Jackson Garment Co., Inc.

JACKSON GARMENT COMPANY, INC. 171 ployees, and all employees included in voting groups (1), (2), (3), (4), and (5). The Firemen and Oilers desires to participate in the election among employees in voting group (6) and we shall place its name on the ballot in that election. It does not appear that the Chemical Work- ers desires to participate in the separate elections among the craft groups (1), (2), (3), (4), and (5), and we make no specific provision for its name on these ballots. If, however, the Chemical Workers de- sires to do so, it may participate in one or more of these elections by notifying the Regional Director of its desire in this matter within 5 days of the date of issuance of this Decision. If a majority of the employees in voting groups (1), (2), (3), (4), or (5) select a labor organization other than that selected by a ma- jority of the employees in voting group (6), those employees will be taken to have indicated their desire to constitute a separate bargain- ing unit and the Regional Director conducting the election is in- structed to issue a certification of representatives to the labor organiza- tion selected by the employees in each group for such unit or units which the Board, in such circumstances, finds to be appropriate for purposes of collective bargaining. If a majority of employees in voting groups (1), (2), (3), (4), or (5) select the labor organization chosen by a majority of employees in voting group (6), those em- ployees will be taken to have indicated their desire to constitute part of the production and maintenance unit and the Regional Director conducting the election is instructed to issue a certification of repre- sentatives selected by the employees in such groups which the Board, in such circumstances, finds to be a single unit appropriate for pur- poses of collective bargaining. [Text of Direction of Elections omitted from publication in this volume.] JACKSON GARMENT COMPANY, INC. and UNITED PAPER WORKERS OF AMERICA, CIO. Cases Nos. 32-CA-190 and 32-KC-306. July 15, 1952 Decision and Order On December 11, 1951, Trial Examiner Louis Plost issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the General Counsel 100 NLRB No. 30. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the Respondent filed exceptions to the Intermediate Report; the Respondent also filed a brief in support of its exceptions. The Board' has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the ,case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following additions and modifications : 2 1. We find that the Respondent is engaged in commerce within the meaning of the Act. 2. The Trial Examiner found, without setting forth the evidence in detail, that floorladies, Cutting Room Foreman Matheney, and Corda Mae Elder were supervisors, and service girls were not super- visors. The Respondent has excepted to the finding as to floorladies and Elder and Matheney; the General Counsel has excepted to the finding as to service girls. The Respondent normally has approximately 190 production workers. A service girl is in charge of a section which consists of 26 machines and the same number of operators. Each service girl is responsible for the production in her section. She may transfer girls from one machine to another within the section, and may also decide which laid-off employees in her section are to be called back to work. Immediately over the service girl is a floorlady, who is in charge of 2 sections or 52 operators. The floorlady is primarily responsible for the quality of work in her sections. She has the power effectively to recommend hiring and discharge. Corda Mae Elder, according to the credited testimony, was the im- mediate assistant of Supervisor Duncan and ranked above the floor- ladies whose work she supervised. Ernest Matheney was the foreman in charge of the cutting room. He had approximately seven em- ployees working under his supervision. He laid out and assigned work to his subordinates, told them what to do and when to do it. The service girls, floorladies, and the cutting room foreman at- tended management meetings.3 They were excluded as supervisors from the coverage of collective bargaining contracts between the Re- 1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Murdock p 2In adopting the Trial Examiner 's findings , we have accepted his resolutions of cred- ibility. Standard Dry Wall Products, Inc, 91 NLRB 144, enfd. 188 F. 2d 362 (C. A 3) ; N L. R. B. v. Universal Camera Corporation, 190 F. 2d. 429 (C. A. 2). A careful scrutiny of the record does not substantiate in our opinion the Respondent's claim that the Trial Examiner was biased and prejudiced. 8 According to Mrs. Duncan , management meetings were attended by "Mr. Cato, Mrs. McConnell , R. W. McConnell , and the supervisors, which are the floor girls and service girls, and ... the cutting room foreman sometimes...." ( Emphasis supplied.) JACKSON GARMENT COMPANY, INC. 173 spondent and International Ladies' Garment Workers' Union, AFL, the former bargaining representative of the plant's employees. In its decision of April 11, 1951, the Board found appropriate and di- rected an election in a unit of production employees, excluding "super- visors as defined in the Act." The parties stipulated that in the elec- tion held on April 26, 1951, pursuant to the Board's Decision and Direction of Election, floorladies and service girls were excluded as "supervisory personnel ineligible to vote." 4 Upon the basis of all the foregoing facts, we find that floorladies, service girls, and Corda Mae Elder and Ernest Matheney were at all times material herein supervisors within the meaning of the Act. 3. We agree with the Trial Examiner that the Respondent violated Section 8 (a) (1) of the Act. We base this finding on the following incidents: (a) Floorlady Hall's interrogation of Fannie Lynch about the Union and her remark that Lynch would be fired if the CIO won the election; (b) Foreman Matheney's statement to Alma Lomax that the plant would close if the CIO came in ; (c) Vice-President Cato's remark to Myrtle E. Holt and Alma Lomax that the Respondent would not operate under the CIO, and his further remark to the latter ,that if the plant closed employees would not be able to draw social security benefits or obtain jobs without a recommendation from the Respondent which it would not give; (d) Corda Mae Elder's state- ment to Bennie Montgomery which clearly implied that if the CIO ivon the election, the Respondent would close down the plant; (e) the removal of cloth from the plant during the period immediately pre- ceding the election; (f) service girl Viola Melson's interrogation of Fannie Lynch in January 1951, as to whether she thought that CIO would come into the plant; (g) service girl Shelby Jones' statement to Naomi Sego, 2 days before the election, that the plant would close down if the CIO came in; 5 (h) President Zimmerman's talk to the employees on April 26, 1951; 6 (i) Vice-President Cato's remark to the employees after President Zimimerman's speech on April 26, 1951, which carried ,the plain implication that whether or not the plant continued to -operate dependod on the outcome of the election ; (j) the discrimina- tory discharge of Evelyn Ferguson and Charlotte Cowart 7 4 Matbeney's employment with the Respondent terminated about 2 weeks before the election . He was therefore ineligible to vote. Although the stipulation does not mention -Elder, it is a fair inference that she was also an ineligible voter. 5 Incidents (f) and (g) were not discussed by the Trial Examiner in view of his finding -that service girls were not supervisors. 6In adopting the Trial Examiner's finding as to the coercive effect of President Zimmer- man's speech , we have taken into account the fact that employee Lola McPeake was per- mitted to address the audience of employees and deny the truth of one of the rumors dis- cussed by Zimmerman . We do not consider that McPeake's appearance or statement can- celed the coercive effect of Zimmerman 's speech. 7In adopting the Trial Examiner 's 8 (a) (1 ) finding, we have not relied on Jacob Nathanson's remarks to employees Ferguson and Cowart We consider his statement in -context to have been argumentative rather than coercive. Therefore, we consider it ainnecessary to decide whether the Respondent was responsible for Nathanson 'e conduct. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. In view of the Respondent's unlawful conduct preceding the, election, a free choice of a bargaining representative was made im- possible. We shall therefore, in accordance with the Trial Examiner's- recommendation, set aside the election." 5. We agree with the Trial Examiner that the Respondent discrimi- natorily discharged employees Evelyn Ferguson and Charlotte Cowart. We rely upon the following : Ferguson and Cowart's ac- tivity in behalf of the Union; the Respondent's knowledge of their activity; 9 the Respondent's determined opposition to the Union; Cato's statement to Ferguson about a week before the election that if she were planning on going along with the CIO she had better look for another job; and the palpably unsatisfactory explanations offered by the Respondent to justify the discharge of Ferguson and Cowart.` 6. The Respondent asserts that Cowart and Ferguson should be' denied the protection of the Act because they engaged in union solici- tation on company time. The Respondent does not claim that this activity was the motive for the discharges. Apparently, Cowart and Ferguson solicited fellow employees working near them to join and vote for the Union. There was no interference with the work of these employees. This conduct is hardly so indefensible as to justify denial of the protection of the Act to employees discharged for discrimina- tory reasons."' - Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Jackson Garment Com- pany, Inc., Jackson, Tennessee, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in United Paper Workers of Amer- ica, CIO, or in any other labor organization of its employees, by dis- In setting aside the election , we are not to be considered as adopting the Trial Ex- aminer's general comment on the possible waiver effect of a union 's knowledge of, unfair labor practices preceding an election As applied to the facts of the present case, see Squirrel Brand Co., Inc, 96 NLRB 179. g According to Foreman Matheney , Cato told him, about a month before the election, that Cowart was the "No . 1 troublemaker" in the shipping department and that Ferguson was Just as bad 1° The immediate cause for the discharge of Ferguson and Cowart , according to Cato, was a telephone call from The Cotton Shops on the day of discharge , complaining about the, large number of mistakes and warning that something would have to be done about the, shipping department. Cato did not identify the employee of The Cotton Shops, who. allegedly made the complaint to him Nor did the Respondent introduce any witness or business records from The Cotton Shops, to substantiate Cato's testimony . Cato's figures, allegedly reported to him over the telephone , unlike the correction slips analyzed by the- Trial Examiner, show deficiencies apparently after shipment of a style had been completed They are in such form that it is impossible to determine responsibility for alleged errors without extensive investigation . We consider the whole incident as casting further doubt- on Cato's motives in discharging Ferguson and Cowart. 21 See Elk Lumber Company, 91 NLRB 333 ; D. F. Sales Company, 82 NLRB 137. JACKSON GARMENT COMPANY, INC. 175 charging any of its employees, or in any other manner discriminating against them in regard to their hire or tenure of employment, or any term or condition of employment. (b) Interrogating employees as to union activities, and inflicting or threatening to inflict, reprisals because of organizing activities in -behalf of United Paper Workers of America, CIO. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Paper Workers of Amer- ica, CIO, or any other labor organization, to bargain collectively -through representatives of their own choosing, and to engage in other -concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activi- ties, except to the extent that such right may be affected by an agree- ment 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 Evelyn Ferguson and Charlotte Cowart immediate and -full reinstatement to their former or substantially equivalent posi- tions without prejudice to their seniority or other rights and privileges. (b) Make Evelyn Ferguson and Charlotte Cowart whole in the -manner provided in the Intermediate Report under the heading "The Remedy" for any loss of pay they may have suffered by reason of the Respondent's discrimination against them. (c) Upon request, make available to the Board or its agents, for -examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other rec- ords necessary to analyze the amounts of back pay due and the right of reinstatement under the terms of this Order. (d) Post at its plant in Jackson, Tennessee, copies of the notice attached hereto and marked "Appendix A." 12 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for at least sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees .are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Fifteenth Region, New 11 In the event that this Order is enforced by decree of a United States Court of Appeals there shall he 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 " 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Orleans, Louisiana, in writing, within ten (10) days from the date of this Order, of the steps taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed, insofar as it alleges that the Respondent discriminatorily discharged Viola Haley. IT IS FURTHER ORDERED that the election held on April 26, 1951,, among the Respondent's employees, be, and it hereby is, set aside. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations. Board, and in order to effectuate the policies of the National Labor- Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in UNITED PAPER WORKERS OF AMERICA, CIO, or in any other labor organization, by discharging or in any other manner discriminating against our employees in regard to hire or tenure of employment, or any term or condition of employment. WE WILL NOT interrogate our employees as to union activities, or threaten to close the plant or to inflict other reprisals because of organizing activities in behalf of UNITED PAPER WORKERS OF AMERICA, CIO. I WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form labor organization, to join or assist UNITED PAPER WORKERS OF AMERICA, CIO, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL OFFER to Evelyn Ferguson and Charlotte Cowart immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges and make them whole for any loss of pay suffered as the result of the discrimination against them. JACKSON GARMENT COMPANY, INC., Employer. Dated--------------------------- By--------------------------- (Representatlve ) ( 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. JACKSON GARMENT COMPANY, INC. 177" Intermediate Report STATEMENT OF THE CASE Upon a petition duly filed January 4, 1951, by United Paper Workers of- America, CIO, herein called the Union and docketed by the Fifteenth Region as Case No. 32-RC-306, the National Labor Relations Board, herein called, the Board, directed that an election to determine a bargaining representative be held among a designated appropriate unit of the employees of the Jackson_ Garment Company, Inc., of Jackson, Tennessee, herein called the Respondent- The election conducted on April 26, 1951, was lost by the Union. Thereafter on April 27, the Union filed objections to the conduct of the election. On July 27 the Regional Director of the Board's Fifteenth Region (New Orleans, Louisiana), issued his report recommending that the Board direct a, hearing on the issues raised by the objections. On August 15, 1951, the Board issued an order directing hearing on the, objections to the conduct of the election. On May 15, 1951; the Union filed a charge, docketed as Case No. 32-CA-1901 upon which the Regional Director for the Fifteenth Region issued a complaint dated July 31, 1951, against the Respondent, alleging that it had engaged in and- was engaging in unfair labor practices affecting commerce within the meaning- of Section 8 (a) (1) (3) and Section 2 (6) and (7) of the National Labor Rela- tions Act, as amended, 61 Stat. 136, herein called the Act. On July 31, 1951, the Regional Director aforesaid issued a notice of hearing, and served the same, together with a copy of the charge and the complaint, upon. the Respondent and the Union. On August 8, 1951, the Respondent filed its answer. On August 17, pursuant to the Board's order directing hearing in Case No.- 32-RC-306; as made on August 15, the Regional Director issued a notice of hearing on objections to election and order consolidating cases whereby 32-RC- 306 and 32-CA-190 were consolidated. The hearing was set for August 27, but upon the request of the Respondent was postponed to August 28, 1951, due notice being given. With respect to the unfair labor practices, the complaint alleged' that on May 11, 1951, the Respondent discharged two named employees because of their membership in and activities on behalf of the Union and has thereafter at all times refused to reinstate them' in violation of Section 8 (a) (3) of the Act, and that the Respondent through certain of its officials and supervisors engaged in other conduct violative of Section 8 (a) (1) of the Act. The Respondent's answer admitted that it discharged the employees named in the complaint but averred the discharges were for cause and further denied that it had engaged in any of the alleged unfair labor practices- Pursuant to notice a hearing was held from August 28 to September 7, 1951, inclusive, at Jackson, Tennessee, before Louis Plost, the undersigned Trial Examiner. The General Counsel and the Respondent were represented by counsel, the Union by a representative. The representatives of the parties. are hereafter referred to in the names of. their principals. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all the parties. The Respondent moved to sever the cases and proceed only on Case No.. 32-CA-190. The motion was denied. The General Counsel moved to amend the, complaint to allege that one other named employee was unlawfully discharged 3 As will appear hereafter the complaint was amended to include an additional employee as being discriminatorily discharged. 178 DECIS1ONti OF NATIONAL LABOR RELATIONS BOARD on or about August 17, 1951. The undersigned granted the motion, without objection, and likewise granted a motion by the Respondent to amend its answer by pleading a defense, namely, that the discharge was made for cause. At the close of the General Counsel's case-in-chief the Respondent moved to strike certain evidence and also to dismiss the complaint. The motions were denied in part and ruling on part was reserved. The rulings reserved are disposed of in the findings of fact and conclusions of law hereinafter made. The Respondent renewed the motions above referred to at the close of the hearing. The same rulings were made by the undersigned as before and are disposed of as above indicated. The undersigned granted, without objection, a motion to conform the pleadings to the proof with respect to minor variations. The parties waived oral argument. A time was set for the filing of briefs with the .undersigned, which was later extended to October 15, by the Chief Trial Ex- aminer at the request of the Respondent. After the close of the hearing the parties entered into a stipulation correcting the transcript. The stipulation is hereby received in evidence and incorporated in the record as General Counsel's Exhibit No. 0. Briefs in both cases were filed by the Respondent. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The General Counsel and the Respondent stipulated : The Respondent, Jackson Garment Company, Inc., is and has been for the past several years a Tennessee corporation engaged in the manufacture of cotton clothing on a contract basis. The Respondent, during the past twelve months, in the course and conduct of its business operations , caused to be supplied , transferred, and delivered to its Jackson, Tennessee, plant, supplies and materials valued in excess of $500,000 of which in excess of 90% was shipped to it from states other than Tennessee. The Respondent, during the past twelve months, in the course and conduct of its business operations , caused to be manufactured , transferred, and delivered finished goods of a value in excess of $500,000, of which approxi- mately 90% was delis ered, transferred, and distributed outside the State of Tennessee. During the aforementioned period, Respondent derived revenues in excess of $500,000 for the operations upon the goods alleged herein. II. THE ORGANIZATION INVOLVED United Papers Workers of America, affiliated with the Congress of Industrial Organizations is a labor organization within the meaning of Section 2 (5) of the Act, and admits employees of the Respondent to membership. III. THE UNFAIR LABOR PRACTICES Synopsis The Union began to organize the Respondent's employees sometime in December 1950. The Union petitioned the Board for an election to determine a bargaining 2 The representative of the Union was not present at the hearing after September 5. JACKSON GARMENT COMPANY, INC. 179 representative and an election was set for April 26, 1951. Allegedly, on the day of the election the Respondent's president addressed the employees threatening reprisals in the event the employees selected the Union as their representative. Prior to the time of the speech the Respondent allegedly engaged in unfair labor practices through certain conduct of various supervisory officials. On May 11, 1951, and on August 17, 1951, the Respondent discharged certain employees. The complaint alleged that the discharges were discriminatory and in violation of the Act. The, Respondent admits making the discharges but avers that they were for cause and further denies that it engaged in any of the alleged unfair labor practices. Two cases affecting the Respondent, 32-RC-306 and 32-CA-190, are consolidated herein One is based on objections to the conduct of the elec- tion, meaning that the alleged unlawful conduct of the Respondent prevented a free choice of a representative by its employees, the other is based on the alleged unlawful conduct and discharges. Supervisory Status There is no dispute with respect to the supervisory status of, and the fact that the Respondent is bound•in matters affecting labor relations by its president, Alvin Zimmerman, its vice president and general manager, Walter F. Cato, and its general manufacturing supervisor, Minnie Duncan. On all the evidence considered as a whole the undersigned finds that during the time material herein Corda Mae Elder, variously referred to as an assistant to Minnie Duncan, a supervisor, and a methods girl, was in fact a supervisory employee whose acts in matters affecting labor relations were binding on the Respondent. In making this finding the undersigned relies on the testimony of Forelady Raymell Hall, which he credits. The undersigned finds that the class of employees variously and interchange- ably referred to as "forelady, floor]ady, and floorgirl" are supervisors within the meaning of the Act. The record discloses that these employees exercised real supervision of employees. - The undersigned further finds that those employees referred to and classified -as "service girls" are not supervisors within the meaning of the Act. The only indicia of supervision, as defined by the Act, which is possessed by these employees is the right to transfer employees or assign work, but in the opinion of the undersigned the record does not show that service girls could or did make transfers or assign work independently.' A. Interference, restraint, and coercion 1. Jacob Nathanson's conduct In order to fully understand the impact of any of the alleged unfair labor practices it is necessary to first inquire into the Respondent's operations. The Respondent's president, Alvin Zimmerman, among others, testified that the Respondent is a corporation, a majority of whose stock is owned by two indivi- duals who in turn are among five partners in The Cotton Shops, whose offices are in Chicago, Illinois. All these individuals are part of a single family group, of which Zimmerman is also a member. The Cotton Shops operate retail stores for the sale of women's dresses. The Respondent manufactures dresses for The Cotton Shops which is the only cus- tomer the Respondent has or has ever had. 1In making the above findings , as well as all findings herein, the undersigned has care- fully considered all the testimony bearing thereon . The names of witnesses are not given or specific reference made to testimony only because of space considerations. 227260-53-vol. 100-13 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Materials used in the manufacture of the dresses by the Respondent are shipped to it by The Cotton Shops and remain its property to be strictly accounted for by the Respondent. Jacob Nathanson testified that he has no stock interest in the Respondent Company, nor in The Cotton Shops and is not related to the partners of the one, nor the stockholders of the other. Nathanson manufactures patterns or mark- ers, which are paper guides laid on the cloth to mark the dress form to be cut, Nathanson sells markers to The Cotton Shc ps which in turn furnishes them to the Respondent to be used in the cutting process of dress manufacture. Nathanson testified that in order to insure the proper use of the markers he sends to the Respondent's plant on the order of The Cotton Shops, he periodically visits the Respondent's plant as well as other contractors for The Cotton Shops, Nathanson testified : Well, the system that I follow is when I have enough patterns, enough styles, that I come down. That could be ten weeks ; can be eight weeks ; it may be, particular at the break of the season, where there is enough, and I come down on my own. In other words, I don't have to ask anybody. When I feel it is necessary, there's enough samples, there's enough markers where I have to make explanations, why, I come down. During his visits to the Respondent's plant, Nathanson circulated among the operators, instructed various operators in their work, and conferred on matters affecting the use of his product with Cato. According to Nathanson, he was not requested by the Respondent to either instruct its employees in their work or to inspect its plant and operations but did so partly because he was anxious to see that the markers he furnished were properly used and partly out of good fellowship. Nathanson testified that he visited the Respondent's plant on January 15, 1951.* During the day Nathanson circulated through the plant and talked to various of the employees. Willie Mae Lineberry testified that sometime in January 1951,' Nathanson came over to her machine and while showing her how to speed up the operation he "started talking about the union," telling her that the employees "didn't need to go through with that" but should be "one happy family." She testified that Nathanson said to her that "he had heard rumors that the CIO had promised a lot of things" which could not be given and "if the CIO had promised those things, they were a dirty liar." Nathanson admitted the conversation ; testified that "it was just a mere dis, cussion; I mean, just a talk between, general talk between her and I." While ad- mitting holding the conversation, Nathanson, however, testified "I never used the word lie." Evelyn Ferguson testified that on January 15, she was employed as a bundler in the Respondent's plant ; that Nathanson came to her place of work and said to her and Charlotte Cowart, who worked with her, "What in the world is this I hear about the CIO" and then continued as follows : This is the most ridiculous thing I have ever heard of in my life He said, "In the first place, the CIO does not know anything about making dresses, and in my opinion they don't have, or to my knowledge, they don't have a 4 The record discloses that the Union filed its petition to determine a bargaining repre- sentative on January 4, and that a hearing on the petition was held by the Board on January 30. 3 Apparently January 15 was the only day in January Nathanson visited the Respondent'a plant. JACKSON GARMENT COMPANY, INC . 181 CIO in any dress factory." And he said, "for that reason we cannot operate under the CIO." Charlotte Cowart corroborated Ferguson. Nathanson was asked by the Respondent if he had said to Ferguson and Cowart "We could not sign a contract with the CIO," which is of course not an accurate statement of the testimony. However, the undersigned does not believe the error was intentional and accepts Nathanson's answer as a denial of Ferguson's and Cowart's testimony. Nathanson testified : TRIAL EXAMINER PLOST: Now, just a moment. What authority do you have to make that statement? THE WITNESS : I have no authority as far as the company was concerned. TRIAL EXAMINER PLOST : All right then, why did you do this? THE WITNESS : All I did-it was just a matter of being helpful. I felt-there are things when I come down there, being that I have many years of experience, and while I'm down there, if I can be helpful, I try to be helpful, but I'm not- TRIAL EXAMINER PLOST: Did you talk to anybody connected with the company, or that ouu us the Jackson Garment Company, or that manages the Jackson Garment Company, before you made this talk? THE WITNESS : No. Nathanson continued as follows : I indicated further that in my long experience in the industry, by far the largest majority were under contract with the ILGWU, that is, this union had a long experience of over fifty years in the industry and was acquainted with its problems. He testified that : On the other hand I stated that the CIO represents only a small number of plants in this industry throughout the country and was largely inex- perienced in this field. I stated that I felt personally that as between an organization that was experienced and one that was not, it made better sense to deal with those who knew their business, but again I pointed out that the choice was not that of the company, but that of the employees. Later during the day about a dozen employees approached me at various times asking my advice as to what they should do personally. I told them again that the choice was up to them, that they should feel perfectly free to make the choice that they felt was best for them, although I believed per- sonally that the ILGWU was the better qualified of the two groups in this industry. Nathanson testified that he suggested to Cato that he wished to speak to the employees but did not tell Cato what he intended to say. Cato admitted that he called the employees together at Nathanson's request ; that he introduced him; testified that Nathanson had told him he wished to answer questions regarding the Union but did not tell him what he intended to say ; that he consented to Nathanson's request because : I had no desire to hurt his feelings, refusing such a request and I let him go through with it. The undersigned does not credit Nathanson's testimony to the effect that he did not discuss his intended remarks to the employees with any representative of the Respondent, or that he acted entirely without authority in the matter. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To credit a story that a perfect outsider came into a plant during a period described by him as being "a general state of confusion and unrest as a result of rivaling organizing efforts," and asked for the opportunity to address the "restless" employees on union matters, without disclosing what he intended to say, merely because he "wanted to be helpful"; and to accept as true the ex- planation of the Respondent's vice president and manager that he assembled the employees to hear a speech by an outsider, and he participated in the meet- ing as the master of ceremonies, merely because he did not want to hurt the outsider's feelings ; and to be persuaded that an outsider would be permitted to circulate among employees in order to express his undisclosed views on unions and union organization, "strictly on his own" ; means to the undersigned that he must totally disregard the world of reality and join the Mad Hatter's tea party in the world behind the looking glass. The undersigned therefore finds that when Nathanson addressed an assem- blage of, and individually talked to. the Respondent's employees on union matters he was acting for and in behalf of the Respondent with full knowledge of the Respondent. Nathanson's version of his speech was not contradicted, and is credited by the undersigned. Assuming arguendo that Nathansop was merely a busybody, over eager to meddle into his customer's affairs, yet, considering the fact that he was at all times permitted to roam the Respondent's plant, instructing employees as he saw fit, together with the further fact that on January 15 he was intro- duced to the employees by the Respondent's vice president and manager at a meeting called by him for the sole purpose of an address on the subject of the union organizational effort of the employees ; and further that this talk was never repudiated but apparently, through the presence and acts of Manager Cato adopted by the Respondent as its own, the undersigned believes and finds, under all these circumstances, that the employees had the right to consider Nathanson a representative of management not only because of the occurrences on January 15, but also by reason of his other acts and conduct during his periodic visits to the plant. The undersigned so finds. Inasmuch as Nathanson's speech contains no threat of reprisal or promise of benefit predicated on the employee's union activities the undersigned finds that per se it was not violative of the Act, but under all the circumstances herein, and having found that Nathanson was speaking for management, the under- signed finds that his statements to Ferguson and Cowart as hereinabove found, made on the day of the speech herein referred to, are chargeable to the Respondent. The undersigned credits the testimony of Ferguson and Cowart inasmuch as they impressed him as being honest and straightforward witnesses, he does not credit Nathanson's denial as Nathanson did not create an impression of candor. The undersigned therefore finds that by Nathanson's statements to Ferguson and Cowart on January 15, 1951, as herein found, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Illegal conduct of supervisory officials Employee Fannie Lynch testified that shortly before April 26, 1951, the date of the Board-conducted election in the Respondent's plant, Raymell Hall, who was at that time a forelady in the plant, held the following conversation with her: JACKSON GARMENT COMPANY, INC. 183 She asked me if I thought the CIO would come in and I said I thought it would, and she said , "Don't you know you will get fired ?" And I said, "I don't know." And she said, "The factory will close ; they won't operate under the CIO." Raymell Hall testified with respect to her duties while in the employ of the Respondent; it is clear that at the time in question she was a supervisor. The undersigned so finds. Hall did not deny Lynch's testimony, which the undersigned credits. Hall also testified that during the same period she told employee Lola McPeake that "I thought the plant would close down if the CIO came in." Employee Alma Lomax, testified that during a series of conversations had during the week preceding the union election in the plant, Foreman Ernest Matheney, who was her immediate supervisor warned her as to the probable effect of union organization. She testified : He talked to me at different times. I don't remember everything that he said, but he had been in other plants where they had union disputes, and what the company could do to the peopre and how it affected them, the plants would close, they couldn't operate because of the union. Lomax also testified that while in the plant, Metheny told her "that the com- pany wasn't going to operate under the CIO." blatheiiey testified that he had been a foreman during his entire employment with Respondent, uuhich extended from the time the Respondent acquired the plant in 1948, until sometime in April 1951. Matheney described the duties of his job. Cato testified that Matheney was not a supervisor, but did not con- tradict \iatheney's description of his job and its duties. The undersigned credits Matheney and finds that his duties were clearly those of a supervisor and therefore finds that Matheney was the cutting room foreman in the Re- spondent's plant at the time material herein, and that his conduct with respect to labor relations was binding on the Respondent. Matheney testified that before the election Vice-President Cato told him "that if the C70 won the election, the plant would have to close" and that thereafter he discussed Cato's statement with all the cutting room employees. In view of Mathedey's testimony the undersigned credits Lomax, with respect to Matheney's statements to her ; and finds that Foreman Matheney in effect told employee Lomax that the Respondent's plant would be closed if the em- ployees were organized by the Union. Lomax further testified that approximately 1 week before the election she was laid off by Cato ; that she was called to Cato's office and told by him that he was compelled to lay her off because of lack of work and that "he said the union stir-up in plant and orders wasn't coming in," and that he then told her "that the Company wasn't going to operate under the CIO" ; that in the same conversation Cato told her that the cloth for making dresses was being shipped out of the plant and : He said the material wouldn't be back, that the people that owned this material didn't want it in the plant in case the plant shut down ; and that Cato then told her "that if the plant closed, the people couldn't draw Social Security, and couldn't get a job withouta recommendation from the com- pany, and they wouldn't give it" Cato denied making any of the above statements to Lomax. The undersigned credits Lomax.6 A discussion of the character of Cato's testimony appears at a later point in this report. 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employee Myrtle E. Holt testified that after 4 months' absence from her job at the Respondent's plant, she returned to work in March 1951. Before be- ginning work on her return she was interviewed by Vice-President Cato and that : A. He told me that the CIO was trying to come in. Q He told you the CIO was trying to come in? A. And he didn't know if I had heard of it before I come in, and I said, "yes, I heard it before I come in to work." Q. I see . What did he say about the CIO? A. He said that if it come in, they would not work under the CIO, and 'would not sign a contract. Holt also testified that during the interview Cato told her that Fannie Lynch, Charlotte Cowart, and Lola McPeake would hand her CIO cards to sign. Cato testified that he interviewed Holt but denied telling her the Respondent would not sign a contract with the CIO and testified that he "could not recall" asking her if she knew that the CIO was trying to get in the plant. The undersigned credits Holt: Employee Bennie Montgomery testified that "about a week before the election," Corda Mae Elder told her "I wish some of these darned girls down here would learn what they are doing . We are going to have a big time when the factory closes down if the CIO comes in." Corda Mae Elder has been found by the undersigned to have been a supervisor. The testimony was not denied and is credited. Upon the entire record in the case, considered as a whole , the undersignea finds that by the statements of Raymell Hall to Fannie Lynch ; Foreman Ernest Matheney to Alma Lomax and various unidentified employees ; Vice-President Cato's statements to Lomax and Myrtle E Holt and by Corda Mae Elder 's state- ment to Bennie Montgomery ; all of which contain either direct or implied threats of reprisal in the event of unionization , the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. 3. Conduct interfering with the free choice of a bargaining agent by the Respondent's employees a The removal of cloth from the Respondent 's plant Ernest Matheney testified that during the period immediately preceding the scheduled election conducted by the Board "four or five trailer truck loads" of cloth were removed from the Respondent 's plant Matheney was corroborated by the testimony of several employees . The removal of the cloth was admitted by both Vice-President Cato and President Zimmerman. The cloth , as has been herein found, was not the property of the Respondent, but was the property of The Cotton Shops and had been furnished to the Respond- ent for the manufacture of dresses. Cato admitted that "probably 350 thousand yards" of cloth were shipped from the plant and testified that the Respondent ordinarily used "a couple of million yards per year" and that orders to ship the cloth were received from The Cotton Shops "during the time just before the National Labor Board election." Cato further testified that shipments of cloth from the plant had never been made in quantity before. He also admitted that in a speech to the employees President Zimmerman told the employees that the cloth was being shipped out because its owner, The Cotton Shops , "were aware of all the confusion in the plant," but he testified that he did not know how The Cotton Shops learned of this. JACKSON GARMENT COMPANY, INC. 185 Zimmerman testified that he told The Cotton Shops of the attempt of the employees to organize themselves into the Union and that in a talk to the employees : I went on to say that the customer was aware of the situation that existed in the Jackson Garment Company, and that they decided that because of the considerable unrest in the plant, they decided to move the goods out, and I went on further to state that if those goods were not made up, into dresses in the Jackson Garment Company, that goods could be sent to any other factory, or to another factory somewhere other where it ultimately could be made up into dresses. It is clear that the removal of the cloth from the Respondent's plant as hereinabove found was not an ordinary and usual business transaction and was not intended as such. Considering the blood relationship of, and interlocking ownership by, the individuals controlling both the Respondent and its only customer, but one inference can be drawn, namely, that the cloth was removed in order to influence the Respondent's employees in their choice of a bargaining representative. Moreover, in reality the Respondent is not independent of The Cotton Shops. Blood relationship, and common ownership aside, it is quite clear that the Respondent's very existence depends upon The Cotton Shops which can decide its economic life, can and does control its policies including its labor policies; therefore the act of The Cotton Shops in removing its goods from the Respondent's plant because it was dissatisfied with the concerted activity toward organization by the Respondent's employees was only a move to coerce and intimidate the Respondent's employees and under all the circumstances herein was in reality the act of the Respondent' and constitutes interference, restraint, and coercion violative of the Act. In view of the time at which it occurred the removal of the cloth was intended to affect the outcome of the forthcoming election. On the entire record, considered as a whole, the undersigned finds that by the removal of cloth from the Respondent's plant, preceding a scheduled Board election among the Respondent's employees, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Sec- tion 7 of the Act and further finds that said illegal conduct interfered with the election conducted by the Board on April 26, 1951. b. President Alvan Zimmerman' s speech The General Counsel called Lessie Coleman, Fannie Lynch, and Lola McPeake to testify with respect to a talk delivered to the employees on kpril 26, 1951, the day of the Board-conducted election in the plant, by Alvin Zimmerman, the Re- spondent's president. The three witnesses offered mutually corroborative testi- mony. The undersigned declined to accept further testimony which was stated to be similar by the General Counsel on the ground that it would be merely cumu- lative and needlessly burden the record. 7 For a complete , illuminating , and scholarly discussion of practices in the dress manu- facturing industry where one company "creates " a dress and assigns its manufacture to another firm under a system where the "dress creator" is known as a "jobber," In relation to its actual manufacturing agent to whom it can obviously dictate, see Abeles v. Friedman, 14 N. Y. S. 2nd 252, in which the Court ( Supreme Court, New York County) held in effect that the "Jobber" was responsible equally with the actual manufacturer in matters affecting labor relations because the manufacturer was not and could not be a free agent. Under the Court's ruling and the reasoning in Abeles v. Friedman, supra, the under- signed believes that the General Counsel should have joined The Cotton Shops as a party respondent, however, as this was not done he makes no finding against The Cotton Shops. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McPeake further testified that after Zimmerman's talk, hereinafter discussed and before the poly were opened for voting, she informed the Union's representa- tive, Joseph B. Rinaldi, of the talk and that Rinaldi told her : Well that is all right we will discuss that later. If we lose the election. • • n * i Y • If we lose the election, we already have enough on the Company, and I feel sure that perhaps we might get another election. Although the undersigned in no way approves of Rinaldi's tactic, -there is nothing in his action which in any way could later prevent the Union from for- mally objecting to the Board by an allegation of illegal conduct. as in fact it did. If the rights of employers as guaranteed by the Act are in any way violated it becomes the duty of the Board to protect the persons aggrieved, after the Board has had timely notice of the violation, for as the Board has held in the case of Squirrel Brand Co. (96 NLRB 179) a union does not waive its right to have an election set aside by proceeding with an election with knowledge of an employer's interference. Zimmerman frankly testified with respect to his talk to the employees. He testified that he had the employees assembled immediately following the noon hour, on the day of the election ; his talk being made between 12: 30 and 1 p. m.; lasted about 12 minutes; that the entire meeting lasted about 20 minutes; that the employees were paid for the time consumed. The voting took place at 4 p. in. Zimmerman testified that after introducing himself and telling the employees "that the issues involved in the election were of such a serious nature" he felt an obligation to talk to them and correct a number of false rumors, he then. told them : The first rumor that I wanted to correct was-the first group of rumors that I wanted to correct were the rumors regarding the moving of the piece goods. I told them that the piece goods did not belong to the Jackson Garment Company ; that they belonged to our customers ; that the Jackson Garment Company neither owned nor controlled this piece goods, and I said that all the Jackson Garment Company does is to supply the labor that makes these goods into dresses, and we're paid, and we make our profit on the labor that we supply. I went on to say that the customer was aware of the situation that existed in the Jackson Garment Company, and that they decided that because of the considerable unrest in the plant, they decided to move the goods out, and I went on further to state that if those goods were not made up into- dresses in the Jackson Garment Company, that goods could be sent to any other factory, or to another factory somewhere other where it ultimately could be made up into dresses. Zimmerman continued : The next thing that I talked about with the employees was that the CIO, Paperworkers Union people had been telling the employees that if our com- pany, the Jackson Garment Company, ceased operations or went out of business, then they, that is the Paperworkers Union, would bring in what they had designated as a good dress plant to take our place. And I told them, told the people in that speech, that nobody could bring in another plant into our building. Then I went on to tell them that as a result of the dispute in which a CIO Paperworkers Union was attempting to get into a dress plant, and an JACKSON GARMENT COMPANY, INC. 187 organized dress plant , it seemed extremely unlikely to me that any other dress plant would want to come into such a situation. And it was at this point that I went on to explain to the employees that the Paperworkers Union had no knowledge whatsoever of the conditions in the dress industry, and that I couldn't see how they could bring in another dress plant. And I told the people that throughout the country, that there- there were approximately half a million-half a million people employed in the garment industry, and that of this half million, almost the entire number were organized into the union , and as far as I knew, none of these employees of the women 's dress industry were in any CIO union. Then, the next of these rumors that I talked about was one in which it had been rumored that I had discussed a contract with one of the represent- atives of the Paperworkers Union, and I told the people, in my speech, that there was no truth whatsoever to this; that I had not discussed it-a contract with any body from the Paperworkers ' Union, and that in fact I hadn't discussed anything with any of the people from the Paperworkers' Union. And I went on to say that the reason they had been told this was that the CIO Paperworkers' group wanted to make it appear that it could be very easy for them to get a contract with the company. Then I went on to tell them that there had been other instances-some few other instances where other unions had attempted to come into the dress industry, and to my knowledge none of these ever worked out suc- cessfully. And I said that it seemed to me that it was quite unlikely that we could work out a satisfactory contract with the CIO Paperworkers' Union. Then I went on to say that I had heard of instances where other CIO unions had either come into other dress plants, or had attempeted to come into dress plants , and in some instances , those plants had been forced to close, and in other instances , after a period of unsuccessful relationship, the plants had been turned back to the Garment Workers' Union. And I went on to say that if the CIO Paperworkers won the election, and came into our plant, that we could operate for some weeks or months, but that in view of what had happened in other dress plants in the industry, when they were-when a non-dress union had tried to come in, that I was inclined-to feel that some day we may be forced to go out of business. Zimmerman then told the employees that : I had heard that there had been a number of the employees who at one time or another had signed CIO cards, and who now had changed their minds and would prefer not to vote for CIO, but that the CIO organizers or representatives , in order to keep their people in line, had said that the company knew who they were, and they might as well go along with the CIO and go CIO, because they would be fired anyway. Then I went on to state that nobody would be fired for any activities of any kind that they had participated in, and that nobody would be fired for their having supported the CIO. Zimmerman closed his talk by stating : I said that inasmuch as every-all of the CIO people who were so active, seemed to be so well organized, were going to vote, and unless those who had some sentiment against the CIO Paperworkers ' Union exercised their right to vote, it would be the equivalent of a vote for the CIO Paperworkers Union. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conclusion Zimmerman created a favorable impression with the undersigned who credits his testimony with respect to the talk he made to the Respondent's employees. It may well be that Zimmerman was genuinely concerned that his employees might choose as their representative a union not ordinarily a representative of garment workers and unable to effectively represent them and thus disrupt an existing union relationship wholly agreeable to the Respondent. If this was Zimmerman's feeling he had a perfect right to express his views to the em- ployees, as the views of their employer on a matter of mutual concern, but in so expressing his views he was required to remain within the realm of intellectual discussion , he was forbidden to play upon fear, else he violated the constitutional guarantee of free speech, for free speech does not mean license to violate valid laws, including the Act's protection against restraint and coercion. Zimmer- man could disseminate facts, express opinion, indicate preference, state policy, and even express disapproval a but he could not use his right of free speech as a shield for coercion in violation of the Act.° No matter what may have been Zimmerman's conception of the Act, when he told the Respondent's employees, in effect, that cloth was being moved out because of the effort the employees were making to organize the Union; that if the CIO won, the cloth might not be moved back ; that if the Respondent was forced to leave, no other dress manufacturing plant would come to Jackson ; that he did not think the Respondent could ever work out a contract with the Union; that the CIO had forced others out of business and that the Respond- ent would be forced out of business by the Union ; and when he called on all those indifferent or opposed to vote "No," clearly he had overstepped the boundries set by the Act and the courts and was no longer within the area of protected speech for as has been said by Justice Learned Hand: 10 Words are not pebbles in alien juxtaposition ; they have only a communal existence; and not only does the meaning of each interpenetrate the other, but all in their aggregate take their purport from the setting in which they are used, of which the relation between the speaker and the hearer is perhaps the most important part. What to an outsider will be no more than the vigorous presentation of a conviction, to an employee may be the manifestation of a determination which it is not safe to thwart. The Board must decide how far the second aspect obliterates the first. As the court stated in the Kropp Forge case: It also seems clear to us that in considering whether such statements or expressions are protected by Section 8 (c) of the Act, they cannot be considered as isolated words cut off from the relevent circumstances and background in which they are spoken. A statement considered only as to the words it contains might seem a perfectly innocent statement, including neither a threat or a promise. But, when the same statement is made by an employer to his employees, and we consider the relation of the parties, the surrounding circumstances, related statements and events and the back- ground of the employer's actions, we may find that the statement is a part of a general pattern which discloses action by the employer so coercive as to entirely destroy his employees' freedom of choice and action. To 8 Brandies, 145 F. 2d 556. ° Marttin-Neber, Glenn L, 141 F. 2d 371. 10 N. L. R. B. v. Federbush,121 F. 2d 954 (C. A. 2). 12 N. L. R. B. v. Kropp Forge Company, 178 F. 2d 822-certiorari denied October 9, 1950. JACKSON GARMENT COMPANY, INC. 189 permit statements or expressions to be so used on the theory that they are protected either by the First Amendment or by Section 8 (c) of the Act, would be in violation of Section 7 and contrary to the expressed pur- pose of the Act. Therefore, in determining whether such statements and expressions constitute, or are evidence of unfair labor practice, they must be considered in connection with the positions of the parties, with the background and circumstances under which they are made, and with the general conduct of the parties. If, when so considered, such state- ments form a part of a general pattern or course of conduct which constitutes coercion and deprives the employees of their free choice guar- anteed by Section 7, such statements must still' be considered as a basis for a finding of unfair labor practice. To hold otherwise would nullify the guaranty of employees' freedom of action and choice which section 8 (c) could not have intended that result. The undersigned finds that by Zimmerman's talk to the Respondent's em- ployees on April 26, 1951, as above found, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act and further finds that said illegal conduct interfered with the election in Case No. 32-RC-306. c. Cato's speech Lessie Coleman testified that when Zimmerman concluded the talk above referred to, Cato then spoke briefly to the employees, telling them that : . . . he liked Jackson, that we had been as one big happy family, and he would like to continue in Jackson and raise his family in Jackson, but the decision would be left up to the girls as to whether or not he remained in Jackson. Coleman was corroborated by Lola McPeake and Fannie Lynch. Cato denied that he told his audience that his remaining in Jackson depended on the way they voted. - The undersigned, on the entire record, and because he considers Coleman, McPeak, and Lynch to be more reliable witnesses than Cato, credits their testi- mony and accepts their version of Cato's talk as being accurate. The undersigned finds that by Cato's remarks to the employees immediately following Zimmerman's talk, as above found, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and that by such illegal conduct has prevented a free expression of opinion and a free choice of a bargaining representative by its employees in the election conducted by the Board as part of its investigation in Case No. 32-RC-306. Upon the entire record the undersigned therefore recommends that the election conducted by the Board as a part of its investigation in Case No. 32-RC-306 be set aside and vacated. Alleged Violations of Section 8 (a) (1) of the Act, and Interference with the Conduct of the Election The General Counsel adduced evidence to the effect that certain "service girls" engaged in verbal conduct, violative of the Act. Inasmuch as the undersigned has found that "service girls" were not supervisors he finds this conduct was not binding on the Respondent. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is testimony that on the day ,of the election, during the noon hour, certain employees met with the Union's representative on the lawn in front of the plant and that President Zimmerman was seen at a window during the meeting. Zimmerman admitted he looked out of the window briefly during the meeting. The testimony of the General Counsel's witness was that Zimmer- man was seen only momentarily, also that it was raining at the time. The undersigned cannot be persuaded that an employer's momentary observa- tion of an open meeting held on a lawn, and in the rain, constitutes unlawful surveillance. There was testimony that during the course of the balloting Zimmerman looked through a small window in the wall between the room in which the voting booths were located and the general office. The record is clear that the only window overlooking the voting place from the main office was covered with cardboard during the entire time. The undersigned does not credit the testimony 12 that Zimmerman looked through a window into the voting place during the balloting. Willie Mae Lineberry testified that she acted as a "roving" observer during the election ; that she was required to be in the main plant while the voting took place ; that she observed Minnie Duncan and various floorladies in the plant when the voting started ; that she so informed the Board's agent who sent Cato into the plant to remove the supervisors. Mrs. Duncan testified that she did not leave but went back into the machine shop. The record is clear that the voting took place in the entrance hall of the plant and that there was only one entrance from the voting area into the plant. The voting was scheduled to begin at 4 p. in. following the quitting bell. At the time the bell rang the employees immediately lined up at the entrance to the hall where the voting was to take place, blocking it. Lineberry further testified : Q. Did Mrs. Duncan and Mrs. Elder and the others remain in the back of the room to permit the employees to file out to vote? I am sorry if I didn't make myself clear. I understood that when the bell sounded, then the employees lined up to come through the corridor to cast their ballots, that Mrs. Duncan and Mrs. Elder and some other supervisors were in the rear of the building? A. Not in the back of the building. Q. They were away from the line? A. Yes. Q. Did they approach the line of the employees who were going to vote? A. No. Q. Did they make an effort to call anybody out of the line? A. No. Lineberry also testified : Q. Was there any other way that Mrs Duncan and Mrs. Elder could leave the actual workroom of the plant until these girls got out of the way for voting? A. They could have left by the back door, but they couldn't have clocked. out. Q. They had to come through this door into the corridor where the election was being conducted? A. Yes. 12 Testimony of Fannie Lynch. JACKSON GARMENT COMPANY, INC. 191 Under all the circumstances the undersigned is convinced that the supervisors in question were in reality trapped in the working area of the plant at the beginning of the voting; that they made no attempt to influence the voters and that their conduct was not violative of the Act under all the circumstances. The undersigned so finds. B. The discriminatory discharge of Evelyn Ferguson and Charlotte Cowart During the time material herein the Respondent's shipping department con- sisted of three employees, Herbert F. May, the "packer," and Evelyn Ferguson and Charlotte Cowart, "checkers and bundlers." Evelyn Ferguson testified that she was employed by the Respondent January 1950 and was discharged May 11, 1951. She worked as a bundler and checker during her entire employment. It is not disputed that when the dresses were completely finished they went to "folders" who are in the manufacturing division and under the supervision of the sewing room head. These folders fold the dresses and stack them on tables from which they are removed by the bundlers, in this case Ferguson and Charlotte Cowart, who were not in the manufacturing department, but in the shipping department, under different supervision. Ferguson described her duties as follows : My duties were to take twelve dresses and put them into a bundle and tie a string on each end of them, and a cardboard. Ferguson testified that the bundlers received the dresses from the folders whose duty it was to prepare the dresses so that "they are folded and sized right, and of the same style." According to Ferguson, the dresses "come back to the folders mixed up quite a bit, however they they should be straightened out." She testified that "they are supposed to be straight when I get them. All I do is tie them for packing." The bundlers tied up the dresses in packages of 12, first placing a protecting cardboard on each side of the bundle, one of the cardboards being stamped as follows : Style -, Size -, Amt. -, Color -. The bundlers were required to mark the information called for after each of these words. The information, except the color which was evident, required for the card was obtained from the tickets which were sewed in each dress. After the dresses were bundled and the information called for on the card- board filled in, the package went to May who packed the shipping boxes. May in turn rechecked the packages of dresses for the number contained only, and then when the box was packed called out the number of dresses in the shipping box to the bundlers who then made out a shipping slip in triplicate, one slip going into the box, one to the office record, and one being kept in the shipping depart- ment. The two bundlers handled as many as 300 dozens of dresses a day, an average day being somewhere between 150 and 200 dozens. Ferguson further testified that she was active in behalf of the Union. Fannie Lynch, called by the General Counsel, testified that Ferguson "was very interested" in the Union and "she helped us get cards signed." Mandy McGee, called by the Respondent, testified that Ferguson solicited her membership for the Union and that Ferguson talked to her about the Union, "almost every day." She testified : Well, ever since it started, I guess, back in December. I don't know. Couldn't say when she first began talking to me. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ferguson further testified that "about a week before the election," Vice- President and Manager Cato entered into a conversation with her in -the plant during the course of which he told her, "If you are planning on going along with the CIO, you had better look for yourself another job." Cato denied mak- ing the statement. The undersigned credits Ferguson The shipping department was under the supervision of Il. W. McConnell. Ferguson testified credibly that at the same time that Cato told her that she should look for another job if she intended to continue with the CIO, she also told Cato that if she were discharged that she "would rather have someone else" than McConnell discharge her. Later in the day she and Charlotte Cowart were called to Cato's office and told that they were being put under the super- -vision of Minnie Duncan, however, May continued under McConnell. There- after the work except for the supervision was performed in the same manner. Ferguson testified : . . . he said, due to the fact that Air. McConnell was so busy, he was going to change us to Mrs. Duncan's supervision, and he also said that Mrs. Duncan was a very busy person, and that lie hoped it wouldn't be necessary that Mrs. Duncan should spend too much time in our department with us, and Mrs. Duncan said that she was busy, and had quite a few things to do, and that she felt like Charlotte Cow ai t and I was a couple of very intelli- gent girls, and were capable of carrying on our work very well without any help, and she said, "If they continue to carry on their work in the future the same as they have in the past, I see no reason. why I should spend any time in the department with them." Ferguson also testified, corroborated by Cowart, that no mention was made by either Cato or Duncan of any mistakes made by Ferguson or Cowart in the performance of their work. With respect to the transfer, Cato testified : The reason I give was, Mrs Duncan was on the floor and in the department very often anyway, checking up on styles ; that she was there handy, could look after the department, and there was no reason why she couldn 't super- vise them and maybe furnish them an extra hour's work when there was nothing in the shipping department. Duncan testified : . . . Now, here's what I said. I remember distinctly I said if these girls are going to be under me, they know enough about the job and are capable enough, if they will, to do a swell job. Ferguson testified that on May 11, 1951, at about 4 p. in., Duncan came to her at her work and told her that the "Chicago office" had ordered changes and that Ferguson was being discharged. Ferguson was then given a check and a dis- charge slip. No previous warning had been given Ferguson . The discharge was made 2 weeks after the election. Charlotte Cowart was in the Respondent's employ from the time it acquired the plant until her discharge May 11, 1951. She always worked as a bundler and checker . Originally she and May constituted the department and later Ferguson was added. Cowart corroborated Ferguson 's description of the duties of the three employees . In addition to her work of making up bundles, Cowart also filled out the shipping slips from information called out to her by May. Cowart's account of the change in supervision to Duncan was substantially the same as that of Ferguson . She testified that no mention of any mistakes on the part of Ferguson and herself was mentioned at the time. JACKSON GARMENT COMPANY, INC. 193 Ferguson testified that the Union began its organization of the Respondent's employees sometime in December 1950; that she was active in the organizational effort ; was a member of the Union's organizing committee ; distributed applica- tions for union membership; urged fellow employees to join the Union, and at- tended meetings. Mary Cox, a witness for the Respondent, testified that Cowart talked to her about the Union "almost every day" and that during the period from December 1950 to the election, Cowart talked to her about "so much more money we'd get from the CIO and such as that," and daily asked "if I wouldn't vote for them." Cowart testified that on May 11 Duncan discharged her, without any previous warning or notice, under the following circumstances • Just a few minutes before 4: 00 o'clock, Mrs. Duncan came back to our department. She walked up to Evelyn Ferguson and was talking, and at that time I didn't know what they were talking about because she was at one end of the line and I was at the other. So after she left Evelyn, she came on down where I was, and she says, "Charlotte, I regret very much to do this," but says, "Chicago has called and says that we must let you go ; says it isn't either my decision or Mr. Cato's ;" says, "We do what they say to do," and said, "It isn't temporary ; it is permanent." And she said, "What I regret most is having you work for me for such a short while." And she said-she handed me my check, and I thanked her, and that was all. Both Cato or Duncan admitted that nothing was said to either Ferguson or Cowart about any alleged mistakes they made in their work either at the time they were transferred to Duncan's supervision or at the time they were dis- charged. The undersigned therefore finds that about 1 week prior to the election of April 26, herein 'referred to, Ferguson and Cowart were transferred to the supervision of Duncan and no complaint was made with respect to errors in their work at the time and that at the time they were discharged by the Respondent on May 11, any mistakes they may have made in their work was not given them as a cause thereof by Duncan who discharged them. The Respondent 's Contentions as to the Discharge of Evelyn Ferguson and Charlotte Cowart In its answer the Respondent avers that Ferguson and Cowart were discharged : Solely for the reason that they, after numerous warnings, continued to make costly and unnecessary mistakes. In its brief to the undersigned the Respondent also contends that Ferguson and Cowart : Were guilty of inefficiency and frequent neglect of their work. At the hearing the Respondent adduced evidence that Cowart and Ferguson tossed bundles of dresses to each other. The two employees admitted that they at times tossed bundles to each other in order to save steps ; testified that the bundles so tossed never were broken open in the process or fell to the floor ; and that the practiceawas not common or frequent. In its brief the Respondent states that : Mary Cox . . . testified that she saw said employees frequently (emphasis added) engaged in acts of throwing bundles of garments to each other and doing acts which impaired the discipline and efficiency of Respondent's opera- tion. 194, DECISIONS OF NATIONAL LABOR RELATIONS BOARD Witness Mandy McGee is stated to have testified similarly. The only testimony by the witness, Mary Cox, to sustain the statement that Ferguson and Cowart frequently threw bundles and engaged in other acts detri- mental to plant efficiency, is as follows : Q. (By Mr. Short) While you were working there with Mrs. Cowart and Mrs. Ferguson-with Mrs. Cowart and Mrs. Ferguson, did you ever observe them throwing any bundles to each other, bundles of dresses? A. Yes, sir. Likewise the only testimony by the witness Mandy McGee, on the same subject is the following : Q. Did you ever observe Mrs. Cowart or Mrs. Ferguson throwing bundles together in the department back there? A. I've seen them throw them. Both Cox and McGee testified on cross-examination that they never reported the fact that Ferguson and Cowart threw bundles to each other, to anyone at any time, except that Cox testified she informed the Respondent's attorney ap- parently during the course of the hearing." Chief Supervisor Minnie Duncan testified as follows : Q. (By Mr. Short) On any occasion that you've ever been in the shipping department, have you ever observed Mrs. Ferguson and Mrs. Cowart tossing bundles to each other? s A. Not when I'm in there; its when I'M not there. The record is clear that at no time were Ferguson and Cowart warned against the practice of tossing bundles to each other or was any mention thereof made to them by the Respondent, nor was any mention ever made to them with respect to any other allegedly improper conduct on their part. Upon the entire record, considered as a whole, the undersigned finds that neither the fact that Ferguson and Cowart tossed bundles to each other during the course of their work, nor the contention that they engaged in "other acts which impaired the discipline and efficiency of Respondent's operations," or "were guilty of inefficiency and frequent neglect of their work," as argued in the Respondent's brief, entered into their discharge as a cause therefor. Walter F. Cato, the Respondent's vice president and general manager of its plant, testified in detail with respect to the manufacturing process followed in the Respondent's plant. There were at the time material herein about 200 employees engaged in pro- duction 14 Cato described sewing operations as collar setting, sleeve setting, skirt setting, side joining, buttonholes and button setting, snaps, bottom hems, blind stitching, but he testified : "It is more complicated than that, but that is the simplest I can explain it." According to Cato's testimony, after the dress passes the snap machine : "it goes over to examiners," who "clip the threads and they examine the garment to see if it has any faulty material or anything in it, or work- manship." '$ The undersigned will discuss the Respondent's briefs at a later point herein. 14 The record discloses that 187 eligibles were included in the appropriate unit found in Case No. 32-RC-306. JACKSON GARMENT COMPANY, INC. 195 According to Cato, after this single inspection : Then it goes to the folders. We have our last check point as it goes to the, folders. A service girl will check the garment, that is, the number of gar- ments that are leaving , that have left the sewing floor and it goes over to the folders. Then, after the folders, it is picked up by the bundle girls who are supposed to sort it into sizes , colors and tie it a dozen in a bundle , and it goesi over to the packer , and is packed. According to Cato's testimony there is one inspection at the close of manufac- ture by an "examiner," then after pressing, the dresses are assembled into bundles, the impression being, hap-hazardly assembled : then merely counted by a: service girl and folded . This takes the garment from the actual manufacturing department and into the shipping department where two employees , namely, bundle girls , are charged with complete responsibility of sorting all the gar- ments into sizes and colors and tie them into uniform bundles Duncan, who is in actual charge of the manufacturing process, testified to, considerably more inspections than did Cato . ' Duncan testified : The floor girl is supposed to inspect as it is being made ; then we have is clipper or examiner who goes over that, and then we have a floor girl there, who carries it to the pressers , and the presser sees it as she is pressing it. Then it is carried to the folder, who sees it as she is folding. Q. Well, now, if any of the employees observe a defective garment along the, line up to the folder , what happens to that garment? A. They are requested to turn it back for correction. With respect to the bundlers , Duncan testified: Q. What are the duties of the bundling girls in the shipping department, Mrs. Duncan? A. Their duties are to check each garment for size and style, and tie them into bundles of twelve, with the correct size and correct style. They take them away from the folder to do this tying and prepare them for Mr. May. Duncan also testified that the information as to style and size was obtained from a ticket sewn into the dress , from which the bundlers obtained the infor- mation, they were required to write on the cardboard casing of the bundle. Duncan admitted that it would be impossible for the bundlers to distinguish a mistake in size within a range of "two or three" sizes in a dress folded and given them by the folder ; she also admitted that errors occurred by reason of the wrong size sleeves being sewn into dresses , and that the wrong tags or labels were at times sewn into dresses and so passed on to the bundlers. On the entire record, including the demeanor of the witnesses on the stand and the conflict in the vital testimony of Cato and Duncan, the undersigned is not persuaded that the Respondent's plant was so operated as to place the entire burden of final inspection of the dresses it manufactured , as to sizes , styles color, and workmanship on two employees who were not in the manufacturing department but were in the shipping department and whose duty it was to tie up the dresses into bundles, and prepare a shipping slip from information called out to them by a packer and who moreover handled 200 to 300 dozens of dresses daily. The undersigned is of the opinion that in order to accept such an un- realistic contention as fact, he must first believe that the Respondent strove for inefficiency. The Respondent's officials to the contrary impresses the under- signed as being quite "diligent in their business." 227260--53-vol. 100--14 1,96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned does not credit Cato's testimony nor the testimony of Duncan with respect to the duties of Ferguson and Cowart but does credit the latter's testimony with respect to their duties. The record discloses that all the materials from which the Respondent manu- factures dresses are the property of The Cotton Shops, are shipped to the Respondent by The Cotton Shops and remain The Cotton Shops' property. When an order to manufacture dresses is received the necessary cloth is withdrawn from stock by the Respondent, a record is made of the amount withdrawn and cut, and a copy of this record is sent to The Cotton Shops. This record shows the number of dresses to be produced, by size, style, and color. Cato testified that after the dresses are completed they go to the folders where : We have a yellow sheet, that on this sheet it shows each bundle, style, and how many dresses in the bundle, and as they go through, through the ship- ping department, that bundle is checked off. Cato testified that the yellow sheet above-mentioned is not sent to The Cotton Shops but that a shipping slip made by the packers is sent with each packed -carton or shipping box." May testified that it was "part of my duty" to re-count each bundle of dresses given him by Ferguson and Cowart. His check was for the number of dresses only. If he discovered an error he returned the bundle. Cato testified tnat "the last two months before this date of May 11, I asked May if he would re-count" the dresses. R. W. McConnell, who was May's immediate supervisor, testified that after January 1951, it was May's duty to re-count all the bundles before he put them in the shipping carton. The undersigned credits May and finds that he rechecked all bundles for the number of garments contained in them. A copy of the shipping slip prepared by Cowart was placed in every carton shipped, these slips were used as a check by The Cotton Shops at the time the dresses were received by them, if any errors were discovered The Cotton 'hops sent a "correction slip" to the Respondent. This "correction slip" was a form which identified the shipment by number, style, date, and number claimed shipped and number received. Other pencilled notations were also written on the form to explain the error claimed.16 - The undersigned is mindful of Cato's testimony above cited to the effect that the "ship- ping department" checks from the yellow sheet. The undersigned believes this to be a deliberate attempt by Cato to mislead 16 The Respondent offered certain "correction slips" received from its customers alleged to show all the errors made by Ferguson and Cowart. The Respondent admitted that it had no knowledge of who actually made these records or who compiled the information upon which it was based The General Counsel contended that the correction slips were hearsay. The undersigned admitted them, and took testimony explaining them. The undersigned then called upon the Respondent to produce its ledger which would show regular entry of the "correction slips," and called the individual who kept this ledger. On examination by the undersigned it appeared that the "correction slips" above referred to were regularly entered in the ledger when received and used as a basis for correction and final billing. The undersigned may therefore make findings based on the "correction slips" offered by the Respondent and admitted. Rule 514-of the Model Code of Evidence of the American Law Institute reads : (1) A writing offered as a memorandum or record of an act, event or condition is adurissible as tending to prove the occurrence of the act or event or the existence of the condition if the judge finds that it was made in the regular course of that business JACKSON GARMENT COMPANY, INC. 197 The Respondent admitted that it had no way of checking the accuracy of the customer's claim. The only check that it could conceivably make being in its own plant. Such a check could only be accurately made after all the dresses called for on a certain cutting record had been presumably shipped and the shipping records could be compared with the cutting records Cato testified as follows with respect to the procedure followed upon receipt of a "correction slip" from The Cotton Shops : Q. (By Mr Short) After that record was received by you from the customer, Mr. Cato, what, if anything, did you do regarding it? A. We file these records away until the entire style is shipped, and by that time it usually washes itself out. TRIAL EXAMINER PLOST: What do you mean by "washes itself out"? THE WITNESS: These corrections will go back and correspond with the number of dresses that we did ship; that is what we cut. TRIAL EXAMINER PLOST: You mean at the end of the style the overages and shortages will have corrected themselves? THE WITNESS: They will after After we go through them and sort them and send in these corrections-that's what these are-telling us of these mistakes- The Respondent contends that Ferguson and Cowart were solely responsible for the errors reported by The Cotton Shops. Cato testified in detail regarding the "correction slips," his testimony being treated elsewhere in this report. Cato clearly attempted to create the impres- sion that the mistakes shown by the "correction slips" were serious, and attributed them to Ferguson and Cowart, however, his testimony was not only evasive but in the opinion of the undersigned Cato deliberately designed to create confusion by misleading answers, for example, after testifying that he did not talk to the two women about their errors at the time they were put under Duncan's supervision, he changed his testimony within minutes in answer to the following leading question by the Respondent : Q. (By Mr. Short) Did you or did you not fat the time of the transfer] bring to their attention the mistakes that were developing in their depart- ment, in the shipping department at that time? Cato answered the question. A. We discussed them there, that numerous mistakes was made in there, and just tried to stop it. The testimony thereafter was as follows : Q. (By Mr. Short) You were going to transfer them under the supervision of Mrs. Duncan in an effort to cut the mistakes. for one with personal knowledge of such an act, event or condition to make such a memorandum or record or to transmit information thereof to be included in such a memorandum or record , and for the memorandum or record to be made at or about the time of the act, event or condition or within a reasonable time thereafter. The discussion of the Rule reads : The judge must make the preliminary findings from admissible evidence ; but any witness acquainted with the regular course of the business may testify concerning it. All the judge need find as to the particular writing is that it was made in the regular course of a business ; in addition he must find that the regular course of that business complied with requisites of the Rule ; only these and nothing more. All common law qualifications and restrictions are abolished. He need make no formal finding ; his ruling admitting the writing carries in it the finding of the facts to support it. Although the Model Code is not binding it does reflect the modern interpretation of the law. 198 DECISIONS OF NATIONAL LABOR RELATIONS BARD) A. That is correct. TRIAL EXAMINER PLOST : You told them that? THE WITNESS: Yes, sir. - TRIAL EXAMINER PLOST : Well, now didn't you just testify a few- minutes ago to me that you didn't tell them anything like that? After considerable fencing and interjections by both the Respondent- and -the- General Counsel, Cato testified as follows : Q.... Now, as I understand the testimony now, you are testifying that you did talk to them, is that right? THE WITNESS : We explained the duties. You are right. TRIAL EXAMINER PLOST : Well now, did you talk to them- about the- mistakes made from the Cotton Shop? You have just now given two stories. - Now, which one of them is true? THE WITNESS: I don't think I discussed the mistakes, made by the- Cotton Shops when they were in the office. TRIAL EXAMINER PLOST:, All right; or did you ever discuss with them the mistakes that were made in the Cotton Shop? THE WITNESS: Some time after Mr McConnell would go back, I would go back with him and see that he did take the information back, and we'd talk it over. I didn't go back and bawl them out; I'd just show them the- mistakes, and the seriousness of them. TRIAL EXAMINER PLOST : Now, your testimony is that you never told the girls, but you told it to McConnell, and when McConnell went to, tell it to the girls, you went along, is that right? THE WITNESS: Sometimes I would follow. Sometimes I'd' follow him up ; not every time. TRIAL EXAMINER PLOST : Did you talk to the girls when he went along, or did you just stand there and listen? THE WITNESS: I listened, and sometimes I would join in in the con- versation and say-- TRIAL EXAMINER PLOST : Can you tell me at any time you joined in the conversation? THE WITNESS : No dates, no, sir. TRIAL EXAMINER PLOST : All right. Following the above testimony Cato was again asked by the Respondent if at any time subsequent to the above-mentioned transfer he talked to Ferguson and Cowart "about the mistakes attributed to them," and answered "only in a casual way, as I have stated in the past, that sometimes Mr. McConnell would go down and show them the mistakes and I'd go along." After the transfer McConnell was not in charge of the bundlers. This may explain the following testimony. Q. (By Mr. Short) I am talking about subsequent to this conversation that you have just related that took place in your office, Mr. Cato. A. No. Q. You have never talked with them about the mistakes which you attributed'to them? A. Oh, I've-as I mentioned-I don't believe I understand your question-' TRIAL EXAMINER PLOST : Will you read the question, please? (Question read.) A. All the correction of people, I detailed it to the one that is supervising them. JACKSON GARMENT COMPANY, INC. 199 Q. (By Mr. Short) You, yourself- -TRIAL EXAMINER PLOST : You haven't answered the question yet. Will you answer the question directly? Did you have-this conversation that you had with these girls in the office-that's two weeks before they were discharged-did you in that two-week period talk to them about the mistakes that were reported to you from the Cotton Shop? THE'WITNESS : No, sir, I did not. Cato then testified, also in response to a question leading in character, as follows : Q. (By Mr. Short) Did you ever, subsequent to this conversation, dele- gate anybody to talk with either Mrs. Cowart or Mrs. Ferguson about the mistakes which you attributed to them? A. I've talked with Mrs. Duncan about it. Q. Did you or not instruct Mrs. Duncan to talk to these girls about the mistakes which you attributed to them? A. 1,did. Q, How many times did that occur, Mr. Cato? A. Oh, whenever I would get the notices that we was having mistake@, I'd call it to Mrs. Duncan's attention. .Q, Would you estimate about how many times that occurred, Mr. Cato, prior to the discharge of Mrs. Ferguson and Dirs. Cowart? A. No, not the exact number It's probably two or three times because every day or so we get those slips. However, Cato immediately repudiated this testimony as follows : TRIAL EXAMINER PLOST : Now, then, your testimony is that two or three times you told Mrs. Duncan to tell these girls about the mistakes that were coming from the Cotton Shop, that were reported from the Cotton Shop, rather? THE WITNESS: I told Mrs. Duncan about the mistakes. It was taken for granted they would take care of it. TRIAL EXAMINER PLOST: Did you tell Mrs. Duncan to pass that information on to the girls? THE WITNESS: I did not. Minnie Duncan, who was in charge of the actual manufacturing processes also testified with respect to the errors made by Ferguson and Cowart. Her testi- mony was so confused and her answers so far from the questions that one might easily be persuaded that the English language was an unfamiliar medium of expression to her. Duncan testified that when any "correction slips" were received from The Cotton Shops she was required to make a check. Duncan testified : I take the style, and the complaint that's been made on it and get the cutting order to see just how many dresses were cut, and just how many is short, or whatever the complaint is, and check up to seek if I can find the missing garments ; checking the cutting order with what they say they have, and what they say they've shipped-what we ship, and what was received at the Cotton Shop compared with the cutting-the original cutting order. Duncan also testified that she did not receive any complaints until the whole of the style had been shipped ; that she received no complaints on partial ship- ments; that only after all of a completed style had been shipped did she receive a memorandum from Cato showing all errors ; and that she then made the check. 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Duncan also testified : TRIAL EXAMINER PLO ST : In other words, you know, or you check up to see how many garments were actually cut? THE WITNESS : Actually cut, yes, sir. TRIAL EXAMINER PLOST : And then you go around through the plant and see if there are any garments that haven't been shipped? THE WITNESS: I do. TRIAL EXAMINER PLOST: That is all that means, isn't it? THD WITNESS : That's all that means. Duncan further testified that at the time she checked for errors all of the operations of making the garments had been completed and all the garments had been shipped ; that "between the time they shipped the first case and until the time they shipped the last case and the report came to her " she was told nothing regarding errors in numbers shipped but would be told if any defectively made dress had been received by The Cotton Shops. Duncan testified : Q. (By Mr. Short ) The Trial Examiner asked you if you made that check, and you stated that "I do." Is that correct now? A. Not until the end of the style. Duncan testified that Ferguson and Cowart were put under her supervision on or about- April 11. Prior to this they were supervised by McConnell but according to Duncan during the time McConnell was in charge of the bundlers' work she also supervised Ferguson and Cowart and visited the shipping depart- ment "almost every hour" because : I'm responsible for every dress made in that plant . I want to see how- what's going on and how it's going on, and to see that it's being bundled right, and folded right, and in the correct way. and that prior to May 11, Various times I've said, "Girls , let's watch these tickets ; watch this work; don't let anything get out of here that you would be ashamed of," and something to that effect. Having testified that she supervised Ferguson and Cowart while McConnell was their immediate superior , she also immediately testified that when Cato told her they were to be transferred to her : He said that if-"If they're transferred, `Mac' doesn 't have much time to devote out there, and you are where you can see them any hour during the day, and if they come under your supervision I feel that we can clear up some of these mistakes ; get this place cleaned up back here, and go along as we should." Because she (Duncan ) knew Ferguson and Cowart were not devoting their best efforts to the job, both from personal observation and because "Mac spoke of it," to her, she then "objected to taking these girls" but finally told Cato : If that's my duty, then we must talk to them ; and have them thoroughly understand that it is. Duncan admitted that when the two women were called to the office and trans- ferred to her supervision, no mention was made of any of the alleged mistakes by either Cato or herself. She testified that she did not remember what Cato had said during the interview but as for herself : -JACKSON GARMENT COMPANY, INC. 201 ... Now, here's what I said. I remember distinctly I said if these girls are going to be under me, they know enough about the job and are capable enough, if they will, to do a swell job. Duncan was an eager witness, but her testimony with respect to the alleged mistakes and derelictions of Ferguson and Cowart was so confused and con- tradictory that it became not only meaningless but ridiculous. For example, she testified that prior to the time the two employees were transferred to her supervision she discussed the "correction slips" with them. After first being unable to be specific she then specified such conversations regarding the errors, based on information given her by Cato as being had on definite dates. On April 1, according to Duncan, she told the two women : Girls, Chicago is calling us again ; we are getting reports that this work is tangled up ; and let's straighten it out. On April 8, (which she fixed as the date of the transfer of supervision instead of April 11, as she had previously testified). Duncan, according to her testi- mony, said to Ferguson and Cowart : Girls we're mixed up again. On May 1, she called attention to "two sizes in one bundle." However,- Duncan testified that Cato "didn't ,give me, any slips until the 11th [May 11], but he spoke to me about them." At several points in her testimony Duncan mentioned events and dates, only to later change her testimony, invariably testifying that she meant May 11, instead of the date she had used. May 11 being, of course, the date of the discharges. With respect to the actual discharge of Ferguson and Cowart, which was made by Duncan she testified : Q. What, if anything, did you say to Mrs. Cowart or Mrs. Ferguson, or both of them, at that time? A. I said I always hate to fire anyone, and I'm sorry this falls my lot to do it_ Q. Is that the extent of your conversation with them? A. That's just about all I said. The Correction Slips The Respondent introduced 25 "correction slips" received from "The Cotton Shops" during the period, January 8 to April 26, 1951.17 These "correction slips constitute all the probative evidence of errors in shipments reported to the Respondent by The Cotton Shops during this period. The Respondent attributes all the mistakes claimed in the slips to Ferguson and Cowart. Of the 25 slips, 16 show claimed shortages in the number of dresses shown as shipped and actually received; 11 of the 16 are for shortages of individual dresses, ranging from 1 dress to 9 dresses ; the entire 11 slips show claimed shortages of 33 dresses, while the remaining 5 of these 16 "correction slips" show claimed shortages in dozen lots of dresses ; 4 for 1 dozen each, and 1 for 3 dozen. The record is clear that the dresses were tied into bundles of 12 each by Ferguson and Cowart. After being tied into bundles, the dresses were passed to May who re-counted the bundled dresses, without breaking the bundle, and then packed the bundles into the shipping case. When May had filled a case for shipment he called out its contents to Cowart who propared a shipping 17 See footnote 16. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD slip from the information so given her. The shipping slip was in triplicate, one copy going into the shipping case. The slip became the basis, for "The Cotton Shop's check." Assuming that May's re-count of the bundled dresses was of no importance, .although the record establishes quite the contrary, and again assuming that Ferguson and Cowart were wholly responsible for the count into bundles of 12, :the record therefore shows that they can at most be charged for miscounting 11 bundles from January to March 26, as they counted dresses into dozens. The errors in dozens, (4 of 1 dozen, 1 of 3 dozen) must be attributed to May, -as he alone packed the shipping case, and counted the bundles. It is fair to infer that a shortage in dozens means a shortages in bundles. . The "correction slips" also show two overshipments. One of these was for .one dress, the other for 11/2 dozen dresses. The bundlers can be held respon- sible for the one dress error, as to the 11/2 dozen mistake the "correction slip" on which it is claimed bears the following notation : Note : Your shipping slip #10249 showed 161/2 doz., but the blue copy stated 18 doz. .-Regarding the meaning of "the blue copy" Cato testified : THE WITNESS : Now we stated that we shipped 18 dozen. Our blue copy stated that, but they received 161/2. TRIAL EXAMINER PLOST : I see. THE WITNESS : Our blue copy is made from our packing slip, naturally. TRIAL EXAMINER PLOST: Who makes the blue copy? THE WITNESS : The office girl. TRIAL EXAMINER PLOST : The office girl billed him for 18, and he received 16? - THE WITNESS: That's right. TRIAL EXAMINER PLO;ST : That is his complaint on that? THE WITNESS : That's right. He isn't complaining-he is com- plaining- TRIAL EXAMINER PLOST : He is complaining, then, about the blue copy that came from the office, this really is his complaint, isn't it? THE WITNESS : The blue copy corresponds with the amount we stated we shipped, 18 dozen on the packing slip. We make it from the packing slip. As it is quite clear that the shipping slap was correct, the undersigned there- :fore wonders if the Respondent is asking that he find that in addition to all the other duties attributed to them by Cato, the two bundlers are also to be held re- sponsible for mistakes made by the office force. The "correction slips" also show claimed errors in mixing sizes. There are five such claims. Four of these claims, in each intsance read : 1 dozen of style No. was mixed with shipment. The fifth "correction slip" claims one dress (of different style) was mixed with ,the shipment. Clearly the four mixed shipments, which uniformly were of one dozen dresses of the wrong style included in the entire lot, could only have been the error of May Who packed the bundles into the shipping cases. The last remaining "correction slip" is for the following claim : Case #10683 was listed as Style #2791 should be 2796. Again this is clearly May's error. It is immaterial whether the claim means that the case was incorrectly marked, or if it means that the shipping slip showed - JACKSON GARMENT COMPANY, INC. 203 the wrong number, for May alone stencilled the case or supplied the information for the shipping slips. At any rate it could have been of little moment as the dresses were in the case and the case reached the customer who made the check. Ferguson frankly testified that mistakes occurred "many times" by reason of the fact that dresses of a certain style were found after the style had been closed by the shipping department as complete ; that she had been told of mistakes having been made, but that she was not threatened with discharge or warned because of these errors. Cowart testified that at times the shipping department was informed that "a style was out" meaning "finished" and it would be so closed on the record but that other dresses of the supposedly finished style would then be found, and "we would finish it up then and ship it out parcel post." R. W. McConnell, testified that Cato gave him "correction slips" received from Chicago and that "a good many times" he talked to Ferguson , Cowart and May about the errors disclosed by the claims in order to "try to get them to double- check on them" and told them "if they didn't-if we couldn 't beat that , it would be else." On the entire record, including his impression of McConnell on the witness stand, the undersigned does not credit his testimony to the effect that he repri- manded Ferguson and Cowart and threatened them with discharge because of their alleged errors. Conclusion The dresses all went to the same customer . The customer's check was not questioned, naturally when a shortage was reported the Respondent made a check. This was the only error that could be checked . The claim that the Respondent, because of the errors of Ferguson and Cowart , was compelled to. make an elaborate and extensive search involving the comparison of cutting- records, shipping records, and book entries is incredible on its face. Such a check would have been entirely useless and could have proved nothing. Duncan's testimony clearly discloses the actual check : TRIAL EXAMINER PLOST : And then you go around through the plant. and see if there are any garments that haven 't been shipped? THE WITNESS: I do. TRIAL EXAMINER PLOST : That is all that means , isn't it? THE WITNESS: That's all that means. TRIAL EXAMINER PLOST: That' s the only check you can make? THE WITNESS: It's all I can make. The truth of Cato's testimony to the effect that the errors in shipments "cancelled themselves " by the "end of the style" when all the dresses of one kind had been shipped, is verified by the Respondent 's practice of checking against the "correction slips" only after the final claim on an entire lot shipment had been made. The very nature of the errors disclosed by the "correction slips," in the main, absolve Ferguson and ' Cowart from responsibility for them and show the errors themselves not to be serious. Upon the entire record the undersigned is persuaded that the errors as dis- closed by the "correction slips" were not the cause of the discharge of Ferguson and Cowart. The Respondent's admission that the errors disclosed by the "correction slips" and which it attributes entirely to Ferguson and Cowart were not mentioned to them either at the time of their transfer to Duncan's supervision or at the time of their discharge as a reason for their transfer to Duncan or their discharge, as well as all the circumstances in the case persuades 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the undersigned that the alleged errors were seized upon as a pretended cause for the discharge of Ferguson and Cowart after the event and were not the real reason therefor. The undersigned so finds. Having found that the reasons advanced by the Respondent for discharge of -Ferguson and Cowart are not sustained by the record, there remains only to be considered the reason advanced by the General Counsel for their discharge, namely, their union membership and activity. The hostility of the Respondent toward the concerted effort of its employees toward the organization of the Union and its selection as their representative is clearly shown by the record. Ferguson and Cowart impressed the undersigned as honest and forthright witnesses worthy of belief while Cato, Duncan, and R. W. McConnell did not, therefore where the testimony of the three latter witnesses are in conflict with Ferguson and Cowart, the undersigned has credited Ferguson and Cowart against ,Cato, Duncan, and McConnell. As has been found, Myrtle E. Holt testified credibly that Cato told her at the time she was rehired that certain employees among them Charlotte Cowart `'would be handing me [Holt] cards to sign" and in the same conversation told her that the Respondent would not sign a contract with the CIO. Ernest Matheney testified credibly, that in a conversation regarding the union activities of the employees in speaking of those active for the Union, Cato told him that Cowart "was the No. 1 trouble-maker down there" and that Ferguson "was just about as bad." Upon all the circumstances in the case, the record considered as a whole, and his observation of the witnesses, the undersigned is convinced and finds that the contention of the General Counsel that Evelyn Ferguson and Charlotte Cowart were discharged because of their membership in and activities on behalf of the Union, is well sustained by the evidence and therefore finds that on May 11, 1951, the Respondent discriminatorily discharged them in violation of the Act. The undersigned further finds that by said illegal conduct, the Respondent has discriminated in regard to the hire and tenure of employment of said Ferguson and Cowart, has discouraged membership in a labor organization, and has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. C. The alleged discrinwnatory discharge of Viola Haley Viola Haley was employed by the Respondent from the time it acquired the plant (she having been employed by the Respondent's predecessor), until August 10, 1951. The Respondent guaranteed its employees a certain minimum rate of pay for a certain established minimum quota of production. The ratio of pay to the failure to produce the established quota was known as "labor loss." On June 25, 1951, the Respondent posted a notice to the effect that employees who showed "labor losses" would be posted, those posted three times would be discharged. Haley testified that during her employment she did various types of work but that she made her quota only on four operations; that during the last 6 months of her employment she made her quota only "two or three days or maybe a week" ; and that this was only on an operation known as shirring which was work very limited in amount ; that the longest consecutive job she ever had in the plant lasted not over 1 week. JACKSON GARMENT COMPANY, INC. 205 The record is clear that Haley could only do simple sewing. She did not dispute that the Respondent favored her with the simpler sewing whenever possible. Haley was posted for excessive "labor losses" on three occasions and dis- charged. ,On examinaition by the General Counsel Haley testified : Q. (By Mr. Mitchell) Now it is your testimony that you have been with ,the Jackson Garment Company since they started the business in Jackson, Tennessee, is that correct? A. That's right. Q. During that time, had you ever had a labor loss or had you ever been down in production? A. All along. Q. All along you had .been down in production? A. That's right. Q. Had you ever been disciplined or reprimanded in any way for being down in production during that time? A. `Well, when any of us were down to the labor loss, they always come around and asked us to do better ; try and do better. Q. Were there any other employees down in labor loss at this time? A. Yes, there were Q. Do you recall whether or not the company laid off any employees at this time for being down, or for having a labor loss? A. You mean like I was? Q. Yes. A. Yes, one girl I know of. Q. When was that? A. It was a week before I was laid off. Upon the entire record the undersigned finds that Viola Haley was discharged 1by the Respondent because of inefficiency. The undersigned will therefore recommend that the complaint be dismissed insofar as it alleges that the Respondent discharged Viola Haley in violation of the Act. D. The Respondent's brief The Respondent filed two briefs with the undersigned, one concerning Case No. 32-CA-190, the other No. 32-RC-306. In 32-CA-190, the Respondent builds it defense on the following statement : The "bundle girl" [Ferguson and Cowart] then assorts the garments as to style, size, and color . . . That as a group of one dozen garments is assembled, the "ser ee girl" makes a record of the style, size and color of the gar- ments contained in the bundle on a cardboard sheet . . . and thereafter completes a shipping slip . . . that the record prepared by a "bundle girl" as hereinabove shown is the only basis the Respondent has for charging the customer . . . that is the responsibility of the bundle girl to make the final check... . The record does not sustain the brief as to the alleged duties of the "service girl," or the responsibility of the bundlers. _ The undersigned has commented on the Respondent's contention as set forth in the brief to the effect that Ferguson and Cowart frequently engaged in acts "which impaired the discipline and efficiency of Respondent's operation." 206 DECISIONS_'OF NATIONAL LABOR RELATIONS BOARD The analysis of the "correction slips" as appearing in the Respondent's brief although in the main , accurate, is not entirely so, neither does the brief accurately reflect the record in its contention that "Minnie Duncan on numerous occasions, prior to their discharges, warned employees Ferguson and Cowart of their inefficiency, neglect of duty and costly errors." In its brief on Case No. 32-RC-306, the Respondent argues that the acts of certain employees and of Jacob Nathanson are not binding on the Respondent- As fully discussed herein, the undersigned has found the contrary. The Re- spondent argues also that Zimmerman's speech contained no threats or promise and falls within the protected area of free speech guaranteed by the Constitu- tion and the Act. The undersigned cannot agree for the reason that "the ear trieth words as the palate tasteth food." Concluding Findings Upon all of the foregoing, the entire record, the evidence considered as a whole, and his observation of the witnesses, the undersigned finds that by the conduct found herein and set forth in section III A, 1, 2, and 3 above, the- Respondent has engaged in unfair labor practices in violation of Section 8 (a) (1) of the Act, and by the conduct detailed in section B, above, the Respondent has violated Section 8 (a) (1) and (3) of the Act. The undersigned further finds that the Respondent has prevented the free choice of a bargaining repre- senative by its employees. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occuring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce in the several States and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action which the undersigned finds necessary to. effectuate the policies of the Act. It will be recommended that the Respondent cease and desist from interfering with, restraining, or coercing its employees in violation of Section 8 (a) (1) of the Act by* interrogation of employees concerning their union activities, mem- bership, and sympathies and by threats of reprisal if a union is selected. Having found that the Respondent has discriminated in regard to the hire and tenure of employment of Evelyn Ferguson and Charlotte Cowart, and has refused to reinstate them, it will be recommended that the Respondent offer to them immediate and full reinstatement to their former or substantially equivalent positions," without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay they may have suffered by reason of such discrimination by payment to each of them of a sum of money equal to^ that she would have earned as wages from the date of her discriminatory dis- is The Chase National Bank of the City of New York (San Juan, Puerto Rico, Branch), 65 NLRB 827. JACKSON . GARMENT COMPANY, INC. 207 charge to the date of the offer of reinstatement less her net earnings" during such period.10 Because the unlawful discharge?; and the interference, restraint, and coercion found herein, particularly that occurring immediately before the election, indi- cate a purpose to limit the lawful concerted activities of the Respondent's employees, and because such purpose is related to other unfair labor practices, it is found that the danger of their commission is also reasonably to be appre- hended. The undersigned will accordingly recommend a broad cease and desist order, prohibiting infringement by the Respondent in any manner with the rights guaranteed in Section 7 of the Act. Having found that the Respondent has engaged in conduct which prevented the free choice of a bargaining representative, the undersigned will recommend that the election conducted in Case No. 32-RC-306 be set aside and declared null and void Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : Conclusions of Law 1. The operations of the Respondent, Jackson Garment Company, Inc., Jackson, Tennessee, constitute trade, traffic, and commerce among the several States within the meaning of Section 2 (6) and (7) of the Act. 2. United Paperworkers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By discriminating in regard to the hire and tenure of employment of Evelyn Ferguson and Charlotte Cowart thereby discouraging membership in a labor organization, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (0) and (7) of the Act. The Respondent has not engaged in any unfair labor practices by discharging Viola Haley on August 10, 1951. [Recommendations omitted from publication in this volume.] 19 Crossett Lumber Company, 8 NLRB 440, 492-498 20 Loss of pay shall be determined by deducting from a sum equal to that which the employee would normally have earned for each quarter or portion thereof, his net earnings, if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. The quarterly periods described herein shall begin with the first day of January, April, July, and October It is recommended further that Respondent make available to the Board upon request payroll and other records, in order to facilitate the checking of the amount of back pay due (F 1V Woolworth Company, 90 NLRB 289 )