Garland Knitting Mills

GARLAND KNITTING MILLS 383 Garland Knitting Mills and International Ladies' Garment Workers' Union, AFL-CIO. Case No. 1-CA-3136. May 2, 1961 DECISION AND ORDER On September 13,1960, Trial Examiner Fannie M. Boyls issued her Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not discharged Gordon Horsford in violation of Section 8(a) (3) and rec- ommended that the complaint be dismissed with respect to such alle- gation. Thereafter, the Charging Party filed exceptions to the recommended dismissal of the Section 8(a) (3) allegation together with a supporting brief. The Respondent filed a brief in support of the recommended dismissal. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions' and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. 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, Garland Knitting Mills, Boston, Massachusetts, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from : (a) Interrogating any employees, in a manner constituting interfer- ence, restraint, or coercion within the meaning of Section 8 (a) (1) of the Act, as to their own or other employees' union affiliations, senti- ments, or activities or as to what has transpired at union meetings. (b) Requesting or otherwise encouraging any of its employees to act as informers with respect to union meetings or activities or as to the union membership or activities of its employees. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form labor organizations, to join or assist the Inter- national Ladies' Garment Workers' Union, AFL-CIO, or any other 1In the absence of any exceptions to the Trial Examiner 's Section 8(a) (1) findings, we adopt them pro forma. 131 NLRB No. 53. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its plant in Boston, Massachusetts, copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive 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 said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for,the First Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed, insofar as it alleges that the Respondent violated Section 8(a) (3) of the Act by discharging Gordon Horsford. CHAIRMAN McCULLOCH and MEMBER BROWN took no part in the con- sideration of the above Decision and Order. 2In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT interrogate any employees, in a manner constitut- ing interference, restraint, or coercion within the meaning of Sec- tion 8 (a) (1) of the Act, as to their own or other employees' union affiliations, sentiments, or activities or as to what has transpired at union meetings. WE WILL NOT request or otherwise encourage any of our em- ployees to act as informers with respect to union meetings -or GARLAND KNITTING MILLS 385 activities or as to the union membership or activities of any of our employees. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that,such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. GARLAND KNITTING MILLS, 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. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge filed by International Ladies' Garment Workers' Union, AFL- CIO, the General Counsel of the National Labor Relations Board caused a com- plaint to be issued on April 22 , 1960, which, as amended prior to and at the hear- ing, alleged that Garland Knitting Mills had engaged in unfair labor practices in violation of Section 8(a)(3) and ( 1) of the National Labor Relations Act, as amended (61 Stat. 136), by discharging employee Gordon Horsford because he joined or assisted the Union or engaged in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection ; by interrogating employees concerning their union affiliations; by warning them to refrain from assisting, becoming members of, or remaining members of, the Union ; by threat- ening employees with discharge or other reprisals if they joined or assisted the Union; and by soliciting employees to report to Respondent the meetings and activities of the Union and its adherents . Respondent filed an answer, denying that it had engaged in any of the unfair labor practices alleged and pleading, affirma- tively, that it had discharged employee Horsford for cause. A hearing was held before the duly designated Trial Examiner on May 16, 17, and 18, 1960, in Boston , Massachusetts. Thereafter, on or before June 22, coun- sel for each of the parties submitted briefs which have been duly considered. 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 Massachusetts corporation engaged in the manufacture, sale, and distribution of women's sweaters and related knitted products at its principal place of business located in Boston , Massachusetts. In the course and conduct of its business it annually receives materials from outside Massachusetts valued in excess of $50,000 and also annually ships finished products valued in excess of that amount to points outside the Commonwealth . Respondent admits, and I find, that it is engaged in commerce within the meaning of the Act. 599198-62-vol. 131-26 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED International Ladies' Garment Workers' Union, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Respondent's interrogation of its employees, and its use of them as informers, with respect to union activities The Union commenced an organizational drive at Respondent's mill in Septem- ber 1959. Shortly thereafter Respondent sought or received information from at least three of its employees-Horsford, Cresser, and Cherry-with respect to the progress of the campaign and the identity of its employees participating therein, in the manner and under the circumstances set forth below. Horsford: In September 1959, employee Gordon Horsford (whose alleged dis- criminatory discharge is treated infra) visited Respondent's plant manager, Stan- ley S. Crosby, in the latter's office and informed him of the visit several days earlier of two union organizers to his home and their attempt to enlist his aid in organizing Respondent's employees. He assured Crosby that he was interested only in maintaining his job and wanted no part in the Union's organizational cam- paign. At Crosby's request, Horsford furnished the name of one of the organizers. Crosby suggested that there be no more meetings in Crosby's office about the Union "because you never know who's watching or telling tales" and stated that he would telephone Horsford at the latter's home from time to time. He promised that if Horsford "would go along with the Company," he would probably be able to advance himself. Several days later Crosby telephoned Horsford at his home and inquired about the Union's progress. Horsford reported that about 50 percent of the men were in favor of the Union and were "talking it up." Crosby reiterated that Horsford could "go places with the Company" if he played along with it. Thereafter, some- times as often as three times a week until the last week in October, Crosby called Horsford at the latter's home and inquired as to the Union's progress. He told Horsford that he was more interested in the reaction of the men than of the women, for the men were the "backbone" of the plant' Cresser: Soon after the commencement of the organizational campaign, Crosby also telephoned employee Donald J. Cresser at his home and inquired whether the Union had gotten in touch with him. When Cresser stated that it had not, Crosby replied, "Are you sure they haven't contacted you?" adding that the organizers had contacted most of the other men. Crosby then asked Cresser to call him either at home or at the office if the organizers did communicate with him 2 Cherry: According to the uncontroverted and credited testimony of employee Arthur Cherry, in late October 1959 he sought out Foreman Nate Kovars in the latter's office and informed him that he, Cherry, had signed a union card and mailed it to the Union but that, after talking to his wife, he regretted having signed the card and wished he could retrieve it. Kovars promised to see what he could do about getting the card babk.3 He then asked Cherry if the latter knew anyone else who had signed a union card and specifically asked whether Gordon Horsford had signed one. Cherry replied that he did not know .4 The Union held its first meeting on Sunday, January 31, 1960. It is undisputed that following that meeting and on a number of occasions thereafter Cherry had 'The above findings are based upon the testimony of Horsford , corroborated in many respects by Crosby himself. Crosby testified, however, that the telephone conversations were suggested or initiated in each instance by Horsford . Horsford impressed me as the more credible of the two witnesses. f The findings in the above paragraph are based upon the credited testimony of Creaser. Crosby, when asked whether he had ever had any telephone conversations with Creaser about the Union, replied that he could not remember , adding, "I have talked to Mr. Creaser, but by phone, I'm very doubtful." S In a second interview with Cherry a few days later , at which Cherry's wife was also present, Kovars told Cherry that nothing could be done about getting his card back but that Cherry should not worry because the Union could not establish itself in the plant without a Board election in which the employees would have an opportunity to vote for or against the Union 'Kovars' proffer of assistance to Cherry in retrieving his union card is not, in the circumstances of this case, found to be an unfair labor practice . Cherry's testimony in regard to it is set forth merely to show the setting in which Kovars' interrogation with respect to union activities occurred. GARLAND KNITTING MILLS 387 telephone conversations with Plant Manager Crosby in which he reported to Crosby what went on at the January 31 and subsequent union meetings, who attended, and who signed union cards. There is a conflict in the testimony, how- ever, as to who suggested or initiated these telephone calls, and as to some of the statements made during the conversations. The occasion or ostensible occasion for the first mention of the Union between Crosby and Cherry was a meeting or telephone conversation between the two in connection with Crosby's attempt to have the Blue Cross-Blue Shield insurance agency reconsider its refusal to pay the expenses incident to the birth of Cherry's first child. Cherry testified that on January 30, the day before the first union meeting, Crosby called him at his home, advised him that Respondent had filed a claim in his behalf with Blue Cross but had not yet received a response; that Crosby then asked him whether he was going to attend the union meeting on the following day, and, upon receiving an affirmative reply, asked Cherry to report to him what went on at the meeting; that Cherry protested that he did not want to be a squealer; and that Crosby told him not to worry-that the report would be in confidence and no one would find out. He testified further that on the day after the first union meeting, Crosby called him again, reported that he had not yet heard from Blue Cross but that Cherry should not worry-that he would get the money one way or another; that Crosby then asked him how many people had attended the union meeting, whether Horsford was present, what Horsford had to say, how many of the men had signed cards, and their names. Cherry also testified that he attempted to give Crosby all the information requested; 5 that when he told Crosby that 14 men had signed union cards, Crosby replied that he had heard only 11 had signed; and that when Cherry could name only about 6 of the signers, Crosby named 5 more. According to Cherry, Crosby thereafter called him at intermittent times through- out the week when Cherry was away from home and left messages with Cherry's wife. He testified that about February 20 Crosby approached him at the plant and asked why he had not heard from Cherry on the telephone; that Cherry replied he had nothing to say to Crosby, whereupon Crosby purported to give him "a little friendly advice, to stop playing both ends against the middle, because it doesn't pay." Cherry testified, in addition, that following the Union's last meeting on Feb- ruary 21, Crosby called him again when Cherry was not at home and that when Cherry returned the call, Crosby asked him what had gone on at the meeting the day before; that Cherry told him not much had gone on, then asked Crosby not to call him any more because he, Cherry, was upset and did not want to step on anyone's toes. There ensued a discussion of Horsford's discharge which will be treated infra. Crosby testified, on the other hand, that during the week preceding the first union meeting, he summoned Cherry to his office to discuss the Blue Cross insurance mat- ter and that during the conversation, Cherry volunteered the information that the Union was having a meeting on January 30 (the date was actually January 31) and asked Crosby to call him after the meeting; that pursuant to this request, Crosby did call Cherry; that Cherry named the persons who had attended the meeting, including Horsford, related what Horsford had said, stated that no one had signed a union card, and requested that Crosby call him again after the next union meeting, which was scheduled for February 7. Crosby further testified that he called Cherry fol- lowing the second union meeting, as Cherry had requested; that Cherry volunteered the names of all employees in attendance, named 11 who had signed cards, 2 who had refused to sign, and 2 who had left the meeting early; and reported that Hors- ford had not been present. With respect to further conversations with Cherry about the Union, Crosby testi- fied as follows: As Cherry left the plant on February 20, he told Crosby that the Union would have another meeting on the following day. Crosby asked if he should call Cherry afterward and Cherry replied in the affirmative. When Crosby called Cherry after the meeting, Cherry said that he had gone to the meeting but would rather not discuss it. Cherry nevertheless reported that 12 employees, in- cluding Horsford, had attended; and that the union representatives had recommended a strike and had informed those present that there would be "no more meetings of the knitters as there must be a leak somewhere." There ensued a discussion of Horsford's discharge, which will be treated infra. At the conclusion of the conver- sation, Crosby asked Cherry not to call him any more. The testimony of Crosby and Cherry is irreconcilable in many respects. I do not credit all of the testimony of either but I believe there is much truth in the testimony 5 His report to 'Crosby about Horsford is set forth infra in connection with the treat- ment of Horsford's discharge. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of each.6 I am convinced that it was Crosby rather than Cherry who first suggested that Cherry report on the union meetings. This would be in accordance with the pattern followed by Crosby in seeking information from Horsford and Cresser. Moreover, Cherry's account of how his role as informer was initiated impresses me as more plausible than Crosby's account .7 I accept Crosby's testimony, however, that it was after the second union meeting, rather than the first one, that Cherry in- formed him of the names of the employees in attendance and of those who had signed union cards. I find it unnecessary to determine whether, after Crosby's initial request that Cherry report to him what went on at the first union meeting, the spe- cific telephone calls thereafter were placed at the request of one or the other of the two men, nor do I find it necessary to resolve the conflicts as to all details with re- spect to what was said by each during these telephone conversations. I am con- vinced from all the evidence that Crosby did more than merely listen to informa- tion voluntarily offered and that he actively sought the information obtained from Cherry.° However, even if Crosby had done no more than encourage Cherry by calling him for reports on the union meetings pursuant to suggestions previously made by Cherry, I would nevertheless find such conduct to be unlawful interference with the employees' organizational rights-an intrusion into their right to express their views in the privacy of their union hall and to join the Union without fear of employer reprisal. Crosby's testimony that Cherry, in informing him of the Union's last meeting, reported that the organizer had announced that there "must be a leak somewhere" and that he was therefore holding no more union meetings, illustrates the devastatingly coercive effect that an informer system such as that used by Re- spondent can have upon the employees' organizational efforts. Crosby's conduct was a form of industrial espionage, a practice uniformly condemned by the Board and the courts.9 Crosby's initial use of employee Horsford to obtain information as to the Union's progress, as well as his later use of employee Cherry to obtain information as to what went on at the union meetings , and the identity of employees who attended the meetings or signed union cards, and his attempt to enlist the services of employee Cresser as an informer were clearly in violation of Section 8(a) (1) of the Act. Like- wise unlawful was Foreman Kovars' interrogation of employee Cherry as to whether Horsford and other employees had signed union cards. B. The discharge of Horsford Gordon Horsford had worked for Respondent as a full-fashioned knitter for ap- proximately 7 years prior to his discharge on February 15, 1960. He was a mature man (based on my observation of him), was well-liked and respected by the em- ployees,10 and was held in "high regard" by Plant Manager Crosby.il Indeed, be- 8 In failing to give full credit to Cherry's testimony, I am influenced principally by the fact that in a prehearing sworn statement given to the Board's field examiner, Cherry attributed to Crosby statements purportedly made at an October 28 meeting with the knitters which, if made, would clearly have been a violation of Section 8(a) (1) of the Act. When questioned at the hearing about what was said at the meeting, Cherry did not testify that such statements were made, nor did any other witness so testify. 7In making this finding, I am not unmindful of the fact that some employees may have volunteered some information to Crosby. Thus Crosby, in seeking to establish that it was at the second meeting-rather than at the first meeting, as Cherry had testified-that union cards were signed, testified that employee Mazzarini came to him after the second meeting and volunteered information that a number of men had signed union cards at that meeting. s Crosby was a young man, working at a part-time job, in addition to his job with Respondent, to support his wife and baby and to pay the expenses incident to the birth, not only of his first child but of another which was on the way at the time of the in- cidents here involved. I am confident that Crosby, in offering to assist Cherry in obtain- ing payment of his Blue Cross insurance, was not motivated by his desire to obtain information as to the employees' union activities, for he had previously assisted another employee similarly situated, but I believe that he nevertheless recognized and deliberately took full advantage of Cherry's vulnerable financial position in calling upon him to fur- nish information. 0 N L R B v Cleveland Cliffs Iron Company, 133 F. 2d 295, 301 (C A 6) , Jackson Tile Manufacturing Co. v. N L.R B , 272 F 2d 181 (C.A. 5), enfg 122 NLRB 764, 773-774, NLRB. v. Clark Brothers Company, 163 F 2d 373, 375 (C.A. 2). - 10 Testimony of Carl Arvidson, Horsford's alley mate, who was called by Respondent as a witness. 11 Testimony of Crosby. GARLAND KNITTING MILLS 389 cause of the high esteem which Crosby held for him and because he "wasn't afraid to speak up," Crosby had recommended him as a correspondent on Respondent's newspaper, "The Garlander," in early January 1960. He was discharged on Monday, February 15. The reasons assigned by Crosby for his discharge were as follows: (1) Disobeyed his foreman's instructions re- garding hours to be worked; (2) ran his machine without authorization and off the clock (completely uninsured and actually trespassing); (3) left the machine running without attendance while he went home; and (4) turned in a production paper for payment, with fraudulent information. The incident which precipitated Horsford's discharge occurred on the night of February 12 to 13. Horsford was then working on the 11 p.m. to 7 a.m. shift which at that time had no foreman or supervisor on duty.12 When Horsford reported for work just before 11 p.m., he was handed a note from Foreman Nate Kovars, instructing him to work only until 5 a.m.13 Horsford, however, punched out at 5:02 a.m., then returned to his machine at 5:05 or 5:06, strapped up and started another set which was already on the bars and continued to work until about 5:20, according to his own testimony, or until about 5:25 or 5:30, according to the testi- mony of his alley mate, Arvidson. At that time, while the last set of sweater backs was still on his machine but nearing the completion stage, Horsford left the plant, requesting Arvidson to remove the set from his machine when the knitting was com- pleted. He took credit for this set on the production sheet which he turned in.14 The set which Horsford started after checking out needed to be knitted before the machine could be cleaned properly, but this knitting could and normally would have been done by one of the cleaning crew, which Respondent sought to furnish with 2 hours of knitting before they started their lower-paid 3 hours of cleaning. The extra work which Horsford did after 5 a.m. did not, however, preclude the cleaner who took over his machine at 7 a.m. from knitting the normal amount, for Horsford left six sets for his machine to start with and more sets would become available about 7:30 a.m. A knitter normally completes from 3 to 31/2 sets an hour. Plant Manager Crosby normally did not arrive at the mill until about 6:15 or 6:30 a.m., but on Saturday, February 13, he arrived earlier-about 5:15-in order to catch up with a backlog of work and to prepare for the annual salesmen's con- ference which was scheduled for the following Monday through Wednesday. About 5:35, in making his customary check on the third shift, he noticed that Horsford's machine was running but that Horsford was not attending it. Arvidson, Horsford's alley mate, explained to Crosby that Horsford had left the mill about 5:30 and had requested Arvidson to remove the set when it was completed. Arvidson in fact did so a few minutes later. Crosby testified that he had never before discharged a full-fashioned knitter but that he considered Horsford's conduct on the morning of February 13 to be a serious offense and was motivated solely by that incident in discharging him.15 He analogized Horsford's action in working unauthorized overtime to that of another employee, a presser, whom Crosby discharged for checking out and leaving the plant at 12 noon when she had been instructed to work until 2 p.m. It is question- able, however, that Crosby in,faet considered the working of unauthorized overtime for a half hour as analogous to the presser's quitting 2 hours, early. He conceded on 12 Shortly thereafter Respondent hired a foreman for its third shift allegedly to prevent the recurrence of incidents such as those which it assigned as the reason for Horsford's discharge. "Due to an influenza epidemic in Boston during the early part of 1960 there had been an excessive number of absences among employees in the operations preceding the knitting operation, resulting in a shortage of sets to be knitted by the regular knitting crew and a Saturday cleaning crew which normally knitted for 2 hours and cleaned machines for 3 hours every other Saturday In order to supply the cleaning crew with enough sets to knit between 7 a.m , when it reported for work, and 7 •30 a in , when the preceding operations commenced supplying more sets, Respondent had been putting regular knitters on short time, that is, had been giving them only 38 Instead of their normal 40 hours of work during some weeks . The occasion in question was the first time Horsford had been put on short time. 14 When two knitters worked under an alley mate rate, rather than a single rate, one assists the other at times-such as in strapping the sets-and watches the other's machine while he is away looking for yarn, smoking, in the bathroom, etc 15 Horsford himself testified with respect to an occasion in mid-January 1960, apparently while Horsford was on another shift, when Foreman Kovars reprimanded him for leaving his machine and wandering around too much. But Respondent does not contend that this fact in any way contributed to its decision to discharge Horsford 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cross-examination that if a set is already in the needles at the end of a shift, the knitting operation should be completed by the operator who put the set on if, as in the present case, no one on the next shift is present to take over the operation. When asked whether , in a situation where no incoming shift operator was expected, it was permissible for a knitter who finished one set shortly before quitting time to start another set (as Arvidson testified that Horsford did), Crosby replied, "It would be unclear to me whether he would start it or not, the last set," adding ,that it would not be a serious offense for him to start it. Crosby testified that in deciding to discharge Horsford, he considered that the latter had turned in "fraudulent information" because, although he had checked" out at 5:02 a.m., he listed on his production sheet the work on his machine which was completed after that time. It was customary for the incoming knitter, according to Crosby, to receive credit for work on the machine which he takes off. By analogy, it would seem that Arvidson, who, at the request of both Horsford and Crosby, actually took the set off, should have received credit for it. But Re- spondent, with full knowledge of what had happened, voluntarily paid Horsford for the set. Finally, Crosby insisted that the most serious element of Horsford's offense was his action in leaving the plant while his machine was still running. The knitting ma- chines were very expensive, and in the event of a smashup, which sometimes occurs, a. machine could be seriously damaged if no one was present to shut it off or tend it. It would be all right, according to Crosby, for a knitter to leave his machine for his alley mate to watch for 6 or 7 minutes 16 while he went to the bathroom but not while he left the plant. There is a substantial difference in the two situations, Crosby testified, because an alley mate is supposed to take care of the adjoining ma- chine while the operator is in the plant but not while he is outside the plant. Credible evidence was adduced to show that on the unsupervised third shift a number of employees tended to disregard company rules or policies and engaged in practices which they probably would not have engaged in had there been a foreman present. For example, one of the knitters, Briand, used to go outside the plant to get coffee for himself and others, leaving his alley mate to watch his machine for as long as 15 minutes at a time.17 This same operator, upon a number of occasions, would run two knitting machines simultaneously when assigned to a new machine on which he had difficulty making his normal production. This, he knew, was strictly contrary to company policy. Another knitter, Frank Harding, also ran two machines simultaneously on occasions. There is also testimony by employee Coyne that one of the knitters, Otto Lindeblade, who was a slow worker, would punch his timecard, then knit overtime on a number of occasions when no other knitter was present to take over his machine, and that Crosby was present on some of those occasions. Crosby testified, however, that although Lindeblade usually worked 10 or 15 minutes longer than most of the knitters, he was merely tying his work, not doing production work, on those occasions. Although I am satisfied that Lindeblade on occasions did knit after punching out, as Coyne testified he' did, it may well be that Crosby was unaware of this fact. The laxity in the enforcement of company rules or policies outlined above may well have led Horsford and other employees to believe that the reason assigned to Horsford for his discharge was not the true reason and that the Union's organiza- tional campaign, which was then in full swing, must have had something to do with it. Horsford, on the day he was discharged, accused Crosby of discharging him because of his union activities. And other employees, protesting Horsford's dis- charge because of rumors they had heard that he was discriminatorily discharged, caused Crosby to call a meeting of the knitters at which he assured them that he knew Horsford was a friend of the Company, not a union man, and that he had been discharged solely because of his conduct on the night of February 12 to 13. Horsford had not signed a union card prior to his discharge. It is the General Counsel's theory, however, that Horsford, in order to protect his job, had refrained from actually signing a card and had attempted to leave the impression with Respond- dent that he was opposed to the Union or was at least maintaining a position of neutrality, but that Respondent became convinced that Horsford was deceiving it and seed upon the overtime work incident as a pretext for ridding the mill of what it considered a swing man in the organizational drive. Tn treating this contention, consideration will first be given to what Horsford's position with respect to the Union really was. There can be little doubt that at the 1e The time elapsing between Horsford's denarture and the completion of his lnst set. 17 This nrnctice was stopped after Respondent put a foreman on the third shift follow- ing Horsford's discharge. GARLAND KNITTING MILLS 391 beginning of the Union's organizational campaign, Horsford was either opposed to it or was at least undecided. When first approached by the union organizers at his home, he expressed reluctance to help them because of a fear of employer retaliation but said he would think it over. And at a meeting of Crosby, Foreman Kovars, and one of the Company's owners with the knitters in October 1959, when Crosby asked whether any of the knitters had been approached by the Union, Horsford volunteered that he had been approached at his home but that he could not see that the Union had anything to offer the Garland employees. Even as late as the Union's first meet- ing, on January 31, Horsford, after listening to the organizers speak, ,told the assembled employees-about 16 or 18-that he did not think this was the right union for them. Horsford testified, nevertheless, that he was "for the Union" even before the January 31 union meeting and had so informed at least four trusted employee friends, McCarthy, Coyne, Cherry, and Petrobourg.18 Before the January 31 meet- ing, according to Horsford, he told McCarthy that he thought the Union "was a good thing" and that they should get all the men they could to join it. He testified that before the February 8 union meeting, which he did not attend because of illness, he told Coyne that he "should go to the meeting, that it was important, and that the men were going very strongly for the Union"; 19 that between the first and second union meetings he talked to Cherry in the plant about the possibilities of getting some of the men to join the Union and what barriers they had to contend with in persuading these men; that also between the first and second meeting, Horsford talked to Petro- bourg, as the latter was leaving the plant, about how Petrobourg was progressing on his shift in gaining union adherents. Horsford testified further that he did not "open up" as to how he felt about the Union in talking to other employees because "I didn't know who we had for squealers and who we didn't have," but that he advised the men prior to the first union meeting to attend and hear what the organizers had to say. Even assuming, as Horsford testified, that while openly expressing opposition to the Union, or at least indecisiveness,20 he was surreptitiously promoting the Union, the questions still remain: Did Respondent believe Horsford to be active in the Union's behalf and did it discharge him for. that reason. The evidence relative to Respondent's knowledge of Horsford's position regarding the Union and whether Respondent could reasonably have believed that he was active in its behalf, will now be considered. As already noted, when the union organ- izers sought to enlist his aid in organizing the mill, Horsford, upon his own initiative, reported this fact to Crosby and assured the latter that he was interested only in main- taining his job and wanted to have nothing to do with the Union; and he thereafter told the knitters, in the presence of Crosby and other company representatives, that be did not think the Union had anything to offer Garland employees. According to the undenied and credited testimony of Crosby, Horsford, on one occasion in October, reported to Crosby that the Union was putting tremendous pressure on him to join and had offered to put him on the Union's payroll if he would help organize the employees at their homes but that he, Horsford, was not interested. On another occasion in October, he reported to Crosby that the Union was continuing its pressure but that his.un,signed union card was still on the visor of his car. About October 31, in a telephone call to Crosby, Horsford stated that his name was being used by union employees as being for the Union but that this was not so. Crosby replied that he had not heard Horsford's name mentioned and assured Horsford that he should not' worry, that Crosby knew he was a friend of the Company. In November. when Horsford announced his.discovery that employee McCarthy was the person who had mistakenly reported him as favoring the Union, Crosby requested Horsford not to call him about union matters anymore and not to mention to anyone what had been said to him. 'Later, in late January or early February, Horsford suggested to Crosby that the company newspaper, "The Garlander," be used against the Union, but Crosby vetoed the proposal. Crosby, moreover, learned through his informer, Cherry, that Horsford attended the Union's first meeting on January 31 and what Horsford told the employees on that occasion and also that Horsford had not attended the second union meeting held on February 7. Cherry testified that he at Is In addition , employee Dubois called as a witness by Respondent , testified , and I find; that upon an occasion after the first union meeting, when he was complaining to Horsford about his difficulty in making production on a new style, the latter suggested, "Why don't you nick it up to the Union on the meeting on the Sunday'+" 19 Coyne credibly testified that he joined the Union on February 14. the day before Horsford's discharge, and that Horsford was one of the men who persuaded him to join. 20To some of the employees Horsford stated'that he was still thinking about what the Union had to offer or that his unsigned union card was still on the visor in his car. 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no time ever told Crosby that Horsford was active in the Union's behalf and there is no evidence that anyone else did so. To establish an antiunion motivation, the General Counsel has relied almost exclu- sively on the testimony of Arthur Cherry, whose role as an informer has been described supra. Cherry testified that when he reported to Crosby that Horsford had spoken to the men at the January 31 union meeting but did not appear to be too much in favor of the Union,, Crosby warned him, "Be on your guard because Gordon Horsford was a smart bastard . . . that he was only an opportunist who was using the likes of me and other men in the shop to better himself." Cherry further testified that when Crosby telephoned him on February 22 or 23 for a report on the Union's last meeting, Cherry protested that Horsford had not been ,active in the Union; that he, Cherry, thought Horsford had gotten a "dirty deal," with Crosby showing up in the plant at 5:20 in the morning; that Crosby replied that it was no one else's business why Crosby was in the shop at that time; that the Company was justified in firirig Horsford because it had known all along that he was mixed up in union activities; and that Crosby was glad that the knitters had "gone to bat" for Horsford but there was nothing he, Crosby, could do about it at that time "on account of the union pres- sure from outside." Crosby denied that he made these statements to Cherry. He testified that after the last union meeting, Cherry told Crosby that he thought Horsford had been fired without cause; that there were rumors to the effect that Horsford was fired for union activity; that Horsford was in fact a friend of the Company; and that Crosby "had no business firing him for union activity." According to Crosby, he then assured Cherry that Horsford was a friend of the Company, was not active for the Union, and had been fired solely because of what he had done on the night of February 12 to 13. The issue as to credibility between Cherry and Crosby is not an easy one to re- solve, for, as already pointed out, I do not accept all of the testimony of either as credible. In this instance, however, I am more inclined to accept the testimony of Crosby, especially with respect to what was said during their last telephone con- versation. On that occasion, before Crosby had an opportunity to mention Hors- ford's discharge, he was aware that Cherry was upset and did not want to continue to act as an informer and Cherry had let him know that he believed Horsford had been unjustly discharged for engaging in union activities. In these circumstances, it is unlikely that Crosby would have been so indiscreet as to have admitted having discharged Horsford because of union activities. My rejection of Cherry's testimony in the respects mentioned above does not, however, remove all doubt with respect to Crosby's motivation in discharging Horsford. As already indicated in my analysis of the reasons assigned by Crosby for discharging Horsford, those reasons appear to be somewhat specious. There can be no doubt, moreover, that Horsford was well liked and looked up to by the employees, that Respondent had a high regard for him, and that it was particularly concerned about his attitude with respect to the Union. Furthermore, I am con- vinced that Crosby obtained information with respect to the employees' union activities from sources other than Cherry?i Nevertheless, in view of Horsford's open and public refusal to support the Union, I am not persuaded that even if Respondent had known the full extent of Horsford's union activities, it would have considered him sufficiently influential in the Union's behalf to motivate its dis- charge of him for that reason. Although I am not free from doubt in the matter, I find, under all the circumstances, that the General Counsel has failed to establish by a preponderance of the evidence that Horsford was discriminatorily discharged as n Cherry's testimony , mentioned supra, that when he failed to name all the employees who had signed union cards in reporting to Crosby about one of the union meetings, Crosby named the others who had signed, sounded convincing to me and I credit it. It should be noted, moreover, that Crosby requested employee Cresser to report to him if any union representative communicated with him 80 In its brief the Union suggests that Horsford was discharged for engaging in a protected concerted activity in violation of Section 8(a) (1) of the Act. It bases this contention on the testimony of employee Coyne, which I credit, to the effect that upon -one occasion , date unspecified, he overheard Horsford , in loud tones, tell Foreman Carl Fredriksen, "Carl, this time the Company has to do something for the men, they have to give us a good raise, and otherwise there's going to be some strong action taken " Coyne testified that he did not hear the beginning or end of this conversation. Neither Horsford nor Fredriksen were questioned about the episode. This fragmentary evidence, in the circumstances , is Insufficient upon which to base a finding that Crosby discharged Horsford for engaging in concerted activities for the protection of himself and other employees THE DAVIS FIRE BRICK COMPANY 393 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in con- nection with the operations of 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 of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall rec- ommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the above findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. International Ladies' Garment Workers' Union, AFL-CIO, is a labor organ- ization within the meaning of Section 2(5) of the Act. 2. By interrogating its employees , and by using them as informers, for the pur- pose of obtaining information as to the progress of the Union's organization]. cam- paign and the identity of its employees who signed union cards or engaged in other union activities, Respondent has engaged in unfair labor practices within the mean- ing of Section 8 (a) (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce 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) or (1) of the Act by discharging Gordon Horsford. [Recommendations omitted from publication.] The Davis Fire Brick Company and United Brick and Clay Workers of America, AFL-CIO. Case No. 9-CA-f105. May 2, 1961 DECISION AND ORDER On October 7, 1960, Trial Examiner Stanley Gilbert issued his Order on Motion to Dismiss in the above-entitled proceeding, grant- ing the Respondent's motion to dismiss the complaint, as set forth in the copy of the Order attached hereto. Thereafter the General Coun- sel and the Charging Party filed requests for review of the Trial Ex- aminer's Order together with briefs in support of their requests. The Respondent filed a brief and a supplemental brief in support of the Trial Examiner's Order. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Order, the requests for review, the briefs, and the entire record in the case, and hereby affirms the Trial Examiner's ruling. Accordingly, we shall dismiss the complaint. [The Board dismissed the complaint.] CHAIRMAN MCCULLOCH and MEMBER BROWN took no part in the consideration of the above Decision and Order. 131 NLRB No. 50.