Sardis Luggage Co.

446 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD Accordingly, the Board set aside an election because of these indi- vidual interviews. Recently, in Oregon Frozen Foods Company,3 the Board reiterated the continued applicability of that doctrine. Al- though in the present case employees were interviewed individually in their homes and on their routes as well as in company offices, the effect upon employees was the same. We-find that by the aforesaid in-, dividual interviews conducted by the Employer's top management per- sonnel, the Employer interfered with the employees' freedom of choice in the selection of a bargaining representative.4 We shall, therefore, order that the election be set aside and direct that a new election be held. [The Board ordered the election held on April 19, 1955, set aside.] [Text of Direction of Second Election omitted from publication.] 3 Oregon Frozen Fonds Company and Ore-Ida Potato Products, Inc., 113 NLRB 881. 4 Mall Tool Company, 112 NLRB 1313 , is distinguished on its facts . In view of our decision to set aside the election upon the ground stated above, we find it unnecessary to consider the Petitioner's other objections. Sardis Luggage , Company and United Furniture Workers of America, CIO, Case, No. 33-CA-376. October 18, 1955 DECISION AND ORDER On•March 21,1955, Trial Examiner Henry S. Sahm issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed -exceptions to the Intermediate Report and a supporting brief; the General Counsel filed a brief in support of the Intermediate Report. The Board has reviewed the rulings of the Trial Examiner made 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 case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial .Examiner, with the following modifications. '.The Respondent contends that the Trial Examiner was biased and prejudiced against it. We have carefully examined the entire record and find nothing to support such an allegation. 2 The Intermediate Report contains several minor inadvertences none of which affects the Trial Examiner 's ultimate findings or our concurrence therein. Included in such inadvertences are several references to Glover Jackson's ' discriminatory "discharge" rather than to the -Respondent's discriminatory refusal to recall him , as alleged in the 'complaint. - - 114 NLRB No. 90. SARDIS LUGGAGE COMPANY- 44-7 1. The Respondent contends that the Trial Examiner has erred 'in making credibility findings, and argues that there are inconsistencies and contradictions in the testimony of the General Counsel's witnesses which render them unworthy of belief. We have carefully considered the record in the light of this contention, but are not convinced that a clear preponderance of all the relevant evidence shows that the Trial Examiner's resolutions of credibility were incorrect. Accordingly, we adopt the Trial Examiner's credibility findings and his findings of fact based thereon.3 2. We agree with the Trial Examiner that the Respondent discrimi- natorily discharged James Childress. In so doing, we find it unneces- sary to consider or pass upon his alternative theory that the Respond- ent's imposition of onerous work conditions upon Childress was a constructive discharge. 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, Sardis Luggage Company, Sardis, Mississippi, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Coercively or otherwise unlawfully interrogating employees concerning their membership in or activities on behalf of United Fur- niture Workers of America, CIO, or any other labor organization of its employees, in a manner constituting, interference, restraint, or co- ercion in violation of Section 8 (a) (1). (b) Threatening employees with discharge or economic reprisal for engaging in union activities and/or other concerted activities. (c). Discouraging membership in United Furniture Workers of America, CIO, or any other labor organization of its employees, by discharging any of its employees or by discriminating in any other manner in regard to their hire and tenure of employment or any term or condition of employment. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right guaranteed in Section 7 of the Act, to form labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted ac- tivities for the purposes of collective bargaining or other mutual aid Hearst Publishing Company, Inc. (Los Angeles Examiner ,Division), 113 NLRB 384; Standard Dry Wall Products , 91 NLRB 544 , enfd. 188 F ` 2d 362 ( C. A 3) ; N. L. R. B. v. Univei`sal Cahier`a,Corp', 190 F 2d 429 ( C. A. 2). In agreeing with the Trial Examiner's credibility findings, we note that he explicated very carefully his,bases , for them. The Respondent contends that the Trial Examiner was himself doubtful of the accuracy of his findings. It bases this contention on his statement in the Intermediate Report that he had only a belief as to what the facts were , rather than knowledge of them. Belief rather than actual knowledge is, of course , the basis upon which every trier of facts must reach his conclusions . We are satisfied that the credibility findings of the Trial Examiner in this case are based upon the usual criteria applicable to such findings. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or protection, or to refrain from any and all of such activities, except to the extent that such right may be affected by an agreement requir- ing membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer James Childress, Ethel Childress, Louise Durham, and Glover Jackson immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges. (b) Make whole Ethel Childress, James Childress, Louise Durham; and Glover Jackson for any loss of pay each may have suffered by reason of the discrimination in the manner provided in the section of the Intermediate Report entitled "The Remedy." (c) Post at its office and place of business copies of the notice at- tached to the Intermediate Report marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by the Respondent Company's representative, be posted immediately upon receipt thereof and be maintained by it for a period of at least sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent Company to insure that said notices shall be posted., Reasonable steps shall be taken by the Respondent Company to insure that said notices shall not be altered, defaced, or covered by any other material. (d) Preserve and make available to the Board or its agents, for ex- amination and copying, all payroll records; social-security payment records, timecards, personnel records and report's, and all other rec- ords necessary to analyze the amount of back pay due and the -rights of employment under the terms of this Order. ' • . (e)' ,Notify the Regional Director for the Fifteenth Region in writ- ing, within ten (10) days from the date of this Order, what steps it has taken to comply therewith. * This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" the words "A Decision and Order " In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order " INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge and amended charges filed by the United Furniture 'Workers of America, CIO, herein called the Union, against the Sardis Luggage Company, the Respondent herein, the General Counsel of the Board issued his complaint on Sep- tember ^ 10, 1954. ) The complaint alleged that the Respondent Company had en- gaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) and Section 2-(6- and (7) of the National Labor'Relations Act, as SARDIS LUGGAGE COMPANY 449 amended (61 Stat. 136), herein called the Act. Copies of the charges, complaint, and notice of hearing were duly served upon the Respondent and the Union. The complaint alleges, in substance, that the Respondent violated Section 8 (a) (1) of the Act in that it interrogated its employees about their own and other em- ployees' union membership , activities, and sympathies; threatened employees with reprisals if they engaged in union activities ; created an impression of surveillance of the employees' union activities; and threatened to close the plant if it became union- ized. The complaint also alleges that the Respondent engaged in unfair labor prac- tices within the meaning of Section 8 (a) (3) of the Act by discharging James Childress, Ethel Childress, and Louise Durham and refusing to rehire Glover C. Jackson because of their union activities. Respondent's answer admitted the jurisdictional allegations of the complaint and that the Union was a labor organization within the meaning of Section 2 (5) of the Act, but denied generally the commission of any unfair labor practices. Pursuant to notice, a hearing was held in Sardis, Mississippi, and Batesville, Mis- sissippi,) from October 18 to 23, 1954, inclusive , before Henry S. Salim, the duly designated Trial Examiner. All parties were represented by counsel and were afforded full opportunity to participate in the hearing, to introduce relevant evi- dence, and to argue orally. Briefs were filed by the General Counsel and the Re- spondent and have been carefully considered. During the course of the hearing various motions were made by the parties and after the conclusion of the hearing both parties moved to correct the transcript of the record in certain specified details. The rulings of the Trial Examiner with respect to the motions to correct the transcript were granted except in two instances not relevant to the disposition of the issues in this case and will be found in the record of this case . All other motions are disposed of in this report. Upon the entire record in this case, upon consideration of the arguments and mo- tions of counsel, including the briefs filed by the parties and citations of cases alleged to be dispositive of the issues in this case , and from his observation of the demeanor of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT It is conceded that the Respondent Company, which is engaged in the manufacture of luggage, manufactured and sold finished products , during the 12-month period ending June 1954, valued in excess of $250,000, of which in excess of $225,000, in value, was sold and shipped directly to customers outside the State of Mississippi. It is found, therefore, that the Respondent is engaged in commerce within the mean- ing of the Act and it is subject to the jurisdiction of the Board. II. THE LABOR ORGANIZATION INVOLVED It is admitted and found that the Union is a labor organization within ' the mean- ing of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent's-plant, located in Sardis, Mississippi , a town of 1,913 people,a manu- factures luggage. It began production on May 11, 1953 , and in October 19533 the plant employed approximately 85 people. Sometime around July 1953 4 the em- ployees began to discuss a union . In August, William Melvin Arnold, who at one time worked for the Respondent, went to Memphis, Tennessee , at the request of his former coworkers, and arranged to have a union representative come to Sardis to discuss with the employees the possibility of organizing a union at Respondent's plant. Shortly afterwards , Arnold was contacted at his home by Edward L. Wertz, the union representative , with respect to holding a meeting for the purpose of 'Due to the courthouse at Sardis being under repair, it was necessary to hold the hearing at Batesville , Mississippi , on October 21 and 22. 8 United States Census Bureau , 1950 Census. s All dates refer to the, year 1953 unless otherwise indicated. t This date is based ' on Arnold 's testimony that he was employed by the Respondent about May 20 and that the employees began to discuss a union about a month after he began torwork for the Company. • , I 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD planning an organizational campaign at the Respondent's plant. A meeting was scheduled for the evening of August 14 at Arnold's home. Two employees, James Childress and Glover Jackson, alleged discriminatees in this case, were at Arnold's home that evening but the union organizer failed to appear. A second meeting was then arranged to be held at Arnold's home on August 18. James Childress, his wife Ethel (also an alleged discrimmatee), Glover Jackson, and Carl Brown, a company employee, were present at this meeting at which Edward L. Wertz, the union or- ganizer, distributed, to each of the four employees present, union membership appli- cation cards. These cards authorized the Union to act as bargaining agent for the signers. James Childress and his wife Ethel, Jackson, and Brown each signed a card and also took unsigned union cards with them to distribute to the employees at the plant. They were asked by the union organizer, Wertz, to solicit the em- ployees to sign these cards for the eventual purpose of having the Union represent the employees in collective-bargaining negotiations with the Respondent. Jackson obtained the signatures of 9 employees; Ethel Childress, 13 employees; James Childress, 12 employees, and he also received "some" signed cards from Victor Tid- well, another employee.5 Carl Brown did not solicit any employees to join the Union. He testified that he returned the unsigned cards which were given to him by James Childress. The signed cards were then mailed by James and Ethel Childress and Jackson to Wertz, the union organizer, on or before August 21, and he testified that he received 46 signed cards. On August 21, the employment relationship of James and Ethel Childress with the Respondent Company terminated. The Respondent's plant was formally dedicated on August 24, at which time the newly constructed plant was opened for inspection to the public and the Respondent's business clients. That same evening a meeting was held at the courthouse in Sardis which was attended by company employees and business people of the town. The meeting was addressed by 2 Sardis bank officials, a merchant of the town, and 2 of the employees.6 The'substance of the collective remarks made by the speakers at this meeting was to the effect that because the employees had excellent working' conditions and were being treated well by the Respondent, there was no need for a union at the plant.? A vote was then taken by J. W. West, cashier of the Sardis Bank, as to whether or not a union was favored. All those who expressed a pref- erence voted against a union and no one voted in favor of a union Bryan Young, cashier of the other bank in Sardis, suggested that if the employees felt that they needed any representation in dealing with the Respondent Company, the business people of the community would be agreeable to forming a panel which would include the Mississippi Power and Light Company, to represent the employees in their dealings with the Company. At the last union meeting held on August 18, it was arranged to meet again on August 25 at Arnold's home. Wertz testified that when he came to Arnold's home on August 25, he was not there. Wertz finally located Arnold who he described as being "highly excited and in a nervous state." Arnold told him that Ethel and James Childress no longer worked for Respondent and that a town meeting was held the night before with respect to the Union. In explaining the reason for a change in the meeting place, Arnold said "there was a flare-up," and that the sched- e Tidwell obtained union cards from Arnold at his home the night after the meeting. Travis Taylor, who like Tidwell , is no longer in Respondent's employ, also obtained the signatures of two employees. Taylor was discharged on August 28, 1953. " Mrs. Brooks Johnson was one of the employees. 7 James L Bolton, an employee, testified that one of the bank officials said : ". . . they would rather not have a union up there. The town had worked hard to get the plant there and going to help the town, and so forth and so on. I don't remember just what he did say." Then at page 535 of the transcript appears the following testimony of Bolton : Q. Do you recall whether he [West] said anything about the plant remaining if the Union came in? A. It seems to me like he might have said it might shut down if the Union came in there. Q Do you recall who conducted the vote A. He did [J W. West, Cashier , Sardis Bank]. Q. Just what do you recall about how that voting took place 9 A. I think it was about 35 votes against it [ the Union ] and the rest of them didn't vote either way, 35 or 40. Q. About how many employees is your estimate of, how many were down there? A. I imagine all of us were there. I don't know exactly how many. SARDIS LUGGAGE COMPANY 451 uled union meeting had been changed from his home to the spillway at Sardis Dam, outside of town. Wertz testified that he asked Arnold to accompany him in order to show him the way to the meeting place but he refused.8 Wertz then drove to the new meeting place at the Dam, waited some time , saw no one appear, whereupon he left. Jackson testified that while engaged in conversation at the plant with some of his coworkers the morning after the scheduled union meeting , which was supposed to have been held on August 25 at Sardis Dam, one of the employees inquiied if the meeting had been held. Jackson testified that when he said he did not know as he did not attend, Bowden, his foreman , spoke up and said that he knew Jackson was not at the meeting because "we watched your house last night." Bowden on his direct examination gave his version of this incident as follows: "Somebody asked LJackson ] did he go to the meeting [at the Dam] last night . He started to say `No' or something. He never did get right out with his answer. I butted in. Always joking and carrying on with the boys over there, that I could vouch for him. That I had passed his [Jackson's] house the night before and seen a light." Bowden went on to explain that he often passed Jackson 's home in driving to the bus station On August 31, a petition was filed by the Union (Case No. 32-RC-684) with the Board seeking an election for the Respondent 's production and maintenance em- ployees. The petition averred that the Union requested the Respondent on August 26 to recognize it as the bargaining representative for said employees . The petition for an election was withdrawn by the Union on September 14. Louise Durham was discharged on October 12 and Glover Jackson was laid off on November 3 and never recalled. It is against this background that the Respondent denies these alleged unlawful acts constituted interference , coercion, or restraint in violation of Section 8 (a) (1). Respondent also denies that the employment terminations and refusal to rehire were discriminatory within the meaning of Section 8 (a) (3). On the contrary, it is argued that the Respondent did not discharge Ethel and James Childress but that'they quit voluntarily; Louise Durham was discharged for inefficiency; and Glover Jackson was not recalled ' because of his age and poor physical condition. B. The alleged interference , restraint, and coercion Glover Jackson , a former employee of Respondent's, testified that as he was pre- paring to leave the plant at the close of the day's work on August 20, James Bowden, his foreman in the box department , told him that Mr. Grant , who is in charge of the plant, would like to see him. It was stipulated by the parties that Grant was a supervisor within the meaning of Section 2 (11) of the Act. While Jackson was waiting outside of Grant's office, Victor Tidwell, another employee, left Grant's office, whereupon Jackson entered. Jackson testified that Grant accused him of, "taking a leading part in getting the union here." When Jackson denied this, Grant said, according to Jackson, "Oh, yes, you are. Ain't no use in lying about it. I know all about it and you might as well come across and tell the truth about it. . You are taking a leading part and we absolutely are not going to have no union here and we;.will take out and quit first. . Before we came down here and put in this factory, we had a preference of going to Georgia, Alabama , Louisiana or Mississippi. After we investigated we found out that Mississippi had the best labor working con- ditions, and that is the reason we located here at Sardis . . . . Now, we have come here and I built an $18 ,000 home . before we will have a union here, I will just give that amount on my home and we will take out and quit. You are taking a leading part in this thing. . Now you are not the only one that is mixed up in this thing. I am going into the bottom of it and I am going to get them all. . . . If you are taking part in this thing, I am going to make it plenty hard on you ." Accord- ing to Jackson , Grant also said, "You went along with Jack Childress and Mrs. Childress and Carl Brown to a union meeting at Bud Arnold 's home. Jackson testified that Childress and his wife were both working for the Respondent when this conversation was alleged to have occurred and that Grant told him he knew both 8 Richard K. Holder , an employee of the Company, testified that he and 'James Bowden, a foreman of Respondent 's, were at Sardis Dam that evening. He'was hazy as to why they were there on that particular evening but did testify that he saw James Childress and his wife, Ethel, at the Sardis Dam Bowden denied that he went out to the Dam "to spy" but he admitted that he and Holder did drive out to the Dam one evening at the end of August. At that time and place, he testified that he saw James Arnold , an employee, Lance Scallorn , a company foreman, and also James Childress. 387644-56-vol. 114-30 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD James and Ethel Childress were taking active parts in the Union's organizational campaign. When Jackson acknowledged on his direct testimony that he had attended the meeting, and he was asked why he had denied it to Grant, he testified, "Well, I was afraid he would fire me right on the spot, at least I was afraid he would." Later, on August 25,9 Jackson testified, that Samuel J. Holtzman, president of the Respondent Company, called,him,into his office. Also present at the time were Bowden, who was Jackson's foreman, and Grant. Holtzman said, according to Jackson, "What's all this about going around here getting the union started around here." When Jackson denied taking any part in union activities, Holtzman, accord- ing to Jackson, said, "You went to the union meeting down at Bud Arnold's along with Childress and his wife and Carl Brown." Then, Jackson testified, "Grant spoke up and said, `Glover, you are just lying you might as well tell the truth about it. Jack Childress 10 done told me all about it. I know all about it. You might as well tell me about it.' " Then Holtzman said, according to Jackson, "I am going to look. into this thing. If you are guilty of this, I am going to make it hard on you." Jack- son also testified that Holtzman accused him of "going about the factory" to solicit employees to sign union membership application cards. When Jackson denied doing this, Jackson testified that Grant "butt in and said it was so and I might as well come on across and tell the truth about it." All this testimony of Jackson's was denied by Holtzman, Grant, and Bowden." On August 27, 2 days after Jackson had this conversation with Holtzman in his office, Jackson went to Grant's office and admitted he had not told him or Holtzman the truth with respect to his union activity and then proceeded to tell him what he knew about union activity in the plant. After Jackson finished his recital,12 Grant, according to Jackson, told him to bring to his office any unsigned union cards that he still had in his possession which Jackson agreed to do. However, and this is un- contradicted, Grant sent Bowden, Jackson's foreman (who was accompanied by Scallorn, another foreman), to Jackson's home the same evening 13 and Jackson handed over the unsigned union cards to Bowden at that time. These cards were in an envelope addressed to Wertz, the union organizer. A day or two after this incident, Jackson testified that Bowden told him at the plant that Grant's orders were that he was "not to be talking to any of these other workers here." When Jackson' remonstrated with him, Bowden, according to Jack- son, said, "That is the orders. Mr. Grant will get you." When Bowden testified, he denied saying this. On November 3, Jackson, along with six other employees of Respondent's box de- partment, was laid off from his job. The same day, and after being notified of his layoff, Jackson testified that he asked Bowden, his foreman, if he believed the Com- pany "will ever call me back." Bowden replied, according to Jackson, "I don't know about you, Mr. Jackson. I know there are some of them that will never be called back." All of the box department's laid-off employees, with the exception of Jackson, were reinstated subsequently to their former positions.14 Willard Bratton went to work for the Respondent in May 1953 and quit on Au- gust 25, 1953. He also worked a couple of weeks for the Respondent in the summer of 1954. On or about August 20 he was solicited by James Childress to sign a union card which he did. A few days later, as he was leaving the plant, at the close of work, and walking toward his automobile on the Company's parking lot, Bratton testified that Grant approached him and engaged him in conversation. Bratton tes- tified that Grant said to him, "'Whose side are you on?' I said, `I don't know what you are talking about,' and he [Grant] said, `Well, you know all this union business g The testimony concerning the exact timing of some of the events is ambiguous as to specific dates so that the findings of fact made herein result from the Trial Examiner's attempt to reconcile the evidence and determine not only the chronological sequence in which these events occurred but also the specific dates. However, the record is clear, and it is found, that Grant first called Jackson into his office on August 20 "James Childress, one of the alleged discriminatees, is also referred to by the various witnesses as Jack Childress. 11 Bowden also denied that Grant ever told him to see that Jackson spoke to none of the employees during working hours or that Grant's attitude toward the box department employees "became cold" with the advent of the Union 12 Jackson also testified, "When I told him the whole story . . . [Grant] said, `Why didn't you tell one this before they had the meeting at the courthouse.' 17 Bowden testified it was the Thursday night after the open house. 14 Questions asked by Respondent's counsel indicate that 2 employees were recalled the latter part of November ; 2 more in January 1954,; and the remainder in February. SARDIS LUGGAGE COMPANY 453 that has been going on around here .' I said, 'I have heard a little something about it, and he asked me again, 'Whose side are you on.' I said, I am on whichever side I think means the most money to me and best working conditions , and he told me to think it over and he would see me the next day and we would talk more about it." Bratton testified that on August 24, Scallorn , his foreman, told the assembled employees in his department , "Fellows, we are going to have a meeting at the Court- house tonight and it will , be, good for all of you to be there ." Bratton also testified as follows: ". . . 10 minutes later, [Scallorn] came around and said, 'I understand it is compulsory that you be at that meeting."' Bratton testified that two Sardis bank officials and a local merchant addressed the meeting . When Bratton was asked what was the general subject of the speeches , he answered , "Well, it seemed to me that they were trying to put over the point that we didn't need a union at the plant, that was the general idea. They was telling us the bad points of the Union. . Well, after the speeches were made, Mr. J. W. West [a bank official] said, 'How about us having a vote and seeing who wants a union and who don't want a union,' and first he said, 'everybody that is in favor of a union hold up his hand.' I didn't see a hand. He said, 'everybody who is not in favor of a union hold up their hand.' " Bratton testified that "they voted against the Union." On August 25, Bratton informed Scallorn that he was quitting his job. Approxi- mately 5 minutes later, Bratton testified, Grant called him into his office and asked him why he was quitting. Bratton testified, "I told him I didn't like the way they handled the meeting at the Courthouse and the way they were going about that union deal we were trying to get, and I was just fed up with it." Bratton in describing the courthouse meeting on his direct examination said, "They more or less pistol-whipped us all.. . When he was asked on cross-examina- tion what he meant by the expression "pistol-whipped," he testified, "They more or less forced the people-never forced them, either but they showed them the bad points of a union and then asked for a vote ." Bratton also testified that as far as he knew there was no union representative present at this meeting and that no one spoke in favor of the Union.15 On cross-examination Bratton testified that Grant asked him to name the em- ployees who signect union cards and which of the employees were doing the solicit- ing. Bratton refused. Bratton testified that he said to Grant, "You fired Jack Childress for it, didn't you?" and that Grant replied, "No, we fired Jack because he couldn't make production." When Bratton was asked on cross-examination if there were other employees besides Childress who were soliciting employees to sign union cards, he answered, "To my knowing, there weren't but a very few of them." James L. Bolton, who is presently employed by Respondent, testified that his fore- man, James Bowden, told him "they was having a town meeting over at the Court- house tonight 'I would like for you to attend.' " At this meeting, Bolton testified, that West, a Sardis bank official, said, " 'They would rather not have a union up there.' . It seems to me like he might have said it [the plant] might shut down if the union came in there." Bolton also testified that it appeared to him as if all of Respondent's employees were in attendance at this meeting. He also testified that when he received a letter from the Union (General Counsel's Exhibit No. 7),16 Bowden, his foreman, "asked me if I got a letter. . . . I told him I did." Louise Durham , one of the alleged discriminatees in this case, testified that on August 24, her forelady, Ruby Jones, who is forelady of the sewing department of the Respondent Company, told her that "there was going to be a meeting of the business men at the courthouse and all employees were invited , and if we were in- terested in our jobs to be sure and try to be there." 17 Durham testified that she -attended. the meeting and saw the following foremen of Respondent there: Ruby -Jones, Harry Britt, James Bowden, and Lance Scallorn . She then went on to testify '6 On his cross-examination , Bratton testified that when Grant asked him why he was quitting, he told him, "Well, after that courthouse meeting the other night we had over there, and the way you all handled the union situation, I just had enough of it and I -don't want to work here anymore." 'o See footnote 20, infra 17 Ruby Jones, on her direct examination , testified that she told the employees in her department "that the business men were having a meeting at the courthouse and had asked me to invite them to come . I told them it might be to their interest to come." She named a "Wade Park " as the person who had extended the invitation . She testified that while driving in her automobile the $uuday afternoon before the Monday meeting, she coincidentally met Wade Park and; ",He told me that he would appreciate It, if I -would tell them In come to the courthouse." ' 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as follows: J. W. West, a bank official, spoke and stated that he did not believe thee plant needed a union; Bryant Young, another Sardis bank official, voiced the same opinion; Mrs. Brooks Johnson [a company employee] spoke of the excellent working conditions at the plant; and Saul Diamond, a local merchant, told those attending the meeting that since the plant had been in operation for such a short period of time that he did not believe the employees were in a position to determine as yet'whether they really wanted a union. A vote was then held, with all those who voted, voting against the Union and none voting for the Union. Bryant Young, one of the bank officials, then told those present that if the plant employees needed any representa- tion in bargaining with the Respondent Company, the businessmen and the Missis- sippi Power and Light Company, which he said was instrumental in inducing the Re- spondent to locate in Sardis, would establish a panel to represent them in any such negotiations. Durham testified that the Friday following the courthouse meeting, which would' be August 28, Grant came to where she was working at her machine in the plant and spoke to her and another employee by the name of Picott. Grant told them, Durham testified, "that he was disappointed in us signing those union cards, that it was that the Childresses is tried to cause trouble. They was doing it and that he knew we signed cards because our friends had betrayed us and had told us that Mr. Grant would never know that we signed the cards but said our friends had betrayed us." When Durham was asked on her direct examination whether Grant stated which of her friends had betrayed her, she answered, "Childresses." Durham continued, "and he went on to tell us the Childresses weren't fit for us to associate with, and' he also told me that Mr. Russel Barefield [mayor of Sardis] told him that I had talked to him about it that Friday afternoon,19 and that he considered Russel Barefield one of the best friends he had in Sardis, and he hoped that would be the end of our activ- ities as far as the union was concerned." Durham continued her testimony as follows: He [Grant] told us that the[y] come to Sardis to operate that factory without a union and that they would not,operate,under a union, that they would close the doors. He was glad they caught it before they got too organized, because they would have to close the doors before they would operate under a union. Durham testified that sometime during the following week James and Ethel Childress visited with her at her home. The following morning, while she was working at her machine in the plant, Durham testified that Grant approached her "and asked me if I didn't have company the night before . . . and he asked me if it was the Childresses and I said it was and he [said] `if they came back, better not to ask therrc in, not to have anything to do with them.' " Harry W. Britt, foreman of the Respondent's cutting department, testified that on August 31, Durham came to him and asked to see Grant. Durham said, according to Britt, that she wanted to tell Grant she had signed a union card because, "I am sorry and I want to talk to him. I haven't been able to sleep or eat over the week- end." He delivered the message to Grant, Britt testified, and Grant told him to, send Durham to his office which he did. Shortly after this alleged conversation, Durham testified that her forelady, Ruby Jones, told her during working hours at the plant, "that'there was some men coming to talk with her about the Union and she had to know how all her operators felt about it, and I told her that I didn't believe that a union was the wrong thing because there were too many people belonged to unions for them not to be for the good of the people, and she went on to tell me about how bad it was and strikes and riots and so on and so forth, it would even be dangerous to work up there if they did have a union there, and I told her that I was neither for nor against the Union. I couldn't possibly see how it was wrong for the working class of people." Durham also testified that Ruby Jones told her that she knew all of the employees who had signed union cards. Ruby Jones, on her direct examination , denied both these incidents ever occurred. Durham testified that on September 4 she received a letter from the Union (General Counsel's Exhibit No. 7),20 and-that same afternoon Ruby Jones told her that she 28 James Childress and his wife had left the employ of the Company 1 week earlier on August 21. 19 This is believed by the Trial Examiner to be a reference to Friday, August 21, the day on which the Childresses' employment with Respondent terminated. 20 This letter, in part, characterizes certain of Respondent's actions as "Anti-Union" and requests the addressee to "work for and support your Union." SARDIS LUGGAGE COMPANY 455 would be receiving a letter from the Union and "that to show our loyalty to Mr. Grant, we should bring the letter in to Mr. Grant, and I told her that I felt mail was personal, and I didn't think we should be required to bring the letter and she said it was just to show that we was loyal to the Company." Durham testified that she complied and handed over the union letter to Ruby Jones. On her direct examination, Jones denied that she had ever said this. The following day, Durham testified, she went to Grant's office to speak to him with respect to her production record. During this conversation, Durham testified that Grant told her one of the ;merchants in Sardis had, informed him that she `.`was still in favor of the Union." Durham testified that she attempted to elicit from Grant the name of the merchant who had told him this. He was noncommittal, Durham testified, whereupon she stated to Grant: "I had told it to one merchant and that was Russel Barefield [mayor of Sardis]. He [Grant] said, well, that was my business if I still wanted a union, but I told him how I felt about it at the start. . I told him I was neither for nor against it, and I told him that I didn't say I still wanted a union, . but I signed the card and I wouldn't say I didn't and he went on to tell me I owed the people of Sardis an apology for signing a union card. He said, those people went to all the expense of putting that factory up there and then we go and try to bring a union in there and they wasn't going to have it. And I told him I 'wasn't going to apologize to them, that I went to Mr. Barefield because I thought maybe that it might be against the law, signing a union card. I didn't know any- thing about the state laws concerning that and that was the reason I went to Mr. Barefield, but I found out since it wasn't anything to be ashamed of and I hadn't broken the laws and I wasn't going to apologize to anybody for signing a union card." About a week after the alleged above-related conversation, Durham testified that Ruby Jones came over to where she was working and told her that "Mr. Grant and she had something they wanted to show me." Thereupon, Durham testified, Jones read to her what was written on a typewritten sheet of paper 21 "It said that there was some men 22 coming around to talk to the employees that signed the union cards or something to that effect. That we didn't have to talk to them if we didn't want to and it would be better not to talk to them. And she went on to tell me that she didn't want me to tell them that she asked me to bring that letter back down." 23 Four nights later, a National Labor Relations Board investigator interviewed Durham at her home at which time she signed a written statement.24 The same day that Ruby Jones brought to Durham's attention the Company's written statement with respect to employees being questioned by investigators, she went to Grant, she testified, and asked him to return the union letter to her. In reply to this alleged request, Durham testified that Grant refused to return the union letter she had turned over to Ruby Jones. During the same conversation, Durham testified, that she discussed with Grant the matter of the company notice which Jones showed her advising employees that they need not talk to any investigators who might seek to interview them. Durham testified that Grant said to her, "The ones that, talk will be the ones that will have to go to Court:" Durham testified that' she, replied: to this^ statement of Grant's.as follows: "I didn't have anything to be ashamed of and I wouldn't be afraid to go to court and tell the truth. . . . And he said, `the ones that talked, that signed state- ments would be the only ones subpoenaed to court and it would be better not to talk to them.' ' Durham testified that sometime during the first week in October, she asked Grant a question about the operation of her machine and while he was looking over the This notice, Jones testified, was handed to her by Grant, who instructed her to read it to each of the employees in her department. It was stipulated that this same notice was read by all the foremen in the various departments to the employees under their respective' supervision. 22 The record reveals that the men referred to in this company notice were National Labor Relations Board investigators. 23 This is found to be an unmistakable reference to the letter Durham received from the Union on September 4 and which, according to her testimony, Jones asked her to turn over to Grant as an indication of her loyalty to the Company 94 Durham testified that several days after she gave the Board investigator this state- ment, she told Ruby Jones, "That I talked to him and that I didn't have anything to deny to anybody, that I told the truth and I didn't have anything to hide from Mr. Grant or anybody . . . and that I wasn't ashamed to talk to these people." Jones, on her direct examination, denied this conversation ever took place. See, however, footnote 97, infra. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD machine, he asked her if she had seen the Childresses lately. She told him she had, and according to Durham , he said, "Well, he was sorry about that , he had warned me about the matter before, he talked to me about that , and I told him again that I wasn't mad at the Childresses because I signed the card , because they had been my friends, and they didn't make me sign the card . I did it on my own knowledge." Mary Russel, the daughter of a former employee, Victor Tidwell, was employed by the Respondent until November 1953, when she was laid off from her job by Grant. At the time she was laid off, Russel testified , Grant assured her that when business conditions warranted it, he would recall her. The Respondent, she testi- fied, never called her. Sometime after August 24, the date the plant was formally opened, Russel testified that Holtzman, Respondent's president , called her into his office. She testified that Holtzman, in the presence of her foreman, Scallorn: talked to me about the union and asked me did I sign a card and I told him no. And he said , "Well, we will find out and you go on back there and work and don't say anything about the union or have anything to do with it." On cross-examination, she testified that Holtzman explained to her that the Com- pany had treated the employees well without a union and therefore they did not need a union. Two days later, Russel asked to see Grant and when she spoke to him in his office, "to tell him I did sign a union card because I had heard he already knew anyway, so I went and told him . [Grant] said `who did you sign the union card for' and I told him I signed it for my Daddy and he said , well, he already knew because Daddy had told him . Then he talked to me about a union wasn 't the thing to have and he thought I ought not to have anything to do with it, . Mattie Joe Dover, who is presently employed by Respondent, testified, that at the request of Ethel Childress , she signed a union card .- Grant called her into his office- about a week or two later. She testified: and he asked me did I know what he wanted with me, and I told him I had an idea. He said he was going to ask me for the • truth and he wanted me to tell the truth ; he asked me did I sign one and I told him, "yes, I did." . Well, he asked me if I heard anything about the union would I come and tell him about it, going around in the plant among the employees , talking about it, and I told him no, I just didn 't want to have anything else to do with it. Ruel Dover, an employee of Respondent, signed a union card at the request of James Childress . He testified that about 10 days later, his foreman , Scallorn, told him that Grant would like to see him in his office . Grant, in the presence of Scallorn, "asked me why I signed the union card, joined the union ." Dover testified that while he was speaking with Grant that Grant had a card in his hand which appeared to be similar to the union card he had signed .25 Dover also testified that Grant asked him, "If I ever heard any conversation among the employees about it, would I let him know." Dover on his direct examination stated that he received a letter from the Union and the following day Grant asked him to bring the letter to him which he did.26 Ruth Martin, an employee of the Company, signed a union card prior to August 21, at the request of James and Ethel Childress . She testified that she went to Grant's office the following morning and told him she had signed a union card. She also testified that she received a letter from the Union which she brought to the plant office and left there . The following day, Britt, her foreman , asked her if she had received such a letter and she told him , she testified, that she had already brought it into the office. Edward L. Wertz, International representative of the Union, testified as follows: In August 1953, he was advised by William Melvin Arnold , who formerly worked for Respondent, that a number of the Respondent 's employees were interested in organizing a union at the plant. A meeting was held at Arnold 's home on August 18, which was attended by James and Ethel Childress , Glover Jackson , and Carl Brown, who signed union membership application cards. These four employees were given blank union cards , requested to obtain the signatures of other employees, and zs Dover's testimony on this is as follows : "He had some kind of a card , like the one I bad signed. It resembled the one I had signed." The General Counsel 's contention that Grant displayed union cards while interrogating employees in order to lead them to believe that their supposed confidential designations were either obtained by the Respondent through devious means or by the Childresses betraying them to the Respondent is.rejected. . za Dover , testified that another employee , Clay Edlen , also turned over to Grant the letter which he received from the Union. SARDIS LUGGAGE COMPANY 457 then to mail the signed cards to Wertz. Wertz testified that he received 46 signed cards through the mails. It was agreed to meet again on August 25 at Arnold's home but this meeting was never held. The circumstances surrounding the cancellation of this meeting will be found under section III, A, of this report. Suffice it to say at this point that. Wertz learned that there had been a meeting at the courthouse the previous evening; that James Childress and his wife, Ethel, were no longer em- ployed by the Company; and Arnold appeared reluctant to involve himself in any further union activity.27 Carl Brown, who is employed by the Respondent, testified that he attended a union meeting at Arnold's home on August 18,28 at which time he signed a union card. He was also given blank union cards in order to solicit employees but he never did so, as he returned them to Jack Childress sometime prior to August 21 29 Two or three weeks after the union meeting, Holtzman called him into his office, he testified, and asked him if he had signed a union card and he told him he had. Victor Tidwell, who was formerly employed by the Respondent, testified that 2 or 3 days after he signed a union card, and while James and Ethel Childress were still employed by Respondent, Grant called him into his office. Holtzman and Grant, he testified, were present when he was asked by Holtzman if he liked his job whereupon Holtzman asked him how many employees he had gotten to sign union cards. Tidwell testified that he refused to tell him but when Holtzman threatened Tidwell that "[he would]' go and get [his] brother-in-law, Edward Deese," Tidwell said, "Don't go to all that trouble," whereupon he told Holtzman and Grant the names of the employees whom he had induced to sign union cards.30 Deese, Tidwell's brother-in-law, is a merchant in Sardis and it was he, who the Childresses testified, told them that a meet- ing was to be held at the courthouse. Tidwell also testified that when he received the union letter, which has been referred to heretofore as the one the Union sent to Re- spondent's employees, he turned it over to his brother- in-law, Deese, the following day to give to Grant. Tidwell testified that he turned over the union letter to Deese be- cause his foreman at the plant, James Bowden, told him that if he should receive any letters from the Union to turn them over to Grant. Tidwell testified he asked Grant 2 days later if he had received this letter which he had turned over to Deese and Grant assured him that he had. Tidwell also testified that Grant told him he had heard that he was seen speaking to James Childress and also to William Melvin Arnold, at whose home, the union meeting was held. Grant said, according to Tidwell: . he didn't want me to be talking to any more guys to try to give me trouble, and so I told him I had a right to talk to anyone I wanted to and I would just go home, quit work, if I couldn't talk to whoever I wanted to talk to. Whereupon Tidwell quit on or about October 5, but (and this is admitted by Grant) not before Grant had him sign a paper stating that he was leaving the Company's employ voluntarily. C. W. Martin, an employee of the Company, testified that he was called into Holtz- man's office on September 1 and told by Holtzman that 2 or 3 of the employees had in- formed him that Martin was distributing union cards. Martin denied this but admitted that he had signed a union card. Whereupon Holtzman said that he did not attach significance to employees signing union cards as he was aware that some of them had been "coaxed" into signing. Martin also testified that Holtzman said to him, "if we had a union in there that it might cause a strike and cause the plant to close down, that the company was new and was just getting started good and it might cause it to close down." Martin testified that in September he received a letter from the Union which he brought to the plant and left on Grant's desk. It is against this testimony of the General Counsel' s witnesses that consideration is given to the Respondent's evidence denying that it interrogated or restrained its em- ployees or threatened them with reprisals for engaging in union activity. More- over, Holtzman, Grant, and the foremen of the Respondent's various departments who testified, all denied being aware of any union activity at the plant prior to August 21. n James Childress testified that he told Arnold on August 22, to advise Wertz that the August 25 meeting would be held at Sardis Dam instead of Arnold's home, as originally planned 29 James and Ethel Childress called for him in their automobile and took him to the meeting as When Brown was asked why he returned the cards, he testified, that lie "figured maybe, [he] was.doing wrong. . . . 30 Tidwell testified that he turned over to James Childress the signed union cards 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Samuel J. Holtzman testified as follows: Grant, the plant manager, had tele- phoned him on August 21, at Baltimore, Maryland,31 and told him that there was some union activity at the Sardis plant, without going into detail, except to say that he [Grant] thought the union activity had "died as fast as it started." At the first opportunity, which was August 25, the day following the formal opening of the plant, Holtzman asked Grant to give him the details of the union activity. Grant, instead, suggested and Holtzman agreed, to get the story "firsthand" by calling various employees into his office to hear shat they had to say with respect to this union activity. Grant thereupon called employees, into the office, that ,dy ,and the following day and discussed with them their union activity. Holtzman in his testi- mony referred to the employees who were called into his office not individually but collectively as a group or entity. He was unable to recall their names or distin- guish between them, and he did not refer to specific conversations with individual employees but grouped them collectively, with the exception of Jackson. Holtzman testified: The employees mentioned they had signed cards. They were confused, they didn't know what they were signing. They had done it because . . . they thought it was the thing to do as someone else told them to sign it. There was confusion. They also didn't know just how the Company stood or whether the Company wanted them to sign or didn't want them to sign or what. My general conversation to them was to tell them that the Company wanted to get to the bottom of it and find out if there was any grievance or any difference that they had with the Company to get them to understand that the Company was trying to do everything they could to see that they would eventually be happy, and be satisfied, and be a profitable operation to everybody. That,the Company^did,not need-any outsiders to come in andteJl,them,howkto get,sJong with the employees and if they were patient and have confidence in the Company, we could straighten out any differences that we had, and most likely wanted to know if there were any differences. That was the point in bringing them in, if there was any differences, grievances, that they had. Holtzman then testified that he did ask some of the employees whether they had signed union cards. The next day he testified, "I wanted to call in a few more to find out how more of them felt, if more of them were worried and confused or dis- satisfied, if there was anything else I could do to straighten it out." He testified that on the first day (August 25), he spoke to between 4 and 6 employees and, on the following day, he spoke to probably the same number. Holtzman testified that he had a conversation with Glover Jackson on either August 25 or 26. He testified that Jackson stated that he did not know anything at all about the Union and had not signed a card. His reason for calling in Jackson, he said, was to get the story from an older man. "I asked him if he had signed a Union card or if he knew anything about Union organizers or any dissension or trou- ble in his department or anywhere else that he might tell me about that would help the people and help ourselves come to some understanding. He told me he didn't know anything at all about a Union. He was satisfied, doing fine and that was about it." About a week later as Holtzman was walking through the plant, he testified, "I just mentioned to [Jackson] rather casually that I was certainly surprised to hear that he had signed the Union card but was glad to learn that he had come to his senses and sort of pat him on the back or something like that, and kept on my way." When Holtzman was asked how he had learned that Jackson had signed a union card, he stated that Gran had told him so. When Holtzman was asked what he meant by the phrase that he was glad that Jackson "came to his senses," he answered, "Grant told me that Jackson had signed a card; also told Mr. Grant and Mr. Grant told me that [Jackson] said he was sorry and he realized he had made a mistake. That is what I meant when I said he came to his senses„ because„the information I got from Mr. Grant was that Mr. Jackson had signed a Union card and came up and told him about it and told him he was sorry and knew he had done the wrong thing and he wasn't going to have anything to do with it anymore." On his direct examination, Holtzman denied that he had accused Jackson of hav- ing attended a union meeting at Arnold's home with James and Ethel Childress and Carl Brown. He also denied that he had accused Jackson of soliciting employees to "Holtzman also had business interests in Baltimore where he lived but made periodic trips to Sardis to look after the plant During the union activity he was at the plant 2 to 4 days every week but at the time of the hearing, he came to Sardis about 2 days every other week. SARDIS LUGGAGE COMPANY 459 sign union cards or that he had said to Jackson, "If you are guilty, I am going to make it hard on you." He also denied threatening any employee with the loss of his job or making any other threats to them because of their union activity . He also denied that anyone outside of the Respondent Company had anything to do with the employ- ment terminations of James and Ethel Childress, Louise Durham, and Glover Jackson. It will be recalled that Willard Bratton testified he notified his foreman he was quitting his job and that 5 minutes later Grant called him into his office and asked the reason. Bratton testified, "I told him I didn 't like the way they handled the meeting at the Courthouse and the way they were going about that union deal we were trying to get and I was just fed up with it." Holtzman, in testifying as to his version of what occurred at that time , stated: We [Grant and himself] were doing some kind of work and this Bratton prac- tically barged in, walked in the office and said he was quitting , just like that, he was quitting because he wanted to work in a union place and thought there should be a union here , and since they weren't going to have one, he was quitting and that was it. Richard Grant, superintendent and general manager of Respondent 's Sardis plant, testified as follows: He learned for the first time on August 21, 1953,32 during work- ing hours, that the Union was attempting to organize the plant. He noticed the em- ployees were congregating in groups in the plant. He asked his foremen the reason for this but they were unable to tell him . He returned to his office, and shortly after, at, about 9:30 or 10 a. M.,33 an employee knocked on the door , entered, and informed hiintthat "a lot of.'the,employees , had signed union cards." After this employee had given Grant this information , and as he was preparing to leave the office , he told Grant that another employee , whom he named , wished to speak to him.34 Grant said to send him into the office. The second employee conveyed the same informa- tion as the first, and he, too, told Grant that another employee wished to speak with him. Grant testified that this continued the rest of the day (August 21)35 and on into the following day, which was a Saturday , with employees coming to his office to inform him of their union activities . This continued on into the weekend with employees coming to Grant's home on Sunday , August 23, to tell him about their role, if any, in the then current 'union activities at Respondent's plant. Grant testi- fied as follows: Well, practically every conversation was identical in that the employee came to me told me they had signed a union card, that they had thought it over at home, someone had told them it was wrong, that we were a new organization just in town and they should give us a chance to get on our feet and get going. They felt sorry they had done it and came to me personally and wanted to assure me they had had a change of heart. Grant's testimony continues as follows: on Tuesday , August 25, which was the -day following the formal opening of the plant, Holtzman, president of Re- spondent, asked him to tell him about the union activities at the plant. Grant testified that he suggested that the employees should be called into the office individually in order that Holtzman might hear their stories first hand. It might be mentioned parenthetically, at this point, that it is not clear why Grant suggested that "Holtzman, hear -the ` employees', stories "first -hand," as-the record, indicates that the employees evidently had disclosed all they knew about union activities at the 32 This was the date on which James and Ethel Chi ldress' employment with Respondent terminated. as This is based on Grant 's testimony that lie told Childress on the morning of August 21, between 9 : 30 and 10 a . in to sand the boxes faster and that shortly after that the first employee ( Leivellen ) came to his office and told him about the union activity in the plant. Both Grant and Childress agree that the conversation in which Childress' employ- ment terminated occurred at approximately 12 • 30 p in that same day " Grant estimated this first conversation might have taken 15 minutes but "I wouldn't think it would have been an hour, . ' as On his cross -examination, Grant testified that he did not have more than five em- ployees in his office on the morning of August 21 At another point in his cross- examination , he testified that he could not estimate the number of employees that were in his office the afternoon of August 21 to discuss the Union . On cross-examination, when Grant was asked if he sent for these employees , he testified : "I sent for some, some came of,!their 'own, inclinations " [ Emphasis supplied.] On cross-examination , he testified that' Jackson was the only'employee he asked to come to his office. I 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant when Grant had spoken with them a few days before. The employees were then called into the office that day and the following day, August 26, in order that Holtzman could hear their stories. Among those called into the office at that time was Jackson. He denied that he had any interest in, or had engaged in, any union activities. The following day, August 27, James Bowden, the foreman of the box department, Grant testi- fied, came to the office and said that Jackson would like to see him. Jackson came to the office and told him that "he had told Mr. Holtzman a lie, that he was sorry for it, that he had signed a card, and he had made a mistake and wanted to make a complete confession of it all." Grant went on to testify that Jackson admitted he had attended a union meeting at Arnold's home and that the Childresses had driven him and Carl Brown there in their automobile and that he had solicited other employees to sign union cards. Grant then asked Jackson if he still had any unsigned union cards still in his possession. Jackson said he did and that he would bring them to Grant. Instead, Grant testified, he sent one of his foremen to Jackson's home for the union cards because "I was curious to see it." Grant testified that on Monday, August 31, Britt, one of the plant foremen; came to his office early in the morning and told him that Louise Durham (an alleged discriminatee in this case) wanted to speak to him. When Durham came to his office, Grant testified, that she told him, "she had signed a union card, she was sorry for it, didn't want me to think wrong of her, showed me she was absolutely innocent . . . she said she hadn't been able to rest or eat over the weekend,36 her conscience had bothered her." Grant denied that he had ever questioned Durham with respect to her associating with James and Ethel Childress or warned her to stay away from them . He also denied that he had a conversation with Barefield, the mayor of Sardis, with respect to the Union. He also denied that he had ever threatened to close down the plant if the Union were successful in its organizational efforts or that he had ever told Durham that a merchant informed him that she was sympathetic toward the Union or that she owed every merchant in Sardis an apology for signing a union card. He also denied that Durham ever requested that he return to her the union letter which she had turned over to him. He did acknowledge, however, that he did have the union letter which was addressed to Durham and that it was never returned to Durham. He also denied that he had told Durham not to speak to National Labor Relations Board investigators because those employees who gave them statements would be the ones subpenaed to testify in court. He also denied that he stopped speaking to Jackson after union activity commenced in the plant. He denied that he told Tidwell that he heard he was seen speaking with Bud Arnold or Jack Childress at Batesville or that he warned Tidwall not to speak with anyone that had caused Grant trouble. Grant testified that Willard Bratton came into the office on August 25, while he was talking to Holtzman, and told them he was quitting because "he was in favor of the union, he wanted a union, the plant, if they didn't want a union, he wasn't going to work there for that plant." Grant testified that Victor Tidwell came to his office one day and said that he was quitting because the other employees were shunning him. • Grant testified that he prevailed on Tidwell to stay on, but a few days later Tidwell informed him that he was quitting. - Since the courts and the Board have made it abundantly clear that the deter- mination of whether unfair labor practices have been committed, depends ultimately on the facts and circumstances of each particular case, a detailed account has been given of what the General Counsel's and Respondent's witnesses alleged occurred. Also, many of the witnesses have been quoted verbatim in the belief that their choice of language is so expressive that much of the meaning would be lost and its significance escape the reader, if their testimony were paraphrased. To summarize briefly, then, that part of the complaint alleging the Respondent violated Section 8 (a) (1) avers that the employees were interfered with, re- strained, and coerced in the exercise of the rights guaranteed them under the Act in the following respects: That they were interrogated about their union activities; threatened that they would be discharged and the plant would close if the Union came in; kept under surveillance; requested to inform Respondent about the union activi- 3 This would be the weekend of August 29 and 30, but it is uncontradicted that all those employees who had signed union cards had done so on or before August 2i. There- fore, according to Grant's version, two weekends intervened between the time Durham signed a union card and August 31, the date of her conversation with Grant. SARDIS LUGGAGE COMPANY 461 ties of other employees; and directed to deliver to Respondent correspondence they received from the Union. Respondent denies all these charges. 1. Credibility This is a case where the General Counsel's witnesses are contradicted on all the salient issues by the witnesses for the Respondent. Nevertheless, after observing the witnesses, analyzing the record and inferences to be drawn therefrom, and reconciling where possible, the conflicting evidence, the Trial Examiner concludes that the testimony of the General Counsel's witnesses is reliable because it is con- sistent with certain undisputed and demonstrable facts in this case 37 This conclu- sion is based also on my observation of the witnesses with respect to the accuracy of their memories, their comprehension, and their general demeanor on the stand in answering the questions put to them. The resolutions of credibility made here- in apply also to the testimony of James and Ethel Childress, Louise Durham, and Glover Jackson with respect to their 'versions of what occurred when they left the Respondent's employ. The details of these terminations are discussed in later sec- tions of this report. However, it is not meant to imply that the trier of these facts accepts as credible everything that was said by all the General Counsel's witnesses. It suffices to say, in the words of Judge Learned Hand,' that "It is no reason for refusing to accept everything that a witness says, because you do not believe all of it; nothing is more common in all kinds of judicial decisions than to believe some and not all." 38 Another practical consideration which cannot be overlooked in resolving the credi- bility issues in this case, is the fact that some of the General Counsel's witnesses were still in the employ of the Respondent Company at the time they testified. As such, they depended on their jobs for their livelihood and they understood that after testify- ing they must continue in the employment of the Respondent. This practical con- sideration coupled with the normal workings of human nature has led the trier of these facts to place considerable credence upon many of such witnesses' testimony, with respect to Respondent's alleged unfair labor practices. In crediting some witnesses and discrediting others, given weight to certain evi- dence as against other evidence, drawn inferences from circumstantial and conflict- ing evidence, and come to certain conclusions, the Trial Examiner has necessarily had to detect and appraise various "potent imponderables" permeating the record.39 One of these "potent imponderables" is the demeanor of witnesses. The Board has recognized that the "demeanor of witnesses is a factor of consequence in resolving issues of credibility." 40 Credibility findings rest to varying degrees upon the evalua- tion placed by the trier of the facts upon the demeanor of witnesses. This type of evidence which does not appear in, the record and is comprised of elusive intangi- bles and "potent imponderables" which are difficult to capture and to describe by written words, often make it difficult for the trier of the facts to convey or describe the impression which a particular witness makes upon him.41 Judge Learned Hand describes it as "[findings] based on that part of the evidence which the printed words do not preserve. Often that is the most telling part, for on the issue of veracity the bearing and delivery of a witness will usually be the dominating factors, when the words alone leave any .rational choice . . . nothing is more difficult than to disentangle the motives of another's conduct-motives fre- quently unknown even to the actor himself. But for that very reason those parts of the evidence which are lost in print become especially pregnant.. " 42 As the Board recently stated in Roadway Express Inc., 108 NLRB 874: "Credibility findings may rest entirely upon evidence through observation which words do not, and could not, either preserve or describe." [Emphasis supplied.] By this discussion of the evaluation placed upon the demeanor of the witnesses in testifying, it is not intended to convey the impression that consideration was given 37 Conversely, Holtzman's testimony that lie was unaware of the Childresses' separations on August 21 until the charge was filed in this case on September 15, is not only in- consistent with the attendant circumstances but also inheiently improbable. 81N. L R. B v. Universal Camera Corp, 179 F 2d 749, 754 (C. A. 2), reversed on other grounds 340 U. S 474 88 International Ass'n of Machinists v N L It. B , 311 U. S. 72, 79. 4O Hadley Manufacturing Corporation, 108 NLRB 1641; Roxboro Cotton Mills, 97 NLRB 1359, 1368. "N. L. R. B v James Thompson 4 Co., Inc., 208 F. 2d 743 (C. A. 2). 41 N. L. It. B. v. Universal Camera Corp, 190 F. 2d 429, 430, 431 (C. A. 2). 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exclusively to this type of evidence in determining credibility. This was only one factor. Concomitant cons'l11eration was given equally to the surrounding circum- stances, and the consistency or inconsistency of individual witnesses' testimony with uncontraverted evidence and demonstrable facts in determining which version should be credited. Moreover, in crediting one version as against another, the trier of the facts often derives considerable aid in comparing the witnesses' testimony on direct examination with what he testified to on his cross-examination. As was succinctly stated in an Intermediate Report: "A would-be deceiver weaves a tangled web and cross examination is usually an effective device to enmesh the perpetrator- of the embellished lie." 43 Moreover, in later sections of this report, the Respondent's alleged discriminatory discharges and refusal to rehire certain named employees are considered. The dis- cussion and findings made above with respect to the resolutions of credibility of the witnesses, applies not only to the alleged violations of Section 8 (a) (1) of the Act, but also to that part of the complaint which alleges Respondent violated Section 8 (a) (3) of the Act. Respondent's counsel in his brief states: "It is, of course, easy to speculate. It is of no practical value, toward the disposition of this case, however, to guess as to what transpired." In deciding this case, the Trial Examiner has been acutely aware of the foregoing observation, because in the type of issues disputed in this proceeding, where the witnesses of the General Counsel and Respondent are in sharp conflict and diametrically opposed in their respective versions as to what actually occurred, the process of hearing can produce only a belief concerning what the facts are, rather than a disclosure of the facts themselves. The trier of the facts must, therefore, be content to have a belief concerning the facts, rather than knowl- edge of them. 2. Discussion and conclusions with respect to interference, restraint, and coercion In determining whether an employer's conduct amounts to interference, restraint, or coercion within the meaning of Section 8 (a) (1),44 the test is not the employer's intent or motive, but whether the conduct is reasonably calculated, or tends to, interfere with the free exercise of the rights guaranteed employees by the Act 45 Then too, on the issue of whether the Respondent violated Section 8 (a) (1) of the Act, it is not required that each item of the Respondent Company's, conduct be considered separately and apart from all others, but consideration must be given to all such conduct as a whole .46 It might be well to mention therefore, that in determining whether Respondent violated section 8 (a) (1), consideration has also been given to Respondent's discriminatory discharge of- three employees as well as its discriminatory refusal to rehire another, all of which are discussed in detail in later sections of this report. Grant, the plant superintendent, and Holtzman, Respondent's president, system- atically interrogated employees in a series of separate interviews in the Company's office. Their questioning was in a context of pressure to defeat the Union. The circumstances were such that Jackson, who had engaged in union activities and signed a union card, felt constrained to deny this fact. This denial would appear to indicate that Jackson feared their questioning of him with respect to his union 49 Santa Clara Lemon , Association, 112 NLRB 93. 44 The relevant provisions of the National Labor Relations Act, as amended (61 Stat. 136, and 65 Stat. 601, 29 U. S. C, Supp. V, 151 , at seq. ), are as follows : RIGHTS OF DMPLOYEES Sec 7. Employees shall have the right to self-organization to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3). UNFAIR LABOR PRACTICES Sec 8 (a) It shall be an unfair labor practice for an employer- (1) to interfere with. restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 • . . .e N. L R. B. v. Illinois Tool Works. 153 F. 2d 811 814 (C A 7) "N L. R. B. v. Popeil-Bros., Inc., 216 F. 2d 66, 68 (C. A. 7.) SARDIS LUGGAGE COMPANY 463 activities would be used for retaliation or subsequent reprisals. This conclusion is confirmed by Jackson's testimony that he denied to Grant that he engaged in any union activities or signed a union card because , "I was afraid he would fire me right on the spot , at least I was afraid he would ." Then too, it is reasonable to conclude that this fear was felt not only by Jackson but by all other employees in this small plant who heard of the questioning. ' In these circumstances, the questioning took place "in a manner constituting interference , restraint, or coercion, in violation of Section 8 (a) (1)." N. L. R. B. v. Sunnyland Packing Co ., 213 F. 2d 150 (C. A. 5). Moreover, it will be recalled that Grant stated to Jackson and Durham that the plant would close ^down, if! the Union ' were successful in its organizational efforts. Also, James Childress testified on his direct examination that Grant told him in his office on August 21, that before he would permit the employees to vote on whether they wanted a union he would "close the doors [of the plant] and walk out." Where systematic interrogation by top officials of their employees' union activities is coupled with a specific threat such as this, it would appear that "the interrogation reasonably tends to restrain or interfere with the employees in the exercise of rights guaranteed by the Act." 47 Then too, the threat to close down the plant if the Union were successful is so closely related to the Union's organizational campaign that it constitutes an unfair labor practice within the meaning of Section 8 (a) (1),48 In National Furniture Manufacturing Company, Inc.,49 the Board held that it was not coercive for the employer to state in written communications to its employees that it would have to move its plant elsewhere if it had to meet the Union 's demands. In Chicopee Manufacturing Corporation ,50 similar statements were held by the Board to be "predictions of the possible impact of wage demands upon the employer's business." In this case . the Board stated: A prophecy that unionization might ultimately lead to loss of employment is not coercive where there is no threat that the employer will use its economic power to make its prophecy come-true. In this case, however, Grant's unequivocal statement threatening to close the plant, which he made to both Durham and Jackson , if the Union became the collective-bargaining agent of its employees, along with the surrounding circum- stances, including the nature of the interrogation, clearly distinguishes this case from the facts in the above-cited cases in that here ' Grant's threat clearly indicated that the Respondent would use its economic power to make his prophecy come true. Grant, who was 1 of the 2 dominant figures in the management of the Sardis plant had the ostensible power to change prophecies into realities so that his threats, whether couched in language of probability or certainty, tended to impede and coerce the employees in their right of self-organization. Furthermore, threats to move or close are even more effective where the plant, as here, was important to the economic life of Sardis, a town of less than 2,000 people, for in such case the pressure which can be exerted on the workers is overwhelming. This is due not only to the fact that if the workers are discharged they may have to seek jobs in other communities, but also because in such a community the employer, in his antiunion activities , can frequently, count on the support of other business interests- and of public officials. ` . It seems evident that the meeting at the courthouse was called to coordinate public sentiment against the Union and thus aid the Company in exerting pressure upon the employees to dissuade them from joining the Union. Moreover, there is the enig- matic and nebulous role of the mayor of Sardis whose unexplained and unofficial relationship , if such existed, is not revealed by the record . However, it is recognized that the businessmen of Sardis had the right to take an interest and a position in a matter affecting the welfare of the community but their activities in support of their position cannot be attributed to the Company in the absence of proof that they were inspired by the Company .51 Such proof is lacking in this case. However, Grant's testimony that he did not hear about the meeting at the court- house until the day it was held and when he did hear about it, it was from the busi- ness people and not his foremen; many, of whom attended the meeting , strained the 47 Blue I lash ,Expnes8, Inc.. 109 NLRB 591 48 Marden Manufacturing Company, 106 NLRB 1335 , 1337, 1338. 40 106 NLRB 1300. _ 50 107 NLRB 106. m Section 2 (2) of the Act provides , in part: "The term 'employer ' includes any person 11 acting as an agent of an employer, directly or indirectly. . . . 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trial Examiner's credulity and was one of the factors militating against Grant's credibility. I - The surrounding circumstances in this case, which are singly and in combination unfair labor practices, and upon which it is found Respondent violated Section 8 (a) (1), are: (1) Grant's threat to Jackson that he would ascertain which of the employees were engaging in union activities and, "I am' going to get them all. . If you are taking part in this thing, I am going to make it plenty hard on you"; (2) Holtzman's similar threat to Jackson; (3) Grant asking Bratton to divulge who of the employees signed union cards and who of them solicited employees to sign union cards; (4) Holtzman interrogating Mary Russel as to whether she had signed a union card and telling her, "We will find out . and don't say anything about the Union or have anything to do with 'it"; (5) Grant interrogating Mattie Joe Dover and Ruel Dover as to whether they had signed union cards; (6) Grant asking the two Dovers to inform him about the union activities of-other employees; (7) Holtz- man calling Carl Brown into his office and interrogating-him about his union mem- bership; (8) Holtzman and Grant calling Victor Tidwell into the Respondent's office and asking him to divulge the names of the employees whom he had induced to sign union cards. When Tidwell refused to accede to their demands, Holtzman threat- ened to go to Tidwell's brother-in-law, Edward Deese, a merchant in Sardis, where- upon Tidwell divulged the names of such employees; (9) Grant warning Tidwell and Durham not to associate with James and Ethel Childress or any other union adherents; and (10) Tidwell and Durham being directed to, deliver to Respondent correspondence they received from the Union. In addition, there is the interference, coercion, and restraint practiced by the Re- spondent in discharging James and Ethel Childress and Louise Durham and its re- fusal to rehire Glover Jackson for their union activities, which is discussed in later sections of this report. It is found, therefore, that the conduct described above was intended to have the effect of interfering with the rights guaranteed to employees by Section 7 and con- stituted interference, restraint, and coercion in violation of Section 8 (a) (1) of the Act 52 The complaint also alleges that Respondent "created the impression of surveillance of employees' union activities." The General Counsel must sustain the allegations of a complaint by a preponderance of the substantial evidence. Substantial evi- dence is such relevant evidence as a reasonable mind might accept as adequate to accept a conclusion.53 It is found that the evidence in this case with respect to surveillance gives rise to no more than suspicion, speculation, and surmise. Certainly, it does not equal the substantial evidence necessary to support the allegations of the commission of an unfair labor practice. Accordingly, it will be recommended that the allegations of the complaint with respect to surveillance be dismissed. C. The alleged violations of Section 8 (a) (3) 1. Contentions The complaint alleges, in part, that the Respondent violated Section 8 (a) (3) of the Act by discriminating in the hire and tenure of Glover Jackson, Louise Dur- ham, and James and Ethel Childress. Respondent denies it attempted to' discourage union activity among its employees or that the employment of the above-named alleged discriminatees was terminated because of union activities. On the contrary, Respondent affirmatively contends that Jackson was laid off for economic reasons and not rehired because of his poor health; Durham was discharged for inefficiency; and James and Ethel Childress quit their jobs voluntarily. 2. Discussion There are here presented mutually exclusive stories which require the resolution of pure questions of fact. To resolve these questions regarding the propriety of the alleged discharges and refusal to rehire, consideration must be given to circum- stantial evidence as well as what is direct. However, it is well recognized that a finding of discrimination must frequently rest on inference, since direct evidence of intention to violate the Act is rarely obtainable. Although it i& well established 52 N L R B. v Gate City Cotton Mills, 167 F. 2d 647, 649 (C. A. 5) ; Graber Manu- facturing Company, Inc, 111 NLRB-167. 53 N L. R B. v. Columbian Enameling & Stamping Co., 306 U. S. 292 , 299, 300. SARDIS LUGGAGE COMPANY 465 that relief should not be denied because of the absence of direct evidence, but re- course may be had and reliance made upon circumstantial evidence which is relevant to resolving the issues,54 nevertheless, it is sometimes difficult to separate facts from the inferences drawn from facts.55 What then are the factors to be considered? First, there is the credibility evalua- tion placed upon the demeanor of the witnesses in testifying which has been discussed and resolved in favor of the version told by the General Counsel's witnesses.56 Grant's testimony has been carefully considered and his demeanor intently observed on the witness stand and it is concluded for the reasons hereinafter stated that his testimony that James and Ethel Childress quit, that Durham was discharged for in- efficiency, and Jackson not recalled because of his physical condition, is not cred- itable. Furthermore, certain objective circumstances have been considered also, such as uncontroverted physical and temporal factors, as well as demonstrable facts, and it is concluded that the Respondent's version of what occurred is not consistent with, the surrounding circumstances. Moreover, in evaluating Respondent's witnesses' testimony, considerable importance has been attached also to the background evi- dence which requires an appraisal of Respondent's entire course of conduct. In this case, that includes a consideration of the findings heretofore made, with respect to Respondent's interrogation of its employees; threats they would be discharged and the plant closed if the Union came in; and Respondent requesting its employees to in- form upon the union activities of other employees. After evaluating all these factors and carefully considering all countervailing evidence, it is found that the Respondent unlawfully discriminated against James and Ethel Childress, Louise Durham, and Glover Jackson. In arriving at this con- clusion, it has been kept in mind at all times that it is not the burden of the Respondent to show the absence of discrimination, but that of the General Counsel to show its presence. However, after balancing the evidence on both sides, the Trial Examiner is persuaded that the General Counsel has met the burden of establishing that these alleged discharges and refusal to hire were discriminatory. 3. The alleged discriminatory discharges 57 a. James Childress James Childress, who is referred to also in the record as "Jack," was hired by Re- spondent on May 6, 1953, and was employed until May 29. He returned to work on or about June 22 and on August 21 he ceased working for the Respondent Company. The General Counsel's claim that Childress was discharged because of his union ac- tivity is denied by Respondent who contends Childress quit voluntarily. Childress' job was that of a "sander" which entailed applying sand paper manually to rough spots or other irregularities appearing on the unfinished boxes which ulti- mately became the finished luggage. Childress was unable to sand these boxes as fast as they came to him which resulted in boxes accumulating at this point in the production line. In order to eliminate this bottleneck and to keep production moving at an even pace, Childress was assigned a part-time helper each day to assist him in catching up with the backlog of boxes which accumulated during the day. He re- ceived this part-time daily assistance when he first went to work for the Company and continued to receive help until his job terminated on August 21. Childress testified that on May 29, Grant and Turner, Respondent's office manager, informed him he was being laid off until such time as a job could be found for him elsewhere in the plant for which he physically qualified, as he had 2 fingers missing from I hand which they told him was a handicap on the sanding job. 'A week later, Childress testified, he saw Grant at the plant and asked him if he intended to recall him. Grant assured him, Childress testified, that he would be re- called to a job in the shipping department. When Grant did contact him around June 22, Childress testified that Grant asked him to return to his former job of sanding. 54 Hartsell Mills Co v N. L R B , 111 P 2d 291, 293 (C A 4) ; N L. R. B. v. Piedmont Wagon d ilffg Co . 176 F 2d 695 (C A. 4) bs Cf. N. L R B v. IV C Nabors Company, 196 F. 2d 272, 275 (C A 5), cert denied 344 U. S. 865 sn Section B 1 of this report. See also N. L. R. B. v Dinion Coil Co., Inc, 201 F. 2d 484, 487-490 (C A 2) 67 In resolving the disputed issues , where no mention is made of certain evidence intro- duced by the parties, it is not because consideration Was not given to such evidence, but rather because it is regarded as insubstantial in character, or unsupported by a fair preponderance of credible evidence, or immaterial to deciding•the salient issues in this case, 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No reference was made at that time to his missing fingers affecting his ability to perform the job satisfactorily. Childress testified, however, that he told Grant he would return to sanding only if he continued to receive part-time help as it was not possible for one man to sand the requisite number of boxes as fast as they came off the pro- duction line. Childress testified he agreed to return when Grant assured him that he would receive "plenty of help." Childress testified that during this conversation, Grant told him that they had 3 or 4 other employees on the sanding job since he ceased working on May 29, and that they had been unable to sand as many boxes as Childress. From June 22 until August 21, when he. was no longer: employed by Respondent, Childress testified that he did receive daily part-time assistance and that at no time did either Grant or his foreman, Bowden, complain of the quantity or the quality of his production. Bowden testified, however, that he often told Childress "to do better because he couldn't keep up with his work, couldn't or wouldn't, I don't know which it was." It will be recalled that Childress and his wife were leading proponents of the union movement in the plant. They had attended a union meeting on August 18 and contacted and solicited Respondent's employees on August 19 and 20 to sign union membership application cards. About 10 o'clock on the morning of August 21, Childress testified that Grant came over to where he was working in the plant and com- plained about the number of unsanded boxes that had accumulated. Grant told him, Childress testified, that he must complete by noon, by himself, and without any assistance, all the accumulated unsanded boxes as well as all the boxes that would come to him thereafter. Childress testified that there was somewhere between 10 and 50 boxes then unsanded at 10 a. m., and he told Grant it was impossible for him alone to sand all the accumulated boxes, in addition to those that would come off the pro- duction line in the intervening 2 hours until noon. He also reminded Grant, Childress testified, that he had promised him he would receive assistance every day and that it was on this understanding that he had agreed to accept the sanding job when it was again offered to him on June 22. Nevertheless, Grant told him, according to Childress,•that if all the unsanded boxes were not finished by noon he would be fired. Jackson, a coworker of Childress, testified on direct examination, that he saw Grant that morning come over to where Childress worked and speak to him. After Grant walked away, Jackson testified that he said to Childress, "Jack, he gave you a pretty hard time of it, didn't he," and that Childress replied that Grant told him he would have to sand all the boxes by noon by himself and if he did not, he would be discharged. Jackson also testified that he did not hear Childress threaten at that time or any other time to quit his job. Jackson also testified that after Childress' employ- ment terminated, two men were assigned full time to sanding boxes, whereas Childress had only part-time assistance Childress testified that after Grant told him he would be fired if he did not complete the unsanded boxes by noon, Bowden, his foreman, came over to him and asked what Grant had wanted. When Childress told him what had transpired, Bowden said, according to Childress, "I don't know who he would get. He has tried three or four different persons here and he hasn't got anybody to do as manyas,you have.. . Bowden denied this. After Childress returned from lunch 59 that day, Grant asked him how many boxes he had sanded that morning and he replied about the same number he sanded every other morning. Grant, according to Childress, told him that was not enough, he was fired, and that he would have to obtain someone who could do the sanding job alone and without assistance. Grant also told him that those employees who had been assigned to help him sand were complaining.59 Childress testified that he had never heard employees so complain but he heard them request Grant to assign him extra help in order that the box department employees would not have to work beyond the regular quitting time of 4:30 p. M. Childress testified that when Grant informed him he was fired, he told Grant that he knew the real reason for him being fired was his union activities and not his inability to handle the sanding job alone. Grant told him, Childress testified, "Don't as Childress and his wife testified that on August 21, while they were eating in the Company's lunchroom, Turner, the office manager, stood outside the door leading into the lunchroom, 36 feet away from where they were eating, staring intently at them for about 10 minutes Turner denied this 51 James L Bolton testified that he was assigned to the part-time job of helping Childress sand each day and that he never complained to any company official because he was assigned this task not did he ever hear any other employee so complain. Carl Brown also testified to the same effect. SARDIS LUGGAGE COMPANY 467 you know you can't control all of those people back there in the plant." Childress' testimony continues as follows: He says, "You went to that Union." I says, "I did." "In other words you went and carried three more people with you [to the union meeting]." I says, "I did." He said "How come you do that. Why couldn't you went alone." . . . He said "Well, Jack, you had no business going out there and furthermore there ain't going to be no union here." And . I says, "Mr. Grant, so far as I know about it the only thing that the card meant was that it would give the people, the employees back there, the right to vote whether they wanted a union or not." "Before it will come to a vote," he says, "I will close the doors and walk out." And he furthermore said, "If I were you, I wouldn't be caught on the streets of Sardis." I said "Mr. Grant, as far as that goes, I got more friends on the streets of Sardis than you have got or ever will have," and he says, "You will just have to get on out of the plant." I said, "Do you want me to go back by and punch my card, don't you?" He said, "No, I will punch that out myself." He got the card and punched it out and walked on out in the sitting room there, and he gave me my check. I says, "Well, what about the rest of it?" He says, "You will get that as soon as Mr. Turner comes back from the bank. He has gone up there after the money." . I says "Mr. Grant, you just had better think this over and let me go back and to work." . I told him, "As far as you know as how I am going to vote, you don't know whether I would vote for the Union or against it." I says, "You better think this over and let me go back and go to work." He says, "If it was left up to me I would carry you right back in there and put you to work," but he says, "Do you know there have been"-I don't recall whether he said several or seven business men of the town had called him and told him to discharge me and my wife, and he says, "You will have to get on out. She [his wife] will be on out shortly." . .. He said, "... your wife will be right on out in a little while," so I came on out. .. . While waiting outside the plant, Childress testified that he saw Mayor Barefield of Sardis go into the plant. When the mayor left the plant, Childress went into the office and was given the rest of the pay which he was owed. It was stipulated that for the period beginning August 1 until Childress' termina- tion on August 21, his total pay and rate per hour were as follows: Total pay Rate per hour, cents August 1-------------------------------------------- $43. 38 80.5 August 8-------------------------------------------- 44.27 81.7 August 15------------------------------------------- 41.90 90.3 August 22------------------------------------------- 36.07 91.9 Childress testified that the last week he worked for the Company he was "making production." It might be well, at this point, to explain what is meant by the phrase "making production." Under this system the production of the individual employee is corelated with the minimum statutory wage of 75 cents per hour which the Federal Fair Labor Standards Act requires an employer to pay his employees. In the event the employee's production, computed on a piece-rate basis, does not equal the required 75 cents an hour minimum, the difference is paid by the em- ployer to the employee. This difference is referred to at various points in the record as "make-up pay." In this same connection, when an employee is assigned a quota of the number of pieces of work he must produce within a specified time and this quota is made, the employee is said to be "making production." The box department, where Childress worked, had a so-called incentive system which was based upon the total production of the entire department. Under this system, the individual employee's earnings depended upon the entire department's total output for a specified period of time. In other words, all box department em- ployees received the same amount of pay except, of course, where an employee put in more time than his fellow employees. On cross-examination, Childress testified that after he returned to his job on or about June 22 from his May 29 layoff, that until August 21, neither Bowden, his foreman, nor Grant complained to him about the quantity of the boxes he was sanding nor the quality of his work. He testified that Grant told him on one oc- casion that he could have his job as long as he wanted it. James L. Bolton, who was assigned the part-time daily task of helping Childress sand, testified that Childress was a willing and conscientious worker. 387644-56-vol 114-31 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ''Grant, on the other hand, testified that James Childress was not laid off but discharged for inefficiency on May 29, 3 weeks after he commenced working for the Company, and that he was not told at that time that another job would be found elsewhere for him in the plant. However, Grant's testimony in this regard is not credited, in view of the uncontraverted fact that Childress was called back to the same job on June 22 by Grant, despite his claimed incompetence. Grant's testimony reads as follows: I put him on the job sanding. He worked for about 3 weeks on the sanding position and as the boxes came off of the line, he failed to keep up with keeping all the sanding work caught up to date, and from time to time there would be an accumulation of boxes back of him that required the help of other people in the shop to help him sand them and get them off the floor, and the employees complained about it. . Well he made no effort to im- prove the condition after I discussed it with him.60 I had to discharge him for that. I told him I had to take steps to see that the condition was corrected and he hadn't done it. Grant denied Childress' version of what occurred on May 29 and August 21, the last day he worked for Respondent. Grant's testimony as to what occurred follows: Well, after I had discharged him that time, his wife, Ethel, still continued to work in the factory, and every morning when he brought her to work . he was constantly asking me to rehire him and give him another chance. Well, I be- lieved he would make another effort. There was two or three weeks elapsed in that time. In the meantime I had employed two different people on his job. He returned to work in June between that time and August 21 I had occasion to talk to him about his work quite often. On the morning of August 21, on my inspection around the plant . I first saw the boxes accumulating behind the place where he worked. I told him to hurry up and get caught up with his work. About 12 o'clock that day I heard a knock on my office door and Jack Childress came in He said something about he couldn't satisfy me or please me with his work, and that it was impossible for him to keep up with the pro- duction due to the fact that he had a couple C_ singers off of his hand, that the fact of the matter, he, neither he nor Ethel, neither one of them was happy there, and that he thought that he should quit. Fact of the matter, he thought they both should quit. ... 61 Grant testified that the same afternoon Childress left the Company's employ, an- other employee, Doc Leeton, who had started working for the Company that same morning, immediately replaced Childress on the job of sanding. When Grant was asked on his cross-examination why he did not "put Leeton to work on Jack Childress' job immediately in the morning [of August 21] if Jack was performing so poorly up to August 21, 1953," he answered, "I didn't need him in there because I didn't know Jack was going to quit at noon." Grant testified on cross-examination that he never told Bowden, Childress' fore- man, nor any of the employees that Childress had quit his job but Bowden testified that Grant told him immediately afterwards that Childress quit. Bowden also testi- fied that Childress told him on the morning of August 21 that he was going to quit It was also elicited that Grant did not seek a replacement for Childress from May 29 until August 21, because as Grant testified at one point in his cross-examina- tion, "because I didn't," and at another point, "I had no particular reason to look for one." It was stipulated that for the week ending May 23, Childress worked 483/4 hours; for the week ending May 16, he worked 171/2 hours; and for the week ending May 9, he worked a total of 233/4 hours. It would appear, therefore, that Childress did not work a full 40-hour week the second or third week of his employment.62 C. W. Martin, who is presently employed by Respondent and who was working for the Company when James Childress' employment terminated on August 21, testi- fied that on August 21, between 4.30 and 5 p. in., he had a conversation lasting ap- 00 Giant, when asked by counsel if he reprimanded Childress more than once, answered : "Much more than once." 01 In the interest of brevity and clarity, Grant's testimony has been edited with respect to its form but not as to its substance. 02 The record does not indicate whether Childress not working the usual 40 hours the second and third weeks of his employment was the reason for his inability to keep abreast of the sanding job. . `I . ` - - SARDIS LUGGAGE COMPANY,' • : 469 pr`oziniately 20 minutes with Childress on the streets of Sardis. He testified as follows: As I left the plant, I noticed that the box shop crew was still working, and I drove on uptown and parked so my wife could go to the grocery store and Childress came up to the truck where I was at. . . . I asked him "What is the matter with you?" 1 noticed the rest of them were still working. I said, "Are you sick or something?" And he said, "No I quit." . He said he was handicapped because he had two fingers missing off his hand and he could not keep up with the other boys and do the work, and he decided the best thing he could do was to quit. Excerpts from Martin's cross-examination follow: When Martin was asked whether those were the "exact words" that Childress used in explaining why he was no longer in the employ of Respondent, he answered: "It was the exact words." When Martin testified that his conversation with Childress lasted about 20 minutes, he was asked: Q. What else was said in the conversation? A. Oh, I don't know. Just routine like two people met on the street and talked. Q. You don't remember anything else in the entire conversation? A. No, not exactly. Q. But you remember that he said those exact words? A. Yes. When he was asked to repeat on cross-examination "those exact words again" he repeated the street conversation with Childress in language almost but not quite in haec verba of what he testified to on direct examination. Later, in Martin's cross-examination, the following colloquy appears between the General Counsel's representative and Martin: Q. And you don't recall one'other thing that was said in that entire conversa; tion lasting 20 minutes? A. No, not exactly. Q. Those are the only words you remember in that entire conversation, is that right? A. Yes, sir. On rebuttal, James Childress denied that he ever had such a conversation with C. W. Martin on the afternoon of August 21 in which he told Martin he had quit his job with Respondent. - On cross-examinaiton Martin stated that he had received a letter from the Union sometime in September and that he had brought it to the plant and placed it on Grant's desk. He testified that at the time he placed the union letter on Grant's desk, he neither saw nor spoke to Grant. The affidavit which Martin gave to a Board in- vestigator on September 17, 1953, states that he was mailed "some literature" by the Union which he received on September 4, that he took it to the plant the same day, and that Grant was there when he arrived at the plant. The statement continues that Martin turned over to Grant the union letter he received and the one received by his wife; Ruth Martin. Conclusions We have presented here then, a situation in which the General Counsel claims that Childress was discharged for his union activities whereas Grant's version, which is corroborated by Martin and Bowden, is that Childress quit voluntarily because the work was too difficult for him. Nevertheless, after observing the witnesses, analyzing the record and inferences to be drawn therefrom, it is concluded that Childress was discharged because of his activities on behalf of the Union. Childress appeared to be a sincere and truthful witness and the events narrated by him follow a logical sequencer which are consistent with the attendant circumstances in this case. The probative value of Grant's testimony regarding the circumstances of Childress' termination is a matter of credibility and if such testimony is substantially contradicted by other ev-r dente and accompanying circumstances, as it is in this case, the Trial Examiner is not iequ>.red to accept it 63 Martin's testimony was self-contradictory and inconsistent as 83 N. L. R.- B. By. The Ann Arbor Press, 188 F 2d 917, 925 (C. A. 6) ; Victor Mfg. h Gasket Co, 174 F. 2d 867, 868 (C. A 7). 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pointed out above. It is also incredible, when it is considered that in his 20-minute conversation with Childress, Martin remembered nothing else, except his uncanny recollection of the "exact" words used by Childress in relating the circumstances under which he left the Company's employ. When Martin's testimony at the hearing is com- pared with the sworn statement he made on September 17, 1953 (General Counsel's Exhibit No. 9), it is concluded that what he testified to is unreliable and unworthy of belief.64 At the height of the Union's organizational drive at the plant, Childress was one of the leaders and perhaps the most prominent and active advocate in attempting to or- ganize the Union. The Respondent's animus against the Union has been established,65 as well as its awareness of James Childress' union activities prior to the time his em- ployment terminated on August 21, 1953.66 Furthermore, it stretches credulity too far to believe that there was only a coin- cidental temporal connection between Childress attending a union meeting on Tues- day evening, soliciting employees to sign union cards on Wednesday and Thursday, and his discharge on Friday. Moreover, it is believed that Leeton's hiring which was virtually contemporaneous with Childress' leaving, indicates that Grant hired Leeton in anticipation of firing Childress 67 Then too, it is significant that although Grant contends Childress voluntarily quit his job, yet the Company paid him off in full the same day his employment terminated. When Grant told him he was fired, he had Childress' check ready for him which covered the pay period for the week pre- ceding the week he was discharged. It is true that the money owing Childress for the last week he worked was not immediately paid to him at the same time he re- ceived a check for the preceding pay period but, and this is highly significant, Grant told Childress at the same time he told him he was fired that Turner, the office man- ager, was "now" at the bank getting money to pay Childress the balance of what was owing him. Equally significant is the revealing fact that when Bratton left the Re- spondent's employ, and it is uncontradicted he voluntarily quit, that he had to wait until the regular payday, at which time he returned to the plant, to pick up his pay. In Burk Bros. v. N. L. R. B,, 117 F. 2d 686, 687 (C. A. 3), it was held that an em- ployee was discharged rather than laid off because he was paid off immediately and not on the regular payday. Argumentatively assuming that Childress quit and was not discharged, nevertheless, discrimination may manifest itself in actions other than outright discharge, as for instance, forced quits.68 If the discriminatory action of the employer has created Prior inconsistent statements are admissible not as affirmative evidence to prove the truth of what they affirm, but only as matter tending to show that the witness is not creditable, because he has changed his story. N L R. B. v. Quest-Shon Mark Brassiere Co., 185 F 2d 285, 289 (C A 2). - Is Both Grant's and Holtzman's unequivocally expressed sentiments show this, as well as their actions in hindering the Union's organizational campaign by interrogation and intimidation of its prounion employees, when they interrogated them with respect to their own and other employees' membership and activities, and threatened to close the plant if the Union were successful in its organizational campaign. 80 Grant, on direct examination, testified that he learned on August 21, 1953, that a union was attempting to organize the employees of the Respondent Company. Grant went on to testify when asked if he noticed anything "unusual" in the plant prior to August 21, that, "people [werel getting together and gathering and when I approached them they dispersed and went back to their work. I asked them, `What is the matter, have I got the measles"' " He also inquired of his foremen if they knew what was going on in the plant. In addition, the record is replete with evidence, including Jack Childress' credited testimony, showing that Respondent was aware of union activity prior to the-time Childress left, and it is so found Victor Tidwell and Glover Jackson testified that Childress was working for the Company when Grant interrogated them with respect to their union activities and Grant, in the course of interrogating Jackson on August 20, stated that he knew the Childresses were in the forefront of the union activities at the plant. Bowden, foreman of the box department, who was reluctant to state frankly any matter adverse to the Respondent's interest, so that at times this characteristic approached evasion, is not credited with respect to his testimony that he knew nothing about union activity prior to Childress' discharge or that Childress told him he was quitting 137 When Childress was fired around noon on August 21, Leeton immediately took over Childress' sanding job See News Printing Co., 110 NLRB 1265; Serv-Air Aviatwn, 111 NLRB 689 61 N: L. R. B. v. Newton Brothers Lumber Co., 214 F. 2d 472, 475 (C. A. 5). SARDIS LUGGAGE COMPANY 471 a situation so intolerable to the employee that he quits his job, the employer may be guilty of a constructive discharge.69 In this case, Grant at about 10 a. in., on August 21, told Childress that he would have to sand by noon, without assistance, all the boxes which had then accumulated and which he had fallen behind in sanding plus those boxes that would come off the production line in the intervening 2 hours. This, as Grant knew, was an impossible task for 1 man 70 as he himself recognized by the fact that he not only gave Childress additional part-time help every day, but also he assigned 2 men regularly to the sanding job after Childress left the Respondent's employ 71 When Grant gave Childress this im- possible task of sanding not only the accumulated boxes but also those that were to come off the production line by noon, it was tantamount to a forced quit or a con- structive discharge. Furthermore, it is the belief of the Trial Examiner that Respondent discharged James Childress because the record shows that the employees were under that im- pression as evidenced by the following incidents. Bratton testified that 4 days after Childress left, he accused Grant of firing Jack Childress because of his union activ- ities. Grant's answer to this accusation is revealing when he said: "No, we fired Jack, because he couldn't make production." This is contradictory to Grant's testi- mony' that Childress quit. At the time of the hearing, though he worked continuously in the box department, Carl Brown still thought James Childress "was laid off or fired." When James L. Bolton, a company employee, was asked if he knew the nature of Childress' separation, he testified: "All I heard, he was fired and laid off." It will be recalled that the box department had an incentive pay-rate system which was based on the total production of the entire department. Under this system, the individual employee's earnings depended upon what was the entire department's total output each week. It will be noticed by referring to Jackson's earnings 72 (who worked in the box department with Childress) that during the first 3 weeks of August, Jackson's earnings were as high or higher than during any other period of time. This would appear to indicate that Childress was not inefficient as produc- tion in the box department did not suffer during the period of time Childress was employed but that his termination was due to his union activities. Argumentatively assuming that Respondent may have had some cause for dissatis- faction with Childress' work prior to the termination of his employment, yet, as the Court of Appeals for the Third Circuit observed in a somewhat similar case, "it apparently became intolerable only after he had joined the Union." 73 On the basis of the foregoing and the entire record, including Respondent's interrogation and threats, the suggestive circumstances inhering in the precipitate severance of Childress almost contemporaneously with his attending a union meet- ing and soliciting employees to join the Union, it is found (contrary to Respondent's contention that James Childress quit voluntarily) that the motivating cause of his termination was his union activities. This discharge constituted an interference with, restraint, and coercion of James Childress in the exercise of his rights provided for in Section 7 of the Act and was discrimination in regard to his hire and tenure of employment, thereby discouraging membership in the Union, in violation of Section 8 (a) (3) of the Act. N. L. R. B v. Stowe Spinning Co., 165 F. 2d 609, 615 (C. A. 4); N. L. R. B. v. Nemec Combustion Engineers, 207 F. 2d 655 (C. A. 9), enfg. 100 NLRB 1118. b. Ethel Childress Ethel Childress, wife of James, was employed by Respondent on May 8, 1953, and worked until August 21, 1953. She worked in the sewing department which comprised 13 employees and her forelady was Ruby Jones. When she began work- 80 Hamilton-Scheu & Walsh Shoe Co, 80 NLRB 1496; Macon Textiles, Inc., 80 NLRB 1525, 1531. 70 The various witnesses who were familiar with the sanding job and who testified as to its difficulty agreed that it was not an easy job Carl Brown who is presently employed by the Company, testified as follows : " it was a little too much for one man. They have had two on practically ever since [Childress left]." 71 Jackson and Calvin G Brewer testified that after Childress left, both Brewer and Leeton were assigned regularly to the sanding job which Childress did by himself, except for the part-time help Chidiess received from one other employee. Brewer testified that from September 15, 1953, to November 2, 1953, when he and Leeton both sanded, that. Inman , another employee, helped both of them sand on 1 or 2 occasions , when they were unable to keep up with sanding the boxes as fast as they came off the production line. 72 Section III, C , 3, d, of this report. 73 N L. R. B v. Electric City Dyeing Co., 178 F. 2d 980, 983. - 472 DECISIONS OF[ NATIONAL LABOR' RELATIONS BOARD ing' for the Company, she was earning 75 cents an hour. On August 10 74 the sewing department employees went on a production rate system which is also referred to here- in as the "incentive system" and "piece-rate system." On August 17, Ethel Childress testified that Grant told her if she produced the quota of work assigned to her, she would receive 85 cents per hour. She told him, she said, that her assigned quota was so great that she did not think she could turn out that number of pieces of work. Grant told her, she testified, that he did not expect her ,to fill her quota at the beginning but that he would expect her to do so by the end of 3 weeks. She told him that if at the end of 3 weeks she was not earning 85 cents ,an hour, which would mean she was not filling her quota, she would quit, as she was unwilling to work for 75 cents an hour. To this, Grant replied, according to Ethel, that he was certain she could make her production quota, but if she was unable to do so, she would not have to quit as she would be fired. He explained, however, that this applied to all the employees in the sewing department and not her alone. Childress testified that up to August 20, she worked on 3 different machines in the course of a day and that from the outset she made her production on 2 of these machines, but not on the third. However, on August 18, she testified Grant in- formed her that of the 13 employees in the sewing department, she was the third highest in production. That same evening, August 18, she attended a union meeting for the first time, signed a union membership card, and on the following 2 days solicited and obtained 'the signatures of 13 employees to union membership cards, which she mailed on August 21 to Wertz, the union organizer. When Childress came into work at 8 a. in. on August 21, and before she began operating her machine, Ruby Jones, her forelady, told her not to work on the machine she had been operating the past 3 months but to operate another machine which entailed a slightly different operation from the machine she was accustomed ,to operate.75 She operated this new machine until it jammed on her, whereupon Jones assigned her to another machine. Ten minutes later the jammed machine was repaired and she returned to operate it. When Childress asked Jones why she had been transferred from the machine she was accustomed to operate, Jones told her, ac- cording to Childress, that she did not know but those were her orders. Shortly after this, at 10 a. m., Jones told her to "push rods" which she did for 2 hours. This operation, Childress testified, which was usually assigned to "new em- ployees and which she had not done since she first began working for the Respondent, ,was laborious and wearisome work.76 She testified that sometime after she began working for the Company, she had told Jones that if the Company should ever want .to get rid of her, all they would have to do is assign her to pushing rods and she would ,leave. After lunch, at 12:30 p. in., Jones transferred her again to operating still another machine which she continued to do until 4 o'clock that afternoon. At that time .Jones told her that Grant wanted to see her in his office. Ethel Childress' testimony follows: [When she arrived at Grant's office, he said: ] "Mrs. Childress, didn't you tell us that you wouldn't work for 750 an hour?" I said, "Yes, I did." He said, "`Well, we took you at your word and we are letting you go." And I said, "Well, Mr. Grant, I said I wouldn't work for 750 an hour but I agreed to give it a try of at least three weeks before I gave the job up." And he said, "Well, we are just going to let you go " He said, "We have tried you and you are not doing your work." And I said, "Well, my records don't show that, my records show I'm doing my work." I said, "On Tuesday you told me that in the department I was 3rd highest." And I said, "My production sheets show I have made production an one machine and come within about 400 of making it on the other machine." He said, "Yes, I told you that on Tuesday 77 but you have done less work each day." I said, "I may have not done any, more ++A stipulation was entered into between counsel which states that "the incentive piece-rate basis of payment was installed in the sewing department of this plant in the ,week ending August,15, 1953" Since August 15 is a Saturday, the system evidently went into effect at the beginning of the week or 'Monday, August 10 ","The machine she had always operated up to this time was assigned to another 'employee by the name of Earline Henson '+B On .cross; examination Jones' testified that it was difficult for a girl pushing rods to make hei• production because the job required that a rod be inserted into a snugly fitting aperture and that considerable care had to be taken not to tear the, fabric. , 77 This was Tuesday, August 18., , , , SARDIS LUGGAGE COMPANY 4-73 but I certainly haven't done any less." So then he said, "Mrs. Childress, I come to Sardis to make'it my home for a long time to come, in order to do that I have got to do my job, too." He said, "I was told to let you go, I am discharging you now." Thereupon, Grant gave her a sealed envelope containing a check which covered her previous week's pay and also cash which represented her pay for the current week. Q: Was the check and the cash ready and available at the time you came in for the conversation? A. It was on his desk in plain view when I went in the office. Grant's version as to what occurred when he called Ethel Childress into his office about 4 p. in. on August 21 follows: I remembered Jack Childress' remark . . . about both he and Ethel were unhappy and in fact he thought both of them should quit although she had not so expressed herself to me, so I called her in for a clarification that just to be certain I would have some body in on Monday morning. . . . I asked her if she -was going to be in on Monday morning and she told me no. . She said she was quitting. . . . She said she couldn't work for 75 cents an hour. I couldn't remember the entire conversation she went into but she didn't think it was possible for other people to do it and that she -would like to see other people do it, come back later to see if I had a girl that could do that quantity of work and just along that line... . Ruby Jones, Ethel Childress' forelady, testified that when Ethel left on Friday, August 21, another operator, a new employee, took her place on the following Monday. Jones also testified that shortly after her department went on a piece-rate basis that Ethel told her that she did not believe that she would ever turn out the quota of work assigned to her. Ethel stated, Jones testified, which was corroborated by James Arnold, an employee, that she could not and would not work for 75 cents an hour. However, on cross-examination, when Jones was asked if she knew why Ethel Childress left on August 21, she testified, "I don't know what her reason was for leaving." Earline Henson, formerly employed by Respondent, testified that between 2 and 3 p. in. on August 21, after Ethel learned her husband had left the Company's employ, Ethel said to her: "Well, I am not going to quit . . . they will just have to fire me first." Discussion and Conclusions From the very nature of the issues here presented, it must be determined first, whether Ethel Childress quit, or if not, whether Respondent discharged her for cause or because of her union activities. If it should be determined she did not quit, then deductions must be made and inferences drawn in an endeavor, so to speak, to read the minds of the various witnesses in order to determine whether lawful or unlawful considerations motivated Ethel Childress' termination with Respondent. Motivation is a subjective matter, which if found, must be found from objective circumstances established by the record after duly considering all counter- vailing testimony. - One of the objective circumstances considered of significance in determining the salient issues herein, is the fact that Ethel Childress, like her husband, was an ardent union supporter who actively assisted the Union in its organizational campaign at Respondent's plant, and was known generally by her coworkers as a staunch advocate of the Union. Another objective circumstance is the Re- spondent's animus against the Union, as well as its awareness of Ethel Childress actively and successfully soliciting members for the Union prior to the time her ,employment terminated. Furthermore, Ethel Childress' employment terminated simultaneously and precipitately within a few days after the Union' s organizational drive began. Considering these objective circumstances, in connection with her husband's activities, who -was one of the leaders in the union movement at this plant of less than 100 employees, it is concluded there is a causal chain linking ,both Ethel and James Childress' termination to their own as well as to the others' union activities Furthermore, it is believed that Respondent thought it imperative to rid itself of both Childresses as it would be unrealistic to have one remain. The inference to be drawn -from these objective circumstances is that Ethel Childress did not quit voluntarily but that she was discharged by Respondent for her union activities. This conclusion is fortified when it is considered that after Ethel and James Childress left Respondent's employ, Grant cautioned both Jackson and Durham 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not to associate with them. These warnings, which show Grant's hostility toward them, and made after the date of their discharges, are relevant as reflecting Grant's attitude toward them at a date closely following the date of their discharges as it indicates what his attitude toward them was immediately preceding that event.78 Also indicative of Grant's antagonistic attitude is Ethel Childress' testimony that at the time of her discharge, Grant told her to stay away from the plant and if she wanted to see any of the employees that she should visit them at their homes. . Then too, Respondent's actions on the day Ethel Childress was discharged are significant. Respondent's discriminatory motivation manifested itself in trans- ferring Ethel from the machine she invariably operated to a new machine; assigning her to "pushing rods," a more arduous job than she formerly did; 79 and finally, toward the end of the day, again transferring her to less desirable work than she had performed heretofore. Then too, and this is also a significant aspect of Re- spondent's antagonistic attitude toward Ethel Childress-these transfers on the last day she worked, adversely affected her earnings. It is clear from this conduct that outright discharge is not the only form of discrimination. In fact, an ostensible resignation may be a constructive discharge if the employer has imposed upon the employee working conditions which induce her to quit.80 As in' the case of her husband, so too, the circumstances surrounding her dis- charge, show she was paid in full immediately at the time Respondent alleges she quit. In fact, Ethel testified that when Grant called her to his office to tell her she was fired, the envelope containing her pay was already on his desk, and that when she was leaving the plant her timecard was not in the rack, although the other employees' cards were there. This evidence indicates a discharge rather than a voluntary quitting.81 With the collapse of Respondent's defense that Ethel Childress quit her job, there is no other explanation for her leaving than to con- clude that she was discharged because of her union activities.82 Based upon Ethel Childress' credited version of her termination it is found, therefore, that she was discharged (and did not quite as Respondent contends) and that her discharge was motivated by her union activities and by Respondent's re- sentment against the Union, and constituted a part of Respondent's course of conduct designed to discourage union activity in violation of Section 8 (a) (3) of the Act. c. Louise Durham Louise Durham was employed by Respondent in its sewing department from May 13, 1953, to October 12, 1953. After a training period of 3 weeks, she was assigned to operating a bar tacking machine 6 hours of each working day, and the remaining 2 hours she "pushed rods." Durham, in common with the other employees in this department, was given a quota prescribing the number of pieces of work she was required to produce each week. Grant told Durham that if her assigned quota was made, she was to receive 85 cents an hour. If she did not produce her quota her earnings would be less than 85 cents an hour but in no event below the statutory minimum rate of 75 cents per hour. After a trial period of 3 weeks, Durham testified, she was able to make her daily production quota on the bar tacking machine, which she operated 6 hours a day, but the remaining 2 hours of each working day which she devoted to "pushing rods" was such a difficult task, both from the standpoint of difficulty and physical effort, that her daily production fell below her assigned quota. She also testified that when ultimately she had become sufficiently adept at "pushing rods" to make her daily production quota, she was then transferred to sewing and turning pockets on luggage interiors, which decreased her overall daily production to the point where she was again unable to fill her quota. At the request of James and Ethel Childress, she signed a union membership application card on August 19, 1953. In addition she advised four of her coworkers that they could obtain union cards from Ethel Childress. 78 Angwell Curtain Co v N L. R. B., 192 F. 2d 899, 903 (C A. 7). 79 See Revlon Products Corp. v N. L R B, 144 F. 2d 88 (C. A 2), enfg. 48 NLRB 1202, 1216-1219, involving the discharge of an employee, active in union affairs, who was repeatedly transferred from one job to another, at which it was known he was less efficient, in order to trump up charges to justify his dismissal. 80 Polynesian Arts, Inc, 100 NLRB 542, 553; Carthage Fabrics Corp, 101 NLRB 541, 565-567 81"Burk Bros. v N L. R B., 117 F. 2d 686 , 687 (C A 3). 89 J. A. Bentley Lumber Co. v. N. L R B., 180 F. 2d 641 (C A. 5). -SARDIS LUGGAGE COMPANY 475. At the close of work on August 21, the day that Ethel and James Childress' employment terminated, Durham testified that she spoke to Russel Barefield, the Mayor of Sardis, and told him that on the basis of what another employee [Mrs. Johnson] had said, she was under the impression that she may have violated the law in signing a union card and asked the Mayor's advice about this matter. He assured her that she had not violated any law.83 On August 28 Grant told her, she testified, that he was disappointed because she had signed a union card. A week later Grant asked her if the two Childresses had not visited her at her home the preceding night and when she replied they had, he cautioned her not to see them again. She informed Grant they were her friends of many years standing and that she would continue to see them. About the same time, Durham testified, Ruby Jones apprised her that investigators might be coming to her home to speak to her and she queried Durham as to how she felt about Unions.84 Durham told Jones that she: didn't believe that a union was the wrong thing because there were too many people belonged to unions for them not to be for the good of the people, and [Jones] went on to tell me about how bad it was and strikes and riots . . . it would even be dangerous to work if they did have a union there, and I told her I was neither for nor against the union. 1 couldn't possible see how it was wrong for the working class of people. . Mrs. Jones told me she knew who all signed union cards and I told her I didn't care if she did know I signed one. Durham also testified that she received a letter from the Union on September 4 and Jones, that same day, told Durham that she would receive such a letter shortly, and when she did, "to show our loyalty to Mr. Grant, we should bring the letter in to Mr. Grant, and I told her that I felt mail was personal, and I didn't think we should be required to bring the letter..... On September 8, however, Durham brought the union letter to Jones. On September 12, Durham went to Grant's office to speak with him about her, "make-up" pay which had amounted to $1.57 the preceding week.85 She requested Grant to permit her to operate the bar tacking machine for 6 hours and for the re- maining 2 hours either to push rods or turn pockets, but not both, as she was now doing, because performing 3 operations so decreased her production, she told him, that she was unable to make her quota. Durham assured Grant, she testified, that if he would permit her to do this, she could make her production quota. Grant told her, she testified, that her makeup pay of $1.57 for the preceding pay period was so nominal that she should not be concerned about this small amount. Durham testi- fied that she told Grant: If I seen I couldn't make it I would rather quit and he said I didn't have a thing to worry about along that line, that they always talked to employees two or three times before they fired them or discharged them, and as far as the make-up was concerned [there] was several [employees] that had a lot more make-up than I did, which I already knew, but that didn't alter my situation. After they had completed this phase of their conversation, she testified, Grant told her that a merchant in town had informed him that she was still in favor of the Union. Durham admitted to Grant that she had signed a union card, but told him she was neither for nor against the Union and did not feel that she had "to apologize to anybody for signing a union card." 86 Two days later, which was Monday, September 14, Jones told her that beginning that day she was to operate her bar tacking machine only 5 hours, daily, instead of 6 hours, as she had been doing previously, and that the 2 hours which she devoted formerly to pushing rods and turning pockets would be increased to 3 hours daily. It will be recalled that Durham testified she made her production quota on the bar "'She testified Grant told her a week later that Mayor Barefield had informed him she was in to see him about the Union 94 Jones also read a typed notice to Durham which was brought to the attention of all the employees in which Respondent advised them that they "do not have to give oral or written statements to Labor men or anyone else " (Respondent's Exhibit No 12 ) w Makeup pay is the difference between actual piece-work earnings and the statutory minimum wage of 75 cents per hour When an employee under the system which Respondent established at the plant failed to make her production, the Company was required to make up the weekly deficiency which represented the difference between her production and the statutory minimum hourly wage rate of 75 cents per hour. 116 Both Grant and Jones denied these various incidents occurred. 476- DECISIONS OF NATIONAL LABOR RELATIONS BOARD tacking machine, but the 2 hours she spent each day on pushing rods and turning pockets (which was now increased to 3 hours ), decreased her overall production to less than her assigned quota and her earnings to less than the statutory, minimum hourly rate. The same day that Jones told her this, Durham went to Grant's office and requested him to return the union letter which she had turned over to him. Durham testified that' he denied he had asked her to bring the letter to him, but acknowledged he had it in his possession. Nevertheless, he refused to return her union letter.87. During this same conversation, Grant told Durham, she testified, that if any of the employees should be interviewed by investigators, it would be better to say noth" ing because those employees who talked would be the ones who would be subpenaed to testify in court.' To this, Durham testified, she replied, that she "didn't have any- thing to be-ashamed of and I wouldn't be afraid to go to court, and tell the truth... - - A few days later, Durham testified, Jones told her just as. she was about to begin work for the day, that Grant had ordered her to take Durham off the bar tacking machine completely, and assign her to pushing rods and putting hooks on curtains, a job done up to that time by an employee named Virginia White who, in turn, was assigned to operating Durham's machine. White had begun working for the Re- spondent approximately 3 to 4 weeks prior to this transfer. At the close of work that day, Durham asked* Grant for an explanation of her transfer from her machine. He replied, according to Durham, that she had not been making sufficient production. To this, Durham testified, she pointed out to him, that she had made production on her bar tacking machine; that it was only on push ing rods and turning pockets that her production fell below the quota. The following evening, a Board investigator came to her home to whom she gave a statement. Several days. later in a conversation with Jones, it was mentioned by Durham that she had spoken to a Board inyestigator. Durham's testimony continues as follows: I told her that I had talked to him and that I didn't have anything to deny to any- body, that I told the truth and I didn't have anything to hide from Mr. Grant- or anybody. About the first of October, Durham testified that while Grant was passing through that part of the plant where she worked, she stopped him and asked if he would, check some work she was doing. While he was checking her work, Durham testified that he asked her if she had seen Ethel and James Childress again, and she said she' had, whereupon Grant said, "I warned you about the matter before, I talked to you before about that." From the time of this conversation until her employment terminated on October 12, Durham testified she never again worked on the bar tacking machine. She was moved around doing various jobs, including inspecting 88 and washing luggage. The latter assignment, Durham testified, was in the box department whose foreman was Bowden, and required her "to keep [her] hands in hot water all the time, and keep the water real hot to wash that glue off the suitcases." Durham was transferred next, she testified, to pushing rods, putting on hooks; and placing hangers in wardrobe suitcases which she continued to do until the last day of her employment.89 Durham also testified that during the entire time she was employed neither Grant nor Jones, her forelady, ever complained about her work and during the last 3 weeks she worked for Respondent she never received a complaint with respect to the quantity or quality of her production. - On the day she was discharged, October 12, at between 4:15 and 4:30 p. in., Dur- ham testified that Scallorn, who was her foreman at that particular time, told her'to go to Grant's office. As she was preparing to go, Scallorn told her, Durham testi- fied, "I'd been the best help . on putting those hangers in the suitcases and put- ting the paper dresses on the hangers, and he said that I was the only one they had so far that hadn't had to have help, the other girls had to stop and help and he was BT At one point in his testimony, Grant acknowledged having such a letter in his possession , but at another place he denied this. se This was in another department whose foreman was Scallorn. ea The following colloquy occurred between Counsel for Respondent and Durham : Q You saw that girls were being transferred all the time as they were-needed, in much the same way, didn't you? A Not in the way they transferred me the last week. Q. You never saw anything like that before? A. No. SARDIS LUGGAGE COMPANY , , • , 477. sorry the couldn't keep me on......90 -On redirect examination, Durham testified,: that; on the last 2 days that she worked for Respondent she made her production; quota and Grant admitted to her that she did. Durham testified that when she spoke to Grant in his office, the following occurred:-, He told me that he had moved me all over that factory and couldn't find anything' that I could do and he was going to discharge me. I told Mr. Grant, "You know you're not telling the truth, you know that is not the reason you are dis-' -charging me. It has something to do with that Union." He said, "It wasn't," there was people working there that would be working there -a long time that' signed Union cards." And he said, "I had too much make-up." And I told him that I had less make-up than some of them that he hadn't moved around like I did and stayed on the same machine all the time, and I had less make-up than they had. And many stubs off my checks, we had compared make-up with our check stubs. And he said that I was mistaken, and I asked him if he would get the records and show me and he opened up that book, had yellow pages in, and along my name was several others, and they had more make-up than I had and the week he moved me three times, I had less make-up than they did. When Durham was asked at the hearing if she "made production," she replied that she did on the bar tacking machine which, before her transfer, she had operated 6 hours daily, "but where we switched from one job to the other, those two. hours . . . pushing rods or putting [on] pockets or sewing up pockets or turning pockets, or doing different things like that, changing up like that, I couldn't make enough to make 75 cents an hour." She testified that Grant showed her production record to her and it showed she made "eighty something cents on the [bar-tacking]' machine . but the other two hours pulled that down to below 75 cents an hour." Durham also testified that on the day she was discharged that when, Grant showe' her the production records of her department that she pointed out to him that' the records showed she had less makeup than other employees in this department. The discussion with Grant with respect to her production record continued, she, testified, with she contending that she had done well until Grant started to transfer her to more difficult operations that she was unfamiliar with, and then when she be-' came familiar with the new operation, he would again assign her to another unfa- miliar job. Finally, Grant brought the discussion to an end by discharging Durham and ordering Turner, the office manager, to pay Durham her salary. She received her pay in cash about 30 minutes later. The following account is a recital of the Durham discharge as testified to by Grant on his direct examination. When Durham first came to work for the Com- pany in May she operated a zipper machine. He transferred her from the zipper' machine to a bar tacking machine, because of the six zipper machine operators, "she was the poorest." She remained on the bar tacking machine for approximately 4 months when he transferred her to inserting rods because, "I was getting the poor- est quality of work at that time." 91 The last 2 or 3 weeks before Durham's dis- charge, he testified, she inserted rods in luggage interiors. Grant testified also that Sears-Roebuck, Respondent's customer, had been com plaining about the quality of the luggage, whereupon it was decided to inagurate . a program to improve the operating efficiency of the plant by discharging employees- who had proved unsatisfactory. He analyzed the records of each operator in the sewing department over the weekend preceding Monday, October 12, and decided to' discharge 3 employees, 1 of whom was Durham. The other two employees who were discharged were Mossie Appleton and Minnie Harden. Durham was discharged on October 12, Appleton on October 14, and Harden on October 16. Durham's job ' was not filled, but Appleton and Harden were replaced by other employees on' October 15 and 19, respectively. Grant testified that after he started to receive these complaints from Sears-Roe- buck, he would assemble all the sewing department employees once or twice a week and point out the complaints and request their cooperation in improving the quality' of their work 92 Durham's reaction to his talks to the sewing department employees, - ' Scallorn did not testify 91 The record is silent as why Grant had allowed Durham to continue to operate this machine for 4 months when he was "getting the poorest quality of work" from her. 92 Durham testified that she was called into Grant's office only on two occasions, along with all the other sewing department employees, at which times Grant discussed with them the quality' of their production On redirect examination, Durham testified that the only time she was ever called into Grant's office alone, was when he discharged her' on October 12, 1953. 1 • 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Grant testified, was, "[Durham] would say we were asking too much ... that she was being switched on operations, she couldn't stay on one operation all the time, we were expecting too much work out of her in a day, and her natural attitude all the time." Grant characterized Durham as "very uncooperative" and testified he had her in his office 8 to 10 times to criticize the quality of her work. At another part of his direct examination, when Grant was asked the reasons he discharged Dur- ha, he testified that "her work was unsatisfactory, her attitude was poor, production 16w'. .. I was annoyed at the way she would talk back and be pugnacious and argumentative...." On direct examination, Grant was asked the following questions: Q. Did Mrs. Durham accuse you at the time of the last conversation you had with her, did she accuse you of firing her on account of the Union? A. I can't recall. She said so much I really couldn't tell you. Q. Do you recall any reference to the Union on that last conversation? A. I cannot recall it, no, sir. Grant denied warning Durham to stay away from James and Ethel Childress. Also, when asked specific questions by Respondent's Counsel concerning particularized in- cidents, which the General Counsel elicited on Durham's direct examination, and all of which are described above under Durham's testimony, Grant denied that such incidents had ever occurred. Discussion and Conclusions There is here presented then a situation in which the General Counsel alleges that Durham was discharged because of her union activities and sympathies, and the Re- spondent denies this charge, contending that her employment was terminated because of inefficiency. , It must, therefore, be determined whether inefficiency was the real reason or a pretext. However, the existence of some justifiable cause for discharge is no defense, if it was not the moving cause. The coexistence of a separate, valid reason does not eliminate the unlawful aspect of the employer's action where motivated by a cause proscribed by the Act.93 This principle was stated in a recent case by the Court of Appeals for the First Circuit as follows: 94 Although the discharge of an inefficient Union member is lawful, it may be- come discriminatory if other circumstances reasonably indicate that the union activity weighed more heavily in the decision to fire [her] than did dissatisfaction with [her] performance. The state of mind of Respondent in discharging Durham is a question of credibility to be given to the witnesses who testified as to what ground the Respondent based the discharge. At various points in the record, as shown by the above related facts, there is a sharp conflict in the testimony. The matter of credibility with respect to the eval- uation of the demeanor of the various witnesses has already been discussed and re- solved in this report. Moreover, the trier of these facts was favorably impressed by Durham's testimony both on direct and on cross-examination, as it was found to be more consistent both with the attendant circumstances and the inherent probabilities of what are believed to be the facts surrounding her discharge. In addition to the de- meanor of Durham in resolving credibility, specific indicia will be discussed below which are peculiar to Durham's termination and upon which it is found she was dis- criminatorily discharged. Before leaving the question of credibility, however, men- tion should be made at this point, that it strains one's credulity to believe Grant's testi- mony that he did not recall at the time he fired Durham, whether she accused him of doing so because of her union membership. The inherent probabilities of such a situation would appear to indicate that Grant, who had had considerable labor rela- tions experience, would have remembered whether such a grave charge had been made by Durham against him. In considering the propriety of what the General Counsel contends was Durham's discriminatory discharge, the question is not whether it was merited or unmerited, just or unjust, nor whether it was mild or drastic. The only issue to be determined is whether the discharge was for Durham's union activities, affiliation, or sympathies. From an appraisal of the general situation and the surrounding circumstances, as well as the reactions of the employees and the unfair labor practices of the Respondent, which have heretofore been discussed, the Company's union animus has been estab- , e' Wells, Inc v. N L R. B, 162 F 2d 457, 460 (C A 9) ; N L. R B. v. A. B. ,winerton, Richard TValberg and Howard Hassard; etc.. 202 F 2d 511, 515-516 (C. A. 9) ; The Plastic Molding Company, Inc, 110 NLRB 2137 14 N. L. R. 8 v. Whiten Machine Works, 204 F. 2d 883, 885. SARDIS LUGGAGE COMPANY 479 lished. Both the acts and expressions of the Respondent show an improper attitude in union relations . The evidence shows the Respondent resorted to numerous devices to impede the efforts of its employees to engage in the freedoms guaranteed to them by Section 7. Company officials interrogated them concerning their union member- ship, the extent of their organization, the identity and union activity of other em- ployees, and Grant threatened liquidation of the business rather than allow it to be- come organized by the Union. Moreover, Durham's discharge cannot be viewed in isolation, separate and apart from Respondent's entire course of conduct, which was to thwart union activities at its plant. The entire scope of the labor dispute must be viewed in order to determine properly whether Durham was discharged discrim- inatorily. Against the charge of inefficiency alleged by Respondent for Durham's discharge, the following facts have been considered. It is undisputed that Respondent knew Durham had signed a union card prior to the time she was discharged. Then too, when it is considered that Grant admitted Durham antagonized and irritated him,95 it is reasonable to infer that he decided to rid the Company of her unwelcome pres- ence and pervading influence, not only because of her ominous friendship with the Childresses, but also for the following reasons which had antagonized him: (1) The mayor of Sardis informing Grant that Durham had discussed union matters with him; (2) Durham refusing to heed Grant's warning on 2 occasions that she should not associate with Ethel and James Childress, her close friends and neighbors for over 25 years; (3) Durham arguing to Grant that she recognized the value of labor unions; (4) reluctantly turning over to him the letter she received from the Union and later requesting him to return it to her which he refused to do; (5) telling Grant she would not "apologize to anybody for signing a union card"; (6) informing Grant she would not follow his advice that she not permit Board investigators to interview her and subsequently giving a statement to such an investigator; and (7) Grant warning Durham that those of the employees who talked to Board investigators would be subpenaed to testify and she telling him she was not afraid to testify 96 Furthermore, account must be taken of the summary and precipitate manner in which Durham was discharged and that it was made without even consulting Jones, Durham's forelady, who was in immediate contact with her and the quantity and quality of her work.97 Moreover, it has been found no one complained to her about her work, and is uncontradicted that Scallorn, a foreman, commended her. The reasons given by Grant for Durham's discharge are unconvincing. The particular faults urged by Grant as occasioning Durham's discharge are vague and general accusations which are equivocally unspecific. He described her faults as follows: "I was getting the poorest quality of work [from Durham] "; "she would say we were ,asking too much, that she was being switched on operations, she couldn't stay on one operation all the time, we were expecting too much work out of her in a day, and her natural attitude all the time . very uncooperative." He testified, which Dur- ham denied, that he had her in his office 8 to 10 times to criticize the quality of her work, without specifying what he found unsatisfactory with her work. However, and this is significant, Jones, her forelady, testified on direct examination that she never discussed with Louise Durham the quality of her work. In fact, on cross- examination, Jones testified, that 3 weeks before Durham's discharge, when she 95 Grant testified that he "was annoyed at the way [Durham] would talk back and be pugnacious and argumentative " 90 See Sanco Piece Dye Works, 38 NLRB 690, 726 (cited in Personal Products Corpora- tion, 108 NLRB 743, footnote 18), where it was held that respondent's efforts to dissuade an employee from testifying was an unfair labor practice f m Jones' testimony that Grant never discussed with her the efficiency. of an employee under her supervision before lie discharged her is unbelievable. On cross-examination, however, Jones inconsistently acknowledged that an employee named Coreen Scruggs was flied by Grant on her recommendation. When counsel asked her how she reconciled this with her prior statement that Grant did not first discuss employees' discharges with her, she denied that she had ever so testified. Jones' credibility is suspect, because of inconsistent testimony like this, including her denial that she knew of any union activity in the plant until Ethel Childress' discharge on August 21, although she later testified .that when the plant was opened formally on August- 24, she told Holtzman she knew nothing about union activity in the plant at that time. Grant, however, testified that he told Jones on August 21, the day Ethel Childress left, that employees had signed union cards ' Also, on direct examination, Jones denied Durham spoke to her about the union letter but later testified as to what Durham told her with respect to this letter. On cross-examination, Jones inconsistently denied she had ever discussed the Union with any of the employees. '480 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD was taken off her regular work and repeatedly transferred to new jobs, that she had ,no complaints about the quality of Durham's work. She also admittted that the employees had difficulty making their production quota when they were assigned to "pushing rods." There is no substantial evidence that Durham was less efficient than the average employee but even if the evidence compelled such a finding, it -does not necessarily follow that her alleged inefficiency was the main reason for her discharge. N. L. R. B. v. Smith Victory Corp., 190 F. 2d 56, 57 (C. A. 2). To the contrary, the evidence warrants the finding that there was a disparity in the treatment of Durham as compared with other employees whose efficiency records were not any -better than hers,98 but who perhaps, were more tractable and not as assertive in their union views 99 Such vague and unconvincing testimony leads to the conclusion that Grant's dissatisfaction with Durham was more fictitious than real and played no part in the decision to discharge her. There is considerable testimony in this case, with respect to Durham and Ethel and James Childress not producing the work quota assigned to them. Both Ethel -Childress and Durham in their testimony complained that the production quota as- signed them was too high. In James Childress' case, the Trial Examiner is con- vinced that Grant intentionally set an impossible quota for Childress on the morn- ing he discharged him, knowing full well Childress could not fill it. The Trial Examiner is not prepared to state whether, under all the circumstances, Respondent intentionally or discriminatorily set Durham's production rate at a level which was so high that it can be construed as an act designed to prevent her from attaining the required production goal which, in turn, would furnish Respondent a pretext upon which to discharge her.loo It is believed however, that the constant shifting of Durham from one job to another during the last few weeks of her employment was intended to prevent her from attaining her production quota, which in turn, adverse- ly affected her earnings and thus afforded Grant a spurious reason and a pretext to screen Respondent's discriminatory motive for discharging Durham. In other words, 'Durham's inability to produce her assigned quota of work was not caused by her alleged inefficiency but caused rather by the Respondent constantly transferring her from one job to another. Furthermore, Respondent's claim that Durham's discharge was motivated exclusive- ly by her repeated failure to attain the production goal set for her was not corroborated by the production of its business records to prove its oral contention. The unex- plained failure to support this charge by the production of documentary records, with- in the power of the Respondent to produce, renders the purported reason dubious and also warrants drawing an inference that if adduced, it would not have been favorable to the Respondent.loi There is another significant factor indicating that Respondent's determination to terminate Durham's services was discriminatorily motivated. The ban against dis- crimination for union activity extends also to discriminatory treatment of employees on their jobs, such as assignment to more difficult or disagreeable work because of the employee's union interests. In Durham's case, Respondent decreased the time she spent on the bar tacking machine from 6 to 5 hours, a machine on which she in- variable made her production quota, and assigned Virginia White, a recent employee, to operating Durham's machine. Concomitantly, the time Durham spent on the more difficult and disagreeable work of "pushing rods," on which she normally failed to meet her production quota, was increased from 2 to 3 hours. Then too, Grant made Durham's working conditions increasingly strenuous by successively trans- 'erring her from inspecting luggage to the arduous task of washing luggage. Based upon these indicia, it is concluded that all these various acts of Respondent in suc- In discussing the treatment given to other employees of comparable efficiency, no attempt has been made to estimate Durham's efficiency, but its purpose is merely to determine whether regardless of how inefficient she might have been her discharge was caused by her union affiliations and views rather' than by the manner in which she did ' her work. ° Then too, Durham was quite intense in her avowals of continued loyalty to the Childresses, who typified to Grant the sinister prospect of a potential nucleus for a `resurgent union movement at the plant. 100 On cross-examination, Ethel Childress testified that "it was going to be hard, if not impossible" to make production. "ii0, Interstate Circuit v. U. S., 306 U. S 208, 225, 226; N. L. B. B. v. Wallick and 'b"chioiilm Company, et,al., 198 F. 2d 477, 483 (C. A. 3) ; Concord Supplies & Equipment Corp., 110 '1873' (IR). In this connection the records which Respondent did produce are not probative of the issues in this case. ' SARDIS LUGGAGE COMPANY cessively transferring Durham from- one- undesirable job to another were discrimina- torily motivated. Furthermore, these punitive actions, it is believed, formed part of Respondent's plan to make. the unfavorable consequence of union sympathy clear to potential union supporters. Nor is it considered significant: that almost 2 months intervened between James and Ethel Childress' discharge and the discharge of Durham. In addition to -the- fact that Durham became increasingly irritating to Grant after the Childress' discharge, this hiatus may be explained on the ground that it was considered a respectable period of time should elapse before she was discharged in order to give the appearance of noninterference with Durham's statutory rights and to give the .false appearance of a discharge for cause. Inasmuch as the record is devoid of any substantial evidence that lack of qualifi- cations or any other valid reason played any role whatsoever in motivating Respond- ent to discharge Durham, the conclusion is inescapable that Durham was discrimina- torily discharged in violation of Section 8 (a) (3) of the Act. It is found, further- more, that the asserted inefficiency of Durham was seized upon by the Respondent as a pretext for its intent to remove a potential nucleus for a regenerated union movement by demonstrating to the other employees the threat of like action if they had any notions which were sympathetic toward the union movement or any of the discharged union proponents. d. Glover Jackson Jackson, age 62, began working for the Respondent in the box department in the early part of May 1953 and worked until November 3, 1953. His beginning wage rate was 75 cents per hour which was increased to 80 cents and then his department went on an incentive piece-rate system whereby earnings were measured in terms of production.102 He testified, that under this system, he generally made his produc- tion quota and never received any complaints from either Bowden, his foreman, or Grant with respect to the quantity or quality of his work. Prior to the time union actvity commenced at the plant, Grant told him, Jackson testified, that "he liked my work all right, and he liked me personally as a man." Bowden testified on direct examination, however, that "on many occasions" he reprimanded Jackson for the quality of his work, although Grant in testifying as to his reasons for deciding not to recall Jackson, did not mention this. Jackson attended union meetings (including the one at which the union organizer did not appear), signed a union authorization card, and successfully solicited nine of his coworkers to sign cards. As a result of his union activities, Jackson testified that he was interrogated on August 20, and thereafter, with respect to his own and other employees' union membership and threatened by Holtzman, Respond- ent's president, and Grant that if he continued to engage in union activities they would "make it plenty hard on [him]." On November 3, 1953, Grant told Jackson he was being laid off, along with six other employees in the box department. All these laid-off employees were subse- quently recalled by March 1954, with the exception of Jackson. In late April 1954, Jackson went to the plant, he testified, and requested Grant to take him back but Grant told him, "I can't promise you anything." He was never recalled. The Trial Examiner was favorably impressed with the sincere, straightforward, and honest 102 Jackson's gross earnings and rate per hour were as follows Rate Week ending Total pay per hour Aug. 1----------------------------------------------------- $43. 29 80 90 Aug. 8----------------------------------------------------- 44.18 82 60 Aug. 15 ------------------------- ----------------------------- 41.90 90.40 Aug. 22---------------------------------------------------- 41.72 91.50 Aug. 29---------------------------------------------------- 42 91 910 Sept. 5---------------------- ------------------------------- 42 03 90.60 Sept. 12--------------------------------------------=------- 23 42 95.60 Sept. 19---------------------------------------------------- 44.16 930 Sept. 26---------------------------------------------------- 39.51 $1 00 Oct. 3------,------------------------------------------------ 39.46 98.60 Oct.10----------- ------ -------- ------------------- --------- 41.12 96.40 Oct.17-------------------------- ------------------------ --- '39 16 $1'.10 Oct --------- 24-------------------------------- - - - -- - ------ 40.19 $1.04 . 06t.31 ---- -- - --- -- - - 40.06 $1. 02 482 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD manner with which Jackson testified.103 On the other hand, Grant's testimony; which is set out below, was not impressive. Grant testified Jackson was not recalled because of. "his age and physical condi- tion." He also stated Jackson's "general attitude with reference to the work was not too good." He went on to explain as follows:. I would tell what the quota should be, for example how many cases they were to make in that particular day in the box shop, and through something that might develop during the course of the day, I would have to go back and say that the box shop would have to make twenty or thirty more cases. First thing in the morning the box shop foreman would tell the men how many cases they would have to make and when I would have to increase it, possibly twenty or thirty during the course of the day, Mr. Jackson always grumbled about having to stay to do a day's work. Said he couldn't stand up any longer and felt that was all he was capable of doing. . In January when I was starting to go over the list of people that had been laid off [in November] and when we were starting to take some people back, I had occasion to come across [Jackson's] name I started to go over the rest of the people that had not been taken back and tried to find various positions for them throughout the plant as the condition warranted and I asked one of the people in the office to inquire and to find out for me what other abilities [Jackson] had or where else he worked and I was advised that the only thing they could find in any past record was that he had had varicose veins and could not stand or take any standing position for any great length of time. . Well, in view of his age and in view of his physical handicap, I felt he would be a poor compensation risk. Grant also testified that on one occasion, Bowden, Jackson's foreman, advised him that Jackson left work early one day. He also testified that Jackson complained about unloading lumber and that, due to his age, he excused him from this task. This was corroborated by Bowden. The Company, at the hearing, for the first time contended Jackson was not rehired because of his age and physical condition. This decision not to recall Jackson was not made until January 1954, but Grant did not notify Jackson of his decision at that time. Nor did Grant tell Jackson in April, when he requested any job available, what the reason was why he was not being recalled. At that time, Grant testified, he merely told Jackson, "[he] was not going to recall him," but Jackson testified that Grant gave him an equivocal answer, stating, "I can't promise you anything." Grant also testified that after he told Jackson he was not going to call him back, Jackson "started up a conversation about that he hoped I still didn't think he was in- volved with the union difficulty we had had, and so forth like that, and I told him, to, me that was a closed incident, I didn't discuss it." On cross-examination, Grant testified as follows: Q. From May through November you felt he was an unsatisfactory worker, is that right? A. We had various people, but he, let's say he was doing his job. He was. doing his work. Q. He wasn't really unsatisfactory. You just would have preferred some- body who was better than Mr. Jackson, is that what you are telling us? A. I would have preferred someone better than Mr. Jackson, yes, sir. Q. But you didn't hire somebody other than Mr. Jackson during that period? A. As far as his operation at the machine is concerned, Mr. Jackson performed it. Q. Now, why didn't you let Jackson out before November of 1953? Will you just state that. A. Because I didn't have the condiiton in the box shop that I had in other departments. In other words, the box shop was functioning, the work coming out of the box shop was being produced, and Mr. Jackson was standing at his, machine doing his work. 103 Although Jackson admitted he misstated his age when applying for a job with Respondent, this is attributed not to iniquitous prevarication tiut rather to the misguided zeal of a senescent who is embarrassingly conscious that the advancing years militate against him obtaining a job Respondent also argues that Jackson is unworthy of belief because he lied about his union membership and activities Under the circumstances of Jackson's interrogation, Jackson's untruthfulness is not consideied such an odious offense as to nullify his credibility as a witness. St. Louis Car Company, 108 NLRB 1523. p' . SARDIS LUGGAGE COMPANY 483, Q. Well, you could have gotten a replacement, say, in October, pretty easily, couldn't you? A. I wouldn't say that. I can't recall the availability of people at that time. Q. I see. His job was tough to train a man on? A. No, sir. Q. It was very easy to train a man? A. Yes, sir. Q. Would you say it was the easiest job to train a man on in that department? A. One of the easiest. Q. And it would,have been tough to find a replacement for Mr. Jackson, is that what you are telling us? A. No, I am not telling you that. * * k Q. And actually there was a considerable turnover of employees in that period,1 mean you were hiring and firing people, weren't you? A. That is correct. Conclusions As in the other three employees' termination, so too, the only question to be resolved here, is whether Jackson was not recalled on account of his union affiliations and activities rather than for some permissible reason. Grant was first called to the witness stand by the General Counsel. When asked why he did not recall Jackson to his former job, he answered, "Due to his age and physical condition." When produced as a witness by Respondent, in adduton to re- repeating the reason just quoted, he testified that: (1) "Jackson's general attitude with reference to [his] work was not too good"; (2) Jackson "grumbled" whenever he had to work beyond the regular quitting time; (3) Jackson, on one occasion, left work early for which Grant reprimanded him; and (4) when Jackson complained about loading lumber, he was excused from doing this work because of his age. It was undisputed, however, that both at the time of his layoff in November, and when Jackson asked Grant to take him back in April, that at neither time, did he tell Jackson that any one of the above-cited reasons had made Grant decide not to recall Jackson. All that Grant told Jackson in April when he came to the plant and asked for work was, "I can't promise you anything " It is significant that Jackson was not apprised at any time by Grant that he would not be recalled because of his old age and physical condition. Grant's silence, unexplained at the hearing, leads to a reasonable inference, that these additional and belated reasons were specious afterthoughts, used as a pretext to cover the fact Jackson was not recalled because of his union membership and solicitation of employees. Corroborative of this conclusion is the absence of any evidence that Jackson's health affected his attendance at work 104 or the quality of his work, as well as the fact that Grant did not learn of Jackson having varicose veins until the January following Jackson's November layoff. Grant's shifting reasons for explaining his decision not to recall Jackson, the Board has held in other cases, are often indicative of a discriminatory intent. Dant and Russell Ltd., 92 NLRB 307, 320; Intertown Corporation, 90 NLRB 1145, 1188. The giving of contradictory reasons may, of course, be considered in deter- mining the real motive ; N. L. R. B. v. Condensor Corporation of America, 128 F. 2d 67 (C. A. 3); and inconsistent explanations are a circumstance indicating the motivation. N. L. R. B. v. Somerset Shoe Company, 111 F. 2d 68 (C. A. 1). Finally, there is the variance between the reasons given at the hearing and Grant's equivocal response when Jackson asked in April if he would recall him.1o5 The Trial Examiner views as afterthoughts the other matters which the Respondent raised for the first time at the hearing and not at the time, of Jackson's layoff or his request to be rehired.106 . In contradiction of Grant's testimony that Jackson's attitude toward his work was "not too good," Brown and Brewer, coworkers, testified that Jackson was a 104 Jackson on cross-examination testified that he had varicose veins "for the past few years. Not enough to bother me with no work." 105 Significant also is Grant's testimony that at the time Jackson requested to be. re- hired, lie inquired of Grant whether his refusal to recall him was due to his union activities. 100 People Motor Express v. N. L. R B , 165 F. 2d 903, 905, 906 (C A. 4) , see Southern Furniture,Mfg. Co v. N. L R B , 194 F. 2d 59, 62 (C. A. 5). 387644-56-vol. 114-32 484 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD competent and efficient employee who to their knowledge was performing his assigned tasks in a satisfactory manner. Carl Brown also testified that he, never heard Jackson complain. Holtzman, on direct examination, testified that when he asked Jackson about working conditions in the box department, that Jackson answered: "He was satisfied, doing fine. . " It is not believed necessary for a disposition of the issues in this case to rationalize the spaced intervals between the two Childresses' and Durham's discharge with that of Jackson's, but it might be explained as a contrived plan or tactical maneuver designed to screen Respondent's true motive. It is found therefore, that the same interdicted reasons motivated Respondent in discharging Durham and the Childresses as motivated it in refusing to rehire Jackson,10' namely, his union affiliations and activity. In other words, the evi- dence, realistically viewed, establishes that the real reason for these four employees' terminations was the Respondent's desire to rid itself of an irritating nucleus of union adherents and sympathizers because of its antipathy to the Union. These actions of the Respondent were employed to defeat the incipient organizational campaign by breaking it. Each step so taken, beginning with the interrogation and threats, and eventuating in the four strategically timed discharges, constituted a fourfold assertion that the Respondent would continue to refuse to recognize the rights of self-organization guaranteed to employees under Section 7 of the Act. N. L. R. B. v. Robbins Tire & Rubber Co., 161 F. 2d 798, 801 (C. A. 5). Nor does the fact that Respondent retained some employees who had joined the Union exculpate it from the charge of discrimination as to the four discriminatorily terminated.108 N. L. R. B. v. W. C. Nabors Company, 196 F. 2d 272, 275 (C. A. 5), cert. denied 344 U. S. 865. By Respondent's failure to recall Jackson after the layoff period, when it is undisputed that jobs were available,109 it is found that Respondent engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.110 The General Counsel contends that Jones, Bowden, Britt, and Scallorn, Re- spondent's foremen, are supervisors within the meaning of Section 2 (11) of the Act. It is not considered necessary to a decision on the issues in this case to deter- mine this question. Argumentatively assuming that they were not supervisors, em= ployers are responsible, nevertheless, for the conduct of a rank-and-file employee where the employer knew of the unlawful conduct but failed to disavow or disas- sociate himself therefrom"' or where the attitude or acts of the employer appeared to endorse such conduct.112 However, the record clearly demonstrates that Re- spondent's foremen exert;--d some authority over subordinate employees and were in a strategic position o trs nslate policies and desires of management to the em- ployees. Moreove:, the Tr;al Examiner is convinced that the employees had just cause to believe ma*- die o, ,remen (including forelady Jones) were acting and speaking iO1 Ph;ips-Dodgy. ; orp. v N. L. R. B., 313 U. S. 177, where it was held that a dis- criminatory -:. usal to reinstate an employee may violate the Act to the same extent as a discriminatory refusal to hire-or a discriminatory discharge. See also N. L. R. B. v. Nevada Consolidated Copper. 31,6 U. S. 105. 108The fact that Carl Brown, who attended a union meeting and signed a card but refused to solicit 'any employees, was retained, may be explained for the reason that he was a skilled einplopee, running 6 assembly presses, a difficult operation, which Bowden -testified took 4 to 6 months to train a man to do. Brown was evidently an extremely efficient employee, because Grant testified that when Brown was not at work, it required two men to do.his work. On- the other hand, both Jack Childress' and Jackson's jobs were such that a man. could be shown how to perform them in less than a day. Moreover, Brown , it is reasonable to suppose was not considered prounion , because he never solicited any union designations, he returned the union cards to Childress, and at the first signs of the Respondent's opposition, he withdrew from the Union's organizational drive. 109 Ruel Dover and Robert Allen, who , had never worked in the box department before; were assigned , to' that department soetime after the box department employees were laid off in November.' ' - . ' uo See Algonquin Printing Co., 1 NLRB 264, 269, where it was held that a refusal to reinstate 'employees because 'of their union affiliations violated the'Act, even though the original severance of employment was entirely legitimate as in the case of a layoff for , "ofusiness. lack 311 E. B.'Law and Son, 92 NLRB 826, enfd. 192 F. 2d 236 (C. A. 10). ll2'Yale 'Fsling-Supply Co., 91 NLRB 1490. SARDIS LUGGAGE COMPANY • - - , - 485 for and on behalf of management . Colonial Fashions, Incorporated, 110 NLRB 1197; Carolina Scenic Stages, et al., 109 NLRB 86. The Trial Examiner has carefully read and studied Counsel for the Respondent's excellent brief which makes a thorough analysis of the testimony in support of his contention that the General Counsel has failed to prove the unfair labor practices alleged in the complaint . Unfortunately, however, Counsel's argument, persuasive as it appears, is premised on a view of the facts which the Trial Examiner does not share. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent described in section III, 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 burdening and obstructing the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices , it shall be recommended that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. It has been found that the Respondent discriminated in regard to the hire and tenure of employment of James and Ethel Childress and Louise Durham by dis- charging them, on August 21, 1953, and October 12, 1953, respectively, because of their union activities . It has been found also that Respondent has discriminated with respect to the rehire of Glover Jackson. It shall therefore be recommended that the Respondent offer to James and Ethel Childress , Louise Durham, and Glover Jackson, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges , and make them whole for any loss of pay they may have suffered by reason of such discrimina- tion by payment to them of a sum of money equal to that which they would have earned as wages from the dates of their respective discriminatory discharges and refusal to rehire, to the date of. the offer of reinstatement, less their net earnings during such period in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and approved in N. L. R. B. v. Seven-Up Bottling Company of Miami, Inc., 344 U. S. 344. It is also recommended that the Respondent make available to the Board or its agents, upon request, payroll and other records to facilitate the checking of the amounts of back pay due. Inasmuch as Respondent's antiunion activities are so extensive in manner and scope and of such an aggravated character as to indicate an attitude of general op- position to employees' rights, it will be recommended that Respondent be required to cease and desist from in any manner interfering with , restraining, or coercing its em- ployees in . the exercise of the rights ' guaranteed them in Section- 7 of the Act. N. L. R. B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C. A. 4); May Department Stores Co v. N. L. R. B., 326 U. S. 376. Upon the basis of the foregoing findings of facts, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. United Furniture Workers of America , CIO, is a labor organization , within the meaning of Section 2 (5) of the Act. - 2. The Respondent, Sardis Luggage Company, is engaged in commerce. within the meaning of Section 2 (6) and (7).of the Act. - 3. By interfering with , restraining, and-coercing - its employees in the exercise of the rights guaranteed in-Section - 7-of.the Act, the-Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. - 4. By discriminating with regard to the hire and tenure , of employment of James Childress, Ethel Childress, Louise Durham, and Glover Jackson, Respondent dis- couraged membership in the aforementioned Union and committed unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 5. The aforesaid unfair labor practices are_ unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication .] I . -.,. 1 - ! .. !.'. i , 1 C. -- . _ . "I" i 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Re- lations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we notify our employees that: WE WILL NOT discourage membership in United Furniture Workers of Amer- ica, CIO, or any other labor organization of our employees, by discriminating in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT interrogate our employees concerning their membership, union affiliations, activities, or sympathies, on behalf of United Furniture Workers of America, CIO, or any other labor organization of our employees, or threaten them with discharge because of their union affiliations, activities, or sympathies, in a manner constituting interference, restraint, or coercion in violation of Sec- tion 8 (a) (1). WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist United Furniture Workers of America, CIO, or any other labor organization, to bar- gain collectively, through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership, in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the National Labor Relations Act. WE WILL offer to James Childress, Ethel Childress, Louise Durham, and Glover Jackson, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and priv- ileges previously enjoyed, and make them whole for any loss of pay suffered by them as a result of the discrimination in the manner and to the extent rec- ommended in the Intermediate Report. All of our employees are free to become or remain members or to refrain from: becoming or remaining members of the above-named Union, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. We will not discriminate against any employee because of membership in or activity on behalf of any such labor organization. SARDIS LUGGAGE 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. Mathieson Chemical Corporation and/or Olin Mathieson Chem- ical Corporation and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 152, AFL and United Broth- erhood of Carpenters and Joiners of America, Local 1369,_ AFL and International ' Brotherhood of Electrical Workers, Local 425, AFL. Cases Nos. 6-CA-835,6-CA-836, and 6-CA-837. October 18,1955 DECISION AND ORDER On June 17, 1955, Trial Examiner C. W,. Whittemore issued his, Intermediate Report in the above-entitled proceeding, finding that 114 NLRB No. 85.