T.I.L. Sportswear Corp.

176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MEMBER FANNING, dissenting : I dissent from the dismissal of the petition. Petitioner has made the necessary showing of interest among the offset pressmen to warrant an election to determine whether they wish to sever themselves from the existing unit. This is .a necessary first step to the establishment of the lithographic process unit the Petitioner seeks to represent. The Petitioner also has the necessary showing of interest in that litho- graphic process unit which is appropriate to justify the election therein. Petitioner is not seeking to add the presently unrepresented lithographic process employees to an existing unit. It seeks to com- bine certain unrepresented employees with employees now represented by another union, the combined group constituting an appropriate unit. To justify severance, of the offset pressmen, Petitioner must of course demonstrate a showing of interest. It has done so. To justify an election in the appropriate lithographic unit, it must also demon- strate a 30 percent showing of interest in that unit. It has done so. There is simply no justifiable reason for not holding this election.' 6 See dissenting opinion of Members Fanning and Kimball in Aerojet General Corpora- tion, 129 NLRB 1492. T.I.L. Sportswear Corporation and Amalgamated Clothing Workers of America (AFL-CIO). Case No. 06-CA-931 (for- merly 15-CA-1576). April 21, 1961 DECISION AND ORDER On December 9, 1960, Trial Examiner Fannie M. Boyls issued her 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 Inter- mediate Report attached hereto. The Trial Examiner also recom - mended dismissal of the complaint insofar as it alleged that Respond- ent had failed or refused to hire Roxie Lee Bagwell in violation of Section 8 ( a) (3) and (1). Thereafter , the Respondent and the Charg-. ing Party filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed.' The 1 At the bearing, the Charging Party moved to strike Respondent's answer to the com, plaint and for summary judgment on the pleadings because of Respondent 's failure to serve a copy of the answer upon it, as prescribed by Section 102.21 of the Board's Rules and Regulations . The Respondent had filed a timely answer and had served it upon the General Counsel The motion was denied by the Trial Examiner and a request to the Board for special permission to file an interim appeal from the Trial Examiner 's ruling was also denied by the Board . The Charging Party asserts in its exceptions that the 131 NLRB No. 28. T.I.L. SPORTSWEAR CORPORATION 177 rulings are hereby affirmed. -The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommen- dations 2 of the Trial Examiner. The Board also expressly reserves the right to modify or supplement the backpay and reinstatement pro- visions of the Order if a change of conditions in the future makes such action necessary in order to remedy fully the discrimination practiced by the Respondent.' 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, T.I.L. Sports- wear Corporation, Aberdeen, Mississippi, its officers, agents, succes- sors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Amalgamated Clothing Workers of America, AFL-CIO, or in any other labor organization of its em- ployees, by refusing to hire any applicant for employment or by dis- criminating in any other manner in regard to their hire and tenure of employment or any term or condition of their employment. (b) In any like or related manner interfering with, restraining, or coercing applicants for employment or employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the aforesaid Union, or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bar- Board's failure to enforce its own rules will result in an effective denial of its rights. It therefore asks the Board to grant the relief initially requested . As the General Counsel was timely served , and as the Respondent 's inadvertent failure to serve a copy on the Charging Party was not prejudicial to the presentation of its case, we hereby affirm the Trial Examiner's ruling. See Breckenridge Gasoline Company , 127 NLRB 14G2. Similarly, we find no merit in Respondent 's objection to the Trial Examiner's denial of its request that the alleged discriminatees be excluded from the hearing except when testifying. Persons named in the complaint as discriminatees are more than mere wit- nesses and are entitled to remain in attendance throughout the entire hearing. See Jaques Power Saw Company, 85 NLRB 440, 443. 2 The Charging Party's request that the Board broaden the Trial Examiner's recom- mended order so as to require the Respondent to bargain with it as representative of Respondent's employees , is denied . No violation of Section 8(a)(5) was alleged in the complaint, nor was the claim of the Charging Party to be the majority representative of Respondent's employees litigated at the hearing Moreover, we do not believe that the violations of Sections 8(a) (3) and ( 1) which were alleged and proved furnish any justi- fication for remedial action other than as recommended by the Trial Examiner. Here, there is no showing that the Respondent would have been under any obligation to recog- nize the Union as the representative of its employees , even absent the discrimination arising from Respondent's failure to hire the 16 alleged discriminatees . In that respect, this case differs from Psa8ecki Aircraft Corporation, 123 NLRB 348, 350, enfd . 280 F. 2d 575 (CA. 3), and Editorial "El Imparctal", Inc., 123 NLRB 1585, 1587, enfd. 278 F. 2d 184 (C.A. 1), on which the Charging Party relies. s Bermuda Knitwear Corporation , 120 NLRB 332. 599198-62-vol. 131-13 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, or to refrain from any or all of such activities. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer the individuals named in the appendix 4 attached to the Intermediate Report, employment at the same or substantially equiva- lent positions at which they would have been employed had they not been discriminated against, without prejudice to any seniority or other rights and privileges they might have acquired, and make whole all of said individuals, as well as Mary Jordan, for any loss of pay suffered, in the manner set forth in the section of the Intermediate Report en- titled "The Remedy." (b) Preserve and, upon request, make available to the National Labor Relations Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, production line diagrams, and all other records necessary to effectuate the hire and packpay provisions of this Order. (c) Post at its plant in Aberdeen, Mississippi, copies of the notice attached to the Intermediate Report marked "Appendix." Copies of said notice, to be furnished by the Regional Director for the Twenty- sixth Region, shall, after being duly signed by Respondent's repre- sentatives, be posted by it immediately upon receipt thereof and be maintained by it for a period of 60 consecutive days thereafter in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twenty-sixth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent discriminated against Roxie Lee Bagwell in violation of Section 8(a) (3). CHAIRMAN MCCULLOCH and MEMBER BROWN took no part in the consideration of the above Decision and Order. ' This notice shall be amended by substituting the words "Pursuant to a Decision and Order" for the words "Pursuant to the Recommendations of a Trial Examiner." In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding , with all parties represented , was heard before the duly designated Trial Examiner in Aberdeen , Mississippi, between June 27 and July 1, 1960, on com- plaint of the General Counsel and answer of T.I .L. Sportswear Corporation, herein T.I.L. SPORTSWEAR CORPORATION - 179 called the Respondent. The issues litigated were whether Respondent , in violation of Section 8 (a) (3) and (1) of the National Labor Relations Act, as amended ( 61 Stat.' 136), failed and refused to hire the 16 applicants named in the complaint because of their membership and activities on behalf of Amalgamated Clothing Workers of America, AFL-CIO, herein called the Union . On or before August '18, 1960, counsel for Respondent and for the General Counsel submitted briefs, which I have duly con- sidered. Upon the entire record and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent is a Mississippi corporation with its principal place of business in Aber- deen, Mississippi, where it is engaged in the business of manufacturing and selling men's and boys' trousers. In the course and conduct of its business operations during the calendar year 1959, a representative period: Respondent caused to be shipped to customers located outside the State of Mississippi merchandise valued in excess of $50,000. I find that Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. , II. THE LABOR ORGANIZATION INVOLVED Amalgamated Clothing Workers of America, AFL-CIO, is a labor organization admitting to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. Background and issues On or about February 2, 1959, Respondent commenced operating the Aberdeen, Mississippi, plant here in issue, which it had purchased from Saxon Trouser Manu- facturing Company. Saxon had operated the plant between 1954 and October 1958. It had recognized and dealt with the Union. At least 85 percent of its employees were union members. T. I. Longenecker, who owned the controlling interest in Respondent corporation as well as in the Amory Garment Company, in Amory, Mississippi, about 16 miles from Aberdeen, and in the Monroe Trouser Manufacturing Company in Smithville, Mississippi, does not operate under a union contract. In purchasing the Saxon plant and machinery, Respondent did not obligate itself to hire any of Saxon's employees and the General Counsel does not contend that Respondent was a successor to Saxon and, as such, had a legal obligation to hire Saxon's former employees. He alleges only that Respondent had a legal obligation not to discriminate against the 16 named in the complaint because of their union membership and activities and that Respond- ent did discriminate against them for that reason. B. Respondent's failure to hire complainants, while advertising for experienced operators and applying for learners' certificates Respondent commenced interviewing applicants for employment on or about Janu- ary 21, 1959, and all of the 16 complainants, pursuant to referrals from the local public employment service office , filed applications on or about that date .' Each was experienced in one or more operations at the plant when it had been run by Saxon and the qualifications of none have been challenged . Among the numerous applica- tions filed , approximately 173 were from former Saxon employees . Of these, 132 were working for Respondent at the time of the hearing and 41, including 15 of the claimants, were not hired .2 I Whenever a complainant, relying wholly upon her memory, testified to a date different from that shown on her application, I have accepted the date on the application as the more reliable evidence The application of Geneva Jordan, which Respondent stated at the hearing it could not locate, appears in Respondent's Exhibit No. 3 (1-801) as num- ber 309 ( see footnote 10, infra). L These findings with respect to the number of former Saxon employee applicants and the number hired are based upon the testimony of Respondent's manager, Boyd Young. I assume that the 173 to which he referred were those working when the Saxon plant closed down , for I find, upon examining the applications introduced in evidence, that more than 173, who worked at Saxon at one time or another, applied. 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By about mid-February 1959, Respondent had 190 production workers on its pay- roll and this number had increased to 244 by mid-March, to 278 by mid-April, and to 281 by mid-May. In the meantime, on February 14, 1959, Respondent applied to the Wage and Hour and Public Contracts Division of the Department of Labor for permission to hire 100 learners to whom it might pay less than the $1 an hour mini- mum wage, representing that an adequate supply of experienced workers was not available to it. And, on March 5, 1959, Respondent advertised in the local news- paper both in Aberdeen, where its plant is located, and in the town of Amory, 16 miles away, where Respondent's president, Tommy I. Longenecker, had his head- quarters, for 150 experienced operators for "immediate" plant expansion. All of the complainants renewed their applications during this period but were told that their services were not needed. One of them, Mary Jordan, who had returned to the plant every Monday for 10 or 12 weeks, was hired on April 22, after having told Manager Young, on last renewing her application, that if it was because of the Union that she had not been hired, "You can forget about that, because I need the work and I need the work here in town because of my children." Young replied, "As I told you before, I go down the line and hire as I need them and as they are experi- enced." None of the others had been offered employment by the date of the hearing, about 18 months after the plant opened. On May 22, 1959, the Union filed a charge with the Board on behalf of the 16, alleging that Respondent had discriminated against them because of their union membership and activities. A copy of this charge was received by Manager Young, whose responsibility it was to select the employees to be hired. He was accordingly put on notice at that time that the com- plainants were still seeking employment. In July 1959, Respondent again advertised for experienced workers, this time over the local radio. Two of the complainants, Verbie Grant and Roxie Lee Bagwell, who reapplied in response to that advertisement, were told by Manager Young that he did not need them. Respondent's first application for a certificate to employ learners was not granted. On September 9, 1959, Respondent filed a second application, representing to the Department of Labor that it then had 274 factory production workers on its payroll; that within 15 days of the date of the application, it had placed an order for experi- enced workers with the local public employment service office, as a result of which 15 experienced workers had been referred and 6 hired; that an adequate supply of experienced workers was not available; and that it desired permission to hire 51 learners immediately. In a letter dated October 26, 1959, from the Department of Labor, Respondent was reminded that "under the regulations learners may not be hired at rates below the statutory minimum when qualified experienced workers are available for employ- ment within the area from which you normally draw your labor supply"; was ad- vised that the Department had received information that a number of former Saxon employees, listing seven of those named in the complaint, had been refused employ- ment at Respondent's plant; and was requested to advise the Department of the results of Respondent's efforts to secure the services of the seven listed persons as well as any other experienced workers who might be available. Respondent's president, Longenecker, replied, by letter dated November 20, 1959 (written for him by Respondent's counsel, Wright), that it was planning to put on a new line which would require from 50 to 60 persons and that if the 7 persons listed were refused employment-which Respondent's records did not indicate-it must have been for reasons other than their lack of experience; but that, in any event, even if those persons were hired, there would still be the necessity for a learner's certificate to obtain the number necessary to complete the line. In the letter Re- spondent assured the Department of Labor that the seven listed persons would "be contacted as to their suitability for employment, and if they meet other require- ments of the plant, they will be employed as experienced workers, and will not be employed on a learner's permit." Respondent, however, did not get in touch with these 7 or any of the remaining 15 complainants. C. Respondent's explanations for its failure to hire the complainants Respondent filed a general denial to the complaint and refused to reveal, during the development of the General Counsel's case, what its defense would be, except to the extent that its position was disclosed by its president and owner, Tommy I. Longenecker, who was called as a witness by the General Counsel under Rule 43(b). Since there are some inconsistencies in the testimony of Respondent's representatives, an analysis of its defense will be facilitated by setting forth the relevant testimony of each of its four representatives. T.I.L. SPORTSWEAR CORPORATION 181 President Longenecker testified that when he put Boyd Young, his head mechanic at the, Amory Garment Company plant, in charge of the Aberdeen plant, he told Young to try to find and hire as many experienced people as he could but also to try to hire the ones he thought were efficient, capable, and dependable. Except for a few employees Longenecker sent over from the Amory plant, all those hired at Aberdeen were selected by Young. In explanation of the advertisements for 150 experienced sewing machine op- erators appearing in the March 5, 1959, editions of the Aberdeen and Amory news- papers, Longenecker stated that he had personally placed the advertisements be- cause he had been informed that Respondent needed experienced employees. He testified, "We are always looking for them"; that Respondent is presently hiring experienced employees "if we can find them"; and that although Young does the actual hiring, "I am sure that naturally if he could find some he would hire them . if they are qualified." Longenecker also took responsibility for the advertisements over the radio in July 1959. He testified that he had been informed, perhaps by Mr. Roby, his Amory manager and "right ; arm,'.' who visits the Aberdeen plant, and keeps Longenecker informed as to what is going on there , that more experienced employees were needed. He added, "I know we were trying to get some production lines going and we were not successful so we shut them down." 3 Longenecker acknowledged authorizing the filing of applications for certificates to employ learners which were filed on February 14 and September 9, 1959. He testified that although he did not confer with Young on every occasion before taking action to obtain more employees, he knew that Respondent needed them because "We always need them." Longenecker further testified that he knew that the Saxon plant had been organ- ized and he assumed that all Saxon employees were members of the Union. He stated that during the first- few days i after ^ Respondent started taking applications, when he stayed at the plant for a few days, "a lot" of the applicants would approach him, tell him that they had belonged to the Union at Saxon, and ask him not to hold that against them; that some told him they "had to belong to the Union but . . didn't fool with it"; and that he would tell them not to menion the Union, that he was not holding it against them. Longenecker testified that he did not personally interview any of the applicants for employment but "told them to apply to the Mississippi Employment Office and then we would take their applications in the nor- mal way and if they qualified they would be hired." According to Longenecker, he told Young, "We want to get this plant started and as far as I am personally concerned , don't mention the Union . . . because I don't even want to hear the word. . . . We are going to get the plant started and as far as I'm concerned everybody that worked at Saxon belonged to the Union, and that's it, but we don't need to talk about it." 4 Implicit in Longenecker's testimony was a contention that the complainants were not hired because they were not qualified. Accordingly, Respondent's counsel started questioning the very next witness, the complainant Verbie Grant, about her production while employed by Saxon. I sustained an objection to this question when Respondent was unwilling to allege that Grant's production had something to do with her not being hired by Respondent. And Respondent did not, in the presentation of its own case, assert or seek to show that any of the complainants were not fully qualified to perform the operations in which their applications showed they were experienced. Manager Young, whose responsibility it was to select the persons employed by Respondent, did not testify specifically as to his reason for not hiring the com- plainants but indicated, from his testimony as to the manner in which he selected employees and the number of applications received, that the complainants were not selected because there was an insufficient number of jobs for all qualified applicants. Thus, he testified that in choosing employees for a sewing line, he took the applica- tions home with him, sorted them, and solely on the basis of the statements made on the applications-which he assumed were true-selected employees to fill posi- tions listed on a sewing-line diagram which he had prepared. He then gave the applications which he selected to General Floorlady Barksdale with instructions that 8 Respondent started on February 2 with two production lines. A third one was added 2 or 3 weeks later and a fourth line was started in the early part of March and dis- continued about September 1. The dates of any further production lines which Respond- ent may have tried to start are not shown by the record. ' Young, on the other hand, denied that Longenecker ever mentioned the Union to him. He stated , moreover, that he had never mentioned it to Longenecker. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD she send the applicants cards or otherwise notify them to report for work. These applications were kept in a folder for that particular sewing line, separate from the other applications. Young testified that when two or more applicants appeared from their applications to be equally well qualified, he usually selected the younger; and that he never discussed with Respondent's General Floorlady Barksdale, nor with its Foreladies Crowley, Rydings, or Bowen-all of whom had worked in similar capacities for Saxon-whom he was going to hire; that insofar as he could recall, he never asked Barksdale any question about an applicant. In this manner, accord- ing to Young, he set up 4 sewing lines, each requiring between 43 and 45 employees. The fourth line, which was set up in March, was discontinued in August or Septem- ber 1959. He testified that once he had set up a sewing line, he did not again refer to the applications in hiring replacements on the sewing line but, instead, hired an applicant who happened to come to the plant at the time he needed a replacement, using a utility operator to fill in until someone was hired. Young testified that over 800 persons filed applications for jobs and, in support of this testimony, Respondent introduced Respondent's Exhibit No. 3 (1-801) con- taining such applications, dated between January and December 1959.5 Young sought to leave the impression, and Respondent has argued in its brief, that this large number of applications proves that many experienced applicants, in addition to the' complainants, wefe not hired simply because there were not enough jobs to go around. An examination of the applications, however, does not support this contention. It shows that a substantial majority of the applicants have had no pre- vious garment plant experience whatsoever, much less experience at making men's and boys' trousers, the garments produced by Respondent. Moreover, except for notations appearing on 15 of the applications 6 indicating that the applicants were hired, the record does not.show their identity, or bow many of these persons were employed, or offered employment.? Respondent's contention also is inconsistent with President Longenecker's testimony that Respondent was always in need of experienced qualified employees, and that Respondent had tried to set up more sewing lines but had closed them down because it was unsuccessful in filling them. Young further testified that he knew-nothing about the newspaper advertisements of March 5 for 150 experienced sewing machine operators until he read his paper; that he did not know about Respondent's appeals for more employees over the radio in July until applicants informed him of them; and that upon neither occasion did he talk to Longenecker about these advertisements. Young at first testified that he had never heard, prior to the hearing, about Respondent's applications for certifi- cates to employ learners, then conceded that an investigator from the Wage and Hour Division of the Department of Labor had come to the plant 3 or 4 months before the hearing and talked to him about the last learner's certificate application and a complaint which had been filed in connection with it. According to Young, however, he never mentioned this visit to Longenecker and Longenecker never in- formed him that learner's certificates had been applied for. Young was not a frank witness and I cannot accept his testimony that there was an almost complete lack of communication between himself and higher management about matters of ob- vious importance to the operation of the plant. General Floorlady Barksdale, who worked in Respondent's office taking applica- tions between January 21 and February 2, corroborated Manager Young's testimony that it was he who made the decision as to which of the applicants were to be hired and that she merely mailed them notices to report for work after receiving a sewing line diagram and the applications selected by Young to fill the positions on those diagrams She at first testified that she did not recall whether Young ever asked her any questions about the applicants; she then recalled that before the plant started operating and during the period when Young was selecting applicants, he would come into the office and ask her about some of the applicants or their work; but she later qualified this testimony by stating that it was only after Young had selected the applicants to be hired that he might ask her such questions as how many had 9 He testified that, in addition, 256 persons, some new applicants and some who had already applied, came to the plant seeking work after his supply of application forms had been exhausted and he had them write their names and addresses in a book, Respondent's Exhibit No 2 E These are applications numbers 78, 79, 98, 99, 100, 101, 102, 106, 107, 294 , 296, 516, 517, 659, and 660 (see footnote 10, infra). ' The applications of those persons selected by Young for the sewing lines were initially separated from the other but, with Respondent's consent, were commingled with the others by the General Counsel's agents who investigated the case. T.LL. SPORTSWEAR CORPORATION , 183 worked for Saxon, or the age of an applicant who failed to show this information on his application. Barksdale impressed me as a reluctant witness, torn by her personal kindly feelings toward the employees she had known and worked with at Saxon and her loyalty to Respondent. Before the plant opened, she apparently assumed that the experienced Saxon employees would be employed. Thus, she told Evelyn Bowen that it would not be long before they were all back at work; she told Mabel Favela that she would see that Favela got the job on which she last worked at Saxon; she told Emma Roebuck to put on her application all the operations in which she had experience, but that she would be hired for facing front pockets; and she asked Hugh Bowen if he was ready to go back to work and told him she did not think it would be long before all were back. Later, however, she made it plain that she had nothing to do with the hiring and that Young was solely responsible. When Verbie Grant asked her if it were true that no one who was for the Union would be hired, she replied, "Well, honey, . I don't know, but if you can get a job anywhere else, . you get it, because I haven't got anything to do with the hiring.... I hope there won't any of you think hard of me for Mr. Young not hiring you, because I haven't got anything to do with it." At the hearing Barksdale, like Young, sought to leave the impression that the complainants were not hired because there were not enough jobs for everyone. Thus, she at first testified that Respondent has always had a surplus of applications from experienced operators but later conceded that she did not mean they were ex- perienced. She testified in particular that Respondent had a surplus of applications for the jobs of outseaming and stitching down white flies but later admitted that she had not checked the applications to ascertain that fact and indeed, had no occa- sion to look at applications-other than those selected by Young to be hired-after the plant started operating. I do not find in Barksdale's testimony support for Young's purported reason for not hiring the complainants. Respondent's secretary-treasurer, Hosea P. Flanagan, whose headquarters are in Amory, testified that he filed the two applications for certificates to employ learners because Respondent was looking to the future-planning production 6 to 12 months ahead of time and anticipating from the needs of customers that additional production lines would be required. The last application, he asserted, was filed because one large customer, Sears Roebuck, had estimated that three additional lines would be required to fill its needs in 6 to 12 months from the date of the application. Never- theless, when the Wage and Hour Division in January or February 1960 started investigating a complaint arising out of the application, Flanagan informed the Division that Respondent was no longer interested in the certificate at that time. He testified that the contracts, on the basis of which the first application was filed, did not materialize but gave no explanation for failing to press the second application. I have carefully weighed the testimony of Respondent's president, Longenecker, against that of its other management representatives and accept his testimony that Respondent was constantly in need of qualified experienced employees and had to shut down some production lines because it was unable to obtain a sufficient number of such employees. To accept the argument made in Respondent's brief, and implied in the testimony of Young and Barksdale, that many more qualified ex- perienced applicants were seeking work than it could employ, would mean that President Longenecker acted irresponsibly in applying on February 14 for a cer- tificate to employ 100 learners, in advertising on March 5 that 150 experienced sewing machine operators were needed for "immediate" plant expansion, in again advertising in July over the radio for more such experienced workers and in filing the second application for a learner's certificate on September 9, and that he did not know what he was talking about when he testified that Respondent was always in need of experienced operators. Longenecker impressed me as a capable and ener- getic businessman and I cannot ascribe any such irresponsibility to him. Accepting as a general proposition, as I do, Longenecker's assertion that Re- spondent was always in need of experienced workers, I have searched the record for an explanation--other than that urged by the General Counsel-,for Respondent's failure to hire each of the complainants. Initially, I must assume, as did Young, that each of the complainants was qualified to perform whatever operations his application showed he was experienced in. I credit Young's explanation that as a rule whenever two or more persons appeared from their applications to be equally well qualified for a position, he gave preference in employment to the younger applicant. This practice might account for some of the complainants not being the first to be hired, but except for Roxie Lee Bagwell who was 55 when she applied-substantially older than any of the other com- plainants-any age differential could not have accounted for Respondent's failure 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to offer them employment within at least a few months after it started operations. And even as to Bagwell, whose only experience was at bartacking, her age could hardly have accounted for her not being hired except for the fact that 2 or 3 months after the plant opened, Respondent eliminated belt loops on its trousers, except on one line, and thereafter used only two instead of the usual five bartackers on each line. On the basis of these facts, I find no basis for finding that Bagwell in the normal course of hiring would have been employed by the date of the hearing.8 The record also shows that Respondent is performing its sewing operations under a line system rather than under a bundle system, which was used by Saxon at the time it closed down Under the line system, a bundle is delivered to the head of the sewing line and each pair of trousers in the bundle goes down the line, with each girl performing her operation. Under the bundle system a bundle is delivered to each operator for the sewing of her particular part, and a bundle boy moves the bundle from one machine to the next. Under the line system, a fewer number of bundle boys is required than is required under the bundle system. Only one of the complainants, Hugh H. Bowen, had worked as a bundle boy at Saxon, but he had also worked as a zipper operator at Saxon and the need for zipper operators was not shown to have undergone any change under the line system-a system, incidentally, under which Bowen had worked prior to being employed by Saxon. There is nothing in the record to suggest, therefore, that Bowen, in the normal course of events, would not have been employed by Respondent either as a bundle boy or as a zipper operator. No other change in the nature or number of operations under the line system was shown to have affected in any way the need for operators having the experiences of the complainants. Barksdale conceded that "substantially it takes the same operations to make a pair of pants, regardless of how you do it." D. The union activities of complainants and Respondent's knowledge thereof Among the 16 complainants are 9 of the 14 persons holding an elective union office when the Saxon plant closed .9 Of the remaining five such officers , who are not named in the complaint, three apparently did not apply-for I do not find their names on any of the applications-and no discrimination against the two who did apply is alleged 10 Indeed, it affirmatively appears that one of the two, Myrtle Plunkett (the Union's sergeant-at-arms and the daughter of complainant Roxie Lee Bagwell), was employed by Respondent. 8One person, Jessie Mae Markham, whose application (No 98, see footnote 10, infra) dated March 11, 1959 , bears the notation "Hired 3-12-59," shows her sole experience to be at bartacking Though younger than Bagwell, she is substantially older than three of the complainants-Mary Jordan, Mabel Favela, and Maxine Covin-e.ich of whom listed bartacking as one of the several operations on which they were experienced "These nine are : Johnnie Carter, who was elected vice president and became presi- dent in April 1958, upon the resignation of David Lee Walters, the elected president, Mae Gosa, financial secretary; Mary Banks, recording secretary, who with Baiksdale's permission had taken time off to attend a union officers' training school in August 1958; Trilby Nadeen Cosa and Dollie Rackley, trustees; and Louise Hickman chairman, and Maxine Covin, Geneva Jordan, and Emma Roebuck, members of the executive board 18 The identity of those who did apply is disclosed by an examination of the more than 800 applications for employment, dated between January and December 1959 (with a few undated), which Respondent introduced in evidence as Respondent's Exhibit No 3 (1-801). These applications are bound in six volumes, are not arranged by date, alphabetically, or in any other order which I have been able to ascertain, and they include those of per- sons hired as well as those not hired To facilitate an analysis of them, I have given each a penciled number in the lower righthand corner. The applications in the volume beginning with the application of Ellen Ruth Winders are numbered 1 through 174, those in the volume beginning with the application of Lavada Scott are numbered 175 through 286 ; those in the volume beginning with the application of Olen H Roberts, Jr , are numbered 287 through 442, those in the volume beginning with the application of Connie Johns are numbered 443 through 585 ; those in the volume beginning with the application of Clara F Thompson are numbered 586 through 695; and those in the volume beginning with the application of Rebie Flynn are numbered (196 through 818 To correct an inadvertent failure, initially, to number the application following number 228, I have numbered it 228(a) Included in these bound volumes between applications numbered 94 and 95, 676 and 677, 677 and 678, are sheets headed "II," "IV Line," "4-th Line," "3rd," "5th line " and "3rd," and some without headings. listing the titles of various sewing operations, with one or more names tinder most operations but with none under others Obviously, these sheets were inadvertently included among the appli- cations and I have not numbered them T.I.L. SPORTSWEAR CORPORATION 185 Also among the 16 complainants are Mary Jordan, one of the first two union members to carry a picket sign during a strike at the Saxon plant in March 1957 or 1958; Verbie Grant, a union member who, shortly after being hired by Saxon, sought out Barksdale to inquire as to where she could get a union card and who attended union meetings but who did not otherwise appear to be active in the Union; Evelyn Bowen and her husband, Hugh Bowen, both of whom were union members and walked the picket line during the strike; Mabel Favela, who helped to organize the Saxon employees, served as a line steward, processing grievances with management, and walked the picket line; Roxie Lee Bagwell, a union member and its sergeant-at-arms in 1956; and Katie Scott, who served as the Union's insurance secretary and walked the picket line." The identity of the Union's officers at the Saxon plant was well publicized. Pic- tures of the officers, during at least 1 year, were publicized in a newspaper, and in 1958 Saxon's management representatives were invited to an installation party for the newly elected union officers. Saxon's General Floorlady Ira Barksdale, who held a similar position with Respondent, attended the party. Floorlady Morrie Rydings (employed in the same capacity by Saxon and Respondent) also attended that or another installation party. A list of all the candidates for union office, showing the number of votes received by each and who was elected, was posted in 1958 on the plant bulletin board, where General Floorlady Barksdale as well as Floorladies Morrie Rydings and Flora Lee Crowley, who also held the same positions with Respondent, had an opportunity to observe them. Employee Rackley in fact saw Barksdale and Rydings look at the list. Respondent, moreover, employed as one of its floorladies Laura Bowen, who had been a sewing machine operator at Saxon. Furthermore, the union activities at Saxon were so open and widespread that Saxon personnel, later employed by Respondent, could hardly have failed to be aware of those activities and the identity of those participating therein. Thus, Mary Banks, in addition to being the Union's recording secretary, served as vice presi- dent of the Central Labor Council, with which the Saxon Local was affiliated; par- ticipated in a 2-hour sitdown demonstration at Saxon in 1957; served as a line steward, presenting employee grievances to the Saxon management; helped to prepare and serve meals to pickets during the strike as well as walking the picket line every day; and prepared and posted the 1958 list of union officers on the bulletin boards at Saxon. Dolly Rackley, in addition to serving as a trustee and on the Union's executive board, was a line steward throughout the period when the Union was recognized at Saxon and in that capacity, presented a number of griev- ances, through Floorlady Rydings (also employed by Respondent) to higher manage- ment; she also handled insurance matters for the Union and served on the picket line. Mae Gosa, in addition to being the Union's financial secretary for several years, had been a line steward during the first year the Union was established; and on Sep- tember 14, 1959, was employed by the Union on a temporary basis. Johnnie Carter, in addition to serving as the Union's president, met with the line stewards at times when they had grievancee.'io present, and walked the picket lines during the strike. Louise Hickman, in,ad 1ition to serving as chairman of the Union's executive board, was a line stir -y^;atd during 1958 and "griped" to Barksdale when unable to settle grievances sa....o.c,ctorilt with management; she had also sought Barksdale's per- mission in arranging t&vherself and another employee, as me,nbers of the decorating committee, to get off from work early on the day of installation of officers in 1958. Maxine Covin, in addition to being a member of the Union's executive board, was a steward in the cutting room in 1958 and a delegate to the Union's State con- vention at Jackson, Mississippi, in April 1958; she also walked the picket line. Geneva Jordan, in addition to being a member of the Union's executive board in 1958, was its chairman in 1957 and was shop steward in 1956. taking up grievances for the utility girls. Emma Roebuck, in addition to being a member of the Union's executive board in 1958, was its vice president in 1955 and 1956 and a line steward in 1958; and in connection with the latter position, she had a dispute with Barks- dale over one grievance. I find, in view of the manner in which the election of the Union's officers was publicized, the picketing of Saxon's plant in 1957 or 1958 in which only a minority of Saxon's employees participated , the open and widespread union activities of the "According to the undisputed testimony of Christine Stanford. whom I credit, a few of the Saxon employees worked during the strike but most of them just stayed at home. When Stanford reported for work for Respondent on March 12. 1959. about 50 percent of the Saxon employees who had belonged to the Union were then working in the plant but they were not active in the Union. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complainants, the employment by Respondent of former Saxon personnel as its own supervisory personnel, and the smallness of the town of Aberdeen (population 6,444), in which the plant was located, and of Amory (population 6,450), 16 miles away, where Young and Longenecker lived, that Respondent was in a position to know and did know the identity of the Union's officers and other employees at Saxon who were most active in the Union. E. Conclusions with respect to Respondent's motivation in failing to hire the complainants Respondent followed a policy of not discussing the Union with any of the appli- cants. President Longenecker told those applicants who inquired about whether their union activities had anything to do with their not being hired that he did not want to hear anything about the Union, and he instructed Young not to discuss it.12 Young followed these instructions. The General Counsel contends that Respondent nevertheless revealed its anti- union motivation in failing to hire the complainants. He cites, among other things, the circumstances under which Christine Stanford and Mildred Cole obtained em- ployment with Respondent. Christine Stanford had helped organize the employees at Saxon, had been a member of the Union's executive board in 1957 to 1958, and had walked the picket lines. Her sister, Mildred Cole, although a union member and a participant in the strike, does not appear to have been particularly active in the Union. Cole applied for a job with Respondent on January 21 and Stanford on January 23. Both reported back to the plant each week thereafter. On one occasion, in February, when Stanford called Young about a job and he told her there was no job open for her, she asked him whether it was because she had belonged to the Union at Saxon that he had not called her. He replied, "Not exactly." Thereafter, she and her sister, Mildred Cole, each wrote a letter to Presi- dent Longenecker in Amory, telling him, in substance, that she needed work, that she had been in the Union at Saxon but that if he would hire her, she would have nothing to do with the Union at Respondent's plant.13 Several weeks thereafter, on March 11, each received a card, postmarked from Amory, notifying her to report for work on the following day. Each started working on March 12 on the fourth sewing line. Longenecker testified that he "could have" received the letters from Stanford and Cole but did not remember receiving them. He explained that he "usually" just tears up personal letters addressed to him at the Amory plant, without reading them. The letters in question were duly posted, had return addresses on the envelopes, and were never returned to the senders. I find that they were received by Longenecker. Moreover, the fact that the cards notifying Stanford and Cole to report for work were postmarked from Amory, rather than from Aberdeen where they would nor- mally be mailed, indicates that these two employees were hired in response to the letters they sent to Longenecker at Amory. The treatment accorded Stanford and Cole is comparable to that received by the complainalrt.Mary Jordan, mentioned supra, who was hired on April 22 shortly after assuring Youtrg,; hat if it was because of the Union that she had not been hired, he could just forget 3t because she needed work, and in Aberdeen, because of her children. The undenied and credited testimony of several of the ohs.. complainants casts further light upon Respondent's motivations and its determination not to hire the complainants who failed to renounce the Union. Thus, when Dolly Rackley on February 20, 1959, asked Young whether it was because of the Union that she had not been called, he merely dropped his eyes and did not answer. When complainant Verbie Grant, with many years of experience in several sewing operations, went with her sister, Esther Green, in early March 1959 to seek work, Young told Green to go to the employment office, take a test, get a referral card, and he would put her to work. Green followed instructions and was put to work at one of the operations which Grant had performed at Saxon. She had never worked for Saxon; in fact, she had only a few weeks of sewing experience, and that about 20 years earlier. Grant returned to the plant or called Young many times thereafter. In April 1960, when she asked him over the telephone whether he needed a good experienced hand, he replied that he did and asked what she could do. She listed six operations in which she was experienced. Young then asked her name, and when she told him, he said that he did not need her. Mae Gosa, another complainant, had a similar a In making the latter finding, I credit Lonzenecker's testimony rather than Young's denial that Longenecker ever mentioned the Union to him. 15 Cole wrote her letter first and showed it to her sister, who thought it was a good idea and wrote a similar one herself. T.I.L. SPORTSWEAR CORPORATION - - 187 -experience. On April 25 , 1959, she called Young and asked whether he needed experienced operators . He- asked who she was, and when she told hun , he stated that he did not need anyone.14 While I do not consider any of the foregoing incidents as conclusive in establishing an antiunion motivation , they are not without some significance . I have considered these incidents in the light of Longenecker 's testimony that he instructed Young to hire as many experienced people as he could , his testimony that he told appli- cants "if they qualified they would be hired ," his testimony that Respondent was always in need of experienced people and was still hiring them if it could find then and they were qualified , his testimony that Respondent , in March 1959, had adver- tised in the local newspapers, and in July over the radio , for experienced operators and had twice applied for certificates to employ learners because unable to obtain, a sufficient number of experienced employees , and his testimony that Respondent had tried to get some more production lines going but was forced to shut them down because unsuccessful in obtaining enough experienced operators ; the fact the com- plainants were all experienced operators , with some able to perform almost any operation in the plant ,15 and that each repeatedly sought work at Respondent's plant; 16 the fact that, except for the complainant Roxie Lee Bagwell, treated supra, the record contains no credible evidence which might reasonably explain why, despite the need for experienced operators, the complainants were not hired; 17 the fact that Respondent knew the Saxon plant had been organized by the Union; and the fact that among the 41 former Saxon employee applicants not hired were prac- tically all of the Union's most recently elected officers and other complainants who were active in the Union. On the basis of all these facts and the entire record, I am convinced and find that Respondent by delaying the hire of the complainant Mary Jordan (who renounced the Union ) until April 22, 1959, and by failing to hire the complainants Emma Roebuck , Dolly Rackley, Johnnie Carter, Louise Hickman, Geneva Jordan, Mae Gosa, Katie Scott, Evelyn Bowen, Hugh H. Bowen, Verbie Grant, Mabel Favela, Trilby Nadeen Gosa , Mary Banks , and Maxine Covin, dis- criminated against them because of their union membership and activities, thereby violating Section 8 (a) (3) and ( 1) of the Act. The fact that a few of the complainants did not hold a union office and may not have been any more active in the Union than some of the 132 former Saxon em- 14 Apparently in a further attempt to establish an antiunion motivation , the General Counsel questioned Longenecker about a speech he made to employees at his Amory Garment Company plant on May 18, 1958 , just prior to a representation election at that plant and sought to have Longenecker identify a paper ( marked for identification as General Counsel's Exhibit No. 20 ) as a copy of the speech . Longenecker testified that the paper contained "some of the things" he said but he could not swear that the paper was a copy of his speech . The General Counsel later sought to prove the content of Longenecker's speech by introducing, through Union Counsel Goldberg, purported- copies of reports by the Regional Director for the Fifteenth Region on objections to elections held at Longenecker 's Amory and Monroe plants. Goldberg testified that he first saw copies of these reports when they were served upon the Union in Its New York office In the latter part of 1958 and that he found the copies offered in evidence as General Counsel's Exhibits Nos 33(a) and 33(b) in the Columbus , Mississippi , office of the Union during the course of the hearing To each of these reports-one Involving the Amory Garment Company (Case No 15-RC-1753 ) and the other involving Monroe Trouser Manufacturing Co, Inc. (Case No . 15-RC-1752 )-is attached a purported copy of a speech by Longenecker to employees of those plants . I rejected these exhibits as in- sufficient to establish that the purported speeches were in fact those made by Longenecker. These exhibits , General Counsel 's Exhibits Nos 20, 33 (a), and 33 ( b), though rejected, are Incorrectly marked by the reporter as received and are included among other General Counsel exhibits which were received In evidence u Evelyn Bowen and Geneva Jordan , for instance, were utility operators at Saxon, fill- Ing in on their respective lines for almost any operator who might be absent ; and as Mary Banks told Young upon one occasion in February 1959 when she, Maxine Covin, Louise Hickman , and Mae Gosa returned to the plant seeking work , among the four of them, they could do just about anything in the plant. Is Some of the complainants , after meeting with no success in their repeated attempts to obtain work at Respondent 's plant, obtained out-of-town jobs. Respondent, however, has not asserted that it failed to offer any of them jobs because they were unavailable. 171n making this finding , of course , I necessarily credit Longenecker 's testimony with respect to the plant' s needs, rather than the statements made by Young or Barksdale to the complainants that their services were not needed. 188 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD ployees hired by Respondent does not preclude a finding that Respondent was dis- -criminatorily motivated in denying employment to them as well as to the other complainants, for it is apparent that Respondent, in staffing its plant, was deliberately avoiding the employment of a sufficient number of active union members to result in an obligation on Respondent's part to recognize the Union as the employees' bargaining representative.18 In finding that Respondent was discriminatorily moti- vated in failing to hire the complainants, I necessarily do not credit all of Young's testimony as to the manner in which he selected employees in setting up a sewing .line. And although, as he testified, it may have been his practice not to refer to the applications on file when hiring replacements, I am convinced and find that if he failed to refer to them, he was motivated at least in part by a desire to avoid hiring the active union members whose applications he knew were on file. IV. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act, the Trial Examiner, among other things, will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. My recommended order (not published) will require Respondent to offer employ- ment to each of the 14 complainants whom, I have found, it discriminatorily failed to hire, displacing, if necessary, any employee hired at or subsequent to the time of the discrimination to perform work for which the discriminatee, on the basis of his application, is qualified; and will further require Respondent to make whole each of the discriminatees, including Mary Jordan, for any loss of pay suffered by reason of the discrimination against him.19 If, after displacing employees in the aforesaid manner, Respondent, for reasons unrelated to its discriminatory motivation, has no present need for employees having the experience of any of the discriminatees, Respondent shall place them on a preferential list and offer them jobs for which the experience noted on their applications shows them qualified as replacements are needed or -as new production lines are established. The record does not show the exact date upon which Respondent sought to set up additional production lines and then discontinued them because unable to find a sufficient number of qualified applicants. This information, as well as the identity of applicants who were offered employment, those who accepted, and the date and position at which each started working, are within the peculiar knowledge of Respondent and can be ascertained at the compliance stage of this case. And, in determining the dates when Respondent, but for its discriminatory motivation, would have set up or completed additional production lines, it will not be inappro- priate to inquire whether Longenecker at his other trouser manufacturing plants in Amory and Smithville, Mississippi, added more production lines to produce what Longenecker had planned to have produced at his Aberdeen plant. I also recommend that the Board expressly reserve the right to modify the backpay and hiring provisions of its order if made necessary by a change of conditions in the future, and to make such supplements thereto as may hereafter become necessary in order to define or clarify their application to a specific set of circumstances not now apparent 20 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. Amalgamated Clothing Workers of America, AFL-CIO , is a labor organiza- tion within the meaning of Section 2(5) of the Act. 2. By delaying the hire of Mary Jordan until April 22, 1959, and failing to hire the 14 persons listed in the appendix to this Intermediate Report because of their union membership and activities. Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. The evidence does not establish that Respondent violated Section 8(a)(3) and (1) of the Act by failing to hire Roxie Lee Bagwell. [Recommendations omitted from publication. 18 Cf Piasecki Aircraft Corp v NLRB , 280 F 2d 575 (C A 1) enfg 123 NLRB 248 10Lost earnings shall he competed on a quarterly basis in the manner set forth in F. W Woolworth Co . 90 NLRB 289 20 Bermuda Knitwear Corporation , 120 NLRB 332. INTERNATIONAL WOODWORKERS OF AMERICA , AFL-CIO 189 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a recommended order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT discourage membership of our employees, or any applicants for employment, in Amalgamated Clothing Workers of America , AFL-CIO, or in any other labor organization, by refusing to hire any applicant for employment or by discriminating in any other manner in regard to their hire and tenure of employment or any term or condition of employment. WE WILL NOT in any like or related manner interfere with , restrain, or coerce employees or applicants for employment in the exercise of their rights to self- organization, to join or assist the aforesaid Union , or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , as guaranteed in Section 7 of the Act, or to refrain from any or all of such activities. WE WILL offer to the individuals named below employment at the same or substantially equivalent positions at which they would have been employed had they not been discriminated against, without prejudice to any seniority or other rights and privileges they might have acquired, in the manner set forth in the section of the Trial Examiner's Intermediate Report entitled "The Remedy": Emma Roebuck Evelyn Bowen Dolly Rackley Hugh H. Bowen Johnnie Carter Verbie Grant Louise Hickman Mabel Favela Geneva Jordan Trilby Nadeen Gosa Mae Gosa Mary Banks Katie Scott Maxine Covin WE WILL make whole the above-named persons and Mary Jordan for any loss of pay suffered by reason of the discrimination against them, in the manner recommended by the Trial Examiner. Our employees are free to become, remain , or refrain from becoming or remaining members of the Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization. T.I.L. SPORTSWEAR CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must ndt be altered, defaced, or covered by any other material. International Woodworkers of America, AFL-CIO and Central Veneer, Incorporated. Case No. 25-CB-396. April 21, 1961 DECISION AND ORDER On December 20, 1960, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices but recommending that the complaint be dismissed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respond- ent and the General Counsel filed exceptions to the Intermediate Re- port together with supporting briefs. ,131 NLRB No. 29.