Mid-South Manufacturing Co., Inc.

230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the highest classification they lead. Although no final determination is made by the foreman in disciplinary or wage matters without an independent investigation, the record shows that a leadman's recom- mendations are given serious consideration and substantial weight. We find, therefore, on the basis of the record as a whole, that the leadmen are supervisors and we shall exclude them from the unit.' The following employees of the Employer constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All carpenters maintenance and carpenters maintenance rough and all cabinetmakers and cabinet woodworkers employed by the North- rop Division of Northrop Aircraft, Inc. at the Employer's Hawthorne, California, plant and its facilities, including the Lynwood and Mari- posa Maple warehouses; the Edwards Air Force facility, Muroc, California, the Northrop facility at the Los Angeles International Airport; the Torrance, California, facility; and Palmdale, California, facility, excluding the Anaheim, California, Division; Optical Lab- oratory, Pasadena, California, the Radio Plane Corporation, Van Nuys, California, and employees at all facilities located outside the State of California, leadmen, all other employees and all supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 2 h um ble Oil cC Refininq Company, 108 NLRB 1026, 1027; General Telephone Company of Michigan , 112 NLRB 46, 60. Mid-South Manufacturing Company, Inc. and Amalgamated Clothing Workers of America, AFL-CIO. Cases Nos. 15-CA- 925 and 15-CA-961. March 31, 1958 DECISION AND ORDER On August 13, 1957, Trial Examiner Sydney S. Asher, Jr., issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed with respect to such allegations. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. 120 NLRI3 No. 39. MID-SOUTH MANUFACTURING COMPANY, INC. 231 The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the exceptions, modifications, and additions noted below. 1. The Trial Examiner found, and we agree, that the Respondent interfered• with, restrained, and coerced its employees in violation of Section 8 (a) (1) of the Act, by interrogating employees regarding their union activities, threatening employees and applicants 2 for em- ployment with economic reprisals if they joined or assisted the Union, -soliciting employees to renounce union representation, and by warn- ing,an employee that another employee had been discharged because of her union activities. With respect to the Respondent's unlawful interrogation of em- ployees, the record shows that on the day after Plant Superintendent Hicks learned from Supervisor Minnie Edwards,that seven employees (Stinson, Barnes, Odom, Greenwood, E. Edwards, Dykes, and Brewer) had been passing out cards for membership in the Union, he summoned each of these employees to his office. In separate inter- views, except for employees Stinson and Barnes whose visits over- lapped, Hicks inquired of all seven employees whether or not they .were signing up employees for the Union. On these occasions, Hicks expressed his opposition to union organization and their concerted activities, which he characterized as a "stab in the back." To two of the employees, Greenwood and Brewer, Hicks also stated that the plant will close if the Union were successful in its organizational cam- paign. The Trial Examiner found that Hicks' interrogation of Greenwood and Brewer was violative of the Act, because it was coupled with a threat of economic reprisal. The General Counsel excepts to the Trial Examiner's failure to pass upon the legality of Hicks' interrogation of the other five employees. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated, its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Jenkins] g The Respondent does not except to the Trial Examiner's finding that Anderson, Strickland , and Mills , as applicants for employment , were entitled to the rights guaran- teed by Section 7 of the Act. It argues , however, that it is not responsible for the threats made to them and other employees by Floorlady Minnie Edwards ,, because she was not a supervisor. We agree with the Trial Examiner 's finding that Edwards is a supervisor within the meaning of the Act for whose coercive remarks the Respondent is answerable, as the record is clear that she exercises independent judgment in responsibly directing about 60 employees under her immediate charge See N. L. R. B . v. Armstrong Tare and Rubber Company, 228 F. 2d 159, 161 ( C A. 5), enfg 111 NLRB 708 Moreover, accord- ing to Plant Superintendent Hicks ' testimony , he discusses applicants with Edwards who also recommends applicants for employment. - - 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has held that the legality of any questioning of em- ployees by an employer depends upon "whether, under all the cir- cumstances, the interrogation reasonably tends to restrain or interfere with the employees in the exercise of rights guaranteed by the Act." a In view of the Respondent's systematic interrogation of all 7 em- ployees concerning their union activities and sympathies, the fact that 2 of them were threatened with reprisals, and another (Stinson) was actually discriminatorily discharged during her interview, as well as the Respondent's other unfair labor practices found herein, we find, contrary to the Trial Examiner, that the interrogation of all 7 employees constituted interference, restraint, and coercion within the meaning of Section 8 (a) (1) of the Act' We further find, contrary to the Trial Examiner, that Plant Super- intendent Hicks' statement to employee Stinson during her interview that he would find out who the other union adherents were through his friends in the plant, constituted threatened surveillance in viola- tion of Section 8 (a) (1) of the Act. In our opinion, this statement plainly indicated that the Respondent would instigate surveillance to obtain information about his employees' union activities. 2. Like the Trial Examiner, we find that the Respondent, in viola- tion of Section 8 (a) (3) and (1) of the Act, discriminatorily dis- charged Bessie W. Stinson because of her union activity and not because of her alleged poor production record.' In accordance with the Board's policy, the Trial Examiner recom- mended that the Respondent offer Stinson immediate and full rein- statement to her former or substantially equivalent position and make her whole for any loss of pay she may have suffered as a result of the discrimination against her. After the issuance of the Intermediate Report, the Respondent filed with the Board a motion and supple- mental motion to reopen the record for the purpose of adducing evi- dence relating to Stinson's reinstatement in September 1957 and her subsequent discharge. The General Counsel filed replies in opposi- tion to the motions. We hereby deny the Respondent's motion and supplemental motion as the matters alleged therein should more prop- erly be left for determination at the compliance stage of this pro- ceeding, at which time the reinstatement and back-pay issues may be Blue Flash Empress, Inc , 109 NLRB 591, 593. Spartansburg Sportswear Company, 116 NLRB 1914 , 1924-1925 , enfd. 246 F. 2d 366 (C. A. 4) ; Sardis Luggage Company, 114 NLRB 446, 462-463, enfd. (modified in other respects ) 234 F. 2d 190 (C A. 5). 5In reaching this conclusion , we do not rely on the Trial Examiner's finding that no replacement for Stinson was obtained until May 28, 1956, as the record indicates that Stinson's replacement was hired on May 14, 1956. This modification , however, does not alter our agreement with the Trial Examiner's subsidiary finding that Hicks had no one in mind to replace Stinson at the time of her discriminatory discharge. MID-SOUTH MANUFACTURING COMPANY, INC. 233 litigated, in the event of any disagreement among the parties.' Ac- cordingly, we deny the motions and adopt the Trial Examiner's recommended remedy as to Stinson. Nor do we believe that the cir- cumstances surrounding Stinson's reinstatement, as alleged in the Respondent's motions, have any bearing upon our finding that Stin- son was discriminatorily discharged. ORDER Upon the entire record in this case , and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Mid-South Manufacturing Company, Inc., Richton, Mississippi, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization of its em- ployees, by discharging or refusing to reinstate them , or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment, except to the extent permitted by Section 8 (a) (3) of the Act. (b) Interrogating its employees regarding their union activities, affiliations or sympathies , in a manner constituting interference, re- straint, or coercion, in violation of Section 8 (a) (1) of the Act. (c) Threatening its employees or applicants for employment that it would close its plant or visit other reprisals upon them if they join or assist the above-named union, or any other labor organization, or if they select such union as their bargaining representative. (d) Soliciting its employees to renounce union representation. (e) Warning its employees that any other employee had been dis- charged because of activities in support of the above -named union, or any other labor organization. (f) Threatening its employees that it will engage in surveillance of their union activities. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self -organization, to form labor organizations , to join or assist Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities, except to the extent that such right may be affected by an eArm8trong Tine and Rubber Company, 111 NLRB 708, 709, footnote 3, enfd. 228 F. 2d 159 (C A. 5). 234 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD agreement requiring membership in a labor organization as a'Condi- tion 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 Bessie W. Stinson immediate and full reinstatement to her former or a substantially equivalent position, without prejudice, to her seniority or other rights and privileges, and make her whole for any loss of pay she may have suffered as a result of the discrimination against her, in the manner- set forth in the Intermediate Report in the section entitled "Recommendations." (b) Preserve and make available to the Board or its agents upon request, for examination and copying, all payroll records, social- security payment records, timecards, personnel records, and reports, and all other records necessary to analyze the amount of back pay due and the rights of employment under the terms of this Order. (c) Post at its plant at Richton, Mississippi, copies of the notice attached hereto, 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's representative, be posted by it immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that these notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Fifteenth Region in writ- ing, within ten (10), days from the date of this Order, as'to what'steps the Respondent had taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed -insofar as it alleges unfair labor practices not found to, have been committed herein. 7In 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." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to-effectuate the policies of the National Labor Relations Act, as amended, you are notified that : WE WILL NOT discourage membership in Amalgamated Cloth- ing Workers of America, AFL-CIO, or any other labor organiza- tion of our employees, by discharging or refusing to reinstate them, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of em- MID-SOUTH MANUFACTURING COMPANY, INC: 235 ployment, except to the extent -permitted by Section 8 (a) (3) of the Act. WE WILL NOT interrogate our employees regarding their union activities, affiliations or sympathies, in a manner violative of -Section 8 (a) (1) of the Act. WE WILL NOT threaten our employees or applicants for employ- ment that we will close our plant or engage in-other reprisals against them if they join or assist the above-named union, or any other 'labor organization, or if they select such union as -their bargaining representative. WE WILL NOT solicit our employees to renounce union repre- sentation. WE WILL NOT warn our employees that any other employee had -been, discharged because • of ,activities in support of the above- named union, or any other labor organization. WE WILL NOT threaten our, employees that we will engage in surveillance of their union activities. WE WILL NOT in any other manner interfere with, restrain, oi' coerce our employees in' the exercise of their right to self-or- ganization, to form, labor organizations, to join or assist the above-named union, or any other labor organization, to bargain collectively through representatives of their own choosing, to en- gage in concerted activities for the purpose of collective bargain- ing 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 or- ganization as a condition of employment, as authorized in Sec- tion 8 (a) (3) of the Act. WE WILL offer to Bessie W. Stinson immediate and full rein- statement to her former or a substantially equivalent position, without prejudice to any seniority or other rights and privileges previously enjoyed, and make her whole for any loss of pay suf- fered as a result of the discrimination against her. All our employees are free to become, remain, or refrain from be- coming 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. MID-SOUTH MANUFACTURING COMPANY, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, aiid must not be altered, defaced, or covered by any other material. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT These cases involve allegations that Mid-South Manufacturing Company, Inc., Richton, Mississippi, herein called the Respondent, has interfered with, restrained, and coerced its employees in certain specified respects since May 11, 1956, and discharged employee Bessie W. Stinson on May 11 , 1956, and has since failed and refused to reinstate her, because of her membership in and activities on behalf of Amalgamated Clothing Workers of America, AFL-CIO, the Charging Party, herein called the Union, and to discourage membership in and activities on behalf of the Union. It is alleged that this violated Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. The cases were consolidated. After the filing of a consolidated complaint by the General Counsels and the filing of an answer by the Respondent , a consolidated hearing was held before me from April 16 to 19 , 1957, inclusive , at Hattiesburg and Richton, Mississippi . All parties were represented and participated fully in the hearing. During the hearing, accompanied by representatives of the General Counsel and the Respondent,2 I viewed the Respondent's plant for the purpose of acquainting myself with its physical characteristics and the type of operations performed there. After the close of the hearing, the General Counsel and the Respondent filed briefs, which have been duly considered3 Upon the entire record in these cases, and from my observation of the witnesses, I make the following: FINDINGS OF FACT There is no dispute, the Board has held,4 and it is found, that the Respondent is engaged in commerce within the meaning of the Act and its operations meet the Board's jurisdictional standards,5 and the Union is a labor organization within the meaning of the Act. A. Events up to and including May 11, 1956 The Respondent commenced operations in its Richton plant late in 1955 or early in 1956. By May 1956 the Respondent employed at least 60 employees in its Richton plant, under the supervision of Samuel W. Hicks, plant manager. Material is first cut in the cutting department and is then sent to the stitching department for sewing and trimming operations. In the stitching department, a machine operator is generally assigned to a particular machine on a more or less permanent basis. On May 8,8 after the close of the workday, 5 or 6 employees of the Respondent met in the home of Lonnie Walley, the husband of a former employee .7 They were The designation "General Counsel" includes the General Counsel of the National Labor Relations Board and his representatives at the hearing. 2 The representatives of the Charging Party waived their rights in the matter In its answer and at the hearing, the Respondent moved to dismiss the complaint as to all events alleged to have occurred more than 6 months before February 8, 1957, the date of service of the First Amended Charge in Case No. 15-CA-964. The motion was denied. It was renewed in the Respondent's brief. As the original charge in Case No 15-CA-925 was served on May 18, 1956, and the original charge in Case No. 1:-CA-964 was served on October 5, 1956, the ruling made at the hearing denying the Respondent's motion to dismiss is adhered to. Gaynor News Company, Inc. v. N. L. R. B., 347 U. S. 17, footnote 30. ' In an unpublished Decision and Direction of Election Issued September 4, 1956, in Case No. 15-RC-1426. 5 The Respondent is a Mississippi corporation with an office in Cleveland, Ohio, and a plant in Richton, Mississippi. It is engaged in the manufacture of work clothing for customers located outside the State of Mississippi During the year 1956, the Respondent performed services at its Richton plant in relation to materials sent to the Respondent by its customers from points outside the State of Mississippi The finished products, valued at In excess of $300,000, were shipped by the Respondent, upon direction of its customers, from its Richton plant to points outside the State of Mississippi. During the same period, the Respondent received in excess of $100,000 for services performed. e All dates refer to the year 1956, unless otherwise noted. 7 Walley's wife had been discharged by the Respondent a few days before, and he had vigorously protested. The Respondent contends that Walley then attempted to interest the Respondent's employees in the Union out of pique or revenge. I deem it unnecessary to probe Into Walley's motivation. MID-SOUTH MANUFACTURING COMPANY, INC. 237 addressed by James Jackson, business agent for the Union. It was decided to discuss: with other employees-the possibility-'of organizing the plant, and'to meet again the following evening. Accordingly, on May 9, the matter of joining the Union was discussed among the employees. That night, Jackson again met with 11 employees of the Respondent, all of whom signed cards designating the Union as their bargaining agent. On May 10 union cards were distributed to employees at the plant, and some were signed. That afternoon Minnie Edwards, floorlady in the stitching department, discovered that union cards were being handed out and that employees were being solicited to join the Union. She gave several of the cards to Hicks and informed him that they were being passed around. In addition, she told Hicks that the employees who were active in passing out these union cards were Greda Faye Barnes, Bessie W. Stinson, Margie Odom, Fannie Greenwood, Eula Edwards,9 Mellie Dykes, and Albany Brewer.9 Hicks put one of the union cards in his desk drawer. Either late that afternoon or early the next morning, Hicks pulled the timecards of Barnes and Stinson from the timeclock rack and took them into his office. He also removed Stinson's pillow from her machine and brought it into the office. When Barnes and Stinson arrived for work on May 11, they were summoned to Hicks' office. Present in the office at the time was Emilie Rundell, the Respondent's office girl and bookkeeper. Barnes, arrived there first and said: "I know why you want to see me-on account of my production." Hicks replied that Barnes' pro- duction had dropped materially the previous day. Barnes explained that she had not felt well the day before, but that she knew she could do better that day. At this point, Stinson entered the office. Hicks asked: "Are you girls satisfied with your work here?" Stinson replied that she was. Hicks said: "I thought I told you girls that if there was anything that you wasn't satisfied with to come and talk it over with me." Stinson replied that she had not heard such an instruction. Hicks then opened his desk drawer and, taking out a union card, stated that he had heard that Barnes and Stinson had been handing them out, and asked Stinson if she knew anything about it. Stinson admitted that she had done so, but denied that Barnes had been involved. Hicks again opened his desk drawer, took out Barnes' timecard, handed it to Barnes, and told Barnes to go to work, admonishing her to "keep your nose clean." Barnes left the office. Hicks then remarked that he had always tried to be fair with the employees and asked Stinson why she had tried to "stab me in the back." Stinson answered that she did not feel that way about it, but pointed out certain specific benefits she thought the Union could bring to the employees. Hicks retorted that the Union could get "nasty and dirty and filthy." Stinson remarked that there were other employees in the plant besides herself who were furthering the Union's interests. Hicks replied that he would find out who they were. Hicks then consulted some production sheets lying on his desk and stated that Stinson's production had been unsatisfactory for some time, that there had been no notice- able increase for the past few weeks and that he would have to terminate her, Stinson asked what Hicks intended to do about the other employees who were not making production. Hicks replied that they would have to be weeded out. Stinson requested 2 more weeks' time, but Hicks refused, saying that he could not afford to give her 2 more weeks. He added that if he found a job he thought she could do, he would recall her. Hicks then gave Stinson her pillow, and she left.io Hicks then summoned Greenwood to the office and stated that he had been informed that she was part of a group attempting to sign up employees for the Union. Greenwood denied taking part in such an effort. Hicks asked if he had not been fair with the employees and-if they were trying to "stick a knife in [his] back." He also referred to the Union as "one of the dirtiest, nastiest, slickest, slimiest things that ever was," and said that he would appreciate it if the employees "wouldn't try to push" the Union. According to Greenwood, Hicks added that e Not to be confused with Minnie Edwards, the floorlady in the stitching department. s The findings that Minnie Edwards gave several union cards to Hicks on May 10 and told him the names of the employees responsible are based on Hicks' testimony on cross- examination He first denied, but later admitted, that Barnes was one of the employees named by Edwards. io The findings of fact regarding this conversation are based upon a synthesis of the testimony of Hicks, Stinson, and Rundell (who overheard only part). Barnes did not testify. In addition , Stinson also testified that Hicks referred to her as a "good employee" and threatened that if the Union came in rest periods would be eliminated and required production would be even higher than it then was. Hicks denied making these statements. His denials in these respects are credited. - 238 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD he had sent Stinson home that morning because she was passing out union cards, that if the Union came in the plant would close, and that Greenwood should "keep [her] nose clean." Hicks denied stating to Greenwood that he had sent Stinson home for passing out union cards or that if the Union came in the plant would close, but admitted that Stinson's name "could have" been mentioned during the conversation and that he might have warned Greenwood to keep her nose clean. Rundell, who apparently was present during this interview, 11 did not testify regard- ing this incident, although she took the stand as a witness for the Respondent with respect to other matters. Greenwood was discharged by the Respondent-in Sep- tember, 12 and- I am aware of the possibility that she might be a disgruntled former employee. But in view of Hicks' admission that Stinson's name came up, and the failure of the Respondent to corroborate Hicks' testimony through Rundell-the only other person present, and still in the Respondent's employ 13-I credit Green= wood's testimony and find that the conversation occurred substantially as related by her. After Greenwood left the office Minnie Edwards, the floorlady in the stitching department, told her "Bessie Stinson had to go home this morning for sticking her neck out for the Union." Hicks also called Dykes into his office and stated that it had come to his attention that she was part of a group which was passing out union cards to other employees. Dykes denied it. Hicks remarked that *the plant was too young for a union. Hicks also summoned Brewer to the office and, in Rundell's presence, told her that he had heard that she, Stinson and Barnes had been giving out union cards. Brewer denied that she had done so. Hicks remarked that he felt that this activity was "stabbing me in the back" and warned that, if the Union came in, the plant would close. Brewer asked why Stinson had been terminated. Hicks replied that it was not because of her union activities, but because of her low production. Then both Hicks and Brewer laughed.14 That afternoon, Hicks called Eula Edwards to his office and, in Rundell's press ence, told Edwards there was a rumor going around that she was one of the em- ployees working for the Union. Edwards replied that this was not so. Hicks then stated that organizing a union "was dirty;; slimy work and. it would -get..you :wliere you couldn't sleep at night," that the Respondent had' tried to give the employees "everything a union could give them," that "we had rather not have" a union in the plant, and -that he "would appreciate it if she wouldn't" have anything to do with the Union. Finally, Hicks summoned Odom. In Rundell's presence, Hicks told Odom that her name "had been brought up in this union deal." Odom denied taking part in the Union's organizational drive. Hicks further stated: "Well, I'd rather you pull out of it. It's one of the nastiest, dirtiest, slimiest things that there is. You girls are trying to stick a knife in my back. I'm going to try to do for you all anything the Union would do." Odom then asked if the Respondent would supply the em- ployees with hospital insurance. Hicks replied that "he was going to talk to the boss about that." B. Interference, restraint, and coercion by Hicks 1. Interrogation The ,complaint allege. that on May 111 Hicks "interrogated employees about their- union membership, desires, activities, and feelings, and about the union affiliations, u Greenwood testified that Rundell was there. Hicks at first testified that Rundell was present, but later testified that he was not positive that Rundell remained in the office during the entire conversation. Rundell herself was not asked about this matter when she testified. 12 A charge was filed with the Board in Case No. 15-CA-964 alleging, inter aka, that Greenwood's discharge was discriminatory. However, her name does not appear in the complaint. '92 Wigmore, Evidence (3d ed.), section 284; and N. L. R. B. v Wallick et al., 198 F. 2d 477, 483 (C. A 3). 14 Ther findings .of fact with respect to this conversation are based upon Brewer's credited testimony, which was not substantially contradicted by either Hicks'or Rundbli;' except in one respect, Hicks denied telling Brewer that if the'Union came in the plain would close. In view of the Respondent's failure to corroborate this denial through Rundell when she was on the stand, and as Brewer was an employee of the Respondent at the time she testified and therefore unlikely to fabricate testimony damaging to the Respondent (Claussen Baking Company, 115 NLRB 834), I do not credit Hicks' denial in this respect. MID-SOUTH MANUFACTURING COMPANY, INC. 239 desires, activities, and feelings of other employees." The answer admits that on May 11 Hicks "discuss[ed] the Union organizing drive with several employees," but denies that he uttered "any coercive statements." The parties stipulated,-and I find; that at all material times Hicks was a supervisor within the meaning of the Act. The evidence discussed above clearly shows that on May 11 Hicks questioned Barnes, Stinson, Greenwood, Dykes, Brewer, Eula Edwards, and Odom about their activities on behalf- of the Union. The Board has -held that the legality of any ques- tioning of employees by an employer depends upon "whether, under all the circum' stances,-the interrogation reasonably tends to restrain or interfere with the employees in the exercise of rights guaranteed by the Act." [Emphasis supplied.] 15 Apply= ing this test -to the facts at -hand, I am of the opinion, and find, that Hicks' inter- rogations of-Greenwood and Brewer on May 11 regarding-their union activities, in the context of threats in the same conversation that the plant would close if the Union came in, were violative of Section 8 (a) (1) of the Act.16 I do not pass upon the legality of Hicks' interrogation- of Barnes, Stinson, Odom, Eula Edwards, or Dykes, as in any event this would not affect the scope of the remedial order recommended hereafter. I regard Stinson's statement respecting Barnes' union activities as volunteered, rather than as given in response to a question directed at Stinson. Accordingly, I find no probative evidence that on May 11 Hicks questioned any employee- "about the union affiliations, desires, activities and feelings of other employees," as alleged in. the complaint. I 2. Threats of reprisal I The complaint alleges that on May 11 Hicks "told employees that he hoped `for their sakes' that they were not union adherents or were not working on behalf of the Union"; and "told employees if they were in favor of the Union to go back where they formerly worked." The answer admits that Hicks told "several" em- ployees that he hoped for their sakes that the Union would not succeed in its organiz- ing efforts. In view the admission in the answer, I find that on May 11 Hicks told some em- ployees that he hoped "for their sakes" that they were not union members. In my opinion, however, Hicks may well have merely been underscoring his asserted belief that the officials of the Union would attempt to take advantage of-the em- ployees. Thus, he- told Stinson that she might become "the goat" to do "the dirty work for the Union";-he warned other employees that the Union might cause friends to-"become enemies over it"; and he told Brewer that the Union "may give [her] a job out of town some place . . . carrying picket signs." In view of these-state- ments, I find that Hicks' expressed hope that "for their sakes" the employees would not support the Union did not necessarily imply a threat of any action by the Re- spondent, and therefore was not violative of the Act. The allegation that Hicks told employees that if they were in favor of the Union they should go back to their former employment is not supported by the record. Indeed, at oral argument, the General Counsel candidly admitted that "there might be a failure of proof" regarding this allegation. 3. Threats to discover the names of union adherents The complaint alleges, and the answer denies, that on May 11 Hicks "threatened employees that-he was-going to-find'out the names of all union adherents in the plant." According to Stinson, the following exchange took place during her in- terview with Hicks on May 11: So, I said, "Well, do you think it will do any good for you to fire me?" I said "Remember, there is ten other girls in the plant that's got cards that is going to be here working right on." He said, "Yes," that he knew that, but he would find out who they were. I said, "Well, you might and you might not, because," I said, "don't anybody else know who the others are who have signed in the plant unless they tell them themselves." And I said, "I don't think they would go doing that." Well, he said he-would find out who they are. 'He-said that he still had a few friends left in the plant. - I perceive here no threat to indulge in illegal interrogation or illegal surveillance. On the contrary, these remarks are consistent with a desire to convey Hicks' ex- 15 Blue Flash'Express, Inc., 109 NLRB 591, 593. - 2A Spartanburg Sportswear Company, 116 NLRB 1914, enfd. (C A. 4). 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pectation that his "few friends left in the plant" would voluntarily convey ,the in- formation : Hence it is found that these remarks by Hicks were not-`necessarily coercive. 4. Soliciting withdrawals from the Union The complaint alleges, and the answer denies, that on May 11 Hicks "solicited withdrawals from among the Respondent 's employees" and "instructed employees not to have anything to do with the Union ." As found above, Hicks told Green- wood he would appreciate it if the employees "wouldn't try to push" the Union. He also stated to Odom, referring to the Union : "I'd rather you pull out of it." He also told Eula Edwards that he "would appreciate it if she wouldn't" have any- thing to do with the Union . In my opinion, these remarks were protected by Section 8 (c) of the Act. C. The discharge of Bessie W. Stinson 1. Facts Bessie W. Stinson was employed by the Respondent on January 30. Her job was to run a single needle sewing machine in the stitching department , and the particular operation she performed was stitching down front facings on work shirts. She was one of the employees who attended the Union 's first organization meeting on May 8. She also was present at the union meeting on May 9 and signed a card that evening designating the Union as her bargaining agent . On May 10, Stinson obtained the signatures of four of her fellow workers on union cards. On the following morning, May 11, she was discharged by Hicks under circumstances related above . She has not worked for the Respondent since . She was replaced in the job of stitching down front facings on May 28 by Mary Breland. 2. The General Counsel's case From what has been set forth above , it is clear that Stinson was an active adherent of the Union from the time of its advent in the Respondent 's plant. Her name was among those given by Minnie Edwards to Hicks on May 10 as supporters of the Union, thus giving Hicks reason to suspect her of prounion activities. This sus- picion was confirmed on the morning of May 11 when Stinson admitted to Hicks that she had distributed union cards among the employees . Indeed, Hicks admitted on the stand that at the time he discharged Stinson he knew of her union activities. It is so found. Let us next examine Hicks' attitude toward the Union on May 11. As previously found, he threatened Greenwood and Brewer on May 11 that the plant would close if the Union came in. Finally , on the same day he frequently referred to the Union as "nasty and slimy," and accused its adherents of stabbing him in the back. On the basis of these facts, it is found that on May 11 Hicks was strongly antagonistic to the Union and resentful of any employee who supported it. In reaching this conclusion, the contents of literature distributed to the employees by the Respond- ent the following fall on the eve of a representation election has not been consid- ered, as that occurred many months later and cannot be related back to show union animus on May 11.17 When Hicks learned of the Union's advent, his desire to prevent the Union from successfully organizing the Respondent's employees galvanized him into almost immediate action. Without losing much time , he interrogated all seven of the employees whose names were supplied to him by Minnie Edwards as being union supporters. Six of these denied having taken part in union activities ; they were retained in the Respondent's employ. The seventh , Stinson, admitted that she had distributed union cards ; she was discharged forthwith . On the same day, Hicks informed Greenwood that he had sent Stinson home because she had passed out union cards , and laughed when he told Brewer that Stinson's discharge had not been inspired by her (Stinson's) union activities. Likewise, Minnie Edwards told Greenwood that Stinson had been let go "for sticking her neck out for the Union." 3. The Respondent's defense The Respondent, in its answer, admits that Stinson was discharged on May 11, but denies that this was because of her union activities . On the contrary, the answer alleges that Stinson "was discharged for low production , and her repeated 1T Cf. Lester Manufacturing Company, 112 NLRB 843, 851 , footnote 21. MID-SOUTH MANUFACTURING COMPANY, INC. 241 refusals,to improve her production." The Respondent does not, however, contend that there was any dissatisfaction regarding the quality of Stinson's work. About 3 to 6 weeks after Stinson began working for the Respondent (thus in late February or early March), Stinson was working at a machine on the aisle. Often other employees passing by spoke to her and this interfered with her pro- duction. Remarking that Stinson's "rent was past due," Hicks moved her to another machine away from the aisle. When Stinson asked why she was being moved, Hicks replied: "I think you will do better over here." After this, there was improvement in Stinson's work. Hicks testified that thereafter he talked to Stinson "repeatedly" about her production, the last time within a week of her discharge, and each time she replied that she was doing the best that she could.'8 Hicks further testified that Stinson's retention had been "in question for the past 2 to 3 weeks previous to" May 11, that he had decided to discharge Stinson before he called her into his office on May 11, and that she was discharged for "low production." When asked on cross-examination why he discharged Stinson at that particular time, he answered "because we felt that we had put enough money and we needed the machine to get somebody else on it who could do a better job." Hicks further testified that, at the time, he was attemping to get the operators who were stitching down front facings to achieve an average daily production of "around 45 dozen" shirts. The Respondent's brief refers to Stinson's "poor work record" at other plants from 1952 to 1956, pointing out that she "worked a total of not over a year and a half" during that period. The record shows that Stinson closed fronts on pants for Dixie Reliance in 1952, sewed women's clothing for Bascilla's from January until May 1955, and was employed at Freedom Reliance from July 1955 to January 1956 setting flies on pajama pants. It further shows that she left all three of these jobs voluntarily, and that Dixie Reliance offered her reemployment. Although her production at Dixie Reliance was only about 75 percent of quota and only slightly better at Freedom Reliance, her production was never criticized at either plant. Moreover, her work for these two firms was of a type substantially different from the job she performed for the Respondent. Stinson's personnel card in the Respondent's records shows that she was dis- charged because she "could not make production." Hicks discharged employee Rachel Walley on May 2 because she was "unable to make production," and Greenwood in the fall of the year for "both low production and bad quality of work." 4. Conclusions regarding Stinson's discharge It is necessary to analyze the Respondent's defense, and Hicks' testimony in support of it, in some detail. In the first place, while Hicks spoke to Stinson a number of times about her production, he admitted that he "talked to every girl several times about . . . production." There is nothing to indicate that Hicks found it necessary to reprimand Stinson for low production more frequently than other operators. In the second place, the incident when Stinson was moved to a different machine away from the aisle occurred months before her discharge, and was followed by an improvement in her production. In the third place, the Respondent's production records of the four operators engaged in stitching down front facings up to May 11 do not bear out Hicks' implication that Stinson's produc- tion was below average as compared with that of other employees engaged on the same operation. They also indicate that an improvement in Stinson's production took place during the final weeks of her employment. Fourthly, Hicks' testimony that he had been considering discharging Stinson for 2 or 3 weeks before May 11 and discharged her on May _11 because he needed her machine at that particular time is questionable, as he neither had her final paycheck prepared in advance 19 nor a replacement for her in mind. Indeed, no replacement for her appears to have been obtained until May 28 20 And Hicks further testified that there were is Stinson denied that Hicks had discussed her production with her at any time be- tween the incident when she was moved to a machine away from the aisle and the inter- view on the morning of May 11 Neither Hicks nor Stinson impressed me as particularly candid As between the two, however, I consider Hicks the more reliable Therefore Stinson's denial in this respect is not credited. 10 It is true that Hicks had taken Stinson's pillow into his office But this act was not as indicative of an irrevokable decision to discharge as the preparation of a severance check would have been 10 Hicks' testimony that a replacement for Stinson was hired "the next week" is con- tradicted by the Respondent's records. 483142-59--vol. 120-17 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD more machines in the plant than he had operators, thus negating his earlier testi- mony that he needed Stinson's machine for her replacement. It is accordingly found that Hicks' decision to discharge Stinson was not made until the afternoon of May 10 or the morning of May 11, after he had learned of the Union's advent. In the fifth place, although Hicks mentioned a figure of 45 dozen shirts per day, he readily admitted that no actual production standards existed at the plant on May 11. In the sixth place, the record does not bear out the Respondent's conten- tion that before coming to work tor the Respondent Stinson had a "poor work record." Finally, it is significant that when Hicks called Stinson to his office on May 11 he discussed the Union with her first, and did not mention the subject of her production until after she admitted her part in the union activities. Under all the circumstances I am convinced, and find, that the matter of production was not a motivating cause of Stinson's discharge, but was a mere pretext used by Hicks to disguise his true reason. In reaching this conclusion, the earlier discharge of Rachel Walley for low production has been considered, but is deemed insufficient to support the Respondent's defense that Stinson was discharged for the same reason. What, then, was the real cause of Stinson's discharge? In view of Hicks' union animus, Stinson's known prounion activities, the timing of the discharge so soon after Hicks first learned of the Union's advent, the fact that Stinson was the only employee questioned on May 11 who admitted her part in the Union's campaign, Hicks' state- ment to Greenwood that he had sent Stinson home for distributing union cards, and Minnie Edwards' similar statement to Greenwood, I conclude that Stinson's discharge was discriminatory, 'being based solely on her union activities. It therefore violated Section 8 (a) (1) and (3) of the Act. In reaching this conclusion, the fact that Stinson was summarily discharged in the middle of a workweek has not been relied upon, as there is no evidence that such a summary discharge varied from the Re- spondent's usual personnel practices.21 D. Events after May 11, 1956 On May 18, the Union filed with the Board charges herein in Case No. 15-CA-925, alleging that Stinson's discharge was discriminatory and violative of Section 8 (a) (3) of the Act. On the same day, the Union filed with the Board a petition in Case No. 15-RC-1426, seeking certification as the exclusive bargaining representative of the Respondent's production and maintenance employees, with certain exclusions. A hearing on the representation petition was held on July 11. On September 4 the Board issued a decision (unpublished) directing that an election be held among the production and maintenance employees at the Respondent's Richton plant, with cer- tain exclusions, to determine whether or not they desired to be represented by the Union for purposes of collective bargaining. During the weeks which followed, both the Respondent and the Union distributed literature to the employees with respect to the pending election. On the morning of October 2, during working time, Hicks shut off the machinery, assembled the employees in the plant, and addressed them. On the morning of October 3 during a coffee break, Jones spoke to the employees in the plant lunchroom. This speech will be discussed at greater length hereafter The election was held on the afternoon of October 3, and resulted in the defeat of the Union. On October 8 the Union filed objections to conduct affecting the results of the election on the ground, among others, that the Respondent permitted Jones to enter the plant and address the employees during working time within 5 hours of the election. On February 20, 1957, the Regional Director issued his report on objections in which he found that the objections raised material and substantial issues affecting the results of the election, and recommended that it be set aside and a second election be directed. Thereafter, the Respondent filed exceptions to Regional Direc- tor's report on objections to election. The Board's records, of which I take official notice, show that after the hearing herein the following actions were taken by the Board. On May 28, 1957, the Board issued a Supplemental Decision, Order, and Second Direction of Election,22 in which 21 In the fall of the year, Odom acted as observer for the Union in a Board-conducted election at the Respondent's plant. The Respondent points to the fact that Odom was thereafter retained in its employ as indicative of its innocence regarding Stinson's dis- charge However, the retention of Odom in the fall cannot be related back to show Hicks' attitude on May 11, especially since an unfair labor practice charge intervened. Moreover, "the fact that Respondent retained some union employees does not exculpate him from the charge of discrimination as to those discharged " N. L. R. B. v. W. C. Nabors Company, 196 F. 2d 272, 276 (C. A. 5), cert denied 344 U. S. 865 22 117 NLRB 1786. MID-SOUTH MANUFACTURING COMPANY, INC. 243 it found that Jones' speech at the plant on the morning of the election "interfered with the employees' freedom of choice in the selection of a bargaining representative" in violation of the election rule set forth in Peerless Plywood.23 Accordingly, the Board set aside the election held on October 3, 1956, and directed that a new election be held. On June 19, 1957, the Board issued an order permitting the Union to with- draw its petition in Case No. 15-RC-1426. E. Interference, restraint, and coercion by Edwards 1. The status of Edwards as a supervisor At all material times, Minnie Edwards was a floorlady in the stitching department. Hicks spent practically every day at the plant and from 90 to 95 percent of his time on the production floor supervising operations of the cutting and stitching depart- ments. He was the only admitted supervisor in the plant. Edwards' duties were limited to the stitching department which contained slightly less than 60 employees. Edwards was hourly paid and punched a time clock, but her pay was higher than that of any other employee in the department. Edwards rarely engaged in produc- tion work. Her principal duties were to instruct less experienced operators, to help operators with any difficulty they experienced in their work, to record each operator's production at the end of the workday, "to be sure that everybody has work," "to keep things flowing smoothly," and to relay Hicks' orders to the operators. She had no authority to hire, discharge, discipline, or give time off to any employee. Nor did Edwards have authority to transfer an employee from one machine to another, al- though Hicks sometimes consulted her before ordering such a move. If Edwards discovered that a mistake had been made in the stitching of shirts, she could take the garments in question back to the operator responsible for the error and direct her to rework them. It was the duty of the bundle boy to see that each operator was kept supplied with cut work, and the duty of the mechanic to fix machines which had broken down, but Edwards sometimes called the attention of the bundle boy or the mechanic to situations they had overlooked where their services were needed. In addition, Edwards sometimes informed Hicks when an operator seemed to be run- ning low and needed more work. On the rare occasions when Hicks was absent, Edwards was in charge of the plant. It should be noted that (1) the allegation in the complaint that Edwards was a "supervisor and agent" of the Respondent was not denied in the answer; (2) in ad- vance of the representation election held on October 3, Edwards' name was omitted from the list of eligible voters with the concurrence of the Respondent; and (3) the Regional Director, in his report on objections, found that Edwards was a supervisor within the meaning of the Act. The General Counsel maintains that Edwards was, during all material times, a supervisor within the meaning of the Act. The Respondent denies this. An analysis of Edwards' duties, functions and authority, taking into account the fact that under the Respondent's view the ratio of rank-and-file employees to supervisors would be at least 60 to 1, indicates that she was clothed with authority responsibly to direct the employees in the stitching department, and that the exercise of such authority by her was not of a merely routine nature, but required the use of independent judgment. It follows that she was a supervisor within the meaning of the Act.24 2. Threats to applicants for employment The complaint alleges, and the answer denies, that late in September Edwards "told prospective employees that if the Union won the representation election the Respondent would close down its plant." In August, Verda Anderson and Bernice Strickland went to see Edwards at her home. Edwards' mother was present. Anderson and Strickland asked Edwards to help them obtain jobs at the Respondent's plant. Edwards answered that she would do all she could to help. She added that if they were employed they must vote against the Union because if the Union came in the doors would be closed and nobody would have a job. In September, about 2 weeks before the election, Strickland again visited Edwards at her home, this time accompanied by Rhea Mills. They asked Edwards to help them secure employment at the Respondent's plant and Edwards promised to do x+ Peerless Plywood Company, 107 NLRB 427. 24 Salant and Salant, Incorporated, 92 NLRB 417, 422; and Joiltt K4d8 Togs, et al., 117 NLRB 393. 244 DECISIONS OF NATIONAL LABOR RELATIONS 130ARD what she could. Edwards also stated that if the Union came in Hicks would close the factory. Anderson, Strickland, and Mills were applicants for employment and as such were entitled to the rights guaranteed by Section 7 of the Act.25 Section 8 (a) (1) of the Act protected them against interference with these rights. Edwards' threats to them were therefore violative of Section 8 (a) (1). 3. Threats to employees The complaint alleges, and the answer denies, that early in June, in mid -September, and late in September Edwards "told employees that the Respondent 's plant would be shut down if the Union won the representation election." There is ample evidence to support this allegation . Thus, employee Mildred Creel testified that Edwards made such a threat to her about 2 months before the election ; employee Agnes Easterling testified to a similar warning to her by Edwards a few days before the election; employee Katherine Nicholson r-'_z,ted a similar statement by Ed- wards to her about 2 weeks before the election ; employee Ada Walley testified that Edwards made such a threat to her a few days before the election ; employee Annie Mae Keller testified that a similar threat was made to her by Edwards late in June; and Brewer related a similar experience about a week before the election. In addition, Greenwood testified that Edwards stated to her "several times" that if the Union came in "we would be laid off and go right out that door "; Anderson testified that on September 1 when she began to work for the Respondent Edwards warned her: "Now, you'd better stay on the right side with this union and not be talking for it. If you do and it's found out you'll be lost your job "; and Genevieve Breland testified that in May she overheard Edwards tell Odom and other employees that "if they didn't stop signing those union cards and trying to get the union in that the plant would probably close down." The testimony of Creel, Easterling, Nicholson, Ada Walley, Keller , Brewer, Greenwood , Anderson, and Breland in this respect was not contradicted . It is accordingly found that these incidents occurred substantially as related by the employees named , and that such threats violated Section 8 (a) (1) of the Act. The Respondent, in its brief , urges that the coercive effect of these threats by Edwards was "neutralized" by Hicks' statements on the eve of the election that the employees should vote as they pleased. However, in view of the extent and character of Edwards' unlawful threats and the fact that Hicks himself had engaged in conduct violative of the Act , I cannot agree that the statements referred to had the purging effect ascribed to them by the Respondent 26 This defense therefore lacks merit. The complaint also alleges , and the answer denies, that late in May Edwards "threatened employees that they would be discharged if they did not sign cards which stated they were not interested in joining the Union"; told employees late in September "that they should vote against the Union in the representation election in order to keep in the good graces of the plant superintendent"; and told employees early in October that Hicks "had agreed with the local business men that under no circumstances would he sign a contract with the Union ." The record contains no evidence to substantiate these allegations. F. Interference, restraint, and coercion by Jones 1. The status of Jones as an agent of the Respondent The complaint alleges that the Respondent "authorized, condoned, ratified and engaged in" certain conduct of "its agent , Henry Jones." The answer denies that the Respondent "authorized, ratified or engaged in any acts or conduct of Henry Jones." The factory in which the Respondent 's manufacturing operations are conducted is owned by Perry County and leased to the Respondent . Perry County is governed -° Phelps Dodge Corp v. N L. R. B., 313 U. S. 177 Hicks' testimony indicates that neither Strickland nor Mills filed written applications for employment which reached him. Nevertheless , having applied for work orally to Edwards, a supervisor, they were job applicants In any event , Anderson was later employed by the Respondent and there can be no doubt that she was an applicant for employment at the time of the conversations in question ze Ford Radio &' Mica Cbrporatson, 115'NLRB '1046, 1075 ; Graber Manu facturing Com- pany . Inc, 111 NLRB 167, 169. MID-SOUTH MANUFACTURING COMPANY, INC. 245 by a board of supervisors, composed of 1 supervisor for each of the county's 5 districts. The supervisor for District Three, in which the Respondent's plant is located, was at all material times Henry Jones, a funeral director in Richton.. He was active in persuading the Respondent to locate its plant in Richton. The town of Richton advertised for help and had prospective employees fill out job applica- tions. When the Respondent was ready to start operations, Jones turned over these job applications to Hicks. Some of the applicants were interviewed by Hicks and hired as part of the plant's original work force. On the matter of the relationship between Jones and the Respondent, Jones testified as follows: Q. Mr. Jones, did you have an agreement with Mid-South Manufacturing Company when they were negotiating to come here that you would try to keep the Union out for a period of time if they decided to come?-A. That was discussed, and I couldn't tell you, I wouldn't want to say either way, because that was a discussion and there wasn't any record of it, just discussed about it, and I don't know exactly whether we would or not, but I did discuss it in a general meeting, just discussing about it. So, we didn't have any speci- fied time for anything, as I know of. Hicks did not take part in the negotiations leading up to the lease. However, he testified to certain conversations which he had with Jones, presumably after the Respondent began operations in Richton. His testimony was as follows: Q. (By Mr. Amblister.) Now, didn't you tell Henry Jones that whatever the county or the businessmen could do to help that they could go ahead and do? * * * * * * * A. . . I don't believe I said anything in that many words. Q. Well, Mr. Hicks, if you submitted an affidavit to that effect to our office, would you try to recall whether or not you said that or something similar to that in an affidavit that you gave the Board's office? Specifically an affidavit of October 3, 1956, "I told him that we didn't want the Union and whatever they could do to help they could do."-A. Well, that would be about right. Q. Would it be correct?-A. That's right. I mean, we didn't want the Union at this time and whatever they could do to help, why sure, it would be appreciated. It was to their interest, too. They were vitally interested. I mean the businessmen of Richton; and they had asked from time to time what they could do. * * * * * * * Q.... I asked you if you gave them an O. K. to go ahead and do what- ever they wanted to do about keeping the Union out. * * * * * * A. I told them that anything they could help do would be appreciated, sure. On the basis of the above testimony, it is found that Hicks clothed Jones with general authority on behalf of the Respondent to impede the progress of the Union's campaign among the Respondent's employees 27 2. Preparation and distribution of antiunion cards The complaint alleges, and the answer admits, that late in May and early in. June Jones "prepared and distributed to Respondent's employees cards reading as follows: I, the undersigned, am not interested in any union representation whatsoever at the Mid-South Mfg. Co. I am employed there now and do not want to be represented by any union. (Signed) ----------------------------------- The complaint further alleges, and the answer denies, that late in May and early in June Jones "solicited employees . . . to withdraw from or refrain from becoming members of a union and to sign cards as described . . . above." 27 Lincoln Brassiere Co., Inc., 117 NLRB 1237; Reliance Manufacturing Company v. N. L. R. B, 125 F. 2d 311, 317 (C. A 7) ; A. M. Andrews Company of Oregon, X112 NLRB 626, 637-638; and Waynisne, Inc., et al, 81 NLRB 511, 512. 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jones testified that he personally typed the stencil for the cards on his own type- writer, and supplied the paper, and that they were reproduced on the mimeo- graph machine of a local Baptist church. Jones distributed a few to employees of the Respondent at their homes and solicited their signatures. He also gave some blank cards to other merchants and businessmen in Richton. He testified that he did not need any list of the Respondent's employees as he knew who they were. Late in May, Jones and Ben Stevens, the Mayor of Richton, informed Hicks of the number of signatures obtained and offered the signed cards to Hicks. Hicks replied "that it was their doings, that they should hang onto them." On May 29, Hicks wrote to the Board's representative as follows: The businessmen of Richton conducted a survey and have secured signed statements indicating that over 60 employees of this plant do not want a Union. The businessmen hold these names for your inspection. The signed cards were eventually presented by Jones to the Respondent's counsel, who told Jones that they were "no good." After that, Jones "didn't see any use in keeping them," so he "just threw them away." In view of the admission in the answer and Jones' testimony, it is found that Jones distributed these cards to employees, as alleged. It is also found that Jones' solicitation of employees to sign these antiunion cards was within the scope of his general authority, and hence the Respondent is responsible therefor. It is further found that such solicitation by an employer of employees to affix their signatures to a document proclaiming their antiunion sentiments constituted a viola- tion of Section 8 (a) (1) of the Act.28 3. Threats of reprisal The complaint alleges, and the answer denies, that in mid-June Jones told "an individual that as long as he, Jones, had anything to do with the Respondent's plant neither the individual nor the individual's wife would ever get a job with Respondent, because of their interest in the Union." There is no allegation that the alleged remark was made in the presence of, or was communicated to, any employee of the Respondent. Lonnie Walley, a farmer whose wife had been discharged by Hicks early in May, testified that in mid-June he had a conversation with Jones in a store in Richton during which Jones stated: "Lonnie Walley, as long as I've got anything to do with the Mid-South Manufacturing Company here in Richton you nor your wife will neither one ever work there." Jones admitted that he had a conversa- tion with Lonnie Walley, but denied making the statement attributed to him. I deem it unnecessary to resolve this conflict. Even if Lonnie Walley's testimony were to be believed, employee Mellie Dykes (who had been talking to Jones in the store before Lonnie Walley began the conversation) had left before the remark in question was allegedly made; and Ras B. Walley, a former employee,29 came into the store at the end of the conversation, apparently after the statement in ques- tion was allegedly uttered. Thus the General Counsel has failed to allege or show that Jones' statement, if it was made at all, was made in the presence of, or was communicated to, any employee of the Respondent. Absent proof of such com- munication, the alleged remark was not violative of Section 8 (a) (1) of the Act 30 4. Jones' speech of October 3 Early on the morning of October 3, Jones was informed that rumors were abroad that he was responsible for the circulation of a petition requesting the Respondent to employ only residents of Perry County. Alarmed that this rumor might ad- versely affect his business relationship with the families of those employees of the Respondent who resided in other counties, Jones telephoned to Hicks and asked per- mission to address the Respondent's employees in the plant, adding that there were rumors going around which were hurting his business which he wanted to straighten out. Hicks replied that Jones could not come into the work area or address the employees during working time, but was free if he desired to speak to them in the 28 Endicott-Johnson Corporation, 108 NLRB 88, 97 29 Ras B Walley began to work for the Respondent early in January and worked there about 5 months 30 Cf Redly Coo tage Company, 110 NLRB 1742, 1744-1745; and Ford Radio d Mica Cwporation, supra, at 1066-1067 MID-SOUTH MANUFACTURING COMPANY, INC. 247 lunchroom during their morning coffee break 31 Accordingly, at the morning coffee break, Jones entered the lunchroom and asked the employees to listen to him.32 At the time Minnie Edwards, the floorlady in the stitching department, and about 70 employees were in the room, drinking and talking. Jones told them that the rumors that he had circulated a petition to have the Respondent discharge residents of other counties was untrue, that the employees could vote in the election any way they wished, and that if the Respondent's plant closed he would not go hungry and he was sure that none of the employees would. The election was held that afternoon. The Board, it, its Supplemental Decision, Order, and Second Direction of Election in Case No. 15-RC-1426, found that Jones' speech concerned the election and was made with the Respondent's consent. Clearly, on the present record, the speech was within the general authority conferred on Jones by Hicks. The Board, however, did not pass upon the Union's contention that the speech contained threats; that issue must now be resolved. The General Counsel maintains that Jones' "statements ... about plant closedown constitute a clear threat amounting to restraint , interference and coercion." I cannot agree. While the matter is not entirely free from doubt, I conclude that the General Counsel has failed to establish by a fair preponderance of the evidence that Jones' reference to the possibility of the plant closing down con- stituted an express or implied threat that the Respondent would resort to economic reprisal if the Union won the election. G. Further alleged interference, restraint, and coercion by Hicks The complaint alleges, and the answer denies, that late in May and early in June Hicks "instructed employees to sign documents signifying they were not interested in a union." Employee Mildred Marie Ball testified that she obtained one of the cards described above from a merchant in Richton and asked Hicks if it would be all right for her to sign one of the "cards that the businessmen were handing out" and that Hicks replied in the affirmative Hicks testified that he had received similar inquiries from employees during the period these cards were being distributed, and that he replied that it was up to them and that it would be all right with him if the employees signed the cards. In view of Hicks' testimony, I find that the incident in question occurred substan- tially as described by Ball. In my opinion, Hick's affirmative response to Ball's ques- tion was not coercive. I find no merit in the contention of the General Counsel at oral argument that it constituted "instructions to employee Mildred Ball [violative] of the Act." H. Matters not covered in the complaint The General Counsel introduced evidence which may be looked upon as tending to indicate that the Respondent engaged in certain acts of interference, restraint, and coercion not set forth in the complaint. The Board has stated that "when an issue relating to the subject matter of a complaint is fully litigated at a hearing, the Trial Examiner and the Board are expected to pass upon it even though it is not specifically alleged to be an unfair labor practice in the complaint." 33 In line with that rule, I find that all instances of alleged interference, restraint, and coercion discussed here- after relate to the subject matter of the complaint. The question then remains whether they were "fully litigated" at the hearing. If so, it is my duty to decide the matters on the merits, although not mentioned in the complaint. 1. As to Hicks It will be recalled that Greenwood testified that during her conversation with Hicks on May 11. Hicks stated that if the Union came in the plant would close. Likewise, Brewer testified that in her conversation with Hicks on the same date, Hicks made a similar statement to her . Hicks denied making such statements. In view of Hicks' denials, I find that the matter was "fully litigated" at the hearing.34 Hicks' denials in az The employees are paid for their time during the coffee breaks, and "it is their time to do with what they want to." as The lunchroom is considered part of the plant and is across a corridor from the office. 33 Monroe Feed Store, 112 NLRB 1336, 1337. But compare Martel Mills Corporation, 118 NLRB 618, first paragraph in footnote 3. It is true that there is contrary authority, for example, N. L. R. B. v. I. B. S. Mfg Co. et at., 210 F. 2d 634, 637 (C. A. 5). However, with all due respect for the United States Court of Appeals for the Fifth Circuit, I am constrained to follow the Board's rule until the Supreme Court has ruled to the contrary. 34 Texas-Natural Gasoline Corporation, 116 NLRB 405, 411. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this respect were not convincing and are not credited. It is therefore found that on May 11 Hicks threatened Greenwood and Brewer that if the Union came in the plant would close, and that such threats were violative of Section 8 (a) (1) of the Act. Greenwood further testified that in the same conversation Hicks stated that he had sent Stinson home that morning because she was passing out union cards, and warned Greenwood to "keep [her] nose clean." Hicks denied telling Greenwood that he had sent Stinson home for passing out union cards, but admitted that he might have warned Greenwood to keep her nose clean. In view of this testimony by Hicks, I find that the matter was "fully litigated" at the hearing. Hicks' denial that he told Green- wood that he had sent Stinson home that morning because of her union activity is not credited and it is found that he did make the statement and that he further warned Greenwood to keep her nose clean. Coupled as it was with a statement of how Stinson had been treated, the admonition that Greenwood should keep her nose clean was clearly a warning as to what she might expect if she engaged in activities similar to those for which Stinson had been punished. Accordingly, it was violative of the Act. Greenwood further testified that in January, when she was first employed by the Respondent, she remarked to Hicks that in her prior job the employer had accorded insurance benefits to employees and that Hicks replied that the Respondent would institute an insurance program for its employees at some later time. Green- wood was cross examined by counsel for the Respondent about this statement. In addition, the Respondent's counsel questioned employee Mildred Creel as to whether or not Hicks or any other representative of the Respondent had agreed to furnish paid holidays or hospital insurance for the employees. Odom testified that during her discussion with Hicks on May 11, Hicks promised that he would "try to do for you all anything the Union would do" and that when Odom asked if the Respondent would grant the employees hospital insurance, Hicks replied that "he was going to talk to the boss about that." Hicks was questioned about this part of his con- versation with Odom, but was unable to recall whether or not the matter of insurance had been discussed. In view of the cross-examination of Greenwood and Creel and the testimony of Hicks, it is found that the matter of whether or not the Respondent promised its employees certain benefits, including insurance, as an inducement for them to refrain from union activities was "fully litigated" at the hearing. So far as Greenwood's testimony is concerned, the alleged promise of Hicks to institute an insurance program was nebulous and was made long before the Union began to organize the Respondent's employees. It therefore did not constitute an offer of benefits for abandonment of the Union. With regard to the discussion with Odom on May 11 that he would "talk to the boss about" hospital insurance benefits for the employees, such a statement is too indefinite to form the basis for a finding that Hicks promised hospital insurance as an inducement for the employees to withdraw their support of the Union. 2. As to Edwards It will be recalled that Greenwood testified that on May 11, after leaving the office, Minnie Edwards, the floorlady in the stitching department, told her "Bessie Stinson had to go home this morning for sticking her neck out for the Union." It does not appear that Greenwood was cross-examined about this alleged conver- sation, nor was Edwards called to the stand and questioned with regard thereto. Moreover, the incident was not mentioned by the parties at oral argument. Under all the circumstances, it is found that the matter of whether or not this statement of Edwards should be considered as a separate and distinct violation of Section 8 (a) (1) of the Act was not "fully litigated" at the hearing 35 3. As to Jones Lonnie Walley testified that in June he met Jones in a store and that a conversation between them ensued, during the course of which Jones stated: "I'll tell you one thing, Lonnie Walley, if those girls vote that Union in I'll take the county equipment, county trucks, county labor, and move the equipment out of this factory in Richton." Walley's testimony in this respect was corroborated in part by that of Ras B. Walley, a former employee of the Respondent who was present, but was denied by Jones. In view of Jones' denial, I find that the matter was "fully litigated" at the hearing. I deem it unnecessary to resolve the conflict regarding this conversation. Even assuming that the statement attributed to Jones by the Walleys was made, and even assuming that it was within the scope of the general authority conferred by Hicks 85 Ford Radio d Mica Corporation, supra, at 1075. SOUTHERN CALIFORNIA PIPE TRADES 249 upon Jones, the statement would nevertheless not constitute a violation of the Act, in the absence of evidence that it was made in the presence of, or was later communicated to, an employee of the Respondent. 4. As to Rundell Verda Anderson testified that when she began to work for the Respondent on about September 1, Emilie Rundell, the Respondent's bookkeeper and office girl, stated to her: "I guess Minnie [Edwards] has already told you if you vote for this Union and it comes in we won't nobody have a job." Anderson was cross-examined concerning this testimony. Even though Rundell later testified , she was not ques- tioned regarding this incident . In view of the cross-examination of Anderson by the Respondent's attorney, it is found that the matter was "fully litigated" at the hearing. As Rundell did not deny making the statement, I find that the statement was made substantially as related by Anderson . However, the General Counsel has failed to produce evidence that Rundell was a supervisor or agent of the Respondent within the meaning of the Act . Accordingly, the statement which she made to Anderson is not attributable to the Respondent. Upon the basis of the above findings of fact and upon the entire record in these cases, I make the following: CONCLUSIONS OF LAW 1. Amalgamated Clothing Workers of America, AFL-CIO, is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Bessie W. Stinson , thereby discouraging membership in the above -named labor organiza- tion, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By such conduct, and by other acts interfering with, restraining , and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The above-described unfair labor practices tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce and constitute unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] 36 38 About a month after her discharge , Stinson underwent surgery and was hospitalized for 8 days Accordingly , in determining the amount of back pay due her, the period during which she was physically unable to work should be excluded . Columbia Pictures Corporation, et at., 82 NLRB 568, 584. Southern California Pipe Trades District Council No. 16 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, and its Locals Nos. 78, 114, 202, 230, 250, 280, 364, 398, 403, 484, 494, 545, 582, and 761 and Paddock Pools of California, Inc.; S. Glen Hickman Plumbing Co.; and Plumbing-Heating and Piping Employers Council of Southern California, Inc. Case No. 21-CB-840. March 31, 1958 DECISION AND ORDER On February 26,1957, Trial Examiner James R. Hemingway issued this Intermediate Report in this proceeding, finding that the Respond- 120 NLRB No. 36.