Brookside Industries, Inc.

16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD therefore, that the agreements entered into pursuant to such recogni- tion remain as bars despite the proviso to Section 8(f).' The Petitioner also contends that, even if the Board finds that the agreements here are bars despite the proviso to Section 8 (f) , the Board should nevertheless find that the Petitioner's "substantial claim" for recognition prior to the execution of the a greements is sufficient ground for directing an election here. In advancing this contention, the Petitioner relies upon Greenpoint Sleep Products, 128 NLRB 548, in which the Board construed the "substantial claim" rule of Deluxe Metal Furniture Company, 121 NLRB 995, 998, to cover situations where a petitioner was lulled into a false sense of security by an em- ployer who led it to believe that recognition would not be granted or any contract be entered into with any union until after a Board elec- tion. In the instant case, in the face of the Petitioner's demand for recognition and offer to submit to a Board election, Pao, the Em- ployer's president, indicated only that he would think the matter over and that a further meeting would have to be held. We believe that these statements fall short of a commitment by the Employer that no union would be recognized except pursuant to a Board-directed elec- tion. Accordingly, we reject this contention of the Petitioner and grant the motion of the Intervenor and the Employer to dismiss the petition.6 [The Board dismissed the petition.] 68 S Burford, Inc, 130 NLRB 1641, is distinguishable from the instant ease. In Burford, the agreement was held not to be a has since it had been entered into as a prehire contract , that is, at a time when the contracting unions had not and could not have demonstrated their majority status under Section 9 Since we are dismissing the petition on the above grounds, we find it unnecessary to consider the contentions of the parties on other issues in the case Brookside Industries, Inc. and Louise J. Moore. Case No. 11-CA- 1697. January 4, 1962 DECISION AND ORDER On April 24, 1961, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the com- plaint and recommended that such allegations be dismissed. There- 135 NLRB No. 4. BROOKSIDE INDUSTRIES, INC. 17 after the Respondent filed exceptions to the Intermediate Report and a supporting brief.' 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 Interme- diate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.2 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, Brookside Indus- tries, Inc., Reidsville, North Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from interfering with, restraining, or coercing its nonsupervisory employees in the exercise of their rights guaranteed in Section 7 of the Act, by discharging any supervisor for failing and refusing to participate in an antiunion campaign involving conduct violative of Section 8 (a) (1) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Louise J. Moore immediate and full reinstatement to her former or to a substantially equivalent position, without prejudice to her seniority and other rights and privileges, and make her whole for any loss of pay she may have suffered by reason of her discharge in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all the records necessary to analyze the amount of backpay due under the terms of this Order. i The Respondent has requested oral argument This request is hereby denied 'because the record , the exceptions , and the brief adequately present the issues and the positions of the parties 9 The Respondent contends that it discharged Louise J . Moore, a supervisor , because knowledge of union activities which she might acquire from her husband , an active union member in Respondent 's employ, might be imputed to Respondent and render It liable In any future unfair practice litigation Contrary to the Respondent , we find this contention to be a pretext and, in agreement with the Trial Examiner , find that Respondent violated Section 8 ( a) (1) of the Act by discharging Moore because she failed to comply with Re- spondent's express instructions to report on the union activities engaged in by her husband and other employees . However, In reaching our decision we find it unnecessary to adopt, and do not pass upon the Trial Examiner's further conclusion that even If the Respondent discharged Moore in good faith in order to protect Itself from future litigation; such a basis for discharge would constitute a violation of Section 8(a)(1) of the Act. 634449-62-vol. 135-3 i (^, is DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post in its plant in Reidsville, North Carolina, copies of the notice attached hereto marked "Appendix." s Copies of said notice, to be furnished by the Regional Director for the Eleventh Region, shall, after being signed by the representative of Respondent, be posted immediately upon receipt thereof, and be maintained by it for 60 con- secutive 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. (d) Notify the Regional Director for the Eleventh Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTIIER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleegs that Respondent violated Section 8(a) (1) of the Act by the conduct of Moe Tanger. MEMBER LEEDOM took no part in the consideration of the above Decision and Order. I 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" 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, we hereby notify our employees that : WE WILL NOT interfere with, restrain, or coerce our nonsuper- visory employees in the exercise of rights guaranteed in Section 7 of the Act, by discharging any supervisor for failing and re- fusing to participate in an antiunion campaign involving conduct violative of Section 8 (a) (1) of the Act. WE WILL offer to Louise J. Moore immediate and full reinstate- ment to her former or substantially equivalent position, without prejudice to her seniority and other rights and privileges, and make her whole for any loss of pay she may have suffered by reason of her discharge. BROOKSIDE INDUSTRIES, INC., 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. BROOKSIDE INDUSTRIES, INC. INTERMEDIATE REPORT AND RECOMMENDED ORDER 19 STATEMENT OF THE CASE Upon charges filed by Louise J. Moore, an individual , the General Counsel of the National Labor Relations Board, by the Regional Director for the Eleventh Region (Winston-Salem, North Carolina), issued his complaint, dated January 11, 1961, against Brookside Industries , Inc , herein called the Respondent . With respect to the unfair labor practices , the complaint, as amended at the hearing , alleges that Respondent engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act by discharging Louise J. Moore, a supervisor , within the meaning of the Act, and by other specified acts of interference , restraint, and coercion. In its duly filed answer, Respondent admits certain specific allegations , including the fact that Louise J Moore was discharged, but denies , generally, all unfair labor practice allegations Pursuant to due notice, a bearing was held before Louis Libbin , the duly desig- nated Trial Examiner , at Reidsville , North Carolina, on February 2 and 3, 1961. All parties were represented at, and participated in, the hearing and were afforded full opportunity to be heard , to examine and cross-examine witnesses , to present oral argument, and to file briefs . Respondent's motion to dismiss the complaint, made before the close of the hearing and upon which I reserved ruling, is hereby denied in part, and granted in part, in accordance with the findings and conclusions hereinafter made. On March 6, 1961, Respondent filed a brief which 1 have fully considered. Upon the entire record in the case, and from my observations of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, Brookside Industries, Inc., a North Carolina corporation, operates a plant at Reidsville, North Carolina, where it is engaged in the production and distri- bution of men 's shirts. Respondent produces shirts primarily under contract for Creighton Shirt Corporation , New York, New York. During the 2 months pre- ceding the issuance of the complaint , which is a representative period, Respondent manufactured , sold, and shipped from its Reidsville , North Carolina, plant to points outside the State of North Carolina finished products valued in excess of $1,000,000 Upon the above-admitted facts, I find , as Respondent admits in its answer, that Respondent is engaged in commerce within the meaning of the Act. II. THE CHARGING PARTY It is not disputed that Louise J. Moore was first employed by Respondent in December 1958, that she was made a supervisor within the meaning of the Act in the early spring of 1959, that she had from 40 to 45 girls under her supervision, and that her immediate superior was the superintendent of the sewing room. Respondent admits that it requested her resignation on October 17, 1960, and discharged her 2 days later, on October 19. Iii. THE UNFAIR LABOR PRACTICES A. Introduction; the issues Louise J. Moore, and her husband , Troy Moore, were first employed by Respond- ent in December 1958 . In the spring of 1959 Mrs. Moore was made an admitted supervisor within the meaning of the Act and continued in this position until her discharge on October 19, 1960 As a supervisor, she had about 40 to 45 girls under her and reported directly to the superintendent of the sewing room . Respondent admittedly was satisfied with her work at the time of her discharge . Troy Moore continued to hold a nonsupervisory job, that of matching up work for the operators in the sewing room, and was under the direct supervision of Supervisor Dorothy Breeze Amalgamated Clothing Workers of America, AFL-CIO,' the Intervenor in this proceeding and herein called the Union, commenced its organizational efforts among 1 Amalgamated Clothing Workers of America , AFL-CIO, was permitted to Intervene to the extent of Its Interest . G. H. Biggs, International representative, did not participate In the examination of witnesses or In the presentation of evidence In support of the complaint 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's employees in June 1960. Troy Moore joined the Union, attended union meetings, and solicited union membership among the employees. Respondent admittedly was aware of Troy Moore's union activities. On October 11 to 14, 1961, a hearing was held before me on a complaint issued against Respondent alleging that certain supervisors and agents had engaged in specified acts of interference, restraint, and coercion violative of Setcion 8(a)(1) of the Act and that Respondent had discriminatorily discharged eight named employees in violation of Section 8(a)(3) of the Act.2 On October 17, Respondent requested the resignation of Louise Moore and discharged her on October 19. The principal issue litigated in this proceeding is whether the termination of Louise Moore's employment, under the circumstances hereinafter described, inter- fered with, restrained, and coerced the employees in the exercise of their rights guaranteed by Section 7 and thereby violated Section 8(a)(1) of the Act. B. Events preceding the prior hearing - - Louise Moore first heard that the Union was attempting to organize Respondent's employees when S. K. Tanger, an admitted agent of Respondent, asked her on Friday, June 10, whether she had heard about the union campaign going on. She knew that the first union meeting which her husband attended was on Thursday evening, June 16? During that day Sidney Magid, Respondent's vice president, asked her, while she and employee Dot Thompson were in the office, if she was going to the union meeting that night. When Mrs. Moore replied in the negative, Magid asked her why she was not going. She replied that she not interested and did not have any business attending. Magid then asked Dot Thompson if she was going. Thompson replied in the affirmative, adding that she was going "to see and be seen and to hear and be heard." When Magid asked if he could go with her, she replied that he could 4 In the latter part of June, S. K. Tanger asked Mrs. Moore if she thought she could get her husband, Troy, to give her a list of the people who had attended the union meetings, adding that he wanted Troy "on our side." She agreed to ask Troy. She did ask her husband, who told her to tell S. K. Tanger that he did not want to have anything to do with it. Mrs. Moore reported Troy's reply to S. K Tanger.5 At one of Respondent's supervisory meetings in July, Moe Tanger, an admitted agent of Respondent, said to Mrs. Moore, in the presence of the other supervisors, "I understand your hubby is attending union meetings." Mrs. Moore answered in the affirmative. A few days later she was called into Moe Tanger's office. Moe 2 In my Intermediate Report, issued on January 12, 1961, I found that Respondent vio- lated Section 8(a) (1) of the Act by the attendance of Supervisors Hall and Adams at a union meeting on June 23, by the conduct of Head Floorlady Bessie Oliver in interrogat- ing an employee in July concerning her attendance at a union meeting and the union activities of her fellow employees and in asking'her to find out and inform her about the union membership and activities of other employees, by the conduct of Agent Lee Head in interrogating an employee on August 19 as to the number in attendance at a union meeting and in soliciting employees in July or August to withdraw from the Union and had violated Section 8(a) (3) of the Act by the discharge of two employees on July 15 and one employee on July 28, 1960 See Brookside Indacstries, Inc, 138 NLRB 842 3 This date was established in the prior proceeding as being the meeting attended by Joe Ann Shelton who is alleged to be an agent of Respondent 4 The findings in this paragraph are based on the credited and undisputed testimony of Louise Moore Although Magid and S K Tanger were called as witnesses for Respondent, they did not deny having made the above statements Dot Thompson was not called as a witness 5 The findings in this paragraph are based on the credited testimony of Louise Moore and Troy Moore S K Tanger's conduct in this respect was consistent with the undenied efforts of Lee Head, an admitted agent of Respondent, to get Troy Moore on Respondent's "side of the fence," as hereinafter found, and his further undenied efforts in interrogating an employee as to the number in attendance at a union meeting, as found in the previous case, the undenied conduct of Magid in questioning Louise Moore as to whV she was not going to attend a union meeting, as previously found, and the undenied efforts of Head Floorlady Oliver in questioning an employee concerning her attendance at a union meeting and the union activities of her fellow employees and in a,§king the employee to find out and report back the names of other employees, who had signed union cards,,as found in the previous case See footnote 2, supra S. K. Tanger denied having made the request attributed to him by Mrs Moore. He admitted that he knew Troy was attending union meetings and that Mrs Moore had stated at supervisors' meetings that her husband was not telling her anything about the meetings . I do not credit S K Tanger' s denials BROOKSIDE INDUSTRIES, INC. 21 Tanger stated that he wanted her to talk to her husband to try to get him over to "our side" and to quit attending union meetings He pointed out to her that "you eat, sleep and bear his children, and you have more influence over him than anybody else " She did talk to Troy about it and was told to keep out of it. Thereafter, Troy continued to solicit employees to join the Unions Lee Head, an admitted agent of Respondent, was employed by Respondent in the latter part of July. A few weeks later, Head had Troy Moore summoned to his office through Louise Moore Head stated that he heard Troy was attending union meetings 'and wanted to know what steps he could take to get Troy on his "side of the fence " Head explained that it was his job to straighten out the problems in the factory rather than have -the Union do it. He also told Troy that he had talked to Mr. Tanger and had gotten Troy a 5-cent raise. The following week Troy did receive a 5-cent raise.7 In the latter part of July, Mrs Moore was interviewed at her home by a Board investigator in connection with the Union's charges then under investigation. Mrs. Moore gave a signed statement to Investigator Perloff in this connection The next day she reported this to her immediate superior, Angelo Pelizzari, who was the superintendent of the sewing room. Shortly thereafter, she was called into Moe Tanger's office where, in the presence of Lee Head, Moe Tanger questioned her about the visitor she had the preceding night. She told him that she had been visited by a Government man and that she had signed a statement for him Tanger asked if she would give him a statement of what she had told She Government man Mrs Moore agreed to do so and wrote the statement out in longhand right there in the office.8 About September 23, Mrs Moore went to the hospital for an operation and did not return to work until Monday, October 10 C Events during the prior hearing As previously noted, the prior hearing against Respondent began on Tuesday, October 11, and lasted 4 days. Louise Moore had been the supervisor of two of the employees alleged in the complaint to have been discriminatorily discharged. Although Louise Moore had been subpenaed to testify by the General Counsel and had also been informed by Respondent's counsel that he might use her as a witness if it became necessary, she was not called to testify by either side. During the second and third day of the hearing, Mrs Moore was sitting near Respondent's counsel, who at times asked her questions about some of the witnesses who were testifying At the end of the third hearing day, Attorney Douglas asked Mrs. Moore if her husband, Troy, had been attending union meetings. She replied ,that the Company knew that he was attending union meetings. Attorney Douglas then asked her if Troy had ever told her about anything that happened at the union meetings Mrs Moore replied that Troy had told her the names of some of the employees who were at the union meeting held on June 23 and attended by Super- visors Adams and Hall. On arriving home after that meeting, Troy had asked Louise to guess who had attended the union meeting When she replied that she did not have the'least idea, he told her that it was Merle Adams and Clarence Halle and volunteered that he might as well tell her the names of others who were there because she would learn it anyway Attorney Douglas then informed S. K Tanger and Attorney Gwyn about his conversation with Mrs. Moore Attorney Douglas asked Mrs Moore to give him a list of the names of employees who, Troy had told her, " The findings in this paragraph are based on the credited testimony of Louise Moore and Troy Moore Moo Tanger denied ever talking to Louise Moore shout her trying to get Troy out of,the Union or over to our side He did not deny having stated to her at one of the supervigorr' meetings that he understood her "hubbv" is attending onion meetings ITP admitted being aware of the Union's organizational campaign from the beginning, and that he had heard Trov was in the Union On cross-examination he frequently disclosed a lack of memory and even fenced with the General Counsel Tn the previous hearing, I have found that Moe Tanger was discriminatorily motivated in discharging employee Bolden on July 28 Under all the circumstances as well as for the reasons indicated with respect to S K Tanger, I do not credit Moe Tanger' s denials 7 The findings in this section are based on the credited and uncontradicted testimony of Troy Moore ° The findings in this paragraph are based on the mutually consistent testimony of Louise Moore and Moe Tanger. ° In my previous Intermediate Report, T found that Respondent violated the Act by the attendance of these two supervisors at the meeting of June 23 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD went to the meeting She wrote the names down and gave the list to Attorney Gwyn. Attorney Douglas also told her that he would not use her as a witness the next day because she might be cross -examined about that 10 D. Evenis after the prior hearing The hearing concluded on Friday, October 14 The following Monday morning, October 17 , Louise Moore was summoned to S. K. Tanger's office by Superintendent Pelizzari. S. K. Tanger told her that he "hated to have to do this ," that he would rather let any 12' girls in the plant go than her, but that under the circumstances he was going to have to let her go. Mrs. Moore asked to what circumstances he was referring. Tanger replied that "if they would have you on the stand last week they would have chewed you up like a piece of meat " Tanger then explained that he was surprised to learn last Thursday that Troy had told her the names of some of the employees who had attended the union meeting and that her continued receipt of information from Troy about who was attending union meetings would put the Company in a very embarrassing situation in the event other girls were discharged in the future . When Mrs. Moore stated that she had never discussed anything of importance with her husband about the Union because he had never told her any- thing of importance, S K. Tanger replied that he believed it but queried whether the Union would believe it . Tanger then told her that it would be best that she resign, that she would be permitted to work out a 2 weeks' notice , that during that period she could take time off to look for another position , and that he would give her a letter of recommendation if she needed one. Mrs Moore then returned to her work ii Later that day, S K. Tanger came out to the sleeving section, called Mrs. Moore to one side, and engaged in the following conversation with her , in the presence of Superintendent Angelo Pelizzari. Tanger asked Mrs. Moore what she was going to tell the girls as 4o the reason for her separation . When she replied that she proposed to tell them the truth, Tanger stated that he did not want her to do that his time. Mrs. Moore then asked Pelizzari, "Angelo, what are we going to tell them? " Tanger then stated, "Why not tell them because of union activities getting on your nerves. You want to quit." Mrs Moore refused to agree , stating that Tanger was "asking the impossible " With that statement , the conversation ended 12 Louise Moore took Tuesday off to look for another job When she returned to work on Wednesday , October 19 , she met S K. Tanger in the lobby He asked her if she had had any luck and she replied in the negative . He then told her to go on to work and that she still had a job . That day she was transferred to supervise another section About 3:30 that afternoon , S. K Tanger told her that he was going to let her go today. She inquired what he had listed on her separation papers. He told her that he had found out what to put on her separation papers so that she would not be penalized with respect to her unemployment compensation claim The papers stated that her work separation was due to no fault of the employee She was paid for that week and the following week The findings in the preceding two paragraphs are not in dispute S K Tanger testified that the decision to terminate Louise Moore at that time was made because "during the day Angelo 1Pelizzari] had reported to me that there was a great deal of confusion out in the plant, with Louise trying to help her old section, and the girl in her old section trying to help Louise with the new section , in getting thin;.is 10The findings in this paragraph are based on the credited and undisputed testui,ony of Louise Moore The findings in this paragraph are based as a composite of the nttitualiv con.islcnt testimony of Louise Moore, Polizzari, and S K Tanger i"The findings in this paragraph are based on the credited testimony of Louise Moore S K Tanner denied ever discussing with Mrs Moore what she should tell the girls con- cerning hei pending sep aration Ilowever , Superintendent Pelirzarl who, accordin; to Mrs Moore , etas present at the time did not deny that sueli a eon creation took pia^e I have already discredited S K Tanger in other iespects his lack of candor is further demonstrated by his testimony that lie did not know and give no consideration to what Mrs Moore could have done to have iemedied the situation and to retain her job, although the undisputed and admitted evidence shows that he was present at conferences with Magid and Attorney Douglas where the hope was expressed that Airs Moore would pro- pose to Tanger that her husband would withdraw from the Union of stop attending union meetings or even find other employment Under all the circunistauces , I do not credit S K Tanger's denial BROOKSIDE INDUSTRIES, INC. 23 running smoothly, and he [Angelo] thought it best, as long as Louise had resigned, that we should terminate her immediately." However, Angelo Pelizzari testified that the decision to terminate Mrs. Moore was made at that time because she had told him on Wednesday that she had found out she could draw unemployment compensation only if she were discharged and not if she merely resigned, so that "we gave the girl the discharge she was wanting." Before leaving the plant that day, Louise Moore went into Pelizzari's office and asked him, "Why didn't you fire Troy, he is the one that signed the union card? I haven't." Mrs. Moore then stated, "Angelo, I think you can answer that for yourself." 13 E. Contentions of the parties and concluding findings with respect to Louise Moore's termination Respondent's defense to the requested termination of Louise Moore's employment is substantially as follows: Respondent's officials and agents were aware that Troy Moore was a union adherent and was attending union meetings. Prior to the third day of the previous hearing, Louise Moore had always stated that she had never received any information from her husband about the Union. However, on the third day of that hearing she disclosed that Troy had told her the names of some of the employees who had attended a union meeting. This created an embarrassing legal situation in view of the possibility of future discharges of union employees for production deficiencies and the possibility of the General Counsel attempting to impute to the Respondent any knowledge about the Union which Mrs. Moore might obtain from her husband, in the event unfair labor practice charges were filed and a complaint issued in connection with such discharges. At the close of the previous hearing, S. K. Tanger, Magid, and Attorney Douglas discussed this situation and the possible solutions that the Moores might agree upon to change the situation. When S. K. Tanger explained the situation to Mrs. Moore on October 17, he expected and hoped that she would offer to make Troy withdraw from the Union or stop attending union meetings or even find other employment. When she had no solution to offer, her resignation was requested. The General Counsel and counsel for the Charging Party contend that (1) Respondent's true motive in terminating Louise Moore was based on antiunion considerations, and (2) even accepting Respondent's asserted motive, its action still constituted a violation of Section 8(a)(1) of the Act as a matter of law. 1. As to Respondent's true motive in terminating Moore's employment Respondent's supervisors and agents knew at all times that Mrs. Moore's husband, Troy, was a union adherent and was attending union meetings. Respondent admits that its supervisors were instructed not to interrogate employees about the Union but to keep their eyes and ears open, to listen to any information about the Union volunteered by employees, and to report what they heard to management Respondent admittedly was opposed to having the Union selected by the employees as their collective-bargaining representative. Moreover, Respondent's supervisors and agents did affirmatively interrogate employees about the Union and tried to ascertain the names of union adherents. Thus, in July, Head Floorlady Bessie Oliver interrogated an employee about her union attendance and the union activities of her fellow employees and attempted to get that employee to ascertain and report on the union membership and activities of other employees, as found in the previous case. Despite the fact that Head Floorlady Oliver's conduct was in direct violation of instructions to supervisors not to interrogate employees or seek information in that manner, she was not even reprimanded by Respondent, let alone discharged for it. Nor was any criticism ever raised against Lee Head, an admitted agent of Respondent, for his conduct in July or August in questioning an employee about the number in attendance at a union meeting and in interrogating Troy about what steps could be taken to get him on management's side while at the same time announcing that he had been instrumental in getting him a 5-cent raise, as previously found. Indeed, S K. Tanger himself engaged in conduct which violated these instructions when he asked Mrs Moore to try to get Troy to give her a list of the names of employees who attended union meetings. The same may also be said mm The findings In this paragraph are based on the credited end uncontradicted testl- monv of Louise Moore and Fays Strader Pelizzarl merely testified that he did not remember "exactly" whether such a conversation took place and admitted that "we may have had such a conversation " 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about Moe Tanger who wanted Mrs. Moore to use her influence as a wife to try to get Troy to stop attending union meetings and to get over on "our side." 14 On the other hand, the only time that Mrs. Moore ever asked her husband for any information about the Union was when she was requested to do so by S. K. Tanger, as previously found. On the one and only occasion when she was informed about the names of some of the employees who had attended a union meeting, it was Troy who had volunteered that information to her on June 23 because of the fact that Supervisors Hall and Adams had also attended that meeting Mrs. Moore merely kept her ears open and listened in accordance with the instructions to the supervisors. In fact, S. K. Tanger admitted that it was not a breach of trust for a supervisor to listen to information about the Union voluntarily given to her by an employee. And he also believed Mrs. Moore when she told him in the October 17 interview that she had never discussed anything of importance about the Union with Troy, as previously found. In view of the foregoing, I cannot believe that, when Mrs. Moore disclosed during the previous hearing that Troy had volunteered that information to her on June 23, Respondent took the drastic action of terminating the employment of an admittedly valued and highly satisfactory supervisor because of its sudden concern over the possibility that Louise Moore might continue to acquire information from her hus- band about the union activities of some of its employees, the further possibility that it might have to discharge some employees in the future for production deficien- cies, the further possibility that some of the employees so discharged might be union members or adherents, the further possibility that the Union might file unfair labor practice charges in connection with such discharges, the further possibility that the General Counsel might find such charges to have merit and might issue a com- plaint, and the further possibility that the General Counsel would then try to impute to Respondent knowledge of the discharged employee's union membership or activities because of the information which Mrs. Moore might have received from her husband.15 My conviction that this was not Respondent's true motive is further buttressed by S. K. Tanger's admitted failure even to consider offering Mrs. Moore a nonsupervisory job,16 a position which could have caused no possible legal embarrassment to Respondent if the combined series of the above-related possibilities actually occurred, and also by S. K. Tanger's attempt to get Mrs. Moore to tell the employees that she was quitting her employment because the union activities were getting on her nerves, a deliberate falsehood, as previously found. Moreover, the Respondent took no steps to rescind the instructions to supervisors to listen and to report to management any volunteered information about the Union, the least that might have been expected of Respondent if it were truly concerned about the possibility of supervisors' knowledge being imputed to it. Mrs. Moore had been a very cooperative supervisor in Respondent's efforts to find out which employees were interested in the Union and to try to win such em- ployees over to Respondent' s side. Thus, when S. K. Tanger asked her to try to get Troy to give her a list of the employees who were attending union meetings, she complied with his request and reported back that Troy did not want to have any- thing to do with it. At supervisors' meetings she also told S. K. Tanger that Troy was not giving her any information about the Union. When Moe Tanger asked her to use the influence of her marital relationship to try to get Troy to quit attending union meetings and to get him on Respondent's side, she complied with this request also, albeit unsuccessfully. Also, she immediately informed her superiors after being visited by a Board investigator to whom she gave a signed statement in con- nection with the prior case and, at Moe Tanger's request, gave him a similar signed statement. She thus enjoyed Respondent's complete trust and confidence in these matters However, all this trust and confidence suddenly evaporated when S. K. Tanger first learned during the previous hearing that she had been told by Troy the names of some of the employees who had attended the June 23 union meeting. He told her that he was surprised by her disclosure and testified that "we just felt she wasn't fair with us" and that she had committed a breach of trust because she had 14In addition Sidney Magid, Respondent's vice president, asked Mrs Moore on June 16 if she was going to the union meeting that night and wanted to know why she was not going At the same time he also asked employee Dot Thompson if she was going to attend, and wanted to know If he could accompany her when she replied in the affirmative, all as previously found 151 note that the General Counsel made no such attempt in the previous hearing 16 Compare Respondent's admitted treatment of another supervisor who was retained as a machine operator when she no longer wished to occupy a supervisory position, as was admitted by Respondent in the previous hearing BROOKSIDE INDUSTRIES, INC. 25 : previously,told him that Troy had- not given her any information about the- Union. I, am convinced and find that it-was Mrs. Moore's failure to comply with-instructions, to -report such information to Respondent-,which constituted the breach of trust and made Respondent feel that "she wasn't fair with us." Upon consideration of the foregoing and the entire record as a whole, I am convinced and find that it was her breach of trust in this respect. which primarily motivated Respondent in requesting her resignation and terminating her employment.17 It, is reasonable, to infer that S. K. Tanger's reason for wanting a list of the em- ployees attending -union meetings as well as the reason for instructions to supervisors, to report to management any -information about the Union which came to their attention, was to assist Respondent -in- its campaign against the Union.18 - It is now well settled that the discharge of a supervisor for refusing to aid in such a campaign unlawfully interferes with, restrains, and- coerces the nonsupervisory employees in the exercise of the rights guaranteed by Section 7 of the Act and, therefore, con- stitutes a violation of Section 8 (a)( 1 ) of the Act.19 - - Moreover, an employer may not rightfully require its supervisors to reveal all information they may have regarding union activities, no matter how such infor- mation had been obtained.20 Mrs. Moore was not her husband's supervisor. The information in the instant case was not acquired by her in the normal course of her duties as a supervisor; it was volunteered to her by her husband in the privacy of their home and in the mutual trust and confidence which arises from the marital relationship 21 The discharge of a- supervisor for failing to disclose information acquired in such a private and confidential manner would have even a greater impact in causing the nonsupervisory employees to fear that Respondent would take similar action against them for continuing to adhere to and support the Union. - I find that Respondent's termination of Louise Moore's employment on October 19, 1961, because of her failure to report the information which her husband had volun- teered concerning the names of some of the employees who had attended the June 23 union meeting, constituted an invasion of the self-organizational rights of the rank- and-file employees, as guaranteed in Section 7 of the Act, and therefore a violation of Section 8 (a)( 1 ) of the Act 22 2. As to the legality of Moore's termination on the basis of Respondent's asserted motivation Assuming that Respondent acted in good faith in terminating Mrs. Moore's em- ployment for the reasons asserted by it, the question still remains whether such a termination was nevertheless a violation of Section 8 (a)( 1 ) of the Act. The prob- lem which Respondent felt was created by the fact that Mrs. Moore, a supervisor, might acquire knowledge of union activity of rank-and-file employees from her husband, Troy, who was a union member and attended union meetings , admittedly would have been satisfactorily resolved if Troy Moore withdrew from the Union or stopped attending union meetings or found other employment . While Respondent admittedly had hoped and expected that Mrs. Moore would suggest these solutions herself, Respondent states in its brief that it had no right to order Mrs. Moore to make her husband withdraw from the Union or to cease attending union meetings. However, the effect of what S . K. Tanger told Mrs. Moore on October 17 was to put her in the position of either losing her job or of having her husband withdraw from the Union or cease attending union meetings or resigning his job. In other words, 11 In view of my disposition of the issue raised by the termination of Louise Moore's employment, I find it unnecessary to determine whether the evidence adduced in this hearing is sufficient to warrant a finding that Joe Ann Shelton was an agent of Respondent. 18 In the previous case , I found that Respondent discriminatorily discharged three em- ployees in violation of Section 8(a) (3) of the Act and engaged in additional acts of inter- ference, restraint , and coercion violative of Section 8(a) (1) of the Act. See footnote 2, supra 19 Talladega Cotton Factory, Inc, 106 NLRB 295, enfd 213 F 2d 208 (C A 5) ; Inter-City Advertising Company of Greensboro, N C, Inc., 89 NLRB 1103 , 1106, reversed in this respect on other grounds 190 F 2d 420 (C.A 4). 20 Inter-City Advertising Company of Greensboro , N C, Inc , supra, at p. 1107 21 These are privileged communications which neither spouse can be required to disclose in evidence . See footnote 27, infra. 22'No showing is necessary that Respondent intended , by its action in terminating Louise Moore's employment, to interfere with the Section 7 rights of its nonsupervisory employees. See, e g, N L R B. v J E McCatron , et al , d/b/a Price Valley Lumber Co., et at., 216 F. 2d 212 (CA 9). 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD retention of her job as a supervisor was in effect conditioned upon her husband with- drawing from the Union or ceasing to attend union meetings. Stated still differently, Troy Moore was being penalized in the continuance of his union membership and activities by the loss of his wife's job and earnings . However stated, Respondent's termination of Louise Moore's employment therefore directly interfered with, re- strained, and coerced her husband, Troy, in the exercise of his self-organizational rights guaranteed by Section 7 of the Act 23 But not every interference with such employee rights is a violation of Section 8(a) (1) of the Act. Thus, for example, it is well settled that an employer may law- fully promulgate and enforce a rule prohibiting union solicitation or distribution of union literature on company property by employees during working time or even during their nonworking time where special circumstances make the rule necessary in order to maintain production or discipline 24 Similarly, the prohibition against unlawful interrogation does not extend to such interrogation by an employer or his counsel as is necessary to prepare their defense25 An employer, however, may not lawfully take any action which interfers with an employees' self-organizational rights even though it may in good faith believe such action to be necessary to meet a given situation. First, the nature of the employer's interest must be such that the need for its protection, on balance, overrides the need for protecting the employees' interest in the exercise of their Section 7 rights without employer interference, as in the case of the maintenance of production or discipline, or the preparation of the employer's defense. Secondly, the action taken, even though it may be in good faith, must be limited to the necessities of the situation. 26 It is therefore necessary to scrutinize carefully each case on its own facts. In the instant case, what was the nature of Respondent's interest and what was so compelling about the need for its protection to warrant the infringement upon Troy Moore's self-organizational rights by the discharge of his wife? It was merely a concern that if the total combination of about six possible events, previously related, were to occur, then it would make Respondent's defense more difficult and might cause additional inconvenience and expense. Louise Moore was a minor supervisor, ranking at the very bottom of the super- visory hierarchy. She had no authority to hire or discharge employees or to make the decision to discharge an employee. She did responsibly direct the work of a number of employees in the sewing room, not including her husband. Discharges were decided upon and made by the sewing room superintendent or by. management representatives of equal or higher rank, as was demonstrated in the prior case. Under these circumstances, I have grave doubts that any knowledge which Mrs. Moore might acquire about the union activities or interests of a dischargee would per se be imputed to the person responsible .for the discharge. Moreover, any such communications between Mr. and Mrs. Moore, which were obviously made in the confidence of the marital relation, are privileged communications which neither spouse can be compelled by the General Counsel to disclose27 In any event, mere knowledge on the part of Respondent about the union membership and activities of its employees neither compromises its neutrality nor is unlawful in any other respect. This is not a case where the conduct or activities of a supervisor per se compromise the employer's neutrality and constitute an unfair labor practice for which the em- ployer is liable. In the instant case, it is only if Respondent were to put any knowl- edge acquired by Mrs. Moore to a discriminatory use that the Act would be violated. And Mrs. Moore would have no control over Respondent's conduct in that respect. The Board has long held that an employer's knowledge of a dischargee's union ac- tivity, without more, is insufficient to support an inference of discrimination 28 It must be borne in mind that it was the Respondent who told the supervisors to listen to and to report to management any information about the Union which was volunteered by rank-and-file employees. Respondent could have rescinded these instructions; it could have instructed Mrs. Moore not to listen to any union talk by n,Such conduct would also reasonably tend to have a similar impingement upon the self-organization rights of other rank-and-file employees whose spouse might aspire to promotion to a supervisory position The record does not disclose the employment of other wives with their husbands by Respondent 24 Walton Manufacturing Company, 126 NLRB 697 25 Joy Silk Mills, Inc., 85 NLRB 1263, 1290-1292, enfd 185 F 2d 732 (C A D.C.) 2Q See, e g , Katz Drug Company, 98 NLRB 867; NLRB v Illinois Tool Works, 153 F. 2d 811, 814 (CA 7) 27 97 Corpus Juris Secundum , § 266, p 762 ; 58 American Jurisprudence, § 375, p. 200. 28 The Great Atlantic & Pacific Tea Company, Inc , 129 NLRB 757; The Efficient Tool & Die Company, 79 NLRB 170 BROOKSIDE INDUSTRIES, INC. 27 her husband; it could even have instructed Troy Moore not to discuss union activities with his wife because of her supervisory status; and it could have disciplined them if they violated such instructions: - Upon full consideration of the nature and extent of Respondent's interest which it sought to protect, the low probabilities of the alleged problem ever materializing, the factors which disclose no great need for protection, the availability of other remedial measures, and the kind of action which Respondent took, I am convinced and find that (1) on balance, there is no valid justification in this case for overriding the right of employees to engage in the exercise of their Section 7 rights free from employer interference, one of the "dominant purposes" of the Act,29 and (2) Re- spondent's action in terminating Louise Moore's employment went beyond the neces-` sities of the situation. I therefore find that by terminating the employment of Louise Moore and thereby interfering with, restraining, and coercing her husband, Troy Moore, in the exercise of the rights guaranteed by Section 7 of the Act, the Re- spondent has violated Section 8(a) (1). F. Other alleged acts of interference; restraint, and coercion Paragraph 9 of the complaint alleges as an independent violation of Section' 8 (a) (1) of the Act that Respondent, by its agent Moe Tanger, on or about July 20, 1960, ordered Louise Moore to interrogate employees concerning the union activities of its Reidsville plant employees and to report information obtained to Respondent. No evidence was adduced bearing directly on this allegation. The only conduct involving Moe Tanger is his statement to Louise Moore at one of the supervisors' meetings in July that he understood her "hubby" was attending union meetings, his request a few days later that she use her influence as a wife to talk to her husband and try to get him to quit attending union meetings and to get over on the Company's side, and his asking her in the latter part of July if she would give him a written statement similar to the one which she reported she had given to a Board investigator in connection with the prior proceeding, all as previously found. I find nothing un- lawful in this conduct, per se. As Moe Tanger was privileged to try to persuade Troy Moore to stop attending union meetings and to get over on management's side, in the absence of any threats of reprisals or promises of benefits, it was not unlawful for him to ask a supervisor to exercise the same privilege. Nor, under the circum- stances disclosed by the record, was there anything unlawful in asking Mrs. Moore if she would be willing to give Moe Tanger a written statement similar to the one she gave to a Board investigator. I will accordingly recommend that this allegation in the complaint be dismissed. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities set forth in section III, above, occurring in connection with Respondent's operations described in section 1, 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 commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in the unfair labor practices set forth above, I will recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(1) of the Act by terminating the employment of Louise Moore, a supervisor, I further find that Louise Moore's reinstatement with backpay is necessary in order to restore to Respondent's non- supervisory employees their full freedom to exercise the rights guaranteed them in Section 7 of the Act, and thus effectuate the policies of the Act 30 I will accordingly recommend that Respondent offer Louise Moore immediate and full reinstatement to her former or to a substantially equivalent position, without prejudice to her seniority and other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of such termination, by payment to her of a sum of money equal to that which she normally would have earned as wages from the date of her termination on October 19, 1960, to the date of said offer of reinstatement, less her net earnings during such period, such sums to be computed in accordance with the formula established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. ='B Republic Aviation Cw poratlon v. N L R B , 324 U S 793, 798 30 Inter-City Advertising and Talladega Cotton Factory cases, supra 28: DECISIONS OF NATIONAL LABOR' RELATIONS BOARD 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. By terminating the employment of Louise Moore , a supervisor, on October 19, 1960, Respondent has interfered with , restrained , and coerced its nonsupervisory employees in the exercise of rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. . . 2. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 3. Respondent has not engaged in independent unfair labor practices within the meaning of Section 8(a)(1) of the Act by the conduct of Moe Tanger. [Recommendations omitted from publication.] i Wayne W. Wilson Company and Local 247, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind. Wayne W. Wilson Company and Arthur Shemansky . Cases Nos. 7-CA-2845 and 7-CA-3112. January 4, 1962 DECISION AND ORDER On October 12, 1961, Trial Examiner John H. Eadie issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent did not engage in certain other unfair labor practices al- leged in the complaint and recommended dismissal of those allega- tions. Thereafter, the General Counsel and the Respondent filed ex- ceptions to the Intermediate Report together with supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Members Rodgers, Fanning, and Brown]. 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 Interme- diate Report, the exceptions and briefs, and the entire record, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. 1 The General Counsel contends that the October 24, 1960 , layoff of Arthur Shemansky was violative of Section 8(a) (4) as well as Section 8 (a) (3) Ave have found , herein, that Shemansky's October 24 layoff violated Section 8 ( a) (3), and we have ordered his full reinstatement and backpay for the period of his layoff . Under these circumstances, and as the policies of the Act will be fully effectuated by our remedial order herein, we find it unnecessary to determine whether Shemansky 's layoff was also violative of Sec- tion 8 ( a)(4) of the Act 135 NLRB No. 5.