employees. Turner made a critical remark about them to Parkhurst. The latter com- mented, "Sally, nobody is perfect." Turner said, "Yes, I am." Parkhurst retorted, "You are either ignorant or conceited" and walked off. Turner was discharged on May 4. The day before she was discharged she lacked on bundle of production. On May 4, sometime before the afternoon break, Day took Parkhurst into the office. They were there a "good while" during which the break period started. Turner was just starting for a coke when she met Parkhurst who told her Day wanted to see her. Day told her, "Sally, I am sorry, but we are going to have to discharge you." Parkhurst appar- ently was present at the time. Day told Turner her unit hour was lower than anyone else's. She denied it. Day insisted. Turner claimed she had had machine trouble all day a day or two previously and also that she had been getting bad bundles saying that Parkhurst "can tell you how bad the bundles were." Parkhurst said, "I sewed them, Sally. I could sew them. Turner said, "Yes, by stretching them and pulling them and taking your time you could sew them." Parkhurst retorted, "You could sew them; I sewed them." At this point apparently Parkhurst left. Turner then complained that Parkhurst was picking on her claiming that she did not treat Turner like she used to and that Parkhurst did not seem to want to get along with her alluding to the fact that "she even called me ignorant one day." Day denied that it was so and said that he frankly did not think Turner was trying. 13 Turner also testified on cross-examination that previous to this time they had been told the same thing by Day. BLUE BELL, INC. 5 31 There is little conflict between Turner 's and Respondent 's testimony about her discharge. The only essential difference is Day's testimony that the employees were given a 6-week trial period with the understanding that the one who showed the least progress at the end of that time would be displaced. Although testifying that she did not remember such an arrange- ment Turner did not deny it. I credit Day's testimony in this respect . I also find that at the time of her discharge Turner had shown the least progress of the group in question. As in the case of Golman, although the record raises a suspicion that Respondent may have been motivated by antiunion considerations in its discharge of Turner , I conclude and find that the allegation has not been established by a preponderance of the evidence . Although Turner's record as an employee had been better than Golman's she had equal and ample warnings and opportunity with the other employees to have avoided her discharge. Considering these repeated warnings and her failure to respond , the circumstances of her discharge would seem to belie a discriminatory or arbitrary motive on Respondent 's part. Any inference that Respondent's purpose was to establish a pretext for Turner 's discharge by such treatment particularly when control of the factors were left in Turner 's hands is too tenuous to accept. 6. Myrtle Wisner Wisner started with the Company in 1949 as an inseamer. She was in the group of army inseamers warned about their production by management in late February or early March which resulted in the discharge of Turner . She ultimately attained production on that opera- tion. Wisner testified , by the aid of leading questions , that Day told them that he understood the side and inseamers "were all on the wrong side of the fence." Whether Day made this statement in the office or not Wisner could not say nor did she testify when the statement was made. I credit Day 's denial that he made the statement. According to her testimony she had never been criticized about her production prior to February 1951. Wisner joined the Union about the middle of February. At the plant she associated with the prounion group . During late June or early July she had a union meeting at her residence. For 3 days before the election she ate at the union canteen which was visible from the company cafeteria. Sometime in March at her machine , according to Wisner 's previously credited testimony , her supervisor , Laird, commented, "I understand there is a lot of union talk going around. What do you think about it? " Wisner replied that if it would do any good she hoped they would get it. Laird answered , "So do I." The first part of August , Wisner was put on a folder operation. Immediately her production declined, due, according to Wisner , to the trouble she began having with her machine. Two difficulties developed with her work on the folder--a great deal of pleating occurred and she had trouble maintaining proper width margins in the seams. This she attributed to the improper functioning of her machine of which she complained continually to Laird, the mechanics , and management . Laird would try the machine , sew very slowly , not do as well as Wisner , and then tell Wisner she could find nothing wrong with the machine. On cross-examination Wisner admitted that Rogers also had tried her machine but denies that Rogers did "fine" testifying that Rogers had to "rip up too ." Wisner at first testified on cross-examination that she had no recollection of asking any other operator to try her machine then emphatically denied that Winnie Bell Hall had done so at her request. She further testified that she had tried sewing on a spare machine with a folder attachment and had completed a bundle in about an hour which she described as standard. This was con- tradicted by Mann's uncontroverted and credited testimony that 42 minutes would have been standard for a bundle. Two weeks after starting on the folder she was called into the office by Day and Mann and told that she was not making satisfactory progress , that she would have to make production or be discharged. According to her Mann at this time asked her to get into some other kind of work suggesting, perhaps , clerical work. Wisner complained to Day at this time about her machine. Day asked Laird about the machine . Laird replied that it sewed perfectly. On October 5, Laird called Wisner to her desk and asked her if she would rather quit than be fired. Wisner refused to resign although Laird made several requests of her to do so. Thereupon Wisner was discharged. Wisner had been a reporter on the plant newspaper from November 1949 until two issues after she joined the Union . Then Personnel Officer Oliver took her off telling her she wanted to give others a chance to write. According to Wisner in 1949 the Company allowed employees 21. to 3 months to make production. She also testified she had always made production on 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD every operation she had ever been on but the folder and that 32 months after she was hired had sewn samples. Mann's direct testimony was that the folder operation was introduced in late 1950 or early 1951 and had been under study, with other operations, from the time it was started. It involved a large number of operators most of whom were low on production. During the latter part of the summer he and the local plant engineer had spent most of their time on the study estimating the period as covering at least 2 or 3 months. The conclusion they reached was that the operators were not trying. The conditions were right and the values were right. During time studies of an hour's duration the operators would run above standard, yet by the end of the day they would have fallen below. In all, a total of 7 or 8 operators including Wisner were terminated according to Mann. This had a stimulating effect on the others so that gradual increase in efficiency occurred. At the time of the hearing the operation aver- aged above a 70-umt hour for trained operators. After the army contract was completed In June, Wisner was put on the folder operation. She got to about 2/3 of standard and "tended to level off and stay at that level." From her previous experience and "from all the factors surrounding Mrs. Wisner" it was felt that she should make standard. Wisner's performance was compared with that of 2 other opera- tors, Marjorie Henn and Maudie Beasley, who started on the folder at the time she did. For the 13 weeks she was on the operation, according to Mann's explanation of a chart offered by Respondent, Wisner was below the others in progress and absolute performance. That her production "tended to level off" is refuted by the chart. If anything, that conclusion would be more applicable to Beasley's record than Wisner's.14 Mann admitted that Wisner had been an above-production operator until she was put on the folder which was the first week in July. He also admitted that Respondent tries to keep good operators--that operators below 60 were unacceptable "depending on the circumstances" and that at the time Wisner was discharged 21 of the folder operators were below 60. Of these, 3 had just been trans- ferred to the operation that week and 9 "had been fired within the ... three months" pre- ceding the hearing. Mann denied telling Wisner she ought to find other work Day's testimony generally corroborated Mann's. He further testified that he discussed Wisner's production with her individually at least 3 times warning her that she would have to improve or be let out. Day admitted good operators have been difficult to get "at times" and that in 1951 Respondent was putting people on as fast as they could train them. He further admitted that it was preferable to have a person who had been employed a year, if her work was satisfactory, to taking on a new person they knew nothing about. He also admitted that no matter how experienced employees may be they occasionally fall below standard, apparently in explanantion of the "circumstances" referred to by Mann which would account for keeping below-standard operators it appears from Powell's testimony that of 6 operators who were lower than Wisner at the time of her discharge all were new employees with total employment ranging from 11 to 21 weeks, the latter employee having been transferred from the army operation to the folder operation. Of these, 1 was still employed, 4 quit, and only 1 was terminated. Both Rogers and Laird testified that they tried Wisner's machine and found nothing wrong with it. According to Rogers, she had operated that type of folder attachment for about a year being the first one in the Natchez plant to do so. Laird, on the other hand, had never operated a folder on a full-time basis but had learned the operation as a part of her super- visory duties. Laird testified without denial and credibly that she had worked with Wisner numerous times trying to help her improve and progress. Two weeks before Wisner's discharge Laird urged her to improve in performance and told her that Respondent "wouldn't be able to keep her unless she did show a great improvement, because her unit hour was so low, and she said she would try." Winnie Bell Hall testified that Wisner had asked her several times to try Wisner's ma- chine. Finally she tried it sewing 5 or 6 garments. Hall told Wisner, "Myrtle, just to tell you the truth, it sews pretty good to me." Wisner shrugged, "Well, I guess its just me " The head mechanic, Roy Smith, testified that the mechanic or Wisner's line asked him 2 or 3 times to help on Wisner's machine. He would make minor adjustments fixing it to the 14It appears from Beasley's testimony that she was terminated June 27, 1952, for un- satisfactory progress Beasley also had joined the Union and was a member of the orga- nizing committee. According to her testimony it was not unusual for girls to be terminated for unsatisfactory progress prior to February 1951 BLUE BELL, INC. 533 best of his ability. Neither he nor the other mechanics could satisfy Wisner . Smith dented in effect sabotaging Wisner 's machine. 15 Rogers , Smith, and Hall all testified that the pleating and margin trouble Wisner was having was the fault of the operator and not the machine attributing the trouble to improper feeding of the material. Concluding Findings as to Wisner As with the cases of Golman and Turner there is an inescapable undercurrent of suspicion that Respondent's purpose and motivation was to eliminate Wisner, not because of her failure to make production or progress but because of her union activity. Here again, how- ever, I feel the General Counsel has failed to support his allegation regarding Wisner by a preponderance of the evidence. There is no doubt that Wisner 's production on the folder was below standard . The weight of the evidence, I find, supports the conclusion that Wisner 's difficulties were not caused by the machine but were largely the result of her own limitations . With respect to the con- flict between the testimony of Wisner and that of Laird, Rogers and Winnie Bell Hall as to their sewing on her machine and the results they got, I credit the latter. In the face of Wisner's testimony that she could not recall having asked any fellow employee to try her machine, her emphatic denial of having so asked Hall did not ring true. Moreover, her testimony that the supervisors in trying her machine could produce a faulty job yet blandly tell her there was nothing wrong with the machine and by implication the faulty work they had just produced seems incredible on its face. Moreover, on the basis of her own testimony, it would appear that when Wisner tried another machine her production thereon was only about 5 percent better than the production she had reached at the time of her discharge. Mann's testimony that 6 or 7 other low-folder operators were also terminated , although not detailed, stands uncontroverted in the record. So does his testimony that as of the time of the hearing trained operators were averaging above 70 and that the upward trend began with the termi- nations. As to comparison of the records of Beasley and Wisner I have this comment: Beasley was also a union member and, unlike Wisner, was a member of the organizing committee. Nine months after Wisner's discharge Beasley was also discharged for failure to make produc- tion. Wisner was given repeated warnings and over 3 months to make production. The record does not establish that her discharge was discriminatory. 7. Ellie Myrl Delaney Delaney had worked for Respondent since about 1949 . She was on the union organizing committee. Her conversation with Rippetoe has already been set forth . According to her testimony, on Friday afternoon, March 10, just before quitting time she had asked Laird, who was not her supervisor but who supervised the line next to the one she worked on, if she could come in to work next day--Laird told her she could if she wanted to. However, the next day her child was in so she called Laird explaining why she couldn't come in. Laird told her it was all right. The following Friday she again asked to be allowed to work this time making the request to her supervisor , Rogers , just before quitting time. Rogers, who was at her desk writing , gave her assent without looking up. That evening Delaney asked her brother to tell her sister , Jewel Taylor , to come by the next morning to pick her up. Taylor never came by so Delaney did not go to work. The following Monday when she went to punch in Day stopped Delaney at the clock and took her to the office telling her it would do no good for her to check in. In the office Day told her he was going to let her go for not coming in to work Saturday. He also reminded her when she had come back to work at the plant she had begged him to let her come back. Delaney tried to explain to him. He would not listen but left her in Personnel Officer Oliver's office for her time. There Delaney told Oliver that she thought Day was discharging her because she was on the union committee. Oliver thereupon left the office and returned with Day. Day took Delaney back into his office and told her "not to try to scare hum about the union." Delaney got her time and left. 15 The General Counsel's witness, William E. Hill, Jr., testified that, although the Company's policy was to keep repair costs as low as possible, it was their purpose to fix machines to the best of their ability; that no instructions were issued to do improper work. Their object was to fix machines so they would stay fixed 5 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On cross-examination Delaney testified that the first Saturday she failed to come in she called Oliver about it who said it was all right. She also testified that on the second Friday, mechanic Roy Smith was working on her machine 15 or 20 minutes before quitting time and asked if she were going to work the next day. She replied that if she were she would use another machine. She also testified at first that she had already spoken to Rogers about working. Later she changed her testimony saying she had not yet spoken to Rogers at that time. She further testified on cross-examination that her ride having failed to materialize, she called Oliver again and that explanation was accepted. She also admitted that Day had told her it wasn't true that Taylor was to have picked her up; that Taylor had told him she knew nothing about it and that on the contrary Delaney was supposed to have picked up Taylor. Taylor's testimony about the matter was that the brother had never conveyed Delaney's request about picking her up that morning, that she waited for Delaney to pick her up, having driven with her all that week, 16 but finally took her own car and was almost late to work as a result. At work Rogers asked Taylor why she had not picked up Delaney. Taylor said she did not know she was supposed to. Taylor further testified that the following Monday she talked to Day about the matter asking him why he discharged Delaney. Day told her it was because Delaney failed to come in the two Saturdays. Taylor explained why Delaney had not come in. Day then said that it was not only the failures to come in, but that he was going to discharge her anyway, that she was not showing any progress in her work and "that she was apparently asking for trouble" that she had been signing girls for the union "had threatened to burn houses down" and had told other employees that if she were they "she wouldn't work but 40 hours a week." On direct examination Roy Smith testified that during the last half hour on Friday the 17th he was working on Delaneys' machine. About 5 minutes before quitting time he asked her if she would be in to work the next day so as to know if he should finish it that night. Delaney replied, "No, I won't be here. I work here five days a week and that's enough for anyone." Later he told Day he had not finished Delaney's machine but would do so in the morning. Day said he thought Delaney was supposed to be in to work the next day. Smith told Day what Delaney had said about not coming in. On cross-examination Smith testified he did not recall nor did he think that Delaney had said that she would not be in the next day if she did not have a machine to sew on. Respondent's credible evidence shows that Saturday work was for the purpose of making up on operations that had lagged so that the subsequent operations would be sufficiently supplied with a flow of work to avoid layoffs during the ensuing week and provide a smooth flow of production. Rogers testified that she had requested Delaney to work on both the Saturdays in questions. The first Saturday, Oliver had informed her that Delaney had called about car trouble. The following Friday, assured that Delaney wanted to work, Rogers admonished her to be sure to come in. The next day about 8:30 Oliver informed her that Delaney had called saying that Taylor was supposed to have picked her up but did not do so. After speaking to Taylor about it Rogers reported to Day. Whether or not Delaney made the flat assertion about not coming in attributed to her by Smith, and whether or not she asked or was asked to work on the two Saturdays in question, I believe the record supports the Respondent's position that her discharge was for cause and not discriminatory as alleged by the General Counsel. I so find. Smith may have misunder- stood the tenor of Delaney's remark or he may have deliberately misrepresented it to Day. In any event it seems to me that in piecing together on that Saturday morning the whole story as it was revealed by Smith, Rogers, Oliver, and Taylor, Day was justified in assuming that Delaney had deliberately and even untruthfully taken advantage of the Company regard- ing her rights as an employee. 17 16Delaney testified that normally both she and her sister drove to work in their own cars. There is no indication in Delaney's testimony that she had driven her sister to work the previous week in any event, it appears from Taylor's testimony that she and Delaney drove home from work together on the 17th. 17 In spite of crediting Taylor's testimony as to her conversation with Day about her sister's discharge I reach this conclusion While Delaney's union activity may have been in Day's mind when he discharged her, from the record and the tenor of Day's remarks to Taylor I do not believe that it was the major motive for Day's action. I conclude, there- fore, that absent any union connection, Day would nevertheless have discharged Delaney BLUE BELL, INC. 535 8. Shirley Frederick Sometime in July the Respondent sent a 5-page campaign letter signed by its Vice-Presi- dent Weant to all its employees setting forth arguments against the Union. The union ad- herents drafted a reply to this letter. It was addressed to Weant and signed by Shirley Frederick who volunteered to sign it. The letter was mimeographed and designated copies to all employees and to the Board. A typed copy was mailed to Weant. Each of the major paragraphs of the letter was directed to points covered in Weant's letter. Paragraph 1 commented in part, "Your obvious contempt for the truth is indicated in the first paragraph of your letter wherein you stated ...," etc. The second paragraph starts, "You deliberately misrepresented the facts again when you said ...." The third paragraph begins, "You lied again when you said...." The fourth paragraph reads as follows: We know that you take a lot of pride in running sweat shops . You gloat that you don't have a union in your 23 shops . WHAT YOU FAILED TO SAY IS THAT YOU ARE RAKING IN THE PROFITS ON OUR SWEAT AND HARD WORK AND PAYING US ONLY WHAT THE LAW FORCES YOU TO PAY. On July 23, 2 or 3 days after the letter was sent, Frederick was called into Day's office. Her testimony was as follows: The first thing he said, "You are fired," and I asked him why, and he said, "For disrespect to my office and Mr. Weant," and I told him Ididn't think Mr. Weant had too much respect for me to send me all that propaganda, and by that time I think Mr. Mann stepped in and said, "Surely, I guess you know Blue Bell could sue you for this." And I looked back at Mr. Day then, poor little me, and said, "Give me my time." I didn't have anything else to say. Mann testified that Day asked Frederick if she wrote the letter and signed it. Frederick replied that she did saying, "I called him a liar because he is a liar." Day testified that Frederick had said, "He told lies in his letter, I answered it." In Mann's words Frederick was discharged because "Mrs. Frederick had written a letter that showed extreme dis- respect for my boss. We felt that it would interfere and disrupt normal discipline within the plant, that we could not afford to let breaches of discipline like that go unnoticed. We dis- charged her for extreme disrespect to Mr. Weant." The General Counsel contends that Frederick's discharge was discriminatory within the meaning of the Act. No authority is cited by either side to support its position. Although I have been unable to find a case directly in point, an analysis of the cases bearing on the issue convinces me that Frederick's discharge interfered with rights guaran- teed employees in Section 7 of the Act and violated Section 8 (a) (3) thereof. There is no contention that the letter was libelous or otherwise tainted by illegability. The letter was not a gratuitous act of the Union but a campaign missive made in direct and specific reply to campaign arguments made by Respondent. It involves no conduct directly connected with the course of employment or the performance of duties. 18 Although blunt and forceful it is strictly and obviously a campaign document and essentially no more intem- perate than arguments advanced against the Union by Respondent. 19 I believe the situation here is analogous to the situation involving the relationship of a union and an employer in bargaining negotiations. The Board has said in Butcher Mfg. Corp., 76 NLRB 526, "A frank, and not always complimentary, exchange of views must be expected and permitted the negotiators if collective bargaining is to be natural rather than stilted. The negotiators must be free not only to put forth demands and counterdemands, but also to debate and challenge the statements of one another without censorship, even if, in the course of debate, the veracity of one of the participants occasionally is brought into question." 18I fail to see how, as contended by Respondent, discipline in the plant would be affected. Respondent offered no evidence to support its conclusion 19In this connection the credited evidence is that Maudie Beasley had reported to the Union that Mann had told her the Union "didn't do a thing but tell lies." Beasley so testi- fied When examined by Respondent's counsel about the matter Mann testified he did not recall making such a statement to Beasley but was quick to volunteer the assertion, "But the Union does tell lies." I credit Beasley 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, in the words of the Board in Electronic Equipment Company, Inc., 94 NLRB 62, I conclude that the letter in question involves "no more than a somewhat unrestrained variety of what is usually accepted as campaign propaganda," and as such was within the proper bounds of concerted activity protected by Section 7 of the Act. 20 It follows that Frederick's discharge was discriminatory within the meaning of the Act. 9. Willie Lee Smith According to Respondent's evidence Willie Lee Smith was laid off for a 2-week period as a disciplinary measure for distributing copies of the Frederick letter during working hours and outside of working hours. Not only the distribution of the letter itself, but the contents are ascribed as reasons for Respondent's action. Smith testified that on the day of her layoff, July 23, she had been passing out copies of the Frederick letter from about 6:30 a. m. to about 6:50 a. m. Realizing that "they" had been watching her activity she went to her machine a few minutes before 7 to make sure that "I was going to be at my machine and ready to go to work when 7:00 o'clock whistle blew, which I was." A couple of minutes after the whistle blew Day came over and said, "Willie, I understand you are handing out some letters." Smith admitted it. Day said, "You know that's against the rules" and took her over to show her the rules. About 55 minutes later Smith was called to Day's office. There Day told her, "Willie, you know as well as I do this is against the rules, I can terminate you on this. Right now I am just going to give you a discharge for two weeks." Smith asked Day if he saw her handing out the letters. He told her no. She then asked who told him. He replied that the supervisors had observed her. Smith testified that at no time did she pass out the letter on work time. Day testified that about 10 minutes before work commenced "the operator" came to him and told him that Smith was passing out some kind of literature in the plant. About that time a supervisor also gave him the same information. Day then spotted Frederick "all the way across the house from where she worked." He "kind of kept an eye on her," but "didn't see her pass out any" himself. After the horn sounded at 7 o'clock Day went to his office. In about 5 minutes an operator came in and told him Smith had given Mae Belle Prichard "some kind of circular" Day asked if it had occurred after the horn had sounded the starting time and was told it had. The name of that operator was Frances Scott. She testified that about 5 or 6 minutes after work started she saw Smith, standing at her machine facing the machine behind her, take a folded piece of paper out of her pocket and hand it to the girl at the other machine. Scott testified that the missive was a copy of the letter in question. Instead of discussing it with her supervisor, Scott immediately went to Day with her information. It is obvious that at this point Scott had no way of knowing what the paper in question was. Moreover her explana- tion of how she knew what the paper was is incredible on its face. 2i In any event, even if I were to credit Respondent's version of the incident, which I do not, I would find that in view of the disparity of the treatment accorded the mechanics regarding the petition circulation, the action here taken against Smith was discriminatory within the meaning of the Act. Respondents contention that the subject matter of the letter itself made its action privileged is disposed of by my conclusions regarding Frederick. 10. Ira Jewel Taylor According to Taylor's testimony she had started with Respondent in 1949 setting and closing hip pockets, had a break in employment, and returned to work early in 1951 on the 20Cf. N. P Nelson Iron Works, 98 NLRB 1270 cited by the Board in Electronics Equip- ment case supra where the Union circulated an election statement accusing the employer of "cheating" the employees, called him a "bully" and another unspecified name described in the circular as a "five letter unprintable word." 2iShe testified on cross-examination that the recipient did not show her the paper but had come into the restroom when Scott was there. Scott testified that the woman "went in the place there " When she came out Scott went in. It was Scott's testimony that before the woman had gone in, the letter was not there but was there when the woman came out Scott would have had to have gone in "there" twice. There is no showing that she did so Her only testimony was that she went in after the other woman had been "in there." BLUE BELL, INC. 537 same operation. 22 Her conversation with Day the Monday after the discharge of her sister, Delaney, has been set forth. At that time, it will be recalled that Taylor had not yet joined the Union which fact caused Day to say she was smart He also told her at that time that he liked her and that she did her work well. Shortly thereafter Taylor joined the Union. The latter part of March, after joining the Union, Taylor asked mechanic Alva Jackson at her machine during working hours if he was for the Union. He replied that he was not but knew that she was. Moreover, he said he could name the people on the union committee and proceeded to name several. About the middle of September Tayjpr was called into Day's office and asked what had happened to her unit hour. She told Day it had dropped to 42 because she had had a lot of machine trouble and rejects. Day told her she shouldn't be getting rejects back and could not be missing any more work Then he added, "And some of the girls have been telling me that you have been getting the names and addresses down" and asked why. Taylor told him that Mr. Knight 23 wanted them. Day replied that the union drive was over and that they might as well go back to work. This testimony being undenied, I credit Taylor Taylor had never been called in about 1 day's production before. Admitting that her production may have dropped on occasion she testified credibly that she had always main- tained production on the weekly average. Furthermore her production was acceptable after Day talked to her on this occasion. Late Sunday afternoon on October 7, Taylor learned of the death of an uncle at Columbia, Mississippi. She left immediately for Columbia telling her husband to call the plant the next day to inform them that she would be absent several days. The services were on Tuesday evening. Because her mother was living alone in Columbia, Taylor stayed with her the following day. On the 11th Taylor returned to Natchez and went to the plant at about 10 a. m. There she told Oliver the reason she was gone so long. Oliver told her that Day had said the funeral was only 1 day so not coming in they had already terminated her. Day testified that between February 13 and October 1 Taylor had missed 30 days of work some excused, some not. Her absenteeism thus is advanced as the reason for her discharge. In addition, Day testified that neither Taylor nor anyone else called him about her absence for the funeral. Taylor's husband testified that he called the plant Monday morning and talked to some woman whom he assumed was Oliver and who said it was alright. Oliver did not testify. On the basis of this record and on the basis of Oliver's remark to Mrs. Taylor that Day had said the funeral was only 1 day thus resulting in her discharge before she arrived at the plant that Thursday morning, I find that Taylor's husband did call as he testified and that Day was aware of the reason for her absence before she was terminated. No absentee records were introduced regarding Taylor or any other employee.24 On cross-examination, however, Day admitted that other employees had been absent "some" and that Sylvia Lazarus "probably" had been absent 2 days a month and that this "could" have been going on for years with respect to Lazarus. While the above testimony does not establish a clear cut disparity of treatment with respect to Taylor's absenteeism, it does raise a question as to the seriousness of the penalty she received for it. That Respondent must have had a great deal of absenteeism is reflected by Day's testimony that, "I know when we have girls who are constantly out, because I check the absentee reports with the supervisor every day and I do know who is out." Considering Day's early approbation of Taylor as an employee when it was clear she was not in the Union and her acceptable production record it would seem that her absence at her uncle's funeral was a tenuous and inept excuse to justify her discharge. It seems inconceivable that she would have been denied the leave had she been in position to request it before leaving for Columbia. Day's uncredited denial of receiving her husband's report 22 It appears that Taylor got a pregnancy leave in 1950 returning to work in February 1951 She worked 2 or 3 days and got an additional 2 or 3 weeks' leave. 23A union organizer 24Day attempted to read a summary of Taylor's record on the witness stand. The General Counsel objected on the grounds that the original records were the best evidence and that he was entitled to the Company's records While Respondent's counsel offered to make Taylor's records available, they were not then in the courtroom and I sustained the ob- jection. Day was permitted, however, to read his summary and testify from his memory which he did. There is no indication that Day's memorandum contained absentee dates regarding other employees. Nor was any direct testimony offered by him regarding ab- senteeism of other employees. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about his wife's bereavement and expected absence so implies. Moreover, Taylor's absentee record, which she did not deny, was admittedly partially excused. Furthermore, it occurred at a time when she was adjusting her life to a new baby. Recognizing that that personal circumstance or lack of culpability makes employee inefficiency hardly more acceptable to an employer, there is evidence in this record that such things were taken into considera- tion by Respondent in other situations. 25 The preponderance of the evidence as to the cir- cumstances of Taylor's discharge considered in the light of Day's discovery that she was working for the union cause convinces me that her absenteeism was largely a pretext for her discharge and that the real reason was her union activity. I so find. 11. Bettie Necaise Necaise testified that she started with Respondent in June 1950 as a seat seamer--a job she held until she was terminated August 28, 1951. She was a member of the organizing committee. Two days before the election she was called to Day's office and accused of "threatening'' the colored employees which she denied. Day apparently did not mention the election nor make any explanation of the charge. Although she testified that she did not know what he was talking about, she told Day, "They're old enough to know what they want" Day admonished her that if he heard any more rumors like it it would mean her job. On August 27 Necaise was put on samples by her supervisor, Geneva Parkhurst. She finished the samples about 3:05 p. m., and then commenced working on a bundle of her rejects that had come to her some 10 minutes previously. She finished what she could of the rejects by quitting time stacking the finished rejects on her rack in one pile and placing the unfinished rejects in a pile adjacent. The next morning she was unable to find the unfinished rejects although the completed ones were still where she had placed them the day before. When Parkhurst came down the line Necaise told her the unfinished rejects had disappeared. Parkhurst made no reply. Necaise then resumed work. About 9:30 Necaise was called to Day's office. Parkhurst and Supervisor Daisy Kyzar were there. So also were the unfinished rejects. Day asked, "Do you call yourself fixing these rejects9 " showing them to her one by one. Necaise did not answer. Day said, "We can't tolerate a thing like this. I am going to have to let you go." Necaise was silent except for the statement that she would not wait for her check which they could mail to her along with a statement as to why she was being fired. Necaise further testified that she had never been called into the office before and that she rarely took a rest period, usually knocking off only for lunch. Day's testimony was that upon instructions to improve quality, he and other officials had been checking work for several afternoons after hours at various stages of the operation all over the plant. On the 27th they had been checking the work on Necaise's line and had looked through her rejects "to see if they had been repaired, because the tickets were checked as being repaired, and we looked to see if they had been repaired and if they were being repaired properly." Out of 26 rejects they found 16 that had not been repaired or had not been properly repaired. They left them where they were. The next morning Day told Parkhurst "to ask all the girls up and down the line to fix their rejects if they hadn't fixed them." He further testified that Parkhurst did so and that when she mentioned it to Necaise the latter stated she had them all repaired but 2 or 3. Parkhurst told her to be sure and fix them all and later checked again with Necaise who informed her that "she had repaired them and put them in the reject bin." The next thing Day did was have "the supervisor to get the bundle boy to bring some into (his) office. That was about 8:00 o'clock." He wanted to look them over to see if they had been fixed. Examining them he found the same 16 rejects they had inspected the night before-- still unrepaired. As soon as he could get around to it that morning he had the supervisor bring Necaise to his office where he showed her the rejects one by one asking her if that was the best she could do on fixing rejects. Necaise offered no explanation. Mann's testimony confirms Day's as to the inspection of the rejects the night before adding, however, the admission that he had seen operators make out and ticket their rejects before working on them and that if they did them that way it could hardly be called breaking a rule. 25 In explaining the drop in production of one of the operators who was low in production among the side and inseamers Mann testified "but she was having some problems of a personal nature that she had discussed with her immediate boss " BLUE BELL , INC. 539 Parkhurst 's testimony in general corroborates Day's , revealing however, some signifi- cant discrepancies . She testified that about an hour after work started she asked Necaise if she had finished her rejects. Necaise replied that she had finished all but 2 or 3. Park- hurst asked if she would stop right then and do them , Necaise said she would . About 30 or 40 minutes later Parkhurst again inquired of Necaise if she had finished the rejects . Necaise replied that she had and had put them in the reject bin. Sometime later Day took Parkhurst into the office and showed her Necaise's rejects . Parkhurst looked them over . They were in bad shape. Necaise was then brought into Day's office. Parkhurst was unable to say just how the rejects got into Day 's office. On the basis of the discrepancies between the testimony of Parkhurst and Day and on the basis of Day's evasiveness on the witness stand I have no difficulty in crediting Necaise's version. At the outset it is apparent that the matter of Necaise's rejects was not a Helen Pepper situation where an attempt was made to destroy the identification of the rejects so as to avoid responsibility for them . Furthermore , considering the type of imperfections involved in some of the rejects, 26 simple logic requires the conclusion that Necaise could not have thought that simply by ticketing them as repaired they would pass inspection. Since she made no attempt to conceal her responsibility for them she must have known they would be returned to her. 27 Although Day testified he had the supervisor tell the bundle boy to bring in some of the rejects Parkhurst was unable to say how they got to Day's office. Moreover , it was not until at the very time Day had allegedly asked Parkhurst to send in the rejects , that Park- hurst had her first conversation with Necaise about them , learning, according to Parkhurst, that Necaise still had some to repair. Another circumstance from which I draw an inference adverse to Respondent's position is its failure to put the bundle boy on the stand or to explain its failure to do so . There is no showing that Necaise was a marginal or submarginal operator. Indeed a contrary inference is compelled by her having been chosen to work on samples the day before.28 Having found that Necaise had handled her rejects in the manner she testified , it is obvious that the only criticism that could be leveled at her was placing repaired tickets on them before they were repaired . While this may have been in technical violation of the rules it is apparent from Mann's testimony that the practice was condoned . Having rejected Respond- ent's version of the matter , I also reject as a defense to Necaise 's discharge, the facts as I find them to have been. I conclude and find therefore that here again , Respondent was attempting to utilize a pretext to cover its discriminatory purpose of eliminating an em- ployee undesirable because of her union adherence. The Objections to the Election The Board's order of December 4 , 1951 , directing a hearing on the Union 's objections to the election in case No. 15-RC-513 does not direct that findings , conclusions , or recom- mendations shall be made . Accordingly I make no findings , conclusions, or recommendations with regard to the validity of the Union 's objections . Model Mill Company , Inc. 103 NLRB 1527. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above , occurring in connection with the operations of Respondent described in section I, above, have a close , intimate, and sub- 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. 26 Day testified that 3 pairs of pants had hip pockets sewn into the seat seam. 27 Necaise impressed me as an intelligent person. 28 The tenor of Respondent's testimony is that it makes no effort to put the better operators on sample work. Parkhurst testified that her picking Necaise to do samples was no tribute to Necaise' s ability, explained that as supervisor of the line for only about 3 weeks she knew nothing about the girls , and had in effect picked Necaise at random because she "didn't know which one did the best work and which one didn't " 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Since it has been found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Respondent having laid off Willie Lee Smith and having discharged Bettie Necaise, Ira Jewel Taylor, and Shirley Frederick because of their union activities , I recommend that Respondent offer to each of the latter 3 immediate and full reinstatement to her former or a substantially equivalent position29 without prejudice to her seniority and other rights and privileges and make each of the 4 above -named employees whole for any loss of pay she may have suffered by reason of Respondent 's discrimination against her, by payment to each of them of a sum of money equal to that which she normally would have earned as wages from the dates of the discrimination againstthem , tothe date they were reinstated or the date when, pursuant to the recommendations herein contained , Respondent shall offer them reinstate- ment, less the net earnings of each during said period . 90 Loss of pay shall be determined by deducting from a sum equal to that which these employees would normally have earned for each quarter or portion thereof, their 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. 31 It is recommended further that Respondent make avail- able to the Board , upon request , payroll and other records in order to facilitate the checking of the amount of back pay due. 32 Because of the Respondent 's unlawful conduct and its underlying purpose and tendency, I find that the unfair labor practices found are persuasively related to other unfair labor prac- tices 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.33 The preventative purpose of the Act will be thwarted unless the order is coextensive with the threat. In order, therefore , to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices , 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. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Blue Bell, ,Inc., is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Amalgamated Clothing Workers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Bettie Necaise, Ira Jewel Taylor, Willie Lee Smith, and Shirley Frederick, thereby discouraging member- ship and activity in the above-named Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By interrogating its employees concerning their union activities, by threatening to close its plant if the Union came into it, by discriminatorily enforcing a no-solicitation rule and by other acts 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. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 29 The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch, 65 NLRB 827. 30 Crossett Lumber Company, 8 NLRB 440,497-8; RepubhcSteel Corporation v. N L. R B., 311 U S. 7. 3iF. W Woolworth Company, 90 NLRB 289. 32 F W. Woolworth Company, supra. 33N. L R. B v. Express Publishing Co., 312 U. S. 426. BLUE BELL, INC. 541 6. The Respondent has not engaged in unfair labor practices by discharging Ellie Myrl Delaney, Helen Pepper, Myrtle Wisner, Sally Turner, Enna Ratcliff, Lois Golman, and Lamar Felter. [Recommendations omitted from publication.] APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership of our employees in Amalgamated Clothing Workers of America, CIO, or any other labor organization, by discriminating in any manner in regard to their hire , tenure of employment , or any term or condition of employment. WE WILL NOT interrogate our employees about their union membership, sympathies, or activities. WE WILL NOT threaten to close our plant if a union comes in. WE WILL NOT discriminatorily enforce a no-solicitation rule or other rules. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization , to join or assist the Amalgamated Clothing Workers of America , CIO, to form, join , or assist any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or pro- tection, and to refrain from any or all such activities , except to the extent that such right may be affected by an agreement requiring membership in .a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. WE WILL offer to Ira Jewel Taylor, Shirley Frederick, and Bettie Necaise immediate and full reinstatement to their respective former or substantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed, and jointly and severally make them and Willie Lee Smith whole for any loss of pay suffered as a result of the discrimination against them. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. BLUE BELL, INC., Employer. Dated ................ By............................................................................................. . (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 337593 0 - 55 - 36