Walton Manufacturing Co.

WALTON MANUFACTURING COMPANY 485 an affiliated organization, and the leasing arrangements, all establish that Carp's, Inc, and the 25 separately incorporated stores constitute a chain merchandising operation which is integrated and centrally controlled In these circumstances, we find that the Employer and the other Carp corporations constitute a single employer for jurisdic- tional purposes The record reveals that Carp's, Inc, ships goods outside the State, and has a gross volume of business well in excess of the Board's standards for either wholesale or retail establishments Without regard, therefore, as to whether the combined Carp mer- chandising operations are to be regarded as a wholesale or retail en- terprise, we find that it will effectuate the policies of the Act to assert jurisdiction over the Employer Accordingly, we deny its motion to dismiss 2 The labor organization involved claims to represent certain employees of the Employer 3 A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act 4 The Petitioner is seeking a unit of "all ,full-tine and all part- time employees in the Canton, Illinois store " The Employer con- tends that the petition should be dismissed on the ground that the unit description is vague and indefinite As the Employer has failed to indicate any specific employee categories which it believes should be excluded, and as we have often held that units of full-time and part-time employees in retail stores are appropriate," we, accordingly, deny the Employer's motion to dismiss We find that the following employees constitute a unit appropriate for the purpose of collective bargaining within the means of Section 9(b) of the Act All regular full-time and part-time employees em- ployed at the Employer's Canton, Illinois, store, excluding all guards and supervisors as defined in the Act [Text of Direction of Election omitted from publication ] 7 See Duane's Mwa4m Corporatroon, 119 NLRB 1331 8F W Woolworth Company, 119 NLRB 480, J J Moreau & Son, Inc, 107 NLRB 999 Walton Manufacturing Company and Amalgamated Clothing Workers of America, AFL-CIO. Case No 10-CA-3924 De- cember 1, 1959 DECISION AND ORDER On August 18, 1959, Trial Examiner Lee J Best issued his Inter- mediate Report in the above-entitled proceeding, finding that the 125 NLRB No 51 535828-SO-vol 125-32 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following additions. We agree with the Trial Examiner's finding that Respondent dis- charged Violet Ewing on December 5, 1958, because of her member- ship in and activities on behalf of the Union, and because she gave testimony at a hearing before a Trial Examiner of the National Labor Relations Board, thereby violating Section 8(a) (1), (3), and (4) of the Act, as alleged in the complaint. In its brief, Respondent contends, in substance, that the only evi- dence of any union activity on the part of Ewing relates to such activity which occurred more than 6 months prior to the filing of the charge herein,-' and therefore Section 10 (b) of the Act precludes con- sideration of such evidence for purposes of the allegation in the com- plaint that Ewing's discharge was a violation of Section 8 (a) (3). As stated by the Trial Examiner at the hearing, Section 10(b) of the Act only limits the Board to considering evidence of the unfair labor practice itself, in this case the alleged discriminatory discharge of Ewing, which occurred within 6 months of the filing of the charge, and does not preclude consideration of Ewing's prior union activity as background evidence to evaluate Respondent's alleged unlawful con- duct during the 6-month period.3 Moreover, the general rule that'such evidence may be considered as background is particularly applicable here, where a contrary rule would permit an employer to simply wait 6 months and 1 day from the time of an employee's union activity and then discharge the employee with impunity for engaging in such activity. We do not believe that Section 10(b) was designed to per- mit such a circumvention and frustration of the purposes of the Act. i 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 [ Members Rodgers , Jenkins, and Fanning]. 8 This evidence , which is not set forth by the Trial Examiner , shows that Ewing joined the Union and engaged in other union activity in November and December 1957 and January 1958, and that Respondent had knowledge thereof ; and that as a result of her layoff on January 31, 1958, Ewing engaged in no further union activity between that date and October 7, 1958 , when she was rehired . This evidence of Ewing's union activity is the same evidence , in substance , repeated herein, upon which the Board relied in finding that Ewing's January 31, 1958, layoff was discriminatory in the prior unfair labor practice case involving Respondent , of which we take judicial notice herein. Walton Manufacturing Company, 124 NLRB 1331. 8 See News Printing Co., Inc., 116 NLRB 210, and cases cited. WALTON MANUFACTURING COMPANY 487 Moreover, the Board has held that where, as here, an employer dis- charges an employee for testifying in behalf of a union in a Board proceeding, such a discharge operates to discourage membership in the union in violation of Section 8(a) (3) as well as Section 8(a) (4) and (1) of the Act .4 As this later protected activity of Ewing, testifying at a prior hearing in another case against Respondent, which was the immediate cause of the discharge herein, occurred within the Section 10(b) 6-month limitation period, there is no possible Section 10(b) bar to the consideration of this activity as the basis for a Section 8(a) (3) finding. Accordingly, we find no merit in Respondent's con- tention that Section 10 (b) precludes any finding that Ewing's dis- charge was a violation of Section 8 (a) (3) .1 Respondent contends further that the Trial Examiner improperly gave consideration to the prior unfair labor practice case involving Respondent in arriving at his conclusions here. As the Board has now adopted almost in toto the findings of the Trial Examiner in the prior case, we, like the Trial Examiner, find it proper to consider such findings, not as evidence of unfair labor practices herein, but only as background evidence to evaluate Respondent's conduct herein because the unfair labor practices there found antedated the 6-month limitation period under Section 10 (b) .6 Finally, Respondent contends that it discharged Ewing for cause, and not because she testified in the prior case so as to violate Section 8(a) (4). From all the circumstances of the present case, considered with the background of animosity toward the Union disclosed in the prior case, the Trial Examiner discredited the testimony of Morris Scharff to the effect that Ewing was discharged for cause. Upon the basis of these same considerations, and upon the further basis that the Board has now adopted the credibility resolutions of the Trial Examiner in the prior case completely discrediting Morris Scharff as a witness, we adopt this similar credibility finding by the Trial Ex- aminer here.? Moreover, we agree with the Trial Examiner's finding that the credited evidence in the present case, considered against the background of the material evidence and findings in the prior case, 4 Southern Bleachery and Print Works, Inc ., 118 NLRB 299 . See also Pacemaker Corporation, 120 NLRB 987 , 991. It may be noted that Ewing not only testified in the prior case in behalf of the Union , the Charging Party there as well as here, but also sat with a union organizer at the prior hearing. awe find, as the Trial Examiner implicitly did, that while Ewing's most recent union activity of testifying in behalf of the Union in the earlier case was the immediate cause for her last discharge, her earlier union activity which led to her initial layoff was the mediate and underlying cause for her last discharge. See Winter Garden Citrus Products Cooperative , 116 NLRB 738, 740; News Printing Co., Inc., supra. Cf. E. V. Prentice Machine Works, Inc., 120 NLRB 1691. 7 Similarly , as the Trial Examiner has not specifically done so , we also discredit Morris Scharff's testimony here to the effect that he did not attempt to get Ewing to change her testimony in the prior case but only told her to tell the truth . We rather credit Ewing's testimony to the effect that Scharff did attempt to get her to change her previous testi- mony adverse to the Respondent , and her denial that Scharff told her to tell the truth. 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fully supports the conclusion that the alleged cause advanced by Re- spondent for the discharge herein was only a pretext to obscure the discriminatory motive apparent in the present case of punishing Ewing because she gave testimony under the Act in violation of Sec- tion 8(a) (4)8 ORDER Upon the entire record in the 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, Walton Manu- facturing Company, Loganville, Georgia, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from : (a) Discharging, laying off, or otherwise refusing employment to any employee because she has given testimony in a National Labor Relations Board proceeding. (b) Discouraging membership in Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization of its em- ployees, by discriminating in any manner with regard to their hire or.tenure of employment, or any term or condition of employment. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist Amalgamated Clothing Workers of America, AFL- CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activi- ties for purposes of collective bargaining or other mutual aid or pro- tection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Restore all employment rights and privileges heretofore enjoyed by Violet Ewing, and make her whole for any loss of pay suffered by reason of the discrimination by payment to her of a sum of money equal to the amount she normally would have earned from the date of her discharge on December 5, 1958, to the date on which 8 In reaching this conclusion , the Trial Examiner relied in part on his finding that Respondent had not adopted a policy of discharging employees for failure to make produc- tion on piecework operations , in view of the fact that Respondent's payroll records in evidence show that during the first half of 1958 numerous employees regularly received substantial amounts of makeup pay, and Respondent significantly refused to produce its payroll records for the latter half of 1958 by which the Charging Party proposed to show that the same situation continued . As the Trial Examiner denied Respondent's motion to quash the subpenaobtained by the Charging Party for the latter payroll records, and as we agree with that ruling, we find that the Trial Examiner properly drew the usual adverse inference from Respondent 's refusal to produce the payroll records for the latter half of 1958. WALTON MANUFACTURING COMPANY 489 she was rehired and reinstated to her former or substantially equiva- lent position, less net earnings, to be computed in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and make available to the Board and its agents, upon request, for examination and reproduction, all timecards, payroll records, social security reports, and all other personnel records neces- sary to analyze, compute, and determine the amount of backpay and other employment rights and privileges to which the aforesaid dis- criminates (Violet Ewing) may be entitled under the terms of this Order. (c) Post at its plant in Loganville, Georgia, copies of the notice attached to the Intermediate Report marked "Appendix." 9 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by an authorized representative of Walton Manufacturing Company, be posted by it immediately upon receipt thereof and maintained for 60 days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Tenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to.comply herewith. 6 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 AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before the duly desig- nated Trial Examiner in Atlanta, Georgia, on April 16, 1959, on the complaint of the General Counsel and the answer of Walton Manufacturing Company, herein called the Respondent. The issues litigated were whether the Respondent violated Section 8(a)(1), (3), and (4) of the Act by terminating the employment of Violet Ewing on December 5, 1958. Oral argument was waived by all parties. In due course, thereafter, written briefs were filed by Counsel for the General Counsel and the Respondent, and have been given due consideration. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. BUSINESS OF THE RESPONDENT Walton Manufacturing Company is a Georgia corporation maintaining its prin- cipal office and place of business at Loganville, Georgia, where it is engaged in the manufacture of men's clothing. During a representative period of 12 months immediately past the Respondent sold and shipped manufactured products valued at in excess of $50,000 directly to points outside the State of Georgia. I find, there- fore, that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Clothing Workers of America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Historical background For background information with respect to the operations and labor relations of the Respondent reference is hereby made to Cases Nos. 10 -CA-3127; 10-CA- 3201 ; 10-CA-3219; 10-CA-3202 ; and 10-CA-3218, wherein the General Counsel of the National Labor Relations Board issued a consolidated complaint on July 25, 1958, and a hearing was conducted by Samuel Ross, Trial Examiner , at Monroe, Georgia, on October 15 to 23, 1958 , inclusive . At the request of counsel for the General Counsel , I take judicial notice of the Intermediate Report and Recom- mended Order issued therein by Trial Examiner Ross on May 15, 1959, wherein he found that during the period from November 1957 to January 1958, inclusive, the Respondent engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act by surveillance of the activities of union organizers , making antiunion speeches and threats to its employees, interrogating and writing letters to its employees concerning their union activities , discriminatorily discharging and laying off employees to discourage membership in the Union , and otherwise interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. More specifically he found, inter alia, that Violet Ewing. (employee ) was selected and laid off on January 31 , 1958, because of her member- ship in the Union's volunteer organizing committee . Issues therein are now pending before the Board upon exceptions filed to the Intermediate Report and Recom- mended Order of the Trial Examiner. At the aforesaid hearing before Trial Examiner Ross on October 16 , 1958, Violet Ewing (employee ) testified as a witness for the General Counsel against the Respondent. By reason of her testimony, it is alleged in the complaint that Respondent by its supervisor and agent , Morris Scharff, on or about December 5, 1958, discharged Violet Ewing because of her membership in and activities on behalf of the Union , and because she engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid or protection, and because she gave testimony under the Act. B. The alleged discrimination Violet Ewing was first employed by the Respondent on June 28, 1957, and there- after performed various sewing operations in the fabrication of coats as a utility operator at a minimum wage of $1 per hour until terminated on January 31, 1958. Pending the adjudication of alleged unfair labor practices charged against the Respondent by reason of that termination, she was rehired by the Respondent on October 7, 1958, and again assigned to duty as a utility operator, but under direction of a different supervisor. Shortly thereafter she was called as a witness for the General Counsel at the aforesaid hearing on October 16, 1958, before Samuel Ross, Trial Examiner, in Monroe, Georgia, and testified concerning a conversation with her sister-in-law, Myrtle Ewing, who was a supervisor in the plant of Respondent at Loganville, Georgia. Her testimony was in substance that Supervisor Myrtle Ewing had related to her a statement made by Morris Scharff 1 to the effect that: He didn't care who the girl was, or how good an operator she was, if he found out that she had joined the Union, he would fire her. Following her appearance as a witness, Violet Ewing expressed the hope to her sister-in-law (Myrtle Ewing) that she would not be hurt by reason of aforesaid testimony. Thereupon, Violet Ewing was recalled to the hearing room on the next day, October 17, 1958, where and when Morris Scharff privately inquired whether she desired to change her testimony before the Trial Examiner. Upon her refusal to do so, Scharff then directed her to return to work in the plant. Thereafter, on October 27, 1958, Violet Ewing was for the first time assigned by Respondent to the regular job of sleevemaking at piecework rates. By reason of her inexperience in making sleeves she actually earned only $23.87 for 40 hours work during the week ending October 31, 1958, and Respondent was required to supplement her pay in the sum of $16.13 to comply with the minimum wage law of $1 per hour. During the second week ending November 7, 1958, she actually earned wages of $29.85 at piecework rates, and received makeup of $10.15. During the third week ending November 14, 1958, she worked only 32 hours and actually earned $26.28, and received makeup of $5.72. During the fourth week ending November 21, 1958, Respondent established a modification of the sleevemaking 'It is admitted by stipulation that Morris Scharff is a supervisor and agent of the Respondent. WALTON MANUFACTURING COMPANY 491 operation on November 18 with the result that Violet Ewing earned $30.18 for piecework and received $9.82 in makeup for her 40 hours of work. The foregoing figures from payroll records of Respondent indicate a steady and substantial improvement in piecework production of this employee for the first 3 weeks in the sleevemaking operation , and that a slight slowdown occurred during the week in which the modification was put into effect . The worksheet of Regina Hall (em- ployee), who had been regularly employed in the sleevemaking operation for more than a year, also reveals a slowdown in her piecework production for that week in that she failed to make production for a few days and received an adjustment in pay by reason thereof. Both Violet Ewing and Regina Hall credibly testified that this change or modification in the sleevemaking process resulted in a temporary slow- down of production therein. Nevertheless, Supervisor Morris Scharff called Violet Ewing into his office on November 18, 1958, the very day on which the modification was put into effect , and expressed dissatisfaction with the progress she was making in piecework production . Three days later on November 21, 1958, this employee was suspended from work for 1 week as alleged disciplinary action to improve her production, although she protested that the only way she could make improvement was to stay on the job to increase her experience in the new operation . After this 1-week layoff, she returned to work on December 1, 1958, and for the weekly period ending December 5, 1958, earned $35.71 for piecework and received the sum of $4.29 as makeup for the 40 hours ' work. The payroll records of Respond- ent for that week show a daily improvement in her piecework production from $6.16 on Monday , to $6.78 on Tuesday , to $7.22 on Wednesday , to $7.57 on Thurs- day, and to $7.98 on Friday , which demonstrated that by the end of that week she had (within 2 cents ) reached the daily production rate of $8 demanded by the Respondent to eliminate any makeup pay. Notwithstanding this record , Supervisor Morris Scharff called Violet Ewing to his office at the close of work on Friday, December 5, 1958, without first obtaining the final computation on her production for that week, and unconditionally discharged her for alleged failure to make satis- factory improvement in her rate of production , despite protests that she had not been given a fair opportunity to do so. Thereupon , Respondent reported to the Employment Security Agency of Georgia that Violet Ewing had been discharged for "Insufficient quantity of work produced after a fair trial period." After an interval of 8 weeks , the Respondent again rehired Violet Ewing on January 30, 1959, and assigned her to duty as a utility operator at the minimum wage of $1 per hour. Thereafter, on or about March 17, 1959, she was again assigned to the regular job of sleevemaking. Respondent admits that since reemployment Violet Ewing has been and still is a very satisfactory employee. Counsel for the General Counsel and the Charging Party introduced in evidence available payroll records of the Respondent showing that during the period from June 1957 through June 1958, many of its employees consistently failed to make production at piecework rates and regularly received makeup pay to fulfill the requirements of the law that employees be paid a minimum wage of $1 per hour. Respondent refused to honor a subpoena duces tecum to produce its payroll records for the latter half of the year 1958 from which the General Counsel proposed to show that a similar situation existed up to and including the date on which Violet Ewing was discharged in December 1958. C. Contentions of Respondent Upon the undisputed facts in this case it is contended by the Respondent that, as an employer, it had the right to insist that Violet Ewing meet minimum standards of production and produce at a level in keeping with her known ability and to take disciplinary action in the form of a suspension and then a discharge, which was in fact an extended suspension , when she did not meet such standards in an effort to induce her to put forth her best effort-that the disciplinary action taken by Respondent had no connection with her union activities or testimony given by her at a hearing approximately 2 months prior thereto-that past experience had shown that this employee was competent , efficient, and capable of far better work, and when recalled to work after approximately 2 months, in a discharge status, began to perform her work in a highly satisfactory manner and produced according to her ability. In support of these contentions , the Respondent introduced its super- visory agent, Morris Scharff, as its sole witness in the case. Morris Scharff testified in substance that he had been engaged in the selling, purchasing, and manufacturing of clothing since 1939, and formerly supervised and operated such a plant in New York-that more skill is required in the fabrication of coats than pants, and therefore a longer time is required to -train operators and get full production-that Respondent began manufacturing jackets and sport coats 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at its plant in Loganville, Georgia, in June 1957, but contracted with others to supply the pants until February 1958. Piecework production rates were estab- lished about October 1957 . Respondent began to make . pants about February 1, 1958, but discontinued such operation on or about August 1, 1958, when it rented machinery to another corporation ( Loganville Pants Co. ) at a separate plant making such garments for Respondent, exclusively. When Respondent started its coat opera- tions in June 1957, there was, no skilled labor of that type available in the vicinity, so it was company policy to hire anyone that could operate a sewing machine, and train them on the job. A primary training period of 1 to I V2 years was required, and to a lesser extent continued thereafter. During the first 4 or 5 months makeup pay amounted to 45 or 50 percent of total wages , but thereafter steadily decreased to approximately 6 percent, which currently results primarily from replacing regular operators with temporary operators-that by the fall of 1958 , makeup pay had de- creased to about 10 percent by reason of the accrued experience of operators and supervisors and a more even flow of work . Thereupon, Respondent became more independent and stringent in its policy to eliminate employees who had not made sufficient progress in reaching production standards . In the fabrication of the com- ponent coats parts it is not satisfactory to transfer employees from one job to another, and the individual production record of one employee cannot be fairly compared with another , unless they are performing the same job . Each job is different, and to do so would be like comparing a stenographer with a bookkeeper doing unrelated work. Because of the variety of jobs performed by utility op- erators it was impossible for such employees to make production , and consequently were paid the minimum wage of $1 per hour. Prior to January 1, 1959, however, a separate record of their piecework production appeared on the payroll records of each utility operator . The training period of an operator making sleeves depends upon whether she is experienced or inexperienced in the operation of the par- ticular type of machine and the time allowed to reach a production plateau is not set by any hard or fast rule. It depends on whether she is accustomed to sewing, whether the operation is difficult or easy, and upon her aptitude for learning. It is usually better to get an experienced operator for the job, but if the operation has not already been performed in the locality it is better to train a new operator for the job. A change in method of performing an operation may slow the operator for a day or two, but theoretically there should be no loss of time at all. Respondent operated the only plant in that vicinity having the necessary skills to manufacture coats-that it operated a production or assembly line which required that the pro- duction of all workers be coordinated by setting up production quotas and rates progressively throughout the shop. With respect to Violet Ewing (employee ) in particular Morris Scharff testified that prior to her first termination on January 31, 1958 , she had been making pro- duction in sewing pocket facings -and welts, but had never worked on sleeves. He heard her testimony at the hearing before Trial Examiner Ross at the courthouse in Monroe, Georgia , on October 16, 1958, and was thereafter told by Supervisor Myrtle Ewing that Violet was upset about the statements she had made . Conse- quently, upon the advice of his attorney , Violet was sent back to the hearing room next day , October 17 , 1958, for the purpose of ascertaining whether she wanted to change her testimony. When she insisted that she had told the truth and inquired whether he wanted her to say something that was not true , he said to her, "No, I want you to tell the truth . If that is the truth the way you see it , then we certainly don't want you to tell a lie on the stand." Thereupon , she was sent back to work, and was not recalled to the witness stand. Thereafter, on or about November 1, 1958, she was assigned for the first time to a regular job of making sleeves, but her production therein did not improve satisfactorily . Consequently, he called her into his office on November 18, 1958, and told her that she was not doing well and would have to do better. The change made in the sleevemaking operation on that date did not affect her production , because her production was low to start with, and had increased very slightly, but the increase was not sufficient . He called her in again on November 21, 1958, told her that she had failed to make production after a fair trial and thereupon suspended her from work for 1 week. Subsequently , she came back to work on December 1, 1958, but there was no marked improvement in her work, so he discharged her on December 5, 1958, with the intention of rehiring her at a later date , and instructed the plant superintendent to that effect . He did not check her production record for the current week, because it was not available un- til the following Monday or Tuesday. When requested by the Trial Examiner to succinctly state his reasons for dis- charging Violet Ewing, Morris Scharff testified as follows: WALTON MANUFACTURING COMPANY 493 The only and exact reason that I discharged Violet Ewing is because she had not come up sufficiently in her production nor did she show signs, to the best of my knowledge and judgment, that she would. Concluding Findings It is significant that Respondent recalled Violet Ewing to work on October 7, 1958, pending determination of the unfair labor practices alleged in a previous case with respect to her layoff on January 31, 1958. Notwithstanding her reinstatement at that time, she thereafter testified before a Trial Examiner of the Board on October 16, 1958, adversely to the position of Respondent. Morris Scharff immediately there- after solicited her to change her testimony. Having declined to do so, she was shortly thereafter, on October 27, 1958, assigned to regular work in the operation of sleevemaking without prior experience. Notwithstanding the fact that she was making steady improvement in her production, Respondent suspended her from work for a period of 1 week. Upon return to work, her piecework production again im- proved to such an extent that she reached Respondent's minimum standard of pro- duction within a period of 5 days. Thereupon she was unconditionally discharged for alleged failure to make satisfactory progress. Except for the self-serving testimony of Morris Scharff, it does not appear that Respondent had adopted a policy of discharging employees for failure to make production in its piecework operations. There was no hard and fast rule about it. Payroll records of Respondent introduced by counsel for the General Counsel show that during the first half of 1958 numerous employees regularly received substantial amounts of makeup pay; and Respondent significantly refused to produce its pay- roll records for the latter half of 1958 by which the Charging Party proposed to show that the same situation continued. Assuming that Respondent is at all times trying to reach a standard of piecework production that would entirely eliminate makeup pay; it is nevertheless apparent that no such standard has yet been accomplished. The credited evidence in the present case considered in conjunction with the ma- terial evidence and findings in Cases Nos. 10-CA-3127, et als., fully support a con- clusion that the theory of economic justification advanced here by Morris Scharff for the discharge or disciplinary suspension of Violet Ewing on December 5, 1958, was only a pretext to obscure the discriminatory motive apparent in the previous proceeding of discouraging membership in the Union, and in the present case of punishing this employee because she has given testimony under the Act .2 Conse- quently, from all the circumstances of the present case considered with the back- ground of animosity toward the Union disclosed in the previous proceedings, I dis- credit testimony of Morris Scharff to the effect that Violet Ewing was discharged because she had not come up sufficiently in her production or shown signs that she would do so. I find that Respondent discharged Violet Ewing on December 5, 1958, because of her membership in and activities on behalf of the Union and because she gave testimony at a hearing before a Trial Examiner of the National Labor Relations Board, thereby violating Section 8(a)(1), (3), and (4) of the Act, as alleged in the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection 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 com- merce and the free flow thereof. V. THE REMEDY Finding that Respondent discharged Violet Ewing on December 5, 1958, to dis- courage membership in the Union and because she has given testimony under the Act, but thereafter rehired her on January 30, 1959, in her former substantially equivalent position,3 I shall recommend that Respondent cease and desist from such conduct and take certain affirmative action designed to effectuate the policies of the Act. I shall recommend that Respondent restore all employment rights and privi- leges formerly enjoyed by Violet Ewing and make her whole for any loss of pay 2 Cf. E. V. Prentice Machine Works, Inc., 120 NLRB 1691. See The Chase National Bank of the City of New York, an Juan, Puerto Rico, Branch, 65 NLRB 827. 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suffered by reason of discrimination against her by the payment of a sum of money equal to the amount she normally would have earned as wages from the date of her discharge to the date on. which she returned to work at Respondent's plant in Loganville, Georgia, less net earnings 4 to be computed on a quarterly basis in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344. Earnings in one par- ticular quarter shall have no effect upon the backpay liability for any other such period. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Walton Manufacturing Company, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Clothing Workers of America, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By discharging and otherwise discriminating in regard to the hire or tenure of employment of Violet Ewing to discourage membership in the Union and because she has given testimony under the Act, thereby interfering with, restraining, and coercing 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), (3), and (4) of the Act. 4. 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.] 4 See Crossett Lumber Company, 8 NLRB 440, 497-498. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discharge, lay off, or otherwise refuse employment to any of our employees because they have given testimony in a National Labor Relations Board proceeding. WE WILL NOT discourage membership in Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization of our employees, by discriminating in any manner with regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, 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 purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. WE WILL restore to Violet Ewing all employment rights and privileges here- tofore enjoyed by her, and make her whole for any loss of pay she may have suffered by reason of the discrimination practiced against her. All our employees are free to become, remain, or refrain from becoming or remaining members of the above-named Union, or any other labor organization, except to the extent that such right may be affected by an agrement in conformity with Section 8(a) (3) of the Act. WALTON MANUFACTURING 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.