The Newton Co.

THE NEWTON COMPANY 465 granting the merit increases just prior to the election.' We further find that under all the circumstances of this case, the interrogation did not reasonably tend to restrain or interfere with the employees in the exercise of rights guaranteed by the Act.8 We believe that the fore- going acts, whether they be considered singly or collectively, do not provide ample basis for setting aside this election. Accordingly, we find that the Petitioner's objections and exceptions do not raise sub- stantial and material issues with respect to the conduct affecting the results of the election, and they are hereby overruled. As the Inter- venor has received a majority of the valid ballots cast, we shall certify the Intervenor as the collective-bargaining representative of the em- ployees in the appropriate unit. [The Board certified International Union, United Automobile, Air- craft and Agricultural Implement Workers of America, UAW-CIO, as the designated collective-bargaining representative of the em- ployees of the Employer in the unit found appropriate.] MEMBER LEEDOM took no part in the consideration of the above Sup- plemental Decision and Certification of Representatives. 7 Cf Baird-Ward Printing Co, Inc., 108 NLRB 815, Detroit Aluminum & Brass Corpora- tion, 107 NLRB 1411, Universal Butane Company, Inc., 106 NLRB 1101, 1102-1103 a Blue Flash Express, Inc, 109 NLRB -591, The Lxbeial Market, Inc, 108 NLRB 1481 Bull Insular Line, Inc, et at , 108 NLRB 900 ; General Motors Corporation, Central Foundry Division, 107 NLRB 1096. The Newton Company and United Garment Workers of America, AFL. Case No.15-CA-640. April 27,1955 DECISION AND ORDER On October 15, 1954, Trial Examiner Robert E. Mullin issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices, and recommended dismissal of these allegation of the complaint. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. 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 briefs, and the entire record in the 112 NLRB No. 64. 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case and hereby adopts the Trial Examiner's findings, conclusions, and recommendations.' 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, The Newton Company, Newton, Mississippi, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating its employees regarding their union member- ship and activities in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1), participating in the cir- cularization of its employees to induce their withdrawal from the Union, threatening its employees with loss of employment or with other reprisals for engaging in union and/or concerted activities, or granting wage raises to its employees to discourage union activities. (b) Discouraging membership in United Garment Workers of America, AFL, or in any other labor organization of its employees, by discriminatorily discharging or refusing to reinstate any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of em- ployment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Sec- tion 7 of the Act. 2. Take the following affirmative action which the Board finds Will effectuate the policies of the Act : (a) Offer to Edith Fay Dansby, Violet Prior, Dorothy Harris, Billy Hollingsworth, Sarah Hollingsworth, Bernice Loper, Bonnie Pace, Estelle Sessions, William Sessions, Alford Richardson, A. Y. Wilson, Waurean Wilson, and Yvette Woodard, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges as provided under the section in the Intermediate Report entitled "The Remedy," and make whole not only the foregoing named indi- viduals but also Jimmy Lee Aycock, Elise Robinson, Agnes Wyatt, 1 The Trial Examiner inadvertently failed to find that the Respondent manufactures, and ships out-of-State , goods valued at $300,000 annually We so find The Trial Examiner found that Forelady Boyd's inquiry of Martha Harrison, rather than Velma Walker, aaas a violation of Section 8 (a) (1). We hereby correct this inad- vertence. Members Murdock and Peterson , unlike the Trial Examiner , would have additionally found the Respondent responsible for the conduct of the four rank-and-file employees in circulating the antiunion petition, in view of the fact that such activity paralleled similar activity by Respondent 's supervisors, and that such supervisors allowed these employees to move about freely and in open violation of the plant rule against circulating petitions There being no majority to overrule the Trial Examiner 's finding in this respect, it remains unchanged. THE NEWTON COMPANY 467 Charlotte Nester Ming, and Duval Rigdon for any loss of pay they may have suffered by reason the Respondent's discrimination against them as herein found, in the manner provided in said section. (b) Upon request, make available to the Board, or its agents, for examination and copying, all payroll records, social-security pay- ment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due. (c) Post in its plant at Newton, Mississippi, copies of the notice attached hereto and marked "Appendix B."' Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Fifteenth Region in writing, within ten (10) days from the date of this Order, what steps Respondent has taken to comply therewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that the Respondent discriminatorily discharged those employees whose names are set forth in Appendix A, or that the Respondent interfered with, restrained, or coerced its employees by any acts or conduct other than those found herein to have been committed in violation of the Act. MEMBER LEEDOM took no part in the consideration of the above Decision and Order. 2 In the event that this 01 der is enforced by decree of a United States Court of Appeals, these shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Deciee of the United States Court of Appeals, nntorcing an Order " APPENDIX A Dovie Addy Martha Helen Livingston James Dulane Boler Delores Ladd Lucy Eichelberber George Loper, Jr. Ima J. Ezell Junie McNeil Imogene Ladd Franklin Doris Thomas Martha Nell Harrison Doris Weir APPENDIX B NOTICE To ALL EMIrLOYEES 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 : 369028-56-vol . 112-31 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discourage membership in the United Garment Workers of America, AFL , or any other labor organization of our employees, by discharging and refusing to reinstate them, or in any other manner discriminating in regard to their hire , tenure of employment, or any term or condition of employment. AVE WILL NOT interrogate our employees regarding their union membership and activities in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Na- tional Labor Relations Act, participate in the circularization of our employees with antiunion petitions , threaten our employees with loss of employment or with other reprisals for engaging in union or concerted activity, or grant wage raises to our employees to discourage union activity. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act. WE WILL offer to the employees listed below immediate and full reinstatement to their former or to substantially equivalent po- sitions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them: Edith Fay Dansby Estelle Sessions Violet Prior William Sessions Dorothy Harris Alford Richardson Billy Hollingsworth A. Y. Nilson Sarah Hollingsworth Waurean Wilson Bernice Loper Yvette Woodard Bonnie Pace WE WILL make whole the employees listed below for any loss of pay suffered as a result of the discrimination against them: Jimmy Lee Aycock Elise Robinson Charlotte Nester Ming Agnes Wyatt Duval Rigdon All our employees are free to become, remain , or refrain from be- coming, members of the above -named Union or any other labor organization, except to the extent that this right may be affected by agreements in conformity with Section 8 (a) (3) of the National Labor Relations Act, as amended October 22, 1951. THE NEWTON COMPANY, Employer. Dated------ ---------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. THE NEWTON COMPANY INTERMEDIATE REPORT STATEMENT OF THE CASE 469 Upon charges duly filed by United Garment Workers of America, AFL, the General Counsel of the National Labor Relations Board,' by the Regional Director of the Fifteenth Region (New Orleans , Louisiana ), issued a complaint and an amendment thereto against The Newton Company, alleging that it had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charges, the complaint, an amendment thereto, and notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices the complaint , as amended, alleged in substance that the Respondent : ( 1) Through certain named supervisors and agents interfered with , restrained, and coerced its employees by interrogating them as to their union activities, soliciting them by petitions and other means to repudiate the Union, and threatening them with the plant's closing and other reprisals if the Union came in; (2) discriminatorily discharged Edith Fay Dansby and Violet Prior on July 31 , 1953, because of their activities on behalf of the Union ; ( 3) dis- criminatorily discharged 28 employees 2 on September 17, likewise because of their union and concerted activities ; and (4 ) on about September 18 granted a wage increase while a representation question was pending . In its answer, duly filed, the Respondent conceded certain allegations with respect to its business operations but denied all allegations that it had engaged in any unfair labor practices. Pursuant to notice , a hearing was held from April 26 to May 12, 1954 , inclu- sive , at Newton, Mississippi , before the duly designated Trial Examiner.3 All parties were represented at the hearing by counsel or their representatives. Full opportunity to be heard , to examine and cross -examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties . At the conclusion of the hearing the parties were advised that they might argue before and file briefs and/or proposed findings of fact and conclusions of law with the Trial Examiner . Counsel waived oral argument. On July 26, 1954, briefs were submitted by the Respondent and the General Counsel which have been fully considered by the Trial Examiner. From my observation of the demeanor of the witnesses , and upon the entire record in the case, I make the following - FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Newton Company is a corporation organized and existing under the laws of the State of Mississippi with its office and plant in Newton , Mississippi, where it is engaged in the manufacture of men's and ladies' slacks . The entire output of this plant is manufactured on a contract basis for I C. Isaacs & Company, Inc., of Baltimore , Maryland. Two other companies, with plants located in Mississippi, Over The Top , Inc., at Picayune (herein called Picayune ), and The Carthage Corporation , at Carthage (hereinafter referred to as Carthage ), are similarly en- gaged. Harry Isaacs and Stanley Keller, president and secretary -treasurer, respec- ' The General Counsel and the staff attorneys appearing for him at the hearing are referred to lieiein as the General Counsel and the National Labor Relations Board as the Board The above-named Company is referred to as the Respondent and the Charging Party, likewise named above, as the Union or the Gaiment Workers 2 The name of Audine Bentley was dropped from paragraph numbered 6 of the com- plaint upon motion of the General Counsel 3 Prior to the hearing Respondent moved to stoke and dismiss certain paragraphs of the complaint on the grounds that the allegations contained therein referred to conduct which occurred more than 6 months prior to the issuance of the complaint and that the allegations were not based on any charge filed within the period of limitation set forth in Section 10 (b) of the Act This motion was referred to Trial Examiner Herbert Silberman for ruling The latter denied the motion on the ground that the period of limitation set forth in Section 10 (b) is measured fiom the date of filing and service of the charge, not the compl a int, and further that the general allegations in the charges that the Respondent violated Section 8 (a) (1) of the Act supported the specific allegations contained in the complaint ( citing Colonial Shirt Corp , 96 NLRB 711 and Stokely Foods, Inc. v. N. L R B , 193 F 2d 736-737 (C A. 5) ). It would appear that this ruling is unaffected by the recent decision of the Boaid in Knickerbocker Manufacturing Company, Inc ., 109 NLRB 1195 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tively, of the Respondent, hold the same offices in the other three corporations named above . George Meskill , plant supervisor of the Newton Company, holds the same position with Carthage and is also manager of the factory at Picayune. All orders for goods produced at any of the three different plants located in Missis- sippi come into the Baltimore headquarters of the Isaacs Company, and all ship- ments to customers are consigned from that same headquarters . Trucks owned by the latter move raw materials from textile mills in the Carolinas, Virginia, and Georgia, to the plants in Mississippi at Newton , Picayune , and Carthage. On their return to Baltimore , the same trucks carry the finished goods of the Respond- ent and the other two plants back to the Isaacs Company. At the hearing the parties stipulated that The Newton Company manufactured products that were valued in excess of $300,000 and that its entire output was sold and shipped to cus- tomers outside the State of Mississippi . On the foregoing facts, the Respondent concedes, and I find, that The Newton Company is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED The parties stipulated and I find that the Union is a labor organization within the meaning of Section 2 (5) of the Act. III THE UNFAIR LABOR PRACTICES A. Introduction On July 29, 1953, the Union held its first and only organizational meeting for the Respondent's employees at Decatur, Mississippi, a town some 8 miles distant from Newton. Plans for the meeting had been initiated by one John Dansby, an em- ployee of the pressing department, who had discussed the matter with several of his fellow workers and contacted an organizer for the AFL. Mr. W. L. Hines represented the Union at the meeting and after a discussion of the objectives of collective bargaining secured some 35 authorization cards from those present. Before adjournment, Dansby was elected temporary chairman of the organizational campaign and designated as the one to whom all additional cards would be sub- mitted. Subsequent to the meeting a considerable number of the plant personnel signed such authorizations. Hines contacted Dansby 2 or 3 times to pick them up, the last such occasion being on August 4, by which date 110 employees had signed cards. On the following day, the Union wrote the Company to demand recognition and to request a conference for collective bargaining on the ground that it represented a majority of the employees. This letter went unanswered. On August 7, it filed a representation petition with the Regional Office (The New- ton Company, Case No. 15-RC-997). On August 24, however, the Union filed unfair labor practice charges against the Company, and, shortly thereafter the Regional Director notified the parties that, until there had been a disposition of these charges, further steps to process the representation petition would be held in abeyance. B. The allegations as to Section 8 (a) (1); the evidence and conclusions with respect thereto 1. The period from the outset of the union campaign to July 31 The General Counsel alleged that immediately after the union meeting on July 29, the Company sponsored a campaign of interference, restraint, and coercion that quickly thwarted the organizational efforts of its employees, a charge that was denied in its entirety by the Respondent. There was no dispute that management personnel were aware of the meeting. Meskill, the plant supervisor, testified that on July 29 "the general topic of con- versation concerned a meeting that night," Darrell Brinegar, plant manager, stated that he knew beforehand that a meeting of some kind was scheduled for the em- ployees; and Glenn Walley, the production manager, testified that on July 29, he heard rumors of such a meeting "all over the factory." According to Meskill, early the following morning, when it became apparent to him that union activities were underway, he called together all supervisory personnel and in a brief talk ordered them to refrain from attempting to influence the employees in any manner on union issues. Throughout that workday there was a considerable amount of talking on the part of the employees about the union meeting. On July 31 there was more. The General Counsel alleged that on the latter day the Respondent, through its auoervisors , permitted the circulation of antiunion petitions among the factory THE NEWTON COMPANY 471 personnel, openly predicted that the plant would close if the Union came in, and discharged two employees because of their union sympathies . The General Counsel produced a large number of witnesses whose testimony tended to sustain these allega- tions. The Respondent, on the other hand, called many others, most of whom categorically denied the testimony on which the General Counsel relied. It is the responsibility of the Trial Examiner to sift the mass of conflicting and contradic- tory evidence in this record and set forth his conclusions as to which of the witnesses merit belief. To that task I now turn. On the morning of July 31, Medric Ware , Billy Cleveland, Lowry Walters, William E. Simmons , Melton Magee, and Lee Turner, employees of the shipping , cutting, and order departments , prepared petitions which bore no captions other than a column headed "work" and another headed "union ." Within a short period that morning they contacted almost every employee at his or her machine . At the conclusion of their canvass the solicitors turned their signed petitions over to Meskill in his office. The latter testified that on this occasion , he thanked them and told them that he felt "things will straighten out;" that shortly thereafter he turned the petitions over to H. V. Watkins , counsel for the Respondent ; and that he never saw them thereafter. The plan to petition the employees had originated earlier that morning when all of the order, shipping, and cutting employees had been ordered into the shipping de- partment by Henry Mack 4 to pack the piece goods and finished garments in the stock- room. The job required several hours. Upon completion , much of the packaged material was shipped to the Carthage plant, although some of it was left in boxes that were stacked on the stockroom floor. In his brief, the General Counsel argues that this operation was in fact only an elaborate strategem designed to give the impression that because of the organizational campaign the plant was shutting down . At the hearing , Mack testified that he ordered this step in an effort to make room for certain remodeling that was scheduled for the weekend . The Respondent contends that this was the only reason and that there was no sinster or unlawful motive behind Mack's activities on that morning. There is substantial support in the record for the General Counsel's theory that Mack played an unusual role that day . The latter testified that he did not give Ward Bixler, foreman of the cutting room, any reason for moving this material. He further testified that the amount of finished goods and inventory moved on that par- ticular occasion was not unusually large and that similar shipments were often made in the ordinary course of business. Yet he gave no explanation as to why all of Bixler's employees had to be summoned from their regular duties with such haste. Lowry Walters, one of these employees , testified that he could recall no similar instance in the preceding 5 years. Cleveland , another 5 -year employee , had never before been directed to pack cloth . Sam Feltenstein , assistant plant manager at the time, testified that he had inquired as to the reason for the movement and was told by either Brinegar or Meskill that the management did not want the piece goods tied up in the plant because there was a rumor that the factory might be picketed. According to Mack, he did not even speak to Plant Manager Brinegar prior to giving the orders . Glenn Walley, the plant production engineer, testified that several days earlier he had had a telephone conversation with Mack in which the latter told him of his plan to move the piece goods . His testimony in this regard , however, was con- fused and it was contradicted by Mack.5 It is true that on this weekend a brick wall separating the stockroom from the sewing floor was torn down and that, in preparation for this construction work, some of the inventory had to be covered and moved .6 If this were the only reason for the operation, however, it is difficult to understand why the job necessitated so much haste and fanfare . In any event, it is evident that some of the employees who participated did conclude that Mack's order was related to the union campaign and that it meant the plant was on the verge of being moved . Walters testified that because of the 4Mlack represented the Baltimore headquarters , frequently visited the Newton plant, and at this particular time was supervising the establishment of a new production line on the sewing floor His supei visoiy statue was conceded by the Respondent 6 Mack testified that he first mentioned the matter to Walley on July 31 and then only after lie ordered the cutting room employees to start the packing job Accoi ding to Walley, Mack had mentioned the subject earhei that week in a long -distance telephone call from Baltimore Mack, lion ever, testified that throughout this period he was at the Newton plant 6 Mack's testimony v as corroborated , in part , by that of a witness for the General Coun- sel, Richard Dyess, a cutting room employee who participated in the movement According to Dyess, "the material that I saw leaving the plant left from the wall where the partition between the sewing room and the stock room and tons was." 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union meeting and what Mack said about moving piece goods , he and the others became fearful that their jobs were in jeopardy, and that after some discussion, they concluded that it was imperative that those opposed to a union enlist all possible support immediately . The testimony of Billy Cleveland was to the same effect. The latter further testified that when he and the others named above reached this conclusion they dropped their work , went out on the sewing floor, where most of the employees worked in 1 large room on 6 production lines, and during the course of the morning endeavored to contact every employee there and elsewhere in the plant. The General Counsel alleged that the Respondent sponsored this conduct on the ground that both Magee and Turner were foremen 7 and further that the acquies- cence of the Company in allowing the others who were only rank -and-file employees to circulate the petitions constituted ratification of their action . The Respondent disclaimed all responsibility, denied that any participant had supervisory status, and argued that the petitioning arose out of a spontaneous move on the part of those rank-and-file employees who opposed a union to enlist plantwide support and demonstrate their strength. There was much testimony on the employment status of Magee and Turner. After an examination of this, it is my conclusion that they held supervisory positions, although of a minor character . Many witnesses testified as to remarks made by Magee while he went from one employee to another soliciting signatures. Jimmy Lee Aycock and Audrie Bentley had declined to sign the petition when it was first brought to them that morning Shortly thereafter, when Magee was circularizing the employees in an adjoining line, they asked him to explain his objective. The latter told them to sign if they wanted to keep the plant in operation. At this point both employees did so. Junie McNeil testified that when Magee asked her to sign he told her that he did not know whether that would keep the plant from closing but that he was trying to get everyone to sign According to Dovie Addy, Magee asked her if she wanted to keep working and when she replied in the affirmative, he declared "The signing of these union cards is about to blow the plant up... . Mr. 4 Magee was in the shipping department with some 5 to 6 employees Plant Manager Brinegar described him as a working foi eman . Sam Feltenstein, assistant manager during the period in question , testified that if he wanted anything from the shipping department lie asked Magee, that Magee occasionally attended supervisory meetings , that when addi- tional help was needed in the department it was Stages who brought that matter to his attention , that on payday he customarily delivered all checks for the personnel in a depart- ment to the supervisor in charge, and that in keeping with this practice he brought checks for the shipping room employees to Magee who, in turn , distributed them. In addition to the foregoing, John Dansby and Alford Richardson credibly testified that on several occa- sions they were temporarily assigned to the shipping department , that while there they took orders from 'Magee and that, at the conclusion of their assignment, it was Magee who signed their transfer slips. Turner was in the order depaitment . Brinegar described him as a working foreman with six employees in his unit, and Feltenstein testified that he considered Turner the man in charge of that department. The latter also testified that Turner attended supervisory meetings that it was Turner who reported to the management when additional personnel was needed in the order room , and that, as with Magee in the shipping department, it was Turner who disti ibuted paychecks to the employees in the order department . Finley Brown, an employee in that department , testified that when hired he was told Turner would be his foreinan , that thereafter he took orders from Turner and when he decided to quit the employ of the Company, it was Turner whom he so notified Sarah and Billy Hollings- woith , Alford Richardson , and John Dansby likewise testified to having worked in the order room at Tuinei 's direction and having had him sign their transfer slips The pay- roll records of several employees in that department are in the record . From these, it appears that one Hubert Parks received 94 cents an hour, Thomas Blackwell 85 cents, Finley Brown 85 cents, and Sarah Hollingsworth , a pieceworker, from 85-90 cents. Tui ner , on the othei hand , was paid $1 10 per hour . Both Magee and Turner spent much of their time at manual labor along with the employees of their departments and neither had the power to hire, fire, promote , suspend , or lay off anyone On the foregoing evidence, however, it is my conclusion that they could assign and responsibly direct the employees in the shipping and order departments and that in the performance of these duties they were required to use their independent judgment. It is now settled that the "possession of any one of the authorities listed in Section 2 ( 11) [of the Act] places the employees invested with this authority in the supervisory class " [Emphasis supplied.] Ohio Power Co v. N L R. B , 176 F 2d 385, 387 ( C. A. 6), cert. denied 338 U. S 899, N. L R H . v Leland-Gifford Company, 220 F 2d 620 , 625-626 ( C A. 1). THE NEWTON COMPANY 473 Isaacs is fixing to move out" and added that the trucks to carry out this operation would be at the factory by 1 o'clock. Magee then pointed out the place where he wanted her signature and with this Addy signed Waurean Wilson testified that when Magee asked her to sign she declined and that he then stated he did not know what the employees were going to do for a job in view of the fact that there were then seven trucks at the plant ready to move the equipment. Estelle Sessions tes- tified that she signed the petition after Magee asked her "Do you want your job?" According to Elise Robinson, when Magee came to her he asked if she was "for the factory or going to stick with the union" and when she told him she would stay with the Union, he told her there would be no plant if the Union came in. Charlotte Ming testified that Magee made substantially the same remarks to her, with the explanation that "if we wanted to work, to sign under the work column, and if we wanted a union to sign under the union column." According to Mavis Dean, an- other employee, Magee told her, "You better sign it, they are moving out materials now and moving out machines, we won't have a job. We will all be out of a job here by 4 o'clock...." The foregoing witnesses seemed credible to the Trial Ex- aminer and their testimony was neither denied nor contradicted by Magee while he was on the stand. For these reasons I credit their testimony as set forth above. There was similar credible testimony as to Turner's efforts to obtain signatories. Finley Brown, an employee in the order department, testified that Turner asked him if he wanted to sign against the Union and when Brown replied in the negative his foreman stated that the employees would have until 12 that day to do so Accord- ing to Mavis Dean, one of the operators on the sewing floor, Turner told her that unless the employees signed "we won't have any job." Billy Hollingsworth, one of the pressers, testified that at the time he was solicited to sign, Turner declared that if the employees "brought the Union in . . a lot of people was going to be hurt . There were others 8 who testified, credibly, that Turner actively participated in the solicitation of signatures throughout the morning. None of this testimony was denied by Turner when he was on the witness stand. It was plain that several of the other supervisors actively supported the petition and assisted its sponsors in obtaining signatures thereto. Aycock, an operator on the production line for which Lucille Humphries was the forelady, testified that Elvin Simmons, an employee, accompanied by Humphries, came to her machine and told her "to sign for the factory, if she wanted to keep her job." According to Aycock, it was Humphries who was holding the petition, and after Simmons' remarks the forelady stated that if the employees did not sign, the plant would close. Ay- cock's testimony as to this conversation was corroborated in every material respect by Audrie Bentley, who was working at the next machine. Humphries at first denied that she ever had such a conversation, or that she had ever had the petition in her hand. She later testified, however, that she saw the petition being circulated on her line but did nothing about it and that she could not remember whether she was present when the petition came to Aycock and Bentley. Aycock was not an impressive witness, especially on cross-examination. Bentley, on the other hand, was most convincing. Mrs. Humphries' testimony about her activities on this particular day did not impress me and her categorical denials did not have a persua- sive ring of sincerity. Consequently, I credit the testimony related by Bentley and Aycock rather than that of their forelady. Another employee, Mary Ann Musgrove, testified that when the petition was brought to her, Humphries was nearby and that the forelady told the employees that if they wanted to keep working to sign the petition in the "work" column, but if they wanted the Union, to sign under that heading. According to Musgrove, later that morning Humphries told her that "if the confusion didn't get settled, they would have to close down the factory." Other than a general denial by Humphries that she discussed the Union with any girls on her line, the testimony of Musgrove was uncontradicted. The latter was very slow of speech and extremely reticent but manifestly sincere. I credit her testimony. Other employees gave similar accounts of Humphries' activities on that morning. Alma Turner testified that Humphries brought the petition to her, asked that she sign, and when Turner declined to do so the forelady stated that most of the people in Newton would be ruined if the Union came in and that "Mr. Isaacs was moving everything out of the warehouse and . back to Baltimore." Roxie Alexander, Martha Livingston, and Ernest Ladd testified that Humphries brought the petition to them and asked if they would sign. The testimony of these witnesses was straight- forward and unshaken on cross-examination. For this reason I credit it rather than the denial of Humphries that she had ever had any of the conversations in question. 8 George Loper, Jr, and Charlotte Ming. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Several other employee witnesses testified that Lillian Boyd, likewise a floorlady, had engaged in similar activity. According to Martha Harrison, she signed the peti- tion when Boyd presented a copy of it to her with the statement "sign this or no job." Dorothy Harris and Agnes Wyatt testified that when the operators on their line were being circularized they went to Boyd to ask the purpose of the petition and that the latter told them that it was to keep the plant from moving, that "Mr. Isaacs will not work under a union," that there was a building at Vicksburg ready for the move, and that trucks for that purpose were waiting outside at that very time. According to these witnesses, at this point Harris asked whether the employees could remain neutral by not signing for either Company or Union and Boyd replied in the negative, adding, "You are no good to the Newton Company sitting astraddle the fence " The foregoing testimony of both Harris and Wyatt was corroborated by Velma Walker who was nearby at the time of the conversation. Boyd denied having such a conversation with these employees, but she conceded that during this period she told several of the operators that they had to be for or against things, that they could not "straddle the fence." The testimony of the employee witnesses was frank and open and withstood a searching cross-examination. This was espe- cially true of Harris' appearance on the stand Mrs. Boyd's denials were not con- vincing enough to overcome the persuasive character of the testimony of Harrison, Wyatt, and Harris. Accordingly, I credit the testimony of the latter. At the time in question Respondent had a plant regulation which provided that "the distribution of . . . petitions or circulars during working hours is strictly forbidden unless you are given permission by your supervisor." Despite the fact that the packing job had not been completed, and the fact that Cleveland and the others did not ask permission to leave the stockroom, Ward Bixler, foreman in charge, raised no objection when they did so. Neither Magee, Turner, Cleveland, Ware, Walters, or Simmons had any regular duties on the sewing floor. Yet they were allowed to move about freely and in open violation of the plant rule against circulating petitions A forelady was in charge of each of the production lines but none of them endeavored to stop the petitioning by Turner, Magee, and the others. Some of the supervisory personnel 9 conceded having seen something being circulated among the employees on their lines but disclaimed any knowledge of what it was. One, Lucille Humphries, testified that, in response to her question as to what he was doing, Billy Cleveland disclosed that he was petitioning the employees to find out whether they wanted to work, but that she thereafter made no effort to forbid his contacting the rest of her operators. Mack testified that he saw Cleveland, Turner, and Ware on the sewing floor at this time and ordered them back to work. Turner was asked no questions on this issue. Ware was not called to testify According to Cleveland, although Mack spoke to him, he continued to circulate the petition and without suffering any further reprimand. Brinegar testified that he did not learn that any petitions had been circulated until months later when a field examiner of the Labor Board quizzed him about the matter. This declaration, however, strains credulity and I am convinced that Mr. Brinegar, who was on duty that day, could not have been so unaware of this development as he professed to be. On the basis of the evidence as to the activities of Magee, Turner, Humphries, and Boyd, set out above, it is my conclusion that the Company must be held re- sponsible for the circulation of the petitions, as well as for the predictions as to the plant's closing and the loss of employment which the foregoing supervisors voiced to the employees at the time the petitions were being circulated. The solicitation of support for the petition by the supervisory personnel as well as their remarks set forth on the preceding pages plainly violated Section 8 (a) (1) of the Act. Diaper Jean Manufacturing Company, et el , 109 NLRB 1045. The General Counsel alleged that the Respondent was likewise responsible for the activities and remarks of Ware, Walters, Cleveland, and Simmons in connection with their efforts to obtain employee signatures. It was not alleged that any of these individuals had supervisory status, for they were obviously all rank-and-file em- ployees. As such they had the right to solicit support in opposition to the Union, just as others in their classification sought support for the organizational drive. It is true that their activities paralleled those of the supervisors and that the Company might be said to have ratified their conduct in this case. Apart from this, however, it was not established that the Company initiated or directed their activities. Con- sequently, I will recommend that the complaint be dismissed insofar as it alleges that the Respondent violated the Act through the conduct of these individuals. Cf. Ranco, Inc., 109 NLRB 998. 11 Ann IIollyfield, Jettie Hall, Lucille Humphries, and A. Q. Cleveland. THE NEWTON COMPANY 475 2. The circulation of addresses The General Counsel alleged that during the first part of August the Company solicited and aided the employees to repudiate the Union. This was denied by the Respondent. Mr Brinegar testified that after some of the employees asked him how they could withdraw from the Union he supplied the supervisors with the addiesses of both the Union and the Regional Office of the Board and instructed them that such infor- mation was to be given to employees only upon request Whatever may have been the limitations which the plant manager placed on the distribution of these addresses it is clear from the testimony of numerous witnesses that soon thereafter several of the supervisors made unsolicited offers of the information to employees working under them. Lucy Saxton testified that Lillian Boyd asked her if she knew of any employees that wanted an address to which they could write for their union cards. According to Bonnie Pace, during this same period Boyd came to her machine and volunteered, "I am not saying that you signed a union card or if you didn't but you can, or any of the girls that signed one can, get your card by coming to my desk and getting the address " Agnes Wyatt testified that Mrs. Boyd asked that she let her know of any employees who had signed union cards since she (Boyd) then had with her the addresses to which they could write to withdraw their cards. Mrs. Boyd testified that, although she could not recall giving the addresses to anyone, she had made remarks to several employees substantially similar to those attributed to her by the foregoing witnesses. Finley Brown testified that during this period Lee Turner told him that he had the addresses to which Brown could write if he wanted his union card back. This testimony was undenied. Ima J. Ezell testified that, about the same time, Ann Hollyfield, her forelady, told her and several other production workers that were near her machine, "I have the addresses that those who signed union cards can send and get their cards back if they want to." This testimony was denied by Hollyfield. However, the recollection of the latter was extremely vague on many points and her denial in this connection was not convincing. Ezell was a credible witness. There was similar testimony with respect to Imogene Cleveland, forelady over the examiners and trimmers. Dovie Addy testified that early in August, Cleveland asked some of the operators next to her if they had signed cards, and in the event they had, whether they wanted the addresses to get the cards back. She further testified that while her forelady was doing this, A Q Cleveland, another super- visor, summoned Miss Cleveland to a conference with Glenn Walley, and that later her forelady told her that the plant engineer had declared that it was against the law to bring the addresses around Forelady Cleveland then stated that one of the other girls would bring her the addresses Later that morning Bessie Williams did so. On the day that the petitions were circulated Miss Cleveland was on vacation and Bessie Williams was the acting forelady in her stead Junie McNeil, one of the inspectors, testified that the following week when Cleveland returned to duty, the forelady asked whether she knew anything about the Union, and whether she had attended the union meeting. Later, Cleveland asked McNeil if she wanted to get her card back and the employee gave her a noncommittal answer. Shortly thereafter Williams came to McNeil and told her that she had the address to write if the latter wanted her card back; when McNeil replied that she would take it, Williams then wrote out the information for her. Williams testified that shortly after Cleveland returned from her vacation she told her that some of the girls were sorry they had signed union cards and were under the impression they could get them back. She further testified that Cleveland then asked her to pass out the addresses that could be used for this purpose, and that, in compliance with this request, she went to all of the examiners and trimmers According to Williams "some said they didn't sign a card and they didn't want the addresses but the majority of them did take the addresses." Most of the employees so contacted copied the addresses, a few asked that Williams do the copying for them Clovis Dyess credibly testified that several days later Cleveland asked if she had sent for her card Cleveland testified that on returning from her vacation she received no instruc- tions with respect to her relationship to the employees, that Emily Chapman gave her the addresses, that she subsequently gave them to 2 or 3 employees who asked for them, but that she had nothing further to do with the matter. She denied having any conversation about the- addresses with McNeil, Dyess, or Addy and testified that she gave the addresses to Williams only after the latter asked for them. Cleveland disclaimed any knowledge of whether Williams con- tacted all the other employees immediately upon obtaining the addresses. I was 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD impressed with the apparent frankness and sincerity of Williams and feel that her testimony is more credible than that of Cleveland. I was likewise unconvinced by the categorical denials that Cleveland made to the testimony of McNeil, Dyess, and Addy. Accordingly, I credit the latter. The Respondent argues that it was not a violation of the Act for Mr. Brinegar to make the addresses available to employees who asked for them, and that the record presents no instance of anything more than that. The Respondent's conduct herein must be judged in the light of the whole record. The courts of appeals have held that an employer may not seek to deter his employees' organizational activity by soliciting them to repudiate a union they have pledged to support. N. L. R. B. v. United Biscuit Co. of America, Union Biscuit Div., 208 F. 2d 52, 55 (C. A. 8); N. L. R. B. v. Valley Broadcasting Co., 189 F. 2d 582, 585, 587 (C. A. 6); and N L. R. B. v. Good Coal Co., 110 F. 2d 501, 504, 505 (C. A. 6), cert. denied 310 U. S. 630. In Coca-Cola Bottling Company of St. Louis v. N. L. R. B., 195 F. 2d 955, 957 (C. A. 8), the court stated "the petitioner should not have interested itself in any way in the matter of the revocation of authority previously given by any of its employees to the Union to represent them." Here, as I have found above, shortly after the plant manager gave the addresses to his supervisors, at least Boyd, Turner, and Imogene Cleveland solicited various employees under them to use the addresses in revoking their union authorization cards. The incidents set forth in the record need not be viewed in isolation. Thus, it is significant that only a few days earlier a number of the Respondent's supervisors had actively participated in a plantwide solicitation of signatures to a series of antiunion peti- tions. In addition, as found later herein, infra, on July 31, the Respondent dis- criminatorily discharged two of its employees. In the light of these facts, the plant manager's efforts to provide information on how the employees could revoke their designation cards can hardly be considered an innocent attempt simply to be helpful. It is my conclusion that Brinegar's participation in this matter and the ensuing activities of the supervisory personnel 10 set forth above, constituted an unlawful and coercive interference with the employees' right to organize. This conduct was, therefore, a violation of Section 8 (a) (1) of the Act. 3. The period from August to October The complaint alleged that the Respondent further violated Section 8 (a) (1) of the Act through the remarks and conduct of many named supervisors and alleged agents. I turn now to a consideration of these allegations and the evidence offered in connection therewith. Henry Mack- William Estes testified that on July 31, Mack told him that unless the employees "settle[d] down we were going to lose the plant; that they were going to move it." According to Charlotte Ming, on the day of the union meet- ing, Mack asked her if she planned to attend. Estelle Sessions testified that the latter part of August Mack asked her if she and her husband had attended the union meeting. Sula Fay Rigdon testified that early in August, Mack asked her several questions about the Union. According to Bonnie Pace, later that month, he asked if she was for the Union, stated that it appears that "Harry is going to have to show you he can shut these doors," and then told her that Isaacs had done this when a union had organized one of his factories in Virginia. Doris Weir tes- tified that about mid-August, Mack asked if she knew who had signed cards, who was leading the movement, and suggested that she and her husband contact the employees after work to persuade them to change their minds because "the 101 include in this finding the activities of Bessie Williams, who at the suggestion of Imogene Cleveland, and with the latter's approval, passed out the addresses to all the employees in Cleveland's department. I specifically do not include, however, the solicita- tion efforts of several others which the General Counsel alleged to be violative of the Act. Thus, these was testimony that William E. Simmons, William Estes, Bud Jones, and Bobby Jones, all rank-and-file employees, gave addresses to a number of the employees. In the absence of compelling evidence that they were acting for and on behalf of the Respondent, the latter cannot be charged with their conduct The record does not, I am satisfied, support the allegation that such an agency relationship existed as to these individuals I shall, therefore, recommend that the complaint be dismissed with respect to them There was also an allegation to the effect that A Q Cleveland sought to induce Duval Rigdon to repudiate the Union during this same period There was a conflict in the testimony between these two In this instance, I believe Foreman Cleveland gave the more credible version of the conversation in question Consequently, I shall recommend that the com- plaint be dismissed insofar as it alleges that A Q. Cleveland solicited and aided employees to repudiate the Union. THE NEWTON COMPANY 477 girls . . . wasn't cooperating enough to keep the union out." Mack denied that he questioned any of the employees as to their union activities . He credibly testified that he was not at the Newton plant from July 31 until late in August. I am con- vinced that whatever the extent of his employee interrogations , he did not engage in some of the conversations attributed to him. This conclusion applies particu- larly with reference to the testimony of Rigdon , a witness who maintained an air of flippant irresponsibility throughout her appearance on the stand . To some ex- tent the same was true of Weir. In the face of Mack 's denials I cannot credit their testimony with respect to this matter . On the other hand, Estes , an intelligent witness, seemed completely truthful and sincere throughout his examination. The same applied to the appearance of Ming, Sessions , and Pace. Mack's denials, on the other hand, inspired no such confidence. Accordingly , I credit the testimony of the last four named employees as to the conversations they had with Mack. The Board has recently held that interrogation as to an employee's organizational preferences, by itself, is not violative of the Act . Blue Flash Express, Inc., 109 NLRB 591. It has also held that such interrogation in a context of threats is co- ercive. The Dalton Company , Inc., 109 NLRB 1228; Sears, Roebuck cC Co., 109 NLRB 632.11 Consequently it is my conclusion that Mack 's questioning of Ming, Sessions, and Pace, as well as his predictions to Estes and Pace that the union ac- tivity made imminent a factory shutdown, violated Section 8 (a) (1). George Meskill • According to John Dansby on the morning of July 31, Meskill called him into the plant office and asked , "Do you know what's going on out there in the plant? You know what you're called in here for?" Dansby testified that he answered in the affirmative , that in response to a further question he ac- knowledged that he believed in organized labor, that Meskill then declared The Newton Company would not operate under any kind of Union , and that Dansby could quit any time he was ready. The employee further testified that Meskill concluded the conversation by suggesting that the employee go out in the plant and "stop what I got started." Richard Dyess testified that Meskill called him in on about the same date , told him that the Company knew he had gone to the union meeting and signed a card and then asked how many signed cards he had obtained. According to Dyess, at the conclusion of the meeting and after telling Meskill that he had not obtained any signed cards, he asked Meskill if his answers were satisfactory and that the plant supervisor told him that he did not know, that Dyess would "have to straighten himself out with Mr. Ward Bixler [Dyess' foreman]." Meskill testified that on July 31 he called in 15 to 20 employees, I by 1, in- cluding all the pressers , and one employee , Dyess, from the cutting room. Ac- cording to Meskill, he told these employees he was aware of the union activity in the plant, that they should consider the many advantages the Company had provided such as vacations , health benefits , and an air-conditioned plant, that it was their privilege to join a labor organization if they preferred but that, inso- far as his own attitude was concerned , he did not like unions . He denied those remarks attributed to him by Dyess and Dansby in the testimony referred to above. Meskill testified that he spoke from notes but that he had destroyed them shortly after talking with the employees. The credibility issue here is difficult to resolve because all of the three witnesses involved appeared to be frank and truthful about these conversations insofar as they could recall. I feel that in this instance , however, that as to the conflicts be- tween Dyess and Meskill and Dansby and Meskill , the plant supervisor was the more credible. Meskill's expression of opinion as to the Union and his remarks as to the advantages the Company had provided its employees were, of course, protected by Section 8 (c).12 11 The Respondent argues that it should be relieved of responsibility for such acts on the part of its supervisors because of the instructions not to interfere with union activities which Meskiil gave to them on July 30 . Such remarks as Meskill made on that occasion, however , would not lender the Respondent immune from liability , for there was no show- ing at any time throughout the hearing that his instructions were ever communicated to the employees Thomason Plywood Corporation, 109 NLRB 898 ; H J. Heinz Co. V. N. L R B , 311 U S 514, 518-520 , N. L R . B. v. Bird Machine Co , 161 F. 2d 589, '591 (C A 1). 19 There was testimony from other employees , viz, Billy Hollingsworth , Yvette Woodward, Duval Rigdon, Alford Richardson , and Basil Lewis, whom Meskill interviewed or spoke to during this period Some of this testimony was denied by the latter These conflicts it is unnecessary to resolve for it is my conclusion that even if the employees ' versions are accepted the remarks attributed to Meskill would still be protected by Section 8 (c). 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harry Isaacs- Duval Rigdon testified that early in September he had a brief conversation with the company president during which the latter stated that some people were never satisfied, asked Rigdon if he knew who was head of the Union and when the employee replied in the negative, declared that "It's Dubmsky a . Russian." Basil Lewis, another employee, testified that Isaacs asked him a similar question as to his knowledge of the union leadership. The testimony of these witnesses was credible and undenied. Even so, the remarks attributed to Isaacs may only be characterized as views or opinions on Isaacs' part, the ex- pression of which was protected by Section 8 (c) of the Act. Glenn Walley: Several witnesses testified that immediately after the Union opened its drive for members Walley questioned them as to the meeting and whether they had signed cards Agnes Wyatt testified that on July 30, Walley came to her machine, initiated a conversation about the Union, and asked whether she had signed a card. According to Wyatt, the next day Walley returned and during another conversation told her that it was all right to sign a card but that she should think twice when the matter came to a vote because she had worked for the Company a long time. Elise Robinson testified that on the same day Walley told her, "I hear you have joined the Union" and when she answered in the negative he asked, "You signed the caid?" Robinson acknowledged that she had done so. Walley then suggested that she reconsider Walley denied that he asked either of these witnesses whether she had joined the Union or signed a card On the other hand, he conceded having discussed the union question with both employees on the days in question. In describing his conversation with Wyatt he stated "We just batted it around about the Union for a little bit " Wyatt and Robinson were persuasive witnesses and I am satisfied with then truthfulness and the accuracy of their rec- ollection. Accordingly, I credit their testimony. Sarah Hollingsworth testified that on July 31, Walley advised her to sign the petition then being circulated and when she protested that she felt under no obligation to do so since she had taken part in no union activities he declared "a lot of people are going to be hurt You had better sign it It will be understood you are for the Union if you don't sign it." Walley denied the latter portion of the remarks attributed to him by this wit- ness. In explaining his part in the conversation he testified that on this occasion he merely told Hollingsworth it made no difference whether she signed and that he added "when things like this come up a lot of people might get hurt." To the Trial Examiner it appears that, after a consideration of the apparent reliability of both witnesses, Hollingsworth is the more credible. I so find. Other witnesses testified about several additional conversations allegedly had with Walley, viz, Doris Weir, Sula Fay Rigdon, and Dorothy Harris. Walley de- nied the testimony of the first two, and could recall no conversation of the charac- ter described by Harris. Earlier in this report I expressed doubt as to the credibility of either Weir or Rigdon. Whereas Harris appeared to be a credible witness, her testimony set forth no more than a casual conversation on the subject of unions in general and Walley's participation in it could not have been unlawful within the meaning of Section 8 (c). Doris Partridge, another witness for the General Counsel, testified that after Estelle Sessions had given her a card, Walley asked her how she felt about the Union. From the testimony of both this witness and of Walley, however, it is apparent that Partridge initiated this conversation, that she volunteered the information that she had a blank card, and that she suggested that Walley take the card if he cared to do so. Richard Dyess testified that after he had written to both the Union and the National Labor Relations Board for his card and had received a response from the Board he told Walley about having received such a letter and that the latter told him that he wanted the latter "to compare it with other letters." Walley, on the other hand, testified that on this oc- casion Dyess volunteered the information that he had received a letter from the Board and inquired whether Walley would like to read it According to Walley, he replied in the affirmative and later that day Dyess brought him the letter which he (Walley) read and immediately returned to the employee After a review of this testimony and from my impression of these witnesses it is my con- clusion that Walley's version of this conversation is the more credible I further find that Walley's conduct in connection with either this incident or that involving Partridge, as related above, was not violative of the Act. It is likewise my con- clusion that his interrogation of Wyatt and Robinson and his remarks to Hollings- worth as set forth above violated Section 8 (a) (1). Darrell Brinegai. Doris Weir testified that on the afternoon of July 29 she asked Brinegar for an opportunity to work on samples and that he told her he would give it to her on condition she tell him whether she was going to the union meeting. The same witness also testified that in a subsequent conversation with Brinegar THE NEWTON COMPANY 479 he asked whether her husband and father-in-law were "for the Union" and that she told him that they were. The plant manager denied that the first incident ever occurred and further stated that he could not recall any such conversation as Weir testified had occurred during the second incident. I believe the plant manager to be the more credible and so find. Dorothy Harris had previously worked for Brinegar when he had been manager of a garment plant located at Laurel, Mississippi. According to this witness, early in August she sought out Brinegar to assure him that she had had nothing to do with starting the union activity and that he then asked, "Well, did you sign a card?" Harris testified that she acknowledged having signed a card and the plant manager then told her, "Be a good little girl and everything will work out all right." Brinegar's testimony as to this conversation was in most respects in substantial agreement with that of the employee, except that during his direct examination he stated that there had been no mention of union activities and on cross he testified that he could not recall whether there had been. I believe that both of these witnesses stated their honest recollection of this conversation insofar as they could recall its details. I further believe that Mrs Harris had a more precise recollection and that her version is worthy of credence Even on her testimony, however, I do not believe that Brmegar's question as to whether she had signed a card was ipso facto vio- lative of the Act. The employe had initiated a conversation on the subject with the plant manager. During the course of their discussion he inquired whether she had signed a card and when she acknowledged having done so, he assured her that "everything will work out all right " In view of these circumstances I do not believe that Brinegar's inquiry carried with it such an implied threat as the interrogation conducted by Mack and Walley which I have found, supra, to have been violative of the Act. A. Q. Cleveland. John Dansby testified that while he was at work on Saturday, August 1, Cleveland, who was his foreman, came to his press and asked Dansby what he thought of the Union. According to the employee, he answered, "It's a pretty good thing, don't you think9" and Cleveland then responded "No, I don't think so. . This plant is closing down . they have already started moving out the materials and they have already closed the cutting room down and they have started moving the machines off the sewing floor, they are going to close it down " Cleveland de- nied that he had any such conversation. As between these two witnesses I believe Dansby to be the more credible in this instance. Cleveland's remarks on this occa- sion were a violation of Section 8 (a) (1). Imogene* Cleveland- Earlier in this report I found that Forelady Cleveland ques- tioned Junie McNeil as to her knowledge of the Union and the organizational activi- ties of the employees. I find these remarks to be violative of Section 8 (a) (I) in accordance with my conclusion, expressed above, that such interrogation is coercive in the context of threats to close the plant uttered by other supervisors. Melton Magee and Lee Turner Apart from the role of Magee and Turner in cir- culating the petitions, discussed earlier and found to have violated the Act, the com- plaint also alleged that on or about August 6, Magee solicited and aided employees to repudiate the Union This allegation is based apparently on the testimony of William Estes. The latter testified, "1 was thinking about writing for my card I went to see him, if he thought it was advisable. He thought it was but I still didn't wi rte for the card " This testimony was undenied. Accepting it as true, I find that Magee's remarks in this connection, as quoted, were no more than an expression of views or opinion, within the compass of Section 8 (c). As to Turner, the complaint further alleged that he interrogated employees as to their organizational activities. Finley Brown credibly testified that on August 1, Turner asked if he had gone to the union meeting and when Brown acknowledged that he had Turner told him that "before this union business is over . the plant is going to close down " This tes- timony was uncontradicted Turner's remarks in this connotation must be held a violation of Section 8 (a) (1). 1 so find Frances Garvin James D Boler testified that on July 31, Forelady Garvin ques- tioned him as to his attitude towards the Union and told him that the employees had better stop the organizational campaign because Isaacs would not work under a union Garvin denied having had such a conversation. However, it is my conclu- sion that Boler was the more credible in this instance. Accordingly, I find that the forelady's remarks were coercive and a violation of Section 8 (a) (1). Lucy Eichel- berger testified that, a few days after the petitions were circulated, James Nelson 13 accused her of being a union member, that she denied it, and later went to see Gar- vin, her forelady, about the matter. According to Eichelberger, she asked the latter 13 The question as to whether Nelson had a supervisory status is resolved, infra, p 481. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if her name had been turned in as a union member and received a reply in the nega- tive. She further testified that she then told Garvin she had not signed a card or had anything to do with the Union , that Garvin told her, "I am glad to know how you feel about it" and added , "I would like to know how all of the girls on my line feel about it." Garvin denied that she had any such conversation but after a con- sideration of the testimony of these two witnesses and their demeanor it is my con- clusion that Eichelberger is the more credible. On the other hand, even accepting her testimony as true, it does not appear that in this particular conversation Garvin engaged in unlawful interrogation as to the employee 's union activities or those of her coworkers . Eichelberger had volunteered the information that she was not a union member and the forelady told her that she appreciated her attitude . The sub- sequent statement that she would like to know how the other employees felt was at the most ambiguous . It certainly is not clear that by this remark the forelady was requesting that Eichelberger report on the union affiliations of her associates. Under these circumstances it is my conclusion that the General Counsel has not proved, as alleged in the complaint , that Garvin "interrogated employees concerning . other employees' union membership, activities and sympathies." [Emphasis supplied.] 14 Lillian Boyd: In addition to the allegations about Forelady Boyd's part in circu- lating the petitions and distributing the addresses , discussed earlier, the complaint further alleged that later, Mrs. Boyd also interrogated employees concerning their own and other employees' union membership and after the layoff in September told another employee she would still be working if she had refrained from union activi- ties. Martha Harrison, one of the employees Mrs. Boyd had urged to sign the peti- tion, testified that early in August she asked her if the employees would be able to keep working or whether the plant would close down. According , to Harrison, Mrs. Boyd told her that she thought "we would keep on working, that it had . just about blowed over; that some of the ringleaders had walked out." 15 Velma Walker testified that during this same period, on one occasion , Mrs. Boyd inquired as to the union sympathies of Dorothy Harris, a coworker, and on another occasion, asked Walker whether there was to be a union meeting that night. Mrs. Boyd denied hav- ing made any of the remarks attributed to her by these witnesses . I have already discussed to some extent my impressions as to the credibility of these individuals. Here again , it is my conclusion that Walker and Harrison are the more credible. Agnes Wyatt, one of those laid off on September 17, testified that during the month following her layoff she had a conversation with Mrs. Boyd at the latter's home. According to Wyatt, after telling her exforelady that she earnestly desired reemploy- ment, the latter asked Wyatt if she had ever signed a union card and when the em- ployee acknowledged that she had, Boyd commented , "Well . had you went to Mr. Brinegar or Glenn [Walley ], or both . and told them that you had signed a card but that you were sorry, that you probably never would have been laid off with the others." Wyatt appeared to be a credible witness and her testimony as to this incident was unshaken during a thorough cross-examination . Mrs. Boyd testi- fied that on the occasion in question , Wyatt had come to her home and engaged in only a general conversation . She at first testified that there was no discussion of the plant but amended this later to say that they talked about the work "some ." She de- nied that Wyatt had asked the reason for her layoff or that there had been any men- tion of the Union. After having heard and observed both witnesses testify as to this incident , it is my conclusion that Wyatt was the more credible. On the basis of the foregoing findings, I further conclude that Mrs. Boyd 's inquiry of Harrison and her statements to Harrison and Wyatt , set out above , were coercive and violative of Section 8 (a) (1). Jane Pace - Bertha White testified that sometime after the union activity began, Pace, who was her forelady, came to White's machine and asked the name of the 11 Doris Weir testified that on various occasions Garvin asked her about her own union activities as well as those of her family and of other employees Garvin denied any such conversations except to testify that on one occasion Weir asker her as to whether Garvin had heard a tumor to the effect that she and others in her family were supporting the Union At the time of these conversations Weir and Garvin were apparently close personal friends and had lunch togethei each day . What the status of their friendship was at the time of the hearing was not clear At any sate, on the basis of the record and illy obser- vation of these tao witnesses , I am unable to say which one is the more plausible Since it is the burden of the General Counsel to prove an allegation by the preponderance of the evidence I find that in this instance, because of my doubts as to the reliability of the General Counsel 's witness. Garvin's testimony in this regard must be accepted Ci Blue Flush Express, Inc , 109 NLRB 591 i; John Dan,b} resigned shoi tly after his wile's discharge on July 31 THE NEWTON COMPANY 481 driver with whom she rode to work. According to the employee, after White told her that it was George Loper, Jr., Pace asked, "Just how do the ones that you ride with feel about the Union')" White gave a noncommittal response and declined to discuss the matter. White appeared to be a credible witness. Her testimony was not contradicted or denied by Pace while the latter was on the stand. It is my conclusion that such questioning by Pace violated Section 8 (a) (1). Ann Hollyfield: Waurean Wilson testified that about the last week in August, Forelady Hollyfield told her, "we are fixing to be out of a job" and when Wilson asked the reason for the statement the forelady explained, "Mr. Isaacs will not run under a union." Hollyfield denied having made this remark. It is my conclusion that Wilson's recollection was the more accurate. On this finding I further con- clude that the forelady's remark was violative of Section 8 (a) (1). Lucille Humphries. Lillian I. Rhodes testified that early in August and after the petitions had been circulated, her forelady, Mrs. Humphries, told her that "if we signed for the Union we was liable not to have any work . . and ... liable to be laid off," but that when Rhodes informed her that she had not joined the Union, Humphries assured her that she had nothing to worry about. According to this witness, during the same conversation the forelady told her that Mr. Isaacs would not work under a union and might close the plant rather than do so. Mrs. Hum- phries denied this testimony as well as all other testimony attributing similar re- marks to her. Elsewhere in this report I have set forth my reasons for not placing any reliance on Mrs. Humphries' categorical denials. Rhodes impressed me as a truthful witness.is I credit her testimony. The forelady's remarks to Rhodes on this occasion as well as her role in the circulation of the petitions, discussed earlier herein, violated Section 8 (a) (1). James Nelson: Several witnesses attributed remarks of an antiunion character to Nelson. An allegation by the General Counsel that he had supervisory status was controverted by the Respondent. That issue must, therefore, be resolved before proceeding further. Nelson was 1 of 4 mechanics and spent most of his time repairing machines on the sewing floor. He testified that he did as much manual labor as any of the other three mechanics, that he had no greater responsibilities than the others, and that he had nothing to do with the assignment of work to any of them. On the other hand, both Brinegar and Feltenstem described Nelson as the head mechanic. Brinegar testified that " . . if I have something I need to be done out on the floor in the mechanical line, why I turn it over to Jimmy INelsonl." The plant manager further testified that Nelson assigned work to the other mechanics, that he had the authority to take a mechanic off one job and put him on another, that one of his duties was to train the younger mechanics, and that in the course of such training he reported to Brinegar on their progress. Feltenstein testified that, as was his custom with other section heads, on payday he delivered the checks for all the mechanics to Nelson and the latter distributed them. He also testified that Nelson attended some of the meetings for supervisors. During the period in ques- tion Nelson was paid $1 60 an hour and at the end of the year received a $100 bonus, Clifton Kelly, the next highest paid mechanic received $1.23 an hour and an annual bonus of $60, the other two, Marvin B Harris and Herman McKee, received $1 and $0 91, per hour, respectively, and both of them received an annual bonus of $50 apiece. It was undenied that Nelson had no authority to hire, fire, or to exercise many of the prerogatives of a supervisor On the other hand, from the foregoing facts it is apparent to me that, as with Turner and Magee, Nelson had, and exercised, the authority to assign work and responsibly direct the other mechanics and that in so doing he used his independent judgment. For this reason it is my conclusion, and I find, that he was a "supervisor" as that term is defined in the Act. Ohio Power Co. v. N. L. R. B, 176 F. 2d 385, 387 (C. A. 5), cert denied 338 U. S. 899. 16 At the outset of his cross-examination of Rhodes, Dir Carter, Counsel for the Respond- ent, requested that the Trial Examiner order the General Counsel to produce for his inspection the affidavit which a field examiner had procured from Mrs Rhodes during the Regional Office investigation of the cliaiges The Trial Examiner asked Counsel whether lie had ieason to believe that the testimony of this witness on direct examination was in conflict with her sworn statement given earlier Itlr Cal tci replied that he had no grounds for such belief and frankly stated that he had "no present doubt as to hei credibility" and that "she seems to to be a thoioughly credible witness " The Trial Examiner then ruled that the affidavit need not be turned over to the attorneys for the Respondent N L R B v H N Thayer Co , 213 F 2d 748, 757-759 (C A 1) ; N L R B v Janies- town Sterling Corp . 211 F 2d 725, 726 (C A 2) , N L R B v Quest-Shon Hark Brassiere Co , Ivc , 185 F 2d 285, 289 (C A 2) 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There was testimony that Nelson interrogated several employees as to their union sympathies. George Loper, Jr, testified that in a conversation on July 30, Nelson asked him if he had obtained any signed union cards and declared the plant would close if the Union came in. Loper's testimony was corroborated by Duval Rigdon who was present. William L. Sessions testified that on the following day, Nelson made a similar prediction to him. According to Richard Dyess, on the same day Nelson told him that he knew Dyess was for the Union and getting others to sign up. Elise Robinson testified that during the first week in August, Nelson told her that he had heard she was a "union girl" and that he wanted her to reconsider be- cause if the Union came in there would be no plant. Doris Weir testified that early in August, Nelson told her that someone should talk to Robinson because it was known that she had signed a card and was for the Union. Lucy Eichelberger tes- tified that during this same period Nelson told her that he understood that she was for the Union The foregoing testimony stands undemed for Nelson did not testify with respect to any of these incidents. The witnesses named above seemed worthy of credence. In this state of the record I must accept their testimony. On such findings I must further conclude that Nelson engaged in unlawful interrogation of the em- ployees as to their union sympathies and likewise violated the Act with his predic- tions that the unionization of the plant would result in its closing Employees allegedly acting as agents for Respondent. The General Counsel also alleged that William E. Simmons, Lowry Walters, Medric Ware, Bud Jones, and Bobby Jones interrogated employees as to their union membership, threatened them with the plant's closing if the Union organized a majority, and engaged in other conduct violative of Section 8 (a) (1) for which the Company should be held responsible. I do not agree. The named individuals were admittedly nonsupervisory employees and the General Counsel failed to prove that they were agents of the Respondent. The complaint also alleged that Simmons created an impression of surveillance of employees' union activities and that Bud Jones reported to Respondent's officials upon the union activities of employees. This latter allegation appears to rest on the testi- mony of John Dansby who testified that on one occasion Jones asked him several questions about the Union, then spent some time talking with Mr. Brinegar and Mrs. Hall who were nearby at the time, and later returned to question Dansby further about union matters.17 No other testimony was offered as to this incident by either the General Counsel or the Respondent. Without evidence of some kind as to what Jones said to either Brinegar or Hall on this occasion the record is indeed barren of evidence to support the allegation that Jones was (1) reporting on the union acti- vities of his fellow employees and (2) doing so as an agent of the Respondent. The allegation that Simmons created an impression of surveillance seemingly rests, in part, on the testimony of Jimmy Lee Aycock. According to the latter, when Simmons offered her the addresses referred to earlier she refused to take them on the ground she did not need them, and Simmons then declared "they know who signed or didn't sign for their cards." According to Audrie Bentley, Simmons told her that she "had better take the addresses and write back if [she] want[ed] to keep working." Sim- mons himself testified that he kept a list of the employees who took the addresses from him and that later he left the list on a table where Magee and others worked and never paid any further attention to the matter. Insofar as the Trial Examiner can determine, the record contains no other evidence relevant to the allegation set out above. Apart from proving that Simmons was diligent in his efforts to distribute the addresses and to persuade the employees to write for their cards, the evidence in the record still falls far short of proving that Simmons was acting for and on behalf of the Respondent at the time. C. The discharges on July 31; the evidence and conclusions with respect thereto 1. Edith Fay Dansby This employee worked for the Company approximately 31iz years. During the 6 months preceding her discharge she had been a utility girl, and as such received daily assignments to serve as a replacement for operators who were absent. On July 30 and 31 she was performing an operation known as "taping." Mrs. Jettie Hall was fore- lady of that production line At about 9 30 on the morning of July 31, Dansby was discharged, according to the General Counsel, because of her union activities, ac- cording to the Respondent, for cause. 17 George Loper, Ji , testified that in the course of a conversation on the Union with Bobby Jones, the latter told him that Mr Brinegai had questioned him as to what he know of Loper's sympathies There was no testimony however, that would tend to prove that at the time Jones was acting in any capacity other than that of a iank-and-file employee. THE NEWTON COMPANY 483 Dansby had been active in the union campaign from its outset. Along with her husband she had contacted the AFL organizer, attended the meeting on July 29, signed a card, and thereafter solicited her coworkers to join Among those whom she contacted on July 30 was Lucy Saxton. According to the latter, while she and Dansby were standing near the time clock at the close of the lunch hour that day, Dansby asked if she would care to join, and handed her a blank authorization card. At the time, Henry Mack was standing nearby. Shortly thereafter he engaged Saxton in conversation to inquire if Dansby had approached her at the clock with a card and to ask if she "got signed up " Saxton acknowledged that she had, in fact, received a card. While Mack was still speaking to her, Meskill joined him, but said nothing. On the following day, Walley came to hei machine to tell her that he had heard she had signed a card and to ask if that report was true Saxton denied it The next day Walley again asked if she had signed a card and she again denied having done so 18 Hall testified that Dansby was discharged solely because of the quality of work she was doing on July 31, and her unwillingness to rectify her mistakes According to the forelady, early that morning, she noticed that material from Dansby's machine was defective in that it was being pulled through the machine, instead of being allowed to run through. Hall testified that she pointed out this defect to Dansby and en- deavored to assist her, that about 40 minutes later she found that Dansby was still making the same mistake and corrected her again, and that shortly thereafter, at about 9.30 a m., on finding that Dansby was doing no better, she discharged her. Brinegar testified that several times that morning Hall told him that she was having trouble with Dansby. According to Brinegar, he instructed the forclady that if Dansby did not improve she was to be discharged. Dansby testified that when Mrs. Hall first came to her machine and told her that she was not stitching correctly she asked her for guidance, that Hall told her she had been working there long enough to know how to fix repairs, and that if Dansby was unable to do better she would have to be replaced. According to Dansby, Hall re- mained at her machine, examining her work and handing it back to be redone, for almost an hour, that during this period she (Dansby) broke down in tears, that Hall then left for a short while and, on returning, the forelady dismissed her The General Counsel argues that only a studied design to eliminate a union leader can explain the Respondent's swift decision to discharge this employee The Company, on the other hand, contends that union activities had nothing to do with the discharge and that it came about only after the forelady had patiently en- dured Dansby's mistakes as long as she could. There are several reasons why it is difficult to accept the latter explanation. First, the operation known as "taping" was not difficult, according to Brinegar it was "very simple," "a short sewing, you have got to work fast at it," and Dansby was an experienced operator who had done that very work for a lengthy period prior to the time she became a utility girl Sec- ondly, the discharge of an operator was not routine. Hall testified that the only other occasion she had dismissed an operator in the middle of a shift had been some 2 to 3 years earlier when she had dismissed one for insubordination. At the hearing Brinegar was unable to recall the discharge of any employee for an ex- tended period prior to July 31. Thirdly, it was unusual that Dansby, a utility girl, should be so summarily dismissed. Brinegar testified that utility girls aie in a sense upgraded from other work in the plant, that they are important because few of the ordinary operators are interchangeable, as are utility girls, within a production line, that as a result he gave them preferential treatment, and that he had never found it necessary to demote one to ordinary operator. Although Hall and Brinegar denied that they had any knowledge of Dansby's union activities, the observation by other management personnel of Dansby's solicita- tion of Saxton the preceding afternoon had resulted, quite plainly, in the subsequent interrogation of the latter by both Mack and Walley. Meskill testified that the Respondent had never had a union, that Isaacs had never had one at any of his plants, and that he, personally, did not care for unions. The Employer, of course, has a perfect right to such an attitude and there is certainly nothing in the Act which requires that he like unions. On the other hand, such an attitude has some significance as a background matter in the same manner that the Board and the courts have held that the fact an employer has had a long period of amicable relations with a labor organization tends to negate an inference of discrimination. i8 The findings in this paragraph are based on the credited , undenied testunony of Saxton The interrogation of this employee by both Mack and Walley, related above, constituted a violation of Section 8 (a) (1) of the Act I so find 369028-56-vol 112 32 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Celanese Corporation of America, 95 NLRB 665, 702; N. L. R. B. v. Algoma Plywood & Veneer Company, 121 F. 2d 602, 605 (C. A. 7); N. L. R. B. v. Mont- gomery Ward & Company, 157 F. 2d 486, 492 (C. A. 8), N. L. R. B. v. Kingston, 172 F. 2d 771, 774-775 (C. A. 6); Cf. Banner Die Fixture Company, 109 NLRB 1401. Earlier in this report I have found that on the same morning certain of the Respondent 's supervisory personnel were very actively circularizing the em- ployees with antiunion petitions and that their efforts and statements gave rise to the general impression that if the Union organized a majority of the employees the plant would close . The testimony in this regard so overwhelmingly supported the conclusion that the Respondent must be held responsible for such conduct that I am convinced the Company was not content to express its dislike for unions in a passive manner only. Dansby had been assigned to Hall 's line on July 30 and, according to the fore- lady, her work on that day had been satisfactory. It is difficult to understand how the work of an experienced employee, performing an admittedly simple opera- tion , could have deteriorated to such a degree the next morning that the forelady had no alternative but to dismiss her. This was indeed possible but it would be unusual, and in the light of Brinegar's testimony about the importance of utility operators and his practice in according them a greater degree of consideration than the rank-and -file, a summary discharge would seem unlikely. I was not per- suaded by the manner in which Mrs. Hall testified that Dansby's work on the morn- ing of July 31 was so defective that much of it had to be redone . Bernice Loper, an employee who operated a machine next to Dansby , testified that all the garments which Hall had returned to Dansby on this particular morning for the latter to repair, and which were piled beside Dansby's machine at the time of her discharge, were sent through the production line later that day without any repairs having been made on them. Loper's testimony was credible and in no way contradicted or denied. Dansby credibly testified that prior to her discharge she had never been reprimanded . In the light of the foregoing evidence, particularly Dansby's posi- tion as a utility girl, an admittedly satisfacory prior work record, the insubstantial and unsatisfactory character of the reason offered for her dismissal by Hall and Brinegar which I do not credit, the Respondent's hostility to the Union as mani- fested by the antiunion conduct which took place concurrently with Dansby's discharge and which is described more fully earlier in this report , and the knowledge of its top management that Dansby was engaged in union activity , I conclude and find that the real reason for Dansby's discharge was her union affiliation and that by her dismissal the Respondent violated Section 8 (a) (3). 2. Violet Prior Prior was first employed in July 1952 and worked until July 31 , 1953, when she was discharged. For about a year preceding her dismissal she had been assigned an operation on the production line known as "sewing darts." She was a recent immigrant from England and had some 11 years' experience working in English garment factories. Prior did not attend the union meeting on July 29 nor did she sign a card. On the morning of July 29 while several of the employees were talking, Emily Chapman, one of those present, stated that the Union was on the verge of getting a majority but that if it did the plant would close because Isaacs would not work under a union and that even then trucks were outside the-building waiting to move out the equipment . Prior suggested that the girls pay no heed to such remarks, that the Company was only trying to scare them . During the conversation, John Boyd, one of those present , stated that he would not work under a union. Prior responded that she had worked under a union in Engand and that it helped the employees . Before the close of this conversation Chapman declared that the employees had "better sign those papers [the petitions then in circulation ] or else." The General Counsel alleged that Chapman was a supervisor for whose remarks the Respondent must be accountable . This was denied by the Company, accord- ing to whose witnesses Chapman was only a motion study girl whose duties required that she instruct new employees in the techniques of production line work. It was conceded that she occasionally acted as a forelady when one of the regular supervisors was absent but that this happened only about once a month. Chap- man testified that she was paid 90 cents an hour at the time and that she received no bonus at the end of the year as the foreladies did.19 Although Chapman may 10 The pays cll card of an Enima 1, Chapman appears in a file of payroll data subsequently int. oduced by the Respondent According to this card, Chapman was paid $1 an hour and received a S25 bonus at the end of the year Emma L Chapman, but not "Emily" THE NEWTON COMPANY 485 have made recommendations and reports to the management as to the trainees she instructed, I am convinced that on this record it does not appear that she was a supervisor within the meaning of the Act except for those occasions when she had that status on a temporary basis while substituting for an absent forelady. There was no allegation that during this period she was acting in any such capacity. Consequently her remarks must be treated as those of a nonsupervisory employee.20 After the conversations related above, the petitions described earlier were brought to the line on which Prior worked. The latter, however, avoided signing by leav- ing her machine before the solicitors reached her position and remaining away until they had gone by . According to Prior, shortly thereafter , Jane Pace, her forelady, asked if she was going to sign and stated that the petition could be brought back if Prior cared to do so. Prior testified that she then told Pace she would not be threatened into signing anything and that Pace thereupon declared that if the Union organized the plant the girls would have colored employees working beside them and that there would be "a union man sitting at the front of the factory dictating what we had to do." Prior concluded the conversation with the statement that the situation under a union could not be worse than it was. At about 11:30 that morning Pace returned to Prior's machine and after examining some of the latter's work , handed it back to her with the request that it be redone . According to Prior, her forelady had never asked her to do this before. Within a few minutes Pace came back again , this time to request the number of garments Prior had sewed . When the employee told her 200 , the fore- lady stated that she should have done 237, asked that she come to the office and when she did so, told her that she was being discharged for bad work and failure to make production . Brinegar testified that Pace had discussed Prior with him on the morning of July 31 and that the employee was discharged because of "pluss- ing 21 and . . . bad workmanship ." Later he testified that she was dismissed be- cause of "her quality on that morning and she plussed quite a bit , too, but that was not the reason for the discharge." At the time of her discharge Prior was working on what was known as the "Fit-All" line, then producing a new type of garment by that name . On direct examination , Pace testified that on July 31 the line had been in operation 4 weeks, that she had been given just 1 month to get all the operators up to full produc- tion, and that she had worked with Prior throughout the entire 4 weeks in an attempt to increase her output but that the employee had never reached the re- quired production standard. Pace further testified that on July 31 she told Prior "This was the end of the period to make production ," asked if the latter thought she could attain that standard , and received a noncommittal answer According to Pace, Prior was the only experienced operator who had not reached the pro- duction standard within the allotted 4 weeks and that as a result she was laid off "because she did not make production and because she had done a lot of bad work " In corroboration of Pace's testimony , Henry Mack testified that he had come from Baltimore to get the Fit-All line in operation and that when he left on July 31 the line was in full production. The testimony of both Pace and Mack, however, was subsequently refuted by Company records to which the parties stipulated According to this data , on July 31 the Fit-All line had been in production only 3 weeks , not 4, as Pace had testified, and at that time it had reached only 85.5 percent of its scheduled production quota On cross-examination , Pace conceded that she had not told the operators that anything would happen if they failed to make production in 4 weeks, and, further, that on July 31 there were other operators besides Prior who were not making production . Although Brinegar originally testified the employee was discharged, in part, for plussing, it was undenied that in the 2-week period immediately pre- ceding her discharge she had earned in excess of the minimum and had not s`plussed" at all. On the other hand, several operators on the Fit-All line who were Chapman, is listed on another exhibit that purportedly names all of the time workers. Whether these names apply to one and the same person , however, is not entirely clear from the record 20 Accordingly , I will recommend that paragraph numbered 21 of the complaint be dismissed 2i The Company paid its employees on a piece-i ate basis Each operator had an estab- lished quota to make If an employee failed to earn 75 cents an hour on this basis the Company was iequired to make up the difference in order to satisfy the statutory require- ments of the Fair Labor Standards Act The amount of this difference was known as "adjustment to minimum " or "make-up pay" and referred to thioughout the record as "plussing " 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD kept did have heavy plussing records,22 and during this same week 187 employees throughout the plant failed to earn the minimum wage.23 Brinegar conceded that apart from the discharges of Prior and Dansby, both of which took place the same morning, he could not recall ever having dismissed any other employee in the middle of a shift Pace further testified, on cross-examination, that Prior was the first and only employee she had ever discharged Both Brinegar and Pace testified that several weeks earlier Prior had improperly cut a number of garments and that it had cost almost $200 to repair her mistake. Prior, on the other hand, credibly testified that she was never told of any occa- sion where her work had caused the Company a $200 repair bill She could only recall one instance about a week before her discharge when Pace told her that her machine was cutting holes in the cloth. According to Prior, on that occa- sion she told Pace her machine was out of order in that it was cutting her work as she stitched, and Pace thereupon called a mechanic to repair it. The Respondent offered documentary evidence to corroborate many points covered by oral testi- mony but none was forthcoming on this particular issue. In the light of the many contradictions in Pace's testimony, and what impressed me as her unreliability as a witness, I am not convinced by either her testimony or that of Mr Brinegar that any of Prior's work caused the Company to expend $200 on repairs Pace denied that she had discussed the Union with Prior on the morning of the latter's discharge. The employee's testimony was to the contrary and I find it credible. Prior, plainly, was not an outstanding employee. On the other hand, on the facts in this record it is likewise apparent that she had no outstanding defi- ciencies either. I am satisfied that something brought about her sudden dismissal apart from her alleged failure to make production, when others were not making it either, her alleged plussing, when in fact she was not plussing, although 187 other employees were, and the alleged poor quality of her work when so little evidence was offered in support of the charge. On the morning of July 31, Pace had expressed her antipathy of the Union and in spite of this, Prior had bluntly rejected her suggestion that she avail herself of another opportunity to sign the antiunion petition. Soon thereafter the forelady set about examining Prior's work and quickly decided that it was so deficient the employee should be dismissed im- mediately. On the facts set forth above, it is my conclusion that Pace's decision was prompted not by the character of Prior's work but by her discovery that the employee would neither sign the antiunion petition nor be swayed by the fore- lady's prediction as to what would happen in the plant if the Union succeeded in organizing the employees. At the time, it is true, that Prior had not signed a union card, nor attended any union meetings She had, however, discussed the question of labor organizations with her associates and, despite the urging of her forelady, she had refused to sign a petition opposing the Union. It is my conclusion that when she took this position Pace had reason to categorize Prior as either a union member or at least a union sympathizer, and, further, that Pace not only did so but immediately set about getting rid of Prior for this reason. The Respondent's ratification of Pace's conduct was in keeping with its unlawful participation in the solicitation of signatures to the antiunion petition and the discriminatory discharge of Dansby related earlier. The motivation for Prior's dismissal was equally un- lawful and I find that by her discharge the Respondent further violated Section 8 (a) (3).24 D. The allegations as to the layoff on September 17; the evidence and conclusions with respect thereto The Respondent contended that early in 1953 it had expanded its production program and added a sixth production line for the first time in its history; that thereafter, despite its assumption that business would increase, orders and sales 23 From the payroll records in evidence it appears that certain employees on the Fit-All line plussed as tollows Wcc4 endinq Jul1i 27 lI ce7, ending August 1 Shirley Germany-------------- -------- (Not at work) $14 35 Jfaicelle Rallis____________________________ $13 19 7 46 Ai ratter\\'ntkins--- ------------------------ 5 84 4 52 Bertha White ------------------------------ 5 So 3 65 Opal Amis -------------------------------- 6 87 2 24 I e, on their piece-NN osk production, as a result of which the Company paid them an "adlnsfluent to muumuus' aberrance I o I ihe n "plussing" 2' Pace's efforts to induce P1lor to sign the petition, related above, constituted an inde- pendent violation of Section 8 (a) (1) I so find THE NEWTON COMPANY 487 began to fall off so that inventories accumulated at an alarming rate during the months from May through August, that by September, the situation had become so acute the management deemed it necessary to discontinue one production line; that with the foreseeability of a cutback, the management had, during the month of August, asked all the foreladies to grade their employees on a merit basis and compiled the results on a master rating sheet so that the less meritorius and less efficient could be eliminated in the anticipated layoff on a plantwide basis; that during the week of September the management reached the decision that pro- -duction would have to be curtailed and the terminations effected and, accordingly, on September 17, the layoff took place. The Respondent further averred that the union activities of its employees had in no way entered into the makeup of any ratings used in the elimination process. All of this was disputed by the General Counsel who alleged that the layoff was planned as a discriminatory move, that the employees selected for termination were chosen because of their known or suspected union affiliation, and that the grading system in question was devised as a cloak to cover the illegal motivation for the layoff. The Respondent offered oral and documentary evidence which tended to support its contention that business conditions in the second half of 1953 were very unfavor- able and necessitated a layoff. Julius Adler, assistant treasurer of the Isaacs Company, testified that in January 1953 a sixth production line had been placed in operation at the Newton plant on the assumption that business would expand but that in May orders started falling off. The Newton Company kept operating at peak capacity, however, so that for the period from June through September production was 25 percent higher than it had been during the same period in 1952. When the decline in sales continued, an excessive inventory of finished goods piled up. Adler further testified that from April to October the market price of several of their best selling items dropped 20 percent, thus cutting the value of their con- stantly mounting inventory, and that throughout this same period there was a 30 percent decline in orders. Adler's testimony was corroborated by a large number of documentary exhibits. One table which reflected a breakdown on sales of the garments produced by The Newton Company showed that in August, the volume of orders was only 57 percent of what it had been in June and that in September it was down to 33 percent. Another table which set forth the orders received from the Isaacs Company's largest mail-order customer, reflected an 85 percent drop in sales to that purchaser as compared with the same customer's purchases in 1953. When the Respondent took its annual physical inventory the amount of finished goods in stock was 87 percent higher than it had been the preceding year. Adler testified that the decline in orders was not due to seasonal fluctuations but to a general decline in business, that maintaining production in the face of a rising inventory had caused the Isaacs Company to become more heavily committed financially than it ever had before, and that the corporate indebtedness to banks on short-term loans during the summer of 1953 was at the highest point in the 40 years the firm had been in operation. According to Adler, about the first week in Sep- tember, Isaacs concluded that a cutback in production and a layoff at the Newton plant was necessary. The Respondent's contention that the layoff was necessitated by a decline in business was supported by the data contained in the Company's weekly payroll analyses which were received in evidence According to these records, the total weekly payroll for production employees approximated the following amounts for each month of 1953: January-------- $7,473 per week July----------- $6,959 per week February------- 8,015 per week August--------- 6,969 per week March--------- 8,930 per week September------ 5,918 per week April ---------- 8,794 per week October-------- 3,729 per week May----------- 6,496 per week November------ 6,496 per week June----------- 7,742 per week December ------ 5,879 per week The monthly average of employees on as follows: the payroll during the same period was January------------------- 301 July---------------------- 321 February------------------ 313 August ------------------- 319 March-------------------- 332 September----------------- 285 April--------------------- 335 October ------------------- 249 May --------------------- 330 November----------------- 247 June -- ------------------- 322 December------------ ---- 249 The foregoing figures plainly support the Company's contention that for several 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD months subsequent to the layoff the plant operated with a greatly reduced work force and payroll 25 Although the Isaacs Company effected a layoff at the Newton factory , the only one of its plants where there was any union activity, it laid off no employees in Picayune, Carthage, or Baltimore . On the other hand , Adler testified that at both Carthage and Picayune a cutback in production was ordered and, according to Mr. Meskill, on about October 1 , the workweek at Carthage was cut from 5 to 3 days. Mr. Adler also testified that in October , production at these latter 3 plants was 79 percent of what it had been in July, in November 87 percent , and in December only 65 percent. In all the mass of charts , tables, and statistics offered by the Respondent to sub- stantiate its contention that the layoff at the Newton plant was dictated by economic necessity only one apparent inconsistency appears. This is the fact that imme- diately after the layoff, a pay raise was put into effect. According to Mr. Brinegar, on September 18 the Company announced a wage increase, to be effective the following week, pursuant to which the base rate in the plant was raised from 80 to 85 cents per hour and various attendance and service bonuses were initiated.26 This would not appear to be the normal procedure for a company purportedly faced with the need for retrenchment because of a declining market and an excessive inventory . Other than to note the seeming incongruity of this facet of the Company's fiscal planning during the period in question I shall not discuss it further , leaving to a later section of this report the matter of whether the granting of this wage increase was an unfair labor practice , as alleged by the General Counsel. How- ever, on the basis of all the Respondent's data as to business conditions and the economic outlook for the Newton Company in the fall of 1953, the pertinent por- tions of which have been set forth above, it is my conclusion that the Respondent sustained its contention that in September it was faced with the necessity for a cutback in its payroll . Accordingly , I find that the General Counsel has failed to prove by a preponderance of the evidence in the record that the layoff was, per se, discriminatory. There remains , of course, the question as to whether the employees laid off were selected for termination in a discriminatory manner. The General Counsel argues that they were and the Respondent argues the contrary. First to be settled, however, is the question as to how many employees were actu- ally laid off on September 17. In their briefs, both the General Counsel and the Respondent apparently assume that the total figure was 36. This number, it is true, appears in one exhibit offered by the parties .27 Several of the employees listed on that exhibit , however, testified that they were not laid off on September 17, but had quit voluntarily at an earlier date. Further, additional evidence offered by stipula- tion of the parties on the matter of layoffs contradicted the first tabulation in several respects 28 From these different exhibits and the testimony in the record , it is my conclusion that only 33 , and not 36, employees were laid off.29 25 Although the total number of production workers at the plant from October through December remained at approximately 250, this does not mean the Company did no hiring during that period Within 2 weeks after the layoff five new employees were hired From September 17, 1953, to February 13, 1954 a total of 32 were hired or reemployed. Of this latter figure , however, only six were among those laid off in September 20 At some time during this period it similar pay raise was given to the employees at Picayune and Carthage The record, however, does not indicate the date or dates when such action was announced to the employees at those plants. 27 General Counsel 's Exhibit No 4 29 General Counsel's Exhibit No 18-B 20 The names of the employees who I find were terminated on September 17 are as follows : Dovie Addy Sarah Hollingsworth Elise Robinson Jimmie Lee Aycock Dolores Ladd Estelle Sessions Roxie Alexander Martha Helen Livingston William Sessions James Dulane Bolei Bernice Loper Alnia Turner Catherine Bounds George Loper Jr Doris Thomas Lucy Eichelbergei Junie McNeil Mae Upton Ima J . Ezell Chailotte 'Nester Ming Doris Weir Imogene Franklin Bonnie Pace A Y. Wilson Doiothy Harris Colene Rainer Waurean Wilson Martha Nell Harrison Alford Richardson, Jr Yvette Woodward Billy Hollingsworth Duval Rigdon Agnes Wyatt The foregoing list does not include Patricia Brown , Finley Brown, Ivan Rhodes, Mary THE NEWTON COMPANY 489 The General Counsel's attack on the method used in selecting employees for the layoff centered largely on the grading system. According to the Respondent this plan was used solely to make possible a selection of the less efficient employees on a plantwide basis and to enable the Company to retain the better employees on the production line that was being closed down. The Respondent further contended that not only had the union sympathies or affiliations of the employees not been consid- ered, the Company could not have taken this factor into account because it was with- out knowledge as to who among its employees were union adherents and who were not. This was contested by the General Counsel who alleged that the Respondent was well acquainted with the names of those employees affiliated with the Union or sympathetic to it. The selection of employees for layoff was carried out by Brinegar, Meskill, and Walley, purportedly on the basis of the grading sheets received from the different foreladies. In resolving the question of whether this group of management personnel had or did not have knowledge as to the individual employee's union adherence it is pertinent to note the following. (1) Mr Brinegar's part in the distribution of addresses to employees to aid in reacquiring their union cards, found earlier herein to have been an unfair labor practice; (2) Mr. Walley's interrogation of several em- ployees as to whether they had signed AFL cards and his advice to one that unless she signed the antiunion petition, then being circulated freely throughout the plant, it would "be understood you are for the Union", (3) the fact, as found earlier herein, that Foreladies Cleveland, Garvin, Boyd, Pace, Hollyfield, and Humphries, as well as other supervisory personnel, such as A. Q. Cleveland, Magee, Turner, and Nelson, questioned employees as to whether they attended the union meeting, whether they had signed cards, and in some instances whether they knew of other employees who had; and (4) the fact that at the same time many of these identical supervisors voiced threats that the plant would close if it was ever organized, besought the employees to, sign the antiunion petitions and urged those who had signed cards to seek their reac- quisition through the use of addresses which these same supervisors stood ready to supply. The foregoing congeries of facts afford strong evidence that during the period in question the Company's supervisory hierarchy had a widespread interest in, and knowledge of, the employees' adherence to the union. I so find. The company officials testified that late in August the foreladies were asked to grade each of their employees on the basis of attendance, adaptability, attitude, and production ability. According to Mr. Brinegar, after the foreladies completed their rating sheets and turned them over to him, he collaborated with Meskill and Walley in preparing the master grading sheet from this information Mr Brinegar testified that after he and the other two had compiled the data in this manner they used it to select the less efficient for layoff. The General Counsel attacks this grading sys- tem because of the subjective factors that were used and because of discrepancies apparent in the use of the objective factors. The latter will be examined more in detail later. The introduction of such subjective elements as the "attitude" and "adaptability" of an employee could easily make the Respondent's rating system a far from reliable or impartial instrument for selecting the less efficient. This would appear to be true to a very great degree here for several reasons: (1) It was the first and only time Ann Musgrove, or Audrie Bentley According to General Counsel's Exhibits Nos 4 and 18-B these last named were terminated on September 17 The Browns testified, credibly, that they voluntarily quit on September 14 The testimony they gave on the circumstances surrounding their departure from the Company's employ was in no way contradicted by any witness for the Respondent Rhodes testified that she was laid off late in August and that she never returned to the plant thereafter Her testimony is corroborated in large part by her paycard, introduced by the Respondent This card notes her absence from the latter pact of August until the third week of September and then lists her as having earned $6 No explanation was ever offered for this last entry. Since Rhodes was a credible witness, and her testimony as to the date of her layoff was not contradicted by any subsequent witness, I accept her version and find that she quit in August and was not laid off on September 17 Musgrove credibly testified that she quit of her own volition in August This testimony was corroborated by her paycard offered by the Respondent at the conclusion of the hearing According to this exhibit Musgrove last worked for the Company on August 29 As to Bentley, the parties agreed at the hearing that she was laid off on September 7, a subsequent motion by the Genet al Counsel to delete her name from the complaint was granted 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such a rating system was used so that the foreladies had had no previous experience in its use, (2) there were few, if any, instructions given the foreladies as to the standards to be used in preparing the grades; 30 (3) there was no indication how the grades for each of the four factors was to be weighed and consolidated other than Mr. Brinegar's testimony that each factor was considered; and (4) the grading as to such highly subjective elements as attitude and adaptability was "done at a time when there was a particularly great consciousness of conflict between company and union interests" 31 and by supervisors who, in large part, had been, within the preceding weeks, extremely vocal in expressing their dislike for the Union and very active in a campaign of interference with the organizational efforts of the employees. The foregoing considerations are significant in view of the fact that although at the time of the layoff only 26 percent of the employees had signed union cards,32 81.18 percent of the employees selected for layoff were card signers.33 The percentage of union members to nonmembers selected for layoff was, therefore, greatly out of propor- tion to the percentage of members to nonmembers in the Company's employ. This fact, by itself, is not determinative as to the question of discrimination but disparate treatment to such a degree creates an inference of discrimination N. L. R. B. v. Shedd-Brown Mfg. Co., 213 F. 2d 163, 174-175 (C. A 7). As the court stated in that case, such an inference can be dispelled by an employer if he gives an adequate explanation of the discharge or layoff, but in the event he does not do so, such an inference is not destroyed N. L. R B. v. W C. Nabors Company, 196 F. 2d 272, 275-276 (C A. 5), cert. denied 344 U. S. 865, N L R. B v Sifers Candy Co, 171 F. 2d 63, 66 (C. A. 10); N. L R. B. v. Sandy Hill Iron & Brass Works, 165 F. 2d 660, 663 (C. A. 2); F W. Woolworth Co. v N. L. R B., 121 F. 2d 658, 662 (C A. 2), Montgomery Ward & Co. v. N. L R B, 107 F 2d 555, 564 (C. A. 7); N. L. R B. v. Chicago Steel Foundry Co, 142 F. 2d 306, 308 (C. A. 7); N. L. R. B. v Electric City Dyeing Co, 178 F. 2d 980, 982 (C A. 3); Broyhill Furniture Co., 94 NLRB 1452. Since it was the Respondent's position that instead of laying off an entire pro- duction line the layoff was made in the different job categories on a plantwide basis, the evidence with respect to the 28 employees whom the General Counsel alleged were discriminatorily dismissed will now be considered in that same manner. 1. Addy, McNeil, and Thomas These three employees performed an operation known as "examine before press." The grading sheet contains the following data on the five employees doing this work: 30 Respondent 's witnesses testified that they were told about the grading and given instructions for it at a single meeting Theie was much confusion as to not only who was present but as to what was said at this meeting Some (Garvin, Humphries , and Boyd) testified that llesiall addiessed the meeting, others (Tiollyfield and I-Tall ) testified that he was not even there Pace testified they weie told the grading was necessary because of an impending layoff According to Iumphiies , Meskiil told them it was needed because of the poor quality of production Most of the foreladies testified that they were told to give each employee a separate letter grade for each of the 4 factors , but according to Mrs Hall they were told to combine all the factors into 1 grade for each employee 31 Ti'est Boylston Manufacturing Company , 87 NLRB 808, 843 See also Brady Aviation Corporation, 110 NLRB 25 as On September 17, approximately 87 of the original 710 union card signers were still in the Respondent 's employ , on that date the Company had appioxnnately 339 nonsupervisory employees on its payioll ° There there 27 out of the 33 laid off ttho had signed cards These weie Addy Ladd Robinson Aycock Livingston Sessions, Estelle Boler Lopei , Bernice Sessions, William Ezell Loper , Geoige, Jr Tui ner Franklin AR-Nell Thomas Harris Ming Wilson, A Y Harrison Pace Wilson, Waurean Hollnngawoith , Billy Richardson Woodwaid Hollingsworth , Salali Rigdon Wyatt THE NEWTON COMPANY 491 Years a Guar- nteed Pale Gross M Att Adap. Qua]. Attit Earn.' serv rate rate nags u pp DovieAddy-------------- 1-------- $0 75 $0 76 $30 44 $2 1S B B- C C B- Mary L Crawford -------- 1% ------ .75 78 28 78 1 37 B B- B C B Junie McNeil _____________ 2________ 75 77 33 10 3 36 B C- C C C± Maggie L Wiley___________ 1-------- 75 78 31 44 1 64 B B- B+ B B Doris Thomas _____________ 4 mo____ .70 69 28 89 6 03 B B- C C 0 1 The abbreviations on this line stand for "service," "attendance," "adaptability ," "qual- ity," "attitude ," and "earnings ," in that order. "Makeup " is another term for "plussing " Brinegar testified that Addy was dropped because of poor quality work and her emotional unstability. In the latter connection he testified that on one occasion she had threatened to quit unless her husband was hired , and on another told Brinegar she was going to quit and a week later informed him she would stay. As to McNeil, the plant manager had little to say other than that she had been selected because of poor quality and "some plussing." He testified that Thomas was selected because she was quick tempered , did poor quality work, and "plussed " Addy's testimony and the manner in which it was given , though in part a denial of that given by Brinegar, substantiated most of the observations the plant manager had made earlier about this employee McNeil testified, but Thomas, because of illness and hospitalization at the time of the hearing, did not. McNeil credibly testified that before the layoff she had had no complaints as to her work from any of the supervisors. All five of the "examiners before press," listed above, had signed union cards. Only Crawford and Wiley were kept. These last two were earning 78 cents an hour, slightly higher than the 77 cents paid McNeil , the 76 to Addy, and the 69 cents to Thomas, thus indicating a slightly higher productivity . They also had the lowest makeup pay ($ 1.37 and $1 64 ). Under these circumstances , it is my conclusion that the General Counsel has failed to prove by a preponderance of the evidence that Addy, McNeil, or Thomas were discriminatorily laid off. 2. Boler, William Sessions , and A. Y. Wilson The above named were employed as seam bursters The grading sheet contains the following data on the nine employees listed as doing this type of work: Years serv Guar intee( rate rate rate earnsc ings flake - up Att Adap Qual. Attit Earn. James Boler _______________ 5 mo___ $0 80 $0 80 $31 80 $6 18 B B- B- B C Chas. Leach ______________ 1 mo__. 80 .80 19 44 9 40 B B- B B+ C James Ming _______________ i%______ 80 1 12 45 10 0 B B+ B B A Wm. Sessions ______________ 1%______ 80 84 33 31 51 B B- B- B- B Jack Germany ____________ 8mo___. 80 82 31 23 1 95 B B B- B B A Y. Wilson______________ 1________ .80 86 34 51 46 B B- B- B- B Earl Lewis________________ 8 mo____ 75 90 37 41 42 B A A A B Floyd McGee____________ _ 5 mo____ 80 80 30 48 7 17 B B B+ B C Chas Pierce 3-------- 90 1 18 71 89 0 B A A A A Brinegar testified that the Company laid off Boler, Sessions , and Wilson as the three lowest earners in the seam-bursting department and that, in addition, their work was of poor quality . He also characterized Boler as a heavy plusser, and stated that Wilson was not cooperative with his supervisor . The latter denied ever having difficulties with the plant supervision Brinegar's classification of these employees as the three lowest earners in their section does not correspond with the Respondent's own rating sheet , according to which , as is apparent, Leach, McGee, and Boler were the three poorest earners These last named employees likewise received a "C" grade on earnings Leach had only been with the Com- pany 1 month at the time of the layoff He was not a member of the Union. Both Sessions and Wilson had been active solicitors for the Union during its short-lived campaign . As noted earlier, Nelson had had one conversation with Sessions on the question of the employee's organizational sympathies. The Re- 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ^spondent's classification of Boler as 1 of the 3 lowest earners was substantiated by the record. I am not similarly convinced of the impartiality of its inclusion of 'Sessions and Wilson in the same category . In view of the facts set out above, which reflect that Leach , a far lower earner, with only a month 's experience and no union affiliation , was kept , whereas Wilson and Sessions with better records and longer service were not, I am persuaded that the inference of discrimination that beclouds these layoffs was not rebutted here. Accordingly, I find that Wilson and Sessions were discriminatorily laid off. I do not draw a similar conclusion with respect to Boler, however , since he was , in fact, one of the lowest earners and had only a few months ' service. 3. Imogene Ladd Franklin 34 This employee was serging backs. The following data is contained on the grading sheet as to those who were similarly employed: Years sen, Guar- anteed rate Paid rate Gross earn- rngs Make- up All Adap Qual. Attit Earn Franklin------------------ 6mo---- $0 75 $0 75 $25 13 $6 71 C C B- C C Mae Upton________________ 3 me ---- 70 69 25 13 9 20 B C B- B- C Inez Thornton ------------ 1-------- 75 80 29 87 1 82 B B B+ B B Lillie Jacobs________ ______ 2j 75 75 28 04 1 48 B B- B B B Georgia Brown ------------ 2--- ---- 75 85 32 80 0 B B A A A M Hollingsworth ---_---__ 2 me ---- 65 65 23 37 14 07 B B B B C+ Brinegar attributed Franklin's layoff to her poor attendance , a heavy plussing record, and a poor attitude. In explanation of this last characterization he testified that her supervisor found it difficult to correct her because she was very quiet and would refuse to talk when suggestions were made . Franklin was the only card signer among the six sergers listed above. She and Upton , a nonunion member, were the only ones laid off. Hollingsworth , a nonunion member with only 2 months ' service had a far worse plussing record but she was kept. It is also true , however, that Franklin's paycard shows that from April 11 until the time of the layoff she worked a full 40 hours in only 3 different weeks. This may have been due, at times, to a shutdown of her production line. On the other hand , it also tends to prove that Franklin, who lived 30 miles from the plant, also had a consistently poor attendance record. For this reason I conclude and find that the evidence in the record does not sustain the General Coun- sel's allegations as to Franklin. 4. Dorothy Harris and Elise Robinson These two individuals were belt loop tackers. The grading sheet notes the fol- lowing with respect to all the employees in this category: Dist. from plant Years serv Guar- anteed rate Paid rate Gross earn- mgs Make- up Att. Adapt Qua]. Attit. Earn. Dorothy Harris----- 13 10mo __- $0 75 $0 75 $28 28 $6 73 B B- C C C Elise Robinson---_- 6 2Y2 ------ ;5 81 34 16 1 33 B B- B B B Ivon Rhodes ------- 15 8mo---- 75 75 24 73 9 43 C C+ C+ B C Frances Jolly ------- 7 8mo---- 75 75 32 57 7 03 B B - B B C Clodine Shaw ------ 20 6mo____ 75 .75 29 02 10 42 B B- B B C Mrs W Loper ------ 20 5 mo..-- 75 75 27 40 4 11 B B- B B C Margie Huey ------- 12 6mo---- 75 75 28 35 9 73 B B- B- B C W. Meadow -- ------- 12 1Y2 ------ 75 75 26 32 4 80 B B B B+ C Dorothy Lewis ----- 18 1%------ 75 75 27 56 2 34 B B- B B B_ -C F. Weldon r----- 26 4 mo _-__ 75 72 28 71 9 05 C B- B B C+ 1 On Respondent's Exhibit No 11, IV,eldon's operation was described as "tack loops," that of the others as "tack belt loops." There was no evidence however, that Weldon's work was any different from that of the nine other employees listed above The column Beaded "Dist, from plant" in the foregoing table gives the distance in miles that the named employee lived from the plant. '4 Also referred to in the record as Imogene Ladd. THE NEWTON COMPANY 493 According to Brinegar, Harris was selected because she was a high plusser, lived a considerable distance from the plant, had a poor attitude toward her forelady, and had to do a lot of her work over. The plant manager described Robinson as a "con- stant plusser" and as one who had to do "quite a bit of repairs." He stated that she was laid off for those reasons. From the grading sheet, however, it appears that Robinson had the lowest plussing rate of the entire group of 10 belt loop tackers and the best earning record of all. Moreover, since an employee had to redo any mistakes on her own time, thus cutting down on her earning rate, it is apparent that, contrary to Brinegar's testimony, Robinson could not have had much work returned for re- pairs. Similarly, with respect to Harris, it is plain that 5 others who were kept had worse plussing records, 4 others earned less, and 5 others lived farther from the plant than she. Harris credibly testified that she had never had any complaints from, or arguments with, her forelady. Brinegar's testimony in this regard was never -corroborated. Harris and Robinson were the only belt loop tackers laid off. They were 2 of the 5 card signers in this group of 10 employees. In addition, Harris had refused to sign the antiunion petition, although at the time her forelady, Mrs. Boyd, had declared that the purpose of the petition was to keep the plant from moving and had told Harris that she could not avoid committing herself on the question raised by the peti- tion because she was "no good to the Newton Company sitting astraddle the fence." Later, as found hereinabove, Mrs. Boyd questioned Velma Walker, one of Harris' coworkers, as to the latter's union sympathies. Robinson had likewise refused to sign the petition, even though at the time of her declination, Foreman Magee had told her there would be no plant if the Union came in. Later, Walley, who along with Brinegar and Meskill made the decision as to whom should be laid off, questioned her as to whether she had signed a card and, when Robinson acknowledged that she had, urged her to reconsider. In the light of these findings it is my conclusion that both of these employees were selected for layoff because of their union affiliation and not because of their work records. I therefore, find that their termination was discrimi- natory. 5. Martha Harrison This employee was 1 of 3 who serged zippers. The rating sheet contains the fol- lowing information as to these employees: Years Guar- an- Paid Gross earn- Make- Att Adap Qua]. Attit Earn. sere. teed rate logs up rate M Harrison -------------- 3 mo____ $0 70 $0 68 $24 87 $11 87 B 0- 0 CB C- Edna Sharp_______________ 2 me---- 65 65 21 02 5 01 B B+ B+ B C+ Bobbie Griffin____________ 2____ 75 .75 25 90 4 17 B B B+ B+ B- Brinegar attributed Harrison's layoff to poor quality and plussing. She had signed a union card and she also signed the antiunion petition. She was the only union member among the three zipper sergers. On the other hand, she was, by far, the heaviest plusser. On these facts it is my conclusion that the General Counsel has failed to prove that Harrison was discriminatorily laid off. 6. Billy Hollingsworth This employee was 1 of 3 fly pressers. The data on the rating sheet is set forth as follows: Years Guar- an- Paid Cross ern Make- Att. Adap Qua] Attit Earn serv teed rate ings up rate 13 Hollingsworth--------- 1________ $0 80 $1 13 $50 26 0 B C C- C- A- Louise Bounds____________ 0 mo .80 .80 29 95 $1 28 B B B+ B B Emma McMullen-. ------- 1%z_____ 80 1.06 3877 0 B B B+ B+ A 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. Brinegar testified that in laying off Hollingsworth he considered the employee's absentee record, his habit of staying in the restroom a lot, and his uncooperative attitude. He also testified that on one occasion when he told Hollingsworth about some bad work, the employee told him "he wasn't interested in doing his work right, that all he was in there for was to make a living" Brinegar's testimony about Hollingsworth's absentee record was not corroborated. A study of the employee's paycard reveals that throughout the year 1953 he failed to work a full 40-hour week on only a few occasions, and that he frequently worked as much as 44 hours a week and sometimes more. In those few instances when he worked only 32 hours no explanation appears on the card to indicate whether during those par- ticular weeks the production line was shut down, a not infrequent occurrence which, of course, would not reflect unfavorably on the employee's attendance rec- ord In any event, it is plain fiom Hollingsworth's paycard that he maintained a consistently good attendance Since the man was on piece work, any tendency to spend long periods in the restroom, as Brinegar testified was his custom, would have cut his earning rate. The facts set out above, however, show that insofar as earnings were concerned Hollingsworth was far ahead of the other two fly pressers, and averaging over $20 a week more than Bounds, a nonunion member. Brinegar conceded that the incident in which Hollingsworth had told him he was not interested in doing his work properly had occurred the preceding January, 9 months before the layoff Hollingsworth credibly testified that his foreman, A. Q. Cleveland, had never criticized his work. The latter testified later in the hearing but was asked no questions as to the quality of Hollingsworth's performance. Brinegar's testimony on this point stands uncorroborated. Hollingsworth signed a card early in the union campaign Shortly thei eafter he was called into Meskill's office where the latter spoke to him on the subject of unions, told him the Company's reasons for being opposed to labor organizations. and asked if Hollingsworth had made up his mind as to whether he was for the Union or against it The employee replied that he had made up his mind but declined to elaborate as to which side he had chosen and Meskill did not press him for any further answer. in view of the lack of substance to Brinegar's charges as to the employee's absentee record, or his performance on the job, and the fact that the one instance cited as proof of an uncooperative attitude had occurred 9 months earlier, I am convinced that Hollingsworth, the best earner of the three fly pressers, was selected because of his union affiliation. Accordingly, I find that his layoff was discriminatory. 7. Sarah Hollingsworth This employee worked on belting along with three others. The grading sheet lists the following as to those so employed: Guar- d Gross M k Yeats an- teed Pai r te ain a e u Att Adap Qual Attit Earn sere rate a jngs P S Hollingswoith ---------_ 4-------- $0 75 $0 89 $33 31 0 C B B C A Cora Leach---------------- 5ino ____ 75 93 32 38 0 C B B B A MinmeHicks----- ------- 5mo---- 75 89 25 41 0 13 13 13 B A Toledo Noel --------------- 1 ,14 mo_- 65 65 23 25 I $5 11 B B B B C- Brinegar testified that Hollingsworth was selected for layoff because she "was absent quite a bit . . . did a lot of talking and . . was pretty loud" There was no corroboration for the plant manager's testimony that this employee was. "loud" or constituted a personnel problem by talking too much while at work. Nor was any testimony offered as to any specific instance when, if ever, she had been corrected because of such habits. Hollingsworth had not signed a union card nor had she attended any meetings. Neither had she signed the antiunion petition when it was being circulated in the plant. She persisted in her refusal to sign even though Mr. Walley, as found earlier herein, told her "you had better sign it It will be understood you are for the Union if you don't sign" and concluded that a "lot are going to be hurt." Although Brinegar testified that Hollingsworth attendance record had been a con- tributing factor to her layoff, the data on the grading sheet set out above shows that her average gross earnings for 8 weeks, which would reflect any significant absences, were $33 31, the highest of all the belters. Brinegar explained the layoff of Ladd THE NEWTON COMPANY 495 and Livingston as being due, in part, to their short period of service. Here, no explanation was offered as to why Hollingsworth with 4 years' seniority was laid off while three others with far less, including Noel, a nonunion member with only 11/z months' experience were kept. Hollingsworth's earning record and length of service cast a shadow of implausibility on the reasons offered by Brinegar for choos- ing her instead of an employee such as Noel. It seems more likely and, I find, that just as Mr. Walley had predicted some weeks earlier, the fact that she did not sign the antiunion petition was not forgotten and caused her to be included on the list of those to be terminated. For the Company to lay her off on the assumption that she was a union adherent was a violation of the Act regardless of whether she had ever actually signed a card. I so find. 8. Delores Ladd Both this employee and Mr. Brinegar testified that she was working at restitch- ing front pickets when laid off. The Respondent's grading sheet lists Ladd as a bander. Because of this divergence in the evidence as to the job this individual per- formed, all the data on those employees listed as working at both operations is set out below: Banding Guai- d Gross M k Yews an- t d Pai t earn. a e- Att Adap Qual . Attit Earn. sei v. ee ra e lugs up rate Delores Ladd______________ 3mo---- $0 75 $0 75 $30 02 $14 76 B C+ B- B C Joan Bankston____________ 13f 75 86 34 12 0 B B+ B B A 1) Paitndge_ ----------- 75 75 27 96 3 92 B B B- B C Restitching Front Pockets Mary Aycock_____________ Neva Mays__ _ 8mo---- 3 -------- $0 75 .75 $0 75 78 $25 85 29 49 $4 76 2 60 B B B- B B B+ B- A C B Ladd had signed a union card and had refused to sign the antiunion. petition. Brinegar testified that she was laid off because she was a heavy plusser, did poor quality work, and had not been on the job long. This testimony is corroborated by the above table wherein it appears that Ladd's makeup pay was greatly in excess of that for any other employee working at either banding or Iestitchmg. She also had considerably less seniority than the other four. Under these circumstances it does not appear to me that the General Counsel has proved by a preponderance of the evidence that Ladd's selection was discriminatory. 9. Martha H Livingston and Ima J. Ezell Livingston had been with the Company slightly over a month at the time of the layoff, during which period she had worked as an inseamer and at setting flies. Ezell was employed on the latter job The grading sheet has the following data on the employees engaged in these two different operations: Setting Flies Guar- Gross Yeats an- Paid cat n- Make- Att Adap Qual Attit Earn. seiv teed rate iato m gs up M Livingston____________ 1 mo____ $0 65 $0 65 $19 06 $11 00 B C 13- B C Susie Leach_______________ 5_______ 75 75 28 84 1 01 B 13 B A B MattieJones _____ 10mo___ .75 75 26 03 637 B B- B+ B+ C Ima Ezell__ 1-______ 75 75 28 15 8 33 B B- 13- B- C 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inseamers Y Guar- d P Cross M k ears s an- teed ai ate earn- a e- u Att. Adap. Qual. Attit Earn. erv. rate r l ags p M Hutchinson ----------- 1Y2 ------ $0 75 $0 75 $25 23 $0 88 B B B B+ C+ Orene Simmons--------__ 2Y2 ------ 75 80 34 79 90 B B B+ B+ B Kate Lavender ------------ 3 mo--- .70 69 25 65 6 66 B B B B+ C+ Donnie Todd------------- 1-------- 75 .78 20 07 1 84 B B+ B+ B+ B Livingston, Ezell, and Lavender were the only employees out of the eight listed above who had signed cards On the other hand, Livingston had signed the anti- union petition as well. According to Brinegar, she was selected for layoff because of her plussing record, the poor quality of her work, and the fact she had been with the Company only a few weeks. From the above data it is apparent that Livingston had the poorest earning record of the entire group. This, plus the fact that she had been with the Company only a very short while, whereas most of the others had far greater seniority, leads me to conclude that here, also, the General Counsel has failed to prove the employee was discriminatorily laid off. Brinegar testified that he laid off Ezell because she was a heavy plusser and because she was on the production line that was shut down. She was recalled about 2 months later. Ezell had signed a union card but she had signed Magee's petition as well. Among the girls employed on the fly-setting operation, only Livingston had a higher plussing average. On Ezell's work history, and the evidence in this record, it is my conclusion that her layoff was not a violation of the Act. 10. Bernice Loper This employee and two others worked on zipper slides. The grading sheet in- cludes the following data on the three so employed. Years Guar- an- Paid Cross Make- serv teed rate earn up Att Adap. Qual Attit Earn. rate ngs Loper--------------------- 2^------ $0 75 $0 75 $25 58 $0 75 B C+ C B C Mary Laing--------------- 10 me-.- .75 .80 32 53 79 B B+ A A B+ Sadie Bowen-------------- 5%------ .75 .83 37.22 0 B A A A A According to Brinegar he selected Loper after considering the quality of her work, her absenteeism, and the fact that he did not believe she would be a permanent employee. He stated that he based this latter assumption on an incident that occurred sometime before the layoff when Loper gave notice that she was going to quit and then, after a replacement had been trained, changed her mind. Jettie Hall, the forelady, however, testified that this matter had not been a factor which she had considered in grading Loper. Brinegar's testimony that Loper had a poor absentee record was not borne out by the employee's paycard. From this docu- ment, it appears that from January 1 until August 1, 1953, when, according to Respondent's own testimony there was a decline in the number of workdays, Loper put in a full 40 hours each week except on three occasions. Loper was the only union member among the three operators in this group. She had been active on behalf of the Union and had induced four other employees to sign cards. She was working beside Dansby-at the time of the latter's discharge. That same day Foreman Magee brought the antiunion petition to her and she refused to sign it despite Magee's declaration to her that Isaacs was not going to work under a union. On the foregoing facts it is my conclusion that Loper's union sympathies and affiliation were known to the Company. The insubstantial char- acter of the objections to her work which Brinegar raised and the disproportionate selection of union members for layoff cause me to conclude that Loper's layoff resulted from her union affiliation. It was, therefore, discriminatory. THE NEWTON COMPANY 497 11. George Loper, Jr. This employee was pressing back pockets on a machine known as a jump press. There were two performing this operation. The grading sheet contains the fol- lowing data on their work: Years Guar- an- Paid Gross arn Make- Att Adap. Qual. Attit Earn. serv. teed rate e up rate George Loper _____________ 9 rno---- $0 80 $0 87 $35 41 $0 26 B B- B B B+ William Huey- ----------- 9 mo---- 80 88 34 40 0 B B B B A According to Brinegar, Loper was laid off because he was an operator on the line, that was being shut down and there was no other vacancy available He described Loper as a very satisfactory employee who was "a very good boy, very cooperative " Brinegar also testified that earlier Loper had told him that since he was only getting 3 days' work per week he would prefer to be laid off and draw unemploy- ment compensation This last remark was denied by the employee who testified that he had never made such a statement to Brinegar prior to the date of his lay- off and that , in fact , he had been working full weeks 35 Both Huey and Loper were union members. The latter testified that on July 30, Nelson, the head mechanic , had asked him and John Dansby if they were having trouble getting members and when Loper replied in the negative, Nelson declared that the plant would be closed it the Union came in .36 The following day Magee circulated the petition on Loper's production line but did not present it to him. At the time of his layoff Loper was working on men's slacks and on the line that was being eliminated . Both he and Huey had good work records . Both were union members . Brinegar frankly conceded that Loper was a completely satis- factory employee , but testified that the Company had no further need for two jump press operators and that he had to terminate one. On the foregoing fact& it is my conclusion the record fails to sustain the General Counsel's allegation that Loper's layoff was discriminatory. 12. Charlotte Ming This employee was putting eyelets in belts. She was the only one so engaged at the plant. The grading sheet lists the following information on her record: Years serv Guaran - teed rate Paid rate Gross earnings Makeup Att Adap Qual Attit Earn 17 rno _____ $0 75 $0 82 $26 68 $0 36 B B- B B- B Brinegar testified that Ming was included in the layoff because she was not coopera- tive with either her supervisor or Mr. Walley and further because she was not adapt- able, complained a lot, and was a poor producer . Mrs Ming credibly testified that prior to her layoff no supervisor ever criticized her for lack of cooperativeness or on any other ground. Brinegar's testimony as to this employee was never corroborated by any other witness . Her forelady was never called to testify , and Walley, though called as a witness , was asked no questions as to his experience with this employee Ming had signed a union card and attended the organizational meeting. When Ma- gee brought his petition to her shortly thereafter she flatly refused to sign despite his IS This was corroborated by Loper 's paycard , according to which he worked 40 hours per week front August 2 to 22, 32 hours the week ending August 29, 40 hours the week ending September 5, and 32 hours the next week 30 Testimony concerning a conversation with Bobby Jones, in which, according to Loper, Jones told him that Brinegar was endeavuung to learn his (Loper 's) attitude on the Union has not been considered , since I have found earlier herein that Jones was neither a supervisor nor an agent of the Company 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prediction that unless the employees did so there would be no more Newton Company. This employee was the only individual in the plant on her particular type of job, a simple but essential operation . According to the grading sheet, her production was high enough to enable her to earn 7 cents an hour above the minimum . The week of the layoff 115 employees did not earn the minimum and "plussed." Since of the 33 employees terminated on September 17, many were not "plussers ," obviously a large share of the 115 remained on the payroll. For this reason, I was not convinced by Brinegar's testimony as to his concern about Ming's production record or about her other alleged faults . In view of the above facts and the pervasive air of discrimina- tion that the disproportionate selection of union over nonunion members referred to at the beginning of this section provides , I conclude and find that Mrs. Ming was ter- minated for discriminatory reasons. 13. Bonnie Pace and Lucy Eichelberger These employees performed an operation known as serging fronts. There were two others similarly employed. The grading sheet has the following information as to these individuals: Years Guar- an- Paid Gross Make- serv teed rate earn- up Att. Adap Qua] Attit. Earns rate ings Bonnie Pace - ------------- 5%_____ $0 75 $0 79 $28 34 $0 85 B B- B- C B L Eichelberger_-________ 3% ------ 75 84 32 18 0 B C B B A Audry Gentry ------------ 3________ 75 75 28 69 1 56 B C B B B Emma Addy-------------- 3________ 75 76 2839 85 B B- B+ B+ B According to Brinegar , Pace was laid off because she would not cooperate with her forelady and because she held up the production line and made it difficult for other operators to make their quota. He described Eichelberger as not being adaptable and gave that as the reason for her layoff. Within 2 months, however, he recalled hei. Pace denied that her forelady had ever reprimanded her or that she had ever sought to induce any of the employees not to cooperate with the forelady. She conceded that at the time of her layoff about 500 pairs of slacks had piled up at her machine but she also testified this was due , in part, to the fact that during this period a new operator next to the back serger had mixed some of the work so that the forelady asked her to help the back serger catch up.37 While Brinegar stressed the allegation that Pace was responsible for retarding production as the basis for her layoff, he also testified that he felt she had been doing this from the time he first came to The Newton Company as plant manager , but that he had never reprimanded her for doing so. Brinegar's testimony as to her production record is also negated by the data in the foregoing table wherein it appears that on the basis of her production record Pace averaged 4 cents an hour above the minimum and had a very low average on makeup. As noted earlier in another section of this report , in August, Henry Mack had come to Pace to ask her position on the Union and to tell her that "it looks like Harry is going to have to show you that he can shut these doors ." Pace was the only union member among the front sergers. She had the greatest seniority, the second highest pay rate , and only Eichelberger had a better makeup average. Her forelady was not called to corroborate Brinegar's testimony on her work record To the Trial Examiner , the plant manager's recital of her deficiencies lacked convic- tion. On the foregoing findings, it is my conclusion that Pace was terminated be- cause of her union affiliation. The same conclusion does not apply to Eichelberger . This employee had never signed a card or attended any union meeting . She had signed the antiunion petition. It is true that Nelson once asked her if she was for the Union and after replying in the negative she subsequently asked Mrs. Garvin , her forelady, if her name had 11 Inez Thornton, the back serger, was subsequently called by the Respondent and testi- fied that about the time of her layoff Pace suggested that they not make their full produc- tion quota However, Thornton also testified that she never reported this conversation to her forelady or to any management official. THE NEWTON COMPANY 499 been turned in as that of a union member. The forelady assured her that it had not. The record contains no evidence that would tend to prove that the Respondent even suspected her of being a union adherent. On these facts , I can discern no element of discrimination in the layoff of this employee. 14. Duval Rigdon and Alford Richardson These two employees were leg pressers . The following data appears on the grad- ing sheet as to all those in that category: Years sere Guar- an- teed rate Paid rate Gross earn- ings Make- up Att AdaP• Qual Attit Earn. A Richardson ------------ 1%______ $0 80 $1 17 $59 32 0 B B- C C A Duval Rigdon ------------ 4Y4 ______ 80 1 34 66 92 0 B B- B B A Ruby W\-alteis------------- 1% mo___ 80 80 35 14 $14 00 B C+ B B C Mrs R Beiiy____________ 1 too ---- 80 80 30 23 12 24 B B B B C+ IIerbett Kelly ------------- 1 ________ 80 1 14 61 92 0 B B B B A Terrell Simmons --------- - 1 mo____ 80 80 31 08 13 43 T3 B- B- ------- C Floyd Park-ei ------------- 2------ ._ 80 96 40 69 03 B B- B B B+ Clyde Jenkins_____________ 3%____ 80 1 11 51 53 0 B B C+ B A- Clell Hall _________________ 3i.______ SO 1 24 65 68 0 B B- B B+ A Benton Bowen ____________ 5%______ SO 1 20 56 41 0 B 13+ A B+ A According to Brinegar, he selected Richardson because of poor quality work and because on one occasion the employee had demonstrated a bad attitude toward his final examiner. No corroborative testimony was offered as to the character of Richardson's work. Mary Emmons, the final examiner , was called as a witness. According to her, however, the incident about which Brinegar testified had involved both Richardson and one Kenneth Boyd , the former pressing trouser legs, the latter, trouser tops. Emmons examined the work of both. She testified that on the day in question when she returned a garment for redoing to one, he would insist that the other was responsible , that as a result she complained to Forelady Cleveland and the latter talked to both about the dispute . Richardson testified that this single incident was the only time he had ever had an argument with his examiner and that no supervisory official had ever complained to him about the matter.38 Brinegar did not testify that he had ever reprimanded Richardson or spoken to him about this occasion. As for Rigdon, the plant manager conceded that there was nothing against the man's work and stated that he was laid off solely because the Company had too many pressers. If the Respondent was seeking only to reduce the number of leg pressers, it seems odd indeed that Rigdon and Richardson were selected . The former was the highest earner in the entire group of 10 employees and the latter was fourth highest. Whereas Rigdon had 4 years' seniority, 3 employees (Berry, Simmons, and Walters ), who had been with the Company only a month and were earning only half as much as he, were kept. There were 6 union card signers in the group of 10 employees at the time of the layoff 39 The organizational movement started in this section ; Richardson and Rigdon were among the early supporters of the campaign. As he did with only a few others , Meskill called both into his office during this period to discuss the union question with them 40 Since the plant supervisor testified that he held such meetings with only about 20 of the 300 em- ployees, it may be assumed that he made an effort to concentrate his campaign efforts on those whom he felt it most important to persuade or convert . Conse- quently I consider it of some relevance on the issue as to whether the Company as The final ex.uniner had no supervisory standing and had the same employee status as Richardson au Richardson , Ridgon, Kelly, Parker, J enkins, and I-T.111 The latter , however, could hardly be classed as a union adherent at the time of the layoff , for 3 days after he signed a cai d he had sought Brinegai 's advice on how to get out of the Garment Workers 4i Earlier herein , I have found that Mr. Meskill did not exceed the bounds of permissible free speech in these conferences. 369023- a6-vol 11 2-33 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was cognizant of the union affiliation of Rigdon and Richardson that Meskill should have chosen to meet with them individually during this period. I likewise con- sider it significant that although in the pressing department where the union move- ment had its first supporters these two employees were laid off , in the shipping, cutting, and order departments where the employees were so strongly opposed to the Union,41 no one was laid off, even though Brinegar conceded that in the shipping room, in particular, there was little work for the employees to do.42 On the basis of the excellent work records of Rigdon and Richardson , as compared with that of the nonunion employees with little seniority who were not laid off, and because of the lack of substance to the reasons offered for selecting these two , I conclude that their layoff was discriminatory and a violation of the Act. 15. Estelle Sessions This employee performed an operation known as stitching white fly. The grad- ing sheet has the following data on those employees who stitched or sewed white fly: Y Guar- P d Gross M k ears s an- t d ai r te am a e- Att . Adap Qual Attit. Earn. erv. ee a ings up rate E Sessions---------------- 3-------- $0 75 $0 76 $24 14 $0 90 B B- B B B Eva Ezell----------------- 5________ 75 76 29 19 2 80 B B- A A B Estelle Belk--------------- 3% ------ . 75 80 30 64 1 33 B B B+ B B Alma Turner -------------- 2% ------ .75 75 25 80 5 00 B C B C C+ Mary Crosby------------- 4 me ---- 75 .73 24 24 10 96 C B B+ B + C+ According to Brinegar, he considered Sessions' record for absenteeism as the pri- mary reason for laying her off. He described her as a fair worker but not too adaptable. Jettie Hall, her forelady, testified that Sessions had a poor attendance record, was absent for 10 days in August, and a majority of the time during February. The employee conceded that she had been out during August but denied that she had been absent for an extended period at any earlier time. Later in the hearing, her testimony was corroborated by the company attendance records. According to the latter, Sessions was absent due to illness for 10 days in August , 2 days in July, 1 day in March, and 1 day in February . Hall's testimony about an extensive absence during February was plainly contradicted . The company records further showed that in 1952 the employee was absent because of illness for only 3 days and out for business reasons on 3 other days. Of the 5 employees stitching white fly, 3 were union members. Mrs. Sessions had joined the Union with her husband , William Sessions, an employee who was also laid off, as I have found above , discriminatorily . A few days after she joined, Magee brought his petition to her, asked "Do you want your job?", and asked that she sign. She explained to the foreman that she was very reluctant to do so and then signed. As found earlier, herein, about the first of September , Henry Mack questioned her on whether she or her husband had gone to the union meeting . On September 17 both Mr. and Mrs. Sessions were laid off. From the table above, it is apparent that this employee, with over 3 years' seniority, had the lowest plussing average of the five engaged in the same operation. Crosby, the employee with the worst plussing average, by far, and only 4 months' seniority, was kept. She was not a union member. The facts as to Sessions ' attendance record disclosed that it could not have been considered excessive . Indeed, on the Respondent 's grading sheet she was given a "B" for attendance, the same marks as all the others except Crosby who received a "C." In view of these facts , it is my conclusion that Mrs. Sessions , as well as her husband, was chosen for the layoff not because of a record for absenteeism but be- cause of her union adherence , and that her termination was, therefore, discriminatory. 43 Medric Ware , Billy Cleveland , and Lowry Walters, who had been active in circulating the antiunion petition, worked in these sections. 42 At the hearing, he testified ". . . in the shipping room we had a very difficult job keeping the boys busy because we did not have but very little to ship " THE NEWTON COMPANY 501 16. Doris Weir This employee operated a button hole machine. The grading sheet gives the following data on the four employees so engaged: Years Guar- an- Paid Gross Make- serv. teed rate earn- up Att Adap. Qua] Attit Earn, rate mgs Doris Weir________________ 2%______ $0 75 $0 83 $36 97 $0 86 B B B B B-{- Frances Massey----------- 2% ------ 75 82 32 58 1 09 B B B+ A B+ Addie Mowdy------------ 1%___- _ 75 75 31 18 4 03 B B+ A B-f B- C Harris____ _____________ 8 mo_-__ 75 .75 30 18 6 01 B B- B B B Brinegar testified that Weir was selected for layoff because he had the impression that she would not be a permanent employee and that he based this on a conver- sation had with her during the summer when she told him that she was planning to quit. Mrs. Weir acknowledged having had such a conversation with the plant manager and conceded that she never subsequently told him that she had changed her mind. This employee had never signed a union card or attended a union meeting. She had also signed the antiunion petition on July 31. She testified as to several alleged conversations with Brinegar, Garvin, and Mack which would tend to prove that they suspected her of being a union adherent . Earlier in this report, however, the conflicts between the employee's testimony and that of the named supervisors was resolved in favor of the latter. Consequently, it is my conclusion that the General Counsel failed to prove that the Respondent discriminatorily laid off Weir. 17. Waurean Wilson This employee worked at banding or sewing curtain 43 The grading sheet gives the following data on those described as sewing curtain: Years Guar- an- Paid Gross Make- serv teed rate e am up Att. Adap Qual. Attit. Earn. rate ings W Wilson---------------- 23______ $0 75 $0 78 $30 93 $2 33 B B- C+ B B Jume Nelson______________ %_______ 75 78 28 23 1 30 B B B B B Eliz. Pace___ ______________ 13------ 75 .75 26 45 81 B B B+ B+ B Betty Nester______________ Y3 ------- .75 75 26 46 5 27 B B- B- B C+ The data on the employees listed as banders appears above under the section devoted to a discussion of the allegations as to Delores Ladd. According to Brinegar, he se- lected Wilson because she had too many repairs, did poor quality work, and was not adaptable Brinegar gave no details as to any incident that would substantiate his statement about Wilson's record on repairs The employee testified that the only time she had had a number of repairs to make had been an occasion about 10 days before the layoff and that in a discussion on the matter with Mack he told her that the trouble arose because of poor work in the cutting room and not on her account . Mack was asked no questions about this subject when he was on the stand. Nor was Wilson's forelady called to corroborate Brinegar . Since an employee had to do repairs on her own time, any excessive amount would be reflected in the individual 's earning record. Wilson's record would support no such inference for her earnings were better than all but 2 others in the group of 7.44 Wilson was 1 of 3 union members among the 7 engaged in banding or sewing cur- tain. When Magee brought his petition to her she told him she would not sign it. 43 These terms apply to the same operation , the only distinction being that banding is the name given to the operation in the manufacture of work pants , whereas in making dress pants it is known as sewing curtain 44I e , the 4 employees named in the foregoing table and the 3 banders listed in the table undei section D , 8, supra 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He then referred to the trucks outside the building as being ready to move the plant and stated that he did not know what the employees would do for work if that even- tuality came to pass. Mrs Wilson persisted in her refusal to sign and Magee left her. As related earlier, during the latter part of August her forelady, Mrs. Hollyfield, told her "we are fixing to be out of a job" because the plant owner would not operate under a union. Two of the lowest earners 45 were nonunion members. They were kept whereas Mrs. Wilson was not. In view of the unsubstantiated character of Brinegar's criticism of her work and on the basis of the foregoing findings, it is my conclusion that she was terminated, as well as her husband,46 discussed earlier herein, not because of alleged deficiencies, but because of her adherence to the Union. 18. Yvette Woodward This employee operated a pinking machine and was the only one so engaged at the plant. The grading sheet gives the following data on her work and service: Years sere. Guaran - teed rate Paid sate Gross earnings Makeup Att Adap Qua] Attit. Earn 1%-------- $0 75 $0 86 $38 59 $ 09 B B- C B- A According to Brinegar, Woodward was laid off because of her attitude toward her work, her poor quality, and her absenteeism. He attributed her poor quality to Carelessness in stacking the garments as they came from her machine and stated that, despite corrections from her forelady, Woodward did not improve. The forelady, Imogene Cleveland, was not asked any questions on this issue although she subse- quently testified on other matters Woodward denied that she had ever refused to adopt any suggestions that Cleveland made. She conceded that she had had difficulty stacking the trousers correctly but attributed this to a shortage of carts which Isaacs took steps to remedy in August with the use of a larger type cart, after which, according to the employee, she had less trouble Woodward joined the Union on July 30 and thereafter refused to sign the anti- union petition even though it was presented to her on two different occasions. After the second time, Woodward went to Brinegar to ask if it was necessary to sign the petition to keep her job and he assured her that it was not. Several days later Bessie Williams came to Woodward and asked if she had signed a union card and when the later acknowledged that she had, Williams gave her the addresses to which she might write to reacquire the card 47 Woodward testified that throughout 19 months' service with the Respondent she was absent on 7 different days, on 4 because of sickness, and on 3 when Mr. Walley granted her leave after her husband returned from military service in Korea. This testimony was corroborated by the employee's paycard which indicates that from the first of January 1953 until her layoff she averaged 40 or more hours on the job in every week except two. Despite Brinegar's criticism of her quality, she had a very good earning recoid, averaging 11 cents an hour above the minimum and having a negligible plussing record.48 The fact that Brinegar's criticism of Woodward's relations with her forelady was uncorroborated, and that his critical reference to her attendance record was unwarranted, tend to detract from his charge that her work was of poor quality. Her earning record was considerably above average and on the facts in this record I am convinced that there was little substance to Mr Brinegai's outline of her alleged shortcomings. She had worked at the plant for over 19 months as the sole operator of the pinking machine without ever being replaced. On the foregoing facts it is my conclusion that it was her union adherence and not her work that caused the inclusion of her name on the termination list. 45 Pace and Partridge The earning record of the latter appears under section D, 8, supra 40 A Y Wilson 47 As tound earlier, at the time, Williams was acting at the request of Forelady Cleve- land and as an agent of the Respondent, supra 48 The 9-cent weekly plussing average attiibuted to her on the giading sheet arose from the fact that during I week in August she had an adjustment to minimum of 68 cents, the only instance that she plussed in over 6 months In contrast with this record, as noted earlier, during the week of the layoff 115 employees plussed. THE NEWTON COMPANY 503 19. Jimmy Lee Aycock At the time of her layoff this employee was sewing tabs.49 There were three in this operation. The grading sheet gives the following data on these employees. Guar- Gross Years an- Paid am Make- Att. Adap Qua] Attit. Earn. serv teed rate mgs up rate Aycock -------------------- 5 mo____ $0 75 $0 74 $28 88 $6 72 B C B- B- C+ Mabel Peavy------------- 11 me --- 75 75 23 82 13 06 B B B B C+ Jean Brooks --------------- 1 me ---- 65 65 20 69 11 66 B B B B C+ Brinegar attributed Aycock's layoff to the fact that she was a heavy plusser. He also stated that her attitude "was not too good." It is apparent from the above table that Aycock's plussing record was better than that of either Peavy or Brooks, both of whom were kept Aycock was the only union member in this group. At the time the antiunion petitions were being circulated she refused to sign on the first occasion that one was presented to her, even though Forelady Humphries told her at the time "If you want to hold your job, sign the petition." Later that morn- ing, after a conversation with Magee in which he made substantially the same comment as had Humphries, Aycock signed In view of the fact that Brinegar attributed Aycock's layoff largely to her plussing record, whereas the other two employees similiarly engaged had records that were much worse than hers, it is my conclusion that Aycock, the only union adherent on this work, was selected because of that affiliation and not because of her job performance. Accordingly, I find that her layoff was discriminatory. 20. Agnes Wyatt This employee was a hemmer There were three so engaged at the plant. The grading sheet lists the following on these employees: Guar- d Gross k M Years an- Pai earn- a e- Att Adap. Qua] Attit. Earn. serv teed rate ngs up rate Agnes Wyatt_____________ 5%______ $0 75 $0 81 $32 81 $0 31 B C B D B Udene Cockrell ----------- 1%_____ 75 80 31 06 99 B B+ B B+ B it Harris________________ 1Y2 ------ 75 75 27 31 7 27 B 13 B+ B+ C According to Brinegar, Wyatt was laid off because of her lack of adaptability, her absenteeism, and her uncooperative attitude toward her forelady. Wyatt testified, on the other hand, that she had never had any complaints from any supervisor about a lack of cooperation or for any other reason. When her forelady, Mrs. Boyd, was called to testify she was asked no questions about Wyatt's work and gave no testimony that would corroborate Brinegar's criticism of it. No evidence of any kind was offered to corroborate Brinegar's assertion as to her absenteeism.50 This employee had signed a union card on July 30, the same day Walley ques- tioned her about the matter. When the antiunion petition was first brought to her she refused to put her name on it. Shortly thereafter, however, in a conversation with Forelady Boyd the latter declared that Isaacs would not work under a union, that he had a building at Vicksburg to which he was prepared to move the plant, and that insofar as the petition was concerned "If you don't sign it, you know the Newton Company has no need for you noway." Wyatt thereupon signed. Earlier, 1 have related another conversation which Wyatt had with Boyd after her layoff in which the forelady told her that if she had gone to Brinegar or Walley and told them that she was sorry for having signed a union card she "probably never would have been laid off with the others " In her search for reemployment a few days 49Brinegar described her job as taping The grading sheet, however, desci ibes her work as sewing tabs Aycock testified that this was the work she had been doing for some time at the time of the layoff, although at an earlier date she had been taping 60 The Company offered in evidence the paycards of over 340 employees but Wyatt's was not among them. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD earlier Wyatt had called on Brinegar at his home. Wyatt testified, credibly, that on this occasion she told him that she had signed a union card but that she then needed work and in the future would not be for the Union. According to Wyatt, Brinegar was noncommittal on her prospects for reemployment.51 After talking with Boyd, Wyatt called on Walley and had a similar conversation with him. According to the employee, he concluded their meeting with the statement "I cannnot promise you that you will ever work for the Newton Company any more." 52 On November 16, Wyatt was recalled to her former job. Wyatt had the best earning record and almost 4 years more seniority than any of the hemmers. Yet she was laid off, whereas Cockrell, a nonunion member was kept. On the basis of the above findings it is my conclusion that Wyatt was laid off, not because of the various reasons assigned by Brinegar, but because of her adherence to the Union. Consequently, I find that her layoff was discriminatory. E. The allegations as to the pay raise; the evidence and conclusions with respect thereto The layoffs took place on September 17, a Thursday. As found earlier herein, on the following day the Respondent announced a general plantwide pay raise for all the remaining employees, effective the next Monday. The General Counsel alleged that this action constituted a violation of Section 8 (a) (1) in that it was made without notification to the Union, while a question of representation was pending, and for discriminatory purposes. The Respondent contends that this allegation is disposed of by the case of N. L. R. B. v. Cleveland Trust Co., 214 F. 2d 95 (C. A. 6). Adler testified that the raise was decided upon after Isaacs and he heard that their competitors were giving wage increases, and that it was granted because the industry is highly competitive and the Company had always followed a policy of paying the highest possible wages. The management officials at Newton did not learn of the decision until the day it was announced to the employees.53 In corrobo- ration of Adler's testimony the Respondent offered a letter dated September 10, 1953, and addressed to all members of the Southern Garment Manufacturers' Asso- ciation which was signed by Mr. W. Gordon McKelvey, general counsel for the Association and one of the attorneys of record for the Company.54 This corre- spondence stated that, due to increases in living costs, a number of the larger members of the organization were about to put into effect wage raises of from 8 to 10 cents per hour. It is not the function of this Trial Examiner to pass on the business judgment of the Respondent's management. On the other hand, the motive for the wage raise having been put in issue by the General Counsel's allegation, and the Respondent, on the other hand, having urged that its action was the only reasonable step it could have taken under the circumstances, the explanation of the latter must be judged in that light. I believe that the Cleveland Trust case is authority for the Respondent's contention herein, insofar as that case appears to hold that where there is no certified bargaining agent or majority representative, a wage raise granted while a representation question is pending and without notice to the petitioning union is not per se a violation of the Act. I agree with this position. N. L. R. B. v. Cleveland Trust Co., supra, at p. 100. That still leaves unanswered, however, the other aspect of the General Counsel's allegation which is that the circumstances surrounding the grant of this raise prove that it was made to discourage union activity. In support of this contention the Gen- eral Counsel argues that if one is to believe the Respondent's assertion that the Company was in dire economic straits at the time, then it is incredible that the manager of a business, acting from economic considerations, would have on 1 day laid off a large number of employees and on the very next day announced a general wage increase for those who remained. There is substance to this argument. The record contains detailed evidence on the source of the Respondent's labor supply.55 61 Brinegar testified that he remembered Wyatt's visit to his home but that he could not recall any mention of the Union in their conversation. 62 Wyatt's testimony as to her conversation with Walley was undenied. 63 Mr Brinegar testified that he learned of it either the same day or the day before. Feltenstein, the assistant manager, first heard of it when he saw an announcement posted on the plant bulletin board. 64 This exhibit was rejected by the Trial Examiner at the hearing. Upon reconsidera- tion, that ruling is reversed and the exhibit is hereby received in evidence 56 The grading sheet gives the home address and distance from the plant of each of the approximately 300 production workers in the company employ. THE NEWTON COMPANY 505 From this it is obvious that almost the entire plant complement of over 300 employees is drawn from the city of Newton , which has a population of approximately 3,500, from neighboring towns, most of which are smaller than Newton,56 and from the sur- rounding rural area, with only a few coming from points as much as 30 miles distant. The Respondent offered no evidence that it had any competitor in the garment industry which drew on this same labor market or that it feared any other industry in the im- mediate area would shortly raise the prevailing wage scale and draw away the Re- spondent's employees. Of even greater significance is the fact that most of the employees laid off on Sep- tember 17 were told that the Company was compelled to effect a general layoff neces- sitated by a cutback in production . Mr. Brinegar testified that the layoff was intended to be permanent and that few, if any, of the employees were told that there was any likelihood of recall . Upon these circumstances the normal reaction of the remain- ing employees would have been one of great apprehensiveness about their own job security and the likelihood of further layoffs. Certainly it would appear that on September 18 the Respondent had little reason to feel that at that point a wage raise was necessary in order to keep its personnel satisfied and to insure that they would not depart for more attractive employment elsewhere . Plainly, there was no urgent com- petitive need to grant such an increase . Moreover, in view of the Respondent's earlier testimony on its bank borrowings , excessive inventory, dwindling market, and the necessity of curtailing expenditures in justification of the layoff , it would hardly seem consonant with prudent business management to raise the wage level without some compelling need being present . Such financial considerations of the moment would certainly outweigh any desiie to keep up with another round of wage increases that some members of the industry might be granting , solely on the ground that to do so would be in keeping with the Company 's traditional practice . For these rea- sons, Adler's explanation that the Respondent decided on the pay raise because of the competitive nature of the industry and because it always tried to pay the highest possible wages is quite implausible . In view of these considerations and the fact that on the day before , as found above, the Respondent discriminatorily laid off 16 employees and during the preceding 7 weeks engaged in a campaign of interference with the Union's efforts to organize its employees , I am convinced that the wage raise, coming on the heels of the discriminatory layoffs, was designed to discourage further any union activity . Matthews Lumber Co., 96 NLRB 322, 333.57 Accordingly, I find that this action by the Respondent was a violation of Section 8 (a) (1).58 One last matter awaits disposition. Early in the hearing the General Counsel sought to introduce a letter from Carter, one of the attorneys for the Respondent, dated February 9, 1954, addressed to the Regional Director and carrying an attachment thereto.59 To lay a foundation for his offer of this document the General Counsel asked, in turn, that two of Respondent's attorneys, Watkins and Carter, take the stand. Mr. Watkins stated that he would comply only if requested to do so by the Trial Examiner. The Trial Examiner then did so . After testifying that he was un- 60 Except for Philadelphia , Mississippi , a point some 30 miles distant which according to the U. S Census Report of 1950 for Mississippi , page 54, had a population of 4,472. One employee resided there. sa The facts set forth above plainly distinguish the situation here from that in the Cleve- land Trust case, where the court held that the increases in question were not a violation of the Act because they had been discussed prior to the outset of any union organizational campaign , and the employer was impelled to put them into effect because of the unusual problems created by the inflation attendant on the Korean crisis, a tight labor market in the Cleveland metropolitan area, the raising of wages by its immediate competitors and the impending threat of a fieeze order by the Wage Stabilization Board. N. L. P. B. v Cleve- land Trust Co , supra, at 98-100. 18 Subsequent to the layoff the number of employees who "plussed " declined greatly. This fact was subject to varying interpretations One, advanced by the Respondent, was that the less efficient were terminated on September 17. This explanation , however, was not borne out of the record As appears above, many of those laid off were , in fact, the best earners in their respective classifications. Moreover , during the week of September 17, 115 of the employees plussed. Yet only 15 of those laid off were plussing that week. This meant that following the layoff approximately 100 plussers were left on the payroll. A second explanation , proposed by the General Counsel, was that the decline in plussing was due largely to the wage increase which , by raising the return per unit of production while leaving the old quotas in effect, made it easier for the employees on piece work to reach the minimum wage Although Mr. Meskill endeavored to refute this theory, Adler conceded that it was correct. s0 Marked for identification as General Counsel 's Exhibit No 6. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD able to identify the covering letter, Watkins was excused. Carter was then called, under the same circumstances as his associate. Carter identified the covering letter but stated that he needed further time to answer any questions that would identify the attachment. The hour being late, the Trial Examiner then recessed the hearing for the night. When, later in the proceedings, General Counsel returned to the matter and asked that Mr. Carter again take the stand, the Trial Examiner, having recon- sidered his earlier action in requesting the Respondent's attorneys to take the stand, and having concluded that it was error, stated that he would not again ask that Carter appear as a witness. The General Counsel then served a subpena ad testi- ficandum on Carter and the latter declined to appear in response thereto, principally on the ground that he was obviously being called to testify as to the letter, that Re- spondent's counsel had supplied the correspondence in question to the Regional Di- rector only for the purpose of furthering certain settlement negotiations which were underway at one point in the prehearing stage of the case and that, since both the Administrative Procedure Act and the Taft-Hartley Act encouraged settlements rather than litigation, the circumstances under which the General Counsel had obtained possession of the document rendered it inadmissible. Instead of electing to seek en- forcement of the subpena, the General Counsel then endeavored to lay a foundation for his offer of the letter via another alternative. Miss Vernell Flesch, assistant in the mail, files, and record unit for the Regional Office, was called. Miss Flesch testified that she was on duty the morning of February 10, 1954, and that the stamp impres- sion on the exhibit resembled that which would have been made by the stamp in her possession when she sorted and opened the morning mail in the course of her normal office routine on that date On the other hand, she testified that her super- visor occasionally stamped incoming mail and that she had no independent recollec- tion of ever having seen the document before or of having stamped it. Nor further testimony was offered in support of the General Counsel's motion to receive the letter and its attachment. The General Counsel did not call either the addressee of the correspondence or any witness who, incidentally, might have been subject to cross- examination on the settlement issue raised by the Respondent's continuing objection. On the ground that an insufficient foundation had been laid, the Trial Examiner denied the General Counsel's motion to receive the exhibit and directed that it be placed in the rejected exhibit file. In his brief, the General Counsel asks that the Trial Examiner reconsider this ruling. I have. The original ruling is hereby reaffirmed and the document will remain in the rejected exhibit file. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section 111, above, occurring 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 among the several States, and tend to lead to labor disputes buidening and obstructing commerce and the free flow of commerce. a V THE REMEDY As it has been found that the Respondent has engaged in and is engaging in un- fair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Since it has been found that the Respondent discriminatorily discharged 2 employees on July 31, 1953, and 16 others on September 17, it will be recommended that the Respondent offer to Edith Fay Dansby, Violet Prior, Dorothy Harris, Billy Hollings- worth, Sarah Hollingsworth, Bernice Loper, Bonnie Pace, Estelle Sessions, William Sessions, Alford Richardson, A. Y. Wilson, Waurean Wilson, and Yvette Woodward, immediate and full reinstatement without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings that they may have suf- fered by payment to each of a sum of money equal to that which he or she normally would have earned as wages from the respective dates of the discrimination against each of them to the date of the Respondent's offer of reinstatement, less net earnings during said period. As the Respondent has already reinstated Jimmy Lee Aycock, Elise Robinson, and Agnes Wyatt 60 and has offered reinstatement to Charlotte Nester Ming and Duval Rigdon 61 it will not be recommended that a further offer be made to these employees. However, it will be recommended that the Respond- ^ These last theee named were reemployed on November 16, 1933 81 According to Rigdon, he was offered reemployment on January 14, 1954. Airs. Ming testified that early in January (she could not recall the exact date) the Company asked whether she cared to return to work and that she declined. SACHS-LAWLOR COMPANY 507 ent make whole these last named employees for any loss of earnings they may have suffered because of the discrimination against them, by paying to each a sum of money equal to that which he or she would normally have earned from September 17, 1953, until the date of reinstatement or the offer of such, less net earnings during the said period. The back pay provided for herein shall be com- puted on a quarterly basis in the manner established by the Board in F W. Wool- worth Company, 90 NLRB 289; earnings in one particular quarter shall have no effect on the back-pay liability for any other period. Having found, further, that the Respondent, by various acts, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by the Act, and because Respondent's discriminatory discharges "go to the very heart of the Act" (N L R B. v. Entwistle Manufacturing Co, 120 F. 2d 532, 536 (C. A. 4)) and indicate a purpose to defeat the self-organization of its em- ployees, I am persuaded that the unfair labor practices committed are related to other unfair labor practices proscribed and that the danger of their commission in the future is to be anticipated from Respondent's conduct in the past. Accord- ingly, in order to make effective the interdependent guarantees of Section 7 and thus effectuate the policies of the Act, it will be recommended that the Respondent cease and desist from in any manner infringing upon the rights of employees guar- anteed by the Act. May Department Stores v. N. L. R. B., 326 U. S. 376, 386- 392. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I have reached the following: CONCLUSIONS OF LAW 1. United Garment Workers of America, AFL, is a labor organization within the meaning of the Act. 2. By discriminating in regard to the hire and tenure of employment of the 18 individuals referred to in the preceding section entitled "The Remedy," thereby discouraging membership in the United Garment Workers, AFL, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (I) of the Act. 3. By such conduct, and by other acts interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The above-described unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce and constitute unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent has not engaged in the unfair labor practices alleged in the complaint of discriminating in regard to the hire and tenure of employment of those employees listed in Appendix A, nor has it interfered with, restrained, or coerced its employees by any acts or conduct other than those found herein to have been committed in violation of the Act. [Recommendations omitted from publication.] Sachs-Lawlor Company and International Association of Ma- chinists District Lodge No. 86, AFL, and International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 775, AFL, Petitioners . Case No. 30-RC- 1011. April X8,1955 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Clyde F. Waers, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 112 NLRB No. 74.